PROPERTY DIVISION IN DIVORCE IS ABOUT ASSET PRESERVATION

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One of the primary issues a family law specialist deals with in divorce is helping his or her clients resolve their financial issues.  An experienced family law attorney can help you not only divide your property and assets, but your debt and liabilities as well.  A divorce attorney will utilize the best methods to put your entire family in the best financial position possible as you move forward into unfamiliar post-divorce territory.

Sometimes the community possesses complicated financial assets, like investment and retirement accounts or stock options, and a forensic accountant might be brought in to help analyze, value, and divide your property.  A forensic accountant can help unravel the essential financial formulas that might affect not only the division of community assets, but also child support and spousal support.  Forensic accountants can be expensive, however, and they’re not right for all divorces.  In a divorce case, a little common sense can go a long way when it comes to dividing community property.  The key is to think about how you’re going to preserve what you have in this dramatically volatile economic environment we live in.

My belief is that we are in the middle of the greatest economic free fall that we’ve ever experienced in this country during my lifetime.  The United States Congress says that the U.S. dollar has lost 96% percent of its value since its inception in 1913.  Some economists say that we are in the middle of witnessing 90% percent of the global wealth changing hands of ownership.  Whose hands are your wealth going into?  Will you and your family have anything left?

The purchasing power of the U.S. dollar, which is what we live and eat on, is down to an all time low, so low, in fact, that the U.S. Congress is contemplating bringing back the gold standard to back it.  At this time, more than ever, income, expenses, assets, debts, savings, and investments, should all be at the forefront of the minds of family law attorneys helping you divide your community assets in a divorce.  If you as a divorcing spouse aren’t considering your personal state of financial affairs, as it relates to your family’s future financial reality, and the value of the assets that you can take with you in your split, you could be in for some major surprises and disappointment.

TRUE INVESTMENT CAPITAL ONLY COMES FROM SAVINGS

Unemployment in this country is at an all time high.  Even if you have a job, inflation affecting everything you buy probably keeps you from being able to actually save money.  One of the greatest issues for family law attorneys in dealing with divorce is financial disagreement between the spouses, which is compounded by the fact spouses just aren’t saving enough in real value, so they end up fighting each other tooth-and-nail to squeeze every ounce of wealth they can out of whatever community asset they have left.  So be it for inflated assets.  Sets of silverware are being split down the middle because divorcing spouses have not been saving.  They’ve barely considered the true valuation of their assets up to this point in their lives.

Savings are important because they form the cash cushion that gets us through difficult economic times.  We get the best value out of our assets by saving for them first.  A lack of savings is one of the major problems we face not only as individuals but as a country during these economically challenging times.  Economic researcher Chris Martenson, PhD, MBA, says that savings are important nationally because they are utilized for the formation of investment capital; that is, the property, plant and equipment that create actual future wealth.

Same thing applies to spouses in a marriage.  If you are going to want to be able to invest in the “property, plant and equipment” of your future, so you  have some future wealth to be able to preserve for your family, without having a giant debt load attached to it, you’re going to have to save for it first.  True investment capital can only come from savings.

INDIVIDUAL’S SAVINGS RATES AT ALL TIME LOW

According to Martenson, savings rates have plunged to historic lows, “levels last associated with the Great Depression.”  Martenson says the personal American savings rate has steadily declined in America since 1985 to the present.  The decline we have experienced as a country and as individuals has resulted from “a culmination of a multi-decade erosion of savings as a cultural attribute of American citizens,” Martenson says.  Now, many of you are realizing this in your own lives, where you’re having problems making ends meet on a week-to-week basis, with nary the time nor thought given toward investing in yours or your children’s futures.  The truth is, you can barely deal with financing the now.  And you’ve probably got a lot of debt to go with it.

Martenson, a futurist and co-founder at PeakProsperity.com, believes that what a history of persistently declining savings tells us is that there is an “implicit assumption” by the majority of people in this country that unlimited credit will be available in the future, and so we don’t need to save now.  We have assumed a lifestyle where we have largely substituted a “save and spend” mentality, with “a buy it now on credit” mentality.

All debt across all sectors in this country, and personal savings of individuals, shifted in opposite directions in 1985, with the gap widening dramatically ever since.  “Our national tolerance of debt shifted drastically upwards beginning in 1985 right as our national approach to savings was beginning its long decline towards zero,” Martenson says.

The marketing of our financial system has created in us a belief that in order to have a grander and brighter future, we are going to need more money, which equates to greater debt, so we can buy things.  We have become a country of mass consumers fueled by credit availability.  Everything is about beating the Joneses, now, the future be damned, and the Joneses have a lot of credit at their disposal.  The idea has been ingrained in us that low savings plus high debt equals prosperity, or what Chris Martenson calls, “at least a perpetual feature of our future economic landscape.”

THE BOTTOM LINE FOR DIVORCING COUPLES

The bottom line for most Americans has become that of low savings rate and high debt, which is a major problem because it means that most divorcing spouses have a very thin safety cushion to ride out the economic hardship we are experiencing at this time.  This equates to the fact that most people have failed to invest in their families’ futures.  Dealing with the present while preparing for the future has posed a difficult task for most Americans, and, as a result, divorcing spouses have little left to divide.  They’re not alone in this.  A lack of savings is a nationwide problem.

Our bottom financial line to get through these difficult times has to be pretty straight forward from here.  Save as much as possible, now, and get out of debt.  Many financial forecasters predict that a credit freeze is imminent.  Prepare for it.  Know the truth of what’s really going on in the world, and with our banks.  When possible, move those hard-earned savings into assets that will hold or increase in value during this time of the declining U.S. dollar.  The theory behind hard earned savings, and the investment thereof, should include a ‘smart plan’ on how to preserve those assets for future family needs.

 

 

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MEDIATION CAN HELP MINIMIZE EMOTIONAL DAMAGE TO CHILDREN OF DIVORCING PARENTS

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Does mediation help minimize the emotional damage children can experience when sharing in their parents’ divorce? You bet it does.

America has the highest divorce rate in the world, and it continues to climb. More than half of all U.S. marriages end in divorce. The rest end in annulment, or by death to one or both of the spouses. Not much of a choice. Divorce is the preferred method by most.

People who divorce experience many deep emotions that are associated with grief and loss. They suffer from anger, unhappiness, worry and wonder, among others, and these negative emotions can actualize during different stages at different times of the divorce.

Children of divorcing parents can be affected more than they might let on. A divorce of parents can present itself as a crisis in a young child’s life. It can be a jolt in routine and a time of unfamiliar transition and the child could have a difficult time adjusting to that new life’s situation.

Children can suffer serious consequences from their parents’ divorce, including behavioral, psychological, and emotional problems. Research has proven, for instance, that children with divorced parents are twice as likely to seek mental health treatment. They are more susceptible to depression and twice as likely to have behavior management issues. They will act out. Children who have experienced their parents’ divorce are also at risk for increased stress and tension factors.

When children are involved in divorces, they find themselves at risk for a kaleidoscope of emotional issues which can be traced directly back to their parents who are having problems dealing with their own emotions. The most common and complicated emotion experienced by both child and parent during divorce is anger. Ph.D, researcher and mediator Robert E. Emery calls this “a common reaction to grief and loss.” The theory is that if parents aren’t processing their emotions in a positive way, they are negatively affecting their children. They are causing more conflict and tension in the transition for the children who can become confused and upset about what is happening as their lives spin out of control around them. They have been overwhelmed by their unfamiliar circumstances and negative emotional experiences.

Experts write that the stress associated with divorce causes mood swings and triggers anxiety in children. In his book, The truth about children and divorce, Dr. Emery writes about divorce posing a challenging transition for the children to adjust to. But there is a way to avoid a lot of it. In response to concerns over the psychological well-being of children of divorce, researchers have also concluded that after being involved in divorce mediation, parents suffered from decreased levels of distress and anxiety, which directly benefited their children.

MEDIATION BENEFITS CHILDREN FOLLOWING THEIR PARENTS’ DIVORCE

Studies have proven that families can benefit by promoting the positive involvement of both parents in a child’s life following a divorce. This is where a good divorce mediator comes in, someone who can positively involve the parents and children in the divorce mediation process and beyond, to help communicate with each other re managing family conflict.

Research by J.B. Kelly shows that mediation can be helpful in resolving emotional and agreement issues in family conflict, which could have a positive impact on children’s adjustment to the divorce. A good mediator can help both parents and children in learning better skills to manage their emotional problems as they learn to deal with their new life situations.

The mediator can help you realize that as you proceed through divorce you will become keenly aware of and concerned about the affects your divorce is having on your children. You will come to understand that the most damaging aspect to your children is when they personally witness the exchange of hostilities and conflict between you and your spouse.

Research has proven that children who live with parental conflict have adjustment problems as they get older, which materializes in their lives whether or not their parents actually go through with the divorce. The bottom line is that it’s not the divorce itself that does harm to the children, it’s the parental conflict you play out in front of them. Under no circumstances should you argue or demean your spouse in front of your children.

FAMILY LAW MEDIATION IS GOOD FOR CHILDREN OF DIVORCING PARENTS

Brianna L. Nelson, BSW, LSW, presented a Clinical Research Paper entitled, Divorce Mediation and its Impact on Children, to the faculty of the School of Social Work at St. Catherine University and the University of St. Thomas, St. Paul, Minnesota. In her paper Nelson concluded that divorce mediation can be helpful and beneficial for families when resolving emotional and familial conflict, which could decrease the negative effects divorce can have on children. She came to the same conclusion many experts had reached before her. Family law mediation is good for children of divorcing parents. “Mediation is a confidential and voluntary process that helps the parties in conflict come to agreements without the use of the court system and expensive legal services,” Nelson writes. The mediator will be the one to facilitate the negotiation process.

https://sophia.stkate.edu/cgi/viewcontent.cgi?article=1242&context=msw_papers

Family law mediation is most common in divorce and child custody disputes, and to assist in the decision-making process regarding finances, parenting, and the division of personal and real property. The key advantages of mediation over litigation is in avoiding the stress, expense, and family divisiveness. Mediation should be less time-consuming and a more humane way to deal with your conflict resolution. Mediation focuses on resolving the conflict, where litigation focuses on stopping it.

As of 2018, children are becoming more involved in the family law mediation process. It provides an opportunity for the children to be heard, which is important for they are the ones most negatively affected by separation and divorce. Divorce mediation provides an opportunity to assess a child’s basic awareness of their parents’ divorce, and to help them resolve their issues in dealing with it.

Just like communication between spouses, mediation can increase communication between child and parent and it can improve the co-parental relationship, which all benefits your children. That’s why if you divorce, and you can communicate rationally with your spouse, you’re going to want to find an experienced specialist in family law who can mediate your divorce related issues. You’ll want to find a divorce mediator who can educate you about common concerns you and your spouse share regarding your children. Find a mediator with exceptional communication skills who can help you brainstorm your issues and resolve them. Find someone who is sensitive to your family members’ feelings of grief and loss. Remember, the whole purpose is for you and your children to be able to utilize the feedback received through mediation to help your family build a healthier and happier tomorrow.

 

HOW DO I FIND THE BEST FAMILY LAW MEDIATOR TO SETTLE MY DIVORCE?

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You’ve already made two important decisions with your spouse like agreeing that it’s time to get a divorce. The two of you also communicated well enough to agree on mediation rather than litigation, but you and your spouse are miles apart regarding other important issues like the custody and support of your children and the division of the community assets accrued during the marriage. Your spouse claims he wants to take the children back east to live with his family, but you’ll have nothing to do with that. But you will claim a half share of his pension, you want to keep the family residence for the kids and you to live in, and you want your spouse to assume all of the community debt and take that back east instead of the kids.

You and your spouse have major disagreements as to how the life of your family as a whole and the lives of each individual member shall continue down the road. That may be why you’re getting a divorce in the first place. Who’s going to help you resolve these major issues in a fair and equitable manner is an important question to answer. And how do you find that person who possesses the requisite skills and experience to be able to guide the two of you and your children into the best possible position to succeed in what has become a very tumultuous and challenging economic time period in all of our lives? These are questions that have to be asked if you’re going to find the right mediator for your family.

Your divorce mediator should be competent and qualified to resolve the financial issues that are unique to your specific situation in the realities of today’s world. The divorce mediator needs to understand your family issues in dealing with the children and custody so that all parties will win. You’re going to want to find someone who has the years of training, education, and experience to identify the issues regarding the financial and tax considerations involved with dividing up the family business, retirement and / or investment accounts.

You’re not going to want to leave your divorce up to an inexperienced mediator. You’re not going to want someone involved who’s inexperienced in family law matters. You’re going to want to have the best and most experienced family law specialist your money can afford who has a reputation within the legal community for possessing the skills to mediate and cajole two parties into a fair settlement agreement. Your success in the mediation process lies squarely on the experience level and competency of your mediator to bring about a mutual settlement agreement, and you have the control of that. So how do you find such a person?

Take the time and do the research. Your family’s future life depends on it. If you already have an attorney, ask that attorney who they might recommend to mediate your divorce. Maybe you know someone who’s recently gone through a divorce, and they’re pleased with how their attorney handled it, and see if you can speak with that attorney. If not, see who the opposing attorney was. Take the extra step to speak with as many successful family law knowledgeable persons as possible. Interview them. Ask questions and get answers. Take notes. Get professional legal opinions and use them as advise toward helping you make the important decision as to whom you’re going to hire. That’s smart business sense. Take your attorney-shopping seriously.

When considering prospective mediators, keep in mind the following 5 important points:

1) Peaceful high quality mediation is considered a blessing in family law circles.

It is difficult to find the right attorney who possesses sufficient family law experience and people skills to mediate divorce to fair settlement agreement. Peaceful high quality mediation creates a people friendly environment providing great opportunity for turning sit-down meetings into final agreements. Find a mediation attorney who knows how to make peace with others. Find a family law mediator who knows how to transform peace of mind into fair settlement agreement.

2) Cost effectiveness and fair results in any settlement agreement are essential.

Ask your prospective mediator what they anticipate the mediation process will require in your case to bring it to a close to your satisfaction. You need legal completion in this matter and you want to make sure this mediation lawyer prospect will bring that quality to the table. How much money does the potential family law mediator believe the mediation process will cost you? How long will it take reasonable parties to reach a successful settlement agreement? Of course yours and your spouse’s willingness to cooperate and compromise with each other, and to communicate your differences will play a critical role in any effort to reach agreement. But, again, one of the major points to consider in mediation is saving money. Mediation can be more satisfactory than litigation, if you do it right.

3) Your Divorce Mediator must be thorough and any settlement agreement must be in the best interests of all parties concerned, and that means the children.

You want a divorce mediator who’s been doing family law for a while. You want someone who’s had many life experiences, which probably includes having a family and children of their own; a family law attorney who from personal experience can empathize with what you’re experiencing personally in your divorce. Is your potential mediator a person who is in tune with the world as it revolves very fast around them at this time? Or does this attorney have their proverbial head in the sand on important social issues? A family law mediator should be someone who strives to understand the issues of the world as it relates to the needs of your children and their parents, and how that relates to your soon to be changed-for-good life after divorce.

4) It is important to choose a Divorce Mediator who can utilize heart, knowledge, and experience while working to help you resolve your unique family law issues.

You can’t have a robot regurgitating the law back to you if it has no practical application toward the realities of your personal situation and where you go from here. You need someone who can assist you and your spouse and lead you to that higher step; someone who understands what it is like to be you, to feel your pain, to know your desires of what your future happiness really means in the family law arena. Experience can be summed up in a prospect mediator’s CV or resume. Knowledge comes in many forms and can be applied to creating greater understanding leading to ultimate agreement in your case. Understanding many different aspects of life, and being able to utilize learned skills and crafts from these many aspects, can be important in helping someone to better facilitate equitable agreement in any form. Knowledge plus experience equals understanding. And throw in a little heart, which is sometimes a unique experience in the family law industry, then you and your family can realistically set out with hope for a future filled with prosperity and good health. It helps to have a mediator who understands this.

5) If you research the Internet be sure to seek a divorce mediator not business or general mediator.

You want the best brain surgeon for brain surgery, but probably not to deliver your baby or fix your speech problem. You’ll leave that up to other kinds of specialists. Same thing for family law mediation. You need someone who lives and breathes family and law. If your search for a family law mediation specialist is being done on the Internet, search for family law specifically, not mediators in general. Mediators specialize in bringing about resolution and agreement to disputes. It’s an alternative form of dispute resolution. Mediators are generally trained with skills in bringing about resolution without any specific application to family law understanding. You want in a mediator someone who lives, breathes, and mediates family law, someone who understands how it is to mediate a family law matter to a reasonable conclusion.

WHAT IS FAMILY LAW MEDIATION?

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What is divorce mediation?

Family Law mediation is one of the more common methods of negotiating to settlement the legal issues that arise in a divorce. It is not going into court and litigating each issue tooth and nail. In divorce mediation matters, you and your soon-to-be-ex-spouse may hire a specialist in family law as mediator, someone who will meet with you in an effort to resolve your differences and come to a negotiated agreement. The family law specialist acts as mediator and facilitator who will help you and your spouse resolve your issues in a fair and equitable manner.

Mediation of a divorce is an important option both parties should consider as it saves costs and stress for both parties. Mediation is designed to help both parties and has a long list of benefits for families. The benefits include, but are not limited to:

• Mediation usually costs much less than litigation which may require a series of court hearings.
• With your direct participation, mediation should result in a comprehensive settlement of all the issues in your matter.
• Mediation is confidential, meaning there is no public record of declarations or financial information.
• A lawyer of your choice can still give you legal advice during your mediation.
• Your spouse and you are in control of the entire process of mediation.
• The mediation process allows time for you to improve communication with your spouse.
• Mediation will help minimize the emotional damage children may experience during their parents’ divorce.
• Maybe most importantly, mediation allows you to negotiate the terms of your agreement based on your own ideas as to what is fair in your situation and what is best for your family as a whole as opposed to having a solution imposed upon you by a family law judge that is based upon impersonal legal principles.

Mediation is not for all divorcing couples. Matters where there is a history of domestic violence or an imbalance of power between the parties may not be right for mediation. But if your spouse and you are willing to communicate and compromise with each other in a rational manner with open minds you could mediate.

Your Divorce Mediator should be a specialist in family law who will help the two of you stay on track with the issues and in tune to one another, to listen to each other, to respect and understand each other’s opinions. It is important to listen to your spouse’s perspective and to be willing to compromise. Compromise is key to reaching a fair and mutually beneficial settlement in the mediation process.

Being able to empathize with your spouse’s position is important. Hopefully your spouse will do the same. They will feel what it’s like to be you. The idea is that you reach an agreement based on trust and understanding where both of your best interests, and those of the children if there are any, are taken into account and addressed.

This mutual understanding will be drafted by the mediator into a settlement agreement. If children are involved, a parenting schedule or a parenting plan will be needed. Other legal documents will be drafted such as a Petition for Dissolution or Legal Separation, and Financial Disclosure documents. The mediation process allows you and your spouse to decide the terms to live by in a divorce, terms that you agree to live by, without your family having to suffer through the negative emotions and financial costs of a courtroom trial.

MOVING AWAY WITH YOUR CHILDREN FROM CALIFORNIA

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Often in divorce cases, one parent may be from another state, or, after separating from their former spouse, may want to move with their children to another state for relationship, family, or job purposes. In California, there are a litany of cases that have been handed down regarding this issue.

One of the more important move-away cases recently decided in California was IRMO LaMusga (2004) 32 Cal.4th 1072. In LaMusga, the California Supreme Court laid out a clear and logical set of criteria for parents and trial courts to consider in move-away cases.

These include:

  • commissions children’s interest in stability and continuity in the custodial arrangement
  • distance of the move
  • age of the children
  • children’s relationship with both parents
  • relationship between the parents including ability to communicate
  • wishes of the children if they are mature enough
  • reasons for the proposed move, and
  • extent to which the parents currently are sharing custody.

It’s been debated as to whether this is in fact is the right balance for California courts to reach regarding move-away cases. But one thing that stands clear is this: California Family Law courts have the broadest discretion when their main consideration in deciding the case is the child’s best interests.

This means that the decision regarding your family virtually rests entirely in the hands of the judicial officer involved. Additionally, and probably most important to remember, some judicial officers – and entire counties – have established perspectives as either being for or against move-aways. So if you are considering such a move with your children, make sure your family law attorney is aware of any such pattern within your community.