Wednesday, September 18, 2013

Tips for (separating) parents

I stumbled upon the "Parenting Plan Handbook" today from the San Diego Superior Court. I strongly encourage separating parents to take a look, particularly parents with small children. It's very introductory and would not be very helpful for a drawn out, acrimonious, legal battle -- but it is a clear, concise resource for defining (in 'layman's' terms) legal terms and offers a lot of practical options for developing a parenting plan.

Click here for the handbook!

Sunday, September 15, 2013

Child Custody Recommending Counseling and Mediation: What's theDifference?

In a case involving children where the parties have not agreed on a parenting plan, the Family Law Court mandates that parents "mediate" prior to a hearing on the matter. Mediators
have experience in counseling or psychotherapy and must have a master's degree in a behavioral science related to marriage and family interpersonal relationships. 

Parents required to attend mediation include those who are involved in legal actions concerning parentage, divorce (with children), domestic partnership dissolution (with children) and domestic violence (when a parent is requesting child custody orders. 

But what will you participate in? Recommending Counseling or Mediation? What's the difference?

In some counties like Contra Costa, Alameda, Solano and San Francisco, Family Court Services requires parents to participate in Recommending Counseling. The Counselor is charged with the duty to assist parents develop a parenting plan and work out their disputes. If you and the other parent are unable to come to an agreement, the FCS counselor will provide a written recommendation to the Court. You will have an opportunity to review the recommendations prior to your hearing. If you disagree with the recommendations, you will have a chance to argue/ explain to the court why a different result serves the best interest of your child(ren).

Like recommending counseling, parents participate in Mediation to try and work out a parenting plan and resolve their disagreements with respect to the care of their child(ren). If an agreement is reached, the parties will sign an agreement that the Judge generally approves and makes a court order. If you do not come to an agreement, the Judge will decide legal and physical custody, as well as parenting time share at the hearing. 

Whether or not you participate in Mediation or Counseling -- depends on the county in which your action is pending. 

To schedule an in-person, telephonic or video chat legal consultation, contact Levine Family Law Group. Our lawyers and staff are skilled at all types of child custody litigation including alternate methods for resolving disputes such as ADR, private mediation and settlement negotiation. 

Wednesday, September 4, 2013

Is a gift from your spouse really a gift?

When you are given a gift of substantial value from your spouse or Registered Domestic Partner, you might be in for a surprise at divorce in California. Why? 

If you do not have an express writing from your spouse, then it will likely be deemed community property upon separation. Additionally, if that gift was paid for from your ex's separate property funds (an inheritance maybe?), your spouse will likely be able to claim a Family Code section 2640 reimbursement for the funds spent on the acquisition of the gift. In other words, you get nada. 

The California Family Code provides that married persons may "transmute" separate or community property to the separate property of the other spouse only if the following requirements are met: an express declaration, in writing, that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. 

What's the lesson? If you receive a gift of substantial value from your spouse, delicately request a card, letter or memo reflecting that the gift is in fact a gift that s/he shall not be entitled to any reimbursement -- and keep it! Romantic huh?

Now if the gift is relatively inconsequential when compared to the value of your marital estate, the the court will probably find that the gift is the separate property of the donee. But again -- absent a clear, written declaration that the property is intended to be a gift with no right of reimbursement -- you may be leaving it up to chance.