What are the reasons I could file for divorce? There are two basic grounds for divorce: (1) fault-based grounds and (2) no-fault-based grounds. Under fault-based grounds, there are seven areas to consider:
Cruel and Abusive Treatment
Gross and Confirmed Habits of Intoxication (includes alcohol and drugs)
Gross or Wanton and Cruel Refusal or Neglect to Provide Suitable Support
Sentence or Confinement in Prison
Utter Desertion (must be deserted for at least one year)
A no-fault divorce is when “an irretrievable breakdown in the marriage" has occurred and there is no hope for reconciliation. Simply put, one person in the marriage no longer wants to remain married, and is looking to end the marriage.
How do I protect my assets once I file for divorce? An automatic restraining order will be placed on your assets. This means that neither person can use the assets for anything beyond their normal living expenses. For example, if a spouse decided to go on a $200,000 shopping spree (and that was not normal for him/her), s/he could be ordered in the divorce to repay that money, or the assets may be divided with that in mind.
What does it mean to have “custody" of my children? There are two types of custody - (1) legal custody and (2) physical custody. (1) Legal custody refers to who will make the medical, educational and religious decisions on behalf of the children. Legal custody is usually shared unless one parent is found to be unfit. (2) Physical custody refers to who will spend the majority of time with the children and, just as importantly, who will be receiving (and paying) child support.
We both want physical custody of our children. How does a judge decide who will get custody? A judge will look at your children’s history and decide who has been the primary caretaker - who has taken them to doctor’s appointments, who has gone to school conferences, and what the parties’ basic pattern was during the marriage to determine who the primary custodian should be. Most importantly, the judge will determine what is in the best interest of the child.
Who pays child support and how is the amount determined? The parent without custody (non-custodial parent) pays child support to the parent with custody (custodial parent). The amount is determined by a formula set forth by the Massachusetts government - the Massachusetts Child Support Guidelines.
I did not receive a child support payment. What can I do about it? You or your attorney can file a Complaint for Contempt with the Court. There will then be a hearing to determine how much money is owed to you. If the non-custodial parent does not have a valid reason for not paying, s/he can also be ordered to pay attorney fees. If the non-custodial parent is significantly behind on the payments, s/he can be sentenced to jail.
I pay for my children’s health insurance. Does that count toward my child support? It is a factor in determining the level of child support. You or your attorney may be able to request a modification to your child support.
My child is nearing 18, will my child support change when s/he is of legal age? If your child is 18 and resides with the custodial parent and is financially dependent on the custodial parent or is enrolled in a full-time undergraduate program, you will continue making regular payments until the child is 21.
My spouse has taken all of our money from our joint accounts. What do I do? You or your attorney should file for divorce immediately (if you haven’t already). Your attorney should file an emergency motion to explain to the judge what has happened, that there is a strong likelihood your spouse will take the money and not return it, and why you need help. The judge can either order the money to be returned or set a date for a hearing where your spouse has to explain his or her actions.
How will the assets be divided in the divorce? The division of assets can be very complicated. There are 18 criteria that are considered in distributing the marital assets. They are:
Length of marriage
Conduct of the parties during the marriage (e.g. adultery)
Age of the parties
Health of the parties
Station of the parties (upper, middle, lower class)
Occupations of the parties
Amount and sources of income
Vocational skills of the parties
Employability of the parties
Estates of the parties – what does each party have to rely on in the future?
Liabilities of the parties
Needs of the parties
Current needs of minor children
Future needs of minor children (e.g. college tuition)
Opportunities available for future acquisition of capital
Opportunities available for future acquisition of income
Contributions in the acquisition, preservation or appreciation in value of your estates
Contributions of Husband and Wife as homemaker
My spouse signed everything for our house and mortgage. Will I have any rights to it? The home will be subject to division regardless of whose name it is in. By being married and not having a pre-nuptial agreement that controls the division of the assets before marriage, you have a “marital" share in the home. Therefore, you will have rights to it, just as your spouse would have rights to any property you may have.
My spouse behaved terribly towards the end of our marriage (e.g. affairs, not coming home at night). How much will this conduct be considered? Conduct is only one of eighteen factors (see above for all eighteen) considered, so conduct alone cannot control the decisions that will be made regarding your assets. Conduct may be considered in terms of improper use of marital assets (e.g. using joint funds for an affair) and if those assets will be returned. Depending on the behavior, it may be taken into consideration to determine who the custodial parent would be of the children or other terms as part of Temporary Orders. Who will pay for the children’s health insurance? Whoever was paying for the insurance will continue to carry it for the children. However, the spouse who provides health insurance will also either receive a credit or pay additional child support based on the cost of health insurance.
Am I entitled to alimony? The question of whether or not someone is entitled to alimony is one that is subject to a judge’s discretion. Whether or not you will receive alimony is generally based on a number of different factors: Length of the marriage;Your need to receive alimony; and your ex-spouse’s ability to pay for alimony.
Before agreeing to any sort of alimony agreement, you should consult with an attorney to make sure your interests are protected on a short-term and long-term basis.
There is a very good book by New York family law attorney Arlene Dubin called Prenups For Those In Love. It is light hearted, an easy read, and it discusses how to broach the subject of prenuptial agreements (in California lawyers and judges call a prenuptial agreement a premarital agreement, but they’re the same thing), what a prenup can and can’t do and when and why it makes sense to have one. Each state has it’s own laws and they vary a bit. This post focuses on prenups for California couples.
What is a prenuptial agreement? As noted in my earlier posta prenuptial agreement is an agreement ( a legal contract) between people who intend to marry. The prenuptial agreement sorts out their financial matters such as property division and financial supportv in advance in case of a future separation, a divorce or death. The agreement supplants the law that otherwise would apply which in California is found in the Family Law Code.
Who needs a prenuptial agreement? Younger couples can use a prenup to protect businesses, professional practices, careers, inheritances and credit. For more information on the steps business owners should take to protect their interest in a business read my blog post by clicking here. Older couples use prenuptial agreements for the reasons above and also to protect the funds they’ve built up for retirement and to protect their assets for their children from prior marriages.
What can you do with a prenup? Family Code Section1612 sets out what can and cannot be done with the agreement. Any financial issue can be dealt with in a premarital agreement.
What can’t you do with a prenup? Issues relating to children, including child support and custody are not permitted. Nor is one allowed to contract about obligations during the marriage, such as household chores, frequency of sexual relations, or penalties for adultery.
Can you “get rid of" your obligation to pay spousal support with a prenup? Probably. California has special provisions regarding spousal support in prenuptial agreements. Provisions regarding spousal support will likely be enforced if person whose receipt of spousal support is limited or waived had independent counsel (was represented by an attorney) before entering into the agreement. But, the law also states provisions regarding spousal support will not be enforced if they are unconscionable at the time of enforcement. This means that it is not possible to determine in advance with absolute certainty whether a spousal support provision will be enforceable when you separate because your financial circumstances can change at over time.
A recent court case reflects the courts’ current trend to uphold prenuptial agreements when the objecting party has competent legal representation and practical access to all relevant information concerning the other person’s finances – whether or not they took advantage of that opportunity. In the case, In Re Marriage of Hill and Dittmer , the court included selected portions of the prenup which was upheld as enforceable. The Hill case provided family law attorneys who draft premarital agreements a useful outline to follow when preparing them.
Prenuptial agreements make sense, but as we all know people aren’t machines. Discussing the subject can be tough. Some people feel that a prenup will set the marriage up for failure or that asking for one indicates a lack of trust. Prenups can and should be fair. Prenups are complicated. They require a family law attorney who knows the relevant laws and has experience drafting them. If you think you need one, you owe it to yourself to find out more about them.
A prenuptial agreement is a document that defines how a couple’s assets and property will be divided if the marriage happens to end in divorce, or in the case of a death of one spouse. These particular agreements are filed before the couple is married as opposed to a post-nuptial agreement, which is essentially the same document; however it is filed while the two people are married. Both of these documents can also address issues such as child support payments, spousal support payments, and child custody, in addition to the division of assets and property.
There are many reasons why someone may want to file a prenuptial agreement. Some reasons are: if your net worth is significantly greater than that of your future spouse’s, a prenuptial agreement can ensure that your partner is marrying you for who you are, rather than your money. Another reason to file would be if your partner has a lot of debt, if your marriage were to end in divorce, you could be responsible for a large portion of your ex-spouse’s debt, or if they file for bankruptcy, creditors could still target you to obtain payments. One more very important reason to file, among others, is if you are remarrying. If you have been married one or more times in the past, your financial situation and concerns are often very different now than in your first or earlier marriages. At this point in your life it is possible you may have children, support obligations to children or previous spouses, and a home or other significant assets. In this case with a prenuptial agreement, when you pass away, you can prevent your dependents, past or present, from being cut off.
Oftentimes there are major objections to prenuptial agreements; sometimes these agreements can be difficult or sensitive topics. One of the most common miss-associations with this kind of agreement is that the two parties don’t trust each other. This is not always true; a prenuptial agreement can only be created in a trusting relationship where both parties are concerned about the wellbeing of the other person, as well as themselves. Another objection is that one party believes it is unnecessary because they will never get divorced. Unfortunately this is not wise counsel; almost 49 percent of marriages in the United States end up in divorce according to Divorce Rate 2011. In addition, prenuptial agreements are not limited to directing the assets in case of divorce; they also define what will happen to the assets in the case of death.
Prenuptial agreements are complicated documents, and especially if this is your first marriage, there may be many conditions you would like covered in the agreement, but do not know the proper way to ensure that they comprehensively cover the issue. In the case that a marriage ends in divorce, and one member wishes to contest the agreement, loopholes can be found in prenuptial agreements, given the right circumstance, an experienced attorney and if it was prepared by an inexperienced person.
SELECTING A GOOD DIVORCE LAWYER AND FAMILY LAW ATTORNEY
Going through any type of legal proceeding can be a harrowing experience, especially when the issues are of a personal nature. So, amidst all the emotions and confusion, how do you find a good family law attorney to meet your needs and guide you through the arduous legal process?
If there is any piece of advice you take away from this primer let it be this: hire an attorney that you can not only trust, but also a lawyer that makes you feel comfortable.
ALIGNING YOUR VALUES WITH THAT OF YOUR ATTORNEY
Take some time to gather your thoughts and clearly think about how you want your family law case to proceed. Think about the following and note your answers:
Do I want to fight (litigate) my case from beginning to end? Choosing this route can be very costly, for both you and the other party. If you have children, bear in mind that you may be tapping into their financial future as well. If you are at a stage in life where retirement is closing in, do you want to spend your retirement money on attorney fees?
Do I want to hire an attorney whose main goal is to fight or negotiate first? Not all lawyers are alike. Some take the stance that courtroom litigation is the only option. Other lawyers negotiate first, and then seek judicial remedies second. If you hire an attorney who only wants to deal with the issues in the courtroom, this may not benefit you if cost is an issue. The more time an attorney spends in court, the higher your attorney bill will be.
If children are involved, do I want the lawyer to put a strain on my family or my child’s best interest first? The answer to this question goes hand in hand with the type of attorney you hire. Family Law is a very emotional area of the law, especially when children are involved. Some attorneys seize on the emotional vulnerability of clients and entice them to battle for their children and fight till the end. However, how will the children benefit if both parents are embroiled in a nasty battle. Sometimes, a courtroom dispute is inevitable, but a good attorney will assess the law, your facts, and outline to you a plan of action that puts the children’s interests first.
Do I want the attorney to tell me the truth or just tell me what I want to hear? Believe it or not, many people shop around for attorneys until one gives them a “yes" answer to their issue, whether it’s feasible or not. A good attorney will not tell you what you want to hear, that’s just a sales pitch to get you in the door, spend your attorney fees, and then use the discretionary court ruling as a scapegoat. A good attorney will explain to you why the remedy you are seeking is or isn’t feasible, how the law applies to your case, the discretion the court has in making a ruling, and the likelihood of succeeding. A good attorney will never guarantee you a win, because in the end, the judge has the final say, and no one knows how he or she will rule.
EXPERIENCE, SKILLS, AND KNOWLEDGE TO LOOK FOR
Do I want an attorney whose emphasis is family law or an attorney who does a little of everything? There are many areas of the law; therefore there are lawyers for all types of legal issues. Ideally, it is best to hire an attorney who focuses his or her legal practice in family law only. Family law is a small legal community, so it is good to have an attorney who is apprised with other family law attorneys and judges, understand and know how certain judges may rule and what they look for when hearing a case. Having a lawyer well versed in the family law courts and community makes him or her adept in determining a legal strategy and style to your particular case.
Problem solver not a problem creator. In looking for your ideal attorney, you may want to know whether he/she is adept at compromise and negotiation, but yet comfortable arguing in court as well. You want a lawyer who is willing to solve problems, but yet foresee possible issues. You do not want an attorney who creates problems by seeking vindictive measures, thus increasing your bill, and your potential liability.
Ask, Ask, Ask!! During your initial meeting, find out how many divorce cases your attorney has handled. Some divorce cases are more complex than others, therefore if applicable, ask the attorney whether he/she has experience handling child custody, child support, property division, prenuptial agreements, etcetera. Do not be shy. You are making an investment and you should be as well informed as possible before signing a retainer agreement.
Who will work on my case? When you have your first meeting with a family law office, depending on the size and number of lawyers, you may only meet with the managing partner or lead attorney. You may want to ask the attorney you meet with whether she/he will personally handle the case or if your case will be handed over to an associate. If your case is handed to someone other than the attorney you meet with, you may want to ask more questions about the person who will personally handle your file.
COST: LEGAL FEES, COURT FEES, AND ETCETERA
Questions to ask regarding legal costs and attorney fees:
a. Initial retainer?
b. Hourly rate of all the attorneys working on your case?
c. Frequency of replenishing the retainer?
d. What miscellaneous costs are covered? Or how are costs billed?
e. Does the attorney bill at an hourly rate or at a flat rate?
f. If the attorney bills at an hourly rate, what billing increment does the attorney follow?
g. How does the attorney bill correspondence, in other words, phone calls, e-mails, or mail?
Initial consultation cost? Some lawyers offer a complimentary consultation. This is done so the potential client and attorney can get to know each other and determine whether they can work well together.
Types of legal representation offered and their respective retainer fees? Some family law offices offer different types of representation for their clients. An attorney can offer full legal representation, where they handle every aspect of the case. There is also limited scope representation. Limited scope occurs when you hire the attorney to complete a specific task. The attorney may help you fill out and draft legal documents or offer you advice and guidance, or represent and appear on your behalf at a one-time hearing. It depends on what you need and a fine balance between the client’s available financial resources. The depth of this representation varies from attorney to attorney. Ask the attorney you interview what types of representation they offer, what each representation covers, and what retainer is required for each representation.
OTHER THINGS TO CONSIDER AND/OR ASK
Language. If language is an issue, make sure you hire an attorney that speaks your language fluently and is able to relay information accurately and comfortably in your native tongue.
Location. Many attorneys travel to different county courthouses for their clients. However, it is best to hire an attorney who either has an office in the county where your case is located or is familiar with the judges in that county. Of course, if you hire a local attorney, then you may save on travel fees an attorney will incur. So keep distance in mind when looking for an attorney. Also, if you do hire a non-local attorney, ask him/her how travel costs are billed.
Accessibility. Did the attorney return your phone call or e-mail within a reasonable amount of time? Keep in mind that the office is not the only place an attorney may be. Many attorneys are also in court during the week and that may take up a day or half a day or more, depending on the case he/she is handling. It is good practice to be able to schedule an appointment with the lawyer easily, if not, then perhaps they may be equally as inaccessible once you hire them. Just food for thought.
Demeanor. When you spoke to the attorney, what was he/she like? Were they pleasant to speak with? Helpful? Knowledgeable?
Gender of the attorney. Family law can be very personal. You have to feel comfortable discussing every aspect of your case with the attorney. That is why some people feel more comfortable talking with someone of a particular gender. If the law firm you interview has both genders, consider interviewing with both to determine whether either may be a fit for you.
California Bar License. Make sure the attorney is licensed to practice law in California. You can go to www.calbar.org to look up the attorney, whether they are licensed to practice law, and whether they have any disciplinary actions against them.
What happens if the attorney declines my case? First and foremost, do not take the decline personally. Attorneys can get very busy and some have a limit as to how many cases they take on. Consider the decline as a positive: you wouldn’t want an attorney taking on more cases than they can handle and thus sacrifice the integrity and quality of their representation.
Are you completely comfortable with your Trust? Do you understand your estate plan in its entirety? It is important (and very beneficial) to realize that there are many elements involved in properly maintaining one's own estate plan, and these items should be reviewed often with an attorney.
The Holiday season is over and for some is was a wonderful time of year. For others, it may have been a touch time of year. If you are one of those who had a tough holiday season and are thinking about speaking with an attorney about the divorce process, here is what to expect from an initial cons
Prenuptial agreements may be the most common type of spousal agreement, but spouses can create marital agreements after marriage as well. These are known as postnuptial agreements. Spouses in Arizona sometimes use postnuptial agreements to resolve financial disputes during the marriage, and these agreements sometimes help spouses prevent divorce or separation.
A properly drafted postnuptial agreement can separate spouses’ income and create clear financial boundaries by designating certain assets as separate property. As with prenuptial agreements, however, courts can refuse to enforce postnuptial agreements for a number of reasons. Spouses should always consult with an experienced AZ prenuptial postnuptial agreement attorney when considering such an agreement to ensure it will be valid and enforceable.
When entering into a marriage, a prenuptial agreement may not seem like a romantic idea, but it many cases, particularly with second marriages, it can offer asset protection and a valuable estate planning tool. . . How?
Children of a first marriage may worry about the distribution of family wealth in the event of a second marriage. A prenuptial agreement can ease these fears by setting forth the details of property distribution in the event of either divorce or death. Estate Litigation
Prenuptial agreements can eliminate litigation costs associated with contesting the will of a deceased spouse. They can be used to ease the divorce process and to make sure that the property will be distributed as the couple's wishes. Individuals who have experienced a lengthy, messy divorce realize that a considerable amount of wealth can be lost during a legal battle, including legal fees and the fees charged by appraisers and expert witnesses. Family Assets
Family members may want to keep the ownership of a family business, heirlooms, or other family assets within the family and to protect them from the claims of an unintended heir, such as a descendant’s spouse. A prenuptial agreement can be written to provide that such assets are immune from claims by the new spouse since most states include a provision in their probate laws preventing one spouse from completely disinheriting the surviving spouse.
Protecting Business Assets
Owners of a closely held corporation or a partnership may want to prevent a spouse from obtaining voting rights or claims against the business. This can be accomplished by entering into an agreement that each member executes a prenuptial agreement that provides for the prospective spouse to waive all rights to the owner-spouse's interest in the business in the event of divorce or death. Protection from Creditors
If one spouse incurs substantial debts before marriage, there may be a desire to protect the assets of the new spouse from the creditors of the debtor spouse. This can be accomplished in a prenuptial agreement by having the debtor spouse waive any claims to the new spouse's assets, except in the event of divorce or death.
Work with an estate planning attorney to find the tools that meet your family’s specific needs and goals.
We at the Mendel Law Firm can help you uncover your options and choose the strategy that is best for you.