Attorney Fees in California Divorces

August 9th, 2011

Legal fees are expensive – there is no way around that simple fact. The language in the California Family Code, however, attempts to ensure that everyone has access to legal representation during his or her divorce. An indigent party may qualify for pro-bono or reduced-fee legal services, and for a waiver of court fees. Needs-based legal assistance, however, is difficult to qualify for, leaving many people in a financial bind when affording legal services. Therefore, under appropriate circumstances, the court will order one party to pay for the fees of the other.

Under Family Code Section 2030 whether you are entitled to attorney’s fees for your divorce is based on two primary factors. First, the court looks to determine whether there is a great disparity in available financial resources between the two parties. Second, the court determines whether one party is able to afford to pay fees for both parties. If these conditions are met, the court may order an award for attorney’s fees and costs.

Under Family Code Section 270 and 271, courts may also award attorney’s fees or costs as a “sanction” against a party for bad behavior. In these cases, courts may only impose fees and costs on a party that the party can afford it. With sanctions, the party requesting attorney’s fees does not have to demonstrate financial need, and the payment will come out of the sanctioned party’s assets or his or her share of community property.

If you believe you qualify for an Attorney Fees award, you should contact a qualified San Francisco Divorce or Family Lawyer immediately.

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When It Comes To Custody, Do California Courts Favor Mothers?

August 5th, 2011

Most parents in California are still under the impression that in a dispute “Mom gets the kids,” and that Dad gets “some visitation.” In reality, the California courts have changed the custody goals in recent years to rebut this old stereotype.

When it comes to custody matters, the goal of the courts – as prescribed in California Family Code Sec. 3040 – is to create a plan which is in the best interests of the children, and to aim for joint legal and joint physical custody. This often means an equal timeshare with both parents (sometimes historically referred to as a “50/50 split.”) The important implication here is that Dad has just as many rights to equal time with the children as Mom. This intention to grant both parents equal time with the children is simply what the court system believes is in the best interest of children. Judges often stress in their courtrooms the benefits to children of having both parents involved in their daily lives.

The important distinction to recognize is that the “goal” of the court system is not necessarily determinative of the final custody outcome. In a perfect world, after a couple splits up, both parents would get along like old pals, live in the same neighborhood, be responsible and conscientious parents, and raise their children together without a single disagreement. Needless to say, this is not the reality we usually see.

More often, we see custody arrangements with varying schedules, and unequal division of time between mothers and fathers. Sometimes mothers are given primary custody of the children, and other times, fathers are awarded primary custody. Fortunately, in most cases in California, the court’s custody decisions are no longer based upon biased preferences for mothers, but are based solely on the best interest of the child, which could result in any number of varying timeshare schedules.

In making custody decisions, the courts take many issues into consideration as they are evaluating each parent individually. The court takes this job very seriously, effectively putting each parent under a microscope throughout the custody process. If a court believes that both parents are equally fit to care for the child, and the geographic distance between the parents is minimal, there is a high likelihood the court will strive for an equal timeshare with both parents. Even if an initial custody order does not reflect an equal custody arrangement, the court’s goal is always to move closer to an equal timeshare schedule as time goes by.

Custody cases are far from black and white. With the diminishing stereotype that children belong only with their mothers, the courts are focusing on parents as individuals. While this may have the unintended effect of increasing an already complex litigation process, the court’s long-term goal of joint custody and equal timeshare is a reality that both parents need to understand when facing custody disputes.

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Top 10 Ways to Screw Up Your Divorce

February 5th, 2011

We try to refrain from simply reposting other people’s work on this blog, but this article from Diana Mercer is so completely on point that we just can’t resist.  Ever wonder why some divorces wrap up right away and cheap while others drag on for years and cost hundreds of thousands of dollars?  Well here’s your answer.

http://www.huffingtonpost.com/diana-mercer/10-best-ways-to-screw-up-_b_811859.html#s229223&title=Be_Disorganized

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California Spousal Support – Why?

September 27th, 2010

Working with divorce every day, I am very aware of the financial struggles that couples face at the end of marriage.  None of these issues are strawberries and ice cream, but the one area that causes more heads to explode than any other is without a doubt, the area of spousal support.  Spousal support (also called alimony in some States) is the payment that the higher earning spouse typically makes to the lower earning spouse after a separation or divorce.

Rather than go through a lengthy explanation of support law in California, I thought I would dedicate this post to a brief discussion of perspective.  Higher earning spouses always want to know why the heck they have to pay.  So here’s a primer for you.

The historical concept of marriage is that two people come together to form one financial unit.  When that happens, a division of labor is generally efficient.  One person does laundry, the other dishes.  More traditionally, one takes care of children while the other takes care of money.  Or perhaps one plugs away at their small business while the other stops working to manage construction on a house.

Either way, the upshot is that typically, one spouse is advancing their career and saving money while the other is not.  This works just fine so long as the family unit remains intact. Without the rules we have in place for division of community property and payment of spousal support, non-working spouses could be left without anything to live on after divorce.

California wants to protect the non-working spouse so that the welfare system doesn’t have to feed those people.  On the other hand, public policy also detests abuse and does not want to overpay recipient spouses.  For this reason judge’s have quite a lot of discretion to limit support when appropriate.

The point is, California has rules in place that are intended to protect both parties in a marriage. Both sides typically think the rules are unfair when they’re being enforced, but the legislature hasn’t come up with anything better.

If you are concerned about the payment of spousal support in your marriage, the best way to minimize it is to have signed a valid premarital agreement (prenup).  Postmarital agreements can also be effective in this area.  Absent those documents, however,  support is virtually guaranteed when there are disparate incomes.

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Do Grandparents Have Visitation Rights?

September 18th, 2010

The short answer is yes, but with some very strong limitations.

Family units these days are diverse – children, parents, stepparents, aunts, uncles, cousins, and grandparents are all part of the mix. In many cases, grandparents play a significant role in the daily functioning of a healthy family, and can have a tremendous impact on the lives of their grandchildren.

In light of the importance of the relationship between grandchild and grandparent, the California law does afford some visitation rights to grandparents with regards to their grandchildren. The public policy behind these rights is that it is sometimes in the best interests of children to have visitation time with their grandparents. A grandparent’s right to visitation, however, is far from unconditional.

Whether a grandparent has standing to file a petition for visitation rights is determined by the circumstances of the legal parents. A grandparent may file a petition for visitation rights if the legal parents are currently involved in a marital dissolution proceeding, or if either legal parent is deceased and the grandchild is unemancipated.

Grandparents do not have standing to file for visitation, however, if the legal parents are (1) married, (2) currently living together on a permanent basis, (3) have not been absent for more than a month without the other spouse knowing the whereabouts of the absent spouse, and (4) currently residing with the child, and the child has not been adopted by a step-parent. In these cases, a grandparent is not permitted to even file a petition for visitation rights.

Once a petition for visitation is filed by the grandparent, the general standard (like most child custody/visitation matters in California) is the best interests of the child.

A grandparent who is denied access to a grandchild should contact an experienced family law attorney to learn more about visitation rights.

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The Union (So to Speak) of Prenuptial Agreements and Estate Planning

August 3rd, 2010

Many people fear that drafting a prenup means that they are admitting their marriage will end before it has even begun. The fact is (and please forgive my being a trifle morbid here) that all marriages end – if not in divorce, then in death. For this reason, the California state legislature (and every other state in the Union for that matter) has helpfully crafted a default (read “generic”) plan for you in case you die without an estate plan, or divorce without a prenup. So the question you should really be asking yourself, is not whether a prenup means your marriage will end, but whether the government’s generic plan is the right plan for you.

A prenup, like an estate plan, is nothing more than a document allowing you to take control over your property. Most people believe they are better suited to decide how their property should pass at death than the government, and the same logic often applies to divorce. Many couples also find that defining their expectations before marriage helps minimize conflict later.

If you have a prenup or are planning to have one, then you have already determined that the cookie-cutter government plan is not right for you and your family. Chances are that the government plan for how your property should be divided at death will not meet your standards either.

So with those preliminary points out of the way, let’s turn to the meat of this posting: the intersection of the two documents.

It is important for married couples and registered domestic partners to make sure that their estate plans and their premarital agreements are not in conflict. It is not uncommon for estate planning attorneys who do not have experience with family law to narrowly focus on issues such as minimizing “death taxes” at the exclusion of other previous intentions of their clients. A common mistake is for an estate planning attorney to re-title property for the sake of the estate plan, but in contravention of the premarital agreement. This can have the unfortunate effect of negating the premarital agreement entirely, and you can imagine the negative impact that might have.

Another example is that many clients on a second marriage want to ensure that their property will pass to their children from the first marriage, and not to the new spouse’s family. This is possible, but the estate plan and the prenup need to work in conjunction with one another to be effective. One document cannot do the job if the other is not in agreement.

For these reasons, it is extremely important that your attorney have an understanding of both estate planning and family law. The law around property varies greatly depending on the context and circumstances. Failure to have an attorney review your unique situation from a global perspective can have serious unintended and very expensive consequences.

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Guest Post: Protecting Your Credit During Separation

May 13th, 2010

We’re happy to invite our good friend Jim Argo to post this week about credit scores. Jim is a truly talented mortgage broker, and also a hell of a jazz musician. Here’s what Jim has to tell us:

When a marriage or domestic partnership ends in divorce or separation, the lives of those involved are changed forever. During this time of upheaval, one thing that shouldn’t have to change is the credit status you’ve worked so hard to achieve.

Unfortunately, for many, the experience is the exact opposite. Unfulfilled promises to pay bills, the maxing out of credit cards, and a total breakdown in communication frequently lead to the annihilation of at least one person’s credit. Depending upon how finances are structured, it can sometimes have a negative impact on both parties.

The good news is it doesn’t have to be this way. By taking a proactive approach and creating a specific plan to maintain one’s credit status, anyone can ensure that “starting over” doesn’t have to mean rebuilding credit.

The first step for anyone going through a divorce or separation is to obtain copies of your credit report from the 3 major agencies.  Once you have this information at your fingertips, it’s time to make a plan.

There are two types of credit accounts: The first type is a secured account, meaning it’s attached to an asset. The most common secured accounts are car loans and home mortgages. The second type is an unsecured account.

In the case of a mortgage, enlisting the aid of a qualified mortgage professional is extremely important.  A mortgage professional can help you review your existing home loan along with the equity you’ve built up and then help you to determine the best course of action.

When it comes to unsecured accounts, you will need to act quickly. It’s important to know which person (if not both) is vested.  If you are merely a signer on the account, first check with your attorney, and if there are not legal problems with doing so, then have your name removed immediately.  If you are the vested party and your spouse or partner is a signer, also check with your attorney, but consider having their name removed.  Any joint accounts (both parties vested) that do not carry a balance should be closed immediately if both parties agree.

Ensuring on-time payment of debt which carries your name is paramount when it comes to preserving credit. Keep in mind that one 30-day late payment can drop your credit score as much as 75 points.  So, regardless of which person is ordered by the judge to pay the account, any late payments affect the credit score of both parties.  The message here is to not only eliminate all joint accounts, but to do it quickly.

Divorce and separation are difficult for everyone involved. But by taking these steps, you can ensure that your credit remains intact.

James Argo

www.JamesArgo.com

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How LGBT Couples Are Avoiding Domestic Partnership Headaches

April 15th, 2010

Is entering a California “registered domestic partnership” the right move for you and your partner?  More and more gay and lesbian couples are finding that the law relating to their relationship is confusing, and potentially very expensive.

Many couples who have been together for years, and who registered as domestic partners, are surprised when they later end their relationship and discover they are subject to the special rules surrounding “community property.”   In other words, they discover that half of their earnings during the domestic partnership are deemed to belong to their partner, and that they may have to pay spousal support (sometimes called alimony).   This is all because California law now extends the same burdens and benefits of marriage to registered domestic partners.

Further complicating matters for lesbian and gay couples is the fact that while some states recognize California domestic partnership, many do not.  This becomes a problem when gay and lesbian couples move out of California and then wish to “divorce” in their new state.  Many are forced to move back to California for the sole purpose of finalizing their divorce.

Gay and lesbian couples in California also face the reality of a complicated and confusing tax filing process.  In California, domestic partners must file their returns as “married.”  Because of the so-called “Defense of Marriage Act,” however, the IRS and federal government refuse to acknowledge either gay marriage, or domestic partnerships for tax purposes.  Thus, gay and lesbian couples must file separate individual returns for federal taxes, and then complete a mock “married” federal return in order to get the proper numbers to then go back and place on their California state returns.  This quickly becomes extremely complicated.

More and more gay and lesbian couples are using Preregistration Property Agreements (“prenups”) to avoid many of these community property and alimony issues later on.  Other couples are choosing to not register at all, and instead are making sure that they have the appropriate documents such as wills, trusts, powers of attorneys and healthcare directives in place to protect themselves and create a quasi-marital relationship.

There is no right answer to how any couple should memorialize their relationship.  Understanding the legal effect of their decisions however, can save time, frustration, and potentially money down the line.

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Mediation in the Divorce Process

March 25th, 2010

“Boy, they really could use an attorney,” the woman at the cocktail party recently told one of us, “but they insist on doing it themselves. It’s just a mess!”

It isn’t difficult to understand why, in the face an unknown and confusing divorce process, they would choose not to see an attorney. Attorneys are simply perceived as too expensive—and potentially poisonous—to an already traumatic and sad situation. To the woman at the cocktail party, we suggested mediation.

Using an attorney as a mediating problem-solver instead of a problem-maker can ease the process for a divorcing couple, cutting stress and costs. Couples must remember that divorce is a legal process—one they must go through in order to end their marriage or their registered domestic partnership. The divorce process was not designed to be easy on the parties; it was designed to be navigated by attorneys. Dissolution of a marriage or registered domestic partnership is litigation and, all too often, it is simply too inefficient, too expensive and too taxing on one’s soul. In these cases, mediation is a good option.

A successful mediation will avoid a drawn-out fight and ensure neither party sees the inside of a courtroom. A qualified mediator can help parties comprehend the process, ensuring that both remain an integral part of process and that neither party is sidelined. He or she can keep the process directed toward resolution, thus ensuring efficiency and keeping down costs. In turn, parties gain greater control over the process, less constrained by procedure and what a court might decide.

The mediation process is confidential and, with little exception under California law, what is said and done in a mediation cannot be used in court against either client.

The result of a successful divorce mediation will be an agreement between the parties as to how the divorce will be resolved; for instance, how the property will be divided or how custody of the children will be arranged. Mediation is a significantly more efficient option than bringing litigation. This means a significant cost savings, and a significant reduction in stress.

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California Prenup Timing Specifics

December 23rd, 2009

Since my last post, I’ve had several questions about the timing specifics for California premarital agreements.  Here are several key California prenup timing rules to keep in mind.  First, California law requires that seven days pass between the time you are first presented with a premarital agreement, and the time you sign it.  This is rather cleverly called the “Seven-Day Rule.”  Here’s a link to California Family Code Section 1615 in case you want to actually read the law.

You may have noticed that this rule is anything but crystal clear.  Some lawyers believe the rule means that seven days must pass between the time you deliver the final draft of your agreement, and the time you sign that draft.   Other lawyers believe the provision means you must wait seven days between the first time you discuss a prenup with your fiancé, and the time you sign the final draft.   You and your California prenup lawyer should discuss this issue if you have any questions.  If you’re concerned about enforcement, you should probably take the most conservative approach, and wait seven days between delivery of the final draft to your fiancé, and signing of the agreement.

Another timing consideration is whether you should sign on your wedding day.  Rather than give a direct answer to that, allow me ask another a question: who really wants to think about a contract on their wedding day?  Nobody, and for good reason.  You can’t possibly consider all the ramifications of signing a premarital agreement when you’re about to walk down the aisle.  Trust me: sign before your wedding day.  The earlier before the wedding the better.

Closely related to the signing on your wedding day issue, is the question of when you should start discussing the agreement with your fiancé.  The rule here is to bring up the agreement before the wedding invitations go out.  You want to avoid the presumption that your fiancé had no choice but to sign and marry you since Aunt Flo had already bought her plane ticket.

You should also keep in mind that your lawyers are going to need some time to draft a solid agreement, and additional time to negotiate the wording of various provisions.  Depending on the complexity of your assets, this can take months.   A good rule of thumb is to call your lawyer before the invites go out, and if you can’t do that, then no later than four months before your wedding date.

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