Tuesday, August 7, 2012

10 Tips for Choosing a Divorce Lawyer



Picking an attorney who will understand your position, advocate for you zealously and ensure cost-effective representation, is not easy. You will be sharing your most intimate emotional and financial details – so it is important to choose someone you feel confident in and comfortable with.


Below are ten tips for choosing a family law attorney:


1. Is your lawyer “too busy” to answer your questions? Choose a lawyer who is easy to talk to and has time to devote to your case.



2. Personal references are usually best. Choosing a lawyer referred to you by a trusted friend or family member is usually much better than determining quality by advertising alone.



3. Lawyer's reputation in the community: Choose a lawyer whose style most represents the type of case you want to present to the judge. A lawyer who rushes to litigate every issue will not only drive up cost but may have a negative reputation with the court and/or have difficulty resolving the matter amicably with other attorneys.



4. Family Law Practice: Your lawyer should specialize in the type of law your matter entails. If you have a specific issue that you think may complicate your divorce, ensure that your attorney has plenty of experience in it. Perhaps you have a child with special needs or you are disabled. Maybe you have an inheritance that you are concerned will be compromised, or your spouse owns a home that you have contributed to. All these are important matters that require an attorney who understands the law (and any recent changes) and how the courts interpret it.



5. Straightforward Advice: Find a lawyer who listens to your questions and answers them directly and honestly. There’s nothing worse than an attorney who “sugar coats” their “advice” or tells you what you want to hear – only to find out that your case is not as strong as you were led to believe.



6. Be Heard!: Expect your lawyer to treat you with respect and give you the opportunity to state your goals and priorities. How your lawyer treats you in your initial consultation is a good indication of how your lawyer will treat you in your case.



7. Reasonable Fees: Ensure that the fees are competitive and affordable. If not, continue to shop around. Fee issues will only increase your stress level during the divorce.



8. Legal Strategy: Ask your lawyer whether she or he will discuss the pros and cons of your decisions and expect her/him to provide you with the information to make constructive decisions.



9. "Home Court" Advantage: Determine whether the lawyer is familiar with the court in which you will file your case. Ensure that he or she has experience appearing before the judges likely to rule in your case and local counsel.



10. Go with your instincts: If you do not like your lawyer, hire a new one. Do not sign a retainer agreement unless it provides that your remaining retainer will be refunded if you decide to part ways.

Wednesday, August 1, 2012

Divorce and Pets -- Who gets Fido?

In California, pets acquired during marriage are presumed to be community property.What does that mean? In a divorce or domestic partnership dissolution, the family court assign the pets similar to the way they divide property such as furniture or vehicles. 

In other words, one spouse gets the pet, and the other does not. 

I have not had any cases where the court ordered a shared custody arrangement of the pet when the parties are in dispute. Rather, the court generally adopts the best interest standard for pets; where will your furry friend be most comfortable? Who was the primary caretaker of the pet during the relationship? Who has moved into a residence that allows animals? Will the pet be mistreated if s/he is in the control of one party? This is a subjective test and therefore litigation is frightening because it is difficult to 
determine who will win. Unlike children, where a custody order can be modified from time to time, when a pet is assigned to one party, the other party generally loses forever. 

Despite the general rule of pets being considered as property, they have gained some 
important legal rights. The victim of domestic violence can obtain a restraining order that 
will award them the sole possession, care and control of their animals. They can also 
obtain an order that the domestic violence perpetrator must stay away from the animal(s)
and/or refrain from taking, selling, concealing, attacking etc. the family pet.

How can you avoid a pet property dispute?

  • Consider a prenup which will dictate who gets the family pet in a divorce or domestic partnership dissolution. 
  • Negotiate a shared "custodial" arrangement with your ex before the divorce is finalized.Many people would rather share a pet than take the risk that the Court will award their little buddy to the other partner. Just because there are no family laws that require the court to order a shared custodial relationship -- doesn't mean you can't agree to be creative with pet custody. Some of my clients have agreed to an alternating week situation with each 'parent' having the pet 50% of the time. They've also agreed to terms whereby they will be given a 'right of first refusal' for pet care. In other words, if one spouse is going out of town, s/he will offer the pet to the other spouse first, before choosing a pet sitter or boarding. Another idea is to negotiate how medical bills will be shared and whether or not one pet parent will need to notify the other prior to obtaining medical treatment and/or a new vet. 

  • Consider giving up a cash asset or taking on more than your fair share of debt in exchange for keeping your dog. If it is of highest importance to you to ensure that the pet stays with you (and/or the children if you have primary custody), it might be worth giving up something that entices your ex to give up the pet. Ask yourself the question, in 5 years will this matter? I assume keeping the pet WILL matter but perhaps taking on an extra credit card will not. 


In any case, pets often have a significant bond with their owners -- the thought of losing a pet in a divorce can sometimes feel extremely emotional and stressful. Ensure that you consult a legal professional if this is an issue that you are concerned about. 




Should you wish to discuss your pet situation in detail, feel free to schedule a free 30 minute consultation with a lawyer at Levine Law Group. 

Unique Issues for the Baby Boomer Divorce

It's no secret that Baby Boomer Divorce's are on the rise. According to the Office for National Statistics, divorce is decreasing in every age group except for couples in their 60s. U.S. Census Bureau reports that 25% of all divorces occur between couples who have been married 20 years or longer.


SEVERAL REASONS FOR BABY BOOMER DIVORCES:


1. Waiting until the kids are grown and out of the house: Prioritizing your children over your happiness is admirable. As such, many people choose to stay in an unhappy marriage until their children have embarked on their own lives.


2. The increase in relationship separation in the golden years could also be a change in priorities. As people get older, their financial stability and emotional security become most important. A spouse's substance abuse, gambling issues and/or verbal/ physical abuse may become unbearable and a search for independence and support becomes key to a healthy future.


3. Waiting for Financial Security. Women especially are often concerned that a divorce early in their lives will lead to financial devastation. Divorce is expensive and separating couples often want to wait to see if there will be enough assets for two people to live comfortably in two different household.


4. Not wanting to upset family friends. Long term relationships often mean strong ties to their partner's family and friends. It is difficult enough to take care of your own needs and emotions during crisis -- the fear of losing your support system or hurting people that you have established strong bonds with can be frightening.


5. Choosing Divorce as laws become more equitable. Laws have changed making the division of property more equitable especially in California where we have community property laws. Division of assets is now more fair -- virtually everything acquired during the marriage with community funds (e.g. employment earnings by either spouse) must be divided equally.


DIVORCE TIPS FOR BABY BOOMERS


1. Settlement is more important than ever: Legal Fees can be far more expensive for divorces with assets over 1 million dollars. When choosing an attorney to assist you, ensure that s/he is experienced with not only litigation, but mediation or collaborative law as well. A talented negotiator with a strong legal strategy can help keep legal fees reasonable, confrontation low and "damage" controlled. 




2. Social Security: Just because social security benefits cannot be divided in a divorce, does not mean you should ignore the rules that impact your benefits if you marriage lasted more than 10 years. Educate yourself on rules that such as whether or not you are entitled to survivor benefits if your former spouse dies. Additionally, if you are over the age of 62, you can collect benefits after the divorce on your former spouse's record without your former spouse receiving a reduction of their own benefits. 




3. Managing Debt: If you were not the primary bread winner while married, it is important to establish credit after the split. If the relationship is troubled, it might not be a bad idea to take out a credit card in your own name while you are still married. If you are a joint account holder and/or authorized user and your spouse is racking up significant credit card charges, distance yourself as much as possible by having your name taken off the account and alerting the financial institution that you are separated. Even so, you may be responsible for a large portion of the debt so establishing a separation date is key and closing those accounts from further use.


4. Health Insurance: Medical insurance can be a major issue for baby boomers, especially for the spouse that receives health insurance through the other spouse's employment. Upon Dissolution of Marriage, health benefits cease for the non-employee spouse and that individual will need his or her own plan. While laws have changed and/or are being implemented with respect to health insurance, at this point and time, many of our clients fine COBRA and/or a new policy expensive. Payment of a health insurance premium and/or medical bills may need to be addressed in the divorce action. 


5. Dividing Retirement Benefits: It is essential the retirement accounts are properly considered and divided. In most cases, a document (in addition to your Judgment) MUST be prepared to ensure the non-employee spouse receives their share and the employee spouse can receive benefits upon retirement and/or access her/his share before retirement. 


6. Creating a financial plan: It is very important to develop a post-divorce financial plan and budget. You will need to determine when you can retire, if spending needs to be cut back, or if you should revise your retirement plan. Your budget will keep you from depleting assets to sustain your daily needs. You may also decide to review your estate planning documents and insurance policies. Beneficiary designations may ultimately need to be changed.


7. Emotional Impact: While all divorces and/or domestic partnership dissolutions are painful, a separation after a long-term relationship can have far more impact on your psyche even if the decision was mutual. Just remember, no matter how difficult it is in the moment, it will not always be this hard -- your pain is not permanent. Find personal and professional help that you need. Reinvent your life, try something new, reach out to family and/or friends, join a support group -- just do not use your attorney as a therapist -- she's not trained as a counselor and your fees are better spent on experienced advocating!


Over 50 Discount: Mention this blog to an attorney at Levine Law Group during your initial legal consultation and receive a 10% discount.