Wednesday, June 9, 2010

Honesty During a Divorce

This is probably something most people going through divorces would never consider, but it does come up. Failing to disclose assets can have a disasterous effect. The courts may even go as far as ordering all assets hidden be awarded to the other spouse. I would urge anybody going through a divorce to be open and honest about property. I have seen bad situations where one spouse clears out accounts and hides money. This accomplishes absolutely nothing and only creates more fighting and the court will find out everything.

I was faced with an interesting question on this topic. I am very happy the person was confident enough to ask about so we could work through his problem in a legal manner. He had inherited a piece of property that had significant value and he planned on not disclosing it during the divorce. He felt it was his and his wife was not entitled to it.

He was right but did not know it. Items you inherit are your separate property and do not need to be divided upon divorce. His feelings were justified and he was right that she was not entitled to half. However if he would have just went though with his first intention to hide the asset it would have likely led to fighting and created a lot of difficulty for him.

Remember that this process is meant to be fair. If you have a genuine issue with something, it is best to let it come out and find a fair determination. Often your concerns and feelings are correct and there is a mechanism in the legal system to protect your rights. An honest and straight forward approach may likely lead to the same outcome and reduce animosity instead of create more.

Wednesday, June 2, 2010

The Affect Age and Money have on Marriage and Divorce

So we have all heard the phrase 50% of marriages end in divorce, but it simply is not that simple. Divorce is a reality that many couples face but outside factors have a drastic effect. A study by University of Pennsylvania's Wharton School found the following:

81% of couples that were college grads over the age of 26 were still married after 20years.

65% of couples that were college grads under 26 were still married after 20 years.

49% of couples that were not college grads and under 26 years old were still married after 20 years.

So the question is what does this all mean. Obviously you can get married at 18 years old and have a perfectly happy marriage. However it appears that a 26 year old is in a better position than an 18 year old to choose a compatible partner. This should be fairly obvious. At the age of 18 we are still learning who we are so how could we know what we need in a partner.

As far as college education goes it shows what a stress finances can put on a marriage. Money can be the source of many fights. Couples who would have lived perfectly happy marriages if finances were not an issue may find themselves considering divorce because the fighting. It is a solemn idea to think money can derail what would be a perfectly happy marriage but it does happen.

It is important for couples considering divorce to understand their motivations. It is very common people got married too young and ended up married to a person they simply are not compatible with. If this is the case a divorce may seem like a logical step to start over and allow both people to use their new found maturity to find a more compatible partner.

On the other hand if your motivation to get divorced is based on fighting caused my financial stress then you should consider alternatives. It may be possible that the fighting has gotten so bad that resentment and anger are the true issues now. However if the fights are still financially driven then looking for help with finances may be more effective than a divorce.

Divorce is not a bridge that should be crossed lightly, but sometimes it may be for the best. I urge couples to look at the source of their problems before making a decision.

Tuesday, May 18, 2010

The Divorce Process

Married couples have three alternatives when they wish to terminate their marriage. Dissolution (Divorce), nullity and legal separation are all available and each offers different benefits. In addition a UCCJEA form must be submitted if This document is meant only to give a brief overview of the divorce process and is not intended to be legal advice.

1. FILE A PETITION: One spouse files a petition for divorce with the court. There is a filing fee of approx. $300 for filing the petition and summons with the court. In addition a UCCJEA form must be filed if the marriage involves children. Then those documents must then be served to the other party.

1a. Effects of filing and serving petition:
i. Begins the waiting period. A divorce cannot be finalized until 6 months and 1 day after the initial service.
ii. sets in place numerous restraining orders for both parties.

2. FILE A RESPONSE: The other spouse files a response to the petition. This also involves a filing fee of approx. $300.00

3. DISCOVERY PHASE: Both parties exchange documents including property and income statements. Depending on need discovery may include depositions and other fact finding instruments.

4. TEMPORARY ORDERS: Temporary orders regarding child custody, child support and spousal support should be in place during the divorce proceedings. The parties may either reach a private agreement or ask the court to make temporary orders regarding each issue.

5. PREPARE FOR TRIAL: One party will set a date for trial. This will also include a mandatory Settlement Conference for the parties to negotiate as many of the terms as possible. If all the terms can be agreed upon a Marital Settlement Agreement can be drafted and the divorce will be finalized after the waiting period.

6. TRIAL: At trial attorneys will present evidence and arguments. The judge will make orders regarding all unresolved issues. The judgment will be prepared and approved and divorce will be finalized after the waiting period has passed.

7. SUBSEQUENT MODIFICATIONS: In real life things change and one party may file for a modification.

Four Issues to Resolve During a Divorce

The court requires these four issues to be resolved before a divorce may be finalized. In addition temporary orders will likely be needed during the divorce proceedings. The parties are free to reach private agreements regarding all of these issues, but if they are unable the court will help them resolve the issues.

1. Child Support: This generally is determined by use of a computer program called DissoMaster. Numerous factors including: (a) child custody, (b) financial situations of both parents and (c) who will claim the children on taxes are be used to determine the proper amount.

2. Child Custody: Child custody is generally the most emotional and difficult issue to resolve during a divorce. parents will generally be required to participate in mandatory mediation and parenting classes as they progress through the court system.

3. Spousal Support: Temporary spousal support will be determined using the DissoMaster program used for child support. A permanent order will be crafted by the judge based on numerous statutory factors including: length of the marriage, standard of living, marketable skills and earning capacity.

4. Division of Marital Property: This requires inventorying all the community property of the married couple and dividing it evenly. Couples are free to split up the property evenly or the court will grant each party a 50% interest in each asset.
Once all four of these issues have been agreed to and submitted to the court and the waiting period has passed the divorce will be finalized.

Monday, March 8, 2010

Attorney's Fees

During a marriage it is not uncommon for one spouse to be the primary provider while the other takes care of the home. During a divorce though this type of relationship may cause difficulties as

However during a divorce this can create inequalities for the spouse who was not the primary provider. In California the law has reacted to this disparity by giving courts the discretion to order one party to pay for the attorneys fees and costs of the other party.
In California one party may be held to pay for the fees and costs of the other in three ways:

(1) Need Based
(2) Sanctions
(3) Contract

Need based allows the court to ensure both parties have the opportunity to obtain equal representation. Under California Family code 2030, the court is entitled to order payment of fees and costs between the parties based on "relative circumstances." The court will look at respective income, needs and ability to pay to make sure both parties have adequate legal assistance.

Sanctions may be awarded as punishment for conduct during the proceedings. If a party refused to comply with financial discovery or purposefully delayed the proceedings the court may award fees and costs to punish the conduct.

The amount of attorney's fees will vary based on which type is granted. Need based must be a reasonable amount calculated by the court to maintain or defend the case. The amount for sanctions is limited by parties ability to pay. Since it is punishment the amount is based on how much is necessary to prevent future conduct.
It is also important that either may be given during an action for dissolution, nullity, legal separation, modification or enforcement. In addition the award may cover all costs associated with the proceedings.

The last way attorneys fees may be ordered is through contract. Many marital and custody agreements contain a clause that allows a prevailing party to recover fees in an action to enforce the agreement. Unlike the other two methods which give the court broad discretion this is enforced as a private contract between the parties. So long as the contract is enforceable then an award of fees and costs must be granted.

The costs of divorce and family law fees can add up quickly. Without statutes allowing courts to award attorney's fees many parties would be unable to bring suits to enforce their rights. If you are facing divorce issues and there is a substantial disparity of wealth between you and the other party an attorney may help you determine if you are entitled to have you fees paid for.

Tuesday, March 2, 2010

Considering Mediation during a Divorce

One of my primary goals when helping a client is minimizing the conflict and cost associated with their divorces. To do this it is important to consider alternatives such as mediation.

If you are considering or are in the middle of a divorce it is important to understand every option you have. As part of your divorce you will be required to resolve child custody, support and how to divide your community property. Mediation may offer its own challenges, but if you are open to the possibility you may find a more personal result at a fraction of the cost.

In recent years mediation has come to play an important role in numerous areas of law including family law and divorce. This was probably inevitable as the courts continues to be bombarded with an unending caseload and court budgets continue to be cut. The courts work very hard to give everybody the time they deserve, but due to a lack of resources and time, judges are pressured to move through cases quickly.

Mediation offers an alternative to this approach which may be impersonal and costly. There will be issues common to most divorces, but there will also be some unique to you. The court will try to understand your case, but they cannot understand the nuances of your family that only become evident after living together for years. This day to day knowledge makes you the best candidate to decide how to meet the needs of your family. Mediation allows you to do exactly that. You can consider the special needs of you and your children to find creative solutions to your custody, support and property issues.

Mediation may not be perfect for every case, but I believe that it should always be considered before moving on to more hostile and expensive methods to resolve your divorce issues.

Friday, February 26, 2010

Children's Wishes During Custody Disputes

In this blog I will address how the court deals with children’s wishes in custody disputes. Our fictitious family is made up of father Randy, mother Catherine and nine year old daughter Anna. Randy and Catherine divorce four years ago and have been following the initial custody agreement. Now Catherine is seeking to have the current agreement modified because Anna has expressed unhappiness about the time she spends at her father’s house.

During the proceedings Catherine has asked the court to listen to Anna’s wishes. Catherine’s attorney has explained the judge will listen to Anna’s preferences if he feels that she is of sufficient age and capacity to intelligently tell the court her preference. As is common the judge agrees to interview Anna to determine if she is qualifies to give her opinion.

There is no set age requirement and the court begins to ask Anna questions regarding her custody preference. She tells the judge that Randy has remarried recently and she does not get along with her new step-brother. Anna tells the judge that she would rather be with her mother where it is only her and her mother.

This is a challenging issue for the judge. Here he must give due weight to Anna’s preference if he find she has intelligently expressed a preference. However in light of other circumstances it clear other public policies support not modifying the custody agreement to comply with Anna’s wishes.

In California it is accepted public policy that a child’s best interest is served by maintaining a regular and consistent relationship with both parents. In addition, the courts do not want to make orders that would discourage parents from remarrying. By taking away custody because a parent remarries it would do this.

In this situation the court may not grant a modification because of Anna’s preference. It is understandable the hardship being put on her, but not liking a stepparent is pretty common and it may not be enough to out-weight the public policy reasons. It may be possible as time goes on, Anna will have more cement reasons to give her preference. If her relationship with her step-mom continues to degrade the court may give her preference more time after a year.

The court does not want to ignore Anna’s preference, but they also do not want to modify a custody agreement in a way that would affect a child’s relationship with a parent when the preference is based on such a limited experience. In time Anna’s preference may carry more weight as she can articulate more negative experiences.