It can be hard to deal with divorce from an entirely rational viewpoint, but letting your emotions get the better of you can hurt your wallet more than your pride.
Your best option is to be as honest as possible – don’t try to hide your assets – no matter how badly you’d hate to share them with your ex – as this will only take more time and money to sort out and is TOTALLY ILLEGAL.
Failing to agree over the division of family assets (such as the family home, a business and pension funds), child custody and support and even personal items like CD collections or pets can also cause fees to skyrocket, especially if both parties reach a stalemate over who gets to keep Harry the hamster
How to negotiate:
Collaborative law is growing in popularity. Rather than attorneys exchanging a series of angry (and expensive) letters as they negotiate the terms of the settlement and ending up in court if they can't agree, instead both parties sit down with their respective attorneys to, if possible, work out the terms of the settlement. This only works if both sides are prepared to be constructive and, again, make full-disclosure of their assets. It is an “all cards on the table” exercise but, if successful, can reduce the legal costs of divorce considerably.
Collaborative law is not dissimilar to mediation, although this has proven unpopular with couples as there is usually only one mediator involved who can give advice to both parties, meaning one often feels short-changed at the end of the process.
In collaborative law, your attorney is present during the meetings and if a settlement can’t be reached, the same attorney can’t go on to represent you in court, thus eliminating any incentive to draw out the process in hope of a larger fee.
Protect your assets:
If you are experiencing an emotional or bitter divorce then make sure, if you do choose to get married again, that you’re prepared for the worst. A prenup, is a worthwhile consideration particularly where one party is bringing significant assets into the marriage. It is intended that the prenup would provide the couple with a framework for dividing the assets on a divorce. (read more on pre-nups) Finally, no matter how betrayed you feel, or how bitter the divorce, it is almost always best to grin and bear the pain even after the proceedings are over rather than harbour a grudge into eternity.
The benefit of couples dealing with matters amicably is that this will hopefully enable them to communicate sensibly with their former spouse in the future. Many divorcing couples seem to forget that, following the resolution of the proceedings between them, that they may still need to have contact with their former spouse, particularly where children are involved. (read more on child custody) Generally where the couple have conducted the proceedings amicably, there seems to be a better prospect of them avoiding further disputes with their former spouse. (read more on hidden assets)
© 2011 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this blog/website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.
For more information visit www.la-familylaw.com
Contact a Los Angeles Divorce Attorney at Law Offices of Warren R. Shiell
Call for a free consultation now 310.247.9913.
Divorce and Money
Los Angeles Family Law Attorney
Divorce Lawyers|Attorneys Los Angeles, Beverly Hills
California Prenuptial, Prenups
Showing posts with label money. Show all posts
Showing posts with label money. Show all posts
Wednesday, October 05, 2011
Thursday, September 29, 2011
Family Home in Divorce Part I
By Warren R Shiell
The following information is specific to California.
In many divorces, the biggest financial question is who gets the family home. Should the wife get it, should the husband, or should they sell it and split the proceeds? And if they sell it how should the proceeds be divided.
Many times, the wife has an emotional tie to the home and she wants to keep it. This is where she raised their children and decorated and entertained. But she needs to consider whether she can afford to keep the home. If she keeps the house she is getting an illiquid asset that does not buy groceries for her children or create any income.
The first issue that must be considered is who owns the house. Is it entirely community property that should be split equally or does one spouse have a claim to a greater share.
Who owns the house?
Often the family home is the most important asset that a family owns. In a divorce the first question that a couple must consider is who owns the family home. Is it entirely community property that should be divided equally or does one spouse have a separate property interest that would result in an unequal division.
In California, there is a presumption that property acquired during the marriage is community property and each spouse is entitled to an equal share upon divorce. However, in the case of the family home this presumption may not apply if title is not in joint names. For example, if a house is purchased during the marriage but only one spouse’s name is on the title that spouse may be able to claim that the entire property is their separate property and that they do not have to share it with the other spouse. FN1. This can lead to very unfair results if the mortgage was paid during the marriage with community earnings or the downpayment was made with community savings. To avoid this result the disadvantaged spouse has to prove that there was a breach of a fiduciary duty and the Court should treat the house as community. If you are ever in this situation you need to immediately consult with an experienced family lawyer. Further, if your credit is bad and your spouse ever tries to convince you that the only way to get a mortgage is to put title in their name you should immediately consult with an attorney.
Another common situation is where one spouse owns a house prior to marriage. During the marriage the title remains in that spouse’s name but the outstanding mortgage is paid with community earnings. The spouse who is not on title may still have a community property interest by virtue of the mortgage payments made with community earnings. This is commonly referred to as a “Moore-Marsden” interest based on the two cases that establish the formula for calculating the community interest. FN2. When a couple have been married a long time and substantial amounts of community earnings have paid off an existing mortgage, making improvements or the parties have re-financed, this “Moore-Marsden” interest can be substantial.
You may wonder why this situation is so different to the one above where the home is acquired during the marriage in one spouse’s name. The simple answer is that’s what the Courts have decided. If you are ever in this situation you need to immediately consult with an experienced family lawyer.
(read more on our website)
© 2011 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this blog/website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.
For more information visit www.la-familylaw.com
Contact a Los Angeles Divorce Attorney at Law Offices of Warren R. Shiell
Call for a free consultation now 310.247.9913.
Divorce and Money
Los Angeles Family Law Attorney
Divorce Lawyers|Attorneys Los Angeles, Beverly Hills
California Prenuptial, Prenups
The following information is specific to California.
In many divorces, the biggest financial question is who gets the family home. Should the wife get it, should the husband, or should they sell it and split the proceeds? And if they sell it how should the proceeds be divided.
Many times, the wife has an emotional tie to the home and she wants to keep it. This is where she raised their children and decorated and entertained. But she needs to consider whether she can afford to keep the home. If she keeps the house she is getting an illiquid asset that does not buy groceries for her children or create any income.
The first issue that must be considered is who owns the house. Is it entirely community property that should be split equally or does one spouse have a claim to a greater share.
Who owns the house?
Often the family home is the most important asset that a family owns. In a divorce the first question that a couple must consider is who owns the family home. Is it entirely community property that should be divided equally or does one spouse have a separate property interest that would result in an unequal division.
In California, there is a presumption that property acquired during the marriage is community property and each spouse is entitled to an equal share upon divorce. However, in the case of the family home this presumption may not apply if title is not in joint names. For example, if a house is purchased during the marriage but only one spouse’s name is on the title that spouse may be able to claim that the entire property is their separate property and that they do not have to share it with the other spouse. FN1. This can lead to very unfair results if the mortgage was paid during the marriage with community earnings or the downpayment was made with community savings. To avoid this result the disadvantaged spouse has to prove that there was a breach of a fiduciary duty and the Court should treat the house as community. If you are ever in this situation you need to immediately consult with an experienced family lawyer. Further, if your credit is bad and your spouse ever tries to convince you that the only way to get a mortgage is to put title in their name you should immediately consult with an attorney.
Another common situation is where one spouse owns a house prior to marriage. During the marriage the title remains in that spouse’s name but the outstanding mortgage is paid with community earnings. The spouse who is not on title may still have a community property interest by virtue of the mortgage payments made with community earnings. This is commonly referred to as a “Moore-Marsden” interest based on the two cases that establish the formula for calculating the community interest. FN2. When a couple have been married a long time and substantial amounts of community earnings have paid off an existing mortgage, making improvements or the parties have re-financed, this “Moore-Marsden” interest can be substantial.
You may wonder why this situation is so different to the one above where the home is acquired during the marriage in one spouse’s name. The simple answer is that’s what the Courts have decided. If you are ever in this situation you need to immediately consult with an experienced family lawyer.
(read more on our website)
© 2011 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this blog/website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.
For more information visit www.la-familylaw.com
Contact a Los Angeles Divorce Attorney at Law Offices of Warren R. Shiell
Call for a free consultation now 310.247.9913.
Divorce and Money
Los Angeles Family Law Attorney
Divorce Lawyers|Attorneys Los Angeles, Beverly Hills
California Prenuptial, Prenups
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