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Child Visitation

http://www.sandiegouniontribune.com/sdut-supervised-visitation-monitors-face-little-2006jan15-story.html

It can be difficult in some states since visitation monitors are only required to report any criminal activity for the past 10 years. No regulatory agency monitor professional visitation monitors. In California, the state standards do not specify how much training someone should receive, and state and local officials do not certify or authorize specific agencies to do the training.

The list of monitors from the California Superior Courts includes disclaimer that the court “does not select, evaluate, endorse or supervise” those on the list and that they “have not been screened” regarding law enforcement, children’s services bureau or personal history. Providing the list may give the appearance that the court sanctions or approves the monitors, but it does not. The court’s role is just to determine whether the monitors meet the qualifications in the state standards.

When searching for a qualified visitation monitor for your children, it is important to know that the basic hours or training necessary to become “qualified” as a professional Monitor is not enough to assure the best situation for your family. Mandatory training in the CA 5.20 (Uniform Standards of Practice for Providers of Supervised Visitation) should be shown to have been provided by the CASVSP.

It is important that you seek someone who has years of experience in this field, and hopefully an education in a related field such as child development, human studies, or psychology.  You may want to look for a monitor with former experience working with children and families in a professional capacity, and a who possess a clear understanding of basic family law procedures.

The monitor you choose will be responsible for the safety and well-being of everyone on a visit, therefore, their education and experience, along with the proper training is of the utmost importance.

Further, the professional supervised visitation monitor you choose will be producing the notes and reports for your case. The monitor must be neutral in their interactions and reporting while keeping detailed and accurate records of all interactions.

The monitor must therefore also have writing skills which afford them the ability to produce professional reports to the court.

A monitor who possess years of experience with diverse types of cases, a college degree in a related field, proper CA 5.20 training, continuing education, and dedication to children and families, will help ensure safety, and help provides peace of mind.

Finally, the goal is happy, stress-free visits for the children with the visiting parent,  free of adult concerns.

  • Spend regular time with the child
  • Provide continuing financial support
  • Make collaborative decisions with the mother
  • Obtain joint custody

During a divorce, there is often quite a bit of controversy over the marital home. The family home is sometimes the most valuable asset in a divorce. In addition to the purely financial aspects of the home, leaving or selling the family residence can be very emotional, especially when children are involved.

If you Want to Keep the House, Make Sure You Have Good Reasons.

If you’re going through a divorce, and you want to keep the family home, there may be good reasons to stand your ground. Because selling or keeping a home after divorce can be a major, life-changing event, it’s important to know that your reasons are sound and that keeping the home will be in your best financial interests.

  • The kids. School-aged children may be traumatized by a divorce, and being forced to move can compound their emotional distress. If you’re worried about this and aren’t sure what’s best for your family, consider speaking with a child psychologist or family therapist that who can help you figure it out.
  • Emotional attachment. It’s often a very emotional decision whether to keep the family home; and although emotional attachment is not necessarily a “good” reason, it’s an understandable one. Many spouses become attached to their home because, for example, they’ve put lots of work into building their dream home, and it holds many great memories, or because their home has been in one spouse’s family for many generations.

There of lots of great reasons to try and keep the family home, but there are also some not-so-good reasons: spite, control, vindication, and greed. Don’t let the emotional aspects of a divorce cloud your otherwise sound judgment. While it’s easy to see why it might be hard to leave, you also need to consider what’s actually best for you in the long run.

If You’re Going to Fight to Keep the Family Home, Make Sure you can Afford It.

Today, families need to balance their wants and desires against the sometimes harsh financial realities of life after divorce. Not all families are able to maintain exactly the same lifestyle they had prior to the divorce.

While it would be nice to remain where you’re comfortable and avoid the hassles of moving, staying put might not be the best financial decision for you. No matter how attached you are to your home, it’s critical to have a realistic sense of whether you can afford it. If you give up everything else in order to keep the home, and then find that you can’t cover the mortgage, property taxes, and maintenance, you may end up in serious financial trouble.

It may be wise to hire a financial advisor or talk to someone who knows about financial planning, to help you determine whether, after the divorce, you’ll be able to cover the expenses of the home and still meet your other financial needs (such as saving for retirement).

In some divorce and custody cases, the court appoints a lawyer for the child. This happens when

  • the court thinks your child needs a lawyer, or
  • you ask for a lawyer for your child and the court agrees.

In some juvenile court cases, such as those involving abuse, neglect, or delinquency, the court always appoints a lawyer for the child (or you can hire one).

Should I ask for a lawyer for my child?

If you and the other parent agree on custody and visitation, your child probably does not need a lawyer. But you may want to ask for a lawyer for your child if
you and the other parent disagree about custody or visitation,

  • you are worried about your child’s safety (when there is child abuse or domestic violence), or
  • there is a question about paternity.

What if I ask the court to give my child a lawyer but the court does not agree?

You have the right to ask for a lawyer for your child, but the court does not have to appoint one. If this happens in your case, you may want to hire a lawyer for your child.

Divorce

How to file for divorce is a process begun by filing a document with the court that is called a Complaint or a Petition, depending upon the state in which you live. Some states call the procedure a divorce, and some call it a dissolution of marriage. A copy of the Complaint is served on (or officially delivered to) your spouse, usually by the sheriff’s office or process server. This may not be necessary in some cases, where you and your spouse are in agreement. Your spouse will be given a certain number of days to respond to the Complaint. How the case proceeds from there will depend on how your spouse responds. You and your spouse may reach an agreement, your spouse may file a response (either agreeing to what you’ve requested in the Complaint or contesting it), or may not reply at all. Other documents may also need to be filed, mostly commonly financial statements. Things can become quite complicated in a contested case, with numerous documents being filed, and one or more formal court hearings.

Traditionally, the only way to get a divorce was to prove that your spouse had done something that was officially recognized as a justification for divorce. In other words, your spouse had to be at fault in breaking up the marriage. The most common reasons were adultery, spouse abuse, being sentenced to prison for a felony, and insanity. This made it difficult to get a divorce, and a lot of time, effort, and money was spent proving that the other party was at fault. All states and the District of Columbia have passed no-fault divorce laws to allow a divorce simply because at least one of the parties no longer wishes to be married.

Legally there isn’t supposed to be an advantage but….

  1. You Feel More in Control During Divorce if You’re the Petitioner  ⎯  The one who files for divorce first has the advantage of being identified as the Petitioner, while the other party is known as the Respondent. Right out of the gate, being the respondent puts you on the defensive. You’re not asking for the terms you want, you’re responding to the petitioner’s claims. This puts them in the power position, where they usually stay for the entirety of the proceedings. It becomes the respondent’s responsibility to answer written requests for discovery and defend themselves against all accusations of abuse, neglect, financial mismanagement, and whatever other accusations are hurled at them. If you go to trial, even on temporary orders, it becomes the judge’s job to answer the petitioner’s claims. If they go the route my ex-husband did, asking for everything under the sun, there is a strong likelihood that they will get more than they should, simply because they asked for it.
  2. The Divorce Petitioner Has More “Tools” at Their Disposal and Can Use Those Against You ⎯ The criminal justice system is a tool often used in contentious divorce proceedings because, right or wrong, it is effective. Having your spouse arrested not only makes them look bad but puts the petitioner in the position of being granted everything they’re asking for by default. If you, as the Respondent, are incarcerated then you can’t show up for whatever hearings they call. In your absence, you can lose everything. For example, In my case, I had a bench warrant on a 12-year-old case in which I hadn’t stayed in the jurisdiction during my probationary period. This was something my husband knew about and used against me. After our hearing on temporary orders where I was granted both spousal and child support, primary custody, and the family home, he had me arrested and extradited to the state where the warrant originated. While I was in custody, being driven all around the country in a van full of “fugitives” he called an emergency hearing and everything I had been granted was reversed. He simply told the judge that I was going to be incarcerated for many years, and without any representation to dispute that, the judge granted his petition. The Petitioner uses tools like this often. When the Respondent doesn’t show up and the judge is told incarceration is the reason, the Respondent loses any credibility and the Petitioner is usually granted whatever they’re asking for by default. For instance, I was granted supervised visitation with my child upon my release a few months later, despite the absence of any abuse or neglect on my part, and despite the age of the warrant that caused my incarceration. My ex used that provision to gain leverage and it worked. I gave up much of what I was entitled to just to gain unsupervised time with my son.
  3. Filing for Divorce First Gives You the Element of Surprise ⎯ Filing first gives you the element of surprise and the benefit of more time to prepare for the divorce. You can prepare your divorce team and pay for them using community assets, and employ a private investigator if needed, all while your spouse is none the wiser. Speaking from experience, when your spouse is the breadwinner and files first and you are the stay-at-home parent, they will certainly divert their paychecks if they had been deposited in a joint account. They will cancel your credit cards, remove your access to accounts online and ensure you have no cash available to hire your own representation to respond to their divorce petition. I’m not the only mom I know that was forced to borrow from friends and family just to pay a retainer. If your spouse has a high income, as mine did, he will use his position as the Petitioner to bleed your retainer quickly. Those legal fees racked up by unnecessary hearings and back and forth battles? Those are your responsibility unless a judge orders your spouse to pay them. And trust me, that can take years.
  1. Taking legal advice from anyone
  2. Badmouthing the ex in front of the children
    Putting down or in any way disrespecting your ex — regardless how justified or tempting it may be — creates confusion, guilt, sadness, insecurity and oftentimes depression in kids. When you put down their other parent, your children are likely to interpret it as a put-down of part of them. ‘Something’s wrong with me’ becomes the child’s unconscious belief. Minding your tongue around your children can be one of the most difficult behaviors to master after a divorce — but it is also one of the behaviors that will reap the greatest rewards for your family. Don’t let anger, bitterness and indiscriminate remarks effect and harm your children.
  3. Failing to anticipate how long the divorce will be
  4. Not including retirement funds and the kids’ college education in the divorce proceedings
  5. Not considering alternatives to litigation
  6. Refusing to co-parent
  7. Letting emotions take over
  8. Forgetting about taxes
  9. Refusing to compromise

The impact of adultery on divorce proceedings varies from state to state and each jurisdiction places a different weight on allegations of infidelity. In some states, allegations of infidelity during the marriage can impact alimony, property division, and even custody determinations. In other states, adultery in the marriage makes little difference in the ultimate resolution of ancillary divorce matters. As adultery can be difficult to prove, many couples pursue a no-fault divorce action, which does not require either spouse to prove misconduct on the part of the other spouse.

Alimony, or spousal support, is an amount of money awarded from one spouse to the other pursuant to a marital settlement agreement or divorce decree. Alimony can be awarded in one lump sum or monthly installments. In some states, including states that only allow no-fault divorce, a judge may be granted the authority to take a spouse’s misconduct into account when deciding whether to award alimony and in what amount. For example, evidence of adultery may bar the unfaithful spouse from receiving alimony.

Depending on your jurisdiction, you may be able to cite adultery as a ground for divorce. Not every state offers this option, however, and you may have to file for a no-fault divorce, which simply requires a showing of irreconcilable differences or irretrievable breakdown of the marriage. In a no-fault divorce situation, the judge may consider evidence of adultery when deciding other matters related to the divorce, but will not require evidence of the affair to grant the divorce. In a fault-based divorce, the filing spouse must present evidence of the infidelity and prove to the court’s satisfaction that adultery led to the breakdown of the marriage.

And while it’s impossible to predict exactly how the judge will rule in your case, you can anticipate that the judge has one goal in mind: determining your children’s best interests.

The Best-Interests Standard & Child Custody
Many parents find this legal jargon confusing.

Don’t all parents want what’s best for their children? For the most part, yes. However, in the majority of contested child custody cases, it falls to the judge to determine what would be best for the children, despite both parents’ good intentions and competing wishes.

Factors Used to Determine the Custody of Children
While there’s no Magic 8 Ball, you can expect the judge to consider the following factors before making a decision:

  • Your children’s ages. While there’s no hard-and-fast rule, courts generally prefer to maintain consistency, especially for young children. As children grow older, the courts tend to be more willing to consider alternative arrangements.
  • The wishes of each parent. The courts will want to know what each of you prefers. While that doesn’t mean your wish will be granted, you should expect the judge to ask for each parent’s preferences.
  • The quality of the relationship between the children and each parent.
  • The mental and physical health of each parent, as well as the children.
  • The willingness of each parent to support and facilitate the children’s ongoing relationship with the other parent. This matters to the court because they want to know that neither of you will stand in the way of your children’s relationship with your ex.
  • Whether either parent has been providing the majority of the children’s care up to this point. In some jurisdictions, the courts will look to maintain consistency. So if one parent provides the bulk of care while the other travels much of the time, for example, that could impact the judge’s decision.
  • The ability of each parent to provide a stable, loving environment. In many cases, the court will ask each parent to submit to a child custody evaluation to learn more about this aspect of the case before making a decision.
  • The living accommodations of each parent’s home. In some cases, the courts may want to know that the children will each have their own room.
  • Each parent’s ability to provide for the children’s physical needs, emotional wellness, and medical care. The court may also consider the opinions of character witnesses on behalf of each parent.
  • The level of adjustment and attachment between the children and their home, school environment, and community/neighborhood.
  • How the children will be affected by either continuing the current custody arrangement or disrupting the arrangement.
  • The children’s wishes (if they are considered old enough and able to express their own desires).
  • Any confirmed evidence of domestic violence, abuse, or neglect by either parent.
  • Whether false allegations of abuse or neglect have been brought by either parent against the other.

While these factors are generally considered in determining custody of a child, the specific criteria used vary from state-to-state. To learn more about what to expect in your case, research the child custody laws in your state.

The length of mediation depends on what issues have been agreed to prior to mediation and those issues that need to be addressed during mediation. Also, the amount of time spent in mediation is contingent upon you and your spouse’s willingness to come to agreements that are equitable for the both of you and your willingness to do what is in the best interests of your children. The time spent in mediation can be reduced if you and your spouse are able to come to agreements prior to mediation, or at the least, narrow down your options to a few workable ones. However, if you and your spouse are not able to discuss your divorce outside of mediation, it is strongly recommended that you avoid it at all costs. When couples try to work out issues on their own and it leads to arguments and “drawing lines in the sand”, it makes mediation more difficult and time-consuming.

On average, pre-decree divorce mediation can be completed in 4-10 sessions. Again, how long it takes really depends on what if any communication there is between the divorcing couples and their level of animosity for each other. If either one of the spouses is unwilling to budge from their certain position on a divorce issue, mediation may not be an option for them and they may have to litigate in court. Once this happens, communication is shut down and the fight begins.

In 2005, the average mediated case cost $3000 and was settled in 90 days. In turn, the average litigated case in the courts cost $15,000 and took 18 months to settle. Keep in mind, the litigated cases led to more spite and frustration between the divorcing couples, usually leading to a lose/lose situation for both. Not many people walk away from a litigated divorce feeling satisfied. On the other hand, couples who went through mediation felt satisfied with the agreements they had reached and both walked away feeling that they had gotten what they had wanted. Who would you rather have decided what happens with your children and assets after a divorce, you during meditation or attorneys and judges during a divorce in the courts? Who knows more about you, attorneys, judges or you? Why have people who know nothing about you tell you how you are going to live the rest of your life.

Also, divorce in the court system is public domain. Anybody can sit in court and hear the specifics of your divorce. On the other hand, mediation is confidential, private and conducted behind closed doors. In mediation, there are no attorneys putting up walls between you and your spouse. Mediation is about working together, doing things in the best interests of your children and focusing on being able to be parents for your children for years to come.

Unfortunately, divorce in the court system is designed to put up that wall and limit communication, which inevitably leads to many post-divorce problems and many more hours and thousands of dollars in court.

Divorce mediation is about you and your soon to be ex-spouse deciding your own divorce and what is best for the both of you and most importantly, your children. In mediation, you and your spouse meet with a neutral third party, the mediator, and with their help, you work through the issues you need to resolve so the two of you can end your marriage as amicably and cost-effective as possible. The issues covered include but at not limited to the following:

  1. Distribution of Property (Assets/Liabilities)
  2. Child Custody and Parenting Time
  3. Child Support/Maintenance
  4. Retirement
  5. Taxes

In mediation, the couple, with the help of the mediator, works out agreements on the above issues. Sometimes agreements come easy, sometimes they take time and a lot of work. When agreements are hard to reach, that is when the mediator intervenes. It is the mediator’s job to keep the lines of communication open, brainstorm ideas, reality test the couple, teach empathy and assist the couple in their decision-making process. Mediators help keep the couple focused on the issues at hand, trying not to get them off track. When divorcing couples get off track and away from the above issues during mediation, arguing, name-calling and bad prior memories are brought up.

Mediation is flexible and confidential. It gives you and your spouse a way to settle the conflict between you in a way that helps you to work together as parents. This is extremely important if you have children and must interact with your ex-spouse after you are divorced. Meditation brings about communication between the couple, which can then be used when they must discuss issues in pertaining to the children. Lack of communication may have been one of the main reasons for their divorce. Mediation has the ability to help the couple learn to communicate again, if only for the sake of the children, and make their post-divorce relationship better than their married one.

A divorce mediator is neutral and doesn’t “work” for either parent. That means the mediator can not give advice to either party. They must remain neutral no matter what the situation.
What the mediator can do, though, is assist the divorcing couple in formulating ideas that can eventually lead to agreements that will stand the test of time. That open and free exchange of information frees up both spouses to negotiate with each other in confidence. Because both spouses are working with the same base of information, it usually takes far less time to negotiate a resolution that makes sense to both spouses.
Mediation is voluntary. It continues only for so long as all three of you (your spouse, the mediator, and yourself) want it to. Mediations can be conducted weekly, every two weeks, monthly or however often the couple wants them to be. This is their mediation and they decide everything in the process.

Although child custody mediation is normally voluntary, in some states, parents must complete a mandatory mediation process before a judge will issue any court orders. In either case, the steps involved in the mediation process are the same:

  • Meet with the mediator
  • Identify and categorize the contested issues
  • Discuss solutions with a give-and-take attitude, and
  • Reach, draft, and sign a custody agreement The amount of time you’ll spend in mediation depends on several factors, including the number and complexity of the custody issues and the parents’ willingness to reach an agreement.

If you have not yet filed for divorce and a custody agreement is not in place, generally you are free to relocate with your kids wherever you wish unless your spouse objects. If your spouse objects to a move, your spouse can seek a court order to prevent you from taking your children out-of-state. If your spouse files for divorce, this too, can make it impossible for you to just leave without permission as you typically cannot just take the children out of the state when divorce is pending.

If you are already divorced or you were never married to the child’s other parent, you should be permitted to take your children out-of-state if you have sole custody of the kids. However, if there is a shared custody arrangement or if your spouse has visitation rights, you will need to seek the other parent’s permission to leave. If obtained, then your custody order can be easily changed and you can move to your new location.

What if The Other Parent Objects to Your Move?
If the other parent does not agree to allow you to move out-of-state, then you will need to go to court to obtain a move-away order before you can leave with your children. Do NOT take your children out-of-state by moving them in violation of a custody order and/or without permission from the other parent as this can be seen as parental kidnapping and is a serious crime.

Instead, you will need to petition the court to seek permission to leave despite the other parent’s objections convincing the court that it is in the best interest of the child to allow you to leave. Often, your case will benefit from showing how you plan to have the child maintain a relationship with the other parent from a new state by using vacation or telephone visits. Regardless of the approach, the court needs to be convinced that leaving the state is the best situation for your child. An experienced California divorce and family law attorney can help you to make a compelling case so you can get permission to leave the state.

There are both fixed costs and variable divorce costs. The fixed costs are filing fees paid to the court, and fees paid to have legal papers served on your spouse. These costs vary from state to state but typically are in the range of $200 to $500. Variable costs include fees for document preparation and legal representation by an attorney. The attorney’s fees can vary immensely, depending on the complexity of the case, and the degree to which any issues are contested. Extra costs may also come into play if the court orders mediation of disputed issues, or if it becomes necessary to hire a financial analyst due to complex property issues.

Selecting a divorce lawyer can be a tricky business: many claim to be ‘top family lawyers’ but can you believe that? If you have children under the age of 18, it is vital you choose a lawyer who is a specialist family practitioner, accustomed to family courts and to dealing with access/care issues. If your case includes discrete issues such as farming businesses or trusts, ensure your lawyer has expertise in these areas. Check that your solicitor has the appropriate level of experience. If you have limited means, avoid senior lawyers, who will be more expensive. A younger lawyer will be cheaper and also be useful in cases where, for example, social media is relevant. You will need to discuss very personal matters in a frank way, so make sure you are comfortable with your lawyer. Many women, for example, find it easier to share details of their personal lives with a female solicitor, who they may find more understanding. A family lawyer at a firm with a wide range of expertise can be beneficial. In particular tax, property and commercial departments often assist.

In most states, even for an uncontested or simplified divorce procedure, you will need to attend some type of hearing before a judge (or another official acting like a judge, such as a hearing officer, referee, magistrate, etc.). This may be in the judge’s office or in a courtroom. You may only be required to attend, or both you and your spouse may be required to attend. You may need to bring a witness to testify that you meet the residency requirement. Generally, for a case where you and your spouse have signed a settlement agreement, the hearing will take less than 30 minutes, and will be mostly for the purpose of satisfying the judge that all of the paperwork is in order, that all required notices have been given, and that any residency requirement has been satisfied. For a contested case, at least one rather extensive formal court hearing will be required.

Contested divorces can be very expensive propositions. With spouses arguing over everything from alimony and child support to who gets custody of the family pet, attorney’s fees can skyrocket quickly. In fact, those monthly legal invoices are what finally cause many couples to hunker down, put animosity aside, and try to peaceably resolve their differences. Often, one spouse will ask the other to pay both sides’ divorce-related legal fees. How successful that demand will depend on the particular facts of your case.

Needs-Based Attorney’s Fees
In most states, family law courts are authorized to order one spouse to contribute to the other spouse’s attorney’s fees, particularly when there is a large income-gap between them. In these cases, judges usually have the ability to order the higher-earning spouse to cover some or all of the lower-earning (or non-earning) spouse’s fees.

In some states, like California, the policy underlying attorney fee awards is that if one spouse can afford to pay for both sides’ fees, while the other spouse would have to proceed without a lawyer absent some contribution, then an order for fees will be considered both necessary and fair, in order to “level the legal playing field” between the parties.

In New Jersey, courts will order an award of attorney’s fees to a lower-earning spouse — often because it’s clear the higher earning spouse will be able to recover financially after the divorce is finalized.

But in situations where neither spouse is making a sizable income, yet there’s still an earnings difference, decisions on attorney’s fees are more likely to vary from state to state. For example, in New Jersey, courts aren’t likely to grant a request for attorney’s fees if the lower-earning spouse will at some point have access to marital assets that can be used to generate funds to pay those fees, such as:

  • Bank accounts
  • Stocks, or
  • A 401(k) retirement plan.

Even if a cash-poor spouse needs money up front for a lawyer, the court may let the spouse use some of the marital property for attorney’s fees, with the understanding that when that property is eventually divided, the other spouse will be reimbursed.

The amount a spouse might have to pay is decided on a case-by-case basis. There is no categorical answer and there is no formula: any payment will be at the discretion of the judge, who will make a decision based on a statute dating back to 1973. They have a very wide leeway to interpret that law. When it comes to capital, a rough-and-ready way of considering it is to look at what is ‘matrimonial’ – whatever is accrued through the marriage. There is no absolute fixed line, and the longer the marriage, the harder this can be to define. This matrimonial capital is divided equally, whereas everything else is kept separate. Then you analyze what your needs are in terms of a house, income and earning power – assuming it is a long marriage with children. You compare the results of both these equations, and you get the higher of these two numbers. In technical terms, this is a ‘sharing claim’ versus a ‘needs claim’.

If there is only enough money in the pot for one home, the partner in need of a house for the children will get the money. The economically stronger partner is sometimes upset by that. There is child maintenance, and sometimes spousal maintenance, to prevent hardship to one party if they earn less than the other. There is the question of whether spousal maintenance should be for a set term, such as until the end of the children’s education, or for life. Term orders are coming into play more often now.

For now, let’s acquire some understanding. And the number one thing for you to understand is the difference between taxable and non-taxable assets. In a perfect world, all your assets and your soon-to-be ex-spouse’s assets would be in tax-deferred retirement accounts. That’s because IRAs and 401ks are easily split in a divorce.

In those situations, all you need is a QDRO from the courts (easy to do) to split the assets. At that point, each person takes their portion as decided by the court and just keeps the money growing in their own IRAs. The beauty of this is that neither one of you incur any tax liability as a result of this split.

Now, it’s likely that your assets aren’t all in retirement accounts. And if your ex offers you a tax-deferred account in exchange for a taxable account, he’s not playing fair. Let me use an example to illustrate. Say your adversarial spouse offers to give you $100,000 in his IRA if you give him the $100,000 in the bank account. If you go for this, your husband will have full access to that $100,000. But if you want access to your money, you’d have to pull the funds out of the IRA and pay taxes and penalties on it. You might be left with $50,000 or less. So if you are negotiating your divorce, make sure to look at your after-tax values – not pre-tax.

A domestic asset protection trust is an advanced asset protection strategy that many wealthy individuals and families are using to shield their assets from creditors, and it turns out, it can also be a good vehicle to protect assets in a divorce. Here’s how a domestic asset protection trust works. Unlike a traditional revocable living trust that many people have, a DAPT is an irrevocable trust. Why is this important? When you get in a bind, a creditor can come after any assets that you have control over. A revocable living trust, by design, is one in which you have control over the assets. You can terminate the trust, withdraw funds, etc. A creditor slips into your shoes and would have the same ability to withdraw funds to pay the claim. In a traditional irrevocable trust, you relinquish any right to the assets and have no control over them. If you don’t have control and can’t withdraw the assets, your creditors can’t either. But, and this is a big but for most people, who want to give up control of their assets? What if there was a way for you to put assets into an irrevocable trust but still be a beneficiary of the assets? And what if your creditors still couldn’t access the assets? This is where the domestic asset protection trust comes in. It allows the trust creator to be a discretionary beneficiary, and yet the trust assets are still protected from the creator’s/beneficiary’s creditors.

This is possible because a handful of states (currently 15) have specifically allowed this structure (even if you don’t live in one of the states you can still take advantage of their laws). One of the better states to consider is Nevada because they allow no “exception creditors.” In the other states, they allow some certain creditors to attach your assets – the states block most creditors but allow a few exceptions to gain access to your assets. For example, a state may block all creditors but not spouses. Having your trust and assets in this state would shield you from attachment in a lawsuit, but not in a divorce. This is why the Nevada Asset Protection Trust (NAPT) has grown in popularity for protecting assets in a divorce.

However, not all assets are appropriate for a DAPT/NAPT – especially if you do not live in the state in which you have the trust. For example, real assets such as a house in California may not be a good choice since the asset itself is in California and not Nevada. Better assets to transfer into a Domestic Asset Protection Trust or Nevada Asset Protection Trust would be cash, stocks, bonds, mutual funds and other non-real assets that can be held in Nevada.

To seek modification of a child custody order, a “significant change in circumstances” must be shown. A modification can also be issued whenever “necessary and proper” to serve the best interest of the children.

POST-DIVORCE AGREEMENT MODIFICATION
Even after a dissolution of marriage becomes final, circumstances may change and both parties may want to modify or set aside a court order. If this is the case, you likely need to draft a post-divorce agreement. If you or your ex-spouse’s circumstances have changed in some way. Just like prenuptial agreements, post-divorce and postnuptial agreements must be negotiated and drafted with the guidance and care of an experienced attorney.

Yes, you can terminate the mediation process at any time, but you will essentially be starting the process over.
In most states, you will not be able to use the attorneys or any tentative agreements in the litigation proceedings.

If a divorcing couple is unable to agree on a final decision in regards to the division of property or debts, the judge will make a decision by considering the following factors:

  • Each spouse’s power to earn income
  • The health of each spouse
  • The overall health of each party
  • The amount each party contributed to acquiring marital property
  • The amount each party contributed to the earning power and education of the other party
  • The value of each party’s separate property
  • The future monetary needs of each party
  • Premarital agreements

Yes, in high conflict cases mediation rarely works.
Cases when on a person is a bully, can’t cooperate and talk reasonably or isn’t acting in good faith.
It doesn’t happen often, but in some cases, one of the spouses attempts to hide a substantial asset or take some other dishonest action.

Child Custody

http://www.sandiegouniontribune.com/sdut-supervised-visitation-monitors-face-little-2006jan15-story.html

It can be difficult in some states since visitation monitors are only required to report any criminal activity for the past 10 years. No regulatory agency monitor professional visitation monitors. In California, the state standards do not specify how much training someone should receive, and state and local officials do not certify or authorize specific agencies to do the training.

The list of monitors from the California Superior Courts includes disclaimer that the court “does not select, evaluate, endorse or supervise” those on the list and that they “have not been screened” regarding law enforcement, children’s services bureau or personal history. Providing the list may give the appearance that the court sanctions or approves the monitors, but it does not. The court’s role is just to determine whether the monitors meet the qualifications in the state standards.

When searching for a qualified visitation monitor for your children, it is important to know that the basic hours or training necessary to become “qualified” as a professional Monitor is not enough to assure the best situation for your family. Mandatory training in the CA 5.20 (Uniform Standards of Practice for Providers of Supervised Visitation) should be shown to have been provided by the CASVSP.

It is important that you seek someone who has years of experience in this field, and hopefully an education in a related field such as child development, human studies, or psychology.  You may want to look for a monitor with former experience working with children and families in a professional capacity, and a who possess a clear understanding of basic family law procedures.

The monitor you choose will be responsible for the safety and well-being of everyone on a visit, therefore, their education and experience, along with the proper training is of the utmost importance.

Further, the professional supervised visitation monitor you choose will be producing the notes and reports for your case. The monitor must be neutral in their interactions and reporting while keeping detailed and accurate records of all interactions.

The monitor must therefore also have writing skills which afford them the ability to produce professional reports to the court.

A monitor who possess years of experience with diverse types of cases, a college degree in a related field, proper CA 5.20 training, continuing education, and dedication to children and families, will help ensure safety, and help provides peace of mind.

Finally, the goal is happy, stress-free visits for the children with the visiting parent,  free of adult concerns.

The length of mediation depends on what issues have been agreed to prior to mediation and those issues that need to be addressed during mediation. Also, the amount of time spent in mediation is contingent upon you and your spouse’s willingness to come to agreements that are equitable for the both of you and your willingness to do what is in the best interests of your children. The time spent in mediation can be reduced if you and your spouse are able to come to agreements prior to mediation, or at the least, narrow down your options to a few workable ones. However, if you and your spouse are not able to discuss your divorce outside of mediation, it is strongly recommended that you avoid it at all costs. When couples try to work out issues on their own and it leads to arguments and “drawing lines in the sand”, it makes mediation more difficult and time-consuming.

On average, pre-decree divorce mediation can be completed in 4-10 sessions. Again, how long it takes really depends on what if any communication there is between the divorcing couples and their level of animosity for each other. If either one of the spouses is unwilling to budge from their certain position on a divorce issue, mediation may not be an option for them and they may have to litigate in court. Once this happens, communication is shut down and the fight begins.

In 2005, the average mediated case cost $3000 and was settled in 90 days. In turn, the average litigated case in the courts cost $15,000 and took 18 months to settle. Keep in mind, the litigated cases led to more spite and frustration between the divorcing couples, usually leading to a lose/lose situation for both. Not many people walk away from a litigated divorce feeling satisfied. On the other hand, couples who went through mediation felt satisfied with the agreements they had reached and both walked away feeling that they had gotten what they had wanted. Who would you rather have decided what happens with your children and assets after a divorce, you during meditation or attorneys and judges during a divorce in the courts? Who knows more about you, attorneys, judges or you? Why have people who know nothing about you tell you how you are going to live the rest of your life.

Also, divorce in the court system is public domain. Anybody can sit in court and hear the specifics of your divorce. On the other hand, mediation is confidential, private and conducted behind closed doors. In mediation, there are no attorneys putting up walls between you and your spouse. Mediation is about working together, doing things in the best interests of your children and focusing on being able to be parents for your children for years to come.

Unfortunately, divorce in the court system is designed to put up that wall and limit communication, which inevitably leads to many post-divorce problems and many more hours and thousands of dollars in court.

And while it’s impossible to predict exactly how the judge will rule in your case, you can anticipate that the judge has one goal in mind: determining your children’s best interests.

The Best-Interests Standard & Child Custody
Many parents find this legal jargon confusing.

Don’t all parents want what’s best for their children? For the most part, yes. However, in the majority of contested child custody cases, it falls to the judge to determine what would be best for the children, despite both parents’ good intentions and competing wishes.

Factors Used to Determine the Custody of Children
While there’s no Magic 8 Ball, you can expect the judge to consider the following factors before making a decision:

  • Your children’s ages. While there’s no hard-and-fast rule, courts generally prefer to maintain consistency, especially for young children. As children grow older, the courts tend to be more willing to consider alternative arrangements.
  • The wishes of each parent. The courts will want to know what each of you prefers. While that doesn’t mean your wish will be granted, you should expect the judge to ask for each parent’s preferences.
  • The quality of the relationship between the children and each parent.
  • The mental and physical health of each parent, as well as the children.
  • The willingness of each parent to support and facilitate the children’s ongoing relationship with the other parent. This matters to the court because they want to know that neither of you will stand in the way of your children’s relationship with your ex.
  • Whether either parent has been providing the majority of the children’s care up to this point. In some jurisdictions, the courts will look to maintain consistency. So if one parent provides the bulk of care while the other travels much of the time, for example, that could impact the judge’s decision.
  • The ability of each parent to provide a stable, loving environment. In many cases, the court will ask each parent to submit to a child custody evaluation to learn more about this aspect of the case before making a decision.
  • The living accommodations of each parent’s home. In some cases, the courts may want to know that the children will each have their own room.
  • Each parent’s ability to provide for the children’s physical needs, emotional wellness, and medical care. The court may also consider the opinions of character witnesses on behalf of each parent.
  • The level of adjustment and attachment between the children and their home, school environment, and community/neighborhood.
  • How the children will be affected by either continuing the current custody arrangement or disrupting the arrangement.
  • The children’s wishes (if they are considered old enough and able to express their own desires).
  • Any confirmed evidence of domestic violence, abuse, or neglect by either parent.
  • Whether false allegations of abuse or neglect have been brought by either parent against the other.

While these factors are generally considered in determining custody of a child, the specific criteria used vary from state-to-state. To learn more about what to expect in your case, research the child custody laws in your state.

The impact of adultery on divorce proceedings varies from state to state and each jurisdiction places a different weight on allegations of infidelity. In some states, allegations of infidelity during the marriage can impact alimony, property division, and even custody determinations. In other states, adultery in the marriage makes little difference in the ultimate resolution of ancillary divorce matters. As adultery can be difficult to prove, many couples pursue a no-fault divorce action, which does not require either spouse to prove misconduct on the part of the other spouse.

Alimony, or spousal support, is an amount of money awarded from one spouse to the other pursuant to a marital settlement agreement or divorce decree. Alimony can be awarded in one lump sum or monthly installments. In some states, including states that only allow no-fault divorce, a judge may be granted the authority to take a spouse’s misconduct into account when deciding whether to award alimony and in what amount. For example, evidence of adultery may bar the unfaithful spouse from receiving alimony.

Depending on your jurisdiction, you may be able to cite adultery as a ground for divorce. Not every state offers this option, however, and you may have to file for a no-fault divorce, which simply requires a showing of irreconcilable differences or irretrievable breakdown of the marriage. In a no-fault divorce situation, the judge may consider evidence of adultery when deciding other matters related to the divorce, but will not require evidence of the affair to grant the divorce. In a fault-based divorce, the filing spouse must present evidence of the infidelity and prove to the court’s satisfaction that adultery led to the breakdown of the marriage.

  • Spend regular time with the child
  • Provide continuing financial support
  • Make collaborative decisions with the mother
  • Obtain joint custody

During a divorce, there is often quite a bit of controversy over the marital home. The family home is sometimes the most valuable asset in a divorce. In addition to the purely financial aspects of the home, leaving or selling the family residence can be very emotional, especially when children are involved.

If you Want to Keep the House, Make Sure You Have Good Reasons.

If you’re going through a divorce, and you want to keep the family home, there may be good reasons to stand your ground. Because selling or keeping a home after divorce can be a major, life-changing event, it’s important to know that your reasons are sound and that keeping the home will be in your best financial interests.

  • The kids. School-aged children may be traumatized by a divorce, and being forced to move can compound their emotional distress. If you’re worried about this and aren’t sure what’s best for your family, consider speaking with a child psychologist or family therapist that who can help you figure it out.
  • Emotional attachment. It’s often a very emotional decision whether to keep the family home; and although emotional attachment is not necessarily a “good” reason, it’s an understandable one. Many spouses become attached to their home because, for example, they’ve put lots of work into building their dream home, and it holds many great memories, or because their home has been in one spouse’s family for many generations.

There of lots of great reasons to try and keep the family home, but there are also some not-so-good reasons: spite, control, vindication, and greed. Don’t let the emotional aspects of a divorce cloud your otherwise sound judgment. While it’s easy to see why it might be hard to leave, you also need to consider what’s actually best for you in the long run.

If You’re Going to Fight to Keep the Family Home, Make Sure you can Afford It.

Today, families need to balance their wants and desires against the sometimes harsh financial realities of life after divorce. Not all families are able to maintain exactly the same lifestyle they had prior to the divorce.

While it would be nice to remain where you’re comfortable and avoid the hassles of moving, staying put might not be the best financial decision for you. No matter how attached you are to your home, it’s critical to have a realistic sense of whether you can afford it. If you give up everything else in order to keep the home, and then find that you can’t cover the mortgage, property taxes, and maintenance, you may end up in serious financial trouble.

It may be wise to hire a financial advisor or talk to someone who knows about financial planning, to help you determine whether, after the divorce, you’ll be able to cover the expenses of the home and still meet your other financial needs (such as saving for retirement).

  1. Taking legal advice from anyone
  2. Badmouthing the ex in front of the children
    Putting down or in any way disrespecting your ex — regardless how justified or tempting it may be — creates confusion, guilt, sadness, insecurity and oftentimes depression in kids. When you put down their other parent, your children are likely to interpret it as a put-down of part of them. ‘Something’s wrong with me’ becomes the child’s unconscious belief. Minding your tongue around your children can be one of the most difficult behaviors to master after a divorce — but it is also one of the behaviors that will reap the greatest rewards for your family. Don’t let anger, bitterness and indiscriminate remarks effect and harm your children.
  3. Failing to anticipate how long the divorce will be
  4. Not including retirement funds and the kids’ college education in the divorce proceedings
  5. Not considering alternatives to litigation
  6. Refusing to co-parent
  7. Letting emotions take over
  8. Forgetting about taxes
  9. Refusing to compromise

Legally there isn’t supposed to be an advantage but….

  1. You Feel More in Control During Divorce if You’re the Petitioner  ⎯  The one who files for divorce first has the advantage of being identified as the Petitioner, while the other party is known as the Respondent. Right out of the gate, being the respondent puts you on the defensive. You’re not asking for the terms you want, you’re responding to the petitioner’s claims. This puts them in the power position, where they usually stay for the entirety of the proceedings. It becomes the respondent’s responsibility to answer written requests for discovery and defend themselves against all accusations of abuse, neglect, financial mismanagement, and whatever other accusations are hurled at them. If you go to trial, even on temporary orders, it becomes the judge’s job to answer the petitioner’s claims. If they go the route my ex-husband did, asking for everything under the sun, there is a strong likelihood that they will get more than they should, simply because they asked for it.
  2. The Divorce Petitioner Has More “Tools” at Their Disposal and Can Use Those Against You ⎯ The criminal justice system is a tool often used in contentious divorce proceedings because, right or wrong, it is effective. Having your spouse arrested not only makes them look bad but puts the petitioner in the position of being granted everything they’re asking for by default. If you, as the Respondent, are incarcerated then you can’t show up for whatever hearings they call. In your absence, you can lose everything. For example, In my case, I had a bench warrant on a 12-year-old case in which I hadn’t stayed in the jurisdiction during my probationary period. This was something my husband knew about and used against me. After our hearing on temporary orders where I was granted both spousal and child support, primary custody, and the family home, he had me arrested and extradited to the state where the warrant originated. While I was in custody, being driven all around the country in a van full of “fugitives” he called an emergency hearing and everything I had been granted was reversed. He simply told the judge that I was going to be incarcerated for many years, and without any representation to dispute that, the judge granted his petition. The Petitioner uses tools like this often. When the Respondent doesn’t show up and the judge is told incarceration is the reason, the Respondent loses any credibility and the Petitioner is usually granted whatever they’re asking for by default. For instance, I was granted supervised visitation with my child upon my release a few months later, despite the absence of any abuse or neglect on my part, and despite the age of the warrant that caused my incarceration. My ex used that provision to gain leverage and it worked. I gave up much of what I was entitled to just to gain unsupervised time with my son.
  3. Filing for Divorce First Gives You the Element of Surprise ⎯ Filing first gives you the element of surprise and the benefit of more time to prepare for the divorce. You can prepare your divorce team and pay for them using community assets, and employ a private investigator if needed, all while your spouse is none the wiser. Speaking from experience, when your spouse is the breadwinner and files first and you are the stay-at-home parent, they will certainly divert their paychecks if they had been deposited in a joint account. They will cancel your credit cards, remove your access to accounts online and ensure you have no cash available to hire your own representation to respond to their divorce petition. I’m not the only mom I know that was forced to borrow from friends and family just to pay a retainer. If your spouse has a high income, as mine did, he will use his position as the Petitioner to bleed your retainer quickly. Those legal fees racked up by unnecessary hearings and back and forth battles? Those are your responsibility unless a judge orders your spouse to pay them. And trust me, that can take years.

In some divorce and custody cases, the court appoints a lawyer for the child. This happens when

  • the court thinks your child needs a lawyer, or
  • you ask for a lawyer for your child and the court agrees.

In some juvenile court cases, such as those involving abuse, neglect, or delinquency, the court always appoints a lawyer for the child (or you can hire one).

Should I ask for a lawyer for my child?

If you and the other parent agree on custody and visitation, your child probably does not need a lawyer. But you may want to ask for a lawyer for your child if
you and the other parent disagree about custody or visitation,

  • you are worried about your child’s safety (when there is child abuse or domestic violence), or
  • there is a question about paternity.

What if I ask the court to give my child a lawyer but the court does not agree?

You have the right to ask for a lawyer for your child, but the court does not have to appoint one. If this happens in your case, you may want to hire a lawyer for your child.

Traditionally, the only way to get a divorce was to prove that your spouse had done something that was officially recognized as a justification for divorce. In other words, your spouse had to be at fault in breaking up the marriage. The most common reasons were adultery, spouse abuse, being sentenced to prison for a felony, and insanity. This made it difficult to get a divorce, and a lot of time, effort, and money was spent proving that the other party was at fault. All states and the District of Columbia have passed no-fault divorce laws to allow a divorce simply because at least one of the parties no longer wishes to be married.

How to file for divorce is a process begun by filing a document with the court that is called a Complaint or a Petition, depending upon the state in which you live. Some states call the procedure a divorce, and some call it a dissolution of marriage. A copy of the Complaint is served on (or officially delivered to) your spouse, usually by the sheriff’s office or process server. This may not be necessary in some cases, where you and your spouse are in agreement. Your spouse will be given a certain number of days to respond to the Complaint. How the case proceeds from there will depend on how your spouse responds. You and your spouse may reach an agreement, your spouse may file a response (either agreeing to what you’ve requested in the Complaint or contesting it), or may not reply at all. Other documents may also need to be filed, mostly commonly financial statements. Things can become quite complicated in a contested case, with numerous documents being filed, and one or more formal court hearings.

Litigation

If you have not yet filed for divorce and a custody agreement is not in place, generally you are free to relocate with your kids wherever you wish unless your spouse objects. If your spouse objects to a move, your spouse can seek a court order to prevent you from taking your children out-of-state. If your spouse files for divorce, this too, can make it impossible for you to just leave without permission as you typically cannot just take the children out of the state when divorce is pending.

If you are already divorced or you were never married to the child’s other parent, you should be permitted to take your children out-of-state if you have sole custody of the kids. However, if there is a shared custody arrangement or if your spouse has visitation rights, you will need to seek the other parent’s permission to leave. If obtained, then your custody order can be easily changed and you can move to your new location.

What if The Other Parent Objects to Your Move?
If the other parent does not agree to allow you to move out-of-state, then you will need to go to court to obtain a move-away order before you can leave with your children. Do NOT take your children out-of-state by moving them in violation of a custody order and/or without permission from the other parent as this can be seen as parental kidnapping and is a serious crime.

Instead, you will need to petition the court to seek permission to leave despite the other parent’s objections convincing the court that it is in the best interest of the child to allow you to leave. Often, your case will benefit from showing how you plan to have the child maintain a relationship with the other parent from a new state by using vacation or telephone visits. Regardless of the approach, the court needs to be convinced that leaving the state is the best situation for your child. An experienced California divorce and family law attorney can help you to make a compelling case so you can get permission to leave the state.

Selecting a divorce lawyer can be a tricky business: many claim to be ‘top family lawyers’ but can you believe that? If you have children under the age of 18, it is vital you choose a lawyer who is a specialist family practitioner, accustomed to family courts and to dealing with access/care issues. If your case includes discrete issues such as farming businesses or trusts, ensure your lawyer has expertise in these areas. Check that your solicitor has the appropriate level of experience. If you have limited means, avoid senior lawyers, who will be more expensive. A younger lawyer will be cheaper and also be useful in cases where, for example, social media is relevant. You will need to discuss very personal matters in a frank way, so make sure you are comfortable with your lawyer. Many women, for example, find it easier to share details of their personal lives with a female solicitor, who they may find more understanding. A family lawyer at a firm with a wide range of expertise can be beneficial. In particular tax, property and commercial departments often assist.

In most states, even for an uncontested or simplified divorce procedure, you will need to attend some type of hearing before a judge (or another official acting like a judge, such as a hearing officer, referee, magistrate, etc.). This may be in the judge’s office or in a courtroom. You may only be required to attend, or both you and your spouse may be required to attend. You may need to bring a witness to testify that you meet the residency requirement. Generally, for a case where you and your spouse have signed a settlement agreement, the hearing will take less than 30 minutes, and will be mostly for the purpose of satisfying the judge that all of the paperwork is in order, that all required notices have been given, and that any residency requirement has been satisfied. For a contested case, at least one rather extensive formal court hearing will be required.

Contested divorces can be very expensive propositions. With spouses arguing over everything from alimony and child support to who gets custody of the family pet, attorney’s fees can skyrocket quickly. In fact, those monthly legal invoices are what finally cause many couples to hunker down, put animosity aside, and try to peaceably resolve their differences. Often, one spouse will ask the other to pay both sides’ divorce-related legal fees. How successful that demand will depend on the particular facts of your case.

Needs-Based Attorney’s Fees
In most states, family law courts are authorized to order one spouse to contribute to the other spouse’s attorney’s fees, particularly when there is a large income-gap between them. In these cases, judges usually have the ability to order the higher-earning spouse to cover some or all of the lower-earning (or non-earning) spouse’s fees.

In some states, like California, the policy underlying attorney fee awards is that if one spouse can afford to pay for both sides’ fees, while the other spouse would have to proceed without a lawyer absent some contribution, then an order for fees will be considered both necessary and fair, in order to “level the legal playing field” between the parties.

In New Jersey, courts will order an award of attorney’s fees to a lower-earning spouse — often because it’s clear the higher earning spouse will be able to recover financially after the divorce is finalized.

But in situations where neither spouse is making a sizable income, yet there’s still an earnings difference, decisions on attorney’s fees are more likely to vary from state to state. For example, in New Jersey, courts aren’t likely to grant a request for attorney’s fees if the lower-earning spouse will at some point have access to marital assets that can be used to generate funds to pay those fees, such as:

  • Bank accounts
  • Stocks, or
  • A 401(k) retirement plan.

Even if a cash-poor spouse needs money up front for a lawyer, the court may let the spouse use some of the marital property for attorney’s fees, with the understanding that when that property is eventually divided, the other spouse will be reimbursed.

The amount a spouse might have to pay is decided on a case-by-case basis. There is no categorical answer and there is no formula: any payment will be at the discretion of the judge, who will make a decision based on a statute dating back to 1973. They have a very wide leeway to interpret that law. When it comes to capital, a rough-and-ready way of considering it is to look at what is ‘matrimonial’ – whatever is accrued through the marriage. There is no absolute fixed line, and the longer the marriage, the harder this can be to define. This matrimonial capital is divided equally, whereas everything else is kept separate. Then you analyze what your needs are in terms of a house, income and earning power – assuming it is a long marriage with children. You compare the results of both these equations, and you get the higher of these two numbers. In technical terms, this is a ‘sharing claim’ versus a ‘needs claim’.

If there is only enough money in the pot for one home, the partner in need of a house for the children will get the money. The economically stronger partner is sometimes upset by that. There is child maintenance, and sometimes spousal maintenance, to prevent hardship to one party if they earn less than the other. There is the question of whether spousal maintenance should be for a set term, such as until the end of the children’s education, or for life. Term orders are coming into play more often now.

For now, let’s acquire some understanding. And the number one thing for you to understand is the difference between taxable and non-taxable assets. In a perfect world, all your assets and your soon-to-be ex-spouse’s assets would be in tax-deferred retirement accounts. That’s because IRAs and 401ks are easily split in a divorce.

In those situations, all you need is a QDRO from the courts (easy to do) to split the assets. At that point, each person takes their portion as decided by the court and just keeps the money growing in their own IRAs. The beauty of this is that neither one of you incur any tax liability as a result of this split.

Now, it’s likely that your assets aren’t all in retirement accounts. And if your ex offers you a tax-deferred account in exchange for a taxable account, he’s not playing fair. Let me use an example to illustrate. Say your adversarial spouse offers to give you $100,000 in his IRA if you give him the $100,000 in the bank account. If you go for this, your husband will have full access to that $100,000. But if you want access to your money, you’d have to pull the funds out of the IRA and pay taxes and penalties on it. You might be left with $50,000 or less. So if you are negotiating your divorce, make sure to look at your after-tax values – not pre-tax.

A domestic asset protection trust is an advanced asset protection strategy that many wealthy individuals and families are using to shield their assets from creditors, and it turns out, it can also be a good vehicle to protect assets in a divorce. Here’s how a domestic asset protection trust works. Unlike a traditional revocable living trust that many people have, a DAPT is an irrevocable trust. Why is this important? When you get in a bind, a creditor can come after any assets that you have control over. A revocable living trust, by design, is one in which you have control over the assets. You can terminate the trust, withdraw funds, etc. A creditor slips into your shoes and would have the same ability to withdraw funds to pay the claim. In a traditional irrevocable trust, you relinquish any right to the assets and have no control over them. If you don’t have control and can’t withdraw the assets, your creditors can’t either. But, and this is a big but for most people, who want to give up control of their assets? What if there was a way for you to put assets into an irrevocable trust but still be a beneficiary of the assets? And what if your creditors still couldn’t access the assets? This is where the domestic asset protection trust comes in. It allows the trust creator to be a discretionary beneficiary, and yet the trust assets are still protected from the creator’s/beneficiary’s creditors.

This is possible because a handful of states (currently 15) have specifically allowed this structure (even if you don’t live in one of the states you can still take advantage of their laws). One of the better states to consider is Nevada because they allow no “exception creditors.” In the other states, they allow some certain creditors to attach your assets – the states block most creditors but allow a few exceptions to gain access to your assets. For example, a state may block all creditors but not spouses. Having your trust and assets in this state would shield you from attachment in a lawsuit, but not in a divorce. This is why the Nevada Asset Protection Trust (NAPT) has grown in popularity for protecting assets in a divorce.

However, not all assets are appropriate for a DAPT/NAPT – especially if you do not live in the state in which you have the trust. For example, real assets such as a house in California may not be a good choice since the asset itself is in California and not Nevada. Better assets to transfer into a Domestic Asset Protection Trust or Nevada Asset Protection Trust would be cash, stocks, bonds, mutual funds and other non-real assets that can be held in Nevada.

To seek modification of a child custody order, a “significant change in circumstances” must be shown. A modification can also be issued whenever “necessary and proper” to serve the best interest of the children.

POST-DIVORCE AGREEMENT MODIFICATION
Even after a dissolution of marriage becomes final, circumstances may change and both parties may want to modify or set aside a court order. If this is the case, you likely need to draft a post-divorce agreement. If you or your ex-spouse’s circumstances have changed in some way. Just like prenuptial agreements, post-divorce and postnuptial agreements must be negotiated and drafted with the guidance and care of an experienced attorney.

Yes, you can terminate the mediation process at any time, but you will essentially be starting the process over.
In most states, you will not be able to use the attorneys or any tentative agreements in the litigation proceedings.

If a divorcing couple is unable to agree on a final decision in regards to the division of property or debts, the judge will make a decision by considering the following factors:

  • Each spouse’s power to earn income
  • The health of each spouse
  • The overall health of each party
  • The amount each party contributed to acquiring marital property
  • The amount each party contributed to the earning power and education of the other party
  • The value of each party’s separate property
  • The future monetary needs of each party
  • Premarital agreements

Yes, in high conflict cases mediation rarely works.
Cases when on a person is a bully, can’t cooperate and talk reasonably or isn’t acting in good faith.
It doesn’t happen often, but in some cases, one of the spouses attempts to hide a substantial asset or take some other dishonest action.