Divorce: Mediation is it helpful?...

Is Mediation required and is it really helpful?

If the parties are unable to reach agreement on every issue in dispute, they will be required to attend Mediation. If there are no minor children involved, mediation may still be held if both spouses agree to attend or if it is otherwise ordered by the Judge. The mediation fee is $80.00 for each party, although it sometimes makes sense to pay the full amount of $160.00 in order to move matters ahead more expeditiously. Mediation is informal in the sense that the spouses, their attorneys and a mediator meet in private, without the customary Court rules regarding evidence or courtroom procedure. The mediators are hired by the Court and have received training in the art of mediating, although few have formal legal training and they therefore cannot provide legal advice. As an impartial third party, the mediator tries to help the parties reach reasonable agreements regarding the issues of the divorce. It is not a purpose or goal of mediation to seek to reconcile the parties’ marital differences. The mediation process has been found to be a useful tool for obtaining a fair settlement agreement in many contested divorces.
For more information log onto www.shankmanlegal.com or give us a call at 207.786.0311
Neil S. Shankman, Attorney, Brunswick, Maine

Bankruptcy, The Laws Have Changed...

FAQ Part 2:
3. What debts are not dischargeable under Chapter 7?

All debts of any kind or amount, including out-of-state debts, are dischargeable under Chapter 7 except the debts listed below. The following is a list of the most common debts that are not dischargeable under Chapter 7:

* Most tax debts and debts that were incurred to pay federal tax debts;
* Debts for obtaining money, property, services, or credit by means of false pretenses, fraud, or a false financial statement, if the creditor files a complaint in the case (included here are debts for luxury goods or services and debts for cash advances made within 60 days before the case is filed);
* Debts not listed on the Debtor's Chapter 7 forms, unless the creditor knew of the case in time to file a claim;
* Debts for fraud, embezzlement, or larceny, if the creditor files a complaint in the case;
* Debts for alimony, maintenance, or support and, if the creditor files a complaint in the case, certain other divorce-related debts including property settlement debts;
* Debts for intentional or malicious injury to the person or property of another if the creditor files a complaint in the case;
* Debts for certain fines or penalties;
* Debts for educational benefits and student loans, unless a Court finds that not discharging the debt would impose an undue hardship on the Debtor and his or her dependants;
* Debts for personal injury or death caused by the Debtor's operation of a motor vehicle while intoxicated;
* Debts that were or could have been listed in a previous bankruptcy case of the Debtor in which the Debtor did not receive a discharge.

4. What persons are not eligible for a Chapter 7 discharge?

The following persons are not eligible for a Chapter 7 discharge:

* A person who has been granted a discharge in a Chapter 7 case filed within the last eight years;
* A person who has been granted a discharge in a Chapter 13 case filed within the last six years, unless 70 percent or more of the unsecured claims were paid off in the Chapter 13 case;
* A person who files a waiver of discharge that is approved by the Court in a Chapter 7 case;
* A person who conceals, transfers, or destroys his or her property with the intent to defraud his or her creditors or the Trustee in the Chapter 7 case;
* A person who conceals, destroys, or falsifies records of his or her financial condition or business transactions;
* A person who makes false statements or claims in the Chapter 7 case, or who withholds recorded information from a Trustee;
* A person who fails to satisfactorily explain any loss or deficiency of his or her income;
* A person who refuses to answer questions or obey orders of the Bankruptcy Court, either in his or her bankruptcy case or in the bankruptcy case of a relative, business associate, or corporation with which he or she is associated.
.....Neil S Shankman, Attorney, Lewiston, Maine

Landlord /Tenant: Why You May Need an Attorney...

As a Landlord, often times it can feel as if the Tenant has all of the rights. This is not entirely true, as a matter of fact we hold several Landlord/Tenant seminars every year so folks like you can be informed on the latest news, decisions and laws that will affect you in the coming year. We have recently published 2 new Landlord/Tenant Books. They are filled with the knowledge you will need to help protect you and inform you.The following are a few of our most "Frequently Asked Questions".
I need to evict a tenant for non-payment, what is the best way to approach this?
Making a request for payment via a Notice of Termination of Lease or Notice to Quit, depending on the tenancy.
What is a notice to quit?
A Notice to Quit is a landlord's written notice demanding that a tenant surrender and vacate the leased property, thereby terminating the tenancy.
Does your firm offer a foolproof lease?
Absolutely. Our Leases hold up in Court !!!
Is there a book available with this information?Yes. We offer two books. The first one is entitled "Maine Landlord-Tenant Statutes and Commentaries", which is a compilation of current statutes with supplemental commentaries and case citations.The second book is entitled "Landlord-Tenant Relations Process and Procedures, which is 200+ pages with sample notices, leases, termination of tenancy, how to handle abandoned property, illegal evictions, late fees, security deposits, bankruptcy, civil rights issues, and much, much more.
How can I protect myself in the future?
In addition to checking references of prior landlords and employers, criminal history and credit reports are a wonderful resource.
What do I need to bring to my first appointment?
A complete copy of your file which should include the following:
Information on the landlord (name, address, phone number)
Information on the tenants (names, addresses, work place, physical description),
A copy of the signed lease (if applicable)If evicting for nonpayment of rent, or any other financial obligation, a recent tenant ledger, recertification of income, notice of rent change, etc. If evicting for anything other than nonpayment, documentation from other individuals who have complained about the action of the tenants.
Can I put Shankman & Associates on retainer?
We recently created a new program for smaller companies: “Lawyers On Line”. For a $300.00 retainer, we open a file for you with all of your basic information. If you later have a question or concern, we are available by telephone and online. Paralegal time is billed at $60.00 per hour and interaction with a lawyer is charged at $150.00 per hour. You are already prepaid and we will have the background information from the initial file set up. It is preventative law at best. Call Karen Cook today, she will be happy to set up your account. 207 786 0311 or log onto our website www.shankmanlegal.com
...Neil S. Shankman, Attorney, Yarmouth, Maine

Divorce: It is About You...

First in a Series...
What are the grounds for divorce?
The answer to the question is that Maine permits divorces to be granted on the ground of “irreconcilable marital differences between the spouses”. This is also referred to as a “no-fault” divorce. In order to obtain a no-fault divorce, it must be shown that the marital differences are sufficiently serious as to make it impossible for you and your spouse to live together.
Although the traditional fault-related grounds for divorce such as “cruel and abusive treatment” and “adultery” still exist, virtually all divorces now proceed solely on the grounds of irreconcilable marital differences. The purpose of the no-fault divorce is to reduce bitterness and hostility between the spouses which can be generated by the divorce process. There is no “advantage” gained by proving fault. Except in the case of economic misconduct, neither side is penalized based on inappropriate behavior.
What issues will be addressed in a divorce?
In addition to determining whether the husband and wife will be granted a divorce, Maine divorce courts have broad powers to resolve all other issues related to the divorce. Other issues often include (1) the determination of future parental rights and responsibilities (including child support and visitation) if there are children of the marriage under the age of eighteen; (2) the award of temporary or permanent alimony; (3) the division of marital property belonging to the parties and the setting aside of non-marital property; (4) determining responsibility for the payment of marital debts; (5) permitting a wife to resume her former name; and (6) the determination of the responsibility for paying the attorney’s fees and court costs incurred as a result of the divorce. The property and financial issues which may arise during a divorce are virtually unlimited. For more information log onto www.shankmanlegal.com
...Neil S. Shankman, Attorney

Bankruptcy: Chapter 7 can be an option...

First in a series...
Bankruptcy can be a difficult decision. At Shankman & Associates, we are Maine Bankruptcy attorneys. We will guide you through your options, and help you to make a decision that helps you. Bankruptcy is an option.

1. What is Chapter 7 and how does it work?
Chapter 7 is that part (or Chapter) of the Bankruptcy Code that deals with liquidation. The Bankruptcy Code is that part of the federal laws that deal with bankruptcy. A person who files under Chapter 7 is called a Debtor. In a Chapter 7 case, the Debtor must turn his or her nonexempt property, if any exists, over to a Trustee, who then converts the property to cash and pays the Debtor's creditors. In return, the Debtor receives a Chapter 7 discharge, if he or she pays the filing fee, is eligible for such a discharge, and obeys the orders and rules of the Court.
2. What is a Chapter 7 discharge?
It is a Court Order releasing a Debtor from all of his or her dischargeable debts and ordering the creditors not to attempt to collect them from the Debtor. A debt that is discharged is one that the Debtor is released from and does not have to pay. Some debts, however, are not dischargeable under Chapter 7, and some persons are not eligible for a Chapter 7 discharge.... To find out more log onto www.shankmanlegal.com...Neil S. Shankman, Attorney, Lewiston, Maine

Landlord Tenant: A Pound of Cure....

PREVENTION VERSUS CURE
By Neil S. Shankman


Over the course of the last 25 years, at least 3 or 4 times per year, I have made presentations to groups of landlords and property managers. One key element of every presentation has been the importance of reviewing and updating leases on a regular basis. Laws change. Federal regulations are amended. Courts reinterpret the meaning of words. The consequences of your failure to update your knowledge of the law and change your basic working documents can cost your company literally thousands of dollars.

Simple mistakes or even honest misinterpretations of the law can lead to substantial consequences.

A number of property management companies in the State of Maine have included provisions in their lease by which a tenant would have to pay a fee if they terminate their tenancy early. While State law has always been clear that “liquidated damages” clauses are looked at with disfavor by the Courts however they are permitted under limited circumstances. This basic rule applies to business contracts as well as to landlord/tenant situations.

Between 2005 and 2007, one Portland property management company routinely charged their tenants an early termination fee pursuant to the terms and conditions of their lease. The rational was that even if the company was able to find a new tenant, there would be certain inevitable expenses for advertising, screening new tenants, cleaning the apartment (normal wear and tear) and extra staff time that warranted a $600.00 flat fee. The basic position was that this was not an arbitrary “liquidated damages” clause, but rather a rational financial consequence that would be suffered by the landlord due to early termination.

The Attorney General concluded otherwise and in April of 2008 a Complaint was filed against the property management company. Ultimately, the company concluded that the cost of litigation was not worth arguing for the validity of the $600.00 fee. A Consent Decree was entered whereby the landlord agreed to refund to the affected former tenants up to $46,711.00 of “improper fees charged”. Additionally, the company was also ordered to pay a $10,000.00 fine. Furthermore, the company agreed that it would not charge tenants for such fees in the future.

Title 14 § 6010-A of the Maine Revised Statutes Annotated provides that a landlord is under a duty to mitigate damages when a tenant wrongfully terminates his or her tenancy. The landlord cannot simply leave the apartment un-rented for months at a time and expect the tenant to provide full reimbursement. Essentially, the tenant is on the hook for the actual out of pocket expenses that the landlord expends to re-rent the unit. However, once the unit is re-rented, the tenant’s obligation is complete (so long as the landlord has been fully reimbursed for his or her losses).

Many of us in the property management industry have been aware of the inherent risk of liquidated damages causes. However, the recent Consent Decree is the first time that the Attorney General has challenged such a provision with such vigor. If your lease contains a penalty for early termination, it is imperative that you amend your lease immediately. If you have a tenant currently subject to such a provision, it is your obligation to notify the tenant that the provision will not be imposed against them. At the same time, however, you can explain to your tenants that the consequences of early termination include personal liability for the full amount of actual damages incurred by the landlord.

All of this is simply another reminder that an ounce of prevention is worth a pound of cure, the early bird gets the worm, and an annual review of your leases and other basic forms is a wise business decision. ...Neil S. Shankman, Attorney, Lewiston, Maine