« What To Expect...And...How To Beat Your Spouse In Child Custody Mediation! |
Main
| DC Madame Hands Over Her Lengthy Client List »
Webster’s dictionary defines divorce as, “to end marriage with one’s spouse and to make or keep separate”. Now I am pretty sure that all of the people who have gone through a divorce, or are currently enduring one, wish that the process was as easy as this simply put definition. The truth is that divorce is hard. I have seen clients become so absorbed with the process and misery of the situation, that if left to their own decisions, they would make hasty and faulty choices which would be extremely detrimental to their financial well being. Commonly, one of those choices is pertaining towards the division of the marital home and shared real estate. Although the divorce itself may be complicated, there are generally only two alternatives to the dilemma of splitting a home: one is to refinance the property and the other is to sell it. Prior to making that decision there are certain facts that one should know about before moving forward. The facts are as follows: Fact: Understand that a “Quit Claim Deed” alone only applies towards the title of the property and simply removes someone from title and not the loan obligation. Both parties are still equally liable for the loan in the event of a future foreclosure or non-payment on the note. Both individuals are still equally responsible in repayment of the existing mortgage. Fact: By refinancing, the vacating party will be removed from the current mortgage obligation and title all at the same time. Refinancing is the best way to accomplish the goal of clear ownership as well as clear detachment. Fact: Refinancing enables the individual retaining ownership to pay off the vacating party with the existing equity in the home, providing there is enough equity, and benefit from the tax deductibility of the mortgage. This eliminates having to tap into established retirement plans or other asset accounts and pay penalties associated with early withdrawal. Fact: Sometimes due to the splitting of the household income, or the lack of equity within the home, refinancing is not an option. The only option may be to sell the property at that point. Keep in mind that there may be capital gain issues to address and you should seek the advice of your tax professional and/or a certified mortgage planner in this instance.
Keeping in mind the above mentioned facts, separation between two parties of one property can be done correctly and without the worry of any future issues arising. Should there be a situation with having to divide the value of multiple owned properties, then including the aid of both a tax professional and a certified mortgage planner is a must. They will be able to work together to give the clearest picture possible of what the divided assets are valued at, and provide a detailed explanation of any monies needed for payment and recapture of depreciation, capital gains, realtor sales commissions and more. This will allow clarity during the final negotiations and decisions of the divorce and minimize the loss of hard earned invested equity for both parties.
Scott Yonehiro is a certified mortgage planning specialist with First Security Lending in Burbank, CA. As a recognized professional in the field, Scott is frequently asked to speak at mortgage events and seminars. He has also published articles in several national industry magazines such as Mortgage Originator, Broker/Banker, and Broker/Agent Magazine. First Security Lending has ten offices throughout Southern California, and was recently voted “Best Mortgage Company” by the Los Angeles Times’ Burbank Leader for the 6th year in a row. Scott can be reached at 818.333.1835 or via email at Scott@firstsecuritylending.com
For more information regarding divorce go to http://www.pasadenadivorce.com
« The "Non-Divorce" Divorce |
Main
| "Separation Of The Home" Know The Facts About Dividing Your Real Estate Assets »
First of all; if you are actually reading this to learn how to “beat your spouse” in child custody mediation, then you don’t know what to expect. In California, whenever there is a child custody dispute before the Court, the parties must first attend a mediation session in an attempt to informally resolve their dispute and develop a parenting plan. Mediation is an informal process by which both parties meet with a mediator that tries to help the parties reach an agreement concerning their custody dispute. Good Reasons to Mediate
1. Mediation is required when there is any custody dispute 2. Mediation can help you make a parenting plan that's in the best interest of your children.
3. Mediation can help you make a parenting plan that lets your children spend time with both parents.
4. Mediation can help you learn ways to deal with anger or resentment. 5. Mediation can save you attorney’s fees Both parties can save the cost of an attorney court appearance by agreeing to a reasonable custody and visitation schedule
Bad Reasons to Mediate
1. To explain to the mediator that your wife/husband is a jerk The focus of a mediation is what is best for the child and that should be your focus during the mediation This might signal to the mediator that the true motivation of this dispute is to punish/retaliate against your spouse
2. To seek marital counseling Who Are the Mediators
A mediator:
Also has at least 2 years of experience working in mental health;
Knows how the family court system works; and
May also have information about community services that might be helpful to you.
What Mediators do
A mediator meets with both parents and helps them try to agree on a plan that is best for their child. The mediator's job is to:
Listen to both of you.
Be neutral.
Help you look at different options.
Help you decide when the child will be with each parent.
Help you decide how future decisions about your child will be made.
Help you consider how best to protect your child's safety and welfare.
Support you.
Make recommendations to the judge. In some counties, if you and the other parent can't agree on a parenting plan through mediation, the mediator is asked to give the court a written recommendation. It will contain the mediator's opinion about what parenting arrangement will be in your child's best interest.
The Parenting Plan
The ultimate goal of mediation is to come up with a parenting plan that is agreed to by both parents and in the best interests of the child. Your parenting plan (also called a "custody and visitation agreement") is a legal document. It is also very personalized. You need to make a plan that is in the best interest of your child.
Some suggestions:
Consider your child's age, personality, experiences, and ability. Every child is different. Adjust your plan to your child, NOT your child to your plan. Give your child regular, consistent times with each of you for day-to-day care, overnights, activities, schoolwork, vacations, and holidays. Use a calendar to help you.
Give your plan enough detail so it's easy to understand and enforce. Give your child a sense of security and a reliable routine.
Guidelines
Every mediator may have a different approach to the conference. However, you will be best served by following a few guidelines. Be polite, just like you would be at work.
Stay on the subject. Focus on doing what is best for your child.
Control your emotions, just like you would do at work.
Be clear and specific when you talk to the other parent. Write things down and keep businesslike records of important agreements.
Keep your promises. Your children need to be able to trust and rely on you. This is very important right now.
Watch the words you use when you talk about divorce.
Perspective
It would be foolish to think that all conflicts can be settled through mediation. Mediation requires agreement between both sides. And in situations where one or both parties have unrealistic expectations, that agreement may well be impossible. In these instances, parties should bring their case before the court, and that is why the option of going to trial is available.
However, don’t let mediation fail because you are the side with unreasonable expectations. By this point you should have already consulted with an attorney that has objectively explained how the law applies to your particular case. If the mediator proposes an arrangement that is in line with your attorney’s expectations, you should strongly consider it. By doing so you can save the time and expense of bringing the issue before the court. Additionally, these mediators are knowledgeable in family law and will probably offer something that is close to what the court would decide anyway. Written By Antonio J. Fricano
« "Well The Marriage Wasn't Even Valid Your Honor" And Other Excuses By Mr. Blowhard To Avoid Obligations Arising From A Void Marriage |
Main
| What To Expect...And...How To Beat Your Spouse In Child Custody Mediation! »
This past week, typically mindless commentary during a popular morning talk show caught my attention. All of a sudden amidst my morning routine, I heard words and phrases like “solution” and “cost-effective” and “best interests of the children” and… “divorce.” The host claimed there is a new phenomenon in which a married couple remains together, in almost every sense of the word, despite the fact that both desire a divorce. He referred to it as the “non-divorce” divorce. Supposedly, this trend is gaining popularity as the solution to a failed marriage.
The “non-divorce” divorce is a mutual verbal agreement between two married individuals who want to keep their marriage in tact, but fully accept that the relationship is over. The goal is to feel divorced while continuing to live together and not get a divorce. In other words, the couple does not want to go through the divorce process, but they don’t want to reconcile either. They don’t want to hire attorneys, file papers, argue over custody or support, lessen the time their children see either of them, or loose one-half of their financial assets. So, they decide to remain as if they are married. They live in the same family home as roommates, participate in their children’s lives as they had before they wanted a divorce, and maintain/preserve the marital estate.
Of course, most couples who attempt the “non-divorce” divorce are those who have children and/or those that have been married a considerable period of time and do not feel it is beneficial to disrupt the community on an emotional or financial level. Or at least they feel that the costs of a divorce clearly overshadow the costs of remaining together—even when there is no love left.
I cannot speak to the negative psychological effects that could result from this “solution.” However, I can certainly speak to the negative legal effects and problems that could arise.
First, if you never decide to separate in family law terms (that is, one party making a conscious decision that the marriage is irrevocably over and communicating the intention to end the marriage), there is never a date of separation. The “date of separation” is important in family law because it marks the end of the community. From that date there is no longer a collection of community assets or community debts—instead, a spouse’s separate property and debts begin to accumulate, as they did before marriage. Your spouse will continue to be entitled to one-half of all of your property and you will be liable for one-half of your spouse’s debt. Therefore, if you are both managing your finances separately without full disclosure and mutual agreement, you could be adversely affected. What’s more, your spouse will continue to be entitled to all benefits they were when you were happily married, including possible rights to the family home, life insurance, devises/gifts from a will or trust, and health insurance, to name a few.
The determination of a long term marriage (which can yield indefinite spousal support) is also associated with the date of separation. For example, if your marriage is eight years in duration, and you attempt a non-divorce for 3 years, followed by a real dissolution, the court’s characterization of the marriage as long term will probably be contested and require substantial litigation.
Living as financially independent roommates could also present a problem with expenses. Unless you agree to distribute both of your respective incomes in a way that benefits the community, one spouse may not have enough to support his or her lifestyle. Regardless, if you are still residing in the family home with your spouse, the courts will not grant any spousal or child support. Since you have avoided going to the courts entirely, a support award is virtually impossible anyway.)
In the same way, no child custody or visitation orders will ever be established. This means that after attempting the “non-divorce” divorce for a year or so, and after resorting to the real thing, a parent may have a hard time making a case that he or she should be the primary custodian. This is because even if one parent is the primary caregiver during the non-divorce, this fact will be hard to establish if both parents were living in the same home all the while.
For the aforementioned reasons, the non-divorce presents significant legal problems. Spouses who try this “solution” cannot be guaranteed that one spouse will not attempt to obtain a legal divorce down the road. If this occurs, a spouse will not be afforded some of the protections that a traditional divorce provides. In order to ensure that you make an educated decision, you should speak to an attorney who specializes in family law matters. He or she can point you to two potential solutions—a post-nuptial agreement or a legal separation. Both options will cost some amount of fees and time in mundane paperwork, but will allow you to live whatever lifestyle you want with protection and peace of mind. Written By Kayla Horacek
« Tightening Down On Domestic Violence - New Laws |
Main
| The "Non-Divorce" Divorce »
There is always that person that thinks they know some trick that will allow them to escape accountability. You know who I mean of course. We all know this person. He is the slick talking blowhard. We will call him Mr. Blowhard for the purposes of this article. Imagine Mr. Blowhard having to go through a divorce in which he will have to give half, of “his” hard earned property, to his wife. Mr. Blowhard will go to any length to avoid such a result. It makes for an interesting case when Mr. Blowhard enters the divorce process. His combination of limited legal knowledge and willingness to misstate the facts can turn a divorce proceeding into quite a spectacle. This article shall focus on the circumstances of a void marriage and the likely thoughts that will cross his mind. Some husbands, with knowledge that the marriage is void, think they have some sort of a prenuptial agreement that will allow them to escape spousal support, attorney’s fees and property division when things turn bad. As an example, let’s use a situation in which the marriage is void because of a pre-existing foreign marriage or a foreign divorce that wasn’t quite completed. One fine day, Mr. Blowhard and his girlfriend decide to get married in the United States. The girlfriend has not finalized her divorce in another country. Mr. Blowhard knows of the prior marriage or incomplete divorce, and assures his soon-to-be wife that everything will be alright. “This marriage is from a foreign country,” he says. “The government shall never know.” All the while Mr. Blowhard is snickering to himself because he knows this marriage is null and void and he will never have to pay spousal support or be faced with other obligations should things go awry. Well, well, Mr. Blowhard, believe it or not, you are not the first ingenious legal scholar to concoct such a scheme. In fact, the California Courts have dealt with this issue as far back as 1982, in the Recknor decision. The Second District Court of Appeal held in this case that a husband that knows of a prior marriage, that nullifies the current marriage and that still holds himself out to be married, is estopped from denying the invalidity of the current marriage. Suddenly a light goes on in Mr. Blowhard’s head. “Hold on,” says Mr. Blowhard. “I never even knew she was married.” Again, Mr. Blowhard has used his limited legal knowledge incorrectly. If Mr. Blowhard is able to show that he never knew of the prior marriage he still must divide his “quasi-marital” property equally. On this point, I’ll cut Mr. Blowhard a break because the treatises even state that the answer is not clearly defined by the California courts. If Mr. Blowhard were to do his own research he would see that the California Courts have done everything they can to show that Mr. Blowhard still has to divide his community interest equally. If Mr. Blowhard proves that he had no knowledge of the prior existing marriage, he is a putative spouse. California Family Code § 2251 states that if one of the parties had not know of the invalidity of the marriage then that party is a putative spouse and the property acquired during the marriage, (quasi-marital property), shall be divided in accordance with Fam. C. § 2500. When you read §2500 it states that all property must be divided equally. Feeling a bit disheartened, Mr. Blowhard? Let me put it to rest for you. In Marvin, the California Supreme Court considered the issue of the bad-faith spouse. The Court stated that even in cases of a bad-faith spouse, the Court should still award the “guilty” spouse half of the quasi-marital property. After all, if we were to define an “innocent” spouse as one that believed the marriage as being valid, then awarding the innocent spouse ½ of the property is not frustrating their expectations. The Courts have been dealing with Mr. Blowhard types since the early days of English common law. For the most part, all the schemes have been tried and the Courts have developed remedies for them. This dynamic process of trial and error is what makes our legal system so special. Written By Antonio J. Fricano
« Sacramento Radio Contest Results In Death |
Main
| "Well The Marriage Wasn't Even Valid Your Honor" And Other Excuses By Mr. Blowhard To Avoid Obligations Arising From A Void Marriage »
Without a doubt, domestic violence remains one of the most popular subjects for our politicians, as evidenced by the continuous flow of new laws related to this topic every year. The following new laws, which became effective at the beginning of this year, demonstrate the California legislatures’ practice of leaving no stone unturned in their effort to quash domestic violence: 1) 24 hour relinquish of firearms with restraining order The amount of time that a person served with a restraining order has to turn in firearms to the police has been shortened. Now the subject must relinquish the firearm within 24 hours of service, regardless of his or her presence at the hearing. The subject must also file a “surrender receipt” within 48 hours (rather than 72 hours) after receiving the order. (California Code of Civil Procedure, Section 527.9(b).) Comment: The problem with this law is that there is usually no supervision by the police of the offender to turn in the firearms immediately after a domestic violence incident. Once the offender is booked into jail, the police lose sight of him. Consequently, a person who bails out and is crazy enough to shoot another person will not be deterred by this section. 2) Substitute mailing address for victims of domestic violence Under current law domestic violence and stalking victims may use an address designated by the secretary of state as a substitute mailing address and for service of process, in order to allow state and local agencies to avoid disclosing the victims’ whereabouts or changed names when responding to requests for public records. This law was due to expire on January 1, 2008, but new legislation extends the date for expiration until January 1, 2013. (California Government Code, Section 6211.) Comment: This law will probably have no impact on cases where the perpetrator and victim have children together, and the perpetrator has been awarded visitation rights, since keeping the children’s address secret is almost impossible. 3) Reimbursement for victims of domestic violence Prior to this year the law allowed for reimbursement up to $1,000 in security improvements to the victim’s residence (if the crime occurred there) that is necessary for the victim’s safety or well-being. This law has been modified to also allow home-security reimbursement for someone who lived with the victim at the residence where the crime took place, if the victim has died. In addition, this code as amended authorizes reimbursement for necessary relocation expenses for only one victim per crime (rather than once to any victim); however, that victim may receive reimbursement for more than one relocation, as long as it’s necessary and the total relocation reimbursement for the crime doesn’t exceed the $2,000 limit. (California Government Code, Section 13957(a)(8).) A new subsection was also added to this code which authorizes reimbursement for certain clean-up expenses after a crime (not just a crime that resulted in the victim’s death). (California Government Code, Section 13957(a)(10).) Finally, as a pilot program operative until January 1, 2010, an amendment to the law adds a new authorization to reimburse child-care expenses that a crime victim or a derivative victim had to incur after the victim’s injury or death, if the victim was the children’s primary caretaker. (California Government Code, Section 13957(a)(11).) Comment: Providing the victim of a domestic violence crime with financial aid is very considerate of the hardship that victims of domestic violence endure as a result of these crimes. Unfortunately, victims are not likely to receive the money when they need it most, i.e., immediately after the incident, since collecting from the perpetrator is going to be a problem in most cases. On the other hand, this law can be viewed as an added punishment to those who commit domestic violence. 4) Employers authorized to seek protective orders on behalf of employee Employers are now authorized to seek restraining orders (at the court’s discretion) on behalf of the other employees, in addition to the one who has experienced the violence or threats. (California Code of Civil Procedure, Section 527.8.) The amendment to our law also adds that there will not be a fee for a subpoena filed in connection with a petition under the statute or for service of process of a TRO or an injunction that is based on stalking or a credible threat of violence. (California Code of Civil Procedure, Section 527.8 (p).) Comment: This new law seems to be designed to protect the workplace from domestic violence. Employers are now able to seek domestic violence restraining orders rather than civil harassment restraining orders, which are more difficult to obtain. These hearings may be interesting, however, since domestic violence restraining orders typically involve family law issues (e.g., child custody, child support, and spousal support). Would you want your boss getting involved or being present during a hearing where your personal matters are being discussed in open court? ANALYSIS The goal of these new laws is pretty obvious. We hope that they will tighten down on domestic violence by affording victims more protection and making offenders pay a greater price for their crimes. It is also our hope that these new laws will have a meaningful impact on family relationships and decrease the number of incidents where children are witnesses and victims of domestic violenc On the other hand, as these new laws become increasingly tougher on the accused it is more and more important that we train our professionals who deal with these cases (i.e., the police, prosecutors, and judges), to exercise common sense and caution before turning the screws. After all, there will always be a certain percentage of cases where false allegations are made or where the incident warrants discretionary application of the law. Written by Donald P. Schweitzer
|
