Prenuptial Agreement Myths

When we are single, we tend to treasure what we earn through our hard work.

Then we work on our love life and we fall in love. Whether we have a negative net worth, a $100-million net worth, or something in between, many of us are willing to share what we have earned with our significant other.

But there are some of us who wish to protect ourselves when we have much more than our significant other. These are usually where prenuptial agreements (called “prenups”) come in.

However, prenups have gained some reputation as being in some ways negative things for couples, like a prenup assumes a divorce and it’s a tool that keeps “rich” people‘s money and assets away from the poorer spouse when the divorce happens.

What Prenups are Not

Here are some of the most popular myths about prenups:

  1. Prenuptial agreements are only for the “rich.”

The idea behind prenups is to have open communication between partners in a relationship. Prenups are not just for the “rich” in the present; they can be for those who plan to be “rich” in the future, even as a partnership. A prenup does not have to protect what each person brings into the marriage, but can also set the roadmap for going together for the future.

  1. Prenups only matter in the event of a divorce.

As mentioned before, prenups are about honest and open communication about finances. But these agreements are not in some way only useful in the case of a divorce. When it comes to the couple’s future estate planning, a prenup can actually serve as a tool to plan out the estate in terms of how assets and future children would be handled when either one or both partners pass away.

  1. Prenups are so very un-romantic and pessimistic.

One of the keys to great relationships is great communication. Building a prenup is a collaborative process between the partners, including financial issues.  So in reality, having honest and open communication is romantic and intimate, and that applies to prenuptial agreement processes as well. This then means that a prenup process can be a romantic date that strengthens a relationship.

Secure Your Future

Prenuptial agreements can be useful for planning a marriage and an estate, and they are valuable exercises in communication and intimacy between partners. Prenups can be a productive process of collaboration, and can develop some security for the relationship. If you have a serious relationship that may lead to a long-term commitment or marriage, protect your relationship by getting a consultation from one of our attorneys who can walk you through the process of creating a prenuptial agreement.

Military Divorce and Deployment

In San Diego, we are truly proud of those who serve in our armed forces, and we are always very welcoming to the sailors and soldiers who return from their military deployments and come back to U.S. soil after fighting for our freedom.

Service members and their families make tremendous sacrifices – traveling, moving, and the non-military spouse serving as a single parent with the children, which is often a difficult and daunting life.

Sometimes, however, the sacrifice may become too much for the spouse, and the possibility of divorce is high. While the military divorce rate seems to be lower than in the general public, there is a lot of stress on military families that can’t always be overcome. In these cases, it is possible that families may break up while a military member is deployed in an active military zone.

When a military family is going through a divorce while one of the spouses is deployed, there are a number of challenges that are not experienced by civilian couples.

First, military spouses have questions about residency in which to file a divorce petition, when families are transferred every two to three years from state to state.  State of established residency is an important issue in a divorce, and the state of marriage can be irrelevant.

Second, there are several protections in place for military members that involve federal government rules and regulations supporting deployed military members. These additional protections can make divorce more difficult than what happens with only state laws serving jurisdiction.

Third, if a military member is actively deployed, a divorce will not be a quick and painless process, as the military member in deployment is not in the state and available for court hearings and testimony in divorce court. There will be continuances and delays until the service member returns to U.S. soil

Fourth, there is the mental and emotional stress of a divorce. When a service member is deployed and is dealing with a pending divorce, often the stress and emotional confusion of the divorce can impact an active service member in a similar way to a civilian. That military member needs to remain focused on the mission at hand, and having a family stress that potentially distracts that service member increases the risk of harm not just to the service member but to fellow service members with which he or she works.

If you are considering a military divorce, make sure to consult a quality San Diego divorce attorney who understands the military divorce process and can walk you through this very delicate process to ensure that the family is happy and the service member can continue to serve our country with honor and distinction.

Four Ways To Tells Assets May Be Hidden

It is a tough situation to go through a divorce. Feelings are on the line, children are on the line.

And assets are on the line.

The goal of a divorce is to divide everything in a fair if not equitable way, including children. There are some divorces that involve a lot of assets. And it is possible that some people will fight for their assets as much as they can to try to keep from giving away “too much” stuff in a divorce settlement.

Being Poor on Paper

A divorce depends and relies on transparency and honesty between the parties. Hiding assets is not appropriate, and can cost you more in the long run than hiding the assets itself. There are ways for assets to be hidden, but for the sake of transparency, there are ways to find those hidden assets. Here are four ways to discover assets are being hidden.

  1. Appearance/disappearance of bank statements.

An early sign that assets are being hidden could be when bank account statements that usually show up in the mail no longer show up. In most homes, one spouse controls the finances, so if the statements stop appearing, that could be a sign that one spouse is looking to keep the other spouse in the dark about the accounts.

On the other side of the ledger, some statements from accounts which were not familiar start showing up in the mail. If a spouse has opened new bank or credit card accounts or new investment accounts without your prior knowledge, that could be a flag that the spouse is hiding some money somewhere. Consider perhaps noticing if a custodial account has recently been opened for your child – an account that you had not discussed before, as an example.

  1. Working hard, but getting less?

Maybe a spouse works in sales- or commission-type job where he or she can get bonuses and commissions. The spouse works every bit as hard as ever but suddenly the paychecks aren’t as large anymore. There is a chance that the spouse may be deferring payments and bonuses until later in the year or after a time when a divorce would be finalized. If the money isn’t paid, it can’t be counted even if it’s “owed.”

  1. Business with a “clientless” boom.

Maybe the spouse is running his or her own business in your guest room or the garage. You know he or she has not been growing very much lately, but you notice that he or she has actually hired people to do some work for the business. Paying out payroll lowers the overall value of the business. These “people” are not actual employees, but they could be friends or family who get “paychecks” and promise to hang on to the checks until the divorce is final, when they will be returned.

  1. Defense!

One of the top signs of financial infidelity comes in the form of a spouse just simply acting defensive whenever finances are discussed. If a spouse is restricting access to accounts by the other spouse and acts defensive if and when a spouse has a question about a transaction, that may be a sign of deceit.

Get Answers

Sometimes we can’t always tell that assets are being hidden prior to a divorce, and we might be helped by consulting an attorney who can use the services of a forensic accountant to find answers and confirm whether there are assets being hidden. All the assets need to come out into the light.

Talking To Your Kids About Divorce

It is one thing to deal with the reality of divorce. That can be painful for the couple, because no one wants to fail on a vow to live together “until death.”

Even when it’s an amicable and mutual split, divorces are often tough on people’s minds and emotions. And adults are supposed to be well-equipped for this.

So can you imagine what it might be like for children?

The time may come when you have to tell the kids about an impending separation or divorce. The news will be hard to take and will likely be a shock. So much so, that some studies have shown that this kind of life-changing announcement is one of the few that is never forgotten by children, no matter the age.

There is no way to make it easy on children that they will eventually forget about it on their own. Knowing that, how might you approach the news about divorce with your children to make it as painless a memory as possible? Here are a couple tips:

Plan Out the Talk

Before you decide to have the talk with your children, make sure to plan it out – even have a set date of the split. Do not approach it when you are “thinking” about divorce; be decisive that it will happen, then have a discussion about what to say and when to say it.

Be Available Post-mortem

Part of the key of when to have the talk is to discuss it with your children at a time when both of you can be available afterward to address questions and to be there to comfort them. The kids will need hugs and comfort to deal with conflicting emotions.  Do not tell your kids when on the way to school or work, or right before bed.

Be Unified

Have the talk with your children together. This will make it more comforting for the children to see that both parents are doing what is in the best interest of the children. This also helps you both tell the same story and give the same information to the children so there is no need to repeat information later.

Be Honest

Be prepared for a lot of questions, especially if your kids are older (7-8 years and older). You may not have to give the children details, but be open to the questions and answer them with as much candor as possible.

Start the Healing

Resolving to divorce is probably the second-most difficult talk to have, behind only the talk with children about the breakup of the life they know. It’s difficult, but necessary to be open and honest as possible, but it can be hard to know how to broach the subject of divorce. When you contact a quality divorce attorney, he or she can help you develop the right strategy to ensure that your children do not suffer any more than is needed in an otherwise painful situation.

Advantages of Divorce Mediation

Divorce is a painful process, no doubt. There is really nothing like an “amicable” divorce. Thre are just some divorces that are “friendlier” than others.

Divorce gets messy sometimes, especially when they end up in court. But do all divorces have to end up in front of a judge? If a divorce is more of the “amicable” kind, then there is another option that does not the “amicable” more adversarial.

Divorce Court vs. Mediation

A different option is something called mediation. It is quite different from divorce court in that a judge does not preside and there are no opposing attorneys or witnesses or exhibits presented in a public hearing. Divorce Court is called “adversarial” because while the parties both wish to have the same result (divorce), they have different views on how to get there.  Divorce court is usually resulting in a “winner” and a “loser.”

With mediation, both parties come together with a professional mediator and have discussions that are professional and respectful and they don’t point fingers or assign blame, but instead lay out the relevant issues to discuss and a negotiation takes place on those issues so a mutually acceptable agreement can be reached.  Here, there are no “winners,” because the final agreement is satisfactory to both parties.

Can Anyone Choose Mediation?

Mediation is a cost-effective and more collaborative option, but many attorneys won’t necessarily recommend mediation for many divorces. Mediation is for couples which actually get along and share respect, have no significant ill will (such as cheating or violence/abuse), and any children are their top priority over the “stuff” they’ve accumulated.

Why Mediation?

Mediation isn’t for everyone, but there are some benefits to using it as an alternative option to an adversarial divorce court situation. Some of the benefits of a mediation hearing are:

  • Mediation is child-centered. Children in a relationship are traumatized with being through a divorce-court situation, because the adversarial nature tends to put children in a position of ‘choosing” (if old enough) between parents, or just knowing the parents are going through the stress of an adversarial conflict.
  • Mediation is cost-effective. Even if a divorce in court is “amicable,” court costs and attorney fees and other expenses can cost $20,000 or more, while a contested or “messy” divorce can easily cost six figures. A mediation could be had between spouses for $5,000-$10,000.
  • Mediation is fair and compliant. While divorce court is adversarial with a “winner” and “loser” and the parties ordered by a judge, mediation works out a negotiated settlement between the parties. In this sense, the parties collaborate to reach a beneficial agreement for both and both parties have a voice in the agreement.

Discuss Mediation

Mediation can be an easier, more cost-effective, private and less-stressful way to end a marriage in a legal process. While not all divorces are good for meditation, this can be an alternative for amicable couples with children. Contact our divorce attorneys today for a consultation about your divorce situation to learn about mediation and whether it is right for your situation.

Can I Move Out of State During Divorce?

If you’re currently going through a divorce, it can no doubt be a difficult time for you emotionally. While divorce can be incredibly stressful, depending on your circumstances, it can also be quite liberating. The transition to independence can be both scary and wonderful when a world of opportunity opens up, moving from one stage of life to another. For those seeking a fresh start post-divorce, moving out of state is a great way to start the process. However, is it possible to move out of state while your divorce is still in progress?

California divorce law states that in order to file for divorce in a particular state, the individual filing for divorce must reside in the state for 6 months or 180 days. Additionally, living in the specific county where you are looking to file the divorce for at least 3 months is essential as well. If you and your ex-spouse have lived in California for 6 months but live in different counties, however, you may file for divorce in either county. If you don’t meet the residency requirements but want to get the ball rolling on the process, you can still file for a legal separation and then file for an “Amended Petition” once the residency requirement is met.

If you and your ex-spouse are childless, there is not much after the residency requirement keeping you from staying within the state, besides making it the paperwork process more convenient. The situation becomes much more complicated, however, when there are children involved.

In order to move out of state with your child, you will need to file a petition to the courts for permission to take your children with you across state lines. The guidelines and steps for doing so depend on the custody conditions between the both of you and your child. If you are the parent with sole custody, taking your child out of state should be legally uncomplicated unless the other parent attempts to prove the move would harm the child in any way. In the case of joint custody, the parent that wishes to move must prove the move is in the best interest for the children if the other parent doesn’t want them to move.

Whether you are thinking about moving away with your kids, or you suspect your ex-spouse may wish to move away with your kids soon, discussing this with your attorney will ensure that your parenting plan will protect your rights and intentions. Ultimately, given the complicated nature of child custody laws, divorce laws, and their intersections, it’s imperative that you consult with an experienced attorney who will give you the best possible advice. Contact our team of divorce attorneys today!

What Is “Income” In A Child Support Case?

If child support is being discussed, it means there is a family breaking apart, and it can be a heartbreaking event – both for the parents and the children.

As everything is being split between the parties, and custody of the children is being negotiated or decided, the issue of child support will invariably come up. Many child-support decisions are often as much an art form as they are a science of math.

What is Child Support?

After parents divorce and custody is decided, child support is usually cash from the non-custodial parent to the custodial parent to help provide basic needs to the children from the marriage. This money is often paid monthly or in a frequency determined by the court, and it is required to have a written court order which is enforceable.

This is different from alimony or spousal support – alimony is usually not legally binding by a court order, while child support is binding. If you miss a child-support payment, the custodial parent may move to have you arrested and jailed, whereas a missed alimony payment may just mean a new court hearing to face admonition by the court.

How is Child Support Determined?

Child support takes into account the incomes of the two parents, the standard of living by which the children lived while the parents were together, and the cost of living in the area where the children are living with the custodial parent. It is meant to be a reasonable amount which the non-custodial parent would contribute to the raising of the child in an assumption that the family was still together.

How is Income Defined?

The formula for determining child support is based on a number of factors and variables, but in many jurisdictions, the definition of “income” for the purposes of determining child support can be fairly uniform.

Some states have exceptions to this, but under the guidelines of federal law, income by the non-custodial parent to determine child support is based on the “gross income” model, which takes into account any and every income source:

  • Salaries and tips;
  • Military benefits;
  • Pensions;
  • Investment/retirement account benefits;
  • Proceeds from insurance policies;
  • A trust or inheritance;
  • Alimony payments from a former spouse who is not the custodial parent in the current case;
  • Capital gains or interest payments from investments, among others.

Some states may go with an adjusted income model, where one-time or intermittent payments may be excluded from the income calculation.

Do the Legal Math

To ensure that child support is handled in a reasonable fashion but in a way that benefits the child and does not punish either parent, employ the expertise of a quality family-law attorney to stand up for your rights as a parent in caring for a child – whether you have custody or not.

What Are Common Grounds For Annulment?

When it comes to relationships, there is the joy of marriage and the pain of divorce.

But that is not all there is, at least in legal circles – there is the “clean slate” thinking of annulment. Like, what if we realize there was a reason that we got married that was actually a mistake, having nothing to do with chemistry?

What if you found out something after the fact that would have prevented you from marrying had you known about it in advance?

The word “divorce” has a negative connotation in social circles, so while divorce might be the more well-known way to end a marriage, sometimes it may adversely impact a person’s ability to have healthy relationships in the future, especially if the person was wronged in a marriage.

What is an Annulment?

An annulment is a process by which a marriage or other legal contract is annulled, or deemed null and void – as if it never happened. It is a legal way to wipe the slate clean, in effect, and restore both parties to their original legal status as if they never entered into a legal (or marital) contract.

Reasons to Seek an Annulment

In many states, either party can file for divorce for any reason (or no reason at all) in a “no fault’ proceeding, but an annulment of marriage requires certain legal justifications – not because you realize you don’t like your partner.

Essentially, the main reasons to justify an annulment are similar to voiding a legal contract – there are circumstances that determine that the contract was entered into in a non-voluntary way. Some of these legal reasons for an annulment are:

  • Fraud – This is beyond just lying; this is deceit with the intent to mislead, such as lying about age, or gender, or sexual orientation, or taking on a persona in courtship and being very different once married. Not revealing certain facts (like having an STD prior to marriage, for example) may also be grounds for fraud.
  • Mental deficiency – If one person was found to be not of a “sound mind” at the time of marriage – like if the person has mental illness or was under the influence of alcohol or drugs that impacted judgment.
  • Coercion – One of the parties felt compelled or forced into marriage under threat of violence – and the threats actually happened. (A literal “shotgun wedding” may fall in here.)
  • Impotence – The idea of marriage is to reproduce, and a party may seek an annulment if it is found that one or more of the parties is not able to consummate the marriage for some reason.

Clean the Slate

Sometimes we may want a mulligan. With an annulment, it is one way to clean up a mistake and go back in time as if the marriage never happened. If you feel like you were manipulated or deceived into marriage, or if you are being accused of fraudulent action or behavior, seek the services of a quality family-law attorney to protect your right to start over.

Divorce During The Holidays

The holidays are supposed to be a happy time for family and friends.

If there is a divorce hanging over heads, the holiday dinner tends to taste a little bit different.

No matter how amicable and “friendly” a divorce may be, divorce is a traumatic, stressful and unhappy situation. The eggnog and hot cocoa taste bitter when such a cloud hangs over the family get-togethers.

When divorce is on the menu for the holidays, this can lead to some awkward conversations over the mashed potatoes. To get through the awkwardness, here are a few tips to handle family gatherings surrounding a divorce.

  1. Have patience.

If this is the first time you are by yourself either separated or divorced during the holidays, you need to quit assuming that the holidays are going to be the same as every other holiday season. You will have a different emotional state, and your family and friends will have a different take with you – they will likely want to be more sympathetic. Be patient with yourself and others, and be OK with not being emotionally in tune with the joyful season.

  1. Have flexibility.

We have holidays written out on our calendars, but are they etched in stone? If you have mutual friends with your ex-spouse and you don’t want the awkwardness of having to attend the same holiday get-togethers, arrange to meet with your friends or family on different days (like Christmas Eve instead of Christmas, or the Saturday after Thanksgiving instead of Thanksgiving Day).

  1. Reach out.

It can be easy to internalize when you are upset or depressed. But this is actually the time of year to show some outreach and be available for others to make sure that their holidays are joyous. This may mean being social, calling friends and family to visit with them, or paying attention to those less fortunate – visiting homeless shelters, women’s shelters, etc. The key here is, don’t be alone and look out for others over yourself.

  1. Show gratitude.

One of the great sustainers of overall happiness is expressing gratitude. Being grateful for your health, your children, your friends, your family, and sharing those blessings and gratitude can help many people overcome trauma and depression. This is the perfect time of year to count blessings and think much about the positive that is in your life.

Joy to the World

The holidays are supposed to be a time for joy and fellowship with friends and family. In the wake of divorce, those times could be clouded by feelings of anger, depression, betrayal or sadness. You can work with one of our divorce attorneys to help navigate you through the divorce process and get through the holidays with gratitude and blessings.

What Is Guardian Ad Litem?

Child custody cases are often complicated and emotionally draining. There is a myriad of different laws and conditions that may apply to your case that can affect your ability to see your children. One term you should be familiar with is Guardian Ad Litem or legally recognized guardian for a judicially-determined period of time.

In child custody cases, it’s quite often that both parents have personal, strong opinions about custody arrangements. Unfortunately, most of the time these opinions are only taking into account a parent’s perspective, leaving the child’s best interests an afterthought. Having a Guardian Ad Litem appointed ensures a third party perspective that will protect the best interests and opinions of the child involved.

An important thing to note is that Guardian Ad Litem services add quite a bit to the overall court expenses. Given that they will be involved throughout the duration of the case, the costs associated add up over this time. Should there be a particularly contentious case involving multiple parental disputes and claims, the cost of Guardian Ad Litem services may exceed $1,000.

Under California law, those under the age of 18 can be appointed a Guardian Ad Litem, also referred to as Minor’s Counsel. A judge will determine if a Guardian Ad Litem is needed in the case using their own discretion or by request of one or both parents. Their job is to investigate the details, opinions, and circumstances of the case and generates a report based on their findings.

The investigation process consists of a series of interviews with those closest to the child, such as their parents, family members, teachers, counselors, and other people with influence in their lives. The Guardian Ad Litem takes into account how much time the child spends with each parent throughout the course of the week or however long the case runs. Another factor to consider may be the developmental needs of the child, which will also depend on their age group and stage of life. Younger children will certainly need to have a stronger sense of consistency throughout the divorce process. Older children and teenagers may need more emphasis on communication and a strong sense of parental roles. Ultimately the child’s wishes, as well as the parent’s, will play a big role in the overall report.

Once the report is finalized, the courts will then use the results of their investigation to influence their decisions. The influence, however, is limited in that a judge can determine a decision that may contradict the Guardian Ad Litem’s findings. At the end of the day, emphasis will always be placed on the child’s wellbeing.

If you are going through a divorce or have a child custody case, San Diego Divorce Lawyers’ experienced team of attorneys can help you navigate legal protocols. Contact us today!