Preparation for Mediation in a Divorce Case

This article follows our previous introduction to mediation. This is part 2, which will provide information on how to prepare for mediation in a divorce case, with information derived from the California Court website.

 

Choosing the mediator

  • Selecting the mediator is an important decision in preparing for a successful mediation, and the right mediator is a very personal decision.
  • For some parties, an excellent mediator might be a former judge to provide experience and information on legal issues. 
  • For other parties, an excellent mediator might be one with the right temperament to fit the parties. Some mediators are more sensitive and collaborative and others tend to be more formal and commanding. 
  • The differences in mediators are as numerous as the differences in attorneys, judges and experts, so no two are alike, and you want to find one that you believe best fits your personality and the opposing party.

 

Understanding the process

  • Mediation can take different forms. In some cases, the mediator meets with each party separately. In other instances, the mediator might lead a discussion of both parties and counsel. In some instances attorneys will be present an in other instances, unrepresented parties seek to use the mediator without retaining and attorney. 

 

  • Find out ahead the time constraints of the parties and the mediator, so that you can properly pace yourself during the process. 

Ask yourself difficult and probing questions prior to the mediation

 

  • Seek to see the strengths and weaknesses of your own case. Be realistic in assessing your position. 

 

  • Try to understand.  Strive to analyze the arguments of the other party and contemplate how to address them. Are there solutions you can think of where all parties win?

 

  • Learn from the past but focus on the future. You cannot change the past, but you can learn from it. What do you know about your former spouse that will influence your decisions? How can you predict their behavior to foresee problems and challenges that may arise and how can those be addressed ahead of time in the mediation process?
  • Let go of emotion. This is one of the most difficult steps of mediation. A court case can never resolve the anger and hurt that is involved in most divorces, so expecting vindication is a barrier to an effective settlement. To the extent that you can view the case logically and impartially, this will help you understand and accept a result that may be in your best interest. 

CONSULT THE LAW OFFICE OF DAVID KNECHT

Mediation can be an emotional and challenging process, but it is an extremely important step in the divorce process where the right attorney can add tremendous value. At the Law Office of David Knecht, we have years of experience with divorce and specifically with divorce mediation. Call us today at 707-451-4502. 

 

Filed Under: Divorce Advice, Divorce Attorney, Divorce Lawyer

What is Mediation for a Divorce Case?

This article will provide introductory information about the purpose of mediation, how it works and what to do to prepare for a divorce mediation with information derived from the California Court website.

What is divorce mediation?

  • It is a flexible dispute resolution process with an independent third party who helps to facilitate communication and solution-finding between parties to resolve their own dispute outside of the court system. 

Does the mediator take sides?

  • The mediator is intended to be a neutral party who does not take sides, make decisions, offer legal advice or reveal confidential information. 
  • However, an effective mediator may offer an opinion or share references to legal authority that may be on point for the question at hand. A mediator may provide context with information on how issues have been previously decided by the court.  

What if I have concerns about the process? 

  • If you have any concerns about the mediation process, you should raise those and make sure they are resolved to your satisfaction prior to proceeding. 
  • Some common concerns can include practical considerations like the billing rate of the mediator and your responsibility to pay, or legal concerns such as whether  a judge can make negative inferences against you if you do not settle or whether the information shared in mediation is confidential.
  • It is the mediator’s job to resolve any concerns that you may have prior to the process, and you should not be afraid to ask questions throughout the mediation process. 

 What are some best practices to ensure a successful mediation? 

  • Ask the mediator how to best utilize their services. The mediator often has experience and can guide you as to how to maximize their time and experience. 
  • Come ready to participate fully, honestly and courteously. 
  • Be willing to understand the other party’s arguments. This does not mean you need to agree with them, but understanding your opponent is a good step in finding out of the box solutions. 
  • Assess litigation costs and prospects realistically to yourself. You typically will not get everything you want in a mediation, so assessing the strengths and weaknesses of your case will help you focus on the wins that are most important to you. 

CONSULT THE LAW OFFICE OF DAVID KNECHT

There are many divorce lawyers, but not all family law attorneys have extensive experience. At the Law Office of David Knecht, we have years of experience with divorce and other family law issues. Additionally, we have a commitment to customize our approach to your specific needs and seek to understand your goals and help you achieve them. Call us at 707-451-4502. 

 

Filed Under: Divorce Advice, Divorce Attorney, Divorce Lawyer

What are the Main Steps of a California Divorce?

This article will provide an overview of the divorce process with a summary of the information provided by the California Courts.

Getting a divorce in California takes at least six months. There are four main steps to getting divorced and they are the same whether you are married or in a domestic partnership. If you want a legal separation, the steps are the same, but there isn’t a required six month waiting period.

Start the divorce case.

  • One spouse files the papers and lets the other person know that the case has been started by serving the papers on that person.
  • Then the other spouse has a chance to file a response.

Share financial information.

  • The party that filed the papers must share financial information and the other party must also, if they are participating in the divorce process.
  • The documents are shared with the other party and then you file a form so that the judge knows you met this requirement.

Make decisions.  

  • You will need to decide how to divide property and debts, whether spousal support will be paid, and how to care for and support children (if appliable).
  • You can work together with your spouse to come to an agreement on these issues or you can ask the court to decide.

 Finalize the divorce. 

  • This last step involves filing a set of final paperwork. The court will review the forms to make sure that nothing is missing and there are not mistakes and the judge will sign the final form.
  • Visit this site for more information about finalizing a California divorce.

CONSULT THE LAW OFFICE OF DAVID KNECHT

If you need help with a divorce, contact the Law Office of David Knecht. Call us at 707-451-4502. We have extensive experience in family law and can help you feel confident and comfortable navigating a California divorce.

Filed Under: Divorce Advice, Divorce Attorney, Divorce Lawyer, Divorce Planning

Property and Debt Division in a California Divorce

In a California divorce, even if the parties agree, a judge has to approve the division of property and debts through an order. You don’t necessarily have to go to court because a judge could approve an agreement between you and your spouse. If the parties don’t agree, the judge can make a determination for you at a hearing or a trial. Information in this article will help you better understand https://selfhelp.courts.ca.gov/divorce/property-debtsproperty and debt division in a California divorce with information sourced from online resources provided atx. 

 

  • What is property? 

 

  • Property has a formal definition, but in general it is anything that you can own, buy or sell. This includes real estate, bank accounts, life insurance, retirement and more. 

 

 

  • What are the categories of property and debts?

 

  • Community property is generally what you own together during your marriage and the debts that you owe together during your marriage. 

 

  • Separate property is generally what you each owned individually before you were married or after you separated and any gifts or inheritance or any debts you incurred before or after your marriage. 

 

 

  • Why is the date of separation important for categorizing assets and debts?

 

  • The date of separation is important because generally, from that day forward, what you or your spouse earned or loans that you take out are no longer community property. 

 

 

  •  What are the rules for the date of separation?

 

  • The separation date is the day that one of you let the other one know (by actions or words) that they wanted to end the marriage, provided that after that day, your or their actions were consistent with wanting the marriage to be over. 

 

 

  •  How can I tell if something is community property?
  • Generally, community property is anything you earned while married, anything you bought while married and debt that you incurred while married. 

 

Consult the Law Office of David Knecht

Property and debt division is one of the most important aspects of a divorce for most people. The information in this article is very general, but an experienced family law attorney can help you make your case to get the property to which you are entitled and fight to prevent your being saddled with debt that isn’t yours. Please contact us at the  Law Office of David Knecht. We have extensive experience with divorce and family law issues and can answer your questions. Call us at 707-451-4502.

 

Filed Under: Divorce Advice, Divorce Attorney, Divorce Lawyer

Can I Sue My Ex for Defamation?

If you follow Hollywood news, you’ve probably heard a lot about the legal battle between Jonny Depp and Amber Heard. He is suing her for 50 million dollars for defamation for a 2018 op-ed piece in the Washington Post that alleged she was a “public figure representing domestic abuse.” She has counterclaimed for 100 million dollars, alleging that Depp and his former lawyer conspired to defame her by calling her allegations a hoax.  https://www.foxnews.com/entertainment/johnny-depp-may-lose-defamation-case-amber-heard-flops-stand-legal-experts-say

This article will provide an overview of defamation and California law to help explain how and when an ex can be sued for defamation. 

 

  •  What is defamation? 

 

  • Defamation is a broad term for statements that malign someone’s reputation. 
    • A statement made verbally is slander.  
    • A statement made in writing is libel.

 

  • What are the elements?

 

  • The statement must be false. A truthful statement, even if harmful, is not defamation. 
  • The statement must be presented as fact, not opinion, and be misleading intentionally, recklessly or negligently. 
  • It must be published, which means that someone besides you heard or read it. 
  • It must have actually hurt the reputation of the victim. 
  • It must have brought harm to the victim, such as a lost job or lost opportunity. 

 

  • Can statements made during my divorce trial or divorce settlement negotiations be defamation?

 

  • No, statements made during settlement negotiations would be made to your ex and their attorney, so they would almost never rise to the level of defamation. 
  • No, statements made during trial would not be defamatory because your purpose in going to trial is to tell the judge your side of the story. 

 

  •  Where can I find the laws relating to California defamation, i.e. libel and slander?

 

  • This is the link to the statute for slander: 

 

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=46.&lawCode=CIV

 

Consult the Law Office of David Knecht

If you have questions about defamation and divorce or any family law question, please contact us at the  Law Office of David Knecht. We have extensive experience with divorce and family law issues and can answer your questions. Call us at 707-451-4502.

 

Filed Under: Divorce Attorney

Overview of a California Divorce

If you are considering divorce, you may want a general overview of how the process works. This article will summarize the basic steps, with information derived from the California Court’s.

 

You get a divorce by initiating a court case. 

  • You don’t have to have a reason for wanting to get divorced or prove that anyone is at fault. California is a no fault divorce state where you can base the divorce solely on irreconcilable differences. 
  • You can get a divorce even if the other person doesn’t want one. 
  • If you’ve been married less than five years and have no children, you may qualify for an easier process called a summary dissolution. More information can be found here:  

 

California residency is required for a California divorce. 

  • You must have lived in California for the past 6 months.
  • You must have lived in your current California county for the past 3 months. 

 

Filing Fee.

  • You will have to pay a filing fee to initiate the divorce. 

 

 Service

 

  • You have to inform your spouse that papers have been filed. The formal way to do this is by service of process. 

 

Waiting period

 

  • There is a six month waiting period for the divorce to be final. 

 

 Information Sharing

 

  • You will have to share information with your spouse

 

 Familial and Financial Issue Resolution

  • You will either need to resolve child custody issues and financial issues with your spouse by agreement between the parties or through a decision by the court, which will be an order

 

CONTACT THE LAW OFFICE OF DAVID KNECHT FOR HELP WITH A CALIFORNIA DIVORCE

If you need help with a divorce in California, contact the  Law Office of David Knecht. We have extensive experience with family law in California including divorce, child custody, modifications and more. Contact us at 707-451-4502 for more information.  

 

Filed Under: Divorce Advice, Divorce Attorney, Divorce Lawyer

Temporary Spousal Support in Solano County, California

An important issue in a divorce is temporary spousal or partner support. When one spouse files for divorce in California, either spouse/partner may request from the court an order for temporary spousal support.  This article will summarize important information published by the California Courts here, https://www.courts.ca.gov/1038.htm, which relates to temporary spousal support

  •  What is temporary spousal support?

Temporary spousal support is also commonly referred to as alimony. Before a divorce is final, upon the request of one of the parties, a judge may order that one spouse will pay money to the other spouse.

  •  What temporary spousal support formula is used in Solano County, California?

In Solano County, the courts use the “Santa Clara” formula, which comes from Rule 5.30, which can be found at the link below.  Some of the cities in Solano County include Benicia, Birds Landing, Dixon, Elmira, Fairfield, Rio Vista, Suisun City, Vacaville and Vallejo.

For more information about the rules applicable in Solano County, see this site: https://solano.courts.ca.gov/wp-content/uploads/2020/10/Solano_County_Local_Rules_Effective_2021-01-01_-_Rule_05.pdf

  •  How does the Santa Clara formula work for calculating temporary spousal support?

The support is generally calculated by taking 40% of the net income of the payor, minus 50% of the net income of the payee, adjusted for tax consequences. If there is a child support, temporary spousal or partner support is calculated on net income not allocated to child support and/or child-related expenses.

Resources for more information:

CONTACT THE LAW OFFICE OF DAVID KNECHT

If you are concerned about your ability to meet your daily expenses and need temporary spousal support or if you are the wage earner with questions about a potential request for temporary support, contact the  Law Office of David Knecht. We have extensive experience with divorce in California. Contact us at 707-451-4502 for more information.

 

Filed Under: Divorce Advice, Divorce Attorney

Changing Spousal Support in California

With time, comes many changes, and this is often true of the circumstances in the years following a divorce. Many people find that their lives have changed significantly at some point after the divorce is final and they realize they need to change the spousal support order that is currently in place. This article will provide some basic information on how that is done and why it may be beneficial for you with information about changing spousal support in Caliofrnia summarized from ca.courts.gov: https://www.courts.ca.gov/1250.htm.

  • Can I change spousal support after the divorce is final?

Yes, you can change spousal support after the divorce is final if there has been a change in circumstances, but it is important to keep paying the full amount under your current order until you get the order changed, even if your situation has changed. Only the court can release you from your obligations, not the underlying circumstances. This is typically accomplished via a stipulation between the parties that is signed by the judge or a motion to the court requesting a modification of the spousal/partner support amount.

  • What is a change in circumstances to justify a change in spousal support?

A change in circumstances means that something significant has changed since the spousal or partner support order was made. This could be a variety of circumstances:

  1. perhaps the person paying has had a significant drop in income and can no longer afford the amount of support
  2. perhaps the person receiving the support has had a change where the support is no longer needed
  3. perhaps the person getting support is not making a good faith effort to become self-supporting
  •  Can the parties agree to a change in spousal support?

If the spouses or domestic partners can reach an agreement on the new amount of spousal or partner support, they can draft is up as an agreement/stipulation. It will then go to the judge for signature.

  •  Why is asking for a new court order right so important?

Spousal or partner support cannot be changed retroactively. This means if you wait, you will not be able to change the amount as to the date that your income went down. If you lost your job six months ago, but are only filing the paperwork now, the judge will not be able to go back to the date that you lost your job. The judge can only make the modification from the date that you filed the papers. Often people think that they might get a new job, or they may be too stressed or worried to prioritize changing the order, or they may have impediments like being in jail or out of state which may impede their ability to get the new order. While these are valid reasons for not requesting a new spousal support order, they will not be effective in changing the support modification to a retroactive date, so that is why it is very important to ask for a new court order right away.

CONTACT THE LAW OFFICE OF DAVID KNECHT

If you need assistance changing a spousal support order or if you have any other family law related questions, contact the  Law Office of David Knecht. We have extensive experience with family law in California. Contact us at 707-451-4502 for more information.

Filed Under: Divorce Advice, Divorce Attorney

Feeling Powerless in a California Divorce? How to Take the Power Back

If you are feeling powerless in your divorce, you are not alone. It is common to feel depression, anxiety and stress during a divorce. Some studies even show that a divorce can lower your lifespan, so if you feel sad or helpless, you are not alone.  https://pubmed.ncbi.nlm.nih.gov/23284588/ 

On the bright side, though, there is also research to indicate that quality of life post-divorce can be much better than it was during the marriage. https://www.connectedwomen.co/magazine/the-brighter-side-of-single-mom-life-why-more-women-are-living-happily-ever-after-divorce/

This article will highlight three ways to break the cycle  of feeling powerless and help you take the power back during your divorce. 

  •  Become informed. 

It’s axiomatic that knowledge is power, and this is certainly true when it comes to divorce. For many, the intimidation of the process can be daunting, but there are many online resources that can help. 

One we recommend that is unbiased and thorough is the website published by California Courts.  It can be accessed here. https://www.courts.ca.gov/selfhelp-divorce.htm?rdeLocaleAttr=en

This resource has self-help tools, information, forms and general guidance on divorce and California, and it’s a good place to start to get educated on what may lie ahead. 

  • Get organized. 

You can anticipate that assets and liabilities are going to be important in your divorce, so it’s important to get the information organized and easily accessible. Some things to consider might be:

  • What are the balances on your credit cards?
  • How much do you owe on your vehicle?
  • What is your mortgage payment?
  • How much student loan or other debt do you carry?
  • How much do you earn?

Getting information together will help you feel more in control and will make the process go more smoothly down the road. 

  •  Obtain Legal Advice. 

An attorney who is experienced in family law and empathetic to your concerns can help you feel more in control of your divorce. At the Law Office of David Knecht we have extensive experience with divorce in California. We will listen to your concerns and seek to understand how to customize the divorce to your needs. Contact us at 707-451-4502 for more information.  

Filed Under: Divorce Advice, Divorce Attorney, Divorce Lawyer, Divorce Planning

Dividing Stock Options in a California Divorce

Stock options that are granted subject to employment can present a challenge when dividing assets in a divorce.  This can occur because the options may not have vested yet or the employment upon which the options were based may have occurred before the marriage as well as during the marriage.  This article will provide an overview of the logic relating to analyzing the value of the stocks and to whom that value should accrue.  However, this is a complex area of the law, and we recommend that you consult with attorneys who are familiar with the valuation and division of stock options.  At the Law Office of David Knecht, at 707-451-4502, we have extensive experience in divorce in California and can help you with complex questions relating to valuation and division of assets in a California divorce.

Is the stock option community property or separate property?

Establishing whether a stock option is community or separate property is important.  Many facts can play into this analysis such as the date the options were issued, whether they have vested, and the requirements that were met or will be met to justify the stock award.

What is the date of separation?

 

The date of separation is important in assessing stock options.  The date of separation is defined as the date that a complete and final break in the marriage relationship has occurred, evidence by both the following:  1) the spouse has expressed to the other spouse his or her intent to end the marriage, and 2) the conduct of the spouse is consistent with his or her intent to end the marriage.  https://codes.findlaw.com/ca/family-code/fam-sect-70.html

Are the stock options vested or unvested? 

 

A vested option can be exercised by an employee.  An unvested option can be exercised at some point in the future usually based on certain requirements (such as remaining employed).  An option that has vested during the marriage is more clear cut, but that doesn’t mean that an option that hasn’t vested before the date of separation has no value to the nonemployee spouse.  California courts have held that even though unvested options may have no marketable value at the time of divorce, they can still be an asset subject to division in the divorce.

What are the formulas used by courts in these cases?

There are multiple formulas that a court can use, and the court has broad discretion to apply the formula that will achieve the most equitable result. Although the formulas vary, the basic idea is that the longer the time between the date of separation and the date the options vest, the smaller the overall percentage of options that will be considered community property.  For example, consider a divorce where the options vest just a day after the separation.  Now consider a divorce where the options vest years after the separation.  In general, equity would suggest that the nonemployee spouse should be entitled to a greater share of the stock options that vest just a day after separation than those that are years away from having market value.

You can a couple cases that are examples of these formulas here:  https://scocal.stanford.edu/opinion/re-marriage-brown-27941

https://www.leagle.com/decision/200715366calrptr3d871148.xml

What is the best way to position yourself in a divorce relating to stock options?

Even though nonvested stock options may have no present market value, you may want to retain an interest in the shares and potential profits.  This area of family law can be very complex, and possibly the best way to position yourself well relating to stock options is to obtain advice from an experienced divorce attorney who can analyze and comment on your specific situation.

Conclusion

At the Law Office of David Knecht, at 707-451-4502, we have extensive experience in divorce in California and can help you with complex questions relating to valuation and division of assets in a California divorce.

Filed Under: Divorce Advice, Divorce Attorney
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