May
2
New Jersey Premarital Agreements
Filed Under Attorney-Client Relationship, Family Law Basics, Marriage & Family, Property & Asset Distribution | Leave a Comment
Premarital agreements, also referred to as prenuptial or antenuptial agreements, can be a difficult topic of discussion among couples getting married, especially if one party is seeking the agreement. A prospective spouse opposed to the idea will typically view such agreements as an affront to the institution of marriage and the relationship as a whole. However, a properly drafted prenuptial agreement can save spouses a great deal of emotional and financial expense in the event of a divorce.
In New Jersey, prenuptial agreements are governed by the Uniform Premarital Agreement Act, which was enacted in 1988. The Act requires that all prenuptial agreements be in writing, with a statement of assets attached to it. Parties are required to sign the agreement, which becomes effective upon the marriage of the parties. The contents of a prenuptial agreement are limited to certain areas. For instance, parties can negotiate the following:
a. the rights and obligations of each of the parties in any property of either or both of them whenever and wherever acquired or located;
b. the rights to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
c. the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
d. the modification or elimination of spousal support;
e. the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
f. the ownership rights in and disposition of the death benefit from a life insurance policy; and
g. the choice of law governing the construction of the agreement.
In addition, parties can negotiate any other matter, including their personal rights and obligations, not in violation of public policy. It also cannot adversely affect the right of a child to support or stipulate which party should have custody of any child born of the marriage.
A prenuptial agreement may be amended or revoked after marriage only by a written agreement signed by the parties. The amended agreement or revocation is enforceable without consideration. A party may also seek to set aside a prenuptial agreement as unenforceable. However, the party seeking to set aside an agreement must prove that: (a) the agreement was not entered into voluntarily; (b) the party did not have an opportunity to consult with independent legal counsel; and (c) there was not full disclosure of all assets, liabilities and income. If these three factors can be proven by a party, then the burden to set aside the agreement shifts to the other side and the primary focus will be on whether the agreement was fair and reasonable, which is a determination made by the court.
Posted by Jason Medina,
Medina, Martinez & Castroll, LLC
Mar
31
Pendente Lite Relief: Maintaining the Marital Status Quo
Filed Under Divorce & Separation, Family Law Basics, Property & Asset Distribution | Leave a Comment
The need for temporary spousal support during the pendency of a divorce action is very common. All to often, a dependent spouse, who has assumed responsibility for the children and marital home, is left shouldering the financial burden of childcare and household expenses with little or no assistance from the other spouse. In these situations, most courts will award a spouse temporary child support or alimony while the divorce is pending.
The purpose of pendente lite relief is to try to maintain the financial status quo between spouses pending the resolution of a divorce action. The lifestyle maintained during the course of the marriage usually determines the appropriate level of support. A spouse can obtain such relief voluntarily by mutual agreement between his or her spouse or by court application.
An application for pendente lite relief should be made early in the divorce process to ensure that ongoing financial obligations are met and to protect the parties rights during the pendency of the divorce. Most pendente lite applications include the following requests: (1) contribution toward monthly expenses, including childcare, mortgage, utility bills and personal maintenance; (2) continuation of medical and dental insurance and contribution to the payment of unreimbursed health care expenses; (3) continuation of all other insurance, including homeowners, life and automobile policies; (4) reasonable restraints regarding the dissipation, encumbrance or transfer of marital assets; (5) payment of attorneys’ fees and costs; and (6) hiring of expert witnesses.
In considering an application for pendente lite relief, courts generally assess the financial needs of the supported spouse, the means of the supporting spouse, and the standard of living of the parties in providing a spouse with adequate maintenance and support. In some cases, the courts deny pendente lite applications because a spouse either has sufficient assets, financial resources or refuses to work when he or she has the capacity to do so.
Posted by Jason Medina,
Medina, Martinez & Castroll, LLC
Jan
13
Post-Nuptial Agreements in New Jersey
Filed Under Attorney-Client Relationship, Marriage & Family, Property & Asset Distribution | 3 Comments
A recent NY Times article discussed the increased use of post-nuptial agreements, as reported by attorneys who are members of the American Academy of Matrimonial Lawyers. According to the article, hedge funds and other high-value equity partnerships are encouraging their newly-minted partners to get post-nupts to guard against giving away part ownership in these lucrative positions.
What are “post-nuptial agreements”? Well, unlike pre-nuptial agreements, which deal with parties interested in getting married before they’re actually married, and unlike property settlement agreements, which deal with parties interested in not being married after they’re actually married…post nuptial agreements are intended for a married couple who did not previously enter into a premarital agreement and, despite wanting to be married, would like to plan for the division of property in case they later get divorced.
With that as a backdrop, the New Jersey Appellate Division set forth some very stringent standards for post-nuptial agreements in 1999. In order for a family law attorney to recommend that a client enter into a post-nuptial agreement, there must be four (4) standards that absolutely must be met.
1) There needs to be full disclosure by the parties.
2) Each party must have independent representation by his/her own lawyer.
3) There needs to exist the absence of coercion or duress.
4) The terms must be fair and equitable.
Let’s take these one at a time.
Full Disclosure by the Parties
At the very least this means that the parties should exchange tax returns, a statement of current net worth (listing assets & liabilities and current value) and any other information about the party (not necessarily financial in nature) that would be pertinent to disclose for this situation.
Independent Representation
As it suggests, each party should involve a separate attorney. While it is theoretically possible that a post-nuptial agreement with one pro se party would be upheld, I would not feel confident going forward. In fact, as a practice habit, our firm insists on separate representation.
Absence of Coercion or Duress
I think this one is self-explanatory.
Fair & Equitable Terms
This is the most difficult one to address. The truth of the matter is that fair and equitable is such a subject standards, it’s nearly impossible to discuss. And to make things even more complex, the post-nuptial agreement needs to be fair and equitable when being enforced, as well as when negotiated and executed, which suggests that changing circumstances could render the initial post-nuptial agreement unconscionable in the future.
Parting Words
In one of the most important cases in matrimonial law, the New Jersey Supreme Court remarked that “contract principals have little place in the law of domestic relations.” With that as a backdrop, it’s difficult to have confidence in any privately negotiated agreement, whether a pre-nuptial agreement, post-nuptial agreement or property settlement agreement. At any time, each of them is vulnerable to attack by creative lawyers arguing difference concepts of unfairness.
Posted by Victor J. Medina -
Medina, Martinez & Castroll, LLC
Nov
9
How To Prepare For Divorce
Filed Under Divorce & Separation, Family Law Basics, Property & Asset Distribution | Leave a Comment
Here’s a great article from Jeanne Hannah from Michigan on how to prepare for divorce. I’ve copied here in its entirety.
Preparing for divorce
New clients sometimes ask me about ways in which they can help ensure a good result in their divorce and/or custody cases. Most lawyers are busy people and will be happy when clients help them prepare and settle the case. Below are some things that you can do to help your lawyer get a good result for you. As it happens, many of these things will help you save money as well.
Be prepared. When the writing is on the wall and you know that divorce is inevitable, you should gather documents and information about important issues, such as your finances. You may be the spouse who has handled finances, so you will know exactly what assets are owned by you and your spouse. Or, on the other hand, you may be the homemaker who has never handled the finances. You may help your lawyer uncover unknown assets or you may just have documents that show the existence and values of assets. Either way, if you are able to assemble documents and information for your lawyer, this will help save your lawyer time. This, in turn, will save you money in the attorney fees that result when your lawyer has to conduct pretrial discovery to find assets. This may be a second marriage for you and perhaps also for your spouse. Therefore, one or both of you may have assets that will be considered “separate property” by the Court. Having evidence of the existence and value of these assets as well as information about whether they have remained separate and are thus usually protected from division in a divorce will help your lawyer evaluate your case and assess the potential for distribution. Here’s a link to a list of the types of documents that you should assemble. Documents to bring to your first consultation.
Be flexible and prepared to accept change. A respected family court judge once said to some litigants in his courtroom: “Remember, when you cut that tablecloth in two, it’s not going to cover the same table.” When your family separates into two units, the resources that one family counted on will be severely stretched. Examine your short-term and long-term goals, and remain open to change. In almost every divorce, someone has to start over. Often, both parties find it difficult to manage financially. Accept the need to compromise. Remain open to the reality that your home may be smaller and you may need to cut back in other ways as well.
Be truthful with your attorney. Your lawyer can’t help you overcome setbacks that may arise if you fail to provide accurate and truthful information. Everything you tell your attorney is confidential.
Prepare to use specialists. Many family lawyers are specialists. If your case has any unusual factors, you’ll want to be sure to find a lawyer who doesn’t dabble in family law. Nevertheless, while that lawyer will help you with the law, facts and procedure that will apply to your case, he or she will often recommend other specialists to help. Your divorce can move faster and better if you use (as needed) a:
Counselor/therapist, if you are sad or mad. Normally, these professionals charge less by the hour than your lawyer. Moreover, your lawyer is not trained as a therapist. Use your money wisely and don’t call your lawyer when you should call your counselor instead.
Financial planner, if you don’t have much experience in finances.
Business valuation expert for small businesses.
CPA for taxation issues
Child specialist to help find solutions for custody, parenting time, child support issues, living arrangements, etc.
Ask your lawyer for recommendations to a specialist. He or she is likely familiar with the specialist who is most suited to help you with the issues at hand.The big picture. Divorce isn’t about “winning” or “losing.” In fact, many family law specialists will tell you that divorce is a “lose/lose” situation for all involved. If you avoid score-keeping and if you don’t let issues that don’t matter get in the way, you can make this a win/win situation—or at least you can make the best of a bad situation. If you find yourself faltering, step back, take a deep breath, go for a walk, cool off.
Mediation at the earliest opportunity, whether you and your spouse go alone or whether you each take your attorney with you is a great idea. It’s easier to compromise if both of you are not already polarized—if you haven’t backed into a corner (or feel as though you’ve been backed into a corner) and feel like you have to defend that position.
Make a list of the goals, needs and interests that are important to you, ranking them in order of importance. Then focus on those and don’t allow anyone to distract you.
Do a reality check. Ask your lawyer if your goals are realistic. If your lawyer tells you that no matter how much you want something, the judge is unlikely to award it to you, listen to your lawyer. Don’t spend half of your property settlement on attorney fees fighting for an unrealistic goal.
Be empathic to your spouse’s position. There are a number of reasons why empathy can help you. First, if you are parents, remember that you’ll be co-parents for the rest of your children’s lives. This means that you’ll want to remain civil to your spouse so that you can at least tolerate being in the same room for graduations, weddings, baptisms, and so forth.
About 90-95% of divorces settle out of court. Therefore, it’s important to keep all avenues of negotiation open. Success in negotiation means figuring out what the other person’s goals are. Listening to your spouse’s requests and offers—really listening—will help you figure out what will motivate him or her to settle. Think about what is available as a “trade-off.” What will he or she accept in exchange for something that means a lot to you? Remember, settlement involves thinking of all of the options. Creative solutions may be the key to resolving property settlements or settling issues revolving around parenting time, custody or support issues.
Reduce conflict. One of the questions that I always hear at the initial consultation is “How much will my divorce cost?” My answer is always the same. “I can’t give you an exact figure. The more you and your spouse fight, the more it costs.” Reducing conflict and working toward solutions is the best way to ensure that your divorce is not costly. Moreover, conflict consumes more than money. It consumes energy. It can disrupt your life. It can cause immeasurable harm for your children.
Remember, this isn’t the end of the world. Facing the end of a marriage can be very frightening. And no one likes to feel like a failure. When you and your spouse married, you had high hopes for the future. Seeing those hopes dashed to the ground can be disillusioning at best. This is one of the most important reasons why you will benefit most from taking the high road, from giving a little more than you thought you would or should. At the end of the day, you want to be able to walk away, to take a break, and to start over. You want to be able to hold your head up, knowing that you weren’t a cheat and you weren’t disrespectful. You need to be a whole person to do that.
This last reminds me of a favorite quote from Edith Wharton, one I used to keep on my letter slide until I’d looked at it so many times, I’d finally memorized it:
In spite of illness, in spite even our arch-enemy sorrow, one can remain alive long past the usual date of disintegration if one is unafraid of change, insatiable in intellectual curiosity, interested in big things, and happy in small ways
Edith Wharton, A Backward Glance
You’ll find much more information about divorce, custody, property settlement and other issues on my website at www.traversecityfamilylaw.com.
Posted by Victor J. Medina -
Medina, Martinez & Castroll, LLC
Oct
3
Selling Everything That’s Not Nailed Down
Filed Under Assets & Debts, Divorce & Separation, Property & Asset Distribution | Leave a Comment
Those of you familiar with the NFL and the New York Giants will recognize Michael Strahan. You may have also heard about the nasty divorce proceeding he’s going through with his wife. I have no feelings on this divorce one way or the other, but this post from Charles Abut’s New Jersey Family Law Blog highlights some of the things going on in that case. Specifically, Strahan is arguing that everything be sold at auction. Here’s a snippet:
Even the Strahans’ twin 2-year-old daughters’ bed was sold off by the New Jersey divorce judge, at the insistence of their NFL-star father. The bed went for $8,750 in the auction to divide the assets of Jean and Michael Strahan after their prolonged divorce. Before the auction, Jean said she wanted the bed - it was only expected to go for about $3,000, but she got into a price war with another bidder. Since she gets half of all of the proceeds of the auction anyway, she wasn’t too concerned. “It was a good battle, but I paid $16,000 for [the bed],” she said. More than 220 items from the couple’s 7 -year marriage - including the bed and the family’s 8 -foot, walnut kitchen table - were on the block. In court, Jean had asked Michael to let her temporarily keep the furniture in the home she shares with their twins until she sells the house. But the sack king - who astonished the divorce-court judge when he argued that even his daughters’ baptismal cradle, chairs and other personal items should be sold off - refused.
Now, what you might not know is that Strahan and his wife were avid antique collectors. So, the cradle is not a Babies R Us special and I would venture to guess that most of the stuff in the house going up for auction has value beyond the normal furniture and personalty divided pursuant to a divorce.
Posted by Victor J. Medina,
Medina, Martinez & Castroll, LLC
Oct
1
6 Steps for Effective Divorce Planning
Filed Under Divorce & Separation, Family Law Basics, Property & Asset Distribution | Leave a Comment
David Gabay runs the New York Divorce Law Blog and ran an excellent piece on 6 Steps for Effective Divorce Planning. You should follow this link to read his advice in detail, but to summarize.
1. Keep Non-Marital Assets Separate
Non-marital assets are not part of the assets divided in a divorce.
2. Establish Your Own Credit
Make sure your name is listed on all household accounts and investments. Establish at least one credit card in your own name. This will help to create an individual credit history. When you are on your own, you will have a better chance qualifying for loans, mortgages and credit cards.
3. Review Your Financial Holdings Regularly
Maintain complete and separate records of your financial holdings such as bank accounts, IRA’s, 401K, land purchases, and stocks. This includes assets in your spouse’s name as well.
4. Time Your Divorce
The timing of your divorce may carry with it a significant financial impact.
5. Close Joint Accounts
If a divorce is imminent, you should immediately contact joint-credit-card companies in writing to freeze or cancel your joint accounts. You do not want to be responsible for your spouses’ new credit card charges, particularly when those charges may include attorney’s fees.
6. Hire An Experienced Divorce Lawyer
It may be very important to hire a good lawyer early in your divorce planning process. An experienced attorney can help you avoid mistakes that could later cost you in your divorce proceeding.
Posted by Victor J. Medina
Medina, Martinez & Castroll, LLC
Sep
30
Divorce Terms - Defined
Filed Under Divorce & Separation, Family Law Basics, Property & Asset Distribution | Leave a Comment
Thanks to Georgia Family Law Blog that recently posted this from DivorceGuide.com. It’s a list of common divorce terms. Although New Jersey uses a few different terms, these are pretty universal.
Adultery. This is one of the original grounds for divorce. In many states previously if you could not prove adultery, then you were unable to obtain a divorce. The determination that a spouse was guilty of adultery, which is sexual intercourse of any form with a person other than your spouse when married, this often results in a division of property other than a 50/50 split for the spouse that was cheating. Today adultery is used less in determining fault.
Alimony. Also called maintenance and spousal support in many states this is typically a periodic payment made to one spouse from the other. The purpose of alimony is to allow a spouse to gain employment, or an education that will allow them to gain employment. Often alimony is also used to help keep the economic situation of the spouse with lower resources closer to the pre-divorce level. Some alimony has a specific time period to end, while other alimony is in effect indefinitely. Typically, the spouse paying alimony is able to enjoy a tax deduction for the amount paid, while the receiver must claim the amount received as taxable income.
Alternative Dispute Resolution. This includes mediation as well as collaborative law and negotiations that are settled out of court. Some states require an alternative dispute resolution method be tried before a court will hear that case, however not all courts require this. Agreements that are reached are then given to the judge after both parties sign the agreement and the judge will decide upon the terms agreed upon to ensure that both parties are treated fairly.
Annulment. An order from a court stating that a previous marriage never legally existed. Typically, there must be some sort of legal reasoning for an annulment, such as one party was already married, or one party was underage and proper consent was not obtain for example.
Answer to Complaint and Counterclaim. This is the response that the defendant files answering all of the claims and allegations against them that the plaintiff has stated when the complain for divorce was filed. If the defendant has their own ideas about the reasons for divorce they are able to file a counterclaim, this would require the plaintiff to file a response to the counterclaim.
Appearance. This is a paper that must be filed with the courts that registers the name of your lawyer and their contact information. Additionally, if you represent yourself you file yourself as the attorney of record. Once this is done, any paperwork that must be delivered to your side is served to your attorney of record. Once an attorney is on file, they may not withdraw without your permission or the permission of the courts.
Arrearages. This is the difference between the amount ordered to be paid, and the actual amount paid. If the full amount is not paid, it results in an arrearage that must be paid at some point. However, if the arrearage is perceived because of payments that have been reduced that are not ordered by the courts, then it is not an arrearage.
Automatic Restraining Order. A restraining order that goes into effect when a divorce case is filed. However, other circumstances also exist. When an automatic restraining order goes into effect, neither party may transfer or dispose of any marital property without a court order, or the written permission of their other spouse. If a spouse transfers assets without the proper permission, they could be punished with financial penalties, or even potential jail time.
Best interest of the child. This is a legal standard as well as a doctorine that is used to help determine what the best interest of the child is when there is a disagreement between the parents.
Biological Mother. This is the female who provides genetic material for the child in question. Because of surrogate mothers, this is not always the mother who carries the child during pregnancy.
Child Support. Payments ordered by the courts to ensure that the non-custodial parent pays money to the custodial parent for the maintenance of the children of the marriage. Can also be used when a marriage did not occur, however must have a court order to obtain.
Cohabitation. The practice of two people living together that are not married. Typically, this can become a major problem in a divorce case if the parties have children and one party does not agree, or if a spouse, receiving alimony decides to cohabitate in order to avoid marriage and terminating the alimony they are receiving.
Collaborative Law. The process of settling a divorce without ever seeking the help of the courts, both spouses agree to work with a lawyer to fully agree upon all of the issues involved in their divorce. If however, the collaborative law process fails, both lawyers are dismissed and new lawyers are retained for the divorce trial.
Community Property. Method of deciding how property will be divided. There are nine community property states in the United States- Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and lastly Wisconsin. The property that is acquired in these states in the course of a marriage is considered the joint property of both parties. However some exceptions do occur, most notably when an inheritance or gift is given from a family member. Exact state rules vary by location.
Complaint for Divorce. This is an official document filed with the courts that requests a divorce. It lists both parties involved, as well as the grounds and the exact claims that the plaintiff is making against the defendant. In addition, requests for custody and property are also included. In order to start the divorce process it is required that a complaint for divorce be filed.
Custodial Parent. This is the parent with whom the children of the marriage typically reside for the majority of the time. Even if the parents have joint custody, one parent is designated as the custodial parent for legal purposes.
Divorce Decree. Also called a Judgement of Divorce or even a Decree of Dissolution this is the document that is the courts final ruling or judgment that gives the exact terms of the divorce including property division, custody, support, child support, name changes and any other issues raised during the divorce.
Emancipation. The process of a child becoming a legal adult. This is typically used for child support purposes. Many states have changed emancipation to 23 years old instead of 18 to allow for children to attend college.
Ex Parte. This can be either a motion or an order that allows one party to seek the courts help and protection against their other spouse without the presence of their spouse. It allows for one party to have a hearing without being forced to take the time to properly serve the other spouse. This is typically only an option on emergency bases or if you are seeking an attachment. The reason for ex parte is because the side requesting an ex parte hearing feels that it would be dangerous to their safety, or the marital property if the other spouse had warning.
Grounds for Divorce. There are several grounds, which vary from state to state with each having their own requirements to prove the grounds that are being alleged. Adultery, cruel and abusive treatment, abandonment or desertion, long-term incarceration, impotency, and no fault. To determine the proper grounds for your area you must check with a lawyer to see your exact options.
Habitual Residence. Phrase used in connection with the Hauge Convention that refers to the home where a child lived last prior to an abduction. However, this does not speculate how long, or even with whom the child was residing.
Head of Household. A filing status that the IRS allows certain people to claim. However, in order to claim head of household status you must meet certain guidelines. These guidelines are the same regardless of the state of residency and include being unmarried on the last day of the tax year which is December 31st. In addition, you must have paid more than half of the expenses involved in keeping up a home during that tax year. You must also have a person who qualifies you to claim head of household such as a child, or other dependant.
Imputed Income. This is income that is figured in for a spouse that has no income, or if they are determined to be underemployed. This is typically used when determining alimony or more commonly child support. The courts will impute an amount for income based off what the spouse is capable of earning due to their training, education, and previous job experience. This can be applied for one spouse, or even both depending on the circumstances.
Irretrievable Breakdown. A legal grounds used to obtain a divorce using no fault grounds. Using this method the court must be sure that the marriage is broken and there is no hope of the parties reconciling.
Joint Petition. A petition that is filed when both parties request the court to grant a divorce. Often when a joint petition is filed, it is filed along with a separation agreement.
Legal Separation. This is only available in some states and provides a means for the spouses to be legally separated while remaining married. Typically, there will be some orders for custody, visitation, and even child support placed into effect while the separation is in effect. Some states require a separation for a certain period of time before considering a divorce.
Lump Sum. This is also referred to as a lump sum settlement in some areas. This typically is a payment made that would pay off all payments for alimony or other payments. However, payments are not made in full when handled in this manner and typically; a discount is associated since the payment is made all at once, rather than smaller payments over time.
Maintenance. See Alimony for description.
Marital Assets. Property including bank accounts and real physical property that the parties own and have purchased during the marriage, acquired during the marriage, or been given during the marriage that does not qualify as separate or individual property.
Marriage Certificate. This is an official certificate, which is issued by your local government. This must be signed and properly filled out in accordance with your local marriage laws.
Mediation. The process of both parties voluntarily discussing various aspects of the divorce that they disagree upon. Typically, the mediation process involves the use of a certified mediator who is trained in the proper techniques of successful mediation. Because the process is, voluntarily either party can back out and the mediation will be stopped. Many times couples are able to reach agreements by mediation without someone else deciding upon their affairs for them. This is very commonly used in custody disputes, however is not used for child support.
Ordinary Expenses. This are the typical costs associated with living. They include things such as food, shelter, clothing, utilities, and such. However, for those families with larger budgets, it may include some luxury items that is normally included in the family budget before divorce.
Palimony. Payments that are made to someone whom you had agreed to marry and had supported. This is very hard to prove and be successful in receiving unless you have the right circumstances.
Parens patrieae. This is the right of the states to take over control of custody and the care of minor children or anyone else who is legally unable to make their own decisions if there is a good reason based on physical or mental danger.
Parenting Classes. These classes are often required for parents to attend when they have children of the marriage. They are intended for parents to learn how to work together without causing further hardship to the children, however are not as effective as many states would like since it involves parents putting aside their differences for the children.
Parental Kidnapping. One parent taking a child without the authorization of the other parent or the courts by a court order.
Parenting Schedule. This is the schedule that sets forth which parent has custody, as well as when the other parent is allowed time with the child. Also included tends to be issues pertaining to extra-curricular activities, and special occasions and holidays.
Paternity. This is the biological relationship between a male and a child. However, on occasions paternity can be associated with a male who is not biologically related but has legal paternity of a child.
Paternity, Establishment. Determination of paternity that can be done by either a court order or by a voluntary acknowledgement that a father has signed.
Personal Property. This includes things such as bonds, cash, checking accounts, savings accounts, stocks, intellectual property, and even collectibles and pets. Not included in this is land, houses, or other real estate property.
Physical Custody. This is the determination of who has custody of the children physically. This is different from legal custody. This refers to where the children primarily reside.
Premarital Assets. These are all of the assets that are acquired before marriage. Whether they are physical or personal property these assets are separate property. Depending upon your state where you live depends upon how the assets will be divided in the event of a divorce. Some states consider it separate property for a divorce while other states will still divide the property.
Primary Physical Custody. See the description for physical custody.
Pro Se. This is when a client, either a plaintiff or a defendant chooses to represent themselves in court in a legal action without the use of a lawyer. If your case is very complicated it is much more advisable to retain a lawyer for your case if you can financially afford it.
Real Property. Property that is things such as buildings, land, and other real estate.
Recrimination. Term used to describe when the plaintiff in a divorce action is also accused of adultery in the counterclaim filed in court.
Rehabilitative Alimony. Alimony or spousal support paid to help the spouse receiving the payments gain an education or a source of employment. This is typically for a very short period of time, often only a few years before alimony is terminated.
Removal. Typically refers to a parent removing the primary residence of the child. This almost always requires the approval of the courts regardless of which parent is requesting to move so that visitation issues can be resolved as well as the custodial parent prove why it is in the child’s best interest for the move to take place.
Residency Requirement. This is the amount of time, which varies from state to state that you must live in a state before you are able to file for a divorce there. Most states say somewhere between 6 months and 12 months is the minimum.
Separate Property. This is the property that is not part of the marital property in states that are community property states. It often includes assets owned before the marriage as well as certain property acquired during the marriage.
Shared Custody. This is typically an arrangement where the parents share custody of the children. Both physical and legal custody is included in this classification. Typically, physical custody is primarily given to one parent regardless of how much time the non-custodial parent has with the child. Legal custody is the easiest form of custody to share.
Single Parent Families. This usually refers to families where only one parent is involved, due to a divorce, death, or other reason. Most single parent families are headed by a female since most minor children are with their mothers following a divorce. However, recent trends show more fathers heading single parent families now.
Spousal Support. See Alimony, also called maintenance.
Summons. The official notice to a party in a lawsuit that they must respond formally to a complaint or the petition that was filed in courts. A proper service process must be done in order for the summons to be binding. A summons must be attached to the complaint for divorce when it is served.
Temporary Support. This is support, whether spousal or child support that is ordered to be paid while the case is pending. Often the orders are entered early in the divorce process to ensure that children are taken care of while the divorce proceeds for years in some cases.
Tender Years Presumption. This is an old concept that many courts used that stated that mothers were the better parent for custody when a child was young. Most commonly from the age of 10 or younger. However, many states are dropping this method of belief when deciding custody now.
Vacate the Marital Home, Motion. This is typically used to force one spouse to leave the family home. While it is possible to request this, it is not usually granted unless there is a true fear of violence of some form. Because of the hostility that this can cause, it is not recommended to file this motion unless you are sure you will win, and you feel that you have no other options because many spouses react very badly to this motion.
Vacating Order. This is an order from the courts that is designed to vacate or remove an order previously in effect. Often associated with restraining orders and other similar types of orders.
Visitation, Supervised. This type of visitation occurs typically when someone is attempting to rekindle a relationship with a child, or if there is a fear of physical danger. The visits are typically supervised by someone that the court appoints to ensure there is proper supervision.
Visitation Center. A place where children and parents can visit where they are supervised by trained personnel. Typically, a fee is due for each visit that is almost always required to be paid by the non-custodial parent. However, depending upon your exact custody arrangement the custodial parent may be required to pay the fee for the center.
Voluntary Acknowledgement. This is a document that is a written declaration that a man is the biological father of a child. This is done voluntarily and without a court order, or a DNA test.
SOURCE: DivorceGuide.com
Sep
28
Divorce is the Dissolution of the Family Business
Filed Under Alternative Roads in Family Law, Divorce & Separation, Mediation & Collaboration in Family Law, Property & Asset Distribution | Leave a Comment
I’ve often tried to explain that divorce is the dissolution of the family corporation. It’s a position that is unpopular because it’s perceived as lessening the value of the family.
However, as much as my business law consulting is about planning for the future, so should family law consulting be about planning for the future.
Here’s a recent blog post that illustrated my point about divorce being about dissolving the family business.
A Michigan court of appeals found that a motion to amend a divorce settlement agreement should be treated like a motion to reform a contract. Which generally means that motions based on the unilateral mistake of one party are not typically granted.
Posted by Victor J. Medina
Medina, Martinez & Castroll, LLC
Sep
25
Family Law Basics - Before Divorce
Filed Under Divorce & Separation, Family Law Basics, Property & Asset Distribution | Leave a Comment
If things have gotten to the point that you or your spouse is considering getting a divorce, you’re mind is probably full of a lot of things. One of the ways that attorneys can help is to separate the emotional component of the divorce from the necessary analytical assessment that must be conducted. In its most basic form, divorce is the dissolution of the family business, which may include providing for the continuing obligation of caring for children.
Before beginning divorce proceedings, there are some steps you can take to prepare for the process.
First, before you conclude that a divorce is necessary, you should take some time to think through whether there is any realistic chance that you and your spouse can work things out? If so, you should see that process through. Despite what TV has taught you, there’s rarely any benefit to being the first to file for divorce.
If you believe that you or your children are in physical danger from your spouse, then you should take steps to protect everyone’s well-being. This might include seeking a protective order.
Barring any immediate danger, you should begin to consider the division of assets and debts. This includes making a list of the various real and personal property you own, such as real estate, investments and retirement accounts, vehicles (taking into account what is owed), anything of significant value and mortgages, auto loans, and credit card debt. What’s important is not what you paid for these items, but their current market value.
Some of the assets & debts that most people consider, but which are relevant to any marital dissolution, are any interest in a small business or loans from family members.
You should begin to think about how you are going to tell the children about the divorce. There a number of resources that are at your disposal to educate parents on how to break the news.
Also, electronic data has become the biggest developing area of discovery. To that end, be aware that your electronic tracks can be followed (even with the conventional clearing of history and caches). Watch your Internet and computer use accordingly.
Next up - Anatomy of a Divorce Proceeding
Posted by Victor J. Medina
Medina, Martinez & Castroll, LLC
Sep
25
Putting Everything in the Divorce Agreement
Filed Under Blogroll, Divorce & Separation, Mediation & Collaboration in Family Law, Property & Asset Distribution | Leave a Comment
One of my fellow bloggers, NJDivorceBlog posted this update about a case decided on September 10, 2007 where the trial court resolved a dispute about a missing term from a “settlement on the record.”
Many spouses (usually the ones with the most to lose and with leverage in the marriage) will push for divorces to be resolved by a mediator and look to get those settlements agreed to without having the other spouse carefully consider the outcome, which can include having a written agreement reviewed by attorneys, or in this case, without reducing it to writing in a full-blown divorce agreement and relying on a “settlement on the record.”
Whether or not you choose to engage in litigation incident to your divorce, you’ve got to make sure that you have competent attorney representing your interests and reviewing any settlement. And, as is the case in many negotiations, get the agreement in writing.
Posted by Victor J. Medina
Medina, Martinez & Castroll, LLC