When a marriage is ending in divorce, couples have a choice about how to proceed with their case. Sometimes, divorcing parties will want to end their marital relationship with as little conflict as possible. One option for couples in this situation is to have a Collaborative Divorce. If you have never considered or heard of this divorce model, you may be wondering: What is a Collaborative Divorce, and is it right for me? Continue reading
There are many reasons to file a divorce. Take Henry and Martha. After raising four children during their 31-year marriage, they decided to join the “gray divorce” crowd. Jake and Lucy, married four years ago, had one child together before Jake’s infidelity and substance abuse drove them apart. Both of these couples had some heavy decisions ahead. As their cases progressed, they had to decide whether settlement or litigation was best for their divorce.
The parties in most divorce cases are able to reach a divorce settlement agreement. The couple and their attorneys may negotiate privately or go to mediation. Though it is similar to a trial in that both parties present their side, mediations proceed very differently.
For one thing, agreements reached in a mediation are confidential. Court proceedings are not, although courts can restrict who can view divorce court records. In Jake and Lucy’s case, privacy was a big concern. Lucy did not want Jake’s infidelity and drug addiction publicly aired.
Unfortunately, trial became a necessity for Henry and Martha. A lifelong homemaker, Martha had never worked outside the home. She expected spousal support to continue for some time. Henry, however, felt she deserved nothing because he had been the family’s breadwinner for their entire marriage. Both stubbornly stuck to their positions and refused to compromise.
Some couples are in a position to settle their differences quickly. For them, settlement through negotiations or mediation typically is faster than going through the court system. They don’t have to wait for space to clear on a court docket to schedule hearings.
Divorce strains family relationships. Mediation may be less destructive on those relationships because they are typically less combative than trials.
Couples going through a divorce may have financial problems. Mediations and settlement negotiations are usually less expensive than going to trial.
When a settlement agreement is presented to the court, the judge will make sure the document complies with California law. However, many of the agreements contained in the settlement agreement do not require a judge’s scrutiny. Couples may hammer out agreements that suit them, but that most judges would not arrive at.
If negotiations and mediation fail, divorce proceedings go to the next level.
Some parties may be unable to resolve their issues without court intervention. So, they settle in for the long haul. They may be expected to attend several hearings or even participate in a trial that lasts for days.
Going to trial sounds terrible! So why do some couples end up battling it out in a courtroom?
Divorces with more complex issues are more likely to go to trial. What makes a divorce more complex? Among other things, disputes over property division that can’t be overcome. Inability to agree on hot issues like child custody or spousal support could end up in a courtroom.
Trial may be necessary if domestic violence or child abuse is involved. A judge has the authority issue orders that protect the abused spouse or child, something neither an attorney nor a mediator can do.
Some spouses make unreasonable demands or have unreasonable expectations. In cases where this is an issue, unfortunately, a trial usually becomes necessary.
Sometimes it is necessary to call in experts to help finalize a divorce settlement. In addition to forensic accountants, child psychologists, and financial experts, one or both parties may call vocational experts for assistance.
Vocational experts analyze an individual’s ability to work compared to the job market. They also calculate the earning power of one or both spouses. This calculation may be particularly useful where one spouse has stayed home to care for children while the other worked. Typically, the expert will assess the abilities, interests, experience, and training of an individual before compiling a report.
Sometimes one party will reduce their income in an effort to avoid child support and spousal support obligations. Income assessments performed by a vocational expert may be used by the court instead of that spouse’s actual earnings. For example, let’s say Stan quits his six-figure corporate job to flip burgers. He does not want to pay child support or spousal support. Based on a vocational expert’s report, the court may overlook what Stan is actually paid in favor of what he is capable of earning.
In some divorce proceedings, vocational experts may be needed to assess both parties. Consider the divorce of Joe and Patricia M. One spouse, Joe, has been the primary breadwinner for most of the marriage. He claims that he should pay very little spousal support because Patricia has a degree in accounting. However, Patricia’s vocational expert estimates her earning potential to be much lower than Joe’s because she was a stay-at-home mom for 20 years. Their divorce settlement likely will be based at least in part on the vocational expert’s lower estimate.
Vocational experts may also assess a spouse’s abilities, then compare them to the current job market. For example, Jackie trained and worked as a travel agent before she married. Unfortunately, travel agents are being replaced with online reservation sites, so Jackie’s job opportunities may be limited. A vocational expert might report that Jackie’s earning potential is low or that she needs extensive retraining to find a new career. Either way, a court may take this information into account when finalizing her divorce settlement.
Courts are not generally required to accept a vocational experts’ report. However, such reports are often considered during the final negotiation of a divorce settlement.
The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings. Call us at 415-293-8314 to schedule a private appointment or visit our website. We maintain offices in San Francisco, Marin County, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), and surrounding communities. Our new Beverly Hills office is opening soon!
Bill and Marcie decided to end their stormy 13-year marriage. After Bill filed the divorce petition, he and Marcie started negotiating the final divorce settlement. One of the first things they did was to divide their bills and household expenses. Bill became concerned when he started receiving late notices from utility companies and the mortgage company. Marcie was living in the house, so he felt she should be paying all the household-related bills. But Marcie felt like Bill had always paid the bills and, as primary breadwinner, should continue doing so. They took the issue to their respective attorneys.
As couples head toward a negotiated divorce settlement, decisions are made about marital property. Debt is also divided along community debt and separate debt lines. Those lines can be a bit vague until the settlement is final, but the bills still keep rolling in.
If possible, both spouses could cover the bills by:
Each party should retain receipts of any bills they pay.
Spouse often keep joint credit cards. Typically, the balance due at date of separation may be considered to be marital debt owed by both parties. Sometimes people cancel joint credit card accounts so that one spouse does not run up a bill while the divorce is pending. However, if one spouse does use the card inappropriately, the other can ask for reimbursement.
Decisions about community debt and separate debt may be made on a case-by-case basis. For example, if Bill uses the joint credit card to pay expenses for the home that Marcie is still living in, it may be considered joint debt instead of Bill’s separate debt.
Sometimes one spouse is unable or unwilling to pay their fair share of the bills. In that case, the other spouse may pay the bills and request reimbursement. This may include situations where one spouse is living in the marital home while the other spouse pays the house-related expenses.
Mortgage companies, financial institutions, and landlords still expect to get paid. That’s reasonable. A party that is unable to pay a fair share of the expenses may ask the court to order the other spouse to temporarily pay them. For example, Marcie may ask a judge to order Bill to continue paying expenses although he is no longer in the home.
In situations where the couple leased or rented a home, things can become more complicated. Did both spouses sign the lease or only one? Did one spouse sign the lease, but now the other spouse is living in the leased property? The party or parties that signed the lease are still responsible for paying the lease. It’s best to discuss these situations with your attorney.
Protect yourself. Gather your bills and address their payment before late notices pile up.
The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce proceedings. Call us at 415-293-8314 to schedule a private appointment or visit our website. We maintain offices in San Francisco, Marin County, Oakland, Santa Barbara, Ventura/Oxnard, San Jose, Gold River (Sacramento), Roseville, and surrounding communities.
Jack and Diane’s marriage lasted much longer than the average marriage. But after 32 years, they decided to call it quits. They knew their adult children would be fine, but really had no idea how their long-term marriage would affect their divorce settlement.
The parties to a divorce agree on a divorce settlement, or the court irons out the details for them. Typically, such settlements include custody and visitation agreements, child support, division of assets and debts, and spousal support.
For issues involving children, courts look for an arrangement that best suits the children’s needs.
When it comes to assets and debts, California is a community property state. This means that a couple’s debts and property are generally considered to be owned 50-50, although there are exceptions.
Spousal support is based on factors like:
This is not the complete list contained in the California Family Code 4320. However, in this blog, we are looking at how people married for over 10 years fare in a divorce. The length of the marriage is only one factor in negotiating a settlement.
Marriages that last less than 10 years are generally thought of a short-term when it comes to calculating spousal support. When one spouse needs support from the other, courts often give the needy spouse alimony for one half the duration of the marriage. Importantly, the court orders a time period wherein the court can make further decisions related to alimony. For example, for a marriage of 8 years, the supported spouse might receive alimony for 4 years, but the court retains jurisdiction for only 2.
A supported spouse leaving a long-term marriage may receive support for half the duration of the marriage. Courts tend to be more flexible in longer-lasting marriages. As for jurisdiction, the court can make decisions about alimony for this divorce indefinitely. If the supported spouse becomes ill while receiving support, the court could order additional support after taking all factors into consideration.
If you’re facing divorce, how long you remained married influences your divorce settlement. However, courts are not required to abide by a 10-year rule. It’s just a very common measurement. It’s best to speak with an attorney to make sure you receive everything to which you are entitled.
Judy Burger is a California Certified Family Law Specialist, and founder of the Law Offices of Judy L. Burger. Please call our offices at 415-293-8314 to set up an appointment with one of our attorneys. We assist clients along the Northern to Central California Coast.