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What to Expect at the Initial Consultation With an Attorney
Many people are justifiably concerned about the costs that will be involved in hiring an attorney to pursue their case - and often seek to know those costs in advance of their consultation. It is most important to understand that the cost of pursuing a legal case depends on the work that may be involved - and that work varies widely depending on the type and complexity of the case. In addition to the type and complexity of the case, you should also consider the fee structure and costs involved.
Fee and Costs:
Attorneys typically bill in three different ways: Flat Fees, Contingency Fees, and Hourly Fees. In most cases with hourly fee billing you will be required to pay a retainer (lump-sum payment of fees) up front. This retainer is used to cover costs that will be necessary in starting your case. These costs can include court filing fees, travel costs, fees for process servers, mailings, paralegal work and more. With hourly fee billing, when the retainer is depleted you will be required to replenish the retainer. Some types of cases can involve a combination of all three billing methods.
The flat fee method of billing is often applied in cases of Uncontested Divorce and in drafting of trust and estate documents such as wills, living wills, health care proxies, powers of attorney and real estate transactions. In these types of cases, the attorney can easily estimate the amount of time and resources she will need to complete a matter. Most attorneys will require you to pay the fee in advance.
Personal injury lawyers often bill on a contingency fee basis. With contingency fee billing, the client pays little or no out-of-pocket costs. The attorney seeks an award of damages for the client. The attorney's fee constitutes a pre-arranged percentage of that award. Contingency fee billing is prohibited in divorce matters.
With hourly Fee billing the client and attorney negotiate a price per hour. Hourly fee billing is often used in contested divorce cases where there are disputes regarding the marital assets, spousal and child support, child custody, and parenting time. Hourly fee billing is also used with civil litigation and criminal matters where there will be multiple court appearances, research and writing and motion practice.
The Initial Consultation
When consulting with an attorney for the first time, you should be sure to bring with you all paperwork related to the matter you will be discussing, for example: copies of Court Orders, Prenuptial Agreements, Judgments, and other Contracts. In a Probate case, bring all relevant Death Certificates and Wills. If the attorney has sent you a questionnaire, please fill that out and bring it with you as well.
During your consultation, the attorney will ask about the issues in your case and discuss the merits of the actions and the various ways you can proceed. There will then be a mutual selection process. You will decide if you want to work with the attorney and the attorney will let you know whether she is willing to take your case. If you agree to work together, your attorney should clearly outline the scope of work to be done - for example: drafting documents, settling a dispute, litigating a matter etc.
At the end of the consultation the cost of pursuing your case can now be projected. At this point your attorney will negotiate your fee structure and payment schedule. Also, either at the time of your meeting or shortly thereafter your attorney will provide you with a client retainer agreement and a statement of client rights and responsibilities. Please note that no work will be done on your matter prior to your signing and returning the retainer agreement.
If you have further questions, please do not hesitate to contact us at the Law Office of Angela Barker, Esq. at (646) 415-8883.
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 New York has become the sixth state to allow same-sex marriage. This is as it should be. No matter your personal feelings and religious beliefs the institution of marriage confers myriad benefits upon married persons. To discriminate against a group by denying them the right to marry has no place in a modern, progressive society. The world is changing - and for the most part for the better. In less than a year New York has significately changed its laws regarding marriage. Changes and transitions are not easy, but for the United States to become a more perfect union, they are absolutely necessary.
Life is a series of transitions, and at the Law Office of Angela Barker & Associates, LLC, we are committed to helping ease the transition through the various life stages: whether it be a change in the family structure as a result of death, marriage, divorce, or separation. We are there for you as you buy or sell your home, and we assist our clients in planning for their loved ones' golden years and help them pass their assets on to the next generation. People are our business. For the benefit of our clients and the communities we serve, we have developed this newsletter as a legal and consumer resource. Enjoy!
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| Changes in Federal Estate and Gift Tax Law |
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Recently, a new federal law came into effect which provides families with less tax burdens when donating money or assets. There is a tax on the transfer of any property (including money) by one individual to another while receiving nothing or less than full value in return. This is called a gift tax. The donor is generally responsible for paying the gift tax.
For the next two years under the new law, the gift-tax exemption jumps to $5 million from $1 million for individuals and to $10 million from $2 million for couples, this means people can typically give away that much money without paying a penny in taxes.
The gift tax exemption applies to total gifts made during a person's life and the exemption will be portable. Portability allows for the surviving spouse to use his/her deceased spouse's unused gift exemption. For example: if Joe dies before his wife Betty and he never used his lifetime gift tax exemption, Betty can give away up to $10 million dollars without paying taxes. Betty can use her $5 million dollar exemption as well as her husband's $5 million dollar exemption.
The new $5 million dollar gift tax exemption is separate from the gift tax exclusion. With the gift tax exclusion,individuals can typically make annual gifts of $13,000 or less to an unlimited number of people without using their lifetime gift tax exemption. The recipient may be anyone, not just a relative, and the gift may be either cash or a non-cash item such stock or other property.
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| Check the House Before You Leave the Spouse: Why divorcing couples should consider a home inspection |
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Last year, New York Times blogger Jennifer Saranow Schultz published an interesting article on the importance of getting a home inspection when going through a divorce. During the course of a divorce, the value of the family home is often appraised as part of determining the couple's assets. However, the appraisals tend to focus on the home's square footage and the home's features compared to neighboring homes.
To supplement the appraisal, Ms. Saranow suggests that one of the divorcing spouses should obtain an independent, third party inspection of the home. Home inspectors can advise the homeowner on the latent defects that could lower the home's value. Home inspectors can even examine the house's major appliances and utility systems to estimate their remaining life. The home inspector's report can be used during the divorce negotiations to get a more accurate estimate on the home's worth and the cost of key repairs. The parties can then decide whether to use marital assets to make necessary repairs or reduce the home's value.
Home inspections can help ensure that the party keeping the home is getting a fair deal. Unfortunately, divorcing couples rarely have them done. Parties are often caught up in the emotions tied to the home and the pending divorce and, as a result, they fail to see the decision, whether keep the home or not, as a business transaction. Source: Home Work in a Divorce, Published 10/23/10 in New York Times
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| Keep Retirement Accounts Safe from Creditors |
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Most people are relying on money tucked away in their pensions, Social Security, and 401k to sustain their needs during retirement. People are unaware that retirement accounts can be exposed to significant risks from creditors. Creditors can include former spouses, debt collection agencies, civil court judgments or the I.R.S. Creditors are becoming more aggressive in their attempts to reach retirement accounts.
Strategies for keeping your retirement accounts safe from creditors depends on where you live, the type of assets you have and how you obtained your retirement assets. Most private employer-sponsored retirement plans are regulated by the federal Employee Retirement Income Security Act (ERISA). In addition to 401(k) plans, qualified plans subject to ERISA include 403(b)s, savings incentive match plans for employees (SIMPLEs), profit-sharing plans and defined benefit plans.
ERISA features an "anti-alienation" provision that essentially bars employers from allowing creditors to garnish or seize employees' retirement funds while the employer still possesses them. Two major exceptions to ERISA protections are divorce actions and federal tax liens. Certain retirement plans are not covered by ERISA such as individual retirement accounts (IRA) and state law determines whether these accounts are protected from creditor claims.
Like most states, New York and New Jersey exempt 100 percent of retirement assets while they are in the account. However, state laws vary on whether cash withdrawals are also shielded.
To reduce the risk of a creditor seizing your retirement accounts, review your estate plan and IRA beneficiary designation forms regularly to make sure they reflect your current family situation and desires. Also, avoid making transfers from retirement accounts for the sole purpose of defrauding or hindering creditors. State and federal laws will not protect fraudulent conveyance of retirement funds. Transfers must be made before creditors attempt to claim retirement accounts.
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