Unique Issues for the Baby Boomer Divorce

Unique Issues for the Baby Boomer Divorce

It’s no secret that Baby Boomer Divorces are on the rise.

According to the Office for National Statistics, divorce is decreasing in every age group except for couples in their 60s. U.S. Census Bureau reports that 25% of all divorces occur between couples who have been married 20 years or longer.

DIVORCE TIPS FOR BABY BOOMERS
1. Settlement is more important than ever: Legal Fees can be far more expensive for divorces with assets over 1 million dollars. When choosing an lawyer to assist you, ensure that s/he is experienced with not only litigation, but mediation or collaborative law as well. A talented negotiator with a strong legal strategy can help keep legal fees reasonable, confrontation low and the “damage” controlled.
2. Social Security: Just because social security benefits cannot be divided in a divorce, does not mean you should ignore the rules that impact your benefits if you marriage lasted more than 10 years. Educate yourself on rules that such as whether or not you are entitled to survivor benefits if your former spouse dies. Additionally, if you are over the age of 62, you can collect benefits after the divorce on your former spouse’s record without your former spouse receiving a reduction of their own benefits.

Sign up for a free subscription to read our full list of tips for baby boomers looking at a divorce.

Divorce and Pets — Who gets Fido?

Divorce and Pets — Who gets Fido?

In California, pets acquired during marriage are presumed to be community property.

What does that mean? In a divorce or domestic partnership dissolution, the family court assign the pets similar to the way they divide property such as furniture or vehicles.

one spouse gets the pet, and the other does not.
I have not had any cases where the court ordered a shared custody arrangement of the pet when the parties are in dispute.

However, despite the general rule of pets being considered as property, they have gained some important legal rights. Sign up for a free membership to learn more about the rights of your pet during a divorce, as well as advice about avoiding a property dispute in court.

Why is date of separation so important in a California divorce?

Why is date of separation so important in a California divorce?

Date of Separation is often a hotly contested issue in California divorce actions. Why?
The reason date of separation is so important is because duration of marriage often profoundly affects two important issues in divorce:

– Spousal Support
– Community Property
When does separation occur?
Separation occurs when either party does not intend to resume the marriage and his or her actions bespeak the finality of the break in the marital relationship. The problems in the relationship must be so serious that there is no reasonable possibility of eliminating, correcting or resolving the issues. In other words — a complete and final breakdown of the marriage.

Of course, the above definition isn’t always easy to determine and therefore many cases are bifurcated to determine the date of separation prior to other issues pertaining to the divorce. Briefly, the court will look to conduct when deciding when a “separation” actually took place. I have litigated cases where one spouse argued that the date of separation was when that spouse moved out of the family residence. Despite this compelling fact, my client prevailed on her claim that the separation date was actually several years later — by offering evidence that the parties continued to eat dinners together, vacation regularly, file joint tax returns and maintain the same mailing address. In a different case, even though the parties continued to reside together and even slept together 1-2 times post-“separation”, the court ruled that they lived “separate and apart” for purposes of date of separation. In that case, the parties had each moved on to serious dating relationships, disentangled their finances (except for the house which they both wanted to keep – but neither could afford on their own), told their families and friends that they were getting a divorce, did not go to any social events together, communicated only by email and slept in separate bedrooms.

Sign up for a free subscription to read on about how date of separation impacts spousal support and division of community property.

10 Tips for the Self Represented in Family Court

10 Tips for the Self Represented in Family Court

For the uninitiated, the idea of representing yourself in family court seems outrageous. Why wouldn’t you hire a professional? Well, there are a number of reasons self-representation might be right for your subjective situation. Whether you’ve made the decision to represent yourself or you’re still on the fence, it’s important to be prepared.

Read through our 10 tips or the self-represented in family court, and make sure you’re ready for anything.

Home is where the heart was; Divorce & the family home (Part 1)

Home is where the heart was; Divorce & the family home (Part 1)

Once we get past these initial questions, the focus shifts to disposition of the home. Who will keep the house? Should one spouse buy the other out? Am I more likely to get the kids if I keep the house? Will we have to sell? How will the proceeds be divided? What if the home was owned by my spouse prior to marriage and I was later placed on title? What if I was never placed on title, do I have an equity interest? If we can’t agree on division, will the court make us sell? Can we keep the house until the kids turn 18 and then sell? What if I used my inheritance to pay down the mortgage or make improvements to the home?

Sign up for a free Hello Divorce membership to find the answers to your questions about the home during your divorce.

Home is where the heart was; Divorce & the family home (Part 2)

Home is where the heart was; Divorce & the family home (Part 2)

Part one of this blog focused on whether or not one spouse had an interest in the property (even if their name was not on title) and what possible reimbursements either party was owed.

This blog is focused on different options you may have if you own a real property home at divorce. Keep in mind that if you and your ex DO NOT COME TO AN AGREEMENT, the likely result is that the house will be ordered SOLD by the court. If there’s no equity, usually the best option is short sale (as opposed to foreclosure) and unless you are both looking to get the house off of your shoulders — this is probably not a result you would want. Therefore it may be a good idea to negotiate a settlement — it won’t be perfect but it will limit the ‘damage’.

Sign up for a free Hello Divorce membership to learn more about your different options.

What is a Legal Coach and should I get one?

What is a Legal Coach and should I get one?

Depending on the complexity of your case and your financial circumstances, a legal coach (aka consulting lawyer) may be a great way to obtain assistance with your Divorce or other Family Law Matter. At Hello Divorce, we structure agreements that clearly outline the parameters of our role in your case so cost is clearly defined and you are well versed on what we can and will help you with. Some of our most positive reviews have come from clients who have utilized the ‘divorce coach’ option to: Negotiate a legal strategy and implement it; Draft documents to present in court; Review and ‘sign off’ on an Agreement; Provide advice and guidance through a Mediation process and/or Learn about the law…

Is a gift from your spouse really a gift?

Is a gift from your spouse really a gift?

When you are given a gift of substantial value from your spouse or Registered Domestic Partner, you might be in for a surprise at divorce in California. Why?
If you do not have an express writing from your spouse, then it will likely be deemed community property upon separation. Additionally, if that gift was paid for from your ex’s separate property funds (an inheritance maybe?), your spouse will likely be able to claim a Family Code section 2640 reimbursement for the funds spent on the acquisition of the gift. In other words, you get nada.

Sounds harsh, doesn’t it? Don’t get left in the dark as far as gifts are concerned. Keep reading, and we’ll fill you in on the details.

Plan B: Why the Happily Married Should Consider a Post-Nuptial Agreement

Plan B: Why the Happily Married Should Consider a Post-Nuptial Agreement

What the heck is a divorce lawyer doing writing a blog for two people in love, married, and with no intention of ever separating? Hmmm…Is it because I’m unromantic? cynical? distasteful? Gosh, I hope not.

I guess I’ve seen a lot of good love gone bad. I’ve seen once happily married people saying things like, “she was my best friend, but I don’t even know her anymore” or “I’ve worked so hard for what I’ve earned, he doesn’t deserve what he’s demanding” or “I’m going to make her pay for giving up on us.”
But despite what we say in the heat of passion or when reacting to a broken heart, we loved and respected this person enough to marry, sometimes have children with, and share our most intimate moments.

So, are you happily married? I don’t think that means you shouldn’t consider a post-nuptial agreement, and here’s why.

Should I stay or should I go? 5 issues to consider before you move out of the marital residence.

Should I stay or should I go? 5 issues to consider before you move out of the marital residence.

Each divorce is different, and every case requires legal advice tailored to the client’s individual situation. However, there are certain issues that everyone should consider before taking the leap to move out (even if you can no longer deal with your spouse). Of course, if there is domestic violence or another abusive situation, the goal is to get out – now. Or better yet, get the abuser out. Otherwise, there are certain considerations to be made.

While your head is spinning with potential scenarios in the onset of divorce, we’ve narrowed down some of your major issues to contemplate. Sign up for a free subscription to read on.

7 Tips for Collecting Your Family Law Money Judgment

7 Tips for Collecting Your Family Law Money Judgment

So, you have spent months (or maybe even years) reaching a resolution in your matter, but the process is not over yet. If you received a money judgment against your ex-spouse as part of your Judgment, you still need to collect these funds and you probably want to do it quickly and cheaply!

Here are some simple, and some not so simple, but effective tips for collecting money owed to you.

Our Postnup Primer

Our Postnup Primer

Post-nuptial agreements are a written consensus between two parties, entered into after the marriage occurs. The purpose of a post-nuptial agreement (also known as Marital agreement or Transmutation agreement) is similar to the purpose of a pre-nuptial agreement in that it helps parties work through potential problems before they occur so there are less surprises down the road.

A post-nuptial agreement offers protection to both parties by allowing the couple to discuss the division of assets without leaving that division up to guidelines provided under California law.

California couples have many reasons for seeking post-nuptial agreements immediately after or during the marriage. Keep reading to see if a post-nuptial agreement is just what you’ve been looking for.

My Debt or Yours? How student loans are treated upon divorce.

My Debt or Yours? How student loans are treated upon divorce.

The news has been full of headlines highlighting ballooning student loan debt. Between 1993 and 2015, the average debt accumulated by students attending four-year colleges nearly quadrupled, from $9,450 per student to $35,000, with 2015 graduates given the unenviable title of “most indebted class ever”. For graduate students, the average debt per student is even higher.

Student loan debt is becoming a regular fact of life for many, many Californians. For current and former students who are either married or contemplating marriage, it’s important to understand the intersection between student loans and community property.

Keep reading, and let’s talk about what the default rules are.

Should I Stay or Should I Go? Date of Separation Laid to Rest

Should I Stay or Should I Go? Date of Separation Laid to Rest

One of the first questions a divorce lawyer will ask you when you come in for your initial consultation is ‘What is your date of separation?’

Why is date of separation so important anyhow?

The “date of separation” can have a significant impact on your rights/obligations in your divorce proceeding. The Court is tasked with dividing equally your community assets and debts. The date of separation marks the end date of the accumulation of community assets and debts. For example, after you “separate” you no longer continue to accrue a share of your spouse’s retirement and you are not responsible for credit card debt incurred by the other party after that date. Additionally, once you have ‘separated’ within the meaning of California Family Law, your earnings are no longer considered community (joint) property. The date of separation also determines the length of marriage, which can have major impact on your spousal support obligation/entitlement as the length of marriage is one of the guiding posts for determining the length of spousal support.

Sign up for a free subscription to learn more about how the date of separation is determined and how proceedings can help or hurt your case.

You, Your Spouse, and…. (3rd Parties Joined to Divorce Actions)

You, Your Spouse, and…. (3rd Parties Joined to Divorce Actions)

Most people are aware that in Divorce or Domestic Partnership Dissolution, certain employee benefit plans can be joined to the action to ensure that retirement accounts are divided prior to the completion of the case. However, there are additional ‘joinder provisions’ in the Family Code that provide for ‘interested parties’ to be joined to a case in certain situations. While not commonly utilized, joinder provisions can be crucial to protecting rights and/or limiting a spouse’s exposure in divorce. Once joined, the third person effectively becomes a party to the case.

When might a party have a recognizable interest in a marital action?

Interest claimed in marital property: If third persons hold title to or otherwise claim an interest in real or personal property that is subject to disposition in the proceeding, the court may join such persons to the action. The court may also join a third party if they are necessary to the enforcement of an issue. Examples? (1) Say Husband has an affair during the marriage and lavishes his girlfriend with gifts paid for with Wife (or Husband’s) earnings during the marriage. Wife might seek to join girlfriend to the action. (2) Wife and her business partner own 30% of a corporation. That 30% is community property and the corporation may need to be joined to the action to ensure its interests are protected and/or Husband receives his equity share in the asset.

There are several other cases when a party might have recognizable interest in a marital action. Sign up for a free subscription to read on.

Divorce Court 101

Divorce Court 101

Most people who end up in a family law courtroom have never been to court before. Perhaps they’ve served on a jury or appeared for a traffic infraction – but rarely has a divorce litigant actually been in front of a judge — fighting for what is most important to them: family, financial stability and emotional security. To prepare you to face the unknown and demystify the divorce process, we offer a rundown on the basics of what to expect. Sign up for a free membership to read on.

What is Financial Discovery?

What is Financial Discovery?

Not all Family Law cases require financial discovery. However, there are many cases in which a spouse must take the extra step of investigating all financial issues of a marriage or registered domestic partnership to obtain sufficient information to negotiate or litigate. In these matters, there are several methods by which you can seek much needed information and documentation to get an accurate financial picture.

When should you consider propounding discovery?
While you should be very cautious about when/if discovery is necessary in your case (it can get very expensive and increase the level of animosity between litigants), if some or all of the below questions apply to your case, you will want to consider strategizing a plan for discovery.

What if you do not have enough money to conduct discovery?
If a party doesn’t have enough funds to undertake discovery, they may want to consider seeking an order from the court for payment of lawyer fees and costs from joint funds or from the separate property of the other spouse. The Family Code authorizes awards of fees and costs necessary to permit a party to litigate properly in certain circumstances. Additionally, if you propound discovery and your spouse does not thoroughly respond, you may have a cause of action against them for sanctions (mandatory fees and costs).

Wondering where to start and what to keep in mind? Sign up for a free subscription to read more about financial discovery.

Rules of Engagement in Divorce: Play Fair or Pay Up

Rules of Engagement in Divorce: Play Fair or Pay Up

Between the time the divorce petition is filed and the final entry of judgment, parties are under the purview of the Family Court System. This allows parties to request their family law judge make certain orders. It also means that the parties are bound by certain rules of engagement.

These rules of engagement are largely designed to protect each party’s ability to fairly litigate or negotiate the custody, support, and property division issues within their case.

The first set of rules apply automatically from the very beginning of the case. In other words, these rules apply to the Petitioner as soon as he or she files for divorce and apply to the Respondent as soon as he or she is served with the divorce petition.

Read on to make sure you’re playing by the rules, or it could cost you more than you’re willing to lose.

Suspect Your Spouse is Hiding Assets During Divorce?

Suspect Your Spouse is Hiding Assets During Divorce?

Hopefully, you’re never in a situation where you believe that your spouse has failed to disclose marital assets in your divorce proceedings. Unfortunately, there are times when one party to the divorce or domestic partnership dissolution has taken active steps to conceal money or property in an effort to preserve what they consider to be their own money and keep their former partner from gaining a share in it. Bad faith financial activities often result in an unfair settlement (if they are not uncovered prior to resolution of the divorce action).

Sign up for a free subscription to read on about more starting points in search for concealed assets, as well as a discussion as to whether or not you should really be concerned.

Understanding QDROs: Dividing Retirement Plans in Divorce

Understanding QDROs: Dividing Retirement Plans in Divorce

In short, Qualified Domestic Relations Orders (QDRO’s) are often used in a divorce proceeding to serve two functions:

– divide retirement benefits earned during marriage and/or a registered domestic partnership; and
– allow payment of child or spousal support from an employee’s retirement benefits.

What is a QDRO?

A QDRO, as stated above, is a Qualified Domestic Relations Order. To be deemed “Qualified”, the domestic relations order must recognize the right of a non employee spouse to receive all or a portion of the benefits payable to the employee spouse. QDRO’s must be very specific, including (among other things)

– the name and mailing address of each ‘alternate payee’ (the spouse who was not the employee that earned retirement benefits through her/his employer);
– the amount or percentage of the benefits that will be paid to the alternate payee (or a formula detailing how the amount will be determined); and
– the number of payments that will be provided or a time period to which the order applies.

A QDRO may NOT provide that the non-employee spouse receive a benefit not otherwise provided by the retirement plan.

Looking for more tips on how a QDRO works and why you might want to use one? Sign up for a free subscription to read on and learn more.

How Social Media Can Undermine your Divorce Action

How Social Media Can Undermine your Divorce Action

More than ever, litigants and lawyers are using social media to collect information that they can use as ‘evidence’ in a Family Law Case. Facebook, LinkedIn, Twitter, Instagram and various dating websites are all popular places to look when in the midst of a messy divorce.

Why are social media posts important to a Divorce or other Family Law action? Most of us with a smartphone spend a lot of time tapped into some form of social media. Popular posts include sharing a fun photo of a family outing, a ‘check in’ at an out of town event or vacation spot, a statement a rant about an unfaithful spouse or a request for advice on a specified topic. In divorce cases, all these posts can end up in a court of law — used as evidence against a party, thereby affecting spousal support, child support, child custody and/or property division.

Keeping reading, and let us help you make sure you’ve got your social media accounts under control before your divorce.

What Is “Community” Property?

What Is “Community” Property?

California is a community property state, which affects how assets and debts can be divided in the event of a divorce. Community property means any property (including income) that is earned or incurred by either person during the marriage. With few exceptions, all property acquired from the date of marriage until the date of separation will be considered community. The exceptions comprise ‘separate property,’ which is anything acquired before the marriage (and any income produced by those ‘separate property’ assets), or any gift or inheritance received at any time. In California, there is a presumption of community property if it was earned during the marriage; however, this can be rebutted by evidence. Property acquired after the date of separation is considered separate. The date of separation can be difficult to prove. It is not always the date one party moves out of the marital residence. The law says that it is the date one of the spouses has decided to end the marriage and objectively acts as if they are no longer in the marital relationship. There must be an act of physical separation along with other actions that can clearly show the decision of the spouse to separate.

Sign up for a free subscription to read on about the separation of debt and assets in community property as it pertains to divorce.

How Can I Enforce a Court Order?

How Can I Enforce a Court Order?

If your spouse isn’t complying with visitation schedules and child support rulings, you might just be pulling your hair out in desperate need of some stability, wondering where to go next.

First, try speaking to your ex directly. Make sure he/she understands that you do not wish to go back to court to address this bad behavior, but if it does not stop that you will do what is needed in the best interest of your children. If this fails to work, then you will need to seek court intervention.

Sign up for a free Hello Divorce membership to learn more about your legal options to enforce a court order.

What Is a QDRO?

What Is a QDRO?

A QDRO (pronounced ‘Quad-ro’ for those in the know) stands for a Qualified Domestic Relations Order. This is basically an order from the court that recognizes a non-account holder’s (or an alternate payee’s) right to receive some portion (or even all) of the benefits payable to the retirement plan participant. QDROs are used if you and your divorcing spouse decide to split up certain kinds of retirement plans.

QDROs are specific to each plan, and are often highly complex. They are required to actually award the other spouse the retirement plan (or a portion), even if the parties have included the division in a decree, signed it and had it approved of by a judge. That’s because retirement accounts are very often controlled by federal ERISA law. In fact, retirement plans are not required to follow other orders concerning alternate payees UNLESS it is a QDRO. State courts are permitted to issue these kinds of orders, but they are usually drafted by experienced lawyers or even other companies which specialize in drafting QDROs, usually after preliminary approval by the plan administrator itself.

Sign up for a free subscription to read on about what a QDRO must contain under ERISA, as well as the drafting process.

What Is “Separate” Property?

What Is “Separate” Property?

If California is a “community property state,” then what is separate property?

Separate property is any asset or debt that was acquired before the marriage or after separation, or any property that was received through a gift or inheritance at any point, or any earnings deriving from a separate property source during the marriage. Timing is the key issue in determining whether property is community or separate. Property characterization is crucial for determining the division of assets and debts in a divorce. For the most part, anything acquired by one spouse up to the day before marriage is considered separate property, and anything acquired after the spouses separate from each other is also considered separate.

The date of separate can be contentious, as it is not necessarily the same date one party leaves the marital residence. Rather, it is the date that one party decides to end the marriage, coupled with a positive action to be separate. This action can be something like opening a separate bank account, filing for divorce, or even something as simple as announcing separation to the other. If the parties cannot agree on a date of separation, the court must decide. Courts will usually err on the side of a later date as opposed to earlier, in order to include more community property in the division. You can see how this could be a thorny issue, particularly if a spouse has received a huge bonus, closed a big deal, or earned some other asset shortly before separation.

Sign up for a free subscription to read on about how California law determines whether property is separate or not and how to protect your assets.

Complete List of CA Divorce Forms, with Links

Complete List of CA Divorce Forms, with Links

Petition (FL-100): This is the document that initializes your divorce with the Court. It is the first thing you file and requires a $435 filing fee. Download Petition for Divorce now. Template: Petition for Divorce Summons (FL-110): This is the document that accompanies your Petition. It is a notice to the other party that a case has been opened with the County Superior Court and requires a response within 30 days of service. Download Summons now. Template: Petition for Divorce & Summons UCCJEA (FL-105) : This is the document that, if you have minor children, tells the Court when there children have lived for the past five years and helps the Court to determine whether they have the jurisdiction to…

Ten Important Laws You Need to Know About (if You’re Getting a Divorce)

Ten Important Laws You Need to Know About (if You’re Getting a Divorce)

1. Spousal Support (Family Code Section 4320): While pre judgment spousal support is generally calculated using a formula, long term spousal support is determined by review of various factors. Some of the factors the court considers include:
– Age and health of the parties
– Marital standard of living
– Debts and assets of each party
– Duration of marriage
– The ability of one spouse to pay spousal support
– Possible need for retraining or education to the supported spouse
– Periods of unemployment for one party who stayed home to tend to domestic duties.

2. Domestic Partners (Family Code Section 143): This law clarified that “spouse” includes “registered domestic partner.” All references to “husband” and “wife” in the family code now apply to domestic partners as well.

3. Temporary Spousal Support (pre divorce) (Marriage of Samson, Marriage of Stanton (2010) 190 CA4th 547): A change of circumstances is required to modify a temporary spousal support order. An example would be one spouse losing their job or the other receiving a raise at their employment.

4. Calculating Child Support (Family Code Section 4055(a)):While it’s a lot easier to calculated child support using the Department of Child Support services calculator, we get a lot of people asking us about the actual formula. FC 4055(a) specifies it.

Sign up for a free subscription to continue reading about laws that you need to be familiar with before proceeding into your divorce.

Child Support Calculator

Child Support Calculator

Calculate an estimate of California child support by entering in all of the requested information below. The results will help inform your position for mediation and/or negotiation with your spouse. We recommend however, that prior to litigating this issue in court, you have a formal calculation prepared. Disclaimer Hello Divorce’s child support calculator has not been approved by the State of California and therefore not admissible in court. It is for estimation purposes only so that you can generally get an idea for what child support may look like in your case. We do not advise you to rely solely on this calculator for negotiating, mediating or litigating support. The use of this calculation alone does not constitute legal advice…

Five Reasons Your Divorce Judgment May Have Been Rejected (& What to Do about It)

Five Reasons Your Divorce Judgment May Have Been Rejected (& What to Do about It)

You have spent hours poring over all of the forms necessary to finalize your divorce. You researched online, browsed a DIY book, and maybe even had a meeting or two with a lawyer. You were finally able to get your spouse to sign and have his/her signature notarized (which was a huge feat in and of itself). You gathered your self-addressed stamped envelopes, made copies of your Judgment and took time out of your (busy) day to drive across town to the courthouse, stand in the clerk’s line and submit your paperwork. Then….. a few days, weeks or months later, you receive an envelope from the court! Inside is not you Judgment — it’s a letter from the court “rejecting your judgment.” Ughhhh! Sound familiar? You’re not alone if it does, because we see hundreds of people each year who need help getting their divorce completed.

We’ve compiled some of the top reasons why Judgments are rejected, and have advice on what to do about it! Sign up for a free membership to read on.

Dividing Personal Property in a Divorce

Dividing Personal Property in a Divorce

Because personal property is defined as everything that you and your spouse own that is not real property (real estate), this category covers a vast number of items.

Here is a list of typical examples from dissolution cases:

• Household furniture and items
• Bank accounts
• Stocks and bonds, stock warrants, and stock options
• Copyrights, patents, and licenses
• Royalties
• Motor vehicles, aircraft, and boats, along with their associated equipment
• Pets, including racing and show animals
• Collectibles such as paintings, other art work, rare books, coins, stamps, antiques, jewelry, and musical instruments
• Safe deposit box contents
• Club memberships
• Hotel points and frequent flyer miles
• Accrued vacation from an employer
• Judgments due to a party or potential civil claims.

Personal property is not commonly appraised in a family law proceeding because the cost of litigating the property interests in these items generally exceeds their value. Household items, such as furniture and dishware, are usually valued at their ‘garage sale’ value. In other words, unless the furniture is an antique, the value is the resale value, not what you purchased it for. However, highly valuable items of personal property (vehicles, boats, airplanes, antiques, collectibles, furs) may need to be appraised.

Apportioning everything can feel overwhelming. Subscribe for a free membership to read on about tips for getting through the process.

Five Points to Consider if You or Your Spouse Has a Business

Five Points to Consider if You or Your Spouse Has a Business

1. A Business Is an Asset

Though the spouse who owns the business may feel proprietary over it, a business is an asset. And because it is an asset there must be a determination of whether it is separate or community property, or a combination of the two, and a valuation of the business. However, these determinations are not easy to make.

2. What Type of Business Is This

A community business is one that is started during the marriage.
A separate property business is generally one that is started before the marriage or a business started during the marriage with separate property funds. This may have a community interest, but is separate property.
If a spouse establishes or acquires a business with separate funds, there will need to be a tracing in order to apportion the separate property and community property interests. If the party making a separate property claim cannot perform an adequate tracing, the business investment will be presumed to be entirely community property. Note that any increase in the value of a business or profession attributable to community skills, efforts, or industry is community property.

Sign up for a free Hello Divorce membership to read more points to consider if you or your spouse have a business.

10 Tips for Writing a Persuasive Family Law Declaration (to Attach to Your Request for Orders)

10 Tips for Writing a Persuasive Family Law Declaration (to Attach to Your Request for Orders)

A declaration is a written statement made under the penalty of perjury. If you are filing a “Request for Order” (or responding to a “Request for Order”) asking that the Judge enter orders providing you some type of temporary “relief”, you will need to attach a declaration explaining the basis for your request and the facts that support it.

Your declaration will be read by your judge and possibly even your court mediator if child custody is at issue. Your spouse will also read your declaration and if you establish strong enough facts, it might give you the leverage you need to settle issues before they end up in the courtroom.

Read our 10 tips for ensuring your declaration is on point!

Your Hello Divorce “Cheat Sheet” to Self Representation

Your Hello Divorce “Cheat Sheet” to Self Representation

If you’re navigating divorce without legal representation, we’ve got your back! Review this outline to understand what will happen throughout the divorce and what you need to do. Don’t forget to utilize Hello Divorce’s (other) free legal resources along with our instructional templates and DIY instructional videos.

If you want an experienced lawyer to prepare or review your documents before you submit them to the court or help you plan your position or give you pointers for negotiation – we help with that too. We offer ongoing flat-fee help throughout your divorce. If you decide to go the Mediation route, we will guide you through each step and form so sit back and relax.

Sign up for a free subscription to gain access to our cheat sheet to Self Mediation.

Divide, Buyout or Cash-out Retirement Accounts?

Divide, Buyout or Cash-out Retirement Accounts?

There are several types of retirement benefits that you or your spouse may have. The IRS provides descriptions of the different plans here. The most common plans we see are defined benefit plans (similar to pensions), profit sharing plans, 401k’s, IRA’s and other deferred compensations benefits.

Your first inquiry is determining whether all or any of the retirement asset is community property. The asset is all or partially community property to the extent employee or employer contributions were made during the marriage and before separation. The amount of the contributions during marriage plus any gains or losses since date of separation is the community portion. Community property is ordinarily divided 50/50.

Confused? Keep reading, and we’ll help you understand what portion of your retirement accounts are on table during a divorce settlement.

Property and Debt Division Cheat Sheet

Property and Debt Division Cheat Sheet

When and Why When: When you and your spouse are ready to dive into the ‘nitty-gritty’ and divide you assets and debts. You can use this spreadsheet for everything from weighing your options, negotiating with your spouse (and/or his or her lawyer), to attaching it to your final agreement. Why: You can’t split every asset or debt (nor would you want to) equally. This spreadsheet allows you to enter in all of your property and/or debt (separate and joint!) and assign it to the spouse who wants it. Once you’ve accounted for everything you both own, you will know who is receiving more $$ and then determine if either party owes the other a sum to equalize the division. How to Use…

Social Security Benefits & Divorce – 10 Facts You Need to Know

Social Security Benefits & Divorce – 10 Facts You Need to Know

1. A marriage of at least 10 years triggers social security rights.
2. Ten years is defined as Date of Marriage to Date of Divorce. So, for example, even if you separated with your spouse at eight years, you may still be able to collect social security based on your ex spouse’s record, so long as the divorce was not finalized until you hit that 10-year mark.
3. Your benefit as a divorced spouse is equal to one-half of your ex-spouse’s full retirement or social security disability benefit (assuming you start receiving benefits at your full retirement age). If you begin drawing from social security before your full retirement age, your benefits will be reduced.
4. Social security benefits that you (ultimately) receive based on your ex-spouse’s contributions to social security do NOT reduce your ex’s benefit.

You have questions and we have the answers. Sign up for a free subscription to read on more need to know facts about social security as they pertain to divorce.

How to Keep Your Divorce Conversations Productive

How to Keep Your Divorce Conversations Productive

First things first. If you want to negotiate an agreement with your spouse, you have to remember (and accept) the following principles:

• Be mindful that your purpose is to avoid arguing and to be as persuasive as possible.
• The communication issues you had during your marriage will not go away in separation.

What does that mean? It means you need to manage your expectations and negotiation style or risk one or more of the following: constant arguing, bickering, flat out fighting, delay, defensiveness, lack of progress, and disappointment.

You have to remember, especially if you have young children with your spouse, that you are going to have to communicate with this person for a very long period of time. Let us help you ensure the ongoing conversation will always be productive.

I Am Not on Title to Our House, Is it Still Joint Property?

I Am Not on Title to Our House, Is it Still Joint Property?

Is your house still joint property if you’re not on the title?

Well the long answer is “maybe, and the short answer is, probably “yes!”
Why can’t lawyers just say “yes” or “no?” Why does everything have to be so complicated? Well, partially because the law is not just made up of statutes of codes. We also have to consider “judge made law” – law that is created as a result of a decision a judge or panel of judges made on a particular case.

In marriage, we do all sorts of things that we wouldn’t necessarily do with a business partner. For example, we may put one spouse on the title (grant deed) to a home to avoid the mortgage company running the credit of a spouse with low credit. This doesn’t usually mean that the parties intend for the home to be the sole property of the titled spouse – rather, we make these choices to better our financial position (obtain a lower interest mortgage rate, etc.).

Find out if your house is still joint property with a free subscription.

Presenting Evidence in Family Court

Presenting Evidence in Family Court

Most people (even some lawyers) don’t expect the Evidence Code to apply in family law in the same way that we see it used in Criminal or Civil Law. The fact is that it most often does. Even when we are in front of a judge who has a more informal approach (allows evidence to be considered without meeting all of the legal criteria), general knowledge of the rules of evidence can really help you to gain a legal advantage in your divorce or other family law action.

Why? Well, many judges will review evidence (such as out-of-court statements, school records, agreements, police reports, financial records, title to property, proof of payment, social media postings, photographs etc.) without a proper foundation unless the opposing litigant or lawyer makes a objection.

Keep reading to make sure you don’t get blindsided as far as a judge reviewing evidence is concerned.

Tips for Getting Your Spouse On Board with Mediation

Tips for Getting Your Spouse On Board with Mediation

Mediation, whether through Hello Divorce, with a trained mediation counselor or a divorce financial planner, can be a great option for resolving the issues pertaining to your divorce. At Hello Divorce, we not only guide you through the negotiation process, we prepare your divorce judgment and all the mandatory documents that go with it. Learn more about Hello Divorce Mediation.

Mediation works best for separating couples who share the common goals of reaching a resolution that feels fair, and saves time and money. Most important, both spouses must be able to act in good faith and be transparent with finances. If you have made up your mind that mediation is the best option for you, consider sharing the information below with your spouse in an attempt to get her or him to “see the light” and get past their reservations.

Some of the feedback we’ve heard about why one spouse is hesitant about mediation include: it’s a waste of money/time (“we can do this on our own”); it’s too much time to be in the same room; “I can get a better result if I go in front of a judge” (usually a bluff); too far apart in positions; it’s too hard to coordinate schedules; or “I need financial support now and can’t wait to see if mediation works.”

Not Doing It Will Cost More
For the spouse who says it’s a waste of time and money, point them to national statistics that estimate the average cost of divorce (per person) is approximately $15,000 (with California likely averaging much more). If your divorce proceeds to court, expect fees to go up dramatically with costs for experts and court reporters added to that. Mediation with an experienced mediator usually totals around $3,000 – $4,000 per person and includes everything from the actual negotiating piece to the preparation, filing and service of all required (and optional) pleadings (documents).

Mediators can save both of you lots of time and money since you don’t have to learn how to navigate the complicated divorce process and sessions are focused on issues that matter since ground rules are instituted to keep your eyes on the prize. Sign up for a free subscription to read more tips for getting your spouse on board with mediation.

What to Wear to Court

What to Wear to Court

As a general rule, you should think of the courtroom as a formal environment. Dress as you would when going for an important job interview or to church. You can be barred from the courtroom if you violate the Court’s dress code.

Suggested Guidelines
Men: wear shoes with socks; long pants (on pants with belt loops, wear a belt); collared shirt (tucked in) with a tie, with or without a jacket. Pants must be worn at waist level.
Women: wear shoes; a knee length or longer dress or skirt; or long pants; a blouse, sweater or casual dress shirt.

You will NOT be allowed to enter the courtroom wearing the following inappropriate clothing (being asked to leave to change, can affect the outcome of your matter):

Shorts
Hats (men) or hair curlers (women)
Halter or tube top
T-shirt or muscle shirt
See-through top
Flip flops
Clothing that exposes your midriff or underwear
Ripped or torn jeans
Baggy pants that fall below your waist
Clothing with an emblem or wording that promotes illegal or inappropriate activity
Clothing that depicts or promotes violence, sex acts, illegal drug use or profanity

It may not be the runway, but if you’re still in wardrobe malfunction more, we have more fashion tips for your court appearance available with a free subscription.

Mandatory Financial Disclosures: In a Nutshell

Mandatory Financial Disclosures: In a Nutshell

In California, each party to a divorce is required to complete a set of mandatory documents entitled “Preliminary Declaration of Disclosures” prior to any Judge or Commissioner granting their divorce. These documents include an Income and Expense Declaration (FL-150), Schedule of Assets and Debts (FL-142), Declaration of Disclosure (FL-140), and a Declaration Regarding Service of Declaration of Disclosure and Income and Expense Declaration (FL-141).

Our 12-year veteran divorce paralegal, Shelley VanRenselaar, gives a brief ‘how to’ on completing, filing and serving these documents so that you can move on toward finalizing your divorce.

FAQ: What is a divorce by default?

FAQ: What is a divorce by default?

As if “divorce by default” isn’t a foreign enough term on its own, we get the wonderful opportunity to inform you that there are actually two types. Both types refer to a divorce where one party files a petition and the other does not file a response. Sign up for a free Hello divorce membership to learn the difference between a “true default” and “uncontested” divorce.

What Are the Different Types of Court Hearings I Might Have to Attend?

What Are the Different Types of Court Hearings I Might Have to Attend?

The most common type of hearings in Family Court are related to child support, spousal support and/or child custody. These hearings are scheduled after one spouse files a “Request for Order.” Depending on the complexity (or contention) of your case, the jurisdiction you live in and/or the speed your case is progressing, there are several other court appearances you may have to participate in. Review this resource to understand what types of hearings you may need to attend.

Case Resolution Conference or Status Conference
If your case doesn’t seem to be progressing, the Judge assigned to the case may require you and your spouse to come to court and explain ‘where you are at’ with efforts to finalize your divorce. Prior to court, you must prepare and file a form. No orders for support, custody, visitation and/or property division are made at these hearing, nor will the Judge usually hearing any arguments or testimony regarding these issues. These conferences are only used to discuss the status of the case and whether or not the matter needs to proceed to a settlement conference, evidentiary hearing or if an agreement is in the works. The court appearance usually only lasts 5-15 minutes.

Quick Tip: Usually the court sends you notice indicating what form you need to complete if the Court appearance is called a “Status Conference” or “Case Resolution Conference.” If not, check the county court website to see if there is a ‘local’ form to complete before you go to court. For example, Alameda, San Mateo, Sonoma and Santa Cruz counties all have local forms.

Sign up for a free subscription to read on about temporary orders, settlement conferences, and evidentiary hearings.

What is Contempt?

What is Contempt?

In the course of your divorce, the family court may issue a range of orders, including visitation and custody determinations, orders to pay attorney’s fees, and divisions of property. When an ex-spouse (or soon to be ex-spouse) is not following the court’s orders, it’s natural to want a means to force him or her to comply and, in certain cases, contempt may be the answer. However, before turning to this solution, there are two important things to note:

1. This area of law is highly procedural. We do not recommend filing a contempt action, or responding to one, without legal assistance.

2. Family law is not a punitive system. This is a good thing — we want judges to be more focused on individual and familial well-being then on punishment. However, it also means that family law judges often disfavor contempt orders.

Yet, there are times when contempt is appropriate. Sign up for a free subscription to read on about the basics if you or your spouse is considering filing for contempt

Special Considerations for Your Same Sex Divorce

Special Considerations for Your Same Sex Divorce

We have all heard the good news. California no longer recognizes a distinction between same-sex and opposite-sex marriages. Any couple can now obtain a marriage license and wed, regardless of that couple’s sexual orientation. In 2016 the U.S. Supreme Court affirmed marriage equality across the United States.

Even with these wins, our work is not done. There are issues that affect your marriage and divorce that are generally not applicable to heterosexual marriages. As if divorce weren’t complicated enough, the end of your same sex marriage can bring even more considerations to the table. Sign up for a free subscription to learn more about your considerations during same sex divorce.

10-Step Quick Guide for Tackling Divorce Financial Issues

10-Step Quick Guide for Tackling Divorce Financial Issues

Tackling the financial issues of divorce can be overwhelming even for those of us who are comfortable with numbers. Sometimes the biggest challenge is figuring out where to start.

Read and follow our 10-step guide (additional resources included) to increase your chances of a “win-win” financial outcome and a strong post-divorce financial foundation.

Pin It on Pinterest