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 9, 2010
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.
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.
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.
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.
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.
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.
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.
Domestic Violence and Child Custody
Child custody is an incredibly important decision and when there is a history of domestic violence the decision becomes even more important. I am going to address the issue of child custody when there has been a history of abuse by looking at a hypothetical situation.
A husband and wife with a five year old child are going through a divorce. There is a history of domestic violence. There are numerous police reports about calls the wife made after being abused. During the divorce the mother brings up the domestic violence in her bid for sole custody.
The father finds himself at risk of losing custody and visitation with his child. The courts presume that an abusive parent should not be awarded joint or sole custody. The courts look at the best interest of a child, and the most important factor is the safety and welfare. An abusive parent is presumed to be a risk to the child’s best interest.
It is tremendously important and difficult for parents in this position. The mother is obviously worried the abuse aimed at her will now be turned toward her child and the father does not want to lose custody of his child.
At this point the father will not be awarded custody unless he can prove the child is not at risk. It may be very challenging and the father will be forced to analyze why his past of abuse does not put his child at risk. The court is looking only at the best interest of the child and unless the father can convince the court the child would be safe.
One example where the father may be able to overcome the custody presumption is that the abuse was the product of mental illness and he has since been diagnosed and medicated. Since beginning treatment there have not been any other events. There are other possibilities, but it is the fathers job to prove he does not create a risk to the child.
A husband and wife with a five year old child are going through a divorce. There is a history of domestic violence. There are numerous police reports about calls the wife made after being abused. During the divorce the mother brings up the domestic violence in her bid for sole custody.
The father finds himself at risk of losing custody and visitation with his child. The courts presume that an abusive parent should not be awarded joint or sole custody. The courts look at the best interest of a child, and the most important factor is the safety and welfare. An abusive parent is presumed to be a risk to the child’s best interest.
It is tremendously important and difficult for parents in this position. The mother is obviously worried the abuse aimed at her will now be turned toward her child and the father does not want to lose custody of his child.
At this point the father will not be awarded custody unless he can prove the child is not at risk. It may be very challenging and the father will be forced to analyze why his past of abuse does not put his child at risk. The court is looking only at the best interest of the child and unless the father can convince the court the child would be safe.
One example where the father may be able to overcome the custody presumption is that the abuse was the product of mental illness and he has since been diagnosed and medicated. Since beginning treatment there have not been any other events. There are other possibilities, but it is the fathers job to prove he does not create a risk to the child.
Can the Court Order Counseling?
If you think your child needs counseling during a divorce the easiest option is to discuss the possibility with your co-parent. All parents want what is best for their child and an honest conversation about your concerns may lead to an agreement. However if you believe counseling in necessary and the other parent refuses to consent you may ask the court to order counseling. Be prepared specific requirements are needed and the court does not order counseling lightly.
If you think you and your co-parent would benefit from counseling to help with the transitions of divorce the best approach again is asking. Very few parents want to attend counseling with their ex-spouse, but if there are genuine issues regarding your child’s well being the idea might be considered. Like counseling for your child it is possible the court will order counseling, but trying to find an agreement is generally much simpler.
There may be numerous reasons you want counseling for your child and yourself. Divorce is hard on everybody and it is not uncommon for somebody to benefit from counseling during the transition. However, if you cannot get your co-parent to consent it is important to understand under what conditions the court will order counseling.
In California the court has the right to order parents or the child to attend counseling. However it is not a matter taken lightly and requires the court to look at numerous issues. The court must find:
* The current dispute poses a substantial danger to child’s best interest
* Counseling is in the child’s best interest
* Financial obligations do not jeopardize financial obligations
* Counseling must be specifically designed to help the risk of danger to child
* Counseling may last for up to one year
You should not ask the court to order counseling just because you think it will help. That is enough of a reason for parents to agree, but the court is going to require you showing some existing risk to your child. Unless there is a risk you can articulate then you should continue to work toward a private agreement.
If you think you and your co-parent would benefit from counseling to help with the transitions of divorce the best approach again is asking. Very few parents want to attend counseling with their ex-spouse, but if there are genuine issues regarding your child’s well being the idea might be considered. Like counseling for your child it is possible the court will order counseling, but trying to find an agreement is generally much simpler.
There may be numerous reasons you want counseling for your child and yourself. Divorce is hard on everybody and it is not uncommon for somebody to benefit from counseling during the transition. However, if you cannot get your co-parent to consent it is important to understand under what conditions the court will order counseling.
In California the court has the right to order parents or the child to attend counseling. However it is not a matter taken lightly and requires the court to look at numerous issues. The court must find:
* The current dispute poses a substantial danger to child’s best interest
* Counseling is in the child’s best interest
* Financial obligations do not jeopardize financial obligations
* Counseling must be specifically designed to help the risk of danger to child
* Counseling may last for up to one year
You should not ask the court to order counseling just because you think it will help. That is enough of a reason for parents to agree, but the court is going to require you showing some existing risk to your child. Unless there is a risk you can articulate then you should continue to work toward a private agreement.
Mandatory Mediation
Mediation has become a valuable tool helping resolve family law issues. The courts have even come to require all custody and visitation cases to through mandatory mediation before a hearing. The most common scenario is two parents working through custody as part of their divorce. Mandatory mediation is also required when grandparents and stepparents are asking for visitation rights.
A few important things to know about mandatory mediation:
It is provided by the court at no cost
The mediator must meet numerous professional qualifications
Mediation is confidential and discussions are private
Mediator has duty to help resolve in best interest of child
If the parties reach an agreement the mediator can prepare a recommendation based on the parties’ instructions. In addition in Santa Cruz the mediator may prepare a recommendation based on the children’s best interest if the parties do not come to an agreement. This recommendation may become a temporary agreement and if the parties agree it will becomes a permanent agreement.
If the parties cannot reach an agreement during mediation and will not agree to the mediator’s recommendation then the case may continue to a hearing. The courts strongly encourage reaching an agreement, but it some cases it may inevitable to litigate the issues.
A few important things to know about mandatory mediation:
It is provided by the court at no cost
The mediator must meet numerous professional qualifications
Mediation is confidential and discussions are private
Mediator has duty to help resolve in best interest of child
If the parties reach an agreement the mediator can prepare a recommendation based on the parties’ instructions. In addition in Santa Cruz the mediator may prepare a recommendation based on the children’s best interest if the parties do not come to an agreement. This recommendation may become a temporary agreement and if the parties agree it will becomes a permanent agreement.
If the parties cannot reach an agreement during mediation and will not agree to the mediator’s recommendation then the case may continue to a hearing. The courts strongly encourage reaching an agreement, but it some cases it may inevitable to litigate the issues.
Trying to Avoid Future Court Appearences
It is no surprise one of the more common question I hear about private agreements is “how can I make sure they do not take me to court over this again in a year?” The stress of going to court and dealing with these issues is hard on people and most just want a fair resolution and to move on. However with issues like child custody and child support there is no way to guarantee and end is in sight.
The courts always have jurisdiction to hear child custody and child support issues, so it is always possible you can end up back in court. With some issues like spousal support the parties as part of their private agreement can decide the court has no further jurisdiction on the subject. However this is not available with many family law issues and people have a hard time understanding why they cannot just find a final solution.
Even though the court always reserves the right to hear these issues, you can take steps to make it harder for the court to modify your private agreements. The first part is making sure your agreement is part of a court order. An attorney can help you make sure the right clauses are placed in your agreement when it is submitted to the court so it becomes part of the court order. This makes it so your co-parent will have to prove “changed circumstances” before the court will listen to the issue again. It will not preclude the possibility of another action, but it puts a barrier up.
Another important way to protect your private agreements from future court involvement is to make sure it is fair. The courts will not uphold private agreements that and clearly inconsistent with what the court considers proper. By making sure you have help finding what the outcome would be in court and make sure your private agreement appears to be within the normal range of acceptable results it will be less likely to be interrupted.
It is important to realize with some family law issues you can never guarantee the courts won’t get involved, but if you are careful you and reduce the possibility the court will interrupt your private agreements.
The courts always have jurisdiction to hear child custody and child support issues, so it is always possible you can end up back in court. With some issues like spousal support the parties as part of their private agreement can decide the court has no further jurisdiction on the subject. However this is not available with many family law issues and people have a hard time understanding why they cannot just find a final solution.
Even though the court always reserves the right to hear these issues, you can take steps to make it harder for the court to modify your private agreements. The first part is making sure your agreement is part of a court order. An attorney can help you make sure the right clauses are placed in your agreement when it is submitted to the court so it becomes part of the court order. This makes it so your co-parent will have to prove “changed circumstances” before the court will listen to the issue again. It will not preclude the possibility of another action, but it puts a barrier up.
Another important way to protect your private agreements from future court involvement is to make sure it is fair. The courts will not uphold private agreements that and clearly inconsistent with what the court considers proper. By making sure you have help finding what the outcome would be in court and make sure your private agreement appears to be within the normal range of acceptable results it will be less likely to be interrupted.
It is important to realize with some family law issues you can never guarantee the courts won’t get involved, but if you are careful you and reduce the possibility the court will interrupt your private agreements.
Wednesday, February 24, 2010
Separation, dissolution and nullity
When a couple seeks to terminate their marriage they have three options to pursue. The most common alternative is divorce or dissolution. This simply involves ending an existing marriage. Another common option is nullity or to nullify the marriage. This involves proving the marriage was never valid and that it never took place. The last option is a separation which involves all the same child custody, property and support issues but does not actually terminate the marriage.
The first option dissolution of marriage is the most common. The couple will terminate their marriage, split up community property, resolve child custody and supports issues. There are numerous requirements including a six month waiting period and residency requirements. When compared to nullity and separation numerous benefits and disadvantages will become apparent
Nullity requires one party proving there was a flaw in the creation of the marriage. These treats the couple as if the marriage never took place and no community property was ever created. One disadvantage is that nullity requires one party to prove fault to receive property or spousal support under the doctrine of pretermitted spouse. Some advantages include removal of the 6 month waiting period, no residency requirement and avoiding religious complication associated with divorce.
The last option is legal separation. This acts like divorce without actually terminating the marriage. The spouses will resolve child custody, divide property and establish spousal and child support. This offers the advantage of dissolution, but still allows for the benefits of marriage. Health insurance is a common reason for a couple to file for a separation instead of dissolution.
If you are considering terminating your marriage understanding the benefits and disadvantages of all three is important before making a decision. An attorney can go over these options with you and help you decide one that works best for you.
All custody, support and property issues will be resolved, but the marriage in entact for purposes of insurance and other marriage benefits.
Depending on your circumstances all three accomplish the separation, but have different legal effects.
The first option dissolution of marriage is the most common. The couple will terminate their marriage, split up community property, resolve child custody and supports issues. There are numerous requirements including a six month waiting period and residency requirements. When compared to nullity and separation numerous benefits and disadvantages will become apparent
Nullity requires one party proving there was a flaw in the creation of the marriage. These treats the couple as if the marriage never took place and no community property was ever created. One disadvantage is that nullity requires one party to prove fault to receive property or spousal support under the doctrine of pretermitted spouse. Some advantages include removal of the 6 month waiting period, no residency requirement and avoiding religious complication associated with divorce.
The last option is legal separation. This acts like divorce without actually terminating the marriage. The spouses will resolve child custody, divide property and establish spousal and child support. This offers the advantage of dissolution, but still allows for the benefits of marriage. Health insurance is a common reason for a couple to file for a separation instead of dissolution.
If you are considering terminating your marriage understanding the benefits and disadvantages of all three is important before making a decision. An attorney can go over these options with you and help you decide one that works best for you.
All custody, support and property issues will be resolved, but the marriage in entact for purposes of insurance and other marriage benefits.
Depending on your circumstances all three accomplish the separation, but have different legal effects.
Tuesday, February 23, 2010
Move-Away Custody
After a divorce many things in life change. Living arrangements and changing jobs are among one of numerous reasons a parent may choose to move away after a divorce. The court understands these needs, but also understands the detrimental affect such a move may have on your children. It is important to understand how your children will be affected by moving away and approach the process by focusing on their best interest.
If you are looking to move away before a permanent custody agreement exists the court will look solely at the best interest of your child. The court has wide discretion to determine the best interest of a child and may look at the circumstances of your case and apply the factors listed in Cal Family Code 3011. One important factor is allowing a child to maintain a relationship with both parents. The courts take these decisions very seriously and will attempt to create an agreement that balances you need to move and your child's best interest.
If you have an existing permanent custody agreement the court will handle your case differently based on if it is sole or joint custody. If it is joint custody the court will use the same approach described when there is no custody agreement in place. The issue will be decided solely on your child's best interest.
If you have sole custody you have a presumptive right to be able to move away with your child. However this right is balanced by any detriment it would cause to your child. This triggers the changed circumstances standard and your co-parent has the burden to prove moving would be detrimental to your child. The typical reason is loss of relationship with the custodial parent and these are always challenging decisions to make.
It is important to remember that it is easy to define the rules and standards applied by the court. However, it is much more difficult to actually put forth an argument. In most cases both parents will be able to make numerous valid points about the best interest of their child and the courts will be left with a hard decision to make. It becomes important to begin balancing the benefits and hardships that will be caused by the move.
It is also possible that it is the non-custodial parent who is moving away. This raises a slightly different question but concerns many of the same standards. If you have an existing custody agreement changed circumstances is generally the burden you must prove to modify that agreement. When a non-custodial parent moves away it is possible the move affects existing visitation rights and it may be adequate to prove changed circumstances. In these cases in may be possible to get a modification that would allow for less frequent but longer windows of visitation.
Move away custody can come up in many ways and an attorney can help you understand the details of your particular case and how they will effect a decision.
If you are looking to move away before a permanent custody agreement exists the court will look solely at the best interest of your child. The court has wide discretion to determine the best interest of a child and may look at the circumstances of your case and apply the factors listed in Cal Family Code 3011. One important factor is allowing a child to maintain a relationship with both parents. The courts take these decisions very seriously and will attempt to create an agreement that balances you need to move and your child's best interest.
If you have an existing permanent custody agreement the court will handle your case differently based on if it is sole or joint custody. If it is joint custody the court will use the same approach described when there is no custody agreement in place. The issue will be decided solely on your child's best interest.
If you have sole custody you have a presumptive right to be able to move away with your child. However this right is balanced by any detriment it would cause to your child. This triggers the changed circumstances standard and your co-parent has the burden to prove moving would be detrimental to your child. The typical reason is loss of relationship with the custodial parent and these are always challenging decisions to make.
It is important to remember that it is easy to define the rules and standards applied by the court. However, it is much more difficult to actually put forth an argument. In most cases both parents will be able to make numerous valid points about the best interest of their child and the courts will be left with a hard decision to make. It becomes important to begin balancing the benefits and hardships that will be caused by the move.
It is also possible that it is the non-custodial parent who is moving away. This raises a slightly different question but concerns many of the same standards. If you have an existing custody agreement changed circumstances is generally the burden you must prove to modify that agreement. When a non-custodial parent moves away it is possible the move affects existing visitation rights and it may be adequate to prove changed circumstances. In these cases in may be possible to get a modification that would allow for less frequent but longer windows of visitation.
Move away custody can come up in many ways and an attorney can help you understand the details of your particular case and how they will effect a decision.
Monday, February 22, 2010
Mediating Spousal Support
Spousal support may be a difficult issue to resolve after a divorce. With child support the parent-child relation caries on and most parents do not have a problem making monthly payments. With spousal support the feeling of responsibility may be as strong as the relationship has ended and the supporting spouse just wants to move on. In addition spousal support can be substantially more than child support.
If you go to court for spousal support you will likely be forced to deal with the number that comes out of the Judge's computer. Mediating the issue will be challenging, but it allows people to take the number from the computer begin to negotiate terms that work for everybody.
It is common that both spouses can empathize with each other's financial needs so it is possible they will be open to compromise. In California, DissoMaster is the program used to calculate spousal support. Once a number has been computed parties can work to find an outcome that meets their needs. The options are only as limited by the creativity of the parties and their mediator.
A spouse may settle for a lower monthly amount in exchange for additional monthly payments. It may be possible to negotiate a buy-out up front to settle spousal support. A spouse may accept health insurance in lieu of spousal support. A spouse may settle for less in exchange for additional compensation out of community property. There is no limit of ways spousal support may be modified to make the monthly payments more accommodating to everybody.
I would encourage anybody looking at spousal support to consider mediating the issue. If the court orders an amount that everybody can live with just follow that. However if there are problems a mediator can help you explore the endless possibilities available to reach an alternative agreement that is still fair to everybody involved.
If you go to court for spousal support you will likely be forced to deal with the number that comes out of the Judge's computer. Mediating the issue will be challenging, but it allows people to take the number from the computer begin to negotiate terms that work for everybody.
It is common that both spouses can empathize with each other's financial needs so it is possible they will be open to compromise. In California, DissoMaster is the program used to calculate spousal support. Once a number has been computed parties can work to find an outcome that meets their needs. The options are only as limited by the creativity of the parties and their mediator.
A spouse may settle for a lower monthly amount in exchange for additional monthly payments. It may be possible to negotiate a buy-out up front to settle spousal support. A spouse may accept health insurance in lieu of spousal support. A spouse may settle for less in exchange for additional compensation out of community property. There is no limit of ways spousal support may be modified to make the monthly payments more accommodating to everybody.
I would encourage anybody looking at spousal support to consider mediating the issue. If the court orders an amount that everybody can live with just follow that. However if there are problems a mediator can help you explore the endless possibilities available to reach an alternative agreement that is still fair to everybody involved.
Tuesday, February 16, 2010
Using Mediation to avoid high costs of divorce
The idea of divorce brings out strong emotions in most people. Feelings of failure, regret and fear all make the idea almost unbearable. On top of the pain of a broken marriage you now must deal with the emotional and financial stress of divorce. Many of the preconceived ideas we have about divorce focus on the few cases that actually go to trial. Over publicized celebrity divorces and TV shows rarely reflect the truth about a typical divorce. The truth is litigating a divorce can be outrageously expensive, but very few divorces will ever make it to trial.
The court does not have the time or resources to fully understand the intricacies of your family so they encourage private settlements. The court will likely order you to attend mediation, co-parenting classes and numerous hearings before you case may proceed to trial. Many people have embraced this trend toward private settlements and have hired attorneys and mediators to help them reach a settlement without court involvement. By choosing this path you can reduce the costs of your divorce and decide for yourself what best suits the needs of your family.
In recent years mediation has been used as an effective alternative to litigation in numerous areas of law including family law. I understand that during a divorce emotions are running high and sitting down face to face to resolve your marital issues may not be a pleasant idea. However a mediator can provide you with a safe environment to openly discuss your concerns and help you work toward a mutual agreement. In addition issues like child custody may further benefit from your willingness to mediate because your children are unique and decisions made by you can take into account their special needs.
Collaborative law offers another cost effective alternative to litigation. Collaborative law generally refers to settlement negotiations when both sides have agreed not to involve the court. With collaborative law each spouse may be represented by an attorney who negotiates on their behalf. The cost is higher than mediation but still may be significantly less expensive than litigating your divorce. Collaborative law may be appealing because each side may benefit from an attorney's representation but it removes the threat and expense of litigation.
As a family law attorney I understand that there are many stresses put on families and marriages during these economically challenging times and often these stresses play a major factor in divorce. My goal in this article is to help those considering divorce and provide them with the information they need to resolve their family law issues. By fully exploring your options you can decide on an approach to divorce that fits your needs.
This article is meant only to provide information and is not intended as legal advice. If you have questions concerning your particular case you should make an appointment to talk to an attorney or mediator about your options. I would love to hear what other family law issues you find important. Please e-mail me your questions at questions@dysartlawfirm.com and I will try to address them in future articles.
The court does not have the time or resources to fully understand the intricacies of your family so they encourage private settlements. The court will likely order you to attend mediation, co-parenting classes and numerous hearings before you case may proceed to trial. Many people have embraced this trend toward private settlements and have hired attorneys and mediators to help them reach a settlement without court involvement. By choosing this path you can reduce the costs of your divorce and decide for yourself what best suits the needs of your family.
In recent years mediation has been used as an effective alternative to litigation in numerous areas of law including family law. I understand that during a divorce emotions are running high and sitting down face to face to resolve your marital issues may not be a pleasant idea. However a mediator can provide you with a safe environment to openly discuss your concerns and help you work toward a mutual agreement. In addition issues like child custody may further benefit from your willingness to mediate because your children are unique and decisions made by you can take into account their special needs.
Collaborative law offers another cost effective alternative to litigation. Collaborative law generally refers to settlement negotiations when both sides have agreed not to involve the court. With collaborative law each spouse may be represented by an attorney who negotiates on their behalf. The cost is higher than mediation but still may be significantly less expensive than litigating your divorce. Collaborative law may be appealing because each side may benefit from an attorney's representation but it removes the threat and expense of litigation.
As a family law attorney I understand that there are many stresses put on families and marriages during these economically challenging times and often these stresses play a major factor in divorce. My goal in this article is to help those considering divorce and provide them with the information they need to resolve their family law issues. By fully exploring your options you can decide on an approach to divorce that fits your needs.
This article is meant only to provide information and is not intended as legal advice. If you have questions concerning your particular case you should make an appointment to talk to an attorney or mediator about your options. I would love to hear what other family law issues you find important. Please e-mail me your questions at questions@dysartlawfirm.com and I will try to address them in future articles.
As a family law attorney I believe mediation is a crucial aspect of helping my clients through divorce issues like child custody and spousal support. This is a slightly redacted version of the summary of mediation I give to clients prior to starting our first session. By providing a summary I feel clients will have an idea of what to expect and be better prepared to have an effective session.
The general process is as follows:
1. Opening statement: a short statement I make discussing my role as a mediator, the confidential nature of mediation and out line the procedure we will follow.
2. Uninterrupted time for each party: Each party is given an uninterrupted opportunity to openly discuss their concerns. This also give the me an opportunity to fully hear the details of the case. Listening without responding may be challenging, but it is important at this point for each person to speak.
3. Exchange: At this point all parties and I have an open discussion to respond to each others uninterrupted time and fill in the gaps.
4. Set an agenda: Through the discussion numerous issues will come to the surface. I try to create a list of these issues and with the input of the parties we agree which issues are on the agenda for this session.
5. Creating an Agreement: At this point I provide some legal background of the issues to the clients. We then explore alternative solutions for these issues. This process ends with reaching a tentative agreement for each issue on the agenda.
6. Writing an agreement: At this point I typically draft an initial agreement to be reviewed and signed on a later date. Each party will leave with a draft of what was agreed upon and when they return we will finalize a final draft of the agreement.
7. Closing statement: During this final stage I will quickly review the progress made during the session and discuss the possibility of future meetings and sessions.
My summary gives some additional information, but my goal in providing this information is to help people of what to expect. Mediation is always becoming more accepted and I am proud to encourage it in my family law office.
The general process is as follows:
1. Opening statement: a short statement I make discussing my role as a mediator, the confidential nature of mediation and out line the procedure we will follow.
2. Uninterrupted time for each party: Each party is given an uninterrupted opportunity to openly discuss their concerns. This also give the me an opportunity to fully hear the details of the case. Listening without responding may be challenging, but it is important at this point for each person to speak.
3. Exchange: At this point all parties and I have an open discussion to respond to each others uninterrupted time and fill in the gaps.
4. Set an agenda: Through the discussion numerous issues will come to the surface. I try to create a list of these issues and with the input of the parties we agree which issues are on the agenda for this session.
5. Creating an Agreement: At this point I provide some legal background of the issues to the clients. We then explore alternative solutions for these issues. This process ends with reaching a tentative agreement for each issue on the agenda.
6. Writing an agreement: At this point I typically draft an initial agreement to be reviewed and signed on a later date. Each party will leave with a draft of what was agreed upon and when they return we will finalize a final draft of the agreement.
7. Closing statement: During this final stage I will quickly review the progress made during the session and discuss the possibility of future meetings and sessions.
My summary gives some additional information, but my goal in providing this information is to help people of what to expect. Mediation is always becoming more accepted and I am proud to encourage it in my family law office.
Monday, February 15, 2010
Visitation Rights for Grandparents and other Family Members
Only parents may have a right to custody, but visitation may be asked for my other family members. Grandparents, step-parents and siblings all may all have developed an important relationship with a child that should be protected. When asking the court for visitations rights these family members must be able to prove maintaining the relationship is the best interest of the child.
Unfortunately this is generally only an issue when one parent’s custody rights have been terminated. In addition to having their relationship with a parent cut off, the child will find additional relationships cut off. Seeking visitation rights may be the only way to protect these relationships.
Visitation is the legal remedy to preserving these important relationships. There are numerous statutes to help ensure visitation rights are given if they are in the best interest of the child. The law is much more receptive to giving visitation rights to grandparents and siblings, but it is possible to get visitation for step-parents in some cases.
If you are interested in pursuing visitation with a child under these circumstances it is important to consult an attorney who can help you create your case. It can be challenging to prove what is in a child’s best interest, but an attorney can help you make a case. Anything from photos showing the importance of your relationship to details of your relationship such as weekly visits all help to prove the value you have to the child’s life.
These may not be the easiest cases to prevail, but protecting our relationships with our loved ones is worth the effort.
Unfortunately this is generally only an issue when one parent’s custody rights have been terminated. In addition to having their relationship with a parent cut off, the child will find additional relationships cut off. Seeking visitation rights may be the only way to protect these relationships.
Visitation is the legal remedy to preserving these important relationships. There are numerous statutes to help ensure visitation rights are given if they are in the best interest of the child. The law is much more receptive to giving visitation rights to grandparents and siblings, but it is possible to get visitation for step-parents in some cases.
If you are interested in pursuing visitation with a child under these circumstances it is important to consult an attorney who can help you create your case. It can be challenging to prove what is in a child’s best interest, but an attorney can help you make a case. Anything from photos showing the importance of your relationship to details of your relationship such as weekly visits all help to prove the value you have to the child’s life.
These may not be the easiest cases to prevail, but protecting our relationships with our loved ones is worth the effort.
Monday, February 8, 2010
Why are you getting divorced?
Divorce is never an easy decision. However before you make a decision I would encourage you to understand why exactly you are considering the possibility. If you have reached the point where you are considering divorce the fighting and pain outweigh any joy you find from the marriage. It is important to understand what is causing the fighting and pain and if a divorce will help alleviate it. Divorce does not magically remove the obstacles in your life that are causing your unhappiness and you will be forced with making changes to avoid running into the same problems again.
Numerous reasons may exist why you do not feel your marriage is not working. You need to realize a divorce will likely set you back in your life and as you rebuild your life you need to take advantage of the opportunity to make better choices to avoid the same pitfalls again. You may be attracted to people who do not meet your long terms needs, you may have married somebody you were not compatible with or your relationship has decayed so severely it is beyond repair.
Incompatibility can be a reason to consider divorce. We have all lived different lives and all have our own ideas of what it means to be a husband, wife or parent. Our needs for attention and intimacy, our ideas of how to parent and our financial ideas may vary greatly and if you cannot make compromises your marriage may suffer. No matter the reason many people find themselves married to people they are not compatible with. If you feel this is the case and that you cannot be happy in your marriage a divorce may offer you the opportunity to find somebody better suited for your emotional needs.
The source of fighting in your marriage may also be less personal issues like finances. If you find yourself constantly fighting over money then you should consider alternatives to divorce. It is likely a divorce would only further stretch your resources. It may be more productive to spend your time and resources resolving everyday stress than getting divorced. However if the fighting has been ongoing and the attacks have become personal it may be a different case. If blame and hurt have become the means of arguing then you need to determine if the relationship could be saved if the financial strain was resolved. Understanding why you are considering divorce may help you make the decision, but make sure you are prepared to evolve and avoid the same mistakes in the future.
Please understand I do not encourage divorce, but I do not believe we should be bound by our mistakes because guilt or pressure. Our lives are much too short to spend them suffering needlessly. It is important to remember issues such as abuse or adultery may simplify your choice while children may complicate it, but you should be free to reach for a happy life. Divorce will be challenging and should not be taken lightly, but should not be ignored either.
Numerous reasons may exist why you do not feel your marriage is not working. You need to realize a divorce will likely set you back in your life and as you rebuild your life you need to take advantage of the opportunity to make better choices to avoid the same pitfalls again. You may be attracted to people who do not meet your long terms needs, you may have married somebody you were not compatible with or your relationship has decayed so severely it is beyond repair.
Incompatibility can be a reason to consider divorce. We have all lived different lives and all have our own ideas of what it means to be a husband, wife or parent. Our needs for attention and intimacy, our ideas of how to parent and our financial ideas may vary greatly and if you cannot make compromises your marriage may suffer. No matter the reason many people find themselves married to people they are not compatible with. If you feel this is the case and that you cannot be happy in your marriage a divorce may offer you the opportunity to find somebody better suited for your emotional needs.
The source of fighting in your marriage may also be less personal issues like finances. If you find yourself constantly fighting over money then you should consider alternatives to divorce. It is likely a divorce would only further stretch your resources. It may be more productive to spend your time and resources resolving everyday stress than getting divorced. However if the fighting has been ongoing and the attacks have become personal it may be a different case. If blame and hurt have become the means of arguing then you need to determine if the relationship could be saved if the financial strain was resolved. Understanding why you are considering divorce may help you make the decision, but make sure you are prepared to evolve and avoid the same mistakes in the future.
Please understand I do not encourage divorce, but I do not believe we should be bound by our mistakes because guilt or pressure. Our lives are much too short to spend them suffering needlessly. It is important to remember issues such as abuse or adultery may simplify your choice while children may complicate it, but you should be free to reach for a happy life. Divorce will be challenging and should not be taken lightly, but should not be ignored either.
Saturday, January 30, 2010
Diaries
This is probably one of the first pieces of advice an attorney will give you during a child custody dispute. If your problems cannot be resolved and a hearing is needed a diary of events may be invaluable.
What should you be tracking? If you child tells you about an event that happened at the other house that concerns you. If it is serious you should discuss it with the other parent and log the event. Also any time you receive communications that are insulting or threatening. Basically if there is anything that seems important you should take the time to log it down.
Why should I log these events? If your case ends up in an evidential hearing random statements do not mean a lot. However if you have all the events recorded and dated they become much more reliable. It gives you additional credibility. Logging a diary can help you avoid a he said, she said battle.
What should you be tracking? If you child tells you about an event that happened at the other house that concerns you. If it is serious you should discuss it with the other parent and log the event. Also any time you receive communications that are insulting or threatening. Basically if there is anything that seems important you should take the time to log it down.
Why should I log these events? If your case ends up in an evidential hearing random statements do not mean a lot. However if you have all the events recorded and dated they become much more reliable. It gives you additional credibility. Logging a diary can help you avoid a he said, she said battle.
Friday, January 29, 2010
Types of Attorney Representation
In recent years a trend has begun to avoid court involvement. In family law this trend has been seen with mediation and collaborative law. Traditionally people hired an attorney who represented them and attempted to negotiate a settlement while preparing for trial. If the settlement efforts never came to fruit then the parties went to trial. Today new alternatives have become available.
Mediation is an alternative to this traditional attorney representation. In mediation the parties will attempt to resolve their problems during face to face conversation managed my a mediator. The mediator will make sure the conversations are focused on resolution by limiting abuse and insults. Mediation can be a very effective tool to resolve family law disputes when emotions have calmed down or there is no history of abuse.
Collaborative law offers a second alternative that may be more helpful if the parties are unable or unwilling to sit down together to discuss their problems. With collaborative law both parties agree not to involve the courts and each party has a separate attorney to negotiate on their behalf. This allows both sides to avoid the conflict involved with going to court and allows attorneys to filter communications between the parties. If mediation seems like a poor fit for family law issues then collaborative law may be more appropriate.
I am a believer in the power of mediation and collaborative law. Both can be very effective, cost less than trials and avoid unnecessary conflict. However in some cases they should be avoided. If there is a history of abuse or some factors that make private negotiations detrimental to one party, involving the court may actually help. The court may provide a needed authority figure. In addition failure to comply with a court order may be civilly and criminally punishable.
Whatever your needs, legal representation may come in numerous forms. It is important to remember that family law issues are not all typical and your particular issues should dictate how you choose to resolve them.
Mediation is an alternative to this traditional attorney representation. In mediation the parties will attempt to resolve their problems during face to face conversation managed my a mediator. The mediator will make sure the conversations are focused on resolution by limiting abuse and insults. Mediation can be a very effective tool to resolve family law disputes when emotions have calmed down or there is no history of abuse.
Collaborative law offers a second alternative that may be more helpful if the parties are unable or unwilling to sit down together to discuss their problems. With collaborative law both parties agree not to involve the courts and each party has a separate attorney to negotiate on their behalf. This allows both sides to avoid the conflict involved with going to court and allows attorneys to filter communications between the parties. If mediation seems like a poor fit for family law issues then collaborative law may be more appropriate.
I am a believer in the power of mediation and collaborative law. Both can be very effective, cost less than trials and avoid unnecessary conflict. However in some cases they should be avoided. If there is a history of abuse or some factors that make private negotiations detrimental to one party, involving the court may actually help. The court may provide a needed authority figure. In addition failure to comply with a court order may be civilly and criminally punishable.
Whatever your needs, legal representation may come in numerous forms. It is important to remember that family law issues are not all typical and your particular issues should dictate how you choose to resolve them.
Wednesday, January 27, 2010
Adjusting your perspective
A piece of advice I would give all parents facing custody issues would be to change their perspective from "my rights" to "best interest of my child." Many parents approach child custody disputes saying their rights are not being protected or they are being screwed or I am being deprived.
What I am saying here is not to change what you expect, but to change how you approach the problem. Many parents think my custody agreement is not fair to me because I only have 25% custody. Change this to the existing custody agreement does not meet my child's needs because he is being deprived the opportunity to develop a relationship with both of his parents. It is not changing what you conceive as a problem but taking the focus from you to your child.
If more parents would take this approach child custody it would filter out a lot of problems that are merely frustration and it would help parents communicate their concerns in a way that is more likely to be appreciated by the other parent. In addition to making discussions more likely between parents, the courts also use "child's best interest" as their standard determining custody issues.
This is not some magic that will fix child custody disputes, but if parents are forced to articulate their concerns in this fashion it may help lead to less conflict and more productive conversations.
What I am saying here is not to change what you expect, but to change how you approach the problem. Many parents think my custody agreement is not fair to me because I only have 25% custody. Change this to the existing custody agreement does not meet my child's needs because he is being deprived the opportunity to develop a relationship with both of his parents. It is not changing what you conceive as a problem but taking the focus from you to your child.
If more parents would take this approach child custody it would filter out a lot of problems that are merely frustration and it would help parents communicate their concerns in a way that is more likely to be appreciated by the other parent. In addition to making discussions more likely between parents, the courts also use "child's best interest" as their standard determining custody issues.
This is not some magic that will fix child custody disputes, but if parents are forced to articulate their concerns in this fashion it may help lead to less conflict and more productive conversations.
An Objective Eye
As a family law attorney I feel it is my job to understand your situation and craft a strategy that best meets your needs. The actual process of divorce does not really change, but each marriage is so unique and the reasons you have chosen to end your marriage are unique to you. So deciding whether to try mediation, considering counseling or co-parenting classes will be based on your needs.
Many times a marriage full of fighting leads to a divorce full of fighting, followed by more fighting that seems to never end. If the point of divorce is to leave behind the pain and fighting then why do some people keep fighting? A lot of the time the fighting continues over custody issues and children find themselves in an unending fight. In these types of divorce the first impulse for many couples is to get attorneys and fight over everything when that is probably the opposite of what they need. They already know how to fight and they need help finding non-confrontational ways to communicate. These people need to let go of the existing hostile relationship and find a way to create a new business like relationship. Mediation may be useful as it would force them to actually talk and listen in a controlled atmosphere. This may be the first step of evolving away fighting to co-existing.
Another common scenario at divorce is when one spouse maintains a dominant role over the other. Whether there was abuse, one spouse is very controlling or one spouse is just very timid these divorces are much different that the ones above. With the marriages above the goal is to teach the parties to communicate because they are negotiating on an equal level. In these divorces the possibility of manipulation or intimidation can be very harmful so additional steps must be taken to ensure both sides are protected. Here each side needs separate representation from an attorney to ensure the divorce is safe. Collaborative law can offer a means to avoid the courts. Collaborative law allows a settlement to be reached by attorneys. Sometimes though this is not enough. If the relationship was so unbalanced sometimes it takes the authority of the court to manage the case. Co-parenting classes and therapy can also help the spouses develop a more even relationship over time but it is unrealistic to expect the spouses to be able to handle their problems on their own.
Some divorces may be much simpler than the two scenarios above. Sometimes the couple have terminated the intimacy and emotion of the relationship long ago and just stayed together for the children or money. In these situations there may be minimal conflict and the parties are probably capable of working through their case in less time. Mediation will likely be very effective and an attorney can draft all the proper documents.
Whatever your situation divorce is not just a simple mechanical procedure. Each marriage involves two unique individuals with unique problems that need to be understood. Divorce is not only the termination of the marriage but agreeing on how future communications will be handled.
Many times a marriage full of fighting leads to a divorce full of fighting, followed by more fighting that seems to never end. If the point of divorce is to leave behind the pain and fighting then why do some people keep fighting? A lot of the time the fighting continues over custody issues and children find themselves in an unending fight. In these types of divorce the first impulse for many couples is to get attorneys and fight over everything when that is probably the opposite of what they need. They already know how to fight and they need help finding non-confrontational ways to communicate. These people need to let go of the existing hostile relationship and find a way to create a new business like relationship. Mediation may be useful as it would force them to actually talk and listen in a controlled atmosphere. This may be the first step of evolving away fighting to co-existing.
Another common scenario at divorce is when one spouse maintains a dominant role over the other. Whether there was abuse, one spouse is very controlling or one spouse is just very timid these divorces are much different that the ones above. With the marriages above the goal is to teach the parties to communicate because they are negotiating on an equal level. In these divorces the possibility of manipulation or intimidation can be very harmful so additional steps must be taken to ensure both sides are protected. Here each side needs separate representation from an attorney to ensure the divorce is safe. Collaborative law can offer a means to avoid the courts. Collaborative law allows a settlement to be reached by attorneys. Sometimes though this is not enough. If the relationship was so unbalanced sometimes it takes the authority of the court to manage the case. Co-parenting classes and therapy can also help the spouses develop a more even relationship over time but it is unrealistic to expect the spouses to be able to handle their problems on their own.
Some divorces may be much simpler than the two scenarios above. Sometimes the couple have terminated the intimacy and emotion of the relationship long ago and just stayed together for the children or money. In these situations there may be minimal conflict and the parties are probably capable of working through their case in less time. Mediation will likely be very effective and an attorney can draft all the proper documents.
Whatever your situation divorce is not just a simple mechanical procedure. Each marriage involves two unique individuals with unique problems that need to be understood. Divorce is not only the termination of the marriage but agreeing on how future communications will be handled.
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