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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?

what-are-post-judgment-child-custody-modifications

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.

How is Child Visitation Determined in California?

how-is-child-visitation-determined-in-californiaWhen a judge ultimately is deciding the outcome of a custody case in the State of California, he or she must decide what is in the best interest of the child or children that are involved. This decision determines how much time each parent will receive throughout the year with the children. When the process begins both parents that are involved will have a fair chance at custody and primary visitation despite whether it is the male or female that wants primary custody. As the process goes on the judge will get a better understanding of the familial situation and understand more of what would be best for the children involved.

Policies.  The State of California follows two very distinct policies when determining visitation. The first policy focuses on the health and welfare of all of the children involved in the visitation agreement. This must be the primary concern of the judicial system. Also, the second policy takes a deep look at the parents involved and determines whether or not the children benefit from having continuous contact with both of the parents. The information regarding both of these policies is the main information that is used to determine child visitation in California.

Safety.  During California court proceedings, a child’s safety is a primary concern when determining child visitation. It is an easy decision to make if there is a situation where one of the parents is living a very unsafe lifestyle that maybe focuses around excessive alcohol consumption or drug use. This may also apply to a parent that has a past that includes legal action for rape or abuse. A judge is not going to place primary custody or visitation with a parent that is not going to create a safe environment for their child. There is also a California law that prohibits a judge from giving child visitation to a person who has been convicted of murder or child abuse on both a physical or sexual level.

Supervision.  If a parent is questionable regarding their behavior or how they may act around their child then a judge may order child visitation to occur with a third party present so the visits are supervised. This prevents anything bad from happening to the child during the visit but yet it still allows the child to maintain some sort of relationship with their parent. When they are older and more mature they can then make decisions themselves regarding their visits.

Recommendations.  Each child visitation case is very different from the next. There may be some confusion as to whether or not a parent is fit to have visitation with their child so sometimes the court will ask for written recommendations and letters from family members, rehabilitation staff, attorneys and more. The information provided by multiple sources will help a judge make their final decision.

Child Opinion.  Depending on the age of the child the court may ask the child what their opinion is regarding the visitation agreement. An older child may state that they do not feel it is healthy for them to have a relationship with a certain parent or they may ask to stay in a certain living situation with the parent they are already staying with. The judge typically will take this information and preference into consideration.

Ultimately the best child visitation agreement is one where both of the parents involved can work together to co-parent their children. While not every marriage or relationship works out in the end there are still impressionable children involved that deserve the very best that their parents can offer them.

What is Spousal Support?

what-is-spousal-supportIn San Francisco, when a married couple legally divorces, one spouse may be entitled to receive spousal support. Spousal support, or alimony, is a payment or payments made from one spouse to his or her spouse. The support is based on an agreement between the couple or court decision. You may have heard the term partner support and spousal support used interchangeably. There is a difference in California. Spousal support is a term used for legally married couples in the state. Partner support is generally used for couples who were involved in domestic partnerships and were not legally married.

The Purpose of Spousal Support
This type of support is given to one spouse who is considered lower-wage- or non-wage-earner. Alimony serves many purposes. One purpose is to control the unfair economic effects divorce has on the spouse who is not making as much money as his or her spouse.
For instance, if you decided to forego your career to raise your children, you may need time to return to school or a training program to develop your job skills. Another purpose of alimony to help the spouse to continue the standard of living he or she had during the marriage.

How a Spousal Support Case Begins
Before a spouse can receive any financial support, a case must be established with the court. For example, your lawyer can ask a judge to make a spousal support order if you have the following types of cases:

• Annulment

• Divorce

• Legal separation

• Domestic violence restraining order

Types of Spousal Support
The type of alimony a spouse receives depends on the status of the divorce.

Temporary Spousal Support
Pendente lite, or temporary spouse may be awarded while the divorce is pending or when the couple separates.

Rehabilitative Spousal Support
This is also a type of temporary support. It is awarded for a short time to help a spouse get on his her feet while the divorce proceeds. The money is typically given o that the spouse can go to school, obtain job training or find a way to become more self-sufficient. The support may also be awarded to a spouse who stays home with his or her children until they reach school age.

Permanent Spousal Support
Permanent alimony begins after the divorce is final. It generally continues unless two circumstances happen. One the spouse receiving the support remarries or dies.

Reimbursement Spousal Support
This type of support is for one spouse to reimburse, or pay back, his or her spouse for specific expenses. For instance, your spouse decided to go to medical school during the marriage. You worked to put him or her through school while supporting the household. You may receive reimbursement spousal support in exchange for helping your spouse build his or her career.

Factors Considered in Determining the Amount of Spousal Support Paid
You and your spouse may negotiate and agree on spousal support. This means that the agreement will become court order after a judge signs it. However, if you and your spouse cannot agree, a judge must determine the amount—if any—support will be paid. Here are some factors a judge uses in determining spousal support:

• Standard of living during the marriage.

• Length of the marriage.

• Any domestic violence during the marriage.

Talking to a Divorce Attorney
Obtaining or paying spousal support is a life-changing thing. You want to be prepared prior to asking for or fighting against alimony. To learn more about spousal support or obtain representation, contact a lawyer as soon as possible.

Do You Need a Restraining Order?

do-you-need-a-restraining-orderTo know if you need a restraining order, it’s important to understand what a restraining order is and what it does. A restraining order is a civil order that stops someone from engaging in threatening behavior. It is used to keep abusers, stalkers, and those who are harassing you away from you so you can feel safe and begin to build stability and order in your life. You will need a restraining order if a person is:

  • threatening you
  • harming you physically
  • engaging in sexual abuse
  • harassing you when you’ve asked them to stop
  • stalking you

A restraining order is a civil protection order. It will not create a criminal record, but it will create a document that can be enforced to protect your safety and the safety of your children if you have any. Criminal charges can often be filed in conjunction with a restraining order because domestic violence, sexual abuse, harassment, and stalking are all crimes. It is a legal process like any other that requires filing a document with the court and a court appearance to get a judge to grant you a protective order. How do you go about getting a restraining order? Is proof needed? How old do you have to be?

You must be 12 years of age to file for a restraining order on your own. You will need to file a document with the court requesting a restraining order. This will start the process of a temporary restraining order that will be in effect until a court date can be set up so that you can present to the judge the reasons for the restraining order. The abuser will be served with paperwork notifying them of the temporary restraining order in affect against them and also of the court date to appear.

A restraining order will prevent your abuser from stalking, harassing, or getting close enough to hurt you again. If this person lives with you, you can also ask for a “kick-out” order that will force them to move and not come to your residence again. Present all the proof you have to the judge so he can fully understand your case and make the terms of the restraining order fit your unique needs completely. It helps to document incidences of violence, stalking, and harassment. If you have police reports, use those, if not, keep a detailed record of specific incidences. For example, it is better to say “He followed me home from work on three occasions over a week-long period,” rather than simply “He’s stalking me.” A judge can better understand your case with details like these.

Once you have filed the paperwork with the court, and met with the judge, you will be issued a restraining order that is effective at your residence, place of employment, and children’s school, if applicable. You don’t need an attorney for this process, but if you’re unsure, it’s good to have an attorney help you with the paperwork. Oftentimes in cases like these, you may be going through a divorce or custody battle, and you’ll need an attorney to help navigate those complex legal processes.

What is Divorce Settled by Agreement?

divorce settled by agreementWhen a divorce is settled via an agreement, it’s called a divorce settlement, marital settlement or collaborative settlement agreement. The agreement allows you and your spouse to have a written agreement that spells out the terms of your divorce. The agreement specifically covers one or more of the following:

A divorce settlement agreement becomes binding when it’s incorporated into your divorce decree. If you or your spouse violates any part of the agreement, a judge may hold you in contempt of court.

The Agreement can be Drafted Any Time Prior to a Divorce

A divorce settlement agreement is ideal for any couple able to put their differences aside or are on speaking terms. It requires a lot of negotiation to agree on the different terms. You and your spouse can come to an agreement at any time before you separate and until your divorce trial.

Depending on your circumstances, you and your spouse may employ the help of a mediator or divorce lawyer. The mediator or lawyer will lead the negotiations and try to find common ground to make an agreement on specific terms.

You and your spouse may be tempted to handle the negotiations without help. However, it is highly recommended that you discuss your settlement with a divorce lawyer. You want a lawyer who will represent only you, not one hired to represent both of you. You need to know your legal rights.

Also, you want a lawyer to prepare your divorce agreement. It doesn’t matter if you or your spouse prepared one. Hiring a lawyer to prepare the document ensures that vital legal provisions are corrected, added or deleted.

The right legal language is used. Terms like, sole custody, waive all future claims or exclusive possession mean something. For instance, you may intend to have shared custody, but sole custody is written instead. This means that you’ve given up your rights to have joint custody to your child.

Should You Sign a Divorce Settlement Agreement You Don’t Agree With?

No. The best thing to do in this situation is discuss it with an attorney. It’s tempting to sign an agreement because you want to start over, but you must think about your future. If your spouse prepares the first draft—even if you agreed to everything verbally—still have an attorney look over it. This should be done no matter how much pressure is put on you by your spouse, family or even yourself. In fact, you nor your spouse have to sign the agreement. You won’t get into any legal trouble. Instead, you will start over again or go to divorce court.

Speaking with a Lawyer

A divorce changes your financial life drastically. Unfortunately, many individuals don’t realize that they may lose a lot of money after a divorce. So you will want to discuss how a divorce and/or divorce settlement will change yours with a lawyer:

  • Finances
  • Health insurance
  • Property ownership
  • Cost of living
  • Retirement plans

A divorce settlement agreement can be modified when there are changes in you or your spouse’s life. However, there are certain terms that can’t be changed depending on the wording of your original divorce agreement. For instance, it may be in the agreement that alimony is non-modifiable. In that case, you can’t go back and ask for a reduction or increase later.