Tips for Working with a Custody Mediator

There are different types of custody mediation.  In one instance the court may order mediation to resolve contested issues.  In other cases, the parties may participate in a private mediation with a retired judge, attorney, etc.  In either case, there are some general rules of thumb that will help you prepare for a successful interaction with the mediator.

  1. Always look through the lens of the best interest of the children.

As you prepare for mediation, remember your focus:  the best interest of the children. Other motives such as your convenience, getting revenge for past wrongs, or being unyielding to send a message will not be well-received by the mediator.  As you consider what you want, always put the child first.

  1. Review important documents.

Brush up on any active orders or other important documents.  In order to focus the discussion on the right issues, it will be helpful for you to remember clearly the decisions that have been made already in the case.

  1. Organize your goals but stay open to other possibilities.

Consider what you want to accomplish in the mediation and focus on the big picture.  Walk in knowing what you would like to accomplish but be open to different solutions on how to achieve what is best for the child.  Try to stay reasonable and keep an open mind, but be organized enough to know what you would like to achieve.

  1. Try to stay logical and calm.

In a mediation, you can speak honestly about your position. Do not feel pressured to agree.  However, staying logical and calm is very important.  Disparaging the other party will only waste time.  Make your position clear and keep your focus on the best interest of the child when you explain that position.

  1. Take your turn to talk when you have the floor, but don’t interrupt others.

Listening is a skill often underestimated by many. Listen carefully to what the mediator is saying. Don’t be so concerned with your argument that you don’t take time to understand other points of view.  Interrupting others is an easy pitfall in a highly emotional situation, but it can put a mediator on the defensive. Listen to what he or she has to say and then respond at the right time, and your arguments will likely be better received and understood.

With the right preparation and attitude, you can have a very successful mediation experience. The bottom line is to always focus on the children and keep yourself professional, articulate and calm.

 

3 Basic Facts You Need to Know about Custody in California

That you love your kids is a given, so if you are considering a divorce, you are probably wondering what will happen to your children and how will the divorce impact your parenting.  This article will discuss three basic facts about custody, which will help you plan for the future.

What is legal custody and what is physical custody?

  • Custody is the legal rights and responsibilities of the parents or caretakers. Visitation is how and when each parent spends time with each child. Either parent can have sole custody of the child, or the parents can share the custody.
  • Legal custody involves the right to make decisions on behalf of your children relating to school, health care, etc.  Physical custody refers to where the kids actually live.
  • It is common for sole physical custody to be granted to one parent and then visitation to the other. For legal custody, the preference if for the parents to share legal custody.  Joint legal custody can be tricky because it means that the parents must share in the making the important decisions for their children.

What are some common schedules?

  • Schedules can vary as per the best interest of the child, but some that are commonly used are as follows:
    • For joint physical custody, common schedules include one week per each parent, 2-2-3 schedules where a parent has Mon/Tues, the other parent has Wed/Thursday and the first parent has Friday, Sat Sun.  
    • For sole custody, weekend visits from Friday-Sunday with one or two weekday visits.

Can the court favor one gender over another?

  • No, the judge cannot favor one gender over another.
  • The standard question in any analysis is what is in the best interest of the children.
  • Judges have discretion, which allows for gray areas and wiggle room.
  • Bonding is an important factor in child custody cases, and goes to the emotional attachment a child and parent have.  

 

3 Tips on How to Create a Perfect Parenting Plan for Your Children

A parenting plan is required in every divorce case because it establishes the rules for physical and legal custody for the children.  If you and the other parent can agree, then it is a stipulated plan, or if you cannot agree then the court can establish a parenting plan for you.  You can tailor the parenting plan to the needs of your family, and this article will help you think through some important points you will want to include in the plan.

What are important issues for physical custody you should think through in creating the plan?

  • When will visitation occur
  • How will children be exchanged
  • Holidays, school breaks, special events
  • Accommodations for a parent’s illness or travel
  • Parent wants to relocate
  • Extracurricular activities and lessons
  • Resolving disputes
  • Phone/email/social media access with other parent
  • Military or other prolonged absence
  • Discipline or punishment methods
  • Children’s clothes and other belongings and how they are exchanged
  • Cancelations and delays

What are important issues for legal custody you should think through in creating a plan?

  • Religious attendance
  • Immunizations
  • Medications
  • What school will the children attend
  • Babysitting/Daycare arrangements
  • Emergency care

What needs are specific to your child that should be considered?

  • How old is each child
  • What routines would work best for your child’s personality
  • How do the school schedules of each child fit with the plan
  • What will give your child a sense of security and routine

A parenting plan can be unique and tailored to your children or it can be more general.  If you have questions or need help in formulating a great parenting plan, we here at http://www.davidknechtlaw.com/ can help!

How to Know if Your Assets Are Being Split Fairly In Divorce

Whether you are just considering a divorce, starting the process or right in the middle of it, at some point you are going to wonder if you are getting a fair shake. An attorney can look at your particular assets and debts and tell you the best plan for you, but this article will provide general information about the landscape of asset division in California and educate you to ask the right questions about the facts of your case.

  • Why do I need to care about community property vs. separate property?

In general, California law requires community property to be split between the spouses 50/50, whereas separate property may be retained solely by the spouse who owns the separate property.  

  • What is Community Property?

California Family Code provides the general definition of community property:  “Except as otherwise provided by statute, all property, real or personal, wherever situation, acquired by a married person during the marriage while domiciled in this state is community property.”

  • What is Separate Property?

California Family Code defines separate property in several sections, but the section that is broadest is as follows:  Separate property of a married person includes the following: 1) all property owned by the person before marriage, 2) all property acquired by the person after marriage by gift, bequest, devise or descent, 3) the rents, issues, and profits of the property described in this section.

  • Commingled funds make characterization challenging:

Commingling is where both separate property and community property have been combined in such a way that the character of the property isn’t clearly apparent upon first analysis. For example:

  • Down payment or loan money for the purchase of a home came from a gift to only one spouse, but community property funds have been used to pay mortgage.
  • A premarital bank account from one spouse is used by both spouses after the marriage, so it contains both pre-marriage separate property and community property funds.  

These are just a few examples of the myriad of ways that funds can be commingled. The process of sorting these out through tracing, etc. is beyond the scope of this article, but advice from an experienced family law attorney can assist in identifying and proving the proper character of commingled assets.

  • Determining the value of assets?

A key issue in fair division of assets is assessing the value of an asset. This can be challenging for some assets, but thinking through how the value of each item will be assessed is an important step in making sure you are getting a fair division.  

  • Don’t forget about debts.

The focus of this article has been assets, but don’t forget to calculate in the value of your debts. For example, a mortgage on real property, school loans, and credit card debt should never be left out of the analysis.

This is just the tip of the iceberg to get you thinking through issues relating to identifying community property and assessing its value.  The division of money and time with the children are the two most important issues facing many couples in divorce, so a thorough analysis of these issues by an experienced family law attorney will help you understand the law and achieve a fair resolution.

 

What Does It Mean to Establish Parentage and When Is It Necessary?

If you are having a baby, you may be wondering what you can do to protect your baby’s rights. You want your child to have all the support he or she needs from the father. Establishing parentage can be an important step for you to take if you are not married to the baby’s father. This article will walk you through some of the basics of establishing paternity and help explain why parentage is important.

  1. What is parentage? What is paternity?

When a child is born to parents who are married (or to parents in a domestic partnership after 2005), then the law presumes that the couple are the child’s parents.  If the parents are not married, then the father only has legal rights and responsibilities if parentage is established.  However, in some cases parentage will be presumed, such as “parentage by estoppel,” where the parent welcomed the child into his home and treated it as his own.

  1. Why is establishing parentage important?

If you want custody, visitation or child support orders from the court, parentage will have to be established. This can also be important in a same-sex parenting situations if the parents were not married when the mother became pregnant or when the child was born.  There are other advantages: having health and life insurance coverage from either parent, the right to inherit from either parent, the right to receive social security and veteran’s benefits, just to name a few.

  1. What if the father does not admit that he is the parent?

A court may order the alleged father, mother and child to be genetic tested in order to establish parentage.

  1. What are the consequences and rights of the parent after parentage is established?

A parent has generally the right to get custody or visitation rights related to the child, although this right may be impacted in some cases by criminal history. A parent also has a legal obligation to financially support the child, but the amount of financial support will vary depending on various factors including income, custody arrangements, etc.

  1. What are the ways to establish parentage when the child’s parents aren’t married or in a domestic partnership?
  • Signing and filing a voluntary Declaration of Paternity – this is a form that both parents voluntarily sign, which established them as the legal parents of the child. The advantage of the voluntary Declaration is that neither parent has to go to court. After the form is signed, it needs to be filed with the California Department of Child Support Services.
  • You local child support agency can bring an action to establish parentage of a child. This often happens as a matter of course when welfare is requested for the child.
  • You can bring your own court case to establish parentage, which will involve several court forms and possibly a trial. You may want to utilize the help of an attorney or an agency to navigate this process.

 

How to Know If You Have Chosen the Right Family Lawyer

You are getting a divorce. Or perhaps you have happy news, and you are adopting a child. It can be liberating, overwhelming, stressful, or exciting or all of the above.  No matter how your family is changing or how you feel about it, the most important action you can take to ensure that it goes as smoothly as possible is to find the right lawyer.

1. Experience. Experience. Experience.  If you don’t have someone with experience, you have the wrong attorney.

  • Education is not the same as experience, so it almost goes without saying that your attorney is not fresh out of law school and working on his or her first family law case.
  • Ask your attorney how many family law cases he or she has handled.  A
  • Ask about the outcomes of your attorney’s previous cases.
  • Ask how comfortable your attorney is with hearings, in the court room, and in your jurisdiction.
  • Don’t just be satisfied with surface answers but really dig to make sure that your lawyer is knowledgeable, confident, and accomplished.

2. Find the Lawyer that Fits Your Style.

  • You know your situation and your personal preferences better than anyone else, so find the lawyer that is a good fit for you.  Here are some types to look for:
    • The Bulldog” – some attorneys are extremely brash and aggressive. This might be the type of person you need if you have a bully for a spouse in a divorce or if there are issues that will be hotly contested.
    • The Negotiator”– some attorneys are excellent at finding the win-win for all parties and for the family, and they can be effective in selling solutions even to an adversarial spouse.
    • The Researcher” – some family law cases involve assets that are complex.  Perhaps a you own a business together, perhaps some of your assets are also owned with other family members or in-laws. If you know that your assets are complicated, you want an attorney with the patience and finesse to handle that type of case.
    • The Problem-Solver” – some families face unique problems – care for a special needs family member for example or perhaps a parent’s job that places unusual hurdles that make the case atypical.  If you see that your divorce falls in this category, you want to find an attorney who can think outside the box and who isn’t just trying to fit you into one of a few typical scenarios.

3. Make sure Your Attorney Is Within Your Budget.

  • You can expect a family law case – whether divorce or adoption — to put a strain on your finances, even if you have a fairly large family budget because it is an out of the ordinary expense.
  • Ask your attorney how he or she anticipates your case will go.
  • Don’t be afraid to push for an estimate on costs.
  • Find out how you will be billed and who will work on your case.
  • Inquire about the most cost-effective means of communication with your attorney and his or her staff – i.e. emails, calls, texts, etc.

 

 

5 Things You Should Know About Domestic Violence

If you are facing domestic violence charges or if you are a victim or a witness in a domestic violence case, you may have some basic questions.  

Can the victim “drop the charges”?  No, in a criminal case the victim is not the person bringing the charges.  In a civil suit, the plaintiff can choose to dismiss the case.  In a criminal case, the charges are brought by prosecutor, and the judge has the power to dismiss the case. The prosecutor has to have enough evidence to be able to convict the defendant, so the victim’s testimony may have an impact on the prosecutor’s ability to convict.  However, in many domestic violence cases, the prosecution has pictures, statements from the victim which may be admissible due to the particular circumstances, or other types of evidence that can be used in spite of a victim’s reluctance.      

Do the defendant and the victim have to be married for the crime to count as domestic violence?  No, the defendant and the victim just have to be in an intimate relationship (which includes but is not limited to marriage).  For example, domestic partners, currently or previously dating, living or lived together, have a child together can all qualify as an intimate relationship for a domestic violence charge.

Is domestic violence a felony or a misdemeanor level crime?  Each case is unique and the prosecutor determines the charges.  There are multiple different types of specific crimes relating to domestic violence.  In general, the extent of injury involved is one factor the prosecutor uses in determining how to charge, and the second factor is previous criminal convictions.  

Are there any possible defenses to a domestic violence charge? Yes, there are many potential defenses, and you should seek legal advice on the facts of your specific case. Self-defense is one common defense, where the defendant claims that he/she reasonably perceived an imminent threat, had a proportional response and was not the initial aggressor.  False allegations for manipulating child custody or divorce proceedings.  Here, the defendant shows that the witness has a motive to lie about facts, and did in fact lie about them.  Another tactic for winning these types of cases is to attack the level of proof presented.  The prosecutor must prove the crime beyond reasonable doubt and many domestic violence cases leave room for significant doubt about what was said and done. Another common defense is to show that the conduct was not willful, in the instances where a true accident occurred.

Is a domestic violence allegation a big deal? Yes, it can be, and it’s likely that you are going to want to hire an attorney to vigorously defend you.  Fines can be up to $6,000, and on rare occasions with enhancements even higher.  Penalties can include up to a year of jail for misdemeanors and several years for felonies.  Convictions can have consequences for your career as well, so it’s important to take a domestic violence allegation seriously.

 

3 Most Common Financial Questions When Hiring a Divorce Attorney

It has been said that there are no right answers to the wrong questions, so the first step in making your divorce process work for you financially is to ask the right questions.  This article will outline a few of the most important financial questions when hiring a divorce attorney.

1. What is the structure of the fee agreement?

Your lawyer should have you sign a fee agreement that lays out how you will be billed.  Understanding this agreement is extremely important.

Ask about the retainer.  The retainer is like a down payment that you pay up front, and it will be used to cover the fees as your case progresses.  

Ask whether you will be billed hourly or flat fee.  If you are billed hourly, then you will obviously be billed for the attorney’s time, but what isn’t obvious is how this can add up and how you can work with your attorney to keep costs down.  

Ask about who will work on your case, and how you will be billed for each attorney or staff member’s time.  Find out how much you will billed for the paralegal or other support staff.  If you want only a particular person or group to work on your case, you need to put that into the agreement because otherwise the default is that firms may utilize various people to work on your case and you may be paying to re-educate one attorney about issues another one has covered.

2. What kind of cost estimates can be anticipated?

Your attorney will very likely be unwilling to get pinned down to a definitive cost estimate of the overall divorce because your ex-spouse is a wild card that can lead to lower or higher costs depending on what they decide to do.  However, if you push for specific answers to smaller questions, you may be able to get a reasonable understanding of the costs that will be involved.

Does your attorney anticipate fees from any other professionals?  What are the typical ranges for these people– i.e. counselors, investigators, accountants, appraisers, etc?

What has been your attorney’s experience in terms of costs in prior cases that he or she has handled?  For example, you can ask about cases where the spouse was cooperative and where the spouse was uncooperative, where custody was an issue, where certain types of assets were involved, etc.

3. How can I keep costs down?

You are the person who will be in touch with your attorney the most.  Find out your attorney’s preferences and how to save his or her time.  

Find out whether your attorney feels that it will be more cost effective to communicate with him or her via email, text, calls or in person.  Focus on the most cost-effective ways of working together. 

Find out what kind of document organizations works best for your attorney.  If you make sure that any documentary evidence you have is assembled and summarized in an organized manner then you will save your attorney time and therefore save yourself money.

Are there things you can do yourself to save attorney time?  You may want to find out if there are tasks relating to your case that your attorney can delegate to you to save on cost. Your attorney may have staff set up to do non-legal tasks, but it never hurts to ask whether there are things you can do to keep costs down. 

You can expect that your divorce will have a significant financial effect on you, your ex-spouse, and your children.  Don’t be afraid to ask questions about the process and educate yourself on how you will be billed, what you can anticipate, and how you can minimize the impact to your financial bottom line. 

What Is the Typical Legal Procedure for a Standard Divorce

When you are embarking on a journey, it is important to have an overview of where you are now and where you are going.  Similarly, with a separation, divorce or an annulment of a marriage or domestic partnership, an overview of the system will help you plan ahead.  This article will give you a view of a big picture, but be aware that this is a generalized summary that will certainly vary depending on the unique facts of your case, your assets and your family.  

1. Petitioner Files Paperwork.  The Petitioner is the person who files the paperwork to get the divorce process started.  The forms needed to start your case in California can be found at this site:  http://www.courts.ca.gov/1229.htm

2. Serve the Forms.  The other party (Respondent) needs to know what paperwork is filed.  To accomplish this, a person serves the forms to the Respondent.  The Petitioner can’t serve the forms themselves because the Petitioner is a party in the case.

3. Respondent Responds.  The Respondent has 30 days to reply to the paperwork that is served.  There are 4 possible scenarios here:

  • Respondent Doesn’t Respond.  The Petitioner waits 30 days and files the appropriate paperwork for a Judgment.  
  • Respondent and Petitioner Work Out a Written Agreement. Respondent doesn’t respond but the Petitioner files the written agreement between Respondent and Petitioner and the paperwork for a judgment.   
  • Respondent Files a Response and Written Agreement (“Uncontested Case”).  This is the “uncontested case,” where one of the parties files and Appearance, Stipulation and Waiver and a Proposed Judgment.
  • Respondent Files a Response (“Contested Case”).  The Respondent files a response, but the parties can’t agree, so it proceeds to the next step toward trial.  

4. Disclose Financial Information.  Both parties are required to fill out disclosures of financial information within certain timeframes. This is where you submit information, and you must not withhold information or be dishonest about any information.

 

5. Orders.  During the process, either party can request temporary orders relating to child support, spousal support, custody, etc.

 

6. Mediation.  Mediation is where an attorney or an arbitrator assist the parties in seeing whether they can come to an agreement on important issues such as dividing the assets or time with the children.

 

7. Trial Preparation and Trial.  There are various steps that can lead to trial.  The discovery stage is where parties are trying to get more information from each other.  They can do this with interrogatories, which are questions posed that are required to be answered.  Requests for admissions is where you submit a statement to the other side that they have to affirm or deny.  There are also requests for production, where certain documentary evidence can be requested.  Deposition is sworn testimony where a person is asked questions while they are under oath.  These steps help the parties prepare for a trial, where the judge will make a decision on the issues presented.

 

8. Final Judgment and Timing. Your divorce will be finalized by a document that is signed by a judge.  This is when the proposed Judgment that was filed by one of the parties is signed by the Judge and becomes a Final Judgment.  Be aware that in California, you have to wait until 6 months after the case is filed and the Respondent has been served before the Judgment is Final.

 

9. Additional Resources.  This is just a primer on the divorce process, but there are many resources for more information.  One very helpful resource can be found at http://www.courts.ca.gov/1225.htm.   

 

 

5 Ways to Make Sure You Don’t Lose Your Shirt When Splitting Marital Assets

With any looming separation or divorce, you are wise to be worried about the income and assets and how your financial well-being may be impacted.  This article will give you some essential background information and five ways to make sure you protect your assets in a divorce.

Background.  In California, community property includes all the assets and income acquired during the marriage, and the law requires that the community property will be divided equally, unless there is a written agreement requiring something different.  

1. Identify the Extent and Value of Your Marital Assets.  This step is vital to protecting your financial future.  Discover and document everything you can about the state of your marital financial affairs.  In many instances, taking screen shots of information that shows both the information and the date can be very useful down the road.

 

  • What bank accounts do you have and how much money is in them?
  • What investment accounts do you have and what are those values?
  • Are there employment benefits involved, such as HSA accounts?
  • What health insurance do you currently have?
  • What real estate holdings are involved?
  • What other benefits might be applicable, such as military benefits?

 

2. Get Your Ducks in a Row About Your Separate Property.  In general, separate property is anything acquired before the marriage, by gift or inheritance during marriage, or property obtained during the marriage that can be traced to a pre-marriage acquisition.  What does this mean for you?  The court is going to presume that any property acquired during the marriage, except by gift or inheritance, is community property.  That means that you need to gather the proof to show that what is yours is yours.  Look at all sources of documentation to prove your case. This is a list of where to start to look for that proof:

 

  • Check emails
  • Find texts
  • Ask the gift-giver for any documentation they might have of the gift.
  • Look for documents or receipts
  • Check account histories

3. Don’t Sweat the Small Stuff. Most people in a divorce are angry, disappointed and hurt.  There is a temptation to be stubborn and to focus on a few key emotional items.  If you want to be financially successful in your divorce, you will likely be best served by letting go of the negative emotions and thinking about your marriage as a business that is winding down.  Don’t get caught up with issues or assets that don’t have a great value.  Time is money, and you will not get the satisfaction that you are seeking out of a “So there!” moment from operating out of revenge or vindictiveness.  As much as you can, look at your assets impartially, and seek to make moves that will benefit you the most long-term.

4. Don’t Lie, Cheat or Hide.  For many, it is ever so tempting to hide an account here or lie about an asset there.  This is typically a very poor long-term strategy for protecting your money.  A court can order you to pay the legal expenses of the other side for the search of hidden assets.  Those legal fees can add up.  Furthermore, a judge can sanction you for lying to the court.  Think long-term not short-term, and be forthcoming in your disclosures, not just because it’s your duty, but also because it really is almost always in your best interest financially as well.

 

5. Hire Competent Help.  The legal fees for an attorney can seem daunting, but having an experienced guide help you through the maze of dividing assets will often save you money.  Find an attorney who is experienced in divorce and who is committed to helping you reach your goals for dividing your assets.