8 Questions to Ask a Potential Divorce Attorney

8-questions-to-ask-a-potential-divorce-attorney

Hiring a divorce attorney and proceeding through the divorce process does not have to be the horrific endeavor that is commonly portrayed in pop culture and media. While it is true that during a divorce, emotions do run high, what is important is getting the right attorney to help you with the process. There is a lot of information available but critically, not all this information is accurate or helpful in making a determination if a specific attorney is right for your case. Knowing what to ask a prospective divorce attorney is important to your situation and circumstances. Therefore it is vital to ask right questions of any attorney you are considering.

Eight Important Questions To Ask A Prospective Attorney

Due to the fact that speaking with an attorney about your pending divorce involves discussing personal aspects of your life, it is crucial that you feel comfortable discussing with your divorce attorney all the relevant information necessary. To help ascertain how your potential attorney can help you, here are the eight important questions to ask.

  • Is Family Law a specialty for you and how many years of experience do you have in Family Law?
  • Who will be working on my case? Will there also be associates or junior attorneys assigned to my case?
  • What steps are involved in the divorce process?
  • Are you familiar with the local Family Law Judges and how they tend to rule?
  • Are their any resources you recommend for clients?
  • Will we sign a written retainer agreement?
  • Will the invoice be itemized?
  • How will you communicate with me and how often?

It is important for your situation to find the most qualified attorney possible. Family Law is an ever changing construct of different laws, rulings or precedents and societal norms based on a wide range of variables and will differ from state to state. However, the basic questions above allow you to evaluate a potential attorney and their ability to assist you with your specific case and circumstances. Other aspects such as children in the relationship and property will and can have an effect on your specific case and in some situations the scope of the case could be widened to encompass other attorneys as part of the process. However, these questions are still valid for those rare circumstances where this situation occurs.

Your attorney is your trusted partner in handling your divorce case. When engaging a prospective attorney, be sure to provide the attorney with as much initial information as possible so the attorney can determine how best to help you. Remember, the attorney is your representative and therefore should have the same information that you do concerning your individual circumstances.

Name Change and Divorce

name-change-and-divorce

Divorce includes many pressing issues like child custody and alimony, it is often easy to overlook some of the smaller long-term decisions you need to make. Changing your name is a decision you should consider carefully before finishing your request for a final judgment.

Some things to consider as you decide if you want to keep your married name or change it.

The Process.  The process of changing your legal name during a divorce in California is simple. You simply need to request that a name change order be included as part of the final judgment in your divorce. This is the easiest way to take care of changing your name if you are certain you want to. However, if you are unsure, there is also a provision in California law that will allow you to request an alteration of your final decree at a later time. You can also have your name changed to something other than your maiden name, but this requires you to follow the process for a standard Petition for Change of name, and is a separate process from your divorce proceeding.

Impact on Children.  There is often a strong emotional reaction to names for people. Wives and husbands often feel the need to have the outward sign of a name change to signify the end of their relationship. But, parents are often concerned that their children may suffer from having a different name from their mom. In most instances, the courts will not change the name of minor children as part of a divorce proceeding, even if their parent has a name change. The good news is that children having different names from their parents is not nearly as stigmatized as it once was in society, nor is it confusing for things like school records. If you desire to go back to your maiden name, be sure to talk with your kids about the situation and let them know the change in name does not change your relationship with them. Lay the groundwork for them to be able to come to you with any concerns that might come up about having a different name than yours.

Updating Your Information.  If you have no particular feeling toward your last name, and there is no overriding need to change it, the biggest factor in your decision may be whether or not you want the hassle of updating all of your accounts and documents to reflect a new name. Take time to make a list of all the various items and accounts you will need to update. The most important are:

  • Driver’s License
  • Social Security Card
  • Bank Accounts & Credit Cards
  • Passport
  • Loans or Mortgages
  • Investment Accounts

Most other items can be updated as you run across them, but having a list of everything does help make the process easier.

Impact on Your Business or Profession.  If you are a professional, or own your own business and it is associated with your name, it may serve you better to keep your current name. Often times after being married for many years, people will choose to keep their married name, or hyphenate back to their maiden name, to maintain the name recognition they have worked so hard to earn over the years.

If you have questions or aren’t sure about whether or not you want to change your name, your attorney can help you list out and weight the pros and cons.

How to Prepare for Child Custody Mediation

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Going through a divorce always means challenges and adjustments. If there are children involved, one of the biggest challenges often revolves around child custody issues. When parents can’t agree on child custody arrangements, mediation can help prevent bitter custody disputes and lengthy court battles by creating a child custody plan that’s agreeable to both parents.

What is Child Custody Mediation?

Most courts encourage parents to use alternative dispute resolution (ADR) programs instead of a court trial to deal with child custody disputes. Mediation, the main ADR for child custody cases, saves parents and courts time and money that are typically spent on lengthy court trials. During mediation, both parents and their attorneys meet with a neutral third party, a mediator, to discuss child custody issues and concerns. Although there is no judge present, the results of the process can impact the outcome of your child custody case, so it’s important to be well prepared. By understanding the process and preparing for discussions, your child custody outcome will be more favorable.

Preparing for Mediation

To prepare for mediation, there are three important steps you should follow: gather information and evidence, outline your issues and concerns, and establish your objectives.

Gather Information and Evidence

  • Information – Gather relevant records such as your child’s medical history and school records. Write out daily schedules for you and your child and prepare your requests for visitation and custody proposals, including holidays and birthdays. Present any information that’s in your favor to substantiate your requests.
  • Evidence – If you’re disputing custody of the other parent due to poor parenting skills or an unhealthy home situation due to abuse or violence, drug or alcohol use, or mental health issues, you will need evidence as proof. Although discussions during mediation are considered confidential, certain inappropriate parental conduct will be reported to the court.

Outline Your Issues and Concerns

Before mediation begins, outline and organize important custody issues and concerns for discussion:

  • A regular visitation and child custody schedule
  • Exceptions to the schedule like holidays, birthdays and vacations
  • School and after school activities and events
  • Special concerns like religious preferences, medical care, and emergencies
  • How parents will communicate with each other concerning the children
  • Any future changes to the custody agreement

During the process, the mediator will help you with discussions on child custody issues and concerns. For best results, it’s important for each parent to discuss issues openly and listen to requests by the other parent. To come up with a fair child custody agreement, each parent should stay focused on solutions that are in the child’s best interest.

Establish Your Objectives

It’s important to discuss your objectives with your attorney prior to the mediation process. If you want full custody, make sure your attorney knows that before mediation begins. If your ideal scenario proves impossible during discussions, make sure you’ve discussed a backup plan with your attorney so you know what your next steps will be. You can set up phone visitations on days you don’t have visitation, or set up a special agreement for school events and birthdays. Courts encourage parents to work together to allow the non-custodial parent meaningful access to the child’s life.

Finalizing the Mediation Process

In most child custody cases, the mediator has a big impact on the outcome of  mediation. The mediator presents reasons for their conclusion including detailed information that’s discussed during the mediation process by both parents. If a child custody agreement can’t be reached during mediation, the mediator will make recommendations which are typically accepted without question by the court.

Divorce Terminology

divorce-terminology

When going through a divorce, you will likely encounter terms you may not be familiar with. This guide to divorce terminology will help you better understand them.

Alimony: Refers to money paid by one spouse to the other that is separate from child support. Alimony is sometimes referred to as spousal support or spousal maintenance. It may be granted on a temporary basis while the spouse adjusts to being single, or permanent to allow the receiver to maintain the lifestyle he or she enjoyed while married.

Annulment: A method of ending a marriage by declaring that it was never valid to begin with. Annulments are sometimes given because one party is underage or of unsound mind, but may also be granted when there is fraud or coercion.

Arrearage: A sum of money that is past due for the payment of child or spousal support.

ATRO: Automatic Temporary Restraining Orders, which are court orders included in each California divorce summons. The standard language in an ATRO prohibits either party from removing children from the state of California, canceling insurance policies, borrowing against the estate, or disposing of property.

Child Support: A sum or money paid by the non-custodial parent to the custodial parent to help offset the cost of raising any children produced by the marriage.

Child Support Guidelines: A set of guidelines that is used in calculating child support. The California Department of Child Support Services is responsible for monitoring child support payments between parents, and also provides a calculator that you can use to estimate payments.

Community Debts: Debts that a husband and wife owe jointly.

Community Property: Consists of everything that a married couple owns together, which may include real property, stocks, and pension benefits.

Complaint: The formal document filed with the court which states that one party wishes to divorce the other and the grounds for doing so.

Custodial Parent: The parent who has the child(ren) living with him or her the majority of the time.

Date of Separation: Under California law, the date of separation is the day when you and your spouse mentally ceased being husband and wife. It is not necessarily the date when one party left the marital home.

Ex-Parte: An emergency request from the court on a family matter due to extreme circumstances.

Guardian ad Litem: An attorney who may be appointed by the courts in order to represent the best interest of the child(ren).  A guardian ad litem is not automatically appointed, but can be requested by either party through an attorney or by visiting the Equal Access Project for assistance.

Irreconcilable Differences: Means the marriage is irretrievably broken, and there is virtually no chance of reconciliation. Irreconcilable differences is the standard by which California divorces are granted.

Paternity: Involves legally determining fatherhood, and is required before child support is ordered.

Pre-nuptial Agreement: An agreement entered into by the parties that spells out certain rights for each one in the event of a divorce.

Restraining Order: An order preventing one party from contacting or harassing another. This differs from an ATRO in that it is not automatically granted by the court, but instead is something that one of the parties must petition for. Restraining orders are typically granted in cases of domestic violence.

Visitation: The right of a non-custodial parent to spend time with his or her children after primary custody has been established.

Waiting Period: The amount of time required between the filing of paperwork and the actual order from a judge dissolving the marriage. In California, the waiting period for a divorce is six months and one day.

Tips for a Smooth Divorce

tips-for-a-smooth-divorce

Everyone enters into a marriage expecting it to succeed, but according to the government more than 20 percent of marriages end in divorce within the first five years, and 48 percent end within 20 years. Although these statistics are a bit alarming, it is possible to have a healthy breakup when the marriage ends.

Here are five tips to make your divorce go as smoothly as possible.

Take Responsibility.  No one person is ever completely to blame for a divorce, so take responsibility for your mistakes in the marriage. Examine your marriage and the part that both parties played in its failure. It’s important to realize your mistakes, take responsibility for your actions, and approach the divorce with honesty. This will make necessary divorce proceedings and negotiations with your spouse easier, calmer and faster. Taking responsibility for your part in the divorce will help you heal faster and prevent you from making the same mistakes in a future relationship.

Be Respectful.  It’s important to remember that you did once love the person you’re divorcing, even if your feelings are different now. Divorce is an emotional process that can result in a lot of emotions including anger, anxiety, grief and fear, and sometimes those feelings show up when you least expect them. Although you may be tempted to fight with your spouse through the divorce proceedings, take the high road instead. Be respectful towards your spouse and the divorce process, and try to preserve some of the good feelings you once had towards your partner. You may not remain best friends, but you can remain amicable.

Stay Positive.  Lifestyle changes brought on by divorce can be frightening and overwhelming, but it’s important to keep a positive outlook for your future. Find a support system through family members, friends and networking groups who can keep you from feeling isolated and alone. Formal support groups can help you cope with the lifestyle changes of a divorce by connecting you with people in similar situations. Get involved in enjoyable activities or new hobbies to take your mind off of your emotions. Meet new people, take a class, join a gym, and reclaim activities that you had to give up during your marriage.

Understand Your Finances.  One of the greatest challenges of a divorce is often your financial future after a divorce. Understand your finances and assets, so you can determine how to divide them. When you’re dividing assets, prioritize your wants and needs. For example, you may agree to give your spouse more cash in exchange for the house. If you can’t afford to keep the house on one salary, plan for the sale of the house as part of the divorce settlement. Be realistic and practical in your demands to facilitate a fair settlement and a quicker divorce.

Talk to the Kids.  Divorce can be a traumatic experience for children, especially if there’s a lot of conflict in the divorce. Keep conflicts away from the kids and between the adults to avoid potential risks of social and psychological problems for the kids. Come up with a plan and discuss the changes that the family is experiencing together with the kids. They will benefit from honest conversations and open communications. Although divorce is difficult for most kids, studies show that kids handle divorce better when they maintain close contact with both parents. Maintaining a loving relationship with your kids through the divorce process will create a more positive outlook for their future.

Pension Rights After Divorce

For many divorce may seem like a difficult journey particularly if you are in retirement or headed towards it. You may be in the situation where your spouse has been working all these years, and you have stayed at home to raise the children, and the divorce would put you in severe hardship if not poverty. Many cases suggest that middle-aged persons fear that divorce because the financial strain will leave them in hardship. Today, we will explore the options of pensions can play a critical role in the divorce, and how it can play in your favor, so you don’t have to go through unnecessary hardship. Let’s get started!

Pensions and Marital Property

Example 1: Both Spouses are Working

Pensions of both husband and wife earned through the course of a marriage are subject to distribution in the filing of the divorce. Suppose James married Mary five years after he began his employment at XYZ Co., and now 20 years after they married, James and Mary divorce. Those benefits James earned as a single man before his marriage to Mary are James separate property. Those 20 years that James had been married to Mary are marital and subject to division and distribution. The same situation applies to any pensions that Mary had earned at her employer with ABC Co. In the event of an employee contribution plan as part of that spouse’s pension plan this is still considered marital property.

Example 2: One Spouse in Working

From our example above let’s say that Mary decide to take on the role of a homemaker and child rearing, the stay at home mother so to speak. Mary only has a sketchy understanding that her husband James pension may be their most valuable asset besides the house they share. In this type of situation, this is known as a coverture fraction.

In cases such as these courts use a coverture fraction, also known as the time rule. The time rule is a mathematical formula that is used to calculate the percentage of the pension distributed to the non-worker spouse.

So as an example, James and Mary had been married 20 years even though James had been employed 25 years. So you take 20 years and divide it by 25 years which comes out to be .80 or 80%.

This means that 80 percent of the present value of James pension would be attributed to the marriage. So if James had accumulated $100,000, then 80% or $80,000 would be added to the value of the marital portion.

Contact a Divorce Lawyer for All Your Options

As you can see if you are seeking a divorce and want to know, more about your options are when it comes to your spouse’s pension you should call a qualified divorce lawyer in your area. There is more that an attorney can tell you about pensions that include contributions, benefits plans, qualifying for your spouse’s social security benefits and how valuations are calculated.

What are Post-Judgment Child Custody Modifications?

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Child custody is both an involved legal issue and one of tremendous importance to people all around the world. Although understanding these intricacies is something which requires expertise, it is also something that must be comprehensible – at least in broad terms – to the layperson who is actually involved in legal custody matters. Something that can be of particular importance to these people is a post-judgment custody modification.

As the name implies, these rulings are changes which are made to an judgment which has already been rendered by the courts. Whilst occasionally this method is used almost as an appeal, where the changes in circumstances are trivial or non-existence, it is generally the case that a post-judgment modification would be pursued when a change in a parent or guardian’s circumstances justifies such an adjustment.

Relevant changes in circumstances can be varied, and matters which might be considered pertinent under the original judgment are almost always valid reasons to pursue such a modification. Nonetheless certain reasons which are particularly common motivations for seeking custody modifications are;

  • A significant change in financial circumstances, e.g. a new job, a substantial raise, losing a job, etc.
  • Moving home, or the other parent moving home
  • The expressed wish of the child to have different custody arrangements
  • The other parent failing or mistreating the child. Examples may include falling school grades, a decline in behavioral standards, substance abuse, etc. In these cases it is especially important to ensure the safety of all involved, and the California Courts website can direct you to several resources on the topic.

It is also possible to seek smaller custody modifications, for example if your work schedule changes or you wish to take a child on a holiday lasting a day or two longer than you would otherwise be permitted to. These are typically, but not always, easier to acquire as they are much less consequential when weighed against the overarching considerations the courts are obliged to take into account.

These considerations are the point on which all child custody judgments are made, and they apply to modifications just as they do to the original rulings. Furthermore, as well as weighing up the positive and negative aspects of a proposed change in itself, courts will also keep in mind any potential negatives stemming from the process of making the changes itself, as distinct from negatives that may stem from the changes in and of themselves. Therefore it is possible that a change could be denied by the courts due to the effects that adjusting to the changes might have, rather than the merits of the changes itself. It would be rare for this to be the sole or primary consideration, but it may tip the scales in certain cases.

Whilst many such modifications are pursued due to changes in circumstances, modifications to judgments can also be sought as a child ages, on the understanding that their needs and requirements will differ as they grow older. Exactly when to pursue such modifications is not always easy to figure out, and the child’s own opinions and sentiments will often come closer to the forefront the older they get.

Ideally, all child custody matters could be resolved amicably and justly without the need for direct legal involvement. However, in reality, legal judgments are often necessary to ensure that both parents as well as the children involved are given fair treatment that serves the best interests and legal rights of everyone as well as possible. If you have questions about child custody laws or wish to pursue custody modifications, please contact us for more information.

What to Expect When Hiring a Divorce Lawyer

what to expect when hiring a divorce lawyer

For many people, setting out to hire a divorce attorney is a daunting and frustrating task, especially when the stakes can be very high if child custody and support, or alimony and property issues are in dispute. What can you expect when hiring a divorce attorney?

Expect to do your research

A divorce attorney, like any other professional, has a resume and reputation both of which can help you to narrow down your choices. Consult with family and friends, colleagues at work, or other people you trust for their recommendations. This list can be your starting point.

Research thoroughly the lawyers’ backgrounds on your list. With most lawyers using websites, you can get a fairly good idea about how they practice law, the office philosophy and mission, and other information that will help you to focus the search. Check the credentials, your lawyer should be trained in divorce or family law, and the level of experience is really up to you. Once you have narrowed your list, contact the local bar association to ensure that those lawyers have engage in an ethical law practice.

Expect to interview more than one attorney

Given what can be at stake in a divorce, you don’t hire your lawyer sight unseen. Interview your potential divorce lawyers. Many offer a free consultation, or a reduced rate for an interview. Prepare your questions ahead of time, and if you like, ask for client references or testimonials. You have to be certain that this is a person that you want working on your behalf and shares your values, and values your opinion.

Expect to be comfortable with your attorney

Divorce lawyers are not trained marriage counselors, or financial experts, but your lawyer will have to understand more than just the legal aspects of your case. When you are looking for your lawyer, you have to be comfortable with their approach to your case. For example, some lawyers oppose joint custody, so if that is what you want, you should have a lawyer who is comfortable with your ideas. In other words, you and your lawyer should be in agreement about the larger principals at play of your divorce case.

You should not be looking for a “yes lawyer;” you need a lawyer who will tell you the truth. So find a lawyer who will work hard for you but also one that will tell you the truth about possible outcomes. And if you want to be closely involved, you need to find a lawyer who will be comfortable discussing strategy with you, and is someone who you find easy to communicate with.

Expect to know the costs

A good divorce lawyer will be upfront about the fees that you will have to pay, including a formal contract and a retainer agreement that clearly spells out what you will be charged for and at what rates. Specifically, you should know what hourly rate will be applied once the retainer fees are used.

What is a Marital Property Agreement?

marital property agreement

Most married couples decide to jointly share their property and other assets. This makes intuitive sense since in most cases one spouse wants to leave all property and monetary assets to the other spouse. There’s little need to worry about which assets belong to whom: All of the property simply transfers to the other spouse in most circumstances. Marital Property Agreements are for couples who wish to denote how property is shared in the case of divorce.

Separate and Marital Property

There are some more complicated ways to divide property, though, among more than one beneficiary. For instance, marital property acts in many states allow for giving away shared marital property to a third-party recipient.

More broadly, the nuances of how property gets passed on depend on whether property is marital property or separate property as well as specific common law practices in particular states.

Marital property would be any property, earnings or assets that a spouse brought in during a marriage. Everything from a home or family vehicle to the earnings that one spouse brought to the marriage and put in a joint savings account could all be considered marital property.

Separate property, on the other hand, belongs solely to one spouse. Inherited money or inherited property are usually the two most common forms of separate property. Both of these predated the actual marriage – i.e., one spouse had property rights or an inheritance prior to the wedding day.

Post-nuptial agreements and marital property agreements are ways in which one spouse can claim assets or property following a separation, divorce or death. Both post-nuptial agreements and marital property agreements can dictate how marital property and separate property get handed down once one spouse is out of the picture.

Marital Property Agreements

The basis of marital property agreements and marital property acts in the common law system is the realization that each spouse contributes something unique to a marriage.

Marital property acts dictate that property and assets acquired during a marriage are shared equally as marital property among both spouses. This often translates to an underemployed spouse having easier access to credit and the ability for one spouse to make decisions about how monetary and property assets should be divided later on.

So, where exactly do marital property agreements enter the picture? Marital property agreements offer spouses the opportunity to render part or all of marital property shared among both spouses separate property held by only one spouse.

It can work the other way around as well, however: one spouse can turn previously separate property (e.g., an inherited estate) into marital property through a marital property agreement.

Put another way, in states that allow marital property agreements as a common law practice, one spouse can turn individual, separate property into shared marital property or vice versa. Marital property agreements give spouses more control over how their assets get divided during the marriage or after the marriage has ended.

Logistics of Marital Property Agreements

One spouse opting to turn marital property into separate property can make sense under certain circumstances.

There are tax incentives, inheritance laws and estate planning procedures that can make an intelligently executed marital property agreement a win-win for both spouses.

In California and other states that allow marital property agreements, there are some rules that each spouse must follow in order for a marital property agreement to be legally enforceable.

The marital property agreement should be in writing and signed by both spouses. Both spouses must also have full knowledge of each other’s financial circumstances going into the agreement.

Each couple’s legal needs and financial circumstances differ such that one couple might decide to share a lawyer whereas another might hire separate lawyers.

Alimony 101

alimony-101

Divorce is never easy, even when it’s a mutual agreement between husband and wife. In addition to emotional distress, financial concerns have a big impact on both parties. One of the biggest issues that California couples face is alimony and how to work out an agreement that benefits both parties. If you’re going through a divorce, this information will help you understand alimony laws in California.

What Is Alimony?

Alimony, also called spousal support in California Family Courts, is a legal obligation placed on a person to provide financial support to his or her spouse before or after marital separation or divorce. As a general rule, alimony is usually awarded to the “dependent spouse”, either husband or wife, who was financially dependent on the other spouse for maintenance and support during the marriage. Alimony payments may be awarded as a lump sum or on a continuing basis and vary greatly based on complex factors of each divorce case.

California divorce laws allow the court to order temporary alimony before there’s a final judgment, and retroactive alimony that can go back as far as the filing of the petition for divorce or legal separation.

How Is Alimony Determined In California?

When calculating income to determine alimony, the court usually uses the last twelve months of income as a benchmark. This typically represents a fair calculation for both parties, but there are no hard and fast rules. The court can go back longer or shorter than twelve months depending on divorce circumstances.

Temporary Alimony

The fundamental purpose of temporary alimony is to maintain the status quo while going through the divorce process. Temporary alimony guidelines use the same computer program that’s used for California child support. This program determines the net disposable income of the highest earning spouse and calculates alimony on a temporary basis, however the court does have final discretion. A black-and-white formula isn’t used in every case, but it’s unlikely that the court will diverge from the computer formula unless there’s persuasive evidence. California Family Code 4320 does not allow this computer program to be used to calculate permanent alimony.

Permanent Alimony

Permanent alimony is calculated differently than temporary alimony. The biggest difference is that the court can not use the computer program to determine the amount. Final alimony orders at the time of judgment must be based on Family Code 4320 to determine the standard of living that was established during the marriage or domestic partnership.

These factors include:

  • The age and health of both people
  • Current debts and property
  • The length of the marriage
  • What each person needs based on the standard of living during the marriage
  • What each person can pay (including earnings and earning capacity) to keep the same standard of living they had during the marriage
  • Whether having a job would make it too hard to take care of the children (dependent spouse)
  • Whether one spouse helped the other get an education, training, career, or professional license during the marriage
  • Whether there was any domestic violence reported during the marriage
  • Whether one spouse’s career was affected by unemployment or by taking care of the children or home
  • The tax impact of spousal support

Once a decision has been reached by the court, the alimony or spousal support order then becomes part of your final divorce or legal separation judgment. Most alimony orders will continue for one half the duration of the marriage in short-term marriages (less than 10 years), or until the death of either spouse or remarriage of the spouse receiving support.