Tuesday, February 12, 2013

How can I modify my post-judgment family law court order?


Our world is constantly evolving and as such, our individual lives often throw us for a loop that we may have not expected. Many times, when there has been a significant change of  circumstances, your court orders relative to your prior family law order may no longer be appropriate. 

Depending on the Divorce Judgment and/or Marital Settlement Agreement, some orders are easier to modify than others. That being said, when there's a substantial change in circumstances, current orders may be outdated and a post-judgment modification is likely warranted.

Many times people think that an appeal is their only option when attempting to modify an order. In Family Law, it's fairly routine to modify a temporary (pre-judgment) order. Even post-judgment orders and/or the Divorce Judgment itself can often times be modified without ever filing an extensive or lengthy appeal. Moreover, by the time cases reach my office, often times the time limit to appeal has already lapsed.

When a client requests a modification and/or set aside of a final judgment, we look to relevant statutes, case-law and arguments in equity. Some of the grounds that justify a modification under these circumstances include: newly discovered evidence, a change in circumstance, undue influence or fraud and non-disclosure of assets or asset concealment.

When a new case is brought to Levine Law Group, we carefully review the current order/judgment, analyze the new and relevant facts, and explain your options. We evaluate the cost/benefit analysis and help the client to determine whether filing a legal action and/or negotiating with the other party is likely to produce an outcome that will prove worth your time and money. If necessary, we prepare the appropriate legal pleadings and take all necessary steps to ensure that the matter is handled with compassion, professionalism and skilled experience.

If you are representing yourself, it is a good idea to check with your local county/ Superior Court to determine if there is a facilitator's office that can help you with the extensive paperwork and assist you with understanding the necessary procedures (such as whether or not a document needs to be served in person or by mail, who can serve the pleading, whether an Income and Expense Declaration must be filed etc.) The basic form for Requesting most orders from a California court can be found here.

Keep in mind that many attorney's offer options that are more affordable than full representation. At Levine Law Group we offer our clients document preparation and/or legal coaching as well as full representation.

Sunday, February 10, 2013

When the cat's away.... authorizing your babysitter or parent to provide medical treatment to your children (in your absence)


When the cat's away, the mice will play... and when there's play, there's sometimes injury... and when there's injury, there's sometimes doctors. But, what happens if mom and/or dad are not in town and a child needs medical care? By law, doctors may indeed withhold care to children who don't have life threatening injuries due to fears about potential lawsuits from the parents (even if the caregiver is a relative or grandparent!).

It's a good idea to create a Power of Attorney for your child(ren). The Power of Attorney authorizes parents to appoint an "attorney in fact" to give consent for any/all medical treatment. Power of Attorney's can also be drafted to give your "attorney in fact" (agent) the right to enroll your child in any school, nursery school, playgroup, camp, day care center, psychiatric treatment and/or dental care. 

Don't forget to have the POA notarized and witnessed by two disinterested parties (someone older than 18, not named in the documented, of sound mind and unrelated to you. 

Contact Levine Law Group if you would like some assistance with drafting a California Power of Attorney

Friday, February 8, 2013

Home is where the heart was; divorce & the family home (Part 2)

 When I first started practicing family law, everyone had equity in their homes. Most clients had so much equity that buying their spouse out of their community share usually wasn't an option because they did not have enough other assets or liquid funds to purchase their ex's interest. 

Times have changed (momentarily) and we have been forced to think of creative alternatives for disposition of the family home. 

Part one of this blog focused on whether or not one spouse had an interest in the property (even if their name was not on title) and what possible reimbursements either party was owed. 

This blog is focused on different options you may have if you own a real property home at divorce. Keep in mind that if you and your ex DO NOT COME TO AN AGREEMENT, the likely result is that the house will be ordered SOLD by the court. If there's no equity, usually the best option is short sale (as opposed to foreclosure) and unless you are both looking to get the house off of your shoulders -- this is probably not a result you would want. Therefore it may be a good idea to negotiate a settlement -- it won't be perfect but it will limit the 'damage'.

1. Sell the house and split the proceeds. This sounds easy right? But there are many decisions that need to be made. Who will the realtor be? What improvements if any will be made before the sale? What will the listing price be? At what point do you lower the listing price? What if one spouse doesn't except a viable offer? Will either spouse live in the house pending sale? Will they be charged with maintaining the property? Will either spouse be entitled to reimbursement for payment of property related costs or for the fair market value of the property?

2. Purchase your spouse's interest in the property. Many clients still choose this option. Issues that you may want to consider include, but are not limited to: what is the fair market value, what would a realtor have cost if the house were sold? Does the payee spouse need liquid funds or would a transfer of a retirement account suffice? What will happen to the personal property in the house? Who will claim tax credits associated with the house for the year the property is 'sold'? 

3. Deferred sale until the children reach 18. While not a preferred method of disposition by the court, your agreement to defer the sale of a residence may be approved by your judge if the stipulated terms are specific enough. Many people consider this option so that the children have less stress in the transition to two households. Their kids at least keep the stability of remaining in their own home. When negotiating these agreements, I prefer a 'self executing judgment'. In other words, we try to cover many of the unknowns. What will happen if there's no equity in 10 years? Who will pay repairs? Taxes? Will one spouse have the opportunity to buy the other spouse out of their share prior to placing the home on the market? Deferred sales may also be a good idea if the property currently has limited equity but is expected to increase in value.

4. Assuming the mortgage or refinancing the loan into the name of one spouse: Many times, when there's no equity, the partners will decide to give one spouse the house (usually one spouse wants to keep it and the other wants to be rid of the obligation). Sometimes refinancing can take a long time or assuming the loan is not an option. What then? Even though there's no equity, many clients will offer their ex a financial incentive in consideration for remaining on title and on the mortgage until they can refinance into their own name. This can be a complicated option but seems to be occurring more and more option.

If you have a real property dispute in your divorce, and you would like a legal consultation to discuss strategy and options, contact Levine Law Group for a legal consultation. Best of Luck!

Saturday, February 2, 2013

Home is where the heart was; divorce & the family home (Part 1)

What happens to the family home at divorce or domestic partnership dissolution?

Most clients contemplating a divorce want advice about the family home from the get go.

Pending divorce, who will live in the house? How will the mortgage get paid? Where will the kids live? Will the paying spouse be reimbursed for expenditures relating to the residence? 

Once we get past these initial questions, the focus shifts to disposition of the home. Who will keep the house? Should one spouse buy the other out? Am I more likely to get the kids if I keep the house? Will we have to sell? How will the proceeds be divided? What if the home was owned by my spouse prior to marriage and I was later placed on title? What if I was never placed on title, do I have an equity interest? If we can't agree on division, will the court make us sell? Can we keep the house until the kids turn 18 and then sell? What if I used my inheritance to pay down the mortgage or make improvements to the home?

PART 1: REAL PROPERTY 101, DO I HAVE AN INTEREST IN THE HOUSE?


Basic community property law provides that (with some exceptions) property acquired by either spouse during the marriage and before separation is a joint asset. In the clearest circumstance, your home was purchased during the marriage with joint savings and/or the earnings of one spouse. Upon divorce, each spouse is entitled to 50% of the equity in the home (although there might be some reimbursements owed for expenses associated with the house after separation but before divorce and/or settlement). 

Most family law cases aren't that simple. For example, if you used money you had prior to marriage (or separate property funds acquired during the marriage) to make a down payment, you are entitled to reimbursement for that amount (Family Code Section 2640). Also, if you owned the house prior to the marriage (and then later add your spouse to the title), you should consider hiring an attorney to determine what separate property interest (if any) you have. Another issue that often comes up is when one spouse owned the property prior to marriage and never put the second spouse on title. There are different legal theories the non-titled spouse may try and use to establish a financial interest in the home:

"She promised me that if I used my earnings to pay the mortgage down and we stayed together, I'd be placed on title." In this circumstance, absent a written agreement, you will be hard pressed to win this argument. But it doesn't mean the community (and therefore, you) is screwed. The community likely earned an (equity) interest in the property assuming the value increased and either one of you used your earnings or joint funds to pay down the mortgage. 

"I used my inheritance to improve our home because my spouse promised to make me a joint owner." The non-owning spouse may  have a reimbursement claim for monies spent on capital improvements or other household bills. This doesn't mean s/he's established an equity interest for any appreciation in the property, but at least a claim for money spent may be returned. 

"What if I wasn't on title?" Many clients tell us that they weren't placed on title because their credit was terrible and they qualified for a better loan with their spouse on the mortgage only. Or, one party exerted financial control over the other and refused to place their partner on title. So, is title presumptive? NO! If the property was purchased during the marriage or DP, it's presumptively community (joint) regardless of how title is held. The burden shifts to the spouse who claims it his separate to trace the the property to a separate property source . The burden can also be overcome by producing a written agreement that assigns the property to one spouse only. But be careful! There's also a presumption that the disadvantaged spouse was subjected to "undue influence" when s/he signed the interpartner transaction. 

If you have questions about property division after break-up, divorce or domestic partnership dissolution, enter your contact information at this link to schedule a legal consultation with an attorney at Levine Law Group.

PART 2 will explore options for division and/or disposition of the family home at divorce or domestic partnership dissolution.