On Demand CLE is Easy at ICLEF!

On Demand CLE. What’s that?  Can I watch them from my office or home? (Yes)   Is it difficult to setup? (No)   Could I find programs for my area of practice? (Definitely)

ICLEF On Demand Seminars are prerecorded Live Seminars that are available - on your schedule – anywhere you choose. For instance, if your schedule didn’t permit you to be at a Live In-Person Seminar of that important law update, you can catch it later On Demand. You select the CLE and we take you through the easy steps to watch it at a time of your preference. All the materials needed are available for you as searchable PDF documents and if any software is needed it will be downloaded and installed for you.

You’ll find a diverse selection of subject matter available On Demand, including: Family Law, Estate & Trust, Ethics, Bankruptcy, Litigation, Elder Law, Intellectual Property, Real Estate Law and much more. So, get ready to download your CLE materials and grab a cup of coffee.

On Demand CLE Seminars from ICLEF are an easy, quality alternative to Live In-Person Seminars. Click Here for the current listing of On Demand Seminars and watch your weekly ICLEF email newsletter for updates. For a How To on purchasing, downloading and viewing an On Demand Seminar, Click Here.

Note: Indiana lawyers are permitted 6 CLE credits in each 3-year cycle via On Demand Seminars and/or Live Individual Webcasts.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Court of Appeals Concludes Premarital Agreement was Unconscionable Since Wife was 16, Pregnant & Not Represented

Case: Julie M. Fetters v. Jay M. Fetters 
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Indiana Court of Appeals concludes that a premarital agreement was unconscionable at the time of its execution where the Wife was then sixteen years old, pregnant, could not read very well, and was not represented by counsel.

FACTS AND PROCEDURAL HISTORY:
Prior to their marriage, Husband and Wife began a sexual relationship in 1994. Wife was only fourteen years old at the time, while Husband was 29. The next year, Wife became pregnant by Husband. Police began investigating the parties’ relationship, and Husband concluded he could avoid prosecution if the parties married. Wife agreed.

Before getting married, Husband had his attorney prepare a premarital agreement. The premarital agreement would essentially keep all property separate as it is titled. Wife and her mother went to Husband’s attorney’s office and signed the premarital agreement. The parties later married.

Wife filed a petition for dissolution in 2011. Over Wife’s objection, the trial court upheld the premarital agreement and, implementing its terms, awarded to Husband assets of $108,500 and to Wife assets of $13,900. Wife appealed.

In its review, the Court of Appeals readily found the premarital agreement to be unconscionable based upon the totality of the circumstances surrounding its execution. [Notably, the opinion places considerable emphasis on Wife’s lack of representation by counsel at the time the agreement was signed, and on the one-sided nature of the agreement’s terms, though it’s unclear how much weight those factors deserve beyond the unusual facts of this case.]  The Court also rejected various arguments by Husband on appeal, such as that Wife was barred by laches for asserting the invalidity of the premarital agreement fifteen years after it was signed, and long after Wife had reached the age of majority.

[Note: The opinion also includes a lengthy footnote in which the Court of Appeals observes that it is unclear whether a premarital agreement can be contested based upon being unconscionable at the time of divorce. The Court noted that some prior case law (e.g., Pond) indicated that a premarital agreement may be contested based upon being unconscionable at the time of its execution, or unconscionable at the time of divorce (e.g., it leaves one spouse completely destitute). The Court noted that the UPAA seems to envision contesting a premarital agreement for being unconscionable only at the time of execution, not at the time of divorce. The Court expressly declined to resolve this question since the instant case could be resolved based upon unconscionable circumstances at the time of execution.]

The trial court’s decree was reversed and remanded for further proceedings consistent with the premarital agreement being set aside and applying the statutory rules of equitable distribution.

To view the text of this opinion in its entirety, click here: Julie M. Fetters v. Jay M. Fetters

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Family Law Case Review0 Comments

Law Tips: Hot Tips on How to Close the Deal to Your Client’s Advantage in Probate Mediation

Is this a feud or a crusade? How do you recalibrate the discussion to get to a reasonable value for an asset? There are sticky issues and elusive answers in any mediation. Brian Hewitt, AlerdingCastor Hewitt, LLP, is here to offer Law Tips readers his pointers gleaned from 20 years of experience in negotiating. Following are his tips on finding the sense of fulfillment your clients need in probate mediations.

Don’t Negotiate in 5′s or 10′s:
When you negotiate in 5′s and l0′s (such as in $5,000 or $10,000 increments) you will often give up ground by the end of a negotiation. Negotiate in 2′s or 3′s or 7′s and 8′s and you can grab two or three thousand dollars on each volley, especially on the last two or three volleys before a settlement.

“Invoke the Timeout”:
After the mediation has gone on for a while it is sometimes helpful to slow it down. If the other side is getting overly aggressive put them in “time out”; take a break, let them sit for a while. This can indirectly communicate you are there for the long haul or give them time to cool off if negotiations have become heated. You don’t have to announce you are invoking a timeout; just take one. This can also give your client a chance to collect his or her thoughts and take a deep breath.

Is this a Feud or a Crusade?:
Virtually every probate mediation involves either a nasty feud between long warring relatives or step-relatives or a crusade on the part of one party. Determine which it is. If the dispute is a feud, both parties have an ax to grind and an agenda that may cloud their vision and, in fact, lead to poor decision-making. If your client or your opponent’s client is simply on a crusade, you won’t change that thinking during the course of the day. Try to structure conversations and proposals that have the appearance of fulfilling whatever mandate that crusader seeks to accomplish. A crusader needs a sense of fulfillment. Find a way to provide it.

Russian Roulette:
Particularly when asset values are disputed, turn the tables on an offer. If, for example, your opponent offers you a piece of real estate as a part of an offer at a certain high value, flip the offer and offer it to them at the same value. This will quickly recalibrate the discussions so a reasonable value can be assigned to assets, the division of which is being negotiated.

I have to Have It:
In many probate mediations, there is at least one asset that at least one beneficiary “has to have”. I am consistently amazed when a beneficiary and their counsel actually announce they have to have that asset. When you announce you have to have a specific asset, you better open your checkbook. It seems like common sense that insisting you have to have a certain asset will increase the price, but many parties miss this seemingly obvious point. Instead of announcing you have to have an asset, avoid drawing attention to it. Try to get a value of that asset established for purposes of negotiation along with other estate assets so you don’t draw attention to the asset you want.

Demands are Not Offers:
Sometimes offers have been made before a mediation and sometimes they have not. At a minimum, each party should communicate their best case to the other parties before the mediation. Remember, however, a best case proposal is a demand, not an offer. It is not productive to begin a mediation that merely restates your best case or demand. That is not a negotiation and sets a horrible tone for compromise. If you want the other party to show some movement, show some movement yourself.

Beware the Condition Precedent or Subsequent:
Many final mediation agreements include either a condition precedent or subsequent. If you need to include such a provision, make sure of two things.

First, make sure that condition is a hill your client is willing to die on, because once it is made a part of the contract, a condition can be used either as a weapon or a shield.

Second, make sure the condition precedent or subsequent is carefully drafted into the settlement agreement. Unfortunately, I have seen several mediated settlement agreements fall apart later because of an unfulfilled condition or a poorly drafted one. Consider a penalty provision that increases the cost of settlement in lieu of a condition precedent or subsequent.

I appreciate Brian Hewitt providing his insights on important strengths and weaknesses to be aware of in probate mediations. Hopefully, you have some new strategies in mind as you begin solving your next communications dilemma for a client. Brian is a faculty member in ICLEF’s popular seminar, 120 Hot Tips in Estate,Trust & Probate Practice. If you could use 115 more tips, you’ll want to schedule this CLE either as an On Demand Seminar or Video Replay Seminar in your locale.

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About our Law Tips faculty participant:
Brian C. Hewitt is a partner in the Indianapolis and Greenwood, Indiana law firm of AlerdingCastor Hewitt, LLP. He concentrates his practice in estate, death tax and business planning and representation, probate, trust, guardianship, commercial and civil litigation, the representation of financial institutions and mediation.  He is a registered civil mediator, board certified Indiana Trust and Estate Lawyer by the Trust and Estate Specialty Board and a Fellow of the American College of Trust and Estate Counsel.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Law Tips, News0 Comments

Calling & the Legal Profession, March 10

After the positive reaction to last year’s seminar, Calling & the Legal Profession is back on the ICLEF calendar for 2015. Faculty members Mark Mutz, Dr. Richard Gunderman and Professor Matthew Boulton will once again lead our thought provoking discussion on the role of the practice of law within our society.

Much is at stake in whether lawyers have callings and remain professionals. Professionals – and lawyers, in particular – play important roles in American society. And a sense of calling is crucial not only to being a professional but to lawyers’ experiences of their working and professional lives. Certain practices and habits of thought can help lawyers understand and find their callings.

Our interactive, roundtable discussion will allow for those attending to listen and share their thoughts and beliefs to help better gain an understanding of the sense of vocation related to being a lawyer and the rules of professional conduct that help shape the profession.

Here are just a few of the thoughts of our roundtable discussion last year:

“Thought provoking!  Offer this to every lawyer” - Susan

“I was intrigued and captivated by the diversified and thought provoking discussion”- John

“This is the richest CLE I have ever experienced”- Dennis

“Excellent Program – Well organized and thought-provoking. Definitely a day well spent!”- Christa

“Probably one of the most interesting and attention keeping CLE’s I’ve ever attended”- Anonymous

“Thank you for this refreshing course. More programs like this please”- Anonymous

“…rarely does a CLE presentation prompt the deep thinking that this one did!”- Anonymous

Join us Tuesday, March 10 for another opportunity to rejuvenate your practice in the profession.

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CALLING & THE LEGAL PROFESSION
6 CLE / 6 E – Tuesday, March 10     9:00 A.M. – 4:30 P.M.

Live In-Person Seminar Only!
- ICLEF Conference Facility, Indianapolis, IN

Posted in Highlighted Seminars0 Comments