The above article posted on lawyers.com discusses some of the pros and cons of using a private judge in your divorce case. If you are considering hiring a private judge or are wondering whether it might be right for you, contact Argyris Mah, LLP at (408) 564-5674. We can discuss your case with you, answer your questions, and provide you with expert advice as to whether a private judge might be right for your case.
There are many costs to divorce, including the obvious costs of attorney fees, court filing fees, support payments, etc. However, many people often overlook the significant costs associated with maintaining two households, versus one. A recent article on SF Gate addressed the significant costs associated with physically separating including obtaining at least one or two new residences, furnishing those residences, moving, and maintaining the costs for said residence, without the benefit of two incomes. In some cases, given the extremely high cost of living in California, and particularly the Bay Area, this can be almost impossible. As such, it appears that many people are choosing, or being forced, to remain living together, despite a separation or actual divorce.
The costs associated with living separately can have a significant effect on a couple’s divorce case and can be a factor when determining spousal support, child support and property division.
People.com recently reported that in Brad Pitt and Angelina Jolie’s divorce case, a family law judge has made an order that Brad Pitt may contact the parties’ children directly, at any time.
Communication between a non-custodial parent and the children is often a “hot button” issue in contentious custody and divorce cases. Contact us at (408) 564-5674 for a free 20-minute telephone consultation and we can answer questions related to this issue, and any other questions you have relating to your San Jose divorce or custody case.
Earlier this week, it was announced that Angelina Jolie and Brad Pitt are getting divorced, and the internet went crazy. There were articles on all of the news outlets websites, memes and jokes about how happy Jennifer Aniston must be, and rampant speculation about the causes of the divorce: did Brad cheat? Is he an alcoholic? Etc., etc., etc. What no one mentioned is that these are two people who are likely going through one of the most difficult times in their lives, and who have 6, that’s right, SIX minor children. What happens to the kids in all of this?
We hear about celebrity divorces so often, that it is almost as if they are not real to us “regular” people. When one of our family members or friends announces a divorce, we reasonably react with sympathy, support and worries about the kids. Yet, when a celebrity announces a divorce, we seem to forget that they are actual people, with feelings, and with assets and debts that need to be divided, and children whose best interests need to be considered – children who will certainly be impacted by the separation of their parents and will now be dividing time between those parents, rather than living with both parents as a family. Simply because they are celebrities, does not make them immune to the difficulties involved in a divorce, both emotional and legal.
For example, it was reported that Angelina Jolie has requested sole custody of the children. When news like that is reported, it comes with such drama. But, in reality, a request for custody and visitation orders involves procedural requirements, court appearances, and in a Santa Clara County divorce case, mandatory mediation requirements. Further, a request for sole custody of children in California, and in Santa Clara County specifically, is a big deal. The courts are not likely to grant such a request unless the parent requesting sole custody can show that the other parent poses a significant threat to the children’s health, safety or welfare. This is because children have a right to frequent and continuous contact with both parents.
When getting married, most people don’t like to think about the possibility of divorce, but in some situations, considering what would happen to your property and money if an impending marriage were to end in divorce would be the wise thing to do. California is a “community property” state. That means that everything acquired by either spouse during marriage is presumed to be “community property.” This means that at the time of a divorce, everything acquired during marriage will likely be split equally, including property, businesses, retirement assets, bank accounts, and debts. In most cases, spouses also owe each other a duty of support following marriage, at least until the other spouse can become self-supporting. While these results may not be undesirable for some, for others, including those who are older and more established, have already been married, have significant assets and/or earn a lot of money, it might be prudent to consider a prenuptial or premarital agreement, or as it is commonly called a “prenup.”
As part of a prenup, parties can agree to keep all of the property and earnings he/she owned prior to marriage separate. They can also agree to keep any property and earnings they may acquire during marriage separate. Additionally, it is permissible to limit the payment of spousal support or to even cut off a party’s right to receive spousal support at all. However, contrary to popular belief, a prenuptial agreement will not be valid if it attempts to limit the payment of child support in any way. Simply put, parents cannot bargain their way out of their legal responsibility for supporting their minor child(ren).
Prenups can be extremely powerful and if drafted and executed properly, will most often be enforced by California courts. However, there are very specific procedures that need to be followed to ensure that a prenup will withstand a challenge in court. If you are considering a prenuptial agreement or have been presented with one by your soon to be spouse, it is imperative that you seek legal advice. Similarly, if you are facing a divorce and a prenuptial agreement was signed at the time of marriage, seeking legal advice as to whether the agreement is valid is extremely important. At Argyris Mah, LLP, we can provide you with sound legal advice no matter what issues you have surrounding a prenup. Call us to schedule a free telephone consultation at (408) 564-5674, and we would be happy to explain your rights and the possible ramifications with respect to your prenuptial agreement.
There are many financial issues to consider in a divorce case. One of the most significant issues is the division of property. “Property” includes both physical assets, such as a home, vehicles, bank accounts, etc., as well as deferred compensation, such as pension plans, 401ks, and stock plans. “Property” also includes debts. In a Santa Clara County divorce case, and in California at large, community property laws govern the division of all property. In general, in California, all property acquired during marriage is “community” in nature and must be divided equally upon divorce. All property acquired prior to marriage, or after separation is the acquiring party’s “separate” property. Additionally, any property acquired during marriage by gift, bequest, inheritance or the like, is “separate” property, as well. The characterization of an item of property as “community” or “separate” will determine how the item is divided in a divorce.
At a basic level, “community” property must be divided equally, while “separate” property is confirmed to the party who acquired it. In reality, the division of property is not quite so simple. Often times during marriage, “community” and “separate” property become mixed, or “commingled.” In that case, it needs to be determined whether it is possible to “trace” the separate property so that it can be returned to the separate property owner. Additionally, issues can arise when property is purchased during marriage, but only put in one spouse’s name. The value of assets can also be an issue.
Other financial issues to be considered include how funds are spent after parties separate. There are specific automatic orders that go into place once a party is served with divorce paperwork, preventing both parties from transferring/moving funds and/or making large purchases without the agreement of the other spouse or a court order. Additionally, each party’s income and expenses should be taken into account, to determine whether spousal and/or child support are appropriate. When setting support, it is important to know what constitutes “income” for purposes of determining support. Income is not necessarily limited to funds earned from employment, but can include commissions, bonuses, rental income, stock proceeds, interest, unemployment and disability benefits, and the like. Another consideration when setting support is whether both parties are working. If not, the court can order one or both parties to seek work so that he/she is able to contribute to the support of the minor children and/or so that he/she can become self supporting, for purposes of spousal support.
There are many things to take into consideration when you are considering initiating a divorce action in California. The State Bar of California website has a general checklist for what you need to know about divorce and custody, which is a great resource for parties involved in, or thinking about filing for divorce and/or custody. The following are the areas addressed in the article:
1. What are the grounds for divorce in California?
The goal in a divorce case is, obviously, to get divorced. But, once the final judgment of dissolution is entered, property is divided, support is determined and issues surrounding custody and visitation are resolved, its important to note that there may still be additional things that you need and/or should do to protect yourself and your assets. What follows is a sort of “post-judgment checklist” that should be considered by any party to a divorce, once the actual divorce is finalized.
Create a New Will
One of the more important items for you to consider is the drafting of a new will. California Probate Code 6122 states that the dissolution of your marriage revoked any disposition of property made by you to your former spouse. The state reacts in the matter as if your former spouse had predeceased you. The dissolution of your marriage also revoked any provisions you made in your former will conferring powers of appointment on your former spouse, and it revoked any provision nominating him/her as executor, trustee, conservator or guardian. Therefore, you likely need to make other plans for the disposition of your property and appoint another executor if you had named your former spouse as executor in your previous will. Also, if there was a trust or guardianship for any minor children, you need to consider the fact that, although your former spouse would be the guardian of the person of your minor child/children, you have the option of naming another person or institution as guardian or trustee of the estate of the child/children.
Minor’s counsel must act in the best interests of the child and represents only the child. Their role is to consider the best interests of the child without being bound by the emotions that often come with contested child custody cases.
Minor’s counsel acts as neutral voice for the child. They do not prefer one parent over another and they do not act on behalf of either or both parents.
In California child custody cases, minors are rarely allowed to testify in court or speak with the Judge directly. Only in very rare circumstances does this occur. But, children have a right to be heard and therefore, Judge’s will often appoint minor’s counsel to interview a child about their concerns and preferences as it relates to custody.
When going through a divorce, the best case scenario is that everyone remains amicable and the need for litigation is avoided.
However, if litigation is inevitable, both sides at least want to try to come out of the process financially secure. These are common mistakes, all of which are avoidable, but all of which almost always end up costing you when going to court:
1. Going to court without a lawyer