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Orange County Family Law Blog

Child custody: Drafting the perfect parenting plan needs guidance

The dynamics of every family are unique, especially when there are children. If you are in the throes of divorce in Orange County, California, you might be overwhelmed by the desire to do what is best for the children when negotiating child custody issues; however, you may be unsure how to achieve that. This is where the skills of a Board-Certified Family Law Specialist like Hollie A. Lemkin come in.

Ms. Lemkin has accumulated valuable experience and an established track record on which to build customized solutions to suit any circumstances. With her comprehensive knowledge of all matters related to family and divorce, she can provide the necessary guidance and support. In addition, her creativity in devising workable solutions can benefit you during mediation and settlement agreements as well as in the courtroom.

What factors determine spousal support in California?

In California, it is often more complicated and difficult to achieve divorce than in other states. In part, this owes to our relatively uncommon use of community property guidelines, but we also maintain separate statutes that determine other aspects of divorce related to property division, like spousal support.

When spousal support is on the table in a divorce negotiation, there are many factors that the couple and the court may consider to arrive at a solid figure for an award to one party or the other. It is always important to remember that each aspect of the overall settlement agreement between spouses is related, so alterations in one area like child support or marital property division affects each of the other areas and the ranges of available award.

Is a PI, GPS, camera and recorders part of your divorce strategy?

Many marriages end as the result of trust issues, and some spouses will go to the end of the earth to prove infidelity or other unacceptable behavior. However, divorce courts have moved away from considering fault. Nevertheless, some circumstances might justify private investigators or other surveillance methods.

Some spouses decide to do their own spying by obtaining low-cost devices online. These could include loading spyware on computers, fitting hidden surveillance cameras, planting recording devices and some even use unsuspecting children to carry recording devices in their clothing. However, many of these methods of obtaining information are unlawful and could prove to do more harm than good in the divorce court.

Can you save your business from your divorce?

In California, we are subject to community property division, which can make divorce even more complicated than it already is, necessitating very careful divisions of assets. Under community property guidelines, divorcing spouses must divide property equally rather than equitably, which does not give either spouse as much flexibility to give and take during divorce negotiations.

This can prove particularly difficult for business owners who hope to keep their business intact through the divorce, especially if they have employees and others depending on the business to survive.

What happens to a 401(k) plan in a California divorce?

When a marriage ends in a community property state such as California, marital assets will be subject to an equal split. One of those assets might be a 401(k) plan -- at least the contributions that were made to it during the marriage. Any funds that were added to the plan before the marriage will not be eligible for distribution in a divorce because they would be separate property that belongs to the contributor.

This might also be the appropriate time to look at all other assets that were accumulated during the marriage. Although divorce law in California splits marital assets 50/50, absent a pre or postnuptial agreement, divorcing spouses often negotiate the way they want their property to be divided. However, a final agreement will need the court's approval.

Divorce: How is property divided in California?

California is a community property state. This means that in the event of a divorce or the death of one spouse, assets will be equally divided -- unless otherwise stipulated in a prenuptial agreement. All the property that a couple acquires during their marriage will be community property that will belong to both parties.

Community property typically includes wage earnings of both spouses, along with the family home and its contents -- everything that was financed by marital income. Income from the interest on business operations and investments will also be divisible, and so will any debts -- including the mortgage. However, the property that will remain separate includes assets owned by one spouse before the marriage, inheritances or gifts received during their marriage, and any income earned after the separation date.

Divorce: What does a seat belt and a prenup have in common?

A prenuptial agreement is like a seat belt. Some California people may automatically put on their seat belts when they get in a vehicle because it will protect them in the event of an accident. A prenup protects both parties in the event of a divorce. It allows couples to determine how their assets and debts must be split in a divorce rather than relying on a judge and the state's divorce laws.

Having to prove which assets were accumulated before and during the marriage and which ones belong to whom can be a challenge, and a prenuptial agreement can cover all of these bases and more. No one wants to be held responsible for an ex-spouse's debt after a divorce. Including payment responsibilities in a marriage contract can avoid a court battle over debt payments. However, creditors are not interested in such agreements; they will come after the person or people who signed or co-signed for the loan.

Is your prenuptial agreement really valid?

For many high-net worth individuals or couples, a prenuptial agreement is an obvious and important part of planning for a marriage. Like an emergency parachute, the property division aspects of a prenuptial agreement are protections that many couples hope they never have to use, but are very glad to have if divorce comes knocking.

However, simply creating a prenuptial agreement is not always enough to keep a person's property safe in the event of divorce. Prenuptial agreements, like all contracts, must withstand scrutiny if challenged, and a poorly constructed prenuptial agreement may only appear to offer protection until it faces such a challenge.

Do you need an attorney to navigate an uncontested divorce?

Many California couples who find themselves at the end of a marriage manage to focus on the future rather than the past as they proceed through this challenging process. Regardless of how amicable a divorce is, it will always be tough. However, agreeing to file an uncontested divorce can limit the trauma for both parties and any children they may have.

Even though a couple chooses not to litigate their divorce, it is advisable for both to retain the services of separate attorneys to provide guidance and support throughout the process. Their legal representatives can assist during settlement negotiations, and while protecting the rights of their clients, experienced divorce lawyers can provide valuable input. If there are stumbling blocks that prevent the spouses from coming to agreements on certain aspects, the lawyers can even arrange for the services of a qualified divorce mediator to facilitate negotiations.

Divorce: Couples in any circumstances can benefit from a prenup

California people who are considering marriage may have the misconception that prenuptial agreements are only required for those with considerable wealth. However, a person who is expecting a significant inheritance will not stand to lose it in a divorce; if it is not commingled with community property, it will be automatically protected. Compare that situation to a person with little or no assets who builds a successful business, a married couple that relocates to a different state with different laws or a person committing to a second marriage. For them, prenups could be invaluable.

If a person with a startup marries and his or her business becomes successful, the growth after the date of marriage will be community property under California law. As such, it will be divisible if the marriage comes to an end. If the couple had signed a prenuptial contract prior to taking their vows, they could have specified how they would treat the business if the marriage ends. It could remain the sole property of the business owner, or the couple could choose another way to with it in a divorce.

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