Categories
Uncategorized

Choosing a Divorce Mediator: How to Make the Right Decision

Going through a divorce can be tough from the time you make the decision to the time you must decide how you want to proceed. Understanding the process, what your options are and how mediation can make the process easier, more productive, less stressful and less expensive are all important factors for you to understand when choosing someone who can help guide you through the divorce.

By following these helpful tips, you will empower yourself to navigate these challenges and set the stage for a positive outcome to a very difficult situation.

  1. Identify Your Goals and Needs

Before embarking on your search for a divorce mediator, take the time to reflect on your overall goals – both short and long term and what outcome you would like at the end of the divorce. This helps as a starting point for

You to personally understand what will motivate through the divorce process as well as help you tune in to a divorce mediator who is best able to serve you in this process.

  1. Seek Recommendations and Conduct Research

Start your search for a divorce mediator by seeking recommendations from trusted sources such as friends, family, divorce attorneys, family therapists, or even someone you know who used divorce mediation and had a positive outcome. Once you have a list of potential mediators you can move on to the process of checking out the various divorce mediators that have been recommended to you.

  1. Assess Mediators Credentials and Experience

When evaluating the mediators on your list, consider their credentials and experience in their field and how that aligns with what you need. Look for mediators who have undergone specialized training in divorce mediation and who possess the appropriate certifications and state registrations that allow them to handle your divorce in a productive and efficient manner. Review the details of their web site, what services they offer, what information do they provide and what fees they may charge. All that plays a role in your decision for the best divorce mediator for the two of you.

  1. Schedule A Consultation

Once you have narrowed down your list of potential divorce mediators, schedule consultations with them and don’t rule out any mediators that charge for a consultation. Many mediators who are very successful will have a consultation fee that they credit back to you against their services should decide to hire them. During these consultations try and limit a lot of details about your case (unless the mediator asks) and use this time to get a feel for their mediation style and how they respond to your questions and or concerns. In a consultation a good mediator will have excellent listening skills and will ask questions to help them understand what you need and what you are looking for. Discuss their approach to the mediation process and how they conduct a mediation and what tools and resources they provide to make the divorce process easier for you.

  1. Evaluate Compatibility and Trust

Divorce mediation requires regular communication and collaboration with your mediator. Assess the mediator’s ability and accessibility to ensure they can accommodate your schedule and timeline. In addition, inquire as to their policy regarding scheduling session and / or canceling session as flexibility may be a crucial factor in your decision.

  1. Discuss Fees and Payment Structure

While cost should not be the sole determining factor, it is essential to have a clear understanding of the mediator’s fees and payment structure. Inquire about their hourly rates, any additional charges for administrative tasks, and their policy regarding cancellation or rescheduling. Balancing cost considerations with the mediator’s qualifications and experience will help you make an informed decision.

Finding the Perfect Fit

And there you have it! You’re now equipped with the knowledge and insights to choose a divorce mediator who will be able to help you both through this challenging time. Remember, this is a part of your personal journey and it will have its ups and downs, but you are stronger than you realize and with the help of the right mediator, the entire divorce process can be a good experience under hard circumstances. By carefully considering the mediator’s expertise, communication skills, and approach, you’re ensuring that your voice will be heard and respected throughout the process.

Divorce might feel like the end of a chapter, but, it’s the beginning of a new one. It’s an opportunity to rediscover yourself, redefine your priorities, and create a life that brings you joy and fulfillment. With the right mediator guiding you, you can navigate the complexities of divorce with grace and resilience.

During this process, be kind to yourself. Surround yourself with loved ones who uplift and support you. Remember that it’s okay to feel a whirlwind of emotions, but don’t let them define you. Embrace self-care practices that nourish your mind, body, and soul. Take this time to dream, set new goals, and believe in your own strength to rebuild a life that truly reflects who you are.

Above all, know that you’re not alone. Countless individuals have walked this path and come out stronger on the other side. You have within you the resilience and courage to face the challenges that lie ahead. Embrace this journey as an opportunity for growth, personal empowerment, and a fresh start.

So, take a deep breath, put one foot in front of the other, and remember that brighter days are ahead. The right divorce mediator will be your guiding light, helping you navigate the stormy seas and guiding you toward a place of peace and resolution. You have the power to create a future filled with happiness, love, and endless possibilities. Trust yourself, trust the process, and trust that you are deserving of a life that brings you true joy and fulfillment. Wishing you strength, resilience, and a future filled with abundant happiness.

Categories
Uncategorized

Navigating Divorce: Understanding the Role of Using a Divorce Mediator instead of a Lawyer

Navigating Divorce: Understanding the Role of Using a Divorce Mediator instead of a Lawyer

Deciding to Divorce is a both challenging and emotionally draining process that can often leave couples feeling overwhelmed. Where do you even start and how do you decide what is best for you and your divorcing spouse. Knowing what the different choices you have in the divorce process and subsequently what it takes to navigate a divorce will help you have a much better experience even though it will be challenging at times. So, to know where to begin and what to do next we need to first explore the roles of divorce mediators and lawyers in the divorce process. What are your options in divorce? Do you need one, both or some combination? Follow along as we review your options.

The two most common professionals that people like you speak to you when they are looking into the divorce process are divorce mediators and lawyers. What is the difference between a divorce mediator and a lawyer, and why you might consider choosing a divorce mediator over a lawyer when contemplating a divorce.

The Role of a Divorce Mediator

A divorce mediator is a neutral third party who assists divorcing couples in reaching mutually acceptable agreements. Unlike lawyers, mediators do not advocate for either spouse but work collaboratively to facilitate open communication and guide the couple through the negotiation process of divorce. A divorce mediator will help you with finances, support, division of assets and parenting plans and will work with both of you to structure a divorce and a path forward that is in the best interest of everyone involved.

The benefit of using a divorce mediator:

  • Helps to Facilitate Communication: Divorce mediators excel in creating a safe and respectful environment for open dialogue between both parties. They help couples express their needs, concerns, and priorities effectively, fostering a better understanding and increasing the chances of reaching a fair agreement. A skilled divorce mediator can guide you both to an outcome that resolves your concerns and issues and leads to a future that each of you can live with.
  • Cost-Effective: Divorce Mediation is less expensive than going to court with an attorney and hoping a judge has the time to hear and understand your “situation”. By choosing mediation, you can save on attorney fees and court costs, making it an attractive option for couples seeking a more affordable resolution. In addition, look or a divorce mediator who has the appropriate license and experience to do all the court required paperwork for a divorce. This one stop shopping can make the process easier, more efficient and much cheaper without sacrificing the needs of you and your family.
  • Flexible and Efficient: Divorce Mediation allows couples to divorce and make decisions at their own pace and schedule, allowing for you to have a sense of control over the process. Compare that to lengthy court battles, and a law process that can drag a divorce out for years, mediation can be completed more quickly, allowing couples to move forward with their lives sooner.
  • Complex Issues: If your divorce involves complicated matters such as child custody disputes, significant assets, or spousal support, a mediator can provide the expertise needed to navigate these complexities and help you both come to a mutually satisfying agreement without having your life or these decisions dictated to you by a judge.

The Role of a Divorce Lawyer

A divorce lawyer is a legal professional who represents and advocates for their client’s best interests in the divorce process. Lawyers are well-versed in family law and can provide legal advice and guidance throughout the proceedings.

Here are some instances where hiring a divorce lawyer might be preferable:

  • Adversarial Situations: While most divorces have some sort of adversarial component, in the case where there is a high level of conflict or mistrust between spouses, a lawyer can act as a buffer and advocate on your behalf. A good lawyer will represent your interests and negotiate with the other party, ensuring your voice is heard and your rights are protected.
  • Drugs, Arrests, Spousal or Child Abuse: In cases where there is a proven history (legal records, police calls, etc.) that involve drugs, crimes or abuse, a lawyer can use the legal system to help protect you and your children.

Choosing the Right Option for You

The decision between a choosing divorce mediator and a lawyer depends on several factors unique to your situation.

Consider the following when making your choice:

  • Level of Conflict: If you and your spouse are willing to work together cooperatively, mediation is a viable option. However, if your divorce abuse and a complete lack of trust, seeking the guidance of a lawyer may be more appropriate.
  • Complexity of Issues: If your divorce involves complex financial arrangements, substantial assets, or child custody matters, using a mediator can give you the flexibility to resolve these interests in a fair and efficient way that you both will have control over.
  • Budget: Mediation is generally much more cost-effective than hiring an attorney, making it an attractive option for couples looking to minimize expenses, especially if you find a mediator that not only mediates a divorce but can also facilitate the preparation and filing of all the forms and documents required by law.

Choosing the Right Path: Divorce Mediation or Legal Representation

Divorce mediators and lawyers have different roles in the divorce process and in some cases, couples can decide to work with both for their divorce. Ultimately the goal of these professionals is to help divorcing couples achieve a fair and mutually agreeable settlement. Mediation offers a collaborative and cost-effective approach, while lawyers provide extra legal expertise and representation in circumstances where mediation is just not possible. When you think about your own situation and you are honest about your wants and your specific needs, what is the level of conflict, and complexity of your case and whether there is a history of documented abuse, you can use all this information to determine whether a divorce mediator or a lawyer is the best fit for your unique situation. Remember, seeking professional guidance for your divorce can help you navigate the divorce process more smoothly, allowing you to move forward with your life.

Categories
Uncategorized

Contested & Uncontested Divorce In California and Other Defenitions

Mediator: A mediator is a neutral third party who is trained in the process of mediation and brings their skills, knowledge and experience to help two parties come to an agreement that will settle their dispute without a lengthy and costly legal battle. A mediator does not impose a decision on either of the parties, but guides each party to make amiable, middle ground decisions that result in a settlement agreement that both parties can live with.

Divorce Mediation: is a voluntary, confidential process in which a mediator works with the separating couple to reach a solution to the issues they have agreed to talk about. These issues can include division of property, debts, spousal support, children, pets, and family business. It is sometimes referred to as Alternate Dispute Resolution since the use of mediation is an alternative to expensive and adversarial divorce litigation.

The Mediation Process: In mediation two spouses meet face to face to talk about the things that haven’t been resolved in the divorce process with a mediator who works with them to find realistic solutions. Many mediators will also address the items that have been decided – not to change them but to add them to the list of items that will go into the final divorce settlement agreement. The biggest advantage of mediation is that the parties in the divorce keep control of the decision-making process.

Litigation: The process of resolving disputes by filing or answering a complaint through the public court system.

When you “File for divorce” you are starting a litigation and thereby suing your spouse for a cause of action. In Litigation you are relying on a judge to make all the decisions concerning the end of your marriage

Where a judge will make the final decision for the parties, in mediation no resolution is reached and added to the settlement agreement until both parties agree. completely up to the parties.

Divorce Attorney: Is a licensed professional  educated in the law and specializing in actions for divorce or annulment.

In Los Angeles County the average divorce attorney charges $400-$650 per hour.

As a Side Note: According to divorce360.com the average cost to litigate a contested divorce (in California) is $45,000 per side.

 Divorce Settlement Agreement: A divorce settlement agreement is a written document that defines how the marriage will end. The purpose of a divorce settlement agreement is to get in writing any written or verbal agreements reached between divorcing (or separating) spouses as to child custody, child support, alimony (also referred to as “spousal support” or “maintenance”), and the division of property and debts. It is a legally binding agreement once signed by both parties and is enforceable in court.

There are two general types of Divorce in the legal system: Contested and Uncontested

Contested divorce is the type in which the spouses cannot arrive at an agreement on one or more key issues in order to conclusively terminate their marriage. When spouses cannot arrive at an agreement, even with the assistance of their legal counsel (if any), they usually must approach a court to settle their dispute.

A contested divorce is usually the one that ends up costing an average of $45,000 per side or $90,000 in legal fees.

Uncontested: In a perfect uncontested divorce, the spouses agree on everything and do not need the court to divide assets or make determinations about spousal or child support or custody. In general, an uncontested divorce will proceed through the system more quickly, be much less complicated, and less of a financial burden.

Why choose a contested divorce?

Spousal Abuse, drugs, missing spouse all are potential elements of a Contested Divorce.

BUT – the number one reason for a Contested Divorce – ANGER!

Why choose an uncontested divorce?

While it has been my experience that the clients that choose an uncontested divorce usually end up with a more successful, fulfilling resolution to the end of the relationship, it doesn’t mean that the decision to divorce starts off amiably.

Why choose an uncontested divorce?

In an uncontested divorce not only can the mediator work with the couple on the division of assets and debts, but they can also help with child custody or other issues, and a qualified mediator can provide examples and ideas that may help the clients avoid legal and financial mistakes in this process. In addition, if the couple wish to avoid the expense of lawyers, a good mediator either has on staff or can recommend a legal document assistant who can work with the couple to file all the divorce papers including the mediated agreement.

In an uncontested divorce where a mediator and legal document assistant is involved the total cost to the can be $3500 including court costs.

In some cases, where the couple wishes, a mediator can also recommend an attorney for each of them, strictly for the purpose of reviewing each party’s final agreement.

Bill Ferguson and California Divorce Mediators are experienced in helping you complete your entire divorce, from the paperwork required to the mediating of terms that work for both of you. Don’t’ have a judge dictate the outcome of the rest of your life. Choose divorce mediation and Bill Ferguson with California Divorce Mediation as your mediator.

Categories
Uncategorized

California Divorce Process – Streamlining Your Divorce

How we do it here at California Divorce Mediators.com

The process we use is one that we have found works for our clients and gives them each the benefits of mediation whereas individuals they get to be heard completely. At California Divorce mediation do it in the following way:

  • Initial Discussion about the case together via zoom
  • Gather data using our special secure online portal for required financial and other information.
  • We meet with each party separately via zoom to review special concerns.
  • We make sure each client is heard.
  • We meet with both parties together in Mediation Sessions on various topics.
  • Multiple sessions are needed depending on the complexity of your family and their needs.

In addition, As your Mediator:

  • I Help finalize your Marital Settlement Agreement
  • I can Help Get Case documents filed.
  • I am Available after filing before finalized to adjust things they find are not working.
  • I Can always be called months or years down the road for a quick tune up mediation to handle new issues that were not addressed or one’s that need to be readdressed.
  • As a Mediator I am available by phone or in person for issues as they arise
  • As a Mediator I am available to guide you through to the final divorce and through the mechanics of your agreement.

 

Why Divorce Mediation works:

California Divorce Process

With Mediation my clients have greater control over the outcome

With Mediation my clients have greater control over the costs

The Mediation process provides a benefit to my clients and their family by getting them back to their lives and keeping their unique family out of the court system.

With Mediation both parties can win a little because both will be heard, and issues will be addressed in a manner that addresses both sides desires and works to meet them equally.

With Mediation the mediator can work with the couple on the division of assets and debts.

With mediation my clients get help with child custody or parenting issues through my unique 32-page parenting plan worksheet.

With mediation, a qualified mediator can provide examples and ideas that may help you avoid legal and financial mistakes in this process.

With mediation, you avoid the expense of lawyers.

With California Divorce Mediators we help our clients from start to finish and work with couples to file all the divorce papers including the final mediated agreement.

With Mediation most of our California Divorce Mediator clients are completely finished with the process and everything is filed with the judge within 4-6 months of starting the process.

With California Divorce Mediators you save time and money, reduce your stress and have someone to help guide both of you through the entire process. Divorce Mediation works.

Categories
Uncategorized

11 Questions to Ask Before Getting a Divorce By ERIC V. COPAGE

Common sense suggests that asking the right questions before getting married can make for a better union, but rarely is the other side of the coin examined.

That could be because, by the time the prospect of divorce surfaces, spouses may already be in a stressful frame of mind, and in no mood for a game of 20 — or even 11 — questions.

That is a mistake, said Nancy Colier, a psychotherapist in Manhattan. Even if the ultimate decision is to dissolve the marriage, asking the right questions before contacting a lawyer or mediator, and perhaps with the assistance of a marriage counselor, may prove worthwhile.

The New York Times asked some people well versed in the challenges and difficulties of marriage and divorce to suggest questions that may make a split more amicable, or even save the union. Here are 11 of their ideas:

1. Have you made clear your concerns about the relationship?

“You may think that you have communicated, but your partner may not have really heard,” said Sherry Amatenstein, a marriage therapist in Manhattan and Queens and the author of books on relationships.

“Research shows that people hear only between 30 to 35 percent of what is said to them,” she said, “because we’re so full of ‘I’m going to say this to them.’”

If, for example, you believe your spouse is not making you a priority and, say, fails to spend time with you, this behavior can’t be changed unless he or she is aware of your concerns.

“You want to be really clear that you’ve given it everything in terms of speaking truth to your partner,” Ms. Colier said. That could help in healing if the marriage dissolves, she said, because you’ll know that you have done everything possible to make the relationship work.

2. Do you and your spouse have shared expectations about the roles you play in the relationship?

“Sometimes the problem may be as simple as not understanding how your partner expects you to behave,” said Hope Adair, who, along with her ex-husband, was featured in a 2014 Times column that explored marriages that have failed. “It’s like, ‘This is what husbands or wives do and you’re not doing that.’”

If, for instance, one person expects the other to take the lead in managing finances, and he or she would prefer not to, problems can result.

3. If there is a way to save the marriage, what would it be?

The Rev. Kevin Wright, the minister of education at the Riverside Church in Manhattan, suggests this exercise: On one side of a sheet of paper or computer screen, make a list of what you think you need to do to save the marriage, and on the other side, what your spouse needs to do. And make sure your spouse does the same. It’s important that both of you perform this exercise. Otherwise, he said, “this question can very easily become a question all about what the other person needs to do.”

4. Would you really be happier without your partner?

“You have to look fiercely and realistically at whether what you’re getting in the relationship is worth what you’re giving up,” Ms. Colier said. “Perhaps your spouse doesn’t interest you as a sexual partner as much as you would want, but maybe your spouse’s co-parenting skills, willingness to help with everyday chores or companionship can offset the negative and make the trade-off worth it.” Getting a clear idea of what is most important in your life can make the decision of whether to stay in the marriage less overwhelming.

5. Do you still love him or her?

Even if the answer is yes, divorce may still be the right path. “There are a lot of reasons that people decide they can’t stay married, but our emotions aren’t wired on an on/off switch,” said Wendy Paris, a writer specializing in relationships. “Some of the anger we see in divorce comes from the fact that we do still feel love for this person, and can feel hurt, unloved in return, or unvalued.”

6. What is your biggest fear in ending the relationship?

“For some people, it might be the fear of being single again — the fear of being alone for the rest of their life,” Ms. Colier said. “For others, it is the fear of losing a sense of physical intimacy.” An understanding of what those fears are may help in deciding whether divorce is the best way forward, she said.

7. Are you letting the prospect of divorce ruin your self-image?

The realization that divorce may be near often makes people feel like failures, Ms. Paris said. Instead of dwelling on how you may have stumbled, look at the relationship’s end in “a more empowering way,” she suggested, concentrating on what you did right. For example, “I have given intimacy a real try,” or “I am trying different options to figure out what is the best for everybody.”

8. How can a divorce be handled to minimize the harm on the children?

“If you’re really miserable together, getting divorced is the best thing to do,” Ms. Amatenstein said. “But you will always be parents together. You are still going to be in each other’s lives. You need to think about how you’re going to do this and refrain from using the kids as cannon fodder.”

9. Are you prepared for the financial stresses divorce may bring?

“What I recommend to people is that they start thinking about the financial as early in the process as possible,” Ms. Colier said. “That means meeting, if you can, with a financial adviser, talking to lawyers and writing down what this is going to cost. There is so much that is going to change — and so much fear. It’s important to feel grounded with as many financial facts as possible. You’ll feel safer that way.”

10. Am I ready to handle the day-to-day details of living that my spouse took care of?

“We prepare for most other major transitions, but divorce can seem to erupt like a volcano,” Ms. Paris said, “and our lack of preparation adds to the chaos.”

Understand that you may find yourself paying bills or figuring out taxes for the first time in years. If there are children, who will take the lead in keeping track of their activities calendar?

11. How do I keep from making the same mistake the next time around?

Understand that the problem may be you, not the particular marriage. If you are bored in a relationship, you may find yourself bored in another one, too, said Erika Doukas, a clinical psychologist in private practice in Manhattan and Larchmont, N.Y. If you quarrel with your spouse over whose relatives to visit during the holidays, the same conflict may reappear in a subsequent marriage. Dr. Doukas said spouses who were able to realize that they contribute to marital problems could sometimes change course and possibly save a relationship or, failing that, make a future one more long lasting.

Deciding to divorce is hard – but if that is the direction you need to take, consider mediation. It is the better way to divorce. Contact Bill Ferguson at www.californiadivorcemediator.com for help and information.

Divorce, Family Law, Mediator, Mediation, child custody

Categories
Uncategorized

Filing Divorce without an Attorney

Divorce. It’s the dreaded “D” word. For many, divorce is a time of pain, stress, and great contemplation. Emotions are in a heightened state and respective spouses can feel at odds. When children are at the center of the separation, divorce can become even more complicated. There are matters of children, assets, and the division of property to contend with. During this whirlwind of events, the stress can sometimes become too overwhelming.
In some situations, a vulnerable party can find him or herself in a harmful situation. While you do not necessarily need a lawyer to get you through a divorce, it is important to be prepared for your proceedings, from ensuring proper documentation is prepared to ensuring that you file your documents in the appropriate court. This article provides legal information on how to proceed with filing a divorce without the need for an attorney.
1. Where to Find Information Pertaining to a Divorce
Finding information that pertains to your situation may take some time. While there are a variety of Internet sources that you could find useful, there are also dozens of sites which might be offering incorrect information. In order to ensure that you are making correct choices, it is important to vet any sites that you use in making decisions about your divorce. The wrong choices may impact on you for many years. It is a good idea to conduct thorough research and take notes on all of the information you discover.

COST
When considering all aspects to a divorce, cost is a major factor. Beware of some of the self-help guides on divorce. They may be the most cost-effective solutions, but they may not necessarily serve your best interests. It is best to refer to multiple sources.
Some issues to consider when approaching divorce proceedings on your own are:
the division of property;spousal rights and child/visitation rights; pensions; and marital homes.
A state-by-state approach is also needed to ensure that you are following the correct laws. The first issue to consider when approaching divorce proceedings without a lawyer is whether you and your spouse are in agreement on all of the above issues (i.e. property, children, marital homes, etc.).

If you and your spouse are not in agreement, it can lead to a sticky and complicated situation. But don’t run out an hire an attorney – Mediation is your best option for working out the details you can not agree on. A trained mediator like Bill Ferguson of California Divorce Mediators will work with both of you to solve all disagreements.

The other issue to consider is documenting all complete information about your family’s assets and debts (discussed in greater detail below). If, after discussing all of the accounting and financial issues with your spouse, and you are completely comfortable with the decisions you’ve made together, you should also discuss the custody and support arrangements for your children. The goal is to make sure these arrangements are agreeable to all parties.

2. What to Expect for Your Children During and After Legal Proceedings
In terms of child visitation and custody rights, if parties are not in agreement, you may require a mediator. If mediation does not work, a judge would be the next logical step to consider. A judge will always consider the best interests of the children and will also work towards scheduling equal visitation times for both parents. In instances of alleged spousal or child abuse by either parent, a child-protection order may be needed. If there have been any documented accounts of violence, a court-ordered child protection order may be instated to protect you and your children.
Allegations of spousal violence or parental child abuse, accompanied by evidence of strong probative weight, influence court decisions. It is important to keep any records of violence or abuse for your case that may be valuable in helping assist you in your claim of spousal violence, such as:
video recordings;
emails;
letters;
photos;
other digital recordings;
receipts; and
information from other sources.
If a court-ordered child protection order is accepted by the court, your child/children may be granted the ability to stay with the non-violent parent. A visitation and order schedule may be discussed and issued between the parties.
In considering ways to settle disputes, mediation may be a good way to go, before having to involve the court (in the above example, however, a judge may be needed if parties cannot come to a mutually agreed-upon consensus). However, mediation may be a good alternative to consider, as it is a successful way for parties to reach consensus (through an objective person) when faced with issues of contention. Similarly, if there are emotional issues at hand, a counselor may be able to help ease the tension and get the discussions under way. The other great thing about mediation is that it saves money in the long run. It’s a great way to avoid legal costs—especially when parties are not agreeing on important terms.
ASSISTANCE FROM YOUR COUNTY CLERK
In retaining assistance for your divorce, you may want to consider speaking with a county clerk. Although counties and states differ, many county clerks’ offices offer services regarding basic information required when filing a divorce without the use of an attorney.
Although your county clerk cannot offer legal advice (only a licensed professional such as a paralegal or attorney can provide legal advice), your county clerk can refer you to correct information regarding your divorce at the law library (if a library is available in your area).
If you need to find further information regarding the location of your local court, the hours of operation, and if there are any filing fees, your local clerk can also assist you.
3. Legal Proceedings of a Divorce: The Division of Property
Regarding the division of property, courts will generally determine the division of property depending on the financial contributions made during the marriage, and concern for the future welfare of the children. Other factors to consider are: the state of the union (different rules apply in different states), the length of the marriage, and the economic statuses of the parties prior to the marriage. In regards to division of assets (land and property), depending on certain qualifications, each person owns property in his or her own name.
If an item does not involve “titled” documents (i.e., a mortgaged home), the item is regarded as owned by the person who paid for it. In regards to gifts, although a person might not have paid for the gift, the gift legally belongs to the recipient. If the item were bought by funds from a joint bank account, or through the understanding that it was the joint property of the couples, it is owned by both spouses.
In Californian law, joint property is known as “community property.” In the event that an item is bought with one spouse’s money and put into the name of the other spouse, the court will conclude that it is a jointly owned item, or that it is owned by the person who paid for it. This occurs when a non-titled spouse claims an interest because of a trust. Laws relating to trusts (constructive trusts, remedial constructive trusts, and resulting trusts) are a complex area of law as they deal with property acquired during marriage. However, the law of property and trusts is used by the court to give property rights to common-law spouses who would otherwise not have such rights.
The courts can assist common-law spouses by applying the doctrine of unjust enrichment, often used in equity to try to remedy a situation in which one party ends up with a benefit they may be entitled to in law, but not in fairness. Generally speaking, the courts start with the proposition that “what is yours is yours, and what is mine is mine.” As stated previously, there are other factors which apply. A thorough examination of the application and the process used to determine shares of property is often needed.
Some states calculate the proceeds of a divorce by a term known as an “equalization payment.” An equalization payment is calculated via each party’s economic standing. For instance, a snapshot is taken of the value of the assets that each party owns (on the date of the marriage and again on the date of the separation). The date of separation is also known as the “valuation date.” All items are counted and valued as of these two dates. The current value of each party’s books, furniture, automobiles, bank debt, student loan debt and so forth, are valued. The value of these items is measured by their value before the marriage and then on the valuation date.
FOR EXAMPLE…
For example, if you were married in 2004 and owned a classic 1960 BMW, a silverware collection, and a leather couch when you got married, the question would be “What was the value of each item on the marriage date in 2004?” If any of these items were still in your possession at the time of your separation (for example in 2008), then you would set out the 2008 value for each item you still have on the date of separation (valuation date).
The 1960 BMW may no longer be in your possession on the separation date, and the leather couch—which may have been purchased for $1,000—may now be worth only $200 at a garage sale. However, the silver collection worth $600 at the date of the marriage may now be worth $1,000. As a result, you would enter the couch at $200 and the silverware collection at $1,000 for the valuation date values.
Once the value of the items that each party has brought into the marriage has been calculated (less any debt), this value is subtracted from the value of items owned at the separation date (less any items received as gifts or inheritance). This equation is known as the Net Family Property (NFP). Each party must calculate their own NFP. The lower NFP is then deducted from the higher NFP and the difference is then divided in half. This new figure is the amount of the equalization payment. It is termed as an “equalization payment” because it is paid from the financially well-off party to the party with less, financially. It should be noted that one party may have more assets than another due to the reasons mentioned below.
The equalization payment may be further complicated by the fact that there are certain items which are not included in the calculation. For instance, the value at separation date of an inheritance or gift received after marriage is excluded from his or her NFP calculation. If one inherits $25,000 from an uncle a few years before the separation, and he or she spends it on a vacation, or to pay off the mortgage (and none of the funds are left at separation), there is no value to the inheritance. However, if the $25,000 inheritance is put into a separate bank account or it is invested in stocks, the value of the bank account or the stocks at the date of separation is not taken into account with the NFP.
In some cases, the amount of the exclusion is greater than the value of the gift or inheritance, especially if the item has been invested in a stock which has increased in value, or an investment which has increased in value. There are other exclusions from the NFP to keep in mind, such as specific policies which state that one cannot deduct the value of the matrimonial home in one party’s name. Due to the importance that these deductions and exclusions have in determining an equalization payment, a thorough calculation is needed to properly calculate each party’s entitlements.
4. What Is a “Matrimonial Home” and Does It Get Special Treatment?
A matrimonial home is all the property in which a person has an interest. In addition, the interest is determined by the home which was occupied by the person and his or her spouse and deemed as the family residence at the time of the separation. There can be multiple matrimonial homes:
Summer time shares
Cottages
Ski chalets
Condos in other areas, etc.
The matrimonial home in California qualifies for special treatment in two ways. First, regardless of whose name the matrimonial home is in, both spouses have equal rights to the possession of the home. This right continues until both parties are no longer spouses, or until there is a court order in which an agreement is made, proving otherwise. No one can “throw out” the other spouse because the “thrower” owns the house. And secondly, if a matrimonial home at the time of separation (owned by one of the parties and the other party moved in before or after the marriage, or it was purchased to be the family’s home by one of the parties) is the same home lived in at the date of the marriage, the owner cannot deduct the marriage date value when calculating his or her NFP.
The matrimonial home’s valuation date is included as a valuation date asset but without a corresponding deduction. This situation is rare, but it can have an impact on equalization payments. Sometimes, however, the facts regarding ownership may not be that simple, an agreement may have been made beforehand (between the spouses) or there was an understanding that the house belonged to both of them, even though they were not both on the title. Rebutting the presumption created by a title can be difficult, and it does require a great deal of evidence that the intent was for the house to belong to both spouses.
Other issues to consider are tax issues. For instance, there are serious and long-term tax considerations for many divorces. Before embarking on divorce proceedings without a lawyer, it is a good idea to consult with an accountant or financial advisor, or even tax preparer who can alert you to potential tax issues after a divorce. IRS is the official website where IRS officers offer free information about all tax issues pertaining to divorce.
Another issue in regards to taxes is the issue of alimony. Alimony plays a part in tax-filing. For instance, alimony is taxable to the recipient. This means that if one partner is receiving alimony, that partner must pay taxes on the alimony they are receiving. The person who pays alimony gets to deduct it.
Child support, by contrast, is not taxable to the recipient, and it is not deductible for the person paying it. The last major tax issue to consider is your filing status. When you are filing your taxes, your marital status at the end of the year determines how you file your taxes. For instance, if you are divorced on December 31st, you are considered single.
5. How Does Pension Come Into Play?
Pension is considered property, and must be taken into account when calculating the NFP and equalization payment. However, the value of a pension is difficult to calculate and, as such, requires the assistance of an actuary. Generally speaking, one can assume that the pension that each party has is worth more than one can accrue. A pension is worth more than the value of contributions made to it. In addition, the value of a pension changes, depending on how many more years the pension member will work. The pension also takes into consideration whether an early retirement will take place, and whether the pension member was terminated at the valuation date, or whether the member will continue to work until a normal retirement date.
Pension is governed by federal legislation. In addition, each pension plan has its own set of terms and provisions. A myriad of rights will apply if you are separated at the time the pension becomes payable (in some cases, this may not apply). For instance, the rules on pensions can differ in the following scenarios:
Contribution to the pension plan prior to marriage
Remarrying after separation but before retirement
Entering into a new common law relationship
There are many situations in which the calculation of pension will vary greatly. Thus, while a marital home can be lived in or can be sold to raise money, a pension cannot be. If a pension is valued and made part of the equalization payment, there may not be sufficient funds to make the payment. In determining your rights, all of the issues raised above are areas to consider.
6. Check Out Legal Document Preparers
Legal document preparers like CaliforniaDivorceMediator.com can prepare paperwork for divorce settlement agreements. CaliforniaDivorceMediator.com will prepare personalized forms for you to file your divorce, using the information you supply, and will prepare your documents to ensure that your experience is quick and effective.

Categories
Uncategorized

Valuing a Business During Divorce by Ann Thompson

How do you value a spouse’s business during a divorce?

In Divorce a lot of things are valued easily because there is a dollar amount associated with it. If there is a bank account that’s subject to division, you know how much is in the bank account and you equally divide it. Businesses are different, and usually what is required to value a business is a forensic accountant. The reason that is, is because businesses do not have price tags, meaning they don’t walk around with a value assigned to them usually.

If you’re valuing a sign-making business, restaurant, or a medical practice, typically the court will either appoint a joint forensic accountant or you can hire your own forensic accountant to do a business valuation. If you or your spouse owns and operates a business and that business was started during marriage, or even before marriage but was operated during marriage, there’s going to be a community value component to that.

In order to value that properly, the forensic accountant will look at the books, and look at the documents and the bank statements and the hard assets, and come up with a value and make that representation to you as a litigant and also to the court. If you can’t use that valuation for purposes of settlement, then you need to take it to court and have it divided.

Usually, spouses who operate businesses will think their business is not worth anything because they want to say, “Well my business is just me” or, “It’s me and my phone” or, “It’s me and two employees and there’s no value to it”, and there really is. There’s really community value to a business, and usually the court will find that there’s some “good will”, a term that the courts, forensic accountants, and lawyers use to mean that, and this isn’t the technical definition obviously, are people going to come back to your business? That’s kind of an intangible value that a forensic accountant will put on a business using the various tax returns, bank statements, cash flow, and things that are relative to the business so that you can develop a value for purposes of division.

Categories
Uncategorized

Keeping a Business Alive During a Divorce by Karen Klein

You can make bad decisions under emotional stress. You might even lose the business entirely. Here are savvy tips from attorney Lisa Hughes

Maneuvering a small business through rough economic seas is tough enough. But doing it amid a divorce at the same time—well, the stakes are pretty high. Lisa Hughes, an accountant and family law attorney, is managing partner at Hughes & Sullivan, a family law practice in Tustin, Calif., a suburb of Santa Ana in Orange County. She spoke recently to Smart Answers columnist Karen E. Klein about how small business owners can get through a divorce without losing their business. Edited excerpts of their conversation follow.

How do you advise small business owners when they come to you and say they are considering divorce?

I tell them to try marriage counseling. And spend at least one hour at it for every year of your marriage. Divorce is the last road you want to take—seriously.

You’ve been practicing for 33 years. You must have witnessed lots of mistakes that people make in their businesses and their lives because they are going through the highly emotional stress of splitting up from their spouses.

A lot of misguided decisions are made during divorces that can cripple or destroy the businesses people have built up through years and years of hard work. And the sad thing is, that kind of business collapse can be avoided.

How can entrepreneurs continue making wise decisions that keep their businesses alive and thriving?

It’s important to recognize this is not a time of business as usual. It’s also important to hire a savvy forensic accountant who can provide in-depth understanding of the applicable law and who has the expertise to testify in court.

It’s also critical to understand the implications of upward or downward trends for the business, and whether the business began before or after the marriage. Many times, if one spouse is a business owner and the other is not involved in the business, the business owner thinks the business won’t be considered in the divorce. But if the business arose or was acquired during the marriage, it is considered the property of both individuals.

What are some business pitfalls to look out for during a divorce?

The truth is that during a divorce, your business and your net worth really have to be an open book. Don’t try to hide anything. Here in California, we had a recent case decision in which a powerful business owner, Mr. Feldman, failed to expose all of his earnings and transactions during his divorce. That violated his disclosure duties, and when his wife discovered his hidden assets, the judge required Mr. Feldman to pay her $250,000 in sanctions along with $140,000 in attorney fees. So providing full disclosure is key to expediting a settlement without sanctions.

Judges in family court have seen everything by the time they’ve been on the bench a week. Was your business making lots of money before the divorce, and then, all of a sudden, your profits dropped dramatically? That’s suspicious. Same with putting your new girlfriend or boyfriend in as treasurer, or vice-president for operations. Don’t change the leadership of your business during a divorce. It looks like you are not operating in good faith.

What are some key things a business owner can do to get through a divorce and keep the business intact?

Do the same things you’re doing to navigate your family through this economy. You have to be conservative, and by that, I don’t necessarily mean Republican. I mean operate cautiously. Always pay your taxes and keep your insurance payments current. If you try not to pay the government, they will come after you, and the penalties and interest they charge you will really add up. In times of stress, you really need life insurance and health insurance. I’m a big believer in not letting policies lapse, even if you’re hurting financially.

Do the divorce rates go down during a time of economic distress or uncertainty?

Divorce rates were trending down the last time I looked, which was early this year. What I think is also happening, just anecdotally from what I see in our practice, is that people can’t afford to separate. Real property values have dropped so dramatically, and so many people don’t have equity in their homes now. We used to use the couples’ house as a nest egg to pay off debts, pay the lawyers, and help the parties get on their feet and have a chance at a new start.

Now, with negative equity, plus declining business or job revenue, couples can’t even finance the litigation. Not only can’t they afford to start two households, there’s so little liquidity in the lending market they can’t even borrow on their homes.

Can divorcing spouses continue to own a business together and work side by side?

I haven’t seen that be successful in the long term. They may start out being O.K. with both staying in the business, but eventually one or the other gets remarried. And when third parties get involved, they are the ones who object. It’s usually best to buy one party out of the business or sell it to a third party. We hate to liquidate a business to fund a divorce, because that’s the thing that provided the lifestyle and the house in the first place. So, try to keep the business going, but you may have to decide which spouse is going to bow out eventually.

Karen E. Klein is a Los Angeles-based writer who covers entrepreneurship and small-business issues.

Categories
Uncategorized

California Court Rules for Ending a Marriage

A divorce (also called “dissolution of marriage” or “dissolution of domestic partnership”) ends your marriage or domestic partnership (or both if you are both married and in a domestic partnership with your spouse). After you get divorced, you will be single, and you can marry or become a domestic partner again.

You can get a divorce if you say you have “irreconcilable differences” with your spouse or domestic partner. You do not have to give the court any other reason or prove anything. There is no “guilty” or “non-guilty” person, from the court’s point of view. That is why California is called a “no-fault” divorce state.

The only thing the court is interested in is helping the separating spouses or partners reach a fair agreement about how their life will be restructured after the divorce so they can move ahead to rebuild their lives.

When you start a divorce case, you can ask the judge to make orders about:

 

  • Custody and visitation;
  • Child support;
  • Spousal or partner support;
  • The division of your property; and
  • Who will be responsible for paying debts.

 

If lawyers are involved, you may be able to get orders about who will pay their fees. You can also ask the judge to make other orders about things like domestic violence. Learn more about domestic violence and staying safe.

The divorce process will take at least 6 months from the date the person filing for divorce officially lets his or her spouse or domestic partner know about the divorce. The case can take longer. BUT it cannot be faster than the 6 months. This is a mandatory waiting period required by California law and no couple can be divorced faster than 6 months. You will be able to get all your paperwork turned in to the court and your divorce judgment approved, but the divorce itself will not be final until at least 6 months after starting the case.

Summary dissolution
Some couples that have been married or in a registered domestic partnership for less than 5 years can get a “summary dissolution” as long as they also meet other requirements. A summary dissolution is an easier way to end your marriage or domestic partnership (or both). Learn more about summary dissolutions.
California residency requirements for divorce

For married persons to get a divorce:

You MUST meet California’s residency requirements. Either you or your spouse must have lived in:

 

  • California for the last 6 months, AND
  • The county where you plan to file the divorce for the last 3 months.

 

If you and your spouse have lived in California for at least 6 months but in different counties for at least 3 months, you can file in either county.

If you do not meet the residency requirement, you can still file for a legal separation. Once enough time has passed so that you meet the residency requirement for a divorce, you may file an “amended petition” and ask the court for a divorce.

EXCEPTION: Same-sex married couples who got married in California but do not live in California and live in a state (or states) that will not dissolve a same-sex marriage, can file to end their same-sex marriage in California, regardless of these residency requirements. You must file in whichever county you were married. Keep in mind that if neither of you lives in California, the court may not be able to make orders about other issues like property and debt, partner support, or your children. If this is your situation, talk to a lawyer with experience in same-sex marriage laws. Click for help finding a lawyer.

Categories
Uncategorized

10 Reasons to Consider Mediation

10 Reasons to Consider Mediation

More and more people are using divorce mediation these days. If you, or someone you know, are getting divorced, mediation may be a good method to try.

1. It Costs Less

In divorce mediation, you meet together with one divorce mediator. You usually share the cost, which is commonly between $2000 and $5000 total. If you were to retain separate attorneys to represent you in the divorce, you would each typically pay a retainer of $1500 to $5000 just to get started. A typical court divorce can cost $40,000 – $60,000.

2. You Have Control

In divorce mediation, you both control how quickly or slowly decisions are made, when the divorce petition is filed, and what the terms of the divorce will be. These are written into the Marital Settlement Agreement. Each step is by agreement, in contrast to the adversarial process in which attorneys set court dates and judges make decisions with limited time and information.

3. Paperwork Done for You

Many people try to do their own divorce these days, but run into difficulty trying to understand the laws and the confusing paperwork involved. As you Mediator Bill Ferguson will work with you so you can complete all your decisions and then he will provide you with some affordable options for the filing of your final agreement.

4. Easier on the Children

The worst aspect of a divorce for children is the conflict between the parents. Divorce is traumatic enough for children, but they do better when you work together to make adult decisions and do not put them in the middle.

5. Easier on You

The way your marriage ends will significantly affect the way you approach your future relationships. When you use a mediator to help communicate and make important decisions, it can be easier to move forward and accept the past, rather than turning hurt and anger into an expensive court battle.

6. You Can Still Go to Court

When you use divorce mediation, you do not give up your right to go to court. If you are not satisfied in mediation, you can stop at any time, retain a separate attorney and have the judge decide the unresolved issues.

However, what has occurred in mediation is legally confidential and cannot be repeated in court, so you can start fresh or if you are happy with the progress that has been made you can use agreements made in mediation and then ask the court to resolve the unsolved issues.

7. Emotions Can Be Managed

Often, you want to be heard and understood in the divorce process. In discussions on your own, this may be difficult. Anger and resentment may be unintentionally triggered. A trained mediator can help you address feelings, without allowing such feelings to dominate your decision making process. In court, emotions often drive the case, and the cost, more than any legal issue.

8. It is Confidential

Discussions and tentative agreements are confidential in private divorce mediation. Confidentiality makes it easier for you to make offers and consider alternatives without having everything completely planned out. You can arrive at new agreements neither of you had previously considered. You don’t give up any legal rights by trying mediation, and what is said in mediation may not be repeated in court.

9. It Builds on the Positive

In mediation, you are both encouraged to find common ground for making agreements. The focus is on decisions about the future, not past behavior.

10. You are in Control

In mediation, you are both in control of the outcome based on your participation in the process instead of being at the whim and mercy of an over burdened family law court system.