Brief Legal Insights
(Please Note: These posts are not a substitute for personalized legal advice. Above all, seek experienced counsel.)
|Posted on December 5, 2016 at 8:40 PM||comments (0)|
Premarital agreements have a bad rap. Often, they're construed as insults to romance--cold, calculated bets against a relationship's survival. Countless films and T.V. shows uphold this reputation, to name a few: The Good Wife (2009-2016), How I Met Your Mother (2005-2014), The Wolf of Wall Street (2013), Entourage (2004-2011), Sex and the City (1998-2004), Intolerable Cruelty (2003), Seinfeld (1989-1999), and Cheers (1982-1993). Portrayed as the murderers of true love, these agreements inevitably separate rather than unite ( and often to comic effect).
But are they really that bad?
In fact, premarital agreements can save a lot of future hurt. According to California Family Code §1610-1617, they can stipulate:
- the rights & obligations of all property (for each party or both parties--this includes responsibility for premarital debt as well);
- the division of property upon divorce, death, or any other event;
- the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
- the rights & obligations of the death benefit from a life insurance policy;
- the choice of law governing the construction of the agreement;
- and any other matter (including personal rights & obligations, so long as it is not illegal or unconscionable--e.g. spousal support may be allocated, but matters such as child support, child custody/visitation, frequency of sexual relations, or penalties for adultery may not).
Premarital agreements must be agreed upon by both parties. There must be full disclosure, no coercion, and knowledge of exactly what is being agreed upon.
Essentially, a premarital agreement sets up a financial safety net if things go badly. They save time, money, and sanity in a dizzying situation. Indeed, some couples—young, asset-less duos seeking to build a life together—may not be significantly impacted initially. But the power of a pre-marital agreement transcends the present to protect all future assets. It ensures the protection of property should someone die or divorce. The emotional stress of establishing a premarital agreement is not up for debate; yet in comparison to the toll that years of messy dissolution can take (especially if there are children involved), any awkwardness is negligible.
Surely, premarital agreements regard romance skeptically, however, as author Alain de Botton argues, “Romanticism has been unhelpful to us.” It’s misleading fantasy. “It has made a lot of what we go through in marriage seem exceptional and appalling. We end up lonely and convinced that our union, with its imperfections, is not ‘normal.’” Rather than give credence to unrealistic ideals about perfect pairing, Botton suggests that we should treat our imperfections as apart of life. The ideal soul mate, perfectly suited to our every taste, does not exist; but the person who kindly recognizes and values those differences does. We should “learn to accommodate ourselves to ‘wrongness,’ striving always to adopt a more forgiving, humorous and kindly perspective on its multiple examples in ourselves and in our partners.” If we do, marital mishaps will lose the power to emotionally obliterate us. In this light, premarital agreements positively pierce any illusions that may explode further down the road.
|Posted on December 5, 2016 at 6:05 PM||comments (0)|
California is a “no fault” divorce state, which means that a spouse or domestic partner asking for divorce does not have to prove that the other spouse or domestic partner did something wrong. Instead, the individual claims “irreconcilable differences.” In other words, the couple agrees to disagree. No fault divorce entitles both parties to a fair and equal settlement (which includes division of assets and debts, child custody and visitation, and spousal and child support).
Addiction is one of the leading contributing factors to divorce. Although it is irrelevant to no fault divorce as a whole, it can carry immense weight in settlement proceedings—especially in regards to child custody and visitation. All decisions regarding a child are made on the basis of the “Best Interest Standard.” This means that a court acts with the child’s best possible health, safety, and welfare in mind. It follows that a judge is less likely to entrust an addicted parent with a child. Often a court will attempt to ensure the child’s safety by ordering the parent complete mandatory drug tests, attend Alcoholics Anonymous or Narcotics Anonymous meetings, and participate in supervised visitation. In the most extreme cases, a court may award full custody to the sober parent.
Substance abuse is an issue of national scale. According to the most recent National Survey of Drug Use and Health (2015), “Approximately 21.5 million people aged 12 or older in 2014 had a substance use disorder (SUD) in the past year, including 17.0 million people with an alcohol use disorder, 7.1 million with an illicit drug use disorder, and 2.6 million who had both an alcohol use and an illicit drug use disorder.” Accident—including overdose—is the fourth leading cause of death in the United States. The National Vital Statistics Report (2016) calculates “a total of 49,714 persons died of drug-induced causes…[and] a total of 30,722 persons died of alcohol-induced causes in the United States” in 2014 alone.
Addiction is by no means a foregone conclusion, but if it persists untreated, marriage may be one of many relationships to unravel. If you suspect a loved one to be suffering, consider the following warning signs from the National Council on Alcoholism and Drug Dependence:
• Loss of Control: Drinking or drugging more than a person wants to, for longer than they intended, or despite telling themselves that they wouldn’t do it this time.
• Neglecting Other Activities: Spending less time on activities that used to be important because of the use of alcohol or drugs. Drop in attendance and performance at work or school.
• Risk-Taking: More likely to take serious risks in order to obtain one’s drug of choice.
• Relationship Issues: People struggling with addiction are known to act out against those closest to them, particularly if someone is attempting to address their substance problems. Complaints from co-workers, supervisors, teachers, or classmates.
• Secrecy: Going out of one’s way to hide the amount of drugs or alcohol consumed or one’s activities when drinking or drugging. Unexplained injuries or accidents.
• Changing Appearance: Serious changes or deterioration in hygiene or physical appearance – lack of showering, slovenly appearance, unclean clothes.
• Family History: A family history of addiction can dramatically increase one's predisposition to substance abuse.
• Tolerance: Over time, a person's body adapts to a substance to the point that they need more and more of it in order to have the same reaction.
• Withdrawal: As the effect of the alcohol or drugs wear off, the person may experience symptoms such as anxiety or jumpiness, shakiness or trembling, sweating, nausea, vomiting, insomnia, depression, irritability, fatigue, loss of appetite, and headaches.
• Continued Use Despite Negative Consequences: Even though it is causing problems (on the job, in relationships, for one’s health), a person continues drinking and drugging.
If you or a loved one is known to be suffering, consider the following treatments:
• Individual and group counseling
• Inpatient and residential treatment
• Intensive outpatient treatment
• Partial hospital programs
• Case or care management
• Recovery support services
• 12-Step fellowship
• Peer supports
|Posted on November 9, 2016 at 7:30 PM||comments (0)|
When divorce is imminent, finances may seem like the cherry on top of an awful situation. The level of complexity and thoroughness required is mind boggling. It doesn't have to be. Here are several tips to help you in approaching your finances:
1. Look at your credit history.* Don’t have a credit card? Apply for them now, and work towards establishing a good credit history. If your current credit history could be better, make sure to pay creditors now before the divorce begins. Start improving your credit history pronto!
2. Find out exactly what your spouse earns. This is easy if your spouse gets a regular pay stub. If they’re self-employed, owns their own business, or for whatever reason, gets part of their salary in cash, make sure you keep track of the money coming in for several months.
3. Know your household budget and expenses. Precise awareness of your average monthly expenditures as well as other monthly expenses will help determine potential spousal support or child support.
4. Inventory your household and family possessions. A list of your belongings will help you make educated decisions when it comes time to split the property.
5. Try to determine and tackle family debt before divorce. Allocating marital debt is one of the most difficult items to negotiate. Make sure this remains separate from any debt that was incurred by one spouse alone (that is considered “non-marital debt”;).
6. Have a way to access money of your own. Divorce can be expensive. Make sure you have your own money saved up for any and all situations.
7. Gather all your financial documents. This can be a pretty hefty task.** Organization is key. Having all your ducks in a row will help your divorce go more efficiently, and will make you more educated about important decisions and agreements that you will have to make down the line. So, make sure you have any and all documents you can find, but make sure to keep them labeled, organized, and easy to find. Here is what you need to gather:
- Income tax returns, including W-2, 1099, and K-1 forms from the last five years
- Business financial statements for you and your spouse. Include a net worth statement, as well as income statements.
- Include all income information since your last tax return.
- Personal property tax returns.
- Banking information including monthly bank statements, retirement accounts, savings and loan institutions, credit unions, etc.
- Financial Statements that had been prepared by you or your spouse at anytime in the last five years.
- Any Loan applications made in the last five years.
- Brokering Statements.
- Stocks, bonds, and mutual funds.
- Stock Options, including restricted Stock.
- Pension, money purchase plans, profit sharing, deferred compensation agreement, and retirement plans that you or your spouse have through a corporation.
- Wills and trust agreement executed by you or wherein you have a present or contingent interest in the past five years.
- Life Insurance or certificate of life insurance policies now in existence.
- General insurance.
- Outstanding Debts owed by you or to you (including those co-signed by you).
- Business records or ledgers in your possession.
- Real property including any deeds of property you and your spouse may have an interest in, together or separately as well as all purchase agreements, mortgages, notes, property tax statements, rental or lease agreements, appraisals, and any expenses associated with all properties.
- Any real property owned prior to marriage, as well as any real property acquired during marriage, via gift, inheritance, etc.
- Sale and option agreements on any real estate owned by you, either alone or via another person or entity, jointly or as a trustee or guardian.
- Any personal property. Include any and all documents on any furniture, artwork, fixtures, jewelry, antiques, collections, equipment, etc. that you own, either alone or jointly through another person or entity, i.e. trustee or guardian. 21. List of personal property owned by you prior to marriage, or any personal property acquired during the marriage via inheritance or as a gift.
- Motor vehicles owned by you and your spouse, individually or jointly, in the last five years. Include all financing agreements.
- Corporate interests.
- Any partnership or joint venture agreements that you have been a party of during the marriage.
- Employment records during the term of marriage. Make sure to include any fringe benefits available to you or your spouse from any business entity, be it traveling expenses or the spa.
- Employment contracts for which you or your spouse performed services in the last five years, including a list of oral contracts.
- Charge account statements
- Membership cards or any documentation showing participation in any country clubs, health clubs, spas, private clubs, etc. during the last five years of marriage. Include monthly statements.
- Any judgments or pleadings that you’ve been a party to, either as plaintiff or defendant, during the marriage.
- Appraisals of any assets owned by you for the past five years.
- A list of safe deposit boxes and their contents.
- Anything else you think may be an asset.
*10 things to do if Divorce is imminent, By Rich Stim, Attorney (www.divorcecent.com)
**created by the Bedrock Divorce Advisors, LLC in 2011, and amended 2014 (www.bedrockdivorce.com)
Also Katherine Dill from Forbes.com article: Five best financial tips for women divorcing in 2013.
Originally posted by Amy O'Hanlon on Friday, October 17, 2014 9:54 AM.
|Posted on November 9, 2016 at 7:25 PM||comments (0)|
The emotional strain of a divorce is never limited to the former spouses involved. Divorce creates a confusing and distressing time for children as well. With the frequency of divorce today, more children grow up juggling households. They have to find balance between two literal and metaphorical houses. Your child may not currently understand the deeper emotional rifts that have led to the divorce, but they will always ultimately feel the absence of a once stronger family bond. If you and your former spouse have decided to continue co-parenting, here are a few tips to ease the transition for your child:
1. Above all, do not confide in your child about damaging circumstances of divorce and do not demean your former spouse in their presence. Find a good therapist of a few trusted friends to confide in. The maintenance of a healthy relationship with both parents is vital to your child’s emotional well-being.
2. Maintain a healthy family relationship. Although your marriage has ended, your family still exists. Remaining an involved parent should always be a priority. Set an example for your children on how to move on from past conflicts. Be as cordial as possible with your former spouse.
3. Solve disagreements concerning your child privately, peacefully, and efficiently. Your child is never to be used as a bargaining chip. Remember that both parents should be working towards the benefit of the child. Solicitation of input from your child is almost always inappropriate.
4. Remain as consistent as possible in both households. This ranges from doing your best to maintain similar household rules (such as bedtimes and school work). Children thrive where there are predictable, stable systems in place.
5. Allow your child to grow at a comfortable pace. Don’t force changing environments on your child. Let them mentally adjust post-divorce. Talk to your child and explain any frustrations they may have. If your child is experiencing uncontrollable emotions or unusual behavior, take them to a therapist who has experience dealing with children of divorce.
Originally posted Monday, July 22, 2013 4:12 PM.
|Posted on November 9, 2016 at 7:20 PM||comments (0)|
1. Require a detailed retainer or fee agreement. Make sure that you review and sign an agreement that defines the scope of the work the lawyer will perform. The agreement should also explain exactly how you will be billed (hourly or flat fee) and what specific tasks you will be charged for (drive time, phone calls, and email).
2. Be organized and responsive. Provide documents in chronological order, grouped by type. When you spend time organizing your file, your attorney won't have to. When your lawyer is forced to sift through hundreds of pages to find what they are looking for, your bill will increase. When your lawyer requests information, provide it in a timely manner. Every time your attorney calls to remind you to deliver, sign, or return documents your bill will increase.
3. Use your time wisely. Many lawyers bill in incremental time (usually tenths of an hour or six-minute blocks). Adjust accordingly. Instead of calling or emailing your attorney every time you have a question, wait until you have several and ask them at once. Be prudent regarding subject matter you discuss with your attorney. Stick to the facts. Do not overwhelm your attorney with minutiae. Trust your lawyer to solicit relevant information. Legal matters can be emotionally traumatic. If you are experiencing emotional trauma, take care of yourself. Enlist a therapist for short-term or long-term support. Attorneys are far too expensive to use as a sounding board.
4. Disclose damaging or embarrassing facts. If you have something to hide, assume somebody will find it. Your attorney can probably minimize damning facts if they are given an opportunity to investigate. There is nothing worse than being blind-sided by detrimental information about a client in court. It will hurt your cause and damage control could be costly. Remember that communications with your attorney are confidential.
5. Be nice. Take time to select a lawyer you trust and then give them the benefit of the doubt. Not all lawyers are out to get you. I can’t count how many times anecdotal or personal experiences have skewed the perception of clients or potential clients. For some, lawyers are a necessary evil to be constantly questioned or challenged. Select an attorney you have a good rapport with the first time. Hiring a second lawyer to deal with a single matter is costly. The new attorney will have to become familiar with the case. You will pay for their learning curve.
I hope this has been helpful. Excuse me while I slink back to my lair.
Originally posted Wednesday, August 15, 2012 7:12 PM.