Do Judges Interpret The Law The Same in Divorce?

 

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Divorce and Community Property

3,142 counties equals 3,142 different flavors of divorce. This is your divorce – don’t let it happen to you

Storey Jones

Everyone starts a legal consultation asking the same questions in a variety of ways, “How much will I get?” or “How much will I have to give?” “How can I keep the house?” “What do we do about the debt?” or, “Well clearly since he/she (fill in the blank) drinks, uses drugs, is absentee, stopped working, is depressed, spends all the money… then I will get what I ask for, right?”

The biggest surprise of all is that no one really knows for sure. If you listen carefully, every lawyer will give you an educated guess, or base their response on a similar case, but they will surround any suggestion of an outcome with 101 disclaimers because the truth is, they don’t really know.

How could a lawyer who has practiced in a particular county for a few years or a few decades not know for sure? The dissolution of a marriage or a domestic partnership is a transaction governed by state laws and local bias. In family law court, there are two types of family law code, Community Property and Equitable Distribution, but there is wide interpretation of that code by judges across over 3,000 counties. Judges have a tremendous amount of latitude in the interpretation of how the law applies to each situation. It is widely known that even different judges in the same county might rule differently on the same set of facts which is often why lawyers will try to get a case moved to a different judge. Each and every family situation is complex and the issues and nuances unique, therefore it is impossible to know exactly what to expect should your case go to court. Most spouses do not realize the degree to which the local bias and judge can impact the outcome. Sometimes just the tenor of the cases heard in the morning can affect the judge’s reaction and ruling to a case heard that afternoon. The lack of predictability around what spouses often believe are clear paths to a fair and equitable settlement is unsettling.

This is precisely why it is imperative to spend time educating yourself  about Divorce and Community Property http://www.seasonsofdivorce.com/CommunityProperty organizing the facts Get Organized developing forward-looking budgets and if at all possible, actively contributing to a creatively structured settlement that avoids court altogether. This will allow you to better participate and contribute to the outcome of your own case. This is your divorce- don’t let it happen to you.

How could a lawyer who has practiced in a particular county for a few years or a few decades not know for sure?

It is also important to note that how it is supposed to work and how it actually works, are two very different concepts. The law dictates, for example, that each spouse provide full and complete financial disclosure, but what if they don’t? A parenting plan is meant to be legal and binding, but what if one parent simply decides to ignore it? These and other situations are the reality of how it actually works, and it is so frustrating, but that is the current system.  Depending on the court, the judge, and myriad other factors, it can feel as if no one cares and no one can or will make your spouse do what he/she is supposed to do. We know. We don’t have all the answers, but we absolutely do know that whenever possible it is better to design the outcome with your spouse rather than risk a third party’s interpretation. it is essential to your mental health, your family’s emotional health and your financial future to be empowered with education, financial tools, parenting tools and a mindset to complete this detour and get back on the main road. That’s where Seasons of Divorce comes in, helping you to create an outcome that will prepare you for the transition of your lifetime.

The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of, and access to, this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Dtour, Inc., dtour.life or any affiliate of Dtour, Inc. Seasons of Divorce and the user or browser.  Any opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of Dtour, Inc. or dtour.life or Seasons of Divorce

 

Is Your State a Community Property State? What is Community Property?

 

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the favorable outcome with the dtour life app
Be Advised always check
to make sure which laws govern your state concerning Community Property.
https://blog.nolo.com/estateplanning/tag/community-property/

Community Property Divorce – The Basics

Storey Jones

We have two different types of Family Law in our country, “Community Property and Equitable Distribution.” These laws provide the basis for which financial settlements in divorce cases are settled, or ordered, so it is important to understand how the specific state law applies to the facts in your case.

What is Community Property Law?

In Community Property states, marital property is divided into “two separate, undivided one-half interests.” Most people think of this as everything is split 50/50, but is it really that simple? Well, yes and no. So let’s first explore a few basic concepts. (This applies only to assets and debts. Spousal Support, or Alimony/Maintenance, and Child Support is handled differently and will be discussed in a separate article.)

What is Marital Property?

All of the assets and debts accrued over the life of the marriage are considered marital property. This includes everything from the earned income deposited into checking accounts, to the car purchased together with that earned income, to the credit card debt that was acquired while on vacation. Those marital — or “community property” — assets and debt will be split 50/50. This seems simple enough, but it gets more complicated.

Valuation of Marital Assets

Before a marital asset can be distributed, spouses must agree on the value of the asset. Often that means procuring real estate appraisals, business valuations, art appraisals, investment data, etc. If spouses don’t agree, or don’t have the data sufficient to identify value, the process to procure values can be time consuming and expensive.

What is Separate Property?

Separate Property is defined as any asset, such as real estate, vehicles, artwork, retirement accounts, cash, etc., that was owned by one spouse before the date of marriage, as well as all gifts and inheritances received during the dates of marriage. Separate property can also apply to a debt such as a student loan or credit card debt that was acquired prior to the date of marriage.

What is a Separate Property or Community Property Claim?

There are many situations where a spouse might have a separate property claim on an asset. For example, if there was a contribution to an asset from separate property funds, such as the down payment amount for a house, then that might constitute a separate property claim on that down payment amount, without an increase of value. Or, if a spouse has a separate property asset, such as a house that he/she owned prior to marriage, and then during the marriage, marital funds were used to pay down the mortgage, then the other spouse has a community property claim on that asset.

Why are Separate Property Claims Complicated?

1. Changing Character of Separate Property

Often a separate property asset can transition to a marital asset if it was treated as such during the marriage. For example, if a spouse deposits an inheritance or gift into a joint account, that co-mingling of assets can affect the character of the asset and in some cases that inheritance or gift would no longer be classified as separate property.

2. Burden of Proof

The spouse who claims an asset as separate property has the burden to prove it. Without an agreement between the spouses or sufficient documentation, often the claim will not be upheld by the court.

Getting Started with Divorce in a Community Property Law State

To sum it all up, Community Property settlements are guided by the 50/50 rule, but as we all know, the factors the court considers when determining that 50/50 split is subject to interpretation. This is where identifying and detailing the background and financial facts in your case, and obtaining legal advice about your county laws, is so important.

Understanding how your court would likely rule — based on the facts of your case –can help you create a strategy that minimizes the amount of time, expense, and emotion you need to invest into achieving a creative settlement in mediation, the collaborative process, or between attorneys. (Remember, in most cases, a settlement means that you and your spouse agreed to terms that you both can live with as opposed to having those terms forced upon you by the court.)

The case profile and financial tools we have designed at dtour.life will help you to document your marital and financial information in a way that will more efficiently enable a lawyer to give you specific legal advice based on all the facts in your case.    Seasons of Divorce

The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of, and access to, this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Dtour, Inc., dtour.life or any affiliate of Dtour, Inc. and the user or browser.  Any opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of Dtour, Inc. or dtour.life.

 

Divorce Road Signs

At Seasons of Divorce
we help manage the Workflow of Divorce with Dtour

Divorce Road Signs

1.    We have a LEGAL system, not a JUSTICE system.

No one knows what will happen in court except that no one wins.

2.    Do not hire the first lawyer you meet.

Interview more than one lawyer to compare philosophies.

3.    Divorce is more than a full-time job; it is ALL consuming.

Do not underestimate the amount of work required; don’t be fooled into thinking that your lawyer will take care of everything. Pace yourself.

4.    Do not be a passive participant in your own divorce.

This is your family, your business contract. Educate yourself, take the time to ask questions, understand your finances, develop a budget, so that you can make informed decisions that you can live with.

5.    Be very selective about the voices in your ear.

Emotional support is one thing, but stay focused on a constructive process, not a destructive one because of what your friends and family think about your soon-to-be Ex or tell you that you should do.

6.    Do not expect your spouse to make-up or “pay” for emotional pain.

Punitive damages for emotional stress do not exist in family law; emotions are expensive. Focus on a settlement and an exit rather than spending resources on illusory pay-back or punishment.

7.   You know your spouse better than anyone; trust your intuition.

No one knows your spouse better than you do; don’t allow the professionals to dismiss any legitimate concerns you may have. Be the architect of a process that can be successful for both you and your spouse.

7.    Lawyers are capable of escalating adversity with the simple stroke of their pen.

Some lawyers use a writing style in communication with opposing counsel that is rude and condescending to the other spouse. This is not a requirement of the process. Escalated conflict means greater cost and rarely does it lead to a more generous settlement. Not all lawyers are created equal, so while there are family law attorneys who are complicit in needlessly escalating adversity and churning fees, there are many reasonable, ethical, strategic, and solution-oriented attorneys. It is worth taking the time to find them. Do your research.

9.   Temporary Insanity

The overload of emotional triggers is so profound that there isn’t one spouse who doesn’t utter, at one point or another, “I don’t recognize my spouse, this isn’t the person I married” (and if they are really honest with themselves, “I don’t recognize myself”) Try to step back and allow some space for temporary insanity. It is just temporary.

10. Respond, do not react, to inflammatory email, voice mail or calls.

Allow space for reaction. Don’t be fooled into engaging with the bully. The process tests everyone but will ultimately reach resolution.

11. If you are married to “crazy,” all bets are off.

We do not have a system that is capable of protecting spouses from personality disorders that affect another spouse’s ability to compromise or participate in a rational process. Be aware, do your research and consider alternate expectations of an outcome that at least provide an out and an end.

We hope this will help you to navigate the divorce process and to avoid the common pitfalls of divorce.

 

The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of, and access to, this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Dtour, Inc., dtour.life or any affiliate of Dtour, Inc. and the user or browser.  Any opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of Dtour, Inc. or dtour.life.

 

 

 

 

 

 

Divorce? Things to Do…

 To Do If Divorce Is Your Only Option 

If you’re convinced that your marriage is irretrievably broken and you’re headed for divorce, here are some steps to take. 

Talk to an attorney.  

Know your legal rights and responsibilities. Know the consequences if you decide to take the children and live at your parents’ house until the divorce is final. From a legal point of view, moving to your parents’ home, even if it is temporary might be a huge mistake. 

Get copies of documents.  

Go through household files and make copies of everything you can find: tax returns, bank statements, check registers, investment statements, retirement account statements, employee benefits handbooks, life insurance policies, mortgage documents, financial statements, credit card statements, wills, Social Security statements, automobile titles, etc. In the case that your spouse is self-employed, you should gather as much information as possible about the finances of the business. Create copies of any financial data stored on your home computer. Get Organized 

Make an Inventory of household and family possessions. 

List the major items: furniture, artwork, jewelry, appliances, automobiles, etc. Don’t forget to check the storage areas of your home and include valuables in your safe deposit box. 

Being aware of all the marital assets is important when it comes time to divide the property. 

Know the household budget and expenses. 

If possible, go through your check register for the past year and write down each utility, mortgage, and other household expenses for each month. Keep track of the cash you spend on a daily basis so that you’ll be able to verify your monthly cash expenditures also. Budget Worksheet 

Determine how to manage debt.  

Determine debt, you may want to pay it down before divorce. The division of marital debt among divorcing spouses is one of the most difficult items to negotiate. Determine whether any of the debt was incurred by one spouse or the other prior to the date of marriage. This is “non-marital debt” and the spouse that incurred it is responsible. 

Find out exactly what your spouse earns. 

If your spouse earns a salary, get a pay stub; if your spouse is self-employed, owns a business, or receives any portion of income in cash, do your best to keep track of the money flowing in for several months. It might be easiest to look at tax returns.  

If you think it’s possible your spouse is trying to conceal money from employment, you may have to do some more research.

Know your earning potential.  

You may have been out of the workforce for a while raising children or have been a housewife. You may need to decide what your earning potential might be and consider furthering your education prior to divorce.  

Know your own credit history.  

If you do not have credit cards in your own name, apply for them now, use them, and establish your own credit history. If you have poor credit try to pay creditors now and improve your own credit rating prior to divorce. 

Build a “nest egg”.  

You should always have money of your own. If your spouse moves out and stops paying bills, you will need to pay them until temporary support orders can be entered. Should you decide to file, you’ll need money for a retainer.  

Make your kids your priority.  

Keep your children’s routines as normal as possible during this process. If you and your spouse cannot be together with the children without arguing, schedule separate times for each of you to be with the children. Be involved in your children’s school, sports, and social activities. Do not talk bad about your spouse to your children they need to know it is ok for them to love you both. Make their feelings your first concern. 

GET INFORMED 

It’s important to be aware of all the potential issues you’ll face, as well as understand how the divorce process works.


								
Seasons of Divorce Coaching Service, Shari Frasure
CDC Certified Divorce Coach National Association of Divorce Professionals
859-644-9024  coach@seasonsofdivorce.com
www.seasonsofdivorce.com