Your Divorce Questions Answered Here

The Volz Divorce Philosophy

I have a philosophy about divorce cases.  “Family law” has that name for a reason.  In other areas of law, the parties file their actions and go to court to get a final resolution.  However, in most family law cases where children are involved, the parties will necessarily continue to be in each other’s lives as co-parents of their children.  It is my belief that in these cases, the attorney should always strive to help the parents find a way to separate peacefully, and establish rules and boundaries that will enable them to continue to be parents of their children and interact with the best interests of the children in mind.

Dealing with a divorce is a daunting task indeed. Once you place children into the equation, the situation becomes even more difficult to handle for people who barely know what to do themselves. The following rules should help you focus on what you should do when you spend time with your children, both during and after the divorce process.

Remain Positive

Whatever you do, try your best not to let your children see you fall apart, even if that’s what you want to do most. Children don’t understand the complexities of adult relationships and emotions, so there’s no need to burden them with emotions they can’t handle. Do your best to keep things on a positive note; they are no doubt trying to do the same for you.

Don’t Discuss the Details

Again, there’s no reason to discuss the divorce with your children, especially if they don’t ask you about it. Never talk negatively about your spouse and remember that your children still love them as much as they love you. You should focus on the time you have together and answer any questions they may have as neutrally and briefly as possible. There’s no need to burden them with extra information that may change their perceptions of either party.

Enjoy Your Time Together

When you have your children, make the time you spend together quality time. Do fun activities that help you all bond and work together as a team. Don’t let negative emotions get in the way or prevent you from doing things as a family. Sure, things won’t be the way they used to be, but that doesn’t mean that you need to give up either.

Don’t Change Parenting Habits

More than during any other time, your children need you to be consistent with them. Don’t be afraid to punish them; they still require discipline. Be the same parent you have always been and do your best to make sure that you and your ex are still on the same page regarding routines and punishments. Just because your relationship is over doesn’t mean your children’s needs should fall to the wayside.

Be Accessible and Available for Your Children

No matter what, you want your children to know that you are going to be there for them when they need you. Don’t make things out to be worse than they are; no matter what, you will always be their parent. This time in your children’s’ lives can have a huge impact on their future, so you want to let them know that you are there for them whenever they need you.

Divorce:

A divorce (also called a "dissolution of marriage") ends your marriage. California is a “no fault state” which means that you can get a divorce if you say you have "irreconcilable differences" with your spouse. Your spouse does not need to “agree” to give you a divorce.

Residency Requirements: You or your spouse must have lived in California for the last 6 months AND for 3 months in the county where you're going to file for your divorce. For example, if you wish to file in Los Angeles County, you must have resided in Los Angeles for at least 3 months, but you must have lived in the State of California for at least 6 months.

Paternity:

In many cases parents are not married prior to having their children. Prior to 1997, a father could be listed on a birth certificate without his consent. Now both parties must agree to list a father on a birth certificate in cases where the parents are unmarried at the time of the birth of the minor child. In some cases there may be a dispute as to who the father is or there may be an issue were the father is not listed on the birth certificate. Our office can assist you in regards to orders for genetic testing, stipulations for paternity and custody and visitation of the minor child.

Custody & Visitation:

The best parenting plan is one that both parents agree on. Our office can help you determine the best plan for you and present it to the other parent or their attorney. There are times that no agreement can be met and the parties must have a judge determine the appropriate parenting plan. Our office provides you with aggressive representation and we can counsel you on various options to assist the courts in determining an appropriate plan for you.

Child Support:

There are several variables that the courts look at when making orders for child support. We can assist you in ensuring that all support orders are reasonable. There are add-ons which may increase or decrease your child support obligation, such as daycare costs, health insurance and other expenses paid on behalf of the children.

Child Support Services:

There are some instances in which Child Support matters are turned over to the Child Support Services Department. We can assist you in the collections of support owed and defend you in matters where support has been miscalculated.

Property Distribution:

There are several issues that may arise in regards to property in a dissolution case. Parties sometimes have property prior to the marriage which may be considered separate property. Sometimes the couple will pay a mortgage on a spouse’s separate property for which they need to be reimbursed. There may be a time where one spouse inherits property or the couple purchases property together and that property needs to be divided. Our firm can assist you in protecting your property rights and insuring that you receive what belongs to you.

Spousal Support:

Spousal support (or alimony) is awarded by the Court from one party to the other, based on many factors set forth in the California Family Code. It can be paid to either the husband of the wife. As a general rule, for marriages of less than 10 years, the Court may order spousal support for a period of one-half of the length of the marriage. If it is a “long term” marriage (over 10 years), then the Court can award spousal support for a longer period, including until the supported spouse dies or remarries.

Prenuptial Agreements:

In the United States, prenuptial agreements are recognized in all fifty states and the District of Columbia. Likewise, in most jurisdictions, five elements are required for a valid prenuptial agreement:
1. agreement must be in writing (oral prenups are always prohibited);
2. must be executed voluntarily;
3. full and/or fair disclosure at the time of execution;
4. the agreement cannot be unconscionable;
5. it must be executed by both parties (not their attorneys) "in the manner required for a deed to be recorded", known as an acknowledgment (law), before a notary public.

Prenuptial agreements in all U.S. states are not allowed to regulate issues relating to the children of the marriage, in particular, custody and access issues. The reason behind this is that matters involving children must be decided in the children's best interests. However, this is controversial: some people believe that as custody battles are the worst part of a divorce, couples should be able to settle this in advance.

With respect to financial issues ancillary to divorce, prenuptial agreements are routinely upheld and enforced by courts in virtually all states. There are circumstances in which courts have refused to enforce certain portions/provisions of such agreements. For example, in an April 2007 decision by the Appellate Division in New Jersey, the court refused to enforce a provision of a prenuptial agreement relating to the wife's waiver of her interest in the husband's savings plan. The New Jersey court held that when the parties executed their prenuptial agreement, it was not foreseeable that the husband would later increase his contributions toward the savings plan.

In California, there is one case that recognized an oral, executed prenup (Hall v. Hall) in the probate of an estate. Parties can waive disclosure beyond that which is provided, and there is no requirement of notarization, but it is good practice. There are special requirements if parties sign the agreement without attorney, and the parties must have independent counsel if they limit spousal support (also known as alimony or spousal maintenance in other states). Parties must wait seven days after the premarital agreement is first presented for review before they sign it, but there is no requirement that this be done a certain number of days prior to the marriage. Prenups often take months to negotiate so they should not be left until the last minute (as people often do). If the prenup calls for the payment of a lump sum at the time of divorce, it may be deemed to promote divorce. This concept has come under attack recently and a lawyer should be consulted to make sure the prenup does not violate this provision.

In California, an agreement is very powerful. A couple can waive their rights to share property (community property). It can limit spousal support (although a court at the divorce can set this aside if it deems that the limitation is unconscionable). The agreement can act as a contract to make a will requiring one spouse to provide for the other at death. It can also limit probate rights at death, such as the right to a probate allowance, a probate allowance, the right to act an executor, the right to take as a predetermined heir, and so forth.

In California, Registered Domestic Partners may also enter into a prenup. Prenups for Domestic Partners can have added complexities because the Domestic Partner does not have the benefit of federal tax law that favors married couples. In California, courts have not allowed penalties in prenups that sanction people for infidelity or using recreational drugs. Court will not enforce requirements that one person will do the dishes or that the children will be raised in a certain religion.

Postmarital agreements are treated very differently in California law. Spouses have a fiduciary duty to one another so premarital agreements come under a special category of agreements. There is a presumption that the postmarital agreement was obtained by undue influence if one party gains an advantage. Disclosure cannot be waived in the context of a postmarital agreement.

Of note, unlike all other contract law, consideration is not required, although a minority of courts point to the marriage itself as the consideration. Through a prenup, a spouse can completely waive rights to property, alimony or inheritance as well as the elective share and get nothing in return.

A sunset provision may be inserted into a prenuptial agreement, specifying that after a certain amount of time, the agreement will expire. In a few states, such as Maine, the agreement will automatically lapse after the birth of a child, unless the parties renew the agreement. In other states, a certain number of years of marriage will cause a prenuptial agreement to lapse. In states that have adopted the UPAA (Uniform Premarital Agreement Act), no sunset provision is provided by statute, but one could be privately contracted for. Note that states have different versions of the UPAA.

Choice of law provisions are critical in prenups. Parties to the agreement can elect to have the law of the state they are married in govern both the interpretation of the agreement and how property is divided at the time of divorce. In the absence of a choice of law clause it is the law of the place the parties divorce, not the law of the state they were married that decides property and support issues.

In drafting an agreement, it is important to recognize that there are two types of state laws that govern divorce – equitable distribution, of which there are 41 states and 9 states that are some variation of community property. An agreement written in a community property state may not be designed to govern what occurs in an equitable distribution state and vice versa. It may be necessary to retain attorneys in both states to cover the possible eventuality that the parties may live in a state other than the state they were married. Often people have more than one home in different states or they move a lot because of their work so it is important to take that into account in the drafting process.

There are several ways that a prenuptial agreement can be attacked in court. These include lack of voluntariness, unconscionably, and a failure to disclose assets.

Are prenuptial marriage agreements a death knell for romance? Or are prenuptial agreements practical solutions to dealing with the problematic topic of finances in a marriage?

More and more couples are signing prenuptial marriage agreements before they marry. These are not just couples dealing with financial inequality, or couples who have a lot of wealth. These are couples who want to put all their financial cards on the table before they walk down the aisle.

A prenuptial marriage agreement is a signed and notarized contract that spells out how a couple will handle the financial aspects of their marriage. Although not very romantic, having this honest financial discussion prior to a wedding ceremony can be a very positive experience.

Pros of Prenuptial Agreements:

• Having a prenuptial marriage agreement does not mean that a couple is anticipating divorce.
• Financial matters need to be faced.
• Prenuptial agreements can preserve family ties and inheritance.
• If your future spouse won't sign a prenuptial marriage agreement, it may be best to discover this before the wedding.
• The financial well-being of children from a previous marriage can be protected.
• Personal and business assets accumulated before your marriage are protected.
• A prenup puts financial expectations out on the table before your wedding.
• A prenuptial marriage agreement spells out which assets a spouse may want to give to children or other family members in the event of death.
• In the event of a divorce, a prenuptial agreement eliminates battles over assets and finances.

Cons of Prenuptial Agreements:

• Prenuptial marriage agreements can be set aside for failure to disclose all assets, or if there is evidence of fraud, duress, unfairness, or lack of representation at the time of signing the agreement.
• They are unromantic.
• Prenups can give the appearance that there is a lack of trust between the partners.
• A prenuptial agreement could create resentment between spouses.
• A prenuptial marriage agreement makes it seem like there is a lack of a life-time commitment to one another.

History of Prenuptial Agreements:

Nuptial agreements have been around for thousands of years. During the 19th century, before the Married Women's Property Act of 1848, the agreements were necessary for women in the United States. Until the act became law, everything a woman owned or inherited was transferred to her husband. If he died or divorced her, she could lose everything.

Community Property States:

Community property states in the United States are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, and the territory of Puerto Rico. Their laws state that property accumulated during a marriage would be divided equally in the event of a divorce. Other states have a policy of dividing assets on an equitable distribution basis.

Things to Remember About Prenuptial Agreements:

If you are considering having a prenuptial agreement it is important to remember three things:
1. Discuss the agreement early in your relationship. Don't wait until you're ready to walk down the aisle.
2. Be honest. Don't try to hide your thoughts, feelings or assets.
3. Hire separate attorneys so you both have good representation.
4. Consider asking both lawyers to supply an affidavit of independent legal counsel. Keep the affidavits with the original prenuptial document.

Postnuptial Agreements:

Why Should a Married Couple Create a Postnuptial Agreement?

A Postnuptial agreement is a voluntary marriage contract between spouses that is created after their wedding. It is important that each of you have your own legal counsel before signing a Postnuptial agreement.

What is a Postnuptial Agreement?

Many married couples create Postnuptial agreements to help resolve issues in their marriage by removing a source of disagreement over finances, assets, children, chores, etc. Postnuptial agreements are also used by spouses as a way of controlling certain behaviors, such as adultery or over spending.

Another reason to create a Postnuptial agreement is if the financial status of either spouse changes after their wedding. Changes in a career, receiving an inheritance, experiencing a change in investment income, selling a business, etc. are all valid reasons to want a Postnuptial agreement.

For some couples a Postnuptial agreement can stop conflict and promote harmony in their marriage.

What is the Validity of a Postnuptial Agreement?

Historically, Postnuptial agreements were not considered valid.
"The common law in the USA during most of the 1800s was that a husband and wife could not make a legally binding contract between themselves. The reason for this rule is that the identities of two parties (i.e., husband and wife) merged into one at the time of the marriage, and the law does not recognize a contract with just one part. Furthermore, a married woman could not make a valid contract with anyone (including her husband), except regarding her separate property."

Currently, the validity of Postnuptial agreements varies from locale to locale. Remember, it is vital that each of you contact a separate attorney before signing any Postnuptial agreement.

There are three criteria that judges use to determine the validity of a Postnuptial agreement:
• Has there been full disclosure of assets in the Postnuptial agreement?
• Has there been a lack of duress in the creation of the Postnuptial agreement?
• Is the Postnuptial agreement fair to both parties?

A Postnuptial agreement can also be referred to as
• Post marriage agreement
• Marriage agreement
• Mid-marriage agreement
• Postmarital agreement
• Post-nuptial agreement
• Post nuptial agreement

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