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Outline of the Divorce Process

Posted by admin on 27th April 2006

If you are about to be faced with a divorce and are wondering what to expect or how it works, this outline of the divorce process will help you get the basic mechanics of how it is conducted and what to expect. Obviously the first thing will be hiring an attorney that you think will do the best job representing your case in court. Then after consultation and your attorney have all the facts and information then they will draw up a petition for divorce which they will file at the court house which will start the divorce into motion.

Petition for divorce – The petition is simply a letter presented to the court requesting that they grant you a divorce along with any other request you may be wanting like custody of any children, alimony, and divisions of assets. This petition will identify who you and your spouse are along with any children that may have come out of the marriage. It will also explain to the court there reason or reasons that you are asking for a divorce such as abandonment, adultery and so on. If you are the one requesting a divorce you are know as the “Petitioner.” Then the papers will be served usually by an officer of the law to your spouse which is known as the “Respondent.”

Temporary Orders – In order to keep parties from disposing of assets, selling properties, leaving with children and other thing. The court issues a temporary that insures basically every thing stays as it is until the petition of divorce has been heard. Violation of a temporary order can have serious repercussions which can result in fines and even jail time as it is legally binding.

Discovery- A broad term that applies to several processes disclosures, interrogatories, Admissions, Requests for Production, and Depositions. Interrogatories are 25 written questions ask to the other party that they must answer. Admissions are written declarations of fact directed to the other party asking them to admit or deny an undisputed fact. The request for production is where both parties must provide each side any records they have asked for from the other inspection and photocopying. And the depositions is the sworn testimony is taken from the other party, or witness usually by the lawyers.
 
Mediation-Both parties get together in an agreed location to discuss their differences, and attempt to resolve the case. Most often a lawyer will act as a go-between as the couple facilitates the discussions. The lawyer acting as the mediator will try to help the parties settle the case. If agreements can be settled then the agreement can be drawn up and approved by the court and the matter will be closed without having the hearing.
 
Trial- The trial comes when the parties could not reach a settlement during the mediation so parties present the evidence to the Court for determination. So now the Court will hear all the evidence and facts, pleadings of both sides and parties, and make its decision.

Post Trial- this is simply the final decree of divorce based on the rulings of the court which are drafted up as order and signed.

Appeal- If you don’t like the out come or final ruling, you can file for a new trial or start an appeal.

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Is Mediation the Right Choice for You?

Posted by admin on 27th April 2006

You are headed for a divorce and you are wondering if divorce mediation is the right choice for you and your spouse. The best way in which to answer this is to look at how your marriage was. Did you and your spouse quarrel all the time or could you compromise and negotiate with proven success?

There are some great reasons to choose mediation over court, you can keep yourself out of the courtroom and you will not have to discuss your personal life in a room full of strangers. You will be able to have more control over the consequences and outcome of your divorce.

The best way to know if mediation is right for you is to ask yourself if you can sit in a room with your soon to be ex-spouse and rationally discuss every aspect of your divorce in a calm manner and come to an agreement.

You will have to decide how all the property will be divided, who will pay which bills, who will have custody of the children, or if you prefer joint custody, who will pay child support, and how that will be accomplished, where will the children live the majority of the time, which parent will be responsible for decisions regarding schooling, medical care, and other major decisions regarding the children and even agreeing on tax issues.

A mediator can listen and give advice, but they may not have knowledge of the laws in your state, so you should understand a bit about how child support and alimony is calculated.

If you feel intimidated by your spouse, then mediation is probably not the way to go. If you have these feelings and thoughts that you are not as worthy as your spouse, you will walk away from this divorce mediation at a loss. You must be willing to speak up for yourself and your children and have the confidence to do so, or mediation will allow your spouse to walk all over you.

If there has been any domestic violence in the home and you are concerned about your own safety or the safety of your children whether it was physical or mental violence then you should not consider mediation. If you have fear of your spouse, you may end up giving them custody of the children and everything else they want. This could be very harmful to the children and you will not be able to do much about it after you have agreed and the divorce is final.

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International Divorce [Jurisdiction Issues]

Posted by admin on 27th April 2006

Many people today travel the world over, have property in various countries and have vacations homes in tropical settings. In a marriage, one spouse may be one nationality and still be a citizen of a foreign country, have children going to school in a very different country, and one spouse be living and working in a separate country. When this occurs and they are now at the point of divorcing, many things come into play. What country holds the jurisdiction over the divorce, the property, the custody of the children and any alimony or child support payments?

Before a divorce can proceed in these cases, the question of jurisdiction must be explored. You should retain legal counsel that can determine which jurisdictions are available for your divorce regarding the marriage, the personal property, and the real property, custody of the children, child support, and spousal support. Your counsel should understand the conflict of law rules and know what do to if this occurs. They should also be able to guide you on questions such as should you relocate, should you take the children to another country, and should you remove any assets.

There are many factors that your attorney will look at when deciding which jurisdiction is the best for your divorce and these include the grounds for the divorce, if there were any pre-nuptial or post-nuptial agreements, any businesses that were acquired during the marriage and which country they are in, any pensions or retirement benefits, inheritances, custody laws, etc..

Each country has there own set of laws governing child custody, child support, spousal support, division of property and even the grounds for divorce. Some countries do not allow no fault divorce while some do. According to which country you may be, seeking the custody of your children you may find that they favor fathers over mothers in all cases. Religion can also play a major role in divorce cases. Therefore, in these countries, a spouse that is more religious may be the winner while the other spouse is left out in the cold. Countries also differ considerably on the issue of maintenance and alimony.

Before you begin to decide on which jurisdiction would be in your best interest, you should seek counsel that understand the laws governing each country that you have some type of property in whether your children are going to school there, you have vacation property, or a business. Since, each country may favor one spouse over the other by their sex, their religious behavior, or just their citizenship.

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How is a Divorce Started?

Posted by admin on 27th April 2006

If you have decided to get a divorce, the very first thing you should do is talk with an attorney or seek legal counsel. Each state has their own set of rules and laws governing divorce cases and understanding what is involved in a divorce case is very important. Before you do consult an attorney, be sure you really want a divorce, do not waste your time and your attorney’s time, not to mention the money you will spend if you are only doing this to scare your spouse, or show them you want things to change.

When you are ready to begin the divorce, you will need to visit with your attorney and bring important information with you, so he can get your divorce started. You will need full names of you, your spouse, and any children, the date you were married, the current address where you live and your spouse is residing (if at another residence), any birth records of any minor children. Your attorney will also need information as to why you want a divorce.

Other information that is important is the property that has been acquired during the divorce this can include any and all tangible or intangible items, such as cars, clothing, pensions, life insurance, stocks, rental property, vacation property or anything else of value. You should remember to mention everything that you believe has value or that you have interest in. This could be as simple as family photos or a large stamp collection that you both collected. If you do not mention these, you may not be able to claim an interest in these items when you go to trial.

If you had property going into the marriage you should also mention this and let your attorney know each item you had prior to your marriage. You also should not mention any items that your spouse had in their possession prior to the marriage unless you have accumulated a part of it since the marriage, such as a stamp collection. Your spouse may have had the stamp collection prior to your marriage, but since you have been married, you have also contributed to the collection and increased the value of the stamp collection. This increase was incurred during the marriage.

Your attorney will compile all of this information and put it into a document called a complaint or a petition. They will then file the document with the court clerk. The clerk will then issue a case number to your divorce. Now, this document must be presented to your spouse along with a summons. The summons is another document that will be issued by the court clerk that just states that the person is being sued. This can be done by you personally handing the petition and the summons to court in their hand, do not leave it on their door, or you can have a third party such as a sheriff,  hand the document to your spouse. After the document has been given to your spouse, the person that gave the petition must file a proof of service with the court clerk. Now, your divorce has started.

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Cost of Mediation

Posted by admin on 27th April 2006

When it comes to the cost of mediation, it really depends on the exact type of mediation that you may require. If the court offers mediation then they can waive the cost or decide which spouse should pay for the costs incurred or if both will pay equally.

If you make the decision to use a mediator then you and your spouse will be responsible for the cost. Normally mediation costs are based on an hourly rate or can be done as a flat fee. Either way most of the time mediation is cheaper in the end than litigations.

The type of mediation you choose can also have a big effect on the cost. All the costs are now based on the style of mediation your mediator uses. The main three functions that the cost are based on include the initial setup charge, the amount of time you spend in mediation and the hourly fee that the mediator charges. At this time, mediators are charging between $100 to $300 per hour. So, according to how much time is spent in mediation your bill can be very high.

When you and your spouse are headed for mediation be sure, you have everything planned out so the time spent with a mediator can be very little. You will also need to decide what type of mediator you will need, there are accountants that normally mediate for businesses and companies, but if you have joint business adventures you may wish to have an accountant as a mediator to ensure that the family owned businesses are divided to your satisfaction. Most mediators are therapists. They can be very sensitive to everyone, compassionate to your feelings, and work to get results handled in a timely manner. Therapists that have dealt with divorce cases are usually the best when it comes to helping couples work through their disagreements easily and quickly. Christian Fundamentalists will also mediate, but many times they work at trying to save the marriage more than working through the process to get the divorce handled.

As you can see, according to what type of mediation you need and whether it is ordered by the court, you can be looking at paying nothing to several thousands of dollars. All of this is according to how much time is spent in mediation and how much the mediator charges per hour. However, in the long run you will be spending less than if you went to court.

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Choosing a Divorce Mediator

Posted by admin on 27th April 2006

Divorce mediation has been available for around the last 20 years, mainly it has not been very popular, but today more and more couples are using their services. What you need to consider if you are looking into a divorce mediator as and alternate to hiring a lawyer is that mediators hold no types of professional license or degrees. The truth is most anyone could act as you divorce mediator. So why is more and more people turning to their services? Well if you are thinking less money than lawyers you hit it right on the button.

Many divorce mediators that are around are mental health professional which have great interpersonal communication so they offer powerful solutions getting couples to work through emotional stumbling block that drag out  making settlements for their divorce. Even some of the best mediators are lawyers that have no only law degrees but also degrees in the mental health field as well. Now the best mediators now that they must remain totally neutral when helping couples work out their difference’s and arrive at a fair settlement for both parties.

They know the importance of helping couple make the best decisions about the future.

You need to know there are no established requirements at this time to be a mediator however there are several training programs around now that people who want to be the best mediators can attend. So when looking for a mediator, check and see if they just might hold a certificate for one of the available academy’s and if they do their service just might be right for you. The mediator should be able to acknowledge emotions, while helping the parties focus on decision making. Many states require a mediation of these issues before the parents can appear before a judge.

Most importantly is finding a divorce mediator whom both spouses feel good about. This is one of the most sensitive times in your lives; and both of you will be sharing private information about many things in your lives like finances, parenting skills, and even secrets and embarrassing issues with a stranger. Today most lawyers cost around $100 and $250 per hour, where as a mediator can save you thousands and thousands if you got that way.  More and more couples facing a divorce have realized that the bottom line is smooth settlement reach outside of court rooms can save them thousands upon thousands of dollars and can in fact be an easier path to take when they use a divorce mediator.

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Property Division California

Posted by admin on 27th April 2006

California is one of eight states that have Community property laws.  This means that in these states after a divorce all property is to be divided equally between both parties.  It doesn’t matter if the marriage is six days old or sixty years old.  This law could result in a big bonus for someone who is only married for a short amount of time.

What is considered community property?  In California, community property is any or all property gained during the marriage.  That’s half and half regardless of whether one spouse was a wage earner or not.

What is not community property?

1. Inherited Property
2. Property acquired before marriage;
3. Gifts to one of the spouses given by a third party.  Gifts from one spouse to another is considered marital property and covered under the community property law.
4. If one spouse already had an asset at time of marriage but it increased in value because of the work of the other spouse, the increase of value may be considered a marital property but not the original asset.

So how is property divided between the two parties in the case of a divorce in California?  This is most often based on a judge’s discretion.  The court can redistribute the assets in a divorce to accommodate the different needs of the spouse.  Will one spouse have to retrain to find a job to support the family?  If so, then the court can allow a different distribution of assets.

Each spouse can also be held equally responsible for debts that were incurred during the marriage for community property.  Each spouse will also be responsible for any debts they brought into the marriage, separate debts that were incurred that didn’t benefit the marriage.  They also will be responsible for any debts that were made after the separation and before the divorce was granted that were not for necessities.  If debts are incurred for necessities then they should be equally divided.

Some assets may need to be traced back through the accounting process to find what date the asset came into existence.  This could discover if it is considered to be community property and to be divided equally at the end of the marriage.  This will take the services of a lawyer and an accountant and could take some time to go through all the changes that has occurred to it since its beginning.

In case of death, one half of the community property can be left to someone other than the spouse if it is designated in a will.  However, if no will is found then all assets will be passed to the surviving spouse.

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Modifying an Existing Court Order

Posted by admin on 27th April 2006

How does one modify or change an existing court order? First of all, to better understand what is to be done, what precisely is a court order?

A court order is an order given by a judge or a panel or group of judges. It is an order with specific requirements and rules that you are to fulfill.

To change a court order, here is what must be done depending on your situation: If you have an order from the Provincial (or local) Court, and you both agree to change it, go to the court that made the original order and ask if court staff can provide you with the appropriate forms and instructions. In almost all cases, the change can be made without a court hearing.

If you have an order from the Supreme Court, and you and the court agree to modify it, you can write your own modified forms, following precisely the information provided in the Supreme Court (common) Rules, available on-line. However, the Supreme Court method is complex. You should see the court staff for more information, and you may also want to talk to a lawyer. Like Provincial (or local) Court, in most situations, the modification can be made without a court hearing.

If you have an agreement, rather than a court order, and both of you agree to modify (or change) it, you can either revise the current agreement or write a new one. It’s also an excellent idea to file your revised agreement with the court. Once it’s filed, you can ask the court to enforce it for you if you run into any kind of problems later on.

If after all of this is done, and still you can get nothing to be changed or modified, then you will need to apply to the court and ask a judge to change it. If it is over children for example, the judge will make the decision based on the best interests of the child. To decide this, the judge will take in to account many facts, including the child’s physical and emotional well being, and the ability of each parent to meet that child’s needs. In many cases, you will need to prove to the judge that you have changed since the time when the first agreement was made.

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Marital Settlement Agreements

Posted by admin on 27th April 2006

When going through a divorce, a marital settlement agreement is an agreement between the spouses dealing with property division, support, and other related matters that deal with, well, the divorce. All of the agreements are in writing so that it is all official, and lawyers will assist you in the marital settlement agreements.

Normally, if you and your spouse cannot agree on who gets what in the settlement; a family law trial will have to take place. You see, divorce is no longer being looked at as a legal issue anymore, more of like a relationship issue with legal consequences. If you go to one of these family law trials, the judge will make his decision based on what you and your spouse present before him. Trials cost a lot of money, and the end result is unpredictable. Unless you like taking a gamble with everything that you own, it is almost always better if you can agree to resolve issues that the both of you have outside of court. It is less expensive this way, and courts prefer it.

Once you both come to an agreement on the marital settlement, you each need to sign it and file it with the court. If the judge approves of the marital settlement agreement it will then officially become part of the judgment of divorce and can be enforced just like any other official court judgment.

As far as a judge approving what the both of you has agreed on, yes, it has to be done in order for it to become legal. A judge must approve what you have presented, and the judge has the power to accept or reject it. However, if the judge can see that each member that is getting divorced understands what they have agreed too, it is highly unlikely that the judge will refuse the marital settlement agreements.

If there are children involved with the marital settlement agreement, and they are not mentioned, or there is no child support involved in the agreement, the judge it is more than possible that the judge will refuse the agreement.

The best way to make marital settlement agreements work is to use a mediator or collaborative law. Mediation divorce is inexpensive and it will help you settle things fast with suggestions from the mediator. Collaborative law has the lawyers, financial advisors and child specialists that will aid you in getting a fair marital settlement agreement for the both of you.

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Legal Separation

Posted by admin on 27th April 2006

A judgment for Legal Separation will not dissolve the marriage.  It provides immediate, limited relief and only recommended in unique situations.  People seek Legal Separation for before divorce for various reasons.  They may have a religious objection to divorce; they may need to continue to be carried on their spouse’s insurance program.  It can be a trial separation to see if while living apart a marriage can be put together again.  A Legal Separation will not allow you to remarry.  You will need to get a divorce to do that.  It also can help with the tax situation.

A Legal Separation can also take care of child support and custody questions as well as spousal support.  Couples can be separated without the legal paper but it’s a good idea to get specifics in writing so there will be no misunderstandings.  Divorce settlements often are based on what a Legal Separation paper states.  If there are different marital assets that are going to one spouse or another, they should be specified that way in case of divorce.  Family heirlooms may need to be listed so it goes to the right person.

Don’t forget to separate your finances.  Get your own bank accounts and don’t use the joint account.  Either spouse does have the ability to withdraw all of the money even if you contributed part of the balance.  If your name is on a mortgage where your spouse is still residing, you may be liable for the payments.  It goes for credit cards as well as utility bills.  Spouse’s have been known to ring up large credit card and utility bills before they can be taken out of both names and leaving the other spouse with the bills to pay.

If the separation doesn’t work out and you end up going to divorce court, the procedure may vary depending on where you live.  It’s best to consult with an attorney.  Some states allow an amendment to a Legal Separation to change it to a divorce request.

In California, you don’t need to meet residency requirements for Legal Separation.  An amended request to change the petition to a divorce can be filed after residency requirements are met.

Legal Separation means that you aren’t sleeping together and you are eating and entertaining separately.  It also means chores are done independently in the event both parties are still residing in the same house.

Before leaving, make copies of all-important papers and account numbers as well as copies of tax records for at least the past six years.  If you have a safety deposit box, make a list or take a picture of what is in the box.  Take everything with you that you think you will want or need.  Once you leave the family home, it’s not always possible for you to get back in to retrieve something you forgot.  If you think you might need it, take it.  You may not get it later.

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