Family Law Archives | Page 3 of 4

Filing For Divorce Checklist

Divorce is more than just filing the petition or complaint with the court. You can achieve a better outcome to your divorce proceedings by following a few pragmatic tips.

Attorneys at SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) law firm provides professional legal advice and services to clients in Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, Coachella Valley, Costa Mesa, San Diego, New Jersey, New York, and surrounding locations.

Organize Paperwork

You should gather all important documents you can find and make several copies of them. Look for bank statements, past tax returns, investment statements, check registers, employee benefits, retirement account statements, family trusts, Social Security statements, mortgage documents, financial statements, credit card statements, stock grants, life insurance policies, and automobile titles among others.

This step is particularly important if your spouse is self-employed. You need to gather as much information as you possibly can about their finances and business.

Don’t Neglect Your Children

You need to find ways to reduce the impact of your impending divorce on your kids. Your children will remain together and balanced if you are. You should plan with your spouse about dividing parenting time. Do not get your children involved in the divorce or use them as pawns. You shouldn’t ask them to take sides either. It is unfair on your kids to create unnecessary emotional problems.

Get At Least 3 Months of Finances Ready

You should ensure that you have saved enough to pay for at least three months of expenses at the same lifestyle. This is especially important if you are the spouse that has limited access to funds. It is common for spouses to become spiteful once the divorce proceedings start. They may try cutting you off financially.

Confirm If You Have Available Credit

Apply for a credit card if you don’t have available credit. Do not depend on your spouse to keep paying for your finances. They may cut your access to their finances when you file the divorce petition. Having working credit cards will help you pay for things while your lawyers work to get you temporary financial support.

Keep a Safety Plan Ready

This is important if you are at a risk or have been subjected to domestic violence. Violence can escalate quickly when you take the fateful step of leaving your spouse. Do not file a protection order unless it is absolutely necessary. This can cause your divorce to become highly contested. Protection orders may cost you in the long run.

Seek Experienced Counsel

You should get the best legal advice you possibly can. Do not cut corners or trust everything that the other spouse tells you. Make sure your lawyer has the reputation and skills to help you attain a seamless divorce. You need to have the best representation if you want to get a clean divorce. Make sure to check their online ratings on third party websites. Do not trust your spouse if they ask you not to get legal representation.

Lawyers at the SBEMP law firm serve clients from Palm Springs, Palm Desert, Rancho Mirage, Inland Empire, Orange County, Coachella Valley, Costa Mesa, San Diego, New Jersey, New York, and nearby locations for a range of legal practice areas.

Have any legal questions? Contact the Attorneys at SBEMP Law Firm:

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage, Indian Wells), CA; Indian Wells, CA; Costa Mesa (Orange County), CA; San Diego, CA; New Jersey, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.

Post Judgment Enforcement Issues

What happens after the final decree of divorce or when the court makes a divorce judgment? Is it possible for the judgment to be changed or modified? Can you take legal action if your spouse refuses to follow the court decree? What about the judgments regarding child custody? This is where post judgments actions come into use.

Understanding Post Judgment Actions

Post judgment actions are typically filed in court when one or both parties have a dispute regarding the final divorce decree. In most cases this dispute or disagreement if of a financial nature. However, there can always be other causes for these actions. For instance, a former spouse may determine that the other ex-spouse has not paid the child or spousal support as required by the divorce decree.

Both parties can try working out their differences. However, if this does not work, the aggrieved party may decide to file an enforcement motion in court to make the former spouse follow the divorce decree. Such a motion is called a ‘contempt’ action.

Child Support and Visitation Modifications

All aspects regarding the children of a divorced couple is subject to modification in the final divorce decree. A majority of motions are concerned with adjustments to responsibilities of parents and disputes over individual parental rights.

Few of these include:

Child custody: The non-custodial parent may seek a new arrangement when the child is in the custody of only one parent. Maybe the non-custodial parent decides that they would like to share child custody.
Child visitation: Typically, the non-custodial parent moves the court for adjustments in the visitation schedule when seeking modification of child visitation. Maybe they want more time with the child or not have the visit chaperoned by another adult.
Child support: One parent may be seeking to increase the child support amount while the other party may have a case to have the child support payments reduced.

Premise of Post Judgment Motion

Local courts have individual rules regarding the filing of a post judgment motion. These rules dictate the preparation of these motions and ways to attain information you may not have, such as the case number of divorce action.

It is recommended to retain the services of a qualified attorney because of various complexities associated with post judgment actions. Divorce decrees, especially where child support and visitation are involved tend to be more difficult that the average person realizes.

People may feel that there is no dispute and everybody gets along only to discover that the divorce decree did not go their way. They may need to return to court to modify child custody or spousal payments. These issues can range from simple to complex. Sometimes, they may get settled quickly while other times they may take a long time.

Have any legal questions? Contact the Attorneys at SBEMP Law Firm:

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.

Mediation And Collaborative Divorce

There is no one size fits all approach when it comes to mediation and collaboration. The appropriate approach to use is determined by individual and unique circumstances of a lawsuit. Availability of good collaborative attorneys and mediators along with individual preferences is also a factor.

Factors Supporting Collaborative Divorce

1. Desire or need for seeking separate legal representations

You may want to consider collaborative divorce if you want the experience of a lawyer to look out for your best interests and offer guidance every step of the way. For instance, the case may involve a complex financial or legal issue that you are not competent enough to negotiate.

You may find it more comfortable to have a professional attorney advice you at every turn. Attorneys of both parties guide each aspect of the lawsuit in a collaborative divorce. This approach can help address your particular legal representation needs throughout the process.

2. Inequitable power dynamics in the relationship

You may want to consider adding structure and insulation offered by collaborative divorce if you feel there is a power imbalance in your particular relationship. Maybe your relationship dynamics make you or your spouse feel at a distinct disadvantage in terms of negotiating on difficult subjects.

An experienced collaborative lawyer can go a long way in improving your confidence to express the things that matter to you, even if it is at the risk of a disapproving spouse. Similarly, if you are prone to dominating conversations, a supportive lawyer could nudge you into respectful silence whenever you attempt at ‘taking over’ the conversation.

Factors Supporting Mediation

1. Control and flexibility

Mediation is a lot more flexible as compared to collaboration. You can start the process with just three participants – the mediator, your spouse, and you. You can also add more people, such as attorneys and experts to the process as and when you need them. However, you don’t really need lawyers and other professionals to be involved if you don’t want to.

Mediation offers more control over the entire process as compared to collaborative divorce. You don’t have to follow a set structure of protocols as with collaboration. Most collaborative lawyers are required to follow specified protocols or rules. In mediation, you get to work directly with your spouse and mediator to decide the process and substance of your dispute.

2. Cost Efficiency

Mediation is thought to be more cost effective with faster results as compared to collaboration. It is a logistical nightmare and a time consuming endeavor to coordinate the calendars of all people involved in a collaborative divorce lawsuit, especially when most of them are busy professionals. This can add to the overall cost of the process.

On top of this, active participation of separate attorneys and other professionals is almost certain to inflate the cost of a collaborative divorce as opposed to mediation in which the only professional that is required to be present is the mediator apart from the two spouses. Mediation comes out to be cheaper even when attorney advice is sought from time to time.

Have any legal questions? Contact SBEMP Law Firm:

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.

Paternity Matter Law

Establishing legal paternity allows for far more benefits than receiving the child support checks on a monthly basis. You need to consider the fact that every child has the right to know who their father is and to be known by their father.

Your child is benefited by legal gains when you establish paternity. This includes:

The right to death benefits: In addition to gaining regular child support, your child has the right to financially benefit from the birth father. This includes death benefits, such as Veteran’s benefit and Social Security benefits. It also includes a share of possible inheritance. Not establishing paternity can result in the loss of these financial benefits.
Access to medical history of birth father: Your child can gain access to their birth father’s medical history by establishing paternity. They can be informed of genetic medical issues that could get passed on to the next generation.

Voluntary Acknowledgment of Paternity by Birth Father

The first step when trying to formally establish paternity is to ask the child’s birth father to voluntarily acknowledge paternity. By voluntarily agreeing to paternity, the birth father agrees to be responsible for the child and pay child support until a time the child enters adulthood.

Birth father can voluntarily establish paternity in the following ways:

He can sign a Declaration of Paternity by being present during child birth. This document is also called Acknowledgment of Paternity. Declaration of Paternity is used when you want the father’s name to be placed on the birth certificate of the child.

The birth father can always sign an affidavit of paternity if he is not present during child birth. This document can be signed until the child reaches the age of 18. You may need to get the birth certificate altered at a later date if you want the father’s name added to the birth certificate.

Establishing Paternity When Birth Father Does Not Voluntarily Acknowledge

You need to contact the Office of Child Support Enforcement in your area if the alleged birth father of your child refuses to voluntarily establish paternity by acknowledging the child as his own. These cases are called IV-D cases.

The process for establishing paternity in such cases is as follows:

All parties, including the mother, child, and alleged father are requested to submit to a genetic testing. The alleged father may be identified to be the child’s birth father by default in case he refuses to submit to genetic testing.

Paternity results are provided to the alleged father along with any other information.

If the test results come back as a positive match between the alleged father and child, the results shall come to be recognized as a conclusive determination for establishing paternity after 60 days. However, it is important that the father does not contest the genetic testing results.

Have any legal questions? Contact SBEMP Law Firm:

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.

Adoption Law

The first step in the legal adoption process is to terminate all parental rights of birthparents of the child. The final legal step for finalizing adoption in court is to be recognized as legal and permanent parents of the child in court. There are various points along the way where adoption laws can have a significant effect on the child’s adoption.

Understanding Termination of Parental Rights

Termination of parental rights or TPR is a legal process that involves a court hearing. The judge during the court hearing issues a decree to place a permanent end on legal parental rights of the birthparents. This step needs to take place before the child can be made legally available for adoption.

TPR can be voluntary or involuntary depending upon individual circumstances. Some states offer a brief period during which either parent can appeal when the legal rights are terminated involuntarily.

Legal Risk During Adoption

Legal risk refers to an adoption situation in which the ‘to be adopted’ child is placed with the adoptive parents before legal rights of birthparents are terminated.

High risk adoptions

Adoptions where parental rights have not been terminated are considered high risk. It is expected that the child may not become legally available for adoption because the birthparent or a relative may step in to be the parent. Adoption of newborns is typically considered a high risk adoption.

There is a short period during which a birthparent can revoke their consent in cases where termination of parental rights is voluntary. You will need to get in touch with your county’s Department of Children and Youth to better understand these time periods.

Low risk adoptions

Adoption where the rights of a birthparent are not yet terminated, but is expected to be completed soon is considered low risk. The likelihood of children returning to their birth family in low risk adoption is very low.

Each state is allowed to form its own laws in the area of adoption. Practices and policies widely vary among the states and counties even though few federal laws apply.

You may need to work with an adoption agency if you are trying to adopt a teenager or a waiting child. However, you would need the expert services of an attorney if you are hoping to adopt a newborn.

Judge’s duty

It is the judge’s duty to make changes as needed in a child’s legal status. Individual cases of children are periodically reviewed in court while they are waiting in foster care to determine whether they should be made available for adoption or reunified with their birth family. Family court judge has the authority to terminate parental rights and to preside over the finalization and issue of the adoption decree.

Have any legal questions? Contact SBEMP Law Firm:

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.

Mediation

Mediation is an arbitration procedure that allows parties to discuss their disputes in front of a trained impartial third person. The neutral third person assists the parties to reach a settlement, which can be through a scheduled settlement conference or an informal meeting. The dispute can be one that is yet to be filed in court or one that is already pending.

Disputes in personal injury, commercial transactions, workers’ compensation, construction, community relations, labor, domestic relations, divorce, and employment among other matters are typically suitable for mediation. It’s crucial that the dispute not involve evidentiary or complex procedural issues if it is to benefit from mediation. Attendance is generally voluntary except when governed by contract or legal clause.

Advantages of Mediation

There are several reasons for parties to a dispute to choose mediation over other forms of alternative dispute resolution and traditional litigation. Few of these advantages are timely resolution, affordability, confidentiality, private sessions, preservation of relationship between the parties, and equal participation in resolving the dispute.

Additionally, cost to enter mediation talks is significantly lower than the average cost in money and time for conventional litigation of disputes. Hourly rate of mediators is generally lower than that of a lawyer. Mediation can be scheduled by parties following a court order or within weeks of a decision.

Mediators are available to help disputing parties during regular weekdays, evenings, and even on weekends. There are no spectators where mediation is concerned. Also, anything that is said during these sessions cannot be reported or repeated by the mediator to a third party.

The only record of these meetings is the Settlement Agreement. The Agreement to Mediate which needs to be signed by all parties before the conference serves as a reminder to all about the confidentiality of the meeting. It also emphasizes the fact that the mediator cannot be brought forward as a voluntary witness if the matter goes on trial.

Mediation has the ability to provide user friendly resolutions to various forms of disputes. Parties are empowered and encouraged by the mediator to solve their dispute in a workable fashion so that no party is at the losing end. This allows for healing in situations where one party is tremendously aggrieved, such as in divorce lawsuits.

Understanding the Mediation Process

Mediation conferences are typically held at a neutral and mutually agreeable place. This can be the office of the mediator or any other private facility devoid of spectators. Initial mediation conference can continue with subsequent telephonic negotiations as long as the mediator and both parties agree to it.

In most cases, mediators tend to conduct co-mediations or employ face to face negotiations in inflammatory situations, such as domestic disputes. Other parties and attorneys can also be present at the session as long as the parties and mediator agrees to it in advance.

Have any legal questions? Contact SBEMP Law Firm:

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.

Enforcement Proceedings

When an order is served to a person in a divorce case, the power of the court is backs that order. There are several ways that can be used to compel a spouse who fails or refuses to comply with the court order instructions.

Purpose of Enforcement Proceedings

One spouse may require enforcing a court order if the other spouse decides to not comply with the material provisions mentioned in the decree. For instance, the other spouse may refuse to pay child or spousal support. They may refuse to comply with parenting plan or visitation rights by not returning the child when their time is up or refusing visitation.

Filing Motion for Contempt

The central mechanism, in most jurisdictions, for holding a party responsible for non-compliance of court order is by filing a motion for contempt. Contempt is typically defined as the willful act of disobeying court order by the violating spouse who is within their capacity to follow the court’s instructions. This is also called motion to enforce in certain jurisdictions.

Motion for contempt is a legal extension to an existing divorce lawsuit and generally requires to be filed under the same docket number as the divorce case. Generally, the judge that created the decree gets assigned to the case. The attorney may attach certain evidence with the motion, such as documents that portray violations of judge’s orders along with original divorce decree.

This needs to be in the form of a written request and must clearly state the portions of the decree that are being violated. Remedy should be requested in the motion, such as payment for court costs and others. The moving spouse is usually required to attach an affidavit with the petition.

The court clerk is expected to schedule a hearing date on the matter once the motion for contempt gets filed. It is important that the other spouse is properly served with the schedule notice and motion.

In Contempt Consequences

Judge has the authority to punish the other spouse if found guilty of contempt. Typically, the first offense is let off with a warning. However, the judge holds the discretion to order certain sanctions against the spouse found in contempt of the court order. This may include paying for the moving party’s attorney’s fees and court costs.

In certain situations, the judge may also order the non-complying spouse (if they have physical custody) to provide additional time with the child or follow a new parenting plan to cover up the time lost by the moving spouse. In very rare cases, a spouse may be ordered to serve time in prison.

The judge may order a lien on property of the non-compliant spouse or interception of tax refund and business funds, if the motion involves money.

Have any legal questions? Contact SBEMP Law Firm:

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.

Domestic Partnerships

Domestic partnerships can be considered on the same lines as marriage while applying to unmarried couples living together. While domestic partnerships are not identical to marriages, they do offer few of the same benefits. Certain states refer to domestic partnerships as “civil unions”. However, the definition and what entails a domestic partnership or civil union varies from city to state.

Domestic Partnership Registration

Partners interested in registering for a domestic partnership are required to declare their relationship as serious at a designated government office or the courthouse.

Certain states require residents seeking to enter a domestic partnership to appear in person at the courthouse or designated government office and pay the required fee. Moreover, they are required to provide documentation that proves they are satisfying all requirements of registration. This may include sharing permanent residence, being above the age of 18 and unmarried.

Benefits of Domestic Partnerships

Domestic partners can enjoy almost all legal benefits of marriage. However, the types and benefits of these unions vary by jurisdiction and state.

Few common domestic partnership benefits include:

Right to family leave to tend to a sick partner
Ability to attain coverage on family health insurance policy
Right to bereavement leave
Visitation rights in jails and hospitals

These benefits vary from one state to the next. These are a few examples:

California

Domestic partners in California receive the same protections and benefits as married couples. However, domestic partners may not collect federal benefits, such as Social Security checks of deceased partners, since the union is not recognized under federal law.

Maryland

Unmarried couples are allowed to enter designated beneficiary agreements that provide limited rights. This includes right to share the same room in a nursing home, right to visit the other partner in a hospital, and right to make funeral decisions.

Ann Arbor, Michigan

Employees of Ann Arbor City have the option to extend their employment benefits to their domestic partners.

Many employers, including Walmart have been sued by employees married to same-sex and various labor rights organizations to deny employees’ their rights and benefits before the Obergefell decision. Correlating from this, many employers are now discontinuing special benefits to registered domestic partners because of the marriage equality ruling.

Get Details about Domestic Partnership from an Experienced Attorney

It’s vital to know the laws of your state along with federal laws about same-sex unions and cohabitation if you are planning on entering or terminating a domestic partnership. Legal matters such as rights, benefits, and responsibilities that go along with domestic partnerships can help you take a wise and conscious decision. You can learn more by speaking with a skilled and knowledgeable family law attorney.

Have any legal questions? Contact SBEMP Law Firm:

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.

Distribution Of Property

Divorce property valuation is a complex and intense exercise contrary to popular myth. For instance, tax appraisal value of the marital home may be significantly different from its actual market or resale value. Similarly, antiques, such as a classic vehicle, may be priceless or worthless, depending upon an individual’s point of view.

Furthermore, valuation is just the tip of the iceberg. Many state laws dictate marital property to be divided equitably, which can be different from equally. The divorce in these states is not expected to place any spouse in financial hardship.

Your divorce lawyer can pinpoint and explain important legal matters before taking sustained and prompt action to protect your best interests. Sometimes, the attorney may need to partner with a knowledgeable financial professional to make the evaluation and distribution process simpler.

Valuation of Marital Assets and Property

Waste or dissipation is often overlooked under the law as a valuation provision. Divorce value of an asset may be inflated (higher than market value) if dissipation occurred and is ignored. For instance, a spouse may not have maintained a rental property, following which the market value could have substantially dropped.

It’s vital to consider all assets as well as debt while dividing the marital estate. It is not unheard of the two sides to arrange for an offset. One party may agree to relinquish a larger share of the assets provided the other party pays more debt.

Both parties need to be wary of ownership and title issues. A divorce may transfer legal title, but it does not impact any underlying security agreement.

Distribution of Property

Courts usually consider the following factors in addition to dissipation while dividing marital estate:

Present economic and non-economic circumstances
Length of marriage
Individual spouse’s property valuation

Obligations from prior marriages
Any agreements between the spouses
Age, status, and health of individual spouse
Future tax repercussions
Child custody and spousal maintenance provisions

The court also has the authority to take into account other relevant factors (besides the fault for the marriage dissolution) while making a distribution decision.

Most judges, as a general rule, honor the agreements made between the spouses till the time they are not unconscionable in their execution or terms. A judge may ask for the property or asset to be sold and the proceeds divided equitably if the parties are not able to agree to the division.

IRA, pension plan, 401(k) and other similar retirement accounts are distributed through a Qualified Domestic Relations Order (QDRO). The non-contributing or non-employee spouse, also called the alternate payee, has the option to elect a share of future payments or receive cash in a lump sum. It’s crucial to note that early cash distribution in the form of lump sum or cash payments may attract penalties and taxes.

Have any legal questions? Contact SBEMP Law Firm:

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.

Custody And Access Rights

It’s essential to consider all available options when planning a divorce or putting your life back together. However, you need to remember that your kids and their best interests are the most important factor when you explore different options for custody and visitation or access rights. There are various types of custodies and visitation rights. These are discussed in detail below.

Legal Custody

This refers to retaining the legal authority to take important decisions in your child’s life. Major decisions include things like the school your child should attend, non-emergency medical decisions, and the kind of religious upbringing they should have among others.

Options for legal custody include:

Sole legal custody: Only parents with the sole legal custody can take legal authority decisions and make major changes in the child’s life. This includes all decisions regarding healthcare, education, and religion.
Joint legal custody: In this type of custody, both parents have equal legal authority to take major decisions on the child’s behalf. It’s critical to note that parents may share joint legal custody without actually having ‘joint physical custody’.

Physical Custody

Parents with physical custody get to have their children live with them majority of the time. Physical custody is also called residential custody. It is broadly of two types:

Sole physical custody: In this type of custody, the child only lives in one location with the sole physical custody parent. Non-custodial parents in most cases get awarded visitation rights, which may include weekend sleepovers.
Joint physical custody: This type of child custody is also called dual residence, shared parenting, or shared custody. Children in this situation get to live and spend time with both parents in separate residences. The division of time spent with each parent is almost equal in this situation.

Visitation or Access Rights

Parent-child visitation allows non-custodial parents to spend time with their children on regular basis. There are two types of visitation:

1. Unsupervised Visitation

Unsupervised visitation is the most common form of parent-child visitation. Parents in this situation are permitted to enjoy an outing with their child or take them to their own residence during scheduled visits. Limitations if any are specified in advance. For instance, if the child is being breast-fed, the mother may ask the non-custodial parent to visit the mother’s home until a time the baby is able to feed from a bottle.

2. Supervised Visitation

The courts may choose to order supervised visitation in certain cases. This means that the non-custodial parent can visit the child only when another responsible adult is present. The court, depending on the situation, may allow the non-custodial parent to choose the supervising adult. If not, the parent and child may need to meet at a pre-specified location with a court-ordered designee or social worker.

Have any legal questions? Contact the Attorneys at SBEMP Law Firm:

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here.