Articles Posted in Divorce Lawyer

Published on:

Divorce is almost never an enjoyable proposition. Once a relationship gets to the point where one or more spouses want to end their marriage, odds are that they have already experienced years of problems. To make matters worse, the divorce itself can be expensive, combative, and emotionally draining. It is imperative that anyone contemplating a divorce find a highly competent divorce attorney to represent their interests and guide them through a difficult process.

ThinkerWhat to Look for in a Good Divorce Attorney

Here are some qualities you may want to look for when you search for a good divorce attorney:

1. Find an attorney with experience handling divorce cases: It is important to hire not only a family law attorney, but one who specifically handles divorces. Ask your potential attorney how many divorce cases he has handled, or what percentage of his (or his firm’s) hours are devoted to divorces. Even if you already retain an attorney for other personal matters (such as your finances), it is a good idea to find a different attorney to handle your divorce. This is especially true since your personal attorney may also represent your wife, and therefore would have a conflict of interest in relation to your divorce case.

2. If you have children with your spouse, find an attorney with experience in child custody disputesChild custody and visitation disputes tend to pop up during and after divorce proceedings. You will want to anticipate these conflicts and be prepared to present your side of the case forcefully. You probably want to see as much of your kids as you can, and a good attorney can help make that happen.

3. Ask your potential attorney how long the divorce proceedings will last: This will give you an idea of how long the process will take, so that you can plan accordingly. It will also help you discern how honest and competent your potential attorney is. It is important that you are aware of any deadlines and waiting periods that you can expect before you initiate the divorce.

4. Ask your potential attorney how much the divorce will cost you: This is another way to figure out if your attorney is a good choice or not. He should be able to give you a rough estimate of the total costs of the divorce, including court fees, attorney’s fees, and potential costs of mediation. This will also help you to plan financially for what lies ahead.

5. Talk with your potential attorney about what outcomes you can expect from the divorce: Your attorney should be able to give you a range of possible resolutions you can expect from your case. The more experience he has, and the more honest he is, the better he will be able to predict the outcome, allowing you to formulate a plan.

What to Do if You Are Planning to Get Divorced

Continue reading →

Published on:

Same sex couple married in CA seeks same sex divorce in Mississippi. Simple? Not exactly.

Lauren Beth Czekala-Chatham asked a Mississippi court to recognize her same sex marriage, which took place in California, so that she could file for divorce within the State. Although the couple was married in California, they resided in Mississippi for the duration of their marriage. Czekala-Chatham could file for divorce in California because the State exempts same sex couples from residency requirements that ordinarily require at least one divorcing spouse to be a California resident for six months prior to filing. In part, this is so same sex couples who marry in California but reside in states where their marriage is not legally recognized do not have to face the burden of establishing residency before they can file for divorce. However, California courts will not always be able to issue significant rulings related to property ownership, debt, alimony, or children.
Because California cannot issue certain rulings regarding property ownership, debt, alimony, and children, it is not a viable option for some divorcing same sex couples.
In a telephone interview, Czekala-Chatham explained that failing to get divorced could have serious repercussions. Czekala-Chatham has children from a prior relationship and is concerned that her spouse could contest her will and take her children’s inheritance if they failed to get a divorce. According to court filings, Czekala-Chatham is seeking the couple’s marital home in Mississippi as well as, alimony in the divorce. Czekala-Catham says she will go all the way to the State’s Supreme Court in order to have her same sex marriage recognized because she doesn’t see another way out of the situation. If the State were to recognize her marriage, it would not permit same sex marriages in Mississippi, which remain banned under Mississippi law.

Same Sex Marriage.jpg
Since the U.S. Supreme Court stuck down parts of the Defense of Marriage Act, several states have faced similar requests.
Several other states which have bans on gay marriage have been faced with similar requests since the U.S. Supreme Court struck downs segments of the federal Defense of Marriage Act earlier this summer. For instance, the Texas Supreme Court is considering whether it has jurisdiction over same sex divorce cases, even though it does not allow same sex marriage. Oral arguments are scheduled for next month. At least two same sex couples have filed for divorce in the State.
However, Mississippi College constitutional law professor, Matt Steffey says the Mississippi case is a long shot because the right does not exist within Mississippi law. He believes the issue of same sex divorce will eventually reach the U.S. Supreme Court.
Continue reading →

Published on:

In a (perhaps temporary) blow to gay couples and Utah same-sex marriage advocates, the United States Supreme Court has granted a stay on a federal district court judge’s decision overturning Utah’s gay marriage ban. According to a story in The Salt Lake Tribune, the Supreme Court’s ruling, which came down on Monday, will effectively halt same-sex marriages in Utah for the time being.

The district court judge’s decision legalizing gay marriage in Utah came down about three weeks ago, and surprised observers both in Utah and around the country. Overnight, one of nation’s most conservative states was granting marriage licenses to same-sex couples. However, the state plans to appeal the ruling to the 10th Circuit Court of Appeals and, if that fails, all the way to the Supreme Court. The stay means that no more same-sex marriage licenses will be issued in Utah at least until after the 10th Circuit rules on the appeal.

Judge and Gavel

Stay Puts Married Same-sex Couples in Limbo

Many same-sex couples were married during the three-week period between the district court ruling and the Supreme Court stay. The legal status of those couples, in terms of their rights and their ability to receive government benefits, is unclear for now, and no more gay couples can get married until the higher courts sort out the appeals. The Supreme Court’s decision came after both the district court and the 10th Circuit declined to grant stays. An attorney for the Utah same-sex couples who originally sued in district court, objected to the stay and was quoted as saying, “every day that goes by, same-sex couples and their children are being harmed by not being able to marry and be treated equally.”

Similarities and Differences with California Decisions

Utah is the second state in the nation, after California, to have a federal court strike down its law banning same-sex marriage. In California, a district court judge found Proposition 8, the 2008 ballot initiative that banned same-sex marriage, to be unconstitutional. In that case, the district court imposed an immediate stay on the ruling until the issue could be resolved by the higher courts on appeal.

That stay prevented the situation we now see in Utah, where couples may eventually have their marriage licenses revoked, even though they followed the law on the books at the time they were married. It ultimately took about three years for the California case to go from the district court to the U.S. Supreme Court. The district court’s decision overturning Proposition 8 was affirmed by the Supreme Court last year in Hollingsworth v. Perry. It is very possible that the Utah case will take just as long to resolve.

Continue reading →

Published on:

Back in June of 2010, New York became the 50th and last state to pass some form of No-Fault Divorce Legislation, 40 years after that of California.  What with the recent debates over same-sex marriage and, now, polygamy have raised questions about the nature of marriage and how the institution of marriage has evolved over time. Progressives generally favor a more expansive and inclusive definition of marriage, with the institution adapting to changing social conditions. Conservatives warn that there could be negative and unforeseen consequences to these changes, and that therefore we should tread lightly when it comes to modifying such an esteemed human institution.

Ring in Book

However, it is possible that both sides are ignoring a much older and more consequential change to our marriage laws. Since 1969, all the states, one by one, have reformed their family law codes to allow for no-fault divorce. Traditionally, American courts would only grant a divorce after establishing that one party had committed a breach of the marital contract. No-fault divorce, in contrast, is dissolution of marriage that does not require a showing of wrongdoing by either party.

A Brief History of No-fault Divorce

The earliest known examples of no-fault divorces occurred in Russia shortly after the Bolshevik Revolution. The decrees providing for no-fault divorce were seen at the time as revolutionary attempts to deemphasize marriage in the Soviet Union. In the United States, the Sexual Revolution, feminist movement, and anti-establishment sentiment of the 1960s helped place the idea of no-fault divorce on the political agenda.

In 1967, the National Conference of Commissioners on Uniform State Laws was tasked with drafting a uniform marriage and divorce code for consideration by state legislatures. The various drafts of the NCCUSL’s uniform code all liberalized the current divorce laws on the books in most states. This code had no binding impact on state legislatures, but was deeply influential on family law statutes from the time it was first drafted.

Two years after the NCCUSL began meeting, the California state legislature passed the California Family Law Act of 1969. The Act was signed into law by Governor Ronald Reagan on January 1, 1970, and included a provision allowing for dissolution of marriage when one party cited irreconcilable differences. This effectively made California the first state to allow for no-fault divorce and as previously mentioned, 40 years later, in 2010, New York became the last state in the US to pass a no-fault divorce statute.

While there are still some who argue against no-fault divorce, it is now the law of the land in California and the rest of the country. There is no question that it has made divorce easier, particularly for those who lack power or control in their respective marriages. Continue reading →

Published on:

Utah’s anti-polygamy law was ruled unconstitutional this month when a federal district court judge in Utah struck down the state’s prohibition of “cohabitation,” perhaps opening the door for the eventual legalization of polygamous marriage. The case continues the recent trend, in courts and in the nation as a whole, toward changing the way we think about marriage and the regulation of personal relationships by the government.

Polygamy Hands

The challenge to the Utah statute was brought by a Utah man (and reality television star) who lives with his four wives and 17 children. The court found that, under the First Amendment’s guarantee of the free exercise of religion, the statute’s language banning “cohabitation” is unconstitutional. The state can still prohibit actual polygamy by not allowing anyone to have more than one valid marriage license. However, the decision may pave the way for the legalization of polygamy sooner rather than later.

Another Significant Change to Domestic Relations Law 

The decision is the latest in a line of cases, from Lawrence v. Texas in 2003 through US v. Windsor earlier this year, in which the federal courts have expanded the right to privacy and limited the government’s ability to regulate private sexual behavior. The Utah court specifically cited Lawrence, which struck down anti-sodomy laws in Texas. In that case, the majority opinion stated that the Constitution protects people from “unwarranted government intrusions into a dwelling or other private places” and “an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.”

The dissent in Lawrence famously argued that the decision would inevitably lead to the legalization of same-sex marriage, polygamy, and other non-traditional familial arrangements and sexual practices. If marriage is nothing more than a matter of choice by consenting parties, reasoned the dissent, then there is no basis for limiting it to opposite-sex couples or to just two people.

In Windsor, the Supreme Court found the Defense of Marriage Act unconstitutional, essentially requiring the federal government and state governments to recognize same-sex marriages from other states. Once again, critics predicted a “slippery slope” in which anti-polygamy laws would no longer stand up to constitutional scrutiny. If decisions about who can get married belong exclusively to the individuals involved, rather than to the community or government, then any regulation of those consensual decisions becomes intrusive.

The plaintiffs’ attorney in the Utah case, however, disagreed with the dissenting opinions in Lawrence and Windsor. He argued that those cases and the Utah decision ultimately come down to privacy, and to each person’s “right to be left alone as consenting adults.” People should be able to do whatever they want in their own homes, as long as they do not harm others. The government, the attorney argued, should not interfere with what its citizens do behind closed doors.

What to Do if You Want to Enter into a Non-traditional Marriage

Since the Utah decision relied on federal law, it would be equally applicable in California and other states. Continue reading →

Published on:

If a separating couple can agree on a parenting plan, the court will usually issue an order reflecting those terms.

mother and son in the park.jpg
When a married couple with children decides to separate, one of the first steps they should take is to try and reach an agreement regarding how their children will be cared for after the separation occurs. In most cases, if the separating couple can agree on a parenting plan the court will issue a court order reflecting those terms.
The court will make a decision regarding custody and visitation when separating parents cannot reach an agreement.
When a separating couple cannot agree on a parenting plan, a judge will issue a decision regarding custody and visitation. This may take some time, because certain criteria will need to be met before a decision is issued. For example, separating parents are required to meet with a court appointed counselor. In some instances, the counselor will provide the judge with a recommendation regarding the appropriate child custody and visitation arrangement. In addition, the judge may order that some or all family members undergo psychological evaluations.

However, if there are immediate concerns that need to be addressed, the court will issue a temporary order. Circumstances that may require a temporary order include when one parent is moving to another jurisdiction and wants to take the children along or when parents cannot agree on what school their children should attend.
Before issuing a final custody and visitation determination, the judge will consider what arrangement is in the best interest of the child. This determination will be made based on the information gathered through evaluations and other information submitted to the court. In addition, if the children involved are, “of sufficient age and capacity to reason” the court may consider their wishes regarding custody and visitation.
Typically, custody will be awarded to one or both parents. However, if the court determines that awarding custody to either parent would be detrimental or harmful to the child, they may award custody to another adult. There are several types of custody that the court may consider:
Joint Legal Custody: This gives both parents the right and obligation to make significant decisions regarding their children’s health, welfare, and education.
Sole Legal Custody: This give one parent the right and obligation to make significant decisions regarding the children’s health, welfare, and education.
Joint Physical Custody: Children live with both parents, although not necessarily for equal amounts of time.
Sole Physical Custody: Children live with one parent and the other parent has visitation rights.

Continue reading →

Published on:

The number of women committing adultery has increased significantly according to a recent survey conducted by the National Opinion Research Center challenging the notion that men are more adulterous than their female counterparts. Bloomberg Businessweek published data from the survey. According to the survey, while the percentage of men admitting to infidelity has remained consistent at about 21 percent for the past several years, the number of women admitting to adultery has increased significantly. For example, between 2010 and 2013, the number of women who admitted to cheating on their partners went from almost 15 percent to nearly 40 percent.
Greater economic independence is one factor that has contributed to the rise in infidelity amongst women.
Pepper Schwartz, a sociologist at the University of Washington attributes the rise in the number of women who cheat on their partners to changes in the country’s cultural and economic climate. With higher incomes and greater job prospects than ever before, women can now afford the possible economic consequences of having an affair.
As infidelity becomes more prevalent, it is more likely to come up during divorce proceedings.
As infidelity becomes more common, there is a greater likelihood that former spouses will lodge allegations of adultery against one another during divorce proceedings. For this reason, it is important to understand how such allegations could impact a divorce hearing.

Infidelity.jpg
California is a no fault divorce state.
Adultery was once a grounds for divorce under California law. However, the California Family Law Act of 1969 abolished the need to show fault in order to obtain a divorce. As such, the law moved California to no fault divorce proceedings based on irreconcilable differences or incurable insanity.
Allegations of adultery could still have an impact on the division of marital property as well as, custody arrangements.
However, there are some circumstances where a former spouse’s infidelity may become an issue that the court will want to delve into during a divorce proceeding. For example, if a spouse was using marital assets to carry out and support an extramarital relationship, their former partner may be able to claim reimbursement for those amounts when marital property is being divided. In addition, a spouse’s infidelity may be used to show that they are unfit to receive custody of the couple’s children. This may occur if the cheating spouse exposed their children to inappropriate situations during the course of their affair.
If you are considering filing for divorce you should contact an attorney immediately. This is especially true if infidelity is likely to come up as an allegation during divorce proceedings. An attorney will be able to review the circumstances of your case and provide you with advice and guidance that can help you reach a favorable outcome.
RELATED BLOG POSTS:

Primary Custody Sought by Mother After Near Drowning of Usher Raymond’s Son

CALIFORNIA LEGISLATURE CONSIDERS BILL THAT WOULD PROTECT THE PARENTAL RIGHTS OF FATHERS WHEN AN UNWED COUPLE CONCEIVES A CHILD USING MEDICAL PROCEDURES

Published on:

Marilyn Monroe image.jpg“You know why divorces are so expensive? They’re worth it.” Willie Nelson

“Sometimes good things fall apart so better things can fall together” Marilyn Monroe

Although painful, divorce can be a chance to experience a brand new life with many hidden opportunities. Sometimes couples don’t realize just how miserable their lives have become because the misery has gone on far too long. In this case, their divorce can be a very good thing that offers many gifts for growth and happiness. The new possibilities are sometimes hidden from view but the positive challenges that lay before them are actually fantastic chances to become the person you were always meant to be. Divorce can be a positive experience for children as well, provided the parents remain good friends. For children, having two parents who care about the family, during and after the divorce, provides a sense of security that the world is safe around them.

End the Resentment and Bickering

Wouldn’t it be wonderful to be that person you were before you married your spouse? Wouldn’t it be a relief to have a life with no back and forth bickering about problems, such as finances, power struggles, or blame? After divorce, you have a new chance to be peaceful and joyful to yourself, and all those around you, as you embrace letting go of all that pent up anger and negativity.

Embrace the Chance to Lead a full and Stimulating Life

With divorce comes personal freedom. New opportunities open up to socialize, to try new things, and pursue long forgotten dreams. It provides a chance to practice and develop your skills and look ahead to a new and stimulating life.

By remaining friends, you can enjoy the times your kids are with your ex during shared visitation. Use this time to pamper yourself, read a book, catch up with friends, and do things that make you feel good about yourself. These are moments that married people do not get – downtime to do what makes you happy, to think positive, optimistically and constructively. Take a vacation. If you approach your divorce in a positive way, everyone around you will notice your optimism, especially your ex and your children, and that positive energy will become contagious and bring goodness and joy back to you.

Published on:

In most cases, when a couple decides to separate and file for divorce their ownership in real estate acquired during the marriage and the resulting mortgage debt is the largest investment which they must split up. The division of debt is a complex process and requires parties to consider various issues at the same time. This can be a difficult task at any given time and becomes even more taxing when individuals are dealing with the stress of a separation. As such, it is important for married couples that own real estate together and have mortgage debt to consult with an experienced divorce attorney who can guide them through this process. Mortgage Debt.jpg
A party is still liable for their joint mortgage obligation even when a court issues a divorce decree requiring their spouse to pay mortgage payments.
One of the most confusing aspects of a having a joint loan obligation with your spouse is the limitations of a divorce decree requiring your former spouse to maintain jointly owned properties or obligating your former spouse to pay mortgage payments. Unfortunately, a judicial decree of this type during your divorce proceeding does not absolve you from the loan obligation you share with your former spouse. This does not mean that you do not have other recourse against your former spouse if they fail to follow the court’s other. However, those measures will not protect your credit or change your legal obligation to lenders. Loan obligations are binding contacts, the terms of which must be satisfied even after a divorce.
It’s best to end a marriage with as little joint debt as possible.
For this reason, many divorce attorneys advise their clients who are considering filing for divorce to end their marriage with as little joint debt as possible. However, in recent years, the decline of the real estate market has made this a difficult or non-existent option for some.
If selling property is not an option, one spouse may be able to refinance or assume to mortgage debt.
However, this does not mean that you are without options if you are considering filing for divorce and hold a joint loan obligation with your spouse. You and your spouse may agree to refinance the loan in one of your names, removing the other’s liability for the debt. In some cases, your lender may allow you or your spouse to assume the mortgage debt independently. Both of these solutions require at least one spouse to possess the financial means to repay the mortgage debt in its entirety. In addition, refinancing often requires that the property have sufficient equity. However, if one of these options works for you and your spouse, interest in the property can be transferred to reflect the mortgage liability via a quitclaim deed or an interspousal transfer grant deed.

Continue reading →

Published on:

On May 8, the California Supreme Court heard arguments in a case that will determine whether an individual possesses marital rights, including the right to sue for the wrongful death of a spouse, when they are believe that their marriage is legally sound, but have not taken all the technical steps to ensure that their marriage is recognized under state law.
The couple was not legally married because husband’s divorce was finalized months after their ceremony, but held themselves out as a married couple.
The case involves a Silicon Valley couple who where married in the fall of 2003, before their family and friends in a large church wedding. Prior to the ceremony, the couple secured a marriage license from the state of California. During the course of their marriage, the couple held themselves out as husband and wife. Thumbnail image for Divorce, Annulment or Legal Separation
Four years into the marriage, the husband was killed in a tragic accident while working for a local constriction company. His wife initiated a wrongful death action against her husband’s employer. The employer argued that she did not have the right to sue because the couple was not legally married. This argument was based on the fact that the husband’s divorce from his first wife was not finalized until several months after the couple had tied the knot.
The wife maintains that she believed the marriage to be valid. She cites the couples large wedding, the fact that she took her husband’s last name, and that she helped take care of his two children from the previous marriage. In court documents, she explained that if the couple had known that their marriage was invalid, they would have taken the steps to become legally recognized as a married couple.
An appellate court found that a spouse possesses the legal right to file for wrongful death of their husband, so long as they genuinely believed the marriage was valid; Supreme Court seems likely to agree.
The trial court handling the wrongful death action agreed with the employer and barred the wife from pursuing the wrongful death action. But, the ruling was reversed on appeal. According to the appellate court, the wife was entitled to file the wrongful death action so long as she “honestly and genuinely” believed the marriage was valid. The employer sought a ruling from the State’s Supreme Court. The argue that that appellate court’s reasoning would lead to poor public policy because wouldn’t trouble themselves with ensuring that they have taken all the appropriate steps to become legally married.
During arguments in the case, the Justices seemed reluctant to strip the wife of her legal rights as a married woman. They expressed that taking such a position would punish individuals who acted under “honest and sincere” belief that they were married. In addition, they stated that such a ruling would contradict the putative spouse doctrine, which protects the financial and property interests of an individual who enters a marriage believing it to be valid. According to one justice, the purpose of such a doctrine is to protect the expectations of innocent parties.
The California Supreme Court has 90 days to issue a ruling in this case.

Continue reading →