family law, Legal

6 Things You Need to Know About Divorce

1. Don’t Expect to “Win” Your Divorce Case

A lot of people start their divorce hoping to “beat” their spouse in court. In fact, there’s seldom a true winner in divorce. The typical divorce involves various issues, such as child custody, support, and the division of property. Rarely do divorcing spouses end up with everything they want. For example, one spouse might be awarded primary physical custody of the children, but may receive a much lower amount of spousal support than requested; it’s virtually impossible to tell the “winner” from the “loser” so trying to “win” is pointless.

Instead, consider the consequences of a full-blown court battle before you go down that path. In addition to the many thousands of dollars you’ll spend, your children may suffer the most in a heated divorce battle. After the dust has settled, you may soon forget who “won.”

2. Don’t Make Important Decisions Without Thinking Them Through

Many life-changing decisions come up during a divorce. For example, you may have to determine whether to you need to sell the family home. Resist the impulse to make a quick decision just to get the case over with. When making important choices, it’s essential that you consider the potential consequences.

3. You’re Getting Divorced: Your Kids Aren’t

It’s easy to get wrapped up in the heat of the moment. However, saying cruel things to your spouse in the presence of your children can have a lasting effect. Psychological studies show that the more parents fight during a divorce, the more damaging the whole process is to the children.

Whenever you’re about to say something hurtful give yourself some time to think before you speak. A simple rule to follow is to count to ten before you answer a question or make a statement.

In addition, unless there’s a history of abuse or neglect, your children will continue to have a relationship with their other parent. No matter how upset you are with your spouse, you should not try to discourage or interfere with a healthy parent-child bond.

You may want to consider asking an experienced mental health professional to counsel your children about the divorce, and seek counseling for yourself as well, so you can learn how to address your children’s needs during this difficult process.

4. Don’t Believe Everything Other People Tell You About Their Divorce

Your divorced friends may give you advice about what should happen in your divorce. Unfortunately, the information and advice you get from other people can be misleading or wrong.

Every divorce has a different set of issues. Your friends may believe what happened in their divorce is typical, but it’s best not to base your decisions on someone else’s experiences. Instead, rely on the advice you get from your attorney, mental health professionals, and financial consultants, all of whom are familiar with the specifics of your case.

5. Court is Not All That It’s Cracked Up to Be

When things are not going well in a divorce case, one spouse may threaten to terminate negotiations and head to court. However, the road to a divorce trial is long and costly. The expense of a trial can deplete the very assets that are often the subject of the dispute. Even simple matters can require multiple court days to complete, and after spending many thousands of dollars, spouses and their attorneys are left with the total uncertainty of how a judge will rule.

6. Create an Inventory of Household Furniture and Furnishings and Make Copies of Important Documents

Disputes over furniture, furnishings and other valuable items, such as a great wine collection or an expensive piece of art, can be avoided by taking a complete inventory of your home as follows:

  • take photographs of every item and photograph sets of small items, such as dinner ware, together
  • use the front page of that day’s newspaper in every photograph in order to create a “time stamp,” which avoids any claims that the photo was taken at an earlier date
  • keep your photos in a safe, protected place
  • create a list of all items, including where they’re located and your estimated value of each, and
  • get appraisals or ask for insurance inventories of the items in your inventory.

Despite the strict rules for disclosure, some divorcing spouses will hide or destroy key documents such as pre-nuptial agreements. This problem can be avoided by making copies of important documents as soon as you decide to file for divorce, or learn that your spouse is doing so.

family law, Legal

What You Need To Know About Divorce in California

Divorce can be a difficult time for all of the parties involved. Being properly informed before you file for divorce will put you on the right track and help put your mind at ease as you enter into the divorce process. It is always a great benefit to have certain questions answered before entering into a major life decision.

Date of Separation

First and foremost, it is extremely vital that you document the date of separation. This date will be the deciding factor in concluding what property and assets can and will be divided between you and your spouse in a California Family Court versus what property and assets belong solely to you.

It’s really as simple as it sounds. Any property and assets acquired before the date of separation can be communally divided between you and your spouse, while anything acquired after the date of separation, cannot.

If you find it is too difficult or impossible to come up with an approximate date of separation, don’t worry. California court will conduct two tests, an objective and a subjective, that will help determine that information for you.

One area of note regarding this matter is the home. California has divorce-related automatic restraining orders prohibiting the sale or mortgaging of the marital home. Even If you or your spouse holds the sole title to your home, the property is considered communal. If this is the case in your situation, make sure to discuss this issue with your Attorney.

Six Month Minimum

Next, it is important for you to know that the state of California will not restore your status to single or complete your divorce until no less than six months has elapsed. This means that you will not be able to remarry or claim ‘single’ on your taxes until six months has passed. While six months is the ultimate minimum, it is a fact that most divorces may take longer.

The six month waiting period begins when the respondent, the spouse being served the divorce petition, receives the paperwork filed by the petitioner, the spouse that is taking action. Since California is a no-fault divorce state, all it takes is one spouse to file for divorce and start the process.

Regional Requirements

Finally, you might be wondering if you have to live in California to file for a divorce in the state. The answer is yes. Either you or your spouse must have lived in California for at least six months and have resided in the county that you plan to file for divorce in for at least three months. If you have lived in California for six months, but in different counties for the minimum three months, you may file in either county.

If you fail to meet either of these requirements, you may file for a legal separation until you meet them. Once the required time has passed, you may then file an “Amended Petition” and ask the court for a divorce.

If you have any questions or need help regarding any of these issues, contact us to set up a consultation.

family law, Legal

California Divorce 101: Legal Reasons #70

You must be a resident of California for six months and a county resident for three months to file for a divorce, called a “dissolution.”

Either spouse can get a divorce simply by stating in the divorce papers that “irreconcilable differences” have caused a breakdown in the marriage. If both spouses are in agreement that there should be a divorce, they can agree in writing (called a “stipulation”) that the marriage can be ended.

The legal divorce process begins when one of the spouses files a “Petition for Dissolution of Marriage” with the Superior Court. The other spouse is then served with the paperwork and given time to respond. If the parties are in agreement about property and debt division, as well as any child custody and support matters, the divorce can be finalized without a trial. If the parties can’t come to an agreement, the court will set a time for a hearing in the future.

After the Petition for Dissolution has been filed, either party can request temporary assistance from the court, for instance, in the form of temporary custody and child support orders, spousal support orders, or orders to determine who pays community debts on a temporary basis.

Dividing Your Property

California is a “community property” state, which means that assets and debts acquired during your marriage will be divided equally when you divorce.

But not all property is considered “community property”.

For example, any assets you had before you married will be considered “separate property” if you kept that property separated from property acquired during the marriage.

The income produced by a separate property investment is also separate property, as long as it hasn’t been “commingled;” meaning, that it wasn’t mixed together with community money.

Property you inherit from your family or otherwise gifted to you during your marriage will generally be considered your own separate property if it was willed exclusively to you and you did not commingle it with community assets during the marriage.

It’s important to collect all the information you can about all your property, including when you purchased it, approximately how much it is worth, and details such as account numbers, serial numbers, and so forth. Collecting this information before you see a divorce lawyer can save you a lot of time and money.

Alimony

A court can order alimony, which is called “spousal support” in California. A court will generally consider such factors as:

  • The standard of living established during the marriage
  • The duration of the marriage
  • The needs of each party
  • The financial resources and liabilities of each party
  • The impact on the children of having the care-giving spouse working
  • The contribution of each party to domestic duties and the education and career of the other party
  • Any tax consequences
  • All sources of income available to either party

A court can order temporary spousal support while the divorce is pending. Spousal support is usually ordered for a specific length of time. Once ordered, it can be modified only upon a showing of a “change in circumstances.”

Child Custody and Visitation

In California, the court can make custody decisions based on what is in the “best interest” of the child, but will do so only if the parents can’t come to an agreement between themselves. In deciding which parent should have primary custody, the court will consider:

  • Which parent is more likely to allow the child frequent and continuing contact with the non-custodial parent
  • The history of contact between the parents and the child
  • The health, safety, and welfare of the child
  • The mental and physical health of the parents, including any history of continual alcohol or drug usage
  • The preference of the child, if the child is intelligent, understanding, and experienced/mature enough to express a preference
  • Evidence of child abuse

After the custody order is signed by the judge and filed with the court clerk, both parents are bound by it. If a parent is denied court-ordered access to a child, he or she may bring the issue back before the court to enforce visitation. The judge may decide to modify the custody/visitation order, order makeup visitation for the time missed, or order counseling or mediation.

Child Support

In California, child support is based on factors, such as:

  • The incomes of both parents
  • How many children the parent is responsible for supporting
  • How much time the children spend with each parent

If necessary, a court can set aside a portion of joint or separate assets of the parties to be put into a separate trust or fund for the support and education of the parties’ children.

A California child support order can be modified if there has been a “change in circumstances.” Examples of this would include:

  • A big increase or decrease in either parent’s income
  • The child spending a lot more time with the other parent
  • The child being several years older or having special financial needs such as schooling or medical expenses
Business Law, employment law, family law, Legal

How Much Will It Cost? Legal Reasons #67

When clients ask, “how much does a lawyer cost,” the answer can vary from $150 to $350 or more per hour. But if you’re facing a legal issue, working with a lawyer is very helpful and can affect the outcome of the case. Before hiring a lawyer, you should talk to him or her about fee schedules, flat-rate vs. hourly billing, retainer vs. contingency fees, and a ballpark estimate of the total cost based on the case.

As you consider how much a lawyer will cost, think about how much you have to spend and what the outcome is worth to you.

For example, if you’re thinking about taking legal action against a local business that did not repair your refrigerator properly, do you have enough money available to hire a lawyer, present evidence, and get the court to rule in your favor? Even if you do have enough money, is the overall cost of replacing the refrigerator or having someone else repair it worth the trade-off?

If you decide to move forward with legal action, or you need assistance with a legal matter, ask all potential lawyers that you meet with about their billing practices and fees. If the lawyer is not willing to discuss the costs with you, it’s a sign of poor client service.

Most lawyers bill under one (or several) of the following arrangements:

  • Hourly rate: this is the most common way for a lawyer to bill. This process requires careful documentation of all time spent working on documents, reviewing case files, presenting information in court, and any other tasks related to the client’s case. The client and lawyer will agree on the hourly rate before getting started with the case.
    • A lawyer’s hourly rate varies drastically based on experience, location, operating expenses, and even education.
  • Retainer fee: many lawyers require a retainer fee up front, which is something like a down payment on the case. As the lawyer works on your case, he or she will deduct the costs from the amount you paid and send you periodic invoices showing the deductions.
    • If you drop a case for which you have already paid a retainer fee, it is most likely non-refundable.
  • Flat fee: a lawyer may offer a flat fee for a specific, simple, and well-defined legal case. Examples of cases eligible for flat fee billing include uncontested divorces.
    • Before agreeing to a flat fee, make sure you understand what is covered in the agreement. It may not include filing fees or other fees associated with the legal process, so you’ll need to plan accordingly.
  • Contingency fee: a lawyer may offer this type of billing in a  personal injury case. With a contingency fee, the client doesn’t pay until the case is resolved. Upon resolution, the contingency fee is a percentage of the settlement or money awarded on behalf of the attorney’s client.
family law, Legal

Divorce and Property: Legal Reasons #59

There is a strong presumption under California law that assets and debts a couple accumulates during marriage are community property. California law also provides that property spouses acquire before divorce but after the date of separation is separate property. The date of separation is not necessarily the date one spouse moves out of the marital home. Instead, it is the date that one spouse decides to end the marriage, and it requires some act of physical separation combined with other actions clearly demonstrating that the spouse has decided to end the marriage.

Whether you handle your own property division or a court handles it for you, there are three crucial steps to the process:

  • determine whether the property (or debt) is marital or separate
  • agree on a value for marital property, and
  • decide how to divide the property.

The spouses—or the court if they can’t agree – generally assign a monetary value to each item of property. Appraisals can help a couple determine the value of real property as well as items like antiques or artwork. Retirement assets can be very difficult to evaluate and may require the assistance of an actuary, C.P.A., or other financial professional.

Spouses can divide assets by assigning certain items to each spouse, by allowing one spouse to “buy out” the other’s share of an asset, or by selling assets and dividing the proceeds. They can also agree to hold property together even after the divorce. Although continuing to hold property together isn’t a very attractive option for most people, since it requires a continued financial relationship, some couples agree to keep a family home until children are out of school. Others may keep investment property, hoping that it will increase in value.

The couple must also assign all debts accrued during the marriage, including mortgages, car loans, and credit card debts, to one of the spouses. Couples dividing debts should be aware that their separation agreement or divorce order is not binding on creditors, who may continue trying to collect a community debt from either spouse. If a debt is assigned to one spouse, the other can ask the court to put a lien on that spouse’s separate property as security for payment of the debt. However, it’s a better practice to try to pay off all the marital debts when the divorce is finalized—if you are selling the family home or one spouse is buying the other out, there’s often a refinancing of the house loan that provides an opportunity to do this.

family law, Legal

How Long Will It Take to Get a Divorce?Legal Reasons #56

The biggest factor in determining how long a divorce process lasts is the level of cooperation that can be expected, a divorce proceeding can take between six to eighteen months to be resolved. If the divorce is high-conflict with lots of different issues involved, then the proceedings can take as long as five years to be resolved. Simple cases where no children are involved and there is little conflict between spouses can be resolved in as few as six months.

Beyond that explanation, this becomes a complicated question to answer. First, California has a 6 month waiting period, which begins from the time a divorce has “begun” to the first date at which a divorce can become “final.” This is the earliest date on which a married couple can be returned to a status of “single.” But that does not mean that the agreements encompassed in a divorce need to wait that long. Agreements can be reached and documents can be prepared formalizing the divorce agreement. With the proper help and formalities, the documents can even be filed with the court before the 6 month waiting period has lapsed. Then you simply wait for the minimum waiting period to pass.

CAN MY SPOUSE STOP ME FROM GETTING A DIVORCE?

No. California is a “No Fault” state, which means that either spouse may file for divorce at any time, for any reason. If the other spouse does not wish to proceed with divorce proceedings and ignores the petition filed in court, then the filing party can take steps to obtain a default judgment of dissolution of marriage.