Initial Agreement on No-Court Divorce

The process begins with you and your spouse agreeing to try a no-court divorce and each hiring a divorce attorney for advice and assistance.  Then you, your spouse, and your lawyers meet to discuss all the options available. The goal is to design a strategy that will resolve matters peacefully and set a cooperative tone for any post-divorce interactions.  This is particularly helpful where children are involved. 

Agreeing on a strategy for handling the divorce may occur either before or immediately after a Petition for Dissolution is filed.  Once this is followed by the filing of temporary orders, responses, and case management stipulations, the no-court resolution process begins.

Negotiation

Your first option for handling the divorce issues is negotiation.  You and your spouse, with your respective attorneys, attempt to resolve issues through face-to-face meetings and the exchange of written offers and counter-offers.  This process will usually be accompanied by any asset or valuation appraisals needed – for example, of the family home, or of a business owned by one or both spouses.  Each spouse may need a CPA or tax attorney to plot the best financial strategy for property division and support.  The goal is always to reach a mutually acceptable agreement rather than to fight over the various matters in your divorce. 

Mediation

When the spouses are too emotional to resolve issues through negotiation, or when they can’t agree on one or more issues, mediation by a trained divorce mediator may be useful.  In one or more sessions, the mediator typically meets separately with each party and their attorney, and then holds a joint meeting with both parties and attorneys.  The mediator helps to diffuse emotions and bring the parties to the point where they can each make and accept concessions to resolve one or more issues.

Arbitration

Finally, if the parties are still at odds, they can agree to have a trained private arbitrator – typically, a retired family law judge or a family lawyer with years of experience – hold a hearing and make a decision for them.  Although this is not cheap, it is still far less expensive than a court proceeding. 

Finalizing the Divorce

When all of the issues are resolved, and any insurance and tax issues have been handled, the divorce is ready to be finalized.  Legal papers are filed, and the court issues an order dissolving the marriage.

Although the ending of a marriage is never a happy time, the no-court divorce can save money, preserve relationships, make it easier for the divorced parents to communicate comfortably on issues concerning their children, and allow the children a smoother transition into the new family situation.

Call San Diego Law Firm for either Traditional or No-Court Divorce

The experienced divorce lawyers of San Diego Law Firm can help you through either a traditional or no-court divorce, while protecting your rights to a fair resolution on issues of property division, child and spousal support, and child custody.  To set up an appointment, please call San Diego Law Firm today at (619) 794-0243.  We look forward to helping you.

One of the first steps should be for one or both parties to hire a valuation expert, who can determine the value of the business at the time the parties separated.  From that value will be subtracted the value of the business as of the date the parties were married, or the date the business began, whichever is later.  Since California is a community property state, each party will own 50% of this value, which represents the business appreciation during their marriage. (If the business becomes substantially more or less valuable during the divorce proceedings, a reappraisal will be needed.)

The business does not need to be split down the middle so that each party can receive 50% of its value. Both parties may want to continue running the business together, or one party may wish to keep running the business, while the other party’s interest in the business will likely end with the divorce settlement.  If the parties jointly managed the business while they were married but cannot agree on whether both or either of them will run the business after the divorce, it may be possible to craft a creative solution that involves hired managers or spinning off a portion of the existing business into a separate business.  And because each party is only entitled to 50% of the total value of the community property, the court may choose to award the entire business to one party, and give assets of equal value to the other.

During the divorce, the business will be classified as community property.  If one spouse or domestic partner is managing it, that spouse is required by law to act in the best interest of both themselves and the other party, and to fully disclose all of their business decisions and not conceal any debts or assets.

Call San Diego Law Firm to Protect Your Business and Financial Rights During a Divorce

The experienced divorce lawyers of San Diego Law Firm can provide sound legal guidance to protect the health of your California family-owned business in a divorce or domestic partnership dissolution, while also protecting your personal rights to receive your full share of community property assets.  To set up an appointment, please call San Diego Law Firm today at (619) 794-0243.  We look forward to helping you.

1.  Summary Dissolution (Summary Divorce)

A summary dissolution (summary divorce) for married spouses or registered domestic partners is available if the couple has no children, has lived together for less than five years, and owns no real estate together.  Each person must permanently waive any right to support by the other. Both persons must sign an agreement dividing their community property and debts, and sign any legal documents needed (for example, a title transfer for ownership of a car) to put their agreement into effect. 

Like a standard marital or domestic partnership dissolution, a summary dissolution requires you to wait six months from the day you file your dissolution request with the court.  Then you can file a set of legal documents asking for the court’s formal approval to end the legal relationship.  When the court signs these documents and they are stamped by the file clerk, your legal relationship is at an end. If you decide you don’t want to end the marriage or domestic partnership during the six-month waiting period, you can file papers to have your original request revoked. As with all dissolutions, it is best to consult an experienced lawyer about your rights before making any agreement ending your marriage or your domestic partnership.

2.  Annulment

An annulment – also called a “judgment of nullity” – is appropriate where the validity of the marriage or domestic partnership is in doubt.  This means that there was never any legitimate marriage or domestic partnership, because:

a.  The marriage or domestic partnership was void from the start.  There are three grounds under which it could be void:  incest, bigamy, or failure to follow the proper legal formalities. A void marriage never becomes valid over time.  

b.  The marriage or domestic partnership was “voidable.”  There are a variety of grounds for this.  They include one party being below the age of consent and having no parental consent, one party lacking mental capacity, and one party not divorced but in a situation where the first spouse is generally believed to be dead.  Other grounds include fraud, force, and lack of physical capacity. For most grounds, there is a four-year time deadline for having a “voidable” marriage declared void; when this time begins to run depends on the exact reason the marriage was voidable.  However, when the first spouse was believed to be dead but has not been proven dead, that marriage remains voidable.

A party to a void or voidable marriage or domestic partnership has “putative spouse” or “putative domestic partner” status if he or she believed in good faith that the marriage or domestic partnership was valid under California law.  In that case, the “putative spouse” may be entitled to property, support and attorney fees, just as though the marriage or domestic partnership had been valid.

3.  Dissolution

If the parties do not meet the requirements for a summary dissolution, and the legal relationship is not void or voidable, then the parties must proceed by a standard dissolution of marriage (divorce) or dissolution of domestic partnership.  However, the court will take the length of the marriage into consideration in deciding whether to award support to a former spouse or former domestic partner, and may occasionally consider the length in deciding how to divide community assets.  For example, if Kim Kardashian had not had a pre-nuptial agreement, the court may have chosen to give her more community-earned cash in lieu of her half of 72 days worth of her husband’s pension benefit accrual.

Every relationship is different, and you need to know your rights under California law to help ensure you get a fair divorce or dissolution.  If your marriage or domestic partnership is ending, the experienced divorce and domestic partnership dissolution attorneys at San Diego Law Firm can help you. We’ll discuss your options with you and help you get through all the complications of the process as smoothly as possible. Please call San Diego Law Firm’s experienced divorce and dissolution attorneys at (619) 794-0243 for an appointment. We look forward to helping you.

How long do emergency orders last?

Ex parte orders are made quickly and without notifying the other party because there’s an emergency that would permanently harm a party if the immediate order isn’t made.  If a judge issues the ex parte order, then the other side has to get a chance in court to challenge it.  The order will usually last only up to three weeks until the hearing is held to decide whether the order will continue.

When do you need an ex parte order?

Even in a contentious divorce, not everything is an emergency.  You don’t want to hurt your case down the road by seeking an unnecessary emergency order just to try and get the upper hand.  So which situations justify an ex parte order?  Many times, ex parte child custody orders are requested because a parent threatens to move out of state with the child, or because there is child neglect or domestic violence. 

Besides child custody, ex parte orders can deal with many other issues.  For instance, a party may need to request an immediate order prohibiting a house or other assets from being sold or transferred, to freeze a bank account, or to direct the other party to take some other immediate action. 

What are your other options?

If your situation is not urgent enough to justify an ex parte order, there are other temporary orders that you can request before the divorce becomes final.  Keep in mind that although temporary, at a later time, the order could affect your permanent order, which is why we make sure to carefully handle your request (or to oppose the other side’s request at the hearing).  Or, instead, we can work to negotiate an agreement on child custody and other issues and present it to the court for approval.  This is called a “stipulated agreement,” and again, it’s very important to consider the possible future effects and be careful with the language in the agreement and the terms.  Contact San Diego Law Firm’s experienced divorce and family law attorneys as early as possible to discuss the best strategy for your case.  Reach us at (619) 794-0243.

In May of 2011 former California Governor Arnold Schwarzenegger and his wife of 25 years, Maria Shriver, announced they were separating. According to a recent CNN article, the cause of their rift was a child fathered by Schwarzenegger as a result of an affair he had with a member of his household staff nearly 13 years earlier.

As soon as Schwarzenegger and Shriver announced their separation, the question on everybody’s mind was:  Did they have a premarital (prenuptial) agreement? The answer: nobody knows for sure. If they did not, then Schwarzenegger may be in some trouble when it comes time to divide the assets. According to news channel CNN’s report, “the statement of economic interests lists Shriver’s assets – stocks, real estate, and trust funds – as ‘separate property of the spouse.’”  Conversely, Schwarzenegger’s statement did not contain any separate property items. This means that upon division of the assets, Shriver could very well walk away with half of anything she and Schwarzenegger acquired while married, while items listed as her separate property will remain hers.

This leaves many people wondering: would a premarital agreement protect against situations like this? What can I include in my premarital agreement? These are important things to consider before determining whether a premarital agreement is right for you.

Premarital Agreements in California:

As discussed in this blog’s December 2010 post, “Prenuptial, or premarital, agreements allow couples to decide how property will be divided and/or spousal support paid should the marriage end. These agreements must be carefully drafted and comply with specific requirements in order to be enforceable.” Essentially, a premarital agreement is a contract, and is therefore governed mostly by the principles of contract law.

Many people wonder if there is anything that the law forbids them to include in a premarital agreement. For the most part, premarital agreements can include practically anything, from division of property upon divorce to financial responsibilities during the marriage. However, there are certain provisions that the law says cannot be included, and that are unenforceable if they are included.

Every jurisdiction is different with respect to what may and may not be included in a premarital agreement, but in California, a premarital agreement cannot waive either spouse’s rights to child custody or child support.  The agreement also cannot require either spouse to do anything illegal or unconscionable.  It is legal, however, for a premarital agreements to provide that the entire agreement is unenforceable after a certain number of years of marriage, or to provide for a change in the division of assets as the marriage continues over the years.

No matter how you approach your premarital agreement, it is crucial to have adequate legal representation to prepare it and to advise you of the risks you are undertaking and the benefits you will receive.  For preparation of a premarital agreement, or advice on an agreement that has been prepared by a lawyer representing the person you intend to marry, please contact one of our skilled divorce, support, and custody attorneys here at San Diego Law Firm today. Call (619) 794-0243 to schedule an appointment. We look forward to helping you.

When a divorcing couple owns a house worth MORE than the mortgage, one of two things usually happen:

1. The house is sold, the mortgage is paid off, and the profits are divided; or

2. One spouse keeps the house, refinances the loan in his or her name only, divides any profit with the other spouse, and the spouse who moves out has no further responsibility for the mortgage or the property.

Neither of these options is feasible when the home is upside down.  Instead, one of four solutions is usually chosen:

1.  Allow one spouse to keep the house with an agreement that this spouse will refinance within a specified period of time. Keep in mind that both spouses are still responsible for the mortgage until the refinance is possible, and both spouses should remain on the title to the property.  Refinance will be possible only when the house regains enough value to make it worth more than the mortgage, and only if the spouse who keeps the house has good credit and a sufficient income to pay the mortgage once it is refinanced.

2.  Both spouses hire an attorney to negotiate with the mortgage lender to permit a short sale of the property – i.e., to let the house be sold for less than the mortgage balance, and to forgive the amount still owed on the mortgage.  This may be acceptable to the bank if it will still receive a substantial amount on the mortgage, and if it seems likely that the house may otherwise eventually fall into foreclosure due to the financial stresses of the divorce.

3.  The spouses create a partnership or limited liability company and transfer the house to it.  Both spouses keep paying on the mortgage.  The house is rented out, and the profits or losses are “passed through” to the spouses to be reported on their individual tax returns.  This only works if both spouses are able and willing to keep up on the mortgage payments.

4.  Move out of the home and let it go into foreclosure.  This will allow the couple to escape any responsibility to pay the post-foreclosure balance owed on a “purchase money mortgage” – a first mortgage used to buy the residence.  However, both spouses will still be legally responsible for any balance remaining on a second or third mortgage, or a refinanced mortgage, after the foreclosure sale.  Regardless, this approach is not generally recommended, because “walking away” from any mortgage will severely damage the credit scores of both spouses for many years after that.  If the couple has a large second or third mortgage on the house, Chapter 13 bankruptcy may be a better solution, because it will allow the court to “cram down” second and third mortgages so the total owed on them is no larger than the total value of the house minus the first mortgage.  With a Chapter 13 bankruptcy, good credit can be restored more quickly than it can after a “walk away” foreclosure.

Whatever course of action a divorcing couple decides on, there should always be a written agreement which the divorce court includes in a court order.  This can help protect the good credit of the spouse who keeps making their share of mortgage payments if the other spouse stops paying, because it will allow the paying spouse to have this information noted in their credit report.

Call San Diego Law Firm for Divorce Help with an Upside-Down House  

Our experienced San Diego divorce attorneys can guide you through every step of a divorce with an upside-down home.  We’ll work with you to come up with a strategy that best fits your needs and protects your interests and assets. Please call San Diego Law Firm at (619) 794-0243 to make an appointment.  We look forward to helping you.

Although the speed and convenience of mediation can lead someone to decide they can represent themselves without getting their own attorney, this is not always a good idea.  A mediator, even if licensed as an attorney, does not function as a “shared” divorce lawyer.  The mediator does not represent either spouse, or give either spouse legal advice.  The resulting agreement may not benefit both spouses equally.  A spouse who has hired a divorce attorney to advise them beforehand, or help them at the mediation, or review the final mediation agreement before it is signed, may have a distinct advantage in obtaining favorable divorce terms for themselves.

If you go through divorce mediation without a lawyer and then later have problems collecting alimony or child support, or obtaining valuable personal property that was supposed to be yours under the final agreement, you may find you no longer have the cooperation of your ex-spouse.  At that point, you will probably need a lawyer to assist you.  Unfortunately, though, the lawyer will be stuck with your divorce mediation agreement, including any legal pitfalls in the agreement that you were not aware of when you signed it.  If you instead have an experienced lawyer advising you throughout the mediation, and making sure the final terms are favorable to you, you are much more likely to end up with an agreement that protects your children, property, and future financial security. 

Divorce is a serious legal matter that can affect you for years, and an experienced divorce attorney is a worthy investment.  If you are considering a divorce or are in the process of divorce and need a good divorce lawyer, meet with one of the knowledgeable divorce attorneys at San Diego Law Firm, and let us protect your long-term interests.  We can represent you before or during a divorce mediation, or in any other type of divorce proceeding.  Please call San Diego Law Firm today at (619) 794-0243 to schedule an appointment.

It’s up to the spouse receiving the money to make sure that the money is being paid and to take action if it is not.  Courts in California will not step in automatically.  If your ex-spouse isn’t paying, then you or your attorney can ask the court to deduct support payments from their paycheck; this is called “wage garnishment.”

Maybe wage garnishment won’t work because your ex-spouse is unemployed or self-employed.  Then the next step would be to seek to collect the amount owed from your ex-spouse’s bank accounts or from a forced sale or his or her other assets, such as stock or real estate.

Spousal and child support awards are given after thoughtful analysis by the court and based on conclusion that you need the support and that your ex-spouse can afford to pay it.  If your ex-spouse is truly unable to make the payments, then he or she can ask the court to reduce the award.   If the payments turn out to be inadequate and your spouse can pay more, you can ask the court to increase the award.  Until the court modifies the award, any missed payments are still due in full, but only in the amount previously awarded.

If your ex-spouse has assets or income, and if you have been awarded alimony or child support but have not been able to collect it, San Diego Law Firm’s knowledgeable and experienced attorneys can help you.  We can seek a court order to let us collect the amount owed you from your ex-spouse’s income or their property.  We can also prepare a financial statement and file for a modification with the court if the payments simply aren’t enough anymore.  If your ex-spouse is falling behind in spousal or child support that they can pay, or you feel that an increase in support is needed, please call San Diego Law Firm today at (619) 794-0243 to schedule an appointment.

As a sociologist recently explained, no marriage is conflict-free, and those conflicts may fall into one of four categories.  First are “one-time, solvable problems,” which are conflicts created by a particular situation, not a clash of personalities.  Second are “cyclical conflicts,” which are ongoing, but alternate between being a big problem at some times, a small problem at others.  Third are “deal-breakers” – the sort of conflicts that cannot be solved by agreement, because they arise from a fundamental difference in personality or belief.  Lastly, there are “wounding problems.”  These conflicts arise over and over – like cyclical problems – but they tend to produce feelings of hurt and frustration, and can be very difficult to resolve. 

Unfortunately, conflicts do not evaporate once a couple decides to end their marriage.  Instead, they often contribute to making a divorce contentious.  For this reason, if you are getting divorced, it’s helpful to have an attorney who can buffer conflict for you and help reduce the amount of stress and difficulty you experience during the divorce process.   The divorce attorneys at San Diego Law Firm are skilled at using use their negotiation and advocacy skills to help resolve all types of property, child custody, and support conflicts.  We are also experienced in using collaborative law or mediation to resolve divorce conflicts when appropriate.  You don’t have to go through a divorce on your own.  Please call (619) 794-0243 to set up an appointment with the experienced family law attorneys at San Diego Law Firm.

Currently, California is not issuing marriage licenses for same-sex couples.  While the Proposition 8 controversy is pending, though, same-sex couples can continue to form legally-recognized domestic partnerships.

Filing a Declaration of Domestic Partnership with the state provides couples with certain legal and financial advantages.  Among the benefits is the right of one partner to be covered under the other’s employer health insurance where the employer offers coverage to spouses.  Partners are also entitled to various property rights, inheritance rights, and state tax advantages. 

As one real estate expert notes, issues may arise when domestic partners jointly purchase real property without planning on how the property will be handled if the relationship ends.  In California, community property law applies to registered domestic partners, and most property acquired during the partnership will be equally owned by both partners.  However, property rights can be modified through a Domestic Partnership Agreement, which can specify how a couple’s assets and debts will be handled if they separate.  Couples may agree that if they separate, the home will belong to one or the other of them, or that one partner can buy out the other at an appraised price, or that the property will be sold and the net proceeds divided between the partners.

The attorneys at San Diego Law Firm have many years of experience in creating domestic partnerships.  If you are considering forming a registered domestic partnership, we can explain its benefits and potential drawbacks, help you decide whether a domestic partnership agreement is right for your situation, and, if you decide that it is right for you, we can draft a domestic partnership agreement that will protect all of your rights.  Please contact San Diego Law Firm today at (619) 794-0243 to arrange a consultation.