We are having an uncontested divorce.
The time it takes to get to an agreement in mediation depends on a number of factors. These include the complexity of the issues that need to be resolved, the level of conflict between the participants, the knowledge each participant has as to financial and family matters, the participant's ability to communicate with each and with the mediator, and, not least of which, is each participant's motivation to complete the process. Generally speaking, the higher the conflict, the more strained the communication, the more complex the issues, and/or the less motivated even on of the participants may be the get divorced, the longer the mediation will take, and the more financially, physically, and emotionally draining the process will be (whether you mediate or fight in court, it is still a direct correlation).
I have a form that I hand out to my clients before we start the mediation process (well, one of several forms) that identifies common cost inflators and obstacles to resolution. These include not providing needed documents, not reviewing those documents and/or not preparing for the mediation itself; fighting over small items that may even easily be duplicated (family albums and portraits are a common one); not dealing with the emotional trauma (this is especially true when there is infidelity or a new romantic relationship started by one of the participants during the divorce). This last one often shows itself in unexpected ways. I had one case (changing the facts slightly to maintain confidentiality) where the two participants spent 2 hours debating reimbursement for the new set of tires on one of the cars (one spouse had his/her's replaced before they separated, and the other after). They spent more money debating this one item than they did on the item itself. This was a very high conflict, emotionally charged case. And no matter what I did to refocus them on the big picture, they just couldn't move forward. We did eventually resolve, but it took me as the legal neutral, a financial neutral mediator, and a mental health professional acting as a family coach to manage communication and emotions, and 2 years before they finally reached agreements. That is probably the most extreme example, in mediation, that I have ever experienced.
On the other spectrum, I have resolved divorces in mediation in less than 3 hours. Those folks were motivated, emotionally ready, and prepared to reach agreements.
Best recommendation: Prepare, Prepare, Prepare, and make sure you are looking forward rather than living in the past. Any solutions you propose need to have value not only for you but also for your spouse. If both of you limit any proposed solutions AND you both keep that notion as a guide, you will like co-create agreements much faster than if you each try to pull for as much as you can get.
Finally, make sure you find a mediator who is well trained in mediation, and continually trains in new techniques (this is an ever evolving process), has resources for financial and communication assistance if you need it, and is well versed in Family Law. And, it needs to be someone with whom you BOTH feel comfortable and confident.
I hope this is helpful to you. Good luck!See question
Bought our home in 2006, had third child so we outgrew home. We had a first and 2nd loan. We did a modification of our loan in 2009. Then our 2nd loan was forgiven. We rented out the property in Jan 2012. Rented from 2012 until 12/31/14. I sold th...
You should consult a tax professional if you believe you are getting incorrect information on that end. As it relates to transfers of property as a result of a divorce (for example, you keep the family home only in your name, or your spouse pays you $100K to equalize his keeping the family home), such transfers are not taxable events. But, if you sell the house, even if ordered to do so by the judge in your divorce matter, you are subject to capital gains taxes. If you received money as your share of the community assets (RSU, bonus), depending on how your divorce decree is worded, these could be a non-taxable or a taxable event. I am careful to have this conversation with my clients BEFORE we draft, to make sure they understand the tax impact - I often refer my clients to tax professionals to make sure they are getting accurate and current information. If the wording says that the funds were for an "equalization" of the marital estate, this would, likely, be a non-taxable event. If, however, you are receiving it, pre-tax, and that tax liability was given to you, you would pay that tax. Also, if you received stocks, or retirement funds, and you liquidate (sale or pull the funds out early), even thought it was part of a divorce settlement, once you pull the funds out, this creates a taxable event.
As for the debt forgiveness, this is not my area of practice. You should consult a tax expert to give you the most updated information. There was a lot of back and forth in the news about this (that it would be forgiven, but the amount forgiven would be taxed as income, then it wouldn't, then only under certain circumstances, etc).
I hope this information is helpful to you. You really should have a family law lawyer review your judgment so that you have a clear understanding of what was ordered and the practical impact such orders have on you, as well as what, if any, options you have for modifying the orders to address your concerns.See question
Just filed for divorce against my wife. It's been 35 days since she's been served and she hasn't filed or served a response. In my dissolution petition, I asked the court to terminate its jurisdiction to award alimony to either spouse.
Yes. The court will reject your request if you have not served her with your disclosures and filed your declaration re service of disclosures. If you look at your Declaration for Default, you will see that you must declare you have served her and that you waive receipt of her disclosures.See question
if wife would so choose on her own to honor her original promise made to husband prior to divorce & then made it again thru her first attorney after she filed for the divorce. Wife promised & her 1st attorney stated to me on phone that wife wanted...
I'm so sorry for your trauma and this difficult transition. My colleagues are absolutely correct. It is a good thing to try to resolve your case without taking up court time, AND in an informed and respectful way. It does sound like there is a separate property component to the property (what you contributed from separate property funds), as well as somme community component. What is of concern is your wife staying on the loan for 5 years while you rebuild your credit. This can have a huge impact on her ability to purchase other property or take out other credit. I'm wondering if that is where the two of you may be stuck. There needs to be value to both of you to be able to reach agreements. Perhaps it is her goodwill to make sure you can keep the house. There would need to be some discussion on what, if any, protections she will have if you fail to pay the mortgage, if there is going to be any compensation for her remaining on the loan for 5 years, and so on.
I would STRONGLY encourage you to speak with your wife/ your wife's attorney to work this out. Settlement negotiations, with limited exceptions, are confidential and would not be used against you in court (exception deals with proving the witness is lying). The reason settlement negotiations are confidential is because the courts want to encourage people to resolve. I also agree that you need to make sure your communications are in writing. This is important not only to show that there was an offer presented, but also so that everyone clearly understands what the offer is. And, remember, it's not an agreement until it is signed by both parties. It's one thing to say "I agree" and another to affirm the full agreement in writing, signed by both parties. It all comes down to what can you prove and what is enforceable under the law.
I hope this is helpful to you. I would encourage you to seek out settlement counsel who can make sure your agreements are complete and properly memorialized in writing.See question
My wife and I, we are getting divorce. I am struggling with legal process, and I have some questions about them: she wants to sell the house but I don't want to do it because I have a lot staff in the garage also in the back yard, she is paying th...
The anxiety and confusion you are experiencing is completely normal. Getting educated helps reduce that anxiety and confusion. I will not repeat what my colleagues have shared, as it is completely accurate. What you may want to start looking into are some options that allow you and your spouse to co-create agreement that address the concerns you, likely, both have. The court has only one option, and that is to apply the law as the facts and evidence allow. If you cannot agree on a parenting plan, while the court MAY hear your youngest son's thoughts (usually it's age 14 and over, and it is ALWAYS at the discretion of the judge), the judge will make all the orders, whether you like them or not. Another option would be work with a child specialist, or just with your spouse, to identify and incorporate your son's wishes, and the goals and concerns you both have as parents. Putting a child, even a teenager, to testify or answer a judge's questions is extremely stressful for that child, and usually creates greater conflicts between the parents. I would encourage you to watch the film "Split" and "Talking to Strangers". These films include interviews with children whose parents divorced, as well as a realistic walk through a custody battle.
As it relates to assets and debts, again, if you and your spouse are not able to create your own agreements, the judge will default to what the law requires, whether it is financially in your, or your family's, financial best interest or not.
The studies do show that parents/spouses, and their children, recover from divorce, and are far more satisfied with the outcome, when the spouses co-create their own agreements. This requires education, communication, and, often, professional assistance, beyond just the legal. I would strongly encourage you to educate yourself as to all process options. There is no one-size-fits-all. And there are risks and benefits to every option. You can do this by attending one of the many divorce options programs offered in southern California, or speaking with a lawyer practicing in such out-of-court processes, as well as those practicing in contested court cases.
I hope this information is helpful to you.
Good luck.See question
I have been married to my husband for 3 years and it's been hell. Together we have a 15 month old and he has three children from a previous marriage. My husband is emotionally abusive and physically abuses his two boys in which case I have zero pr...
First and foremost, you really need to prepare yourself and your family for what appears will be a very high conflict transition. Number one is ALWAYS safety. Make sure you have people around you who are aware of the situation and can be there for you if he tries something (either physical harm, financial harm, or anything else). Make sure you have a safety plan: someone who checks in on you, a code word (in case you are in trouble and he is near by) that alerts them to contact the police, know where the police stations are, etc. I don't know if this information is excessive, but I"m erring on the side of caution based on what you have shared here.
The short answer to your questions is YES. Income earned during marriage is community property (half yours, half his). You do not have to be working to have a claim to funds in your joint account. Take no more than half. You can also use joint funds to hire a lawyer. It sounds like you may need some protective orders in place and a temporary custody and visitation plan. It sounds like he's fairly well versed in divorce (given what he is saying about living arrangements and have you have shared about his ex).
A contested court battle tends to bring out the worst in people. Odds are, he is the way he is because he was likely abused or suffered some kind of serious trauma as a child; it's all he knows. And when he feels attacked, this is his only way of protecting himself. This is not an excuse for his behavior. It may, however, help you in learning how to avoid triggering him, how to help him stay calm, and how to keep yourself safe. You are not going to be able to change or fix him. When you tell this personality that you want full custody, expect all out war... and your daughter will be right in the middle of it. While a lawyer may be a very important part of this transition, I'm going to STRONGLY suggest that seek a therapist who is well versed in high conflict personalities. There are many amazingly talented people in your community. San Diego has a collaborative divorce group with many professionals who work in such high conflict cases. Go online and Search San Diego Collaborative Divorce and Shawn Webber (he's the president of the organization). They have child specialists, financial professionals, mental health professionals, and lawyers who are specially trained to manage these types of situations. Fighting in court, although it does provide limited protections, also tends to make things worse - this is why we see more murder suicides and abductions in family law: the courts are not equipped to handle or even monitor these high conflict matters. A restraining order is not abduction or bullet proof.
Again, I don't want to be alarmist, and maybe your situation is not as bad as it seems based on your comment. I err on the side of caution. Use your best judgment, and get yourself educated on the options available to you. I would definitely start with Shawn's group, and maybe look into Bill Eddy and how to work with high conflict personalities. It's going to be really useful information for you moving forward. While you may not always be his wife, he will always be your father's daughter. And both you and she are going to have to learn how to live with that personality. Time to make some lemonade out of those lemons - it may still be sour, but you do need to start handling this in a new way.
I hope this information is helpful to you. Be safe and good luck.See question
I went to see an attorney for a consultation. The reason is for concealment of an asset from ex spouse post divorce. The attorney reviewed some information with me. It wasn't a good meeting overall and attorney made a 'big' deal that the...
This section is necessary if that party is requesting that the other party pay his/her legal fees, or any portion of them. It really does not relate to omitted assets in any way. And there really is no legal impact to the other party - the impact would only be that the party failing to complete that section cannot request attorney fees until that section is completed - they could always file a new I&E, but they would still have to provide evidence and show legal justification to request such fees.
I hope this is helpful to you.See question
If my spouse worked for 11 years with a company and ended employment in 2013, then took a new position with a new company in 2014, does the pension from the old job somehow carry over into the new jb, or do both pensions need to be joined?
Pensions don't usually merge or carry over, since these are essentially credits for future income, rather than money in an account (like an IRA, for example). In a divorce or separation, when you do your financial disclosures, the pension(s) should be disclosed there, and you'll have a better understanding of what assets were acquired/earned during the marriage. Either way, you will need to join the pension through a QDRO ("Qualified Domestic Relations Order") or a DRO (depending on type) in order to divide the pension. There are lawyers who specialize just in doing QDROs.
I hope this is helpful to you. Good luck.See question
Its a divorce case in CA court. I earn 55k per annum and my husband earns 136k p.a. No children involved. Marriage duration 2.5 years. My husband is asking waiver for spousal support in his settlement agreement. We have no assets nor debts...so no...
Spousal support is a very hotly contested issue in many divorce. There's a lot of emotion wrapped around it. If you are going to dispute this issue in court, or even in your negotiations, you need to have a foundation upon which the judge can grant your request and/or your soon o be ex sees a value in negotiating a resolution that includes some support.
Get familiar with Family Code Section 4320. Take a look at my posts about temporary and permanent spousal support. In a short term marriage (less than 10 years), the rule of thumb is to award support for half the duration of the marriage, if it is warranted. This is just a rule of thumb - I've seen $0 support, I've seen support ordered for much longer.
This isn't something that one can really provide good legal information about in this forum. I would strongly recommend that you consult with a lawyer who offers dispute resolution services such as mediation and/or collaboration, so that you can get a very realistic expectation on this topic before you negotiate with your spouse. If that lawyer has the appropriate ADR training, s/he may also be able to give you some tools and/or techniques on how best to present different possibilities when speaking with your spouse, that also address the emotional charges behind this topic.
I hope this is helpful to you. Good luck.See question
I filed for divorce, after 25+ years of marriage, to get out of a relationship that left me broke and me each payday, hundreds of dollar overdrawn. If it wasn't for an unsolicited loan from a friend for a retainer fee, I would have had no alterna...
Reserving jurisdiction of the court means that anything not resolved, or ambiguous, or omitted can be returned to the court for the court to make the appropriate orders. It does require that one party initiate the request, giving proper notice to the other party. The legal process is often frustrating and confusing. You may want to consider trying to resolve the loose wording in an out-of-court process like mediation, or collaboration. Maybe just hire a consulting lawyer to propose a post-judgment modification for you to share with your ex?
These are just some options that may reduce the stress, or be less time consuming/expensive in the long run. They may not be a good fit for your situation, depending on the complexity of the issues and/or the level of conflict/communication between you and your ex.
I would strongly recommend that you speak with a lawyer who offers consulting and/or mediation services, and can help you assess a process and next steps that would be most productive for you. There is no guarantee that this can be corrected or that your ex would even find value in cooperating. But it may be helpful to get more information on your options.
Good luck.See question