The Letter of The Law: March 2013
By: David L. Miller
Q1. My spouse and I plan to divorce, but have not started the process. What should we do first?
A1: Ask friends, family and/or co-workers for the name(s) of local family law attorneys that have been used in the past. A person-to-person referral is always better than a cold search for the right legal advisor when dealing with the important issues that must be addressed in a divorce proceeding-even a friendly divorce.
Q2. I plan to tell my spouse that I want a divorce. Is there anything I should do to prepare myself before I do so?
A2: Make sure before uttering those words that you are 100% convinced the relationship is so broken and damaged that neither the passage of time or any type of counseling will help restore it.
Q3. My spouse has just told me that she wants a divorce. What should I do first?
A3: Remain calm! Do not allow your emotions to take control. One bad decision at the beginning of the process could have a lifetime effect on your future. Take a day or so to process what your spouse said and then seek out a referral from a trusted friend, family member or co-worker.
Q4. My spouse and I are not getting along. I am planning to move out of the home we bought 10 years ago. Is moving out a wise thing to do?
A4: If one or both spouses are unable to respect the other while under the same roof, especially if children are witnessing disrespect, anxiety and acrimony, then by all means relocate. You are not “abandoning” the property. Your property rights do not follow you; they remain with the property. Remember, the spouse who has exclusive use of the home (i.e., “the in-spouse”) will generally be responsible for making the payment(s) on the home up to the property’s “fair rental value.”
Q5. My spouse and I have been married for 7 years. We have two children. He has a business and I have a dental practice, plus we own two properties. Do you think a do-it-yourself online divorce will work for us?
A5: Only if the two of you were able to obtain your law degrees in your spare time and you understand the complexities of valuing a self-employed business and a professional practice. You only get one opportunity to obtain an equal division of the marital assets and debts. The court does not allow “do-overs.”
Q6. Our house is an “under water” property and it is the main reason my spouse and I have not moved forward with a divorce. We just cannot stand living together any longer and we want to get on with our lives. Do you have any suggestions as to how we can do so?
A6: This is a common scenario. Generally, when the lender verifies that a divorce has been filed and realizes that each borrower intends to “walk away” from the home, it is much more willing to discuss alternatives like a “short sale.” If the mortgage was a “non-recourse, purchase money” loan, the lender’s only recourse in the event of a default is to foreclose. It will not be able to obtain a money judgment against the borrowers. A home equity line of credit is different and an attorney should be consulted on how to deal with that encumbrance.
Q7. My spouse wants to use the Collaborative process for our divorce. Is there any reason why we would not want to use this process?
A7: The Collaborative process is not appropriate where the marital dynamics and relationship have been unequal. In other words, if one spouse is highly educated and the other is not. Or, where one spouse “wore the pants” in the family and the other took on a more submissive role. The spouse wishing to use this process must be confident, assertive and knowledgeable if they are to receive what they are entitled to by law. The Collaborative process does not permit either spouse to have an “advocate” on their side looking out for them. They must do this for themselves.
An employee comes to work with a cast on his leg. An employee comes to you and tells you that the light in his office gives him headaches. An employee states that the reason she is not as productive is because her left hand hurts when she types. An employee has exhausted his disability leave, but the employee indicates that further accommodation is needed.
These are examples of the type of observations or statements that can arise in the workplace that will trigger the need for a response from the employer. The “response” is called engaging in the interactive process to see if a reasonable accommodation needs to be made.
So, where does an employer start?
Keep in mind that once an employer becomes aware of an employee’s disability issue, the employer cannot bury its head in the sand and hope that it will resolve itself. Knowledge may arise when:
- The employee requests an accommodation;
- The employer/supervisor becomes aware of the need for an accommodation through observations or through a third party; or
- The employer/supervisor becomes aware of the possible need for an accommodation because an employee’s disability leave (worker’s compensation, CFRA/FMLA, or other leave) is exhausted, but the employee or his medical provider indicates that more leave is necessary.
The supervisor or manager should consult with Human Resources, if applicable. HR should initiate the interactive process with the employee in a timely manner. If the employer does not have an HR department, the highest level supervisor should engage in the interactive process with the employee.
What does it mean to engage in the interactive process? The employer needs to confidentially consult with the employee to identify job-related limitations, if any. It is helpful to pull the job description for the position and run through each task or function to make sure there are no limitations. It is critical that this process is documented. Make sure to engage in this process behind closed doors so that the interview is kept confidential and does not invade the employee’s privacy rights.
An employer is allowed to ask the employee for reasonable medical documentation of functional limitations from the employee’s medical provider, unless limitations are obvious and already known. An employer should never contact the employee’s physician directly. Have the employee get the information. Should the employee give you permission to contact his physician directly, contact HR or legal counsel before doing so.
The information requested from a medical provider should not disclose the nature of the disability or information on the underlying cause. All the employer is allowed to obtain is documentation confirming the existence of the disability and the need for reasonable accommodation. It may include a description of the physical or mental limitations that affect a major life activity. Do not ask for an employee’s complete medical records.
If the information provided by the employee is unclear, an employer must identify what information needs clarification and give the employee a reasonable time to provide the additional information.
Next, HR should work with the employee’s manager or supervisor to analyze the particular job involved and identify the essential and non-essential functions of the job. From there, the employer and the employee need to identify and discuss possible reasonable accommodations, and discuss options. Remember to listen to the employee and consider the employee’s preferences. If the accommodation would pose an undue hardship, consult legal counsel before ruling out that an accommodation cannot be made. What is an “undue” hardship will turn on several factors, including the size of the company, the position, and the costs of accommodation. Ultimately, the accommodation should be effective in allowing the employee to perform the essential functions of his job.
Sometimes, reassignment to an alternate position is considered a reasonable accommodation. It is permissible to ask the employee to provide information about his educational qualifications and work experience to determine if there is a suitable alternative position for the employee. Reducing an employee’s pay should the reasonable accommodation involve moving the employee to an alternative position that pays less than the current position should be avoided at all costs.
Make sure that whomever handles the decision to implement the accommodation documents the accommodation provided. Have the employee sign an acknowledgment that the interactive process occurred and whether or not an accommodation was made.
Remember to check back in with the employee approximately 30 days after the accommodation is implemented to see how the accommodation is working for the employee. If necessary and reasonable, make adjustments.
Lastly, all the documentation pertaining to the interactive process, which may include the employee’s confidential medical information, must be contained in a confidential file, separate from the employee’s personnel file.
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