Divorce/Separation/Nullity

Contested or Uncontested

Sometimes one or both divorcing spouses feel the need to contest issues in their dissolution. Generally the issues that arise relate to your property (assets and debts, community vs. separate), support and children, Sometimes the parties want to create agreement settling one or more of their issues.

Who Best Decides

The court will decide for you, and that may or may not solve the problem, provide vindication, or make sense, but it is a set of decisions based on evidence and legal precedent. If court decisions were predictable spouses and their attorneys would settle their disputes before trial. So, it would seem reasonable. Often the attorneys have differences of opinion, and the parties are too afraid of losing, or not winning to insist on compromise. Most judges will say that the spouses and their counsel know more about their children and the financial issues of the divorce better than the judge ever will.

Mediation

You participate to make your own decisions to create workable agreements. Mediation is a participatory process. Neutral mediators structure and focus you and your spouse to look at what are your facts, what are your feelings, and the goals you want to achieve. Exploring what are your options and their consequences so you can create agreements that work is the result. Court provided mediation (for children’s issues only) is required if either parent applies to the court for a custody or visitation.    (read more)

Collaboration

Collaboration is also a team approach to settling divorce issues. Each spouse has an attorney to stand by and assist them in decision making, plus each spouse has a divorce coach to help them both define and be focused on the issues, again to help them make workable decisions. The attorneys will not go to court, but guide their client to make decisions that are best.

The team also includes a financial specialist and, when there are minor children, a child specialist.

All reasonably necessary information is gathered, shared and digested cooperatively. Decisions are made jointly to address temporary arrangements, identify and value assets and debts, investigate separate vs. community property claims, determine what is best for children, and provide for support. The results are enforceable.

Litigation

Attorneys that litigate are bound by the Rules of Professional Conduct to provide zealous advocacy for all the legal positions of their client that have any reasonable factual support. Often, that means urging issues that raise costs, but may not favorably be judicially decided. Another cost of litigation is the the effort needed to obtain information formally, under the Discovery Act of the Code of Civil Procedure. Motions to compel responses frequently use two experts, instead of one neutral expert, which also drives costs up. Waiting at court for time with a judge is a further cost.

Arbitration

Arbitrations is a decision making process whereby one or more (usually 3) arbitrators (to whom the parties and legal counsel agree) decide the issues. The process and hearing rules are also agreed upon. The parties must pay the Arbitrators. They are family law attorneys or retired judges.

Children

Time Share Calculation

One of the many factors in the guidelines child support calculations is the amount of time each parent has physical custody, or is responsible for their child. For example:

If parents have joint physical custody with every other week with the other parent, that is a 50/50 sharing, holidays and so on being equal. if one parent has alternate weekends, some time during the week and half the holidays, etc., depending on the exact schedule, that is between 20 to 30% for one parent and 70 to 80% for the other. Parents can choose to use any time share they wish, or the court must decide.

Move Away: Agreed/Disputed

When the parent with primary custody of the children wishes to move away, over the objection of the other parent, then whether to allow that move or change custody or visitation to promote the child's best interests becomes complicated. The analysis begins with the degree of involvement with the children by the parent who objects.

Generally, the more typical and modest the involvement, the less the children's move will be detrimental to them.

Long Distance and Local Co-Parenting

Regardless of distance, co-parenting is best for children. Parenting is providing for the needs of your child including your time and attention as well as food, shelter, clothing, etc. Communication with your co-parent about your children will provide them with consistency, and prevent the manipulations of parents that children often try. Overcoming distance to stay involved is a matter of what media works, telephone (or call), internet with webcam, etc.

Abduction: Prevention/Retrieval

When anyone, including a parent, abducts a child, it may be treated as a felony in California. Civil Orders are obtainable for the return of children, and are entitled to full faith and credit in any of the United States, and in countries that are signatories to the Hague Convention Prevention Orders prohibiting parental travel out of the area, or the state, or to surrender passports are also available on good cause shown.

Support - Temporary and Permanent

Child Support Guidelines

Child support is based on using a “guideline” formula. Attorneys and court systems in California use a computer program that calculates guideline child support. The formula includes the respective incomes of each party, the percentage of time the child has with each parent, and various other factors that affect an individuals’ net monthly disposable income. The “guideline” amount is ordered by the court except in unusual circumstances.   (read more)

Spousal Support Considerations

In determining long term support, the court is not permitted to use a temporary formula. The judge shall decide after consideration of a number of factors such as the standard of living enjoyed by the parties during their marriage, the length of the marriage, and the obligations and assets of each party after their division.   (read more)

Property

Separate vs. Community Property Disputes

There may be factual and legal issues related to whether an asset or debt is separate property, community property, or part each. The rules are complex that courts rely on to sort out the disputes. Community property is any asset (or debt) acquired (or incurred) during marriage by the effort of either spouse. When title changed to husband and wife from the separate name of one before marriage, the separate vs. community dispute can arise on divorce.

Tax Consequences

Tax consequences are important factors in deciding what is a fair and equal division of community property. Newport Divorce Attorney relies of the best forensic tax support for its clients.

Credits & Reimbursements

When one spouse pays more than half the community debts and expenses, and when a spouse uses a community asset, there are reimbursements due or credits (on what would have been support, for example).

Qualified Pension & 401k Distribution Orders

Qualified Orders (QDROs) are required to divide and distribute pensions and 401k(s) that are created under federal, ERISA, statutes. Newport Divorce Attorney routinely prepares and obtains qualifications for such orders.

Pre or Post Marital Agreements

Why a Premarital or Postmartial Agreement?

Martial Agreements are designed to deal with property, support, and other issues during marriage, or on death, divorce, or disability. California courts favor Martial Agreements. Such agreements encourage certainty, reduce conflict, and consequently, the expense of not only  divorce, but also upon death or disability.

Why are attorneys needed?

To do what you and your intended (or spouse) wish your Agreement to do for you, competent counsel is important, and possibly imperative to become involved.  Not only to be safe, but to ensure the Agreement is both valid (enforceable) and expresses what each of you want, two attorneys are best.  One for each of you will be necessary if your Agreement will affect spousal support.

Also, by consulting with counsel, you should expect your questions to be answered, but do not be surprised that many more may arise for you to consider with your intended or spouse.  The goal is for you to make informed decisions.  Knowledgeable discussions lead to comfortable and satisfactory agreements, ones that both of you understand and support.

Are there other reasons to have an attorney involved?

Yes, probate, with or without a Will, plus, rights to retirement benefits, and insurance contracts are examples of areas of the law that have rules separate from the Family Code. The interaction is important for you to learn sufficiently from your attorney, so you can make the decisions that will create the results you want. When creating a Pre or Post Martial Agreement, it is also timely to consider creating or thinking about creating an Estate Plan, particularly in a blended family situation where there are children of other relationships to consider.

What are some examples of a Marital Agreement?

What each of you expect from your marriage from a financial point of view is the general topic. Specific examples to digest and decide about include:

• What is to be the character of the assets and debts each of you will bring or have brought into your marriage? Without a proper Agreement, the assets and debts can become community property and subject to court dispositions in probate or divorce proceedings with unexpected, unintended results.
• What about earnings and expenses during the marriage? What is the role of each of you regarding earnings, child rearing, or whatever is expected during your marriage?
• What is your plan should death, disability, or divorce strikes? Is an estate plan contemplated? Is any agreement affecting spousal support to be included? Is insurance to be relied upon in case of death or disability?
• Is a home being brought into the marriage, and if so, will it become community or remain separate or there be agreed upon reimbursement for the separate value, or down payment on a new residence from separate funds?

Can spouses make a post marital agreement that is valid?

Yes, but the technical requirements of a valid, enforceable agreement made after marriage are higher. Each spouse has a fiduciary duty to the other, and full disclosure as well as fairness (not taking advantage) are some of what are critical to a valid post marital agreement. Counsel for each of husband and wife is not only recommended, but may also be necessary in most, if not all cases.

Some final thoughts

The legal rules for creating Martial Agreements are complex. You avoid ever having to fight it out by spelling out your agreements because even love is not enough if the going gets tough. Simplify and make your economic and, if applicable, your co-parenting life certain by creating Marital Agreements that work.

Settlement Agreement or Court Order Reviews

Appeal

A trial court must be shown to have made a material mistake, one that is both wrong and caused an unfair result in order for an appeals court to order reversal. Best is to have well prepared counsel, evidence, and legal briefings in the trial court. Newport Divorce Attorney does prosecute appeals, and successfully so, even to the California Supreme Court.

Second Opinion - Settlement Agreement/Reviews

A second opinion to validate your settlement agreement (before you sign it) is valuable. It either confirms our good decisions, or the second opinion might raise a question to consider further. If you are not sure about the order of the court, there is a limited period to being preparing the court record for appeal, ask for reconsideration, or a new trial.

Restraining Orders

If domestic violence occurs, on application the court will issue personal restraining orders to protect a party (spouse, live-in or former live-in, party to a romantic relationship, etc.) The police may have issued a 3-day temporary order, but it will expire.

Other orders to restrain disposition of property, or to require certain action be taken, are applied for to the court in Dissolution proceedings.

Enforce Orders

Depending on what sort of order it is, there are court procedures available to enforce orders. Money orders are subject to several different ways of collection. Other orders may require creativity to enforce, from obtaining customized enforcement orders to holding the party in contempt of court.

Change Orders

Family law orders may be subject to change if the circumstances on which they are based change. Support is likely to be subject to change when a payor party is laid off, for example, or if a child has become a young adult and has a reasonable basis to choose a different parenting arrangement. Or, a parent wishes to move far away with the children.

Special Needs

Trusts

Newport Divorce Attorney creates your trust to hold assets for use by the trust creator(s) during his/her lifetimes, legally avoid the cost and delay of probate, and to benefit the surviving beneficiaries. Special needs trusts distribute restricted sums to avoid loss of other sources of benefits. Other trusts, or trust terms are to avoid taxation and take advantage of tax incentives in the Tax Code.

Wills

Newport Divorce Attorney recommends one only if there are modest assets, the total of which will allow for a summary probate. As in a trust, you may direct the distribution of your assets and debts, appoint a guardian for your children and accomplish other planning tasks.

Family & Estate Planning

When creating one or more trusts will not achieve the best tax treatment for your estate, such circumstances will take the particular experience, training, skills and creativity of a Newport Divorce Attorney to advise.

Business Succession

Retirement, succession, or turning over control to a family member, or the otherwise sale or transition away from operating the family business all pose issues of valuation, financing and possibly conflicting wishes and goals. Newport Divorce Attorney brings experience in family and business dispute resolution, plus creativity in drafting agreements that work.