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The Seven Deadly Sins of Mediation and How to Avoid Them

If you’re going through a child custody dispute in California, the chances are high that you will need to attend mediation at some point in your case. Mediation is a confidential process whereby court appointed mediators assist parents in working out a custodial plan that supports the child’s needs, as well as those of the parents. Whether your case is out of a reporting county or non-reporting county, you will do yourself well by avoiding the following missteps:

1. Treating the Other Parent as The Enemy

I address this one first because it is the most common, and most tempting, mistake to make. If you find yourself referring to “your” kids/responsibilities/burdens/obligations or “his/her” mistakes/failures/problems/issues -- Stop. Right. Now. These are not just your kids, but children you share with another human being.

No matter what your opinion is of this person, you need to be “we”-focused and results-oriented. Be an adult, and look for solutions that involve both parents, rather than pointing your finger at the other party.

2. Gratuitous Insults

Using mediation as an outlet to voice your ambiguous and overgeneralized complaints (“He’s a deadbeat dad” or “She’s forty going on twenty-one”) just makes you look like an immature parent with an ax to grind. If you believe the other parent is doing something that’s hurting the kids, express your concerns constructively: “I believe Joe’s/Jane’s conduct is negatively affecting the children because [insert concrete and meaningful examples here.]”

3. No Game Plan

So, you currently see your kids for a few hours a day, once per week, and now you want equal custodial time. First of all, good luck with that one. Second, how are YOU going to make that happen? Are you able to arrange your work schedule accordingly? How will you find the time to take the kids to/from school, ensure they eat sufficiently nutritious meals, get them to soccer practice, see that they complete their homework, etc.? Have you considered the realistic consequences of this change, especially on your children? If you have not, and cannot do a half-way decent job spelling out your intentions to another person, you will look like an unprepared tool who is just seeking to increase/decrease child support. Take the time to plan out your proposal, write it down, and take your notes with you to mediation.

4. Lack of Focus

Why are you at mediation? Here’s a hint: it’s not to complain about the 1001 ways your ex screwed you over, or how you can’t stand the new girlfriend/boyfriend. Save those discussions for your therapist, and stay focused on issues concerning the children.

5. Going in with a Bad Attitude

Are you annoyed by the thought of a complete stranger sizing you up as a parent in less than an hour and possibly effecting substantial changes to your life? Here’s the good news: mediation is not the final step. The mediator is not the All Mighty. You will still be afforded your day in court. Try to relax and focus on putting your best face forward, and again, be resolution-focused.

6. Emotional Outbursts

This should go without saying, but no one was ever served well by dropping an “f-bomb” during mediation. Try to get the profanity, crying, eye-rolling, arm-crossing, lip-pursing, and the like, out of your system before your appointment.

7. WTF Attire

Like everyone else on this planet, mediators WILL form opinions about you before you before you even say one word. With this in mind, there’s a time and place for stripper heels and sweatpants (caveat: never together), but mediation is not one of them (neither is court). Dress like a fully-functioning adult who appears to be a contributing member of society. Your goal is to look as least offensive to the general public as possible. This essentially means to dress business casual, and to shower ahead of time. To clarify, for men that means dress slacks, a collared shirt, and dress shoes and socks. For women, think dress pants or knee-length skirts/dresses, a “modest” (read: uninspired & non-provocative) blouse, and a pair of unassuming dress shoes, or, almost anything out of the JC Penney Liz Claiborne Collection. Remember, it’s only for a few hours. You can throw on the ripped jeans and Britney Spears concert T-shirt afterward.

Good luck and . . .

FOR THE LOVE OF ALL THINGS GOOD, PURE, AND SANE, DO NOT SIGN ANY AGREEMENT BEFORE DISCUSSING IT WITH YOUR LAWYER FIRST!

Determining Who Gets the House in a Divorce

California is one of only a few states in the country that use community property rules when deciding how assets are divided in divorce. To put it simply, property gained or improved during the marriage will be split as evenly as possible; the same is true for marital debt.

For many divorces sorting through and splitting much of their property isn’t much of a problem, but once the family home is on the table, matters can escalate quickly. And it makes sense that they should. Your home is probably your most expensive asset and everyone in your family depends on it. So who is going to get it when the divorce finalizes?

Deciding Factors the Court Will Review

Unless you and your spouse worked out ahead of time who gets your family home and why – this would be a considerable stroke of luck – a California divorce court is going to have the final say in the matter. Knowing what the court is looking for when coming to its decision can help you gain an advantage and increase your chances of keeping the house you put so much time and energy into.

Some of the factors the court will consider are:

  1. Separate or community: First of all, what kind of property is your home: separate or community? And are you certain? Separate property is what belonged to just you or just your spouse before you got married, and sometimes specific inheritances and gifts. Community property is what you purchased together, or improved together while married. Your ex-spouse may have owned their home before you even met them, but if you contributed to the household significantly during the marriage, it could have been changed into community property in the court’s eye.
  2. Child custody: The divorce court’s credo may as well be “best interest of the children.” Whenever two parents divorce, each decision needs to weigh how it will affect their children. This is true for deciding who gets the family home. The parent who earns primary or sole custody rights is more likely the one who keeps the home because it eliminates the stress of moving, possibly to a new neighborhood or city, that children can experience.
  3. Practical considerations: How much money has been put towards the home so far? How much still remains before it is paid off? What is the mortgage amount right now? The court needs to consider whether or not each spouse can afford to keep the home, or if any of them can on their own. If not, it could be more practical just to sell the property and evenly divide the collected value.

Room for Explanations & Arguments

Nothing is set in stone when it comes to legal matters, no matter how serious the legalese on the paperwork. If you are worried that your family home will go to your ex-spouse instead of yourself, don’t just sit idly by and let it go away. Make an argument as to why you should keep the home, refine it, and bring it to court. You never know what will influence the judge to see things your way.

At Holstrom, Block & Parke, APLC, our Southern California divorce attorneys can help you understand your property rights and compete for your family home. With more than two centuries of total legal experience focused primarily on family law, you know you can trust us when it comes to even the most complicated of divorce cases. Contact our firm today and ask about scheduling a free consultation over the phone.

Bankruptcy During Divorce: How They Interact

If you need to file for divorce, you might be understandably hesitant to see what the future holds for you. Regardless, you have it under control and you can get through it. Or maybe you need to file for bankruptcy? It is an intimidating process that can be rife with complications but, once again, it is nothing you can’t handle. But what happens if you are going through a divorce and need to file for bankruptcy? Now things are getting trickier.

How to Reduce Your Filing Costs

Many people who were in a financially stable position are actually driven towards bankruptcy as a result of divorcing. Others are already in financial straits before divorce is brought up. In either situation, going through bankruptcy before finalizing your divorce could potentially save some money.

If your soon-to-be ex-spouse files for bankruptcy with you, it can count as a joint bankruptcy filing. This will essentially save you 50% on bankruptcy filing fees because it is just one process, rather than two separate ones. Deciding to stick together one last time to complete a joint filing can also make debt division and property distribution much easier since everything that could be collected by creditors in your bankruptcy will already be gone and not pending division. On a more positive note, a joint filing often doubles the exemptions granted to the bankruptcy petition, allowing you to keep more of your property than if the both of you filed separately.

Fast & Slow Bankruptcies

You must also consider which form of bankruptcy you are going to use to resolve your debt issues. If you are filing for Chapter 7, sometimes called liquidation bankruptcy, it could be over within the year, so you could file for bankruptcy first, complete it, and then divorce without dragging things out for an extended period of time. On the other hand, Chapter 13 bankruptcy always relies on a debt restructuring plan that is paced out over three to five years. If you are planning on divorcing and need to use Chapter 13, the divorce should come first, or else youwill be waiting a couple years at least.

Passing the Means Test Due to Divorce

Chapter 7 bankruptcy is a powerful tool that can wipe out huge portions of debt entirely. In order to make certain the people who really need it are the ones who use it, a means test is required for eligibility. Petitioners who make more than the average household in their state, based on annual incomes and earnings, will fail the means test and cannot use Chapter 7 bankruptcy.

How does divorce relate to the means test? If you aren’t divorced and file a joint bankruptcy, your combined incomes may cause you to climb over the statewide average, and you may fail the means test. If you finish your divorce first, you can file separate bankruptcies and only your income will be measured; feasibly, this could cause you to drop under the average and pass the means test, enabling Chapter 7 bankruptcy.

Sort Through the Complications with Confidence

In all the many ways that divorcing can affect bankruptcy, and vice versa, the common theme is intricacy. You will need to know what you are doing, where your end goal remains, and how it is going to affect your family. Let Holstrom, Block & Parke, APLC and our Southern California divorce attorneys be the ones to help you make sense of the complexities and make the decisions that benefit you most.

300+ years of combined legal experience can be on your side – contact us today.

Judge, He Looked at Me Funny: What Constitutes Domestic Violence?

by Chandra Moss

The issue of domestic violence has been at the forefront of headlines over the past few months, especially in the celebrity world. California law provides that a court may issue a protective order prohibiting an individual from "molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning . . .contacting, either directly or indirectly, by mail or otherwise . . . disturbing the peace of the other party." California Family Code §6320 (part of the Domestic Violence Prevention Act [DVPA]). As a result, abuse under the DVPA includes physical abuse or injury, as well as acts that "destroy the mental or emotional calm of the other party." In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497.

Attacking, striking and other forms of personal contact and battery are clearly acts of domestic violence under the DVPA, including Johnny Depp’s alleged throwing of a cell phone into Amber Heard’s face. What becomes a little more fuzzy are claims of mental and emotional abuse, in tandem with “controlling behavior”. California Courts, have, however, noted in In re Marriage of Nadkarni, cited above, that mental abuse is relevant in a DVPA proceeding. California Courts have ruled the following may constitute domestic violence:

  • Accessing and threatening disclosure of private emails. (Nadkarni)
  • Repeatedly contacting an ex-partner electronically after being told to stop. (Burquet v. Brumbaugh (2014) 223 Cal. App.4th 1140)
  • Downloading and disseminating text messages. (In re Marriage of Evilsizor and Sweeney (2015) 237 Cal. App.4th 1416)
  • Forcing a partner to keep a telephone line open so her activities could be monitored, threats to beat a partner, practicing marital arts in close proximity. (Rodriguez v. Menjivar (2016) 243 Cal. App.4th 816)
  • Threatening over social media. (Rodriguez v. Menjivar)

Other instances of domestic violence include financial abuse/control, punching holes in walls, throwing objects (without necessarily hitting an individual), threats of violence and the like. If you are unsure whether you are the victim of domestic violence, or if you know you are, please call our offices. We can help.

How to Make a Prenuptial Agreement in California

Premarital agreements – sometimes called prenuptial agreements – are supposed to help married couples avoid unnecessary conflict if they ever decide to divorce. Planning out what will happen with marital assets and responsibilities ahead of time should, in theory, save time and money. However, just bringing up the idea of premarital agreements can spark heated debates and arguments that lead to serious family law disputes.

In order to try to prevent these preemptive conflicts, California adopted its own set of prenuptial agreement laws and rules based on the Uniform Premarital Agreement Act. This legal act paints a clear picture of what is and what is not allowed for a premarital agreement to be acceptable in court.

Main components of the Uniform Premarital Agreement Act are:

  1. Full disclosure: Marital assets and separate property cannot be properly divided or protected if they are not fully understood. Each spouse needs to make full disclosure of their finances, property, debt, and any other piece of property that could be pertinent in the divorce process. Hidden assets will inevitably be discovered, and the spouse that tries to hide them may lose credibility for doing so.
  2. Financial advisors: Although not necessary, in some cases involving significant amounts of finances or assets, each spouse will be advised to consult a financial advisor while drafting their prenuptial agreement. This will act as an additional safeguard against unfair or unbalanced divisions, as well as reducing the risk of inadvertently hiding an asset.
  3. No duress: Any evidence of emotional or mental duress, or even physical intimidation, cannot be present when a premarital agreement is signed. People who are under stress to may not be able to make sound decisions, even if explanations and evidence are laid out clearly in front of them. If such duress exists, the signing must be postponed pending further review.
  4. Premarital: It may seem self-explanatory but a prenuptial agreement needs to occur before the marriage becomes official. This clause is meant to clearly differentiate premarital agreements from postnuptial ones.

Retain Separate Counsel to Protect Your Best Interests

California’s own draft of The Uniform Premarital Agreement Act requires that both spouses use separate counsel when creating a prenuptial in order for many of the common provisions to be considered enforceable. With a family attorney of your own guiding you through the process of drafting the agreement, you can rest easy knowing that you won’t be making any major oversights or mistakes. As with any legal process, having a friend in the court or conference room can be a boon.

You can contact Holstrom, Block & Parke, APLC and our divorce attorneys in Southern California if you need to make a premarital agreement. We will bring more than 300 years of combined family law experience to your case, working diligently to always protect your best interests.

We Don't Need No Stinkin' Prenup: Lessons for Johnny Depp

by Chandra Moss

As most persons have “heard” by now (pun intended), actors Johnny Depp and Amber Heard went through a heavy divorce battle. Unfortunately for Mr. Depp, per media reports, the parties did not sign a prenuptial agreement. Why unfortunate? Because under California’s community property laws, Ms. Heard may be entitled to one-half of all property and income accrued during the short fifteen month marriage.

What is a prenuptial agreement? Under California law, prior to marriage, parties may agree to limit the effects of the state’s community property rules. For example, they can decide what current and future property remains the separate property of a party, waive apportionment of increases in value of businesses during marriage and determine whether future wages and salaries are a party’s separate property and not amenable to division.

Parties to a prenuptial agreement may provide for a method by which community property is obtained, how community expenses are to be paid and whether or not there is a “minimum” community property estate – in other words, a minimum amount of a person’s separate property which would be community upon divorce. Parties may even negotiate, limit or waive spousal support, or alimony as it is often called. These limits might include the maximum amount of total spousal support payable or the term for payment of spousal support.

In Mr. Depp’s case, he may well rue the lack of a prenuptial agreement protecting his estate. Consider this:

  • During his short term marriage to Ms. Heard, Mr. Depp worked on two notable major productions – “Pirates of the Caribbean: Dead Men Tell No Tales” and “Alice Through the Looking Glass”. Not only might he be on the hook for giving Ms. Heard 50% of his wages, he may also be paying her 50% of the residuals. Residuals are like a royalty paid to a performer for repeat of the production.
  • Mr. Depp is no doubt the high wage earner of the duo. While this marriage is considered short term by the Court (and therefore spousal support is generally paid for half the length of the marriage), he could be paying out big time to Ms. Heard. The Court might not have issued a spousal support order on an emergency basis, but you can be sure the issue will be “heard” at some date in the near future.

This by no means is a full recitation of what Mr. Depp stood to lose for his failure to plan. While most of us don’t have quite so much to lose, considering a prenuptial agreement to protect separate assets, limit alimony liability and to reduce future litigation can save headaches and costs in the event of a dissolution. If you have any questions about the advantages preparing a prenuptial agreement, please give us a call.

Can a Couple Use the Same Lawyer for a Divorce?

Going through a divorce is going to cause some ripples in your life and probably some troubles and frustrations. If you want to do everything you can to eliminate as many obstacles as possible, can you and your soon-to-be ex-spouse agree to use one divorce attorney for each of your legal counsel? In most cases, the answer is no.

Oppositions & Conflicts of Interest

Even if your divorce is uncontested, meaning you and your spouse agree on all the important terms and conditions, you are still both technically on opposing sides of the courtroom. Any attorney that represents one of you will not be permitted to also represent the other because this would create a conflict of interest. Imagine how absurd it would be for both the defense and prosecution to be handled by just one lawyer; family law courts would see the same absurdity in a case where two spouses shared one attorney. Basically, if there is a possibility of a serious conflict of interests, any decisions or agreements made could be subject to undue influence, and the court can’t accept it.

Divorcing with Neutrality

You cannot go into court both sharing one attorney, but what if you don’t rely on the courtroom to settle your disagreements? If you decide to use mediation and come up with a divorce agreement in a conference room instead of a courtroom, you are looking at an entirely different legal situation than before. During mediation, you can use one attorney, but that lawyer isn’t representing you or your ex-spouse. Instead, the family lawyer overseeing your mediation acts as a neutral party that helps each but fights for neither.

The responsibilities of an attorney-mediator include:

  • Explaining the nuances of family law
  • Ensure all paperwork is completed accurately
  • Checking finances for full disclosure
  • Discuss potential points of contention
  • Ease tensions and encourage collaboration
  • Draft final divorce settlement agreements

Remember that an attorney-mediator is working in total confidentiality and not technically for either spouse. If you want them to testify in court later for you, there is nothing that says they have to. In fact, most won’t and the court won’t want them to because that would create a new conflict of interest.

If you think that mediation might be the solution you are looking for in your divorce process, contact Holstrom, Block & Parke, APLC. Our divorce lawyers represent clients all throughout Southern California and bring 300+ years of total family law expertise to each case we handle. We look forward to helping you.

The 9 Essential Steps to Estate Planning

While most people are aware that an estate plan is something they should have, many believe that simply creating a will or trust is all they need to secure their future. While these documents are indeed important, they are not catch-all solutions to all of the potential issues that can arise in the event of your incapacity or death. To ensure your future and family are protected, be sure to consider the following checklist when creating your estate plan.

  1. Draft a will: The backbone of your estate plan is your last will and testament. This document will allow you to provide instructions to your family on how you want your property to be distributed in the event of your death, as well as name beneficiaries and guardians to care for your minor children in your absence.
  2. Create a trust: Holding your assets in a living trust will allow you to ensure they are smoothly transferred to your chosen beneficiaries at the time of your passing rather than being collected and distributed through probate, a notoriously expensive and frustrating process. Living trusts can be used to transfer real estate, savings accounts, mutual funds, and certain other investments to your beneficiaries with ease.
  3. Create health care directivesAdvanced health care directives such as a “living will” allow you to provide instructions to medical personnel regarding the treatment you would like to receive in the event of your incapacity, such as whether or not you want to be put on life support.
  4. Create a financial power of attorney: Similar to a power of attorney for health care, a durable power of attorney for finances allows you to grant someone the power to handle your financial and property matters if you should become incapacitated.
  5. Protect your children’s inheritance: If you have minor children, you should name a trusted adult who will manage any property or money you leave to them until they are of age. This person may be the same as the guardian you have designated in your will.
  6. File beneficiary documents: Bank accounts, retirement plans, stocks, bonds, and brokerage accounts can be made to immediately transfer to a designated beneficiary and skip the probate process in the event of your death by filing beneficiary forms with their respective managing institutions.
  7. Consider purchasing life insurance: There is a possibility that you may owe significant debts or estate taxes when you pass away. If you have young children or own a home, purchasing a life insurance policy may be wise to protect them against these expenses.
  8. Make funeral arrangement: Document your wishes regarding organ and body donation as well as whether you want your body to be buried or cremated. Likewise, create a payable on death bank account with funds to be used to cover your funeral and burial expenses.
  9. Establish a business succession plan: If you own a business, be sure to consider its future in your absence. Creating a thorough succession plan or buyout agreement can help ensure control of your business is transferred to the appropriate parties in the event of your passing.

While nobody ever wants to entertain the thought of their own passing, it is an inevitability which must be planned for ahead of time. At Holstrom, Block & Parke, APLC, our Southern California estate and probate lawyers can provide the steadfast guidance you need to create a comprehensive estate plan with ease. From creating wills and trusts to establishing guardianships and more, we have what it takes to help you achieve peace of mind.

Call (855) 747-6225 or fill out an online form today to schedule your free phone consultation.

Do's and Don'ts of Custody Mediation

by Chandra Moss

In California, anytime custody is an issue in a family law matter, the parties are required to go to mediation. In some counties, mediation is simply a forum in which a neutral third party helps the parents to work out an agreement. However, there are some counties where the mediator makes a recommendation to the judge. That recommendation can set the tone for your entire litigation. So how do you make the best of what could be a bad situation?

Consider the following:

DO make sure your paperwork is complete if you are the moving party. If you are the responding party make sure you have filed and served your responsive papers prior to mediation.

DO be on time. The mediator’s schedule is usually jam-packed and often, if you are more than a few minutes late, you will not be seen.

DO make all your remarks to the mediator child focused instead of “me” focused. Remember this isn’t about your “rights” as a parent. It’s about the children, your relationship with them and your ability to co-parent.

DO ask for separate mediation if domestic violence is involved in your relationship. You do not have to sit in the same room with your abuser.

DO come into mediation with a custody plan and logical reasons why it should be implemented.

DO talk about the children as “our” children. This takes practice, because we all conversationally refer to them as “my kids”. The explanation is below under DONT’S

DO make sure you get a good night’s sleep before mediation. It might be difficult, but you want to make sure you are alert and responsive to the mediator’s questions. Also make sure you have eaten decently so that you are able to concentrate on the mediation process rather than how empty your stomach is.

DO be polite. You don’t have to be best friends with the mediator, but neither do you want to be on the mediator’s bad side.

DO ask your attorney to help you prepare for mediation. The hour or so spent on preparation is well worth the cost.

DON’T be obnoxious, argumentative or interrupt the other parent. Those tactics usually backfire, with the mediator believing you are the problem.

DON’T point fingers at the other parent or engage in the blame game. Yes, there are times when you need to point out that the other parent has a substance abuse problem or is a danger to the children, but think about couching issues in child focused terms. For example, “Jane is a good mother, but I feel sometimes she lets her need for alcohol overshadow the children’s needs” as opposed to, “Jane is a drunk”. Use “I” statements.

DON’T lean forward, loom, or stare at either the mediator or the other parent. Intimidation tactics, while they might work in the boardroom or during a sporting event, do not work in the context of custody mediation.

DON’T sign anything in mediation without consulting your lawyer, if you have one. Once you sign on the dotted line, it makes it difficult for your lawyer to argue against the recommendation if 1) you change your mind; or, 2) you forgot an important provision that needed to be made.

DON’T talk about wanting 50/50 time shares or any percentages of timeshares. That raises a red flag to the mediator that you are only in this for a reduction/increase in child support, since part of the child support calculation is how much time each parent spends with the children.

DON’T talk about “my rights”. Ever. The mediator and the judge don’t care about you or the other parent – they care about your children.

DON’T refer to the children as “my” children. Another red flag for the mediator – someone who seems possessive of the children will not be found to be the parent who fosters a relationship between the children and the other parent – one of the statutory factors the Court must consider when fashioning a custody order.

DON’T dress like you’re going to wash the car or headed out for a night on the town with the girls. Looks may be deceiving – underneath the oversize T-shirt and low slung jeans might lurk the heart of a great parent, but a mediator and/or judge will have a difficult time seeing past the image you project. Dress business casual, get a haircut, cover your tattoos. And please, do not wear flip-flops!

This is not an all-inclusive list. Keep in mind that above all else, the mediator is looking out for the best interests of the children. You can help the mediator achieve that goal by presenting the best you.

When Does Child Support Begin After Divorce?

One of the most frequently asked questions regarding California divorce law regards when a parent is required to begin making child support payments during the divorce process. Do payments begin right away? Should parents wait until a court order is issued? Is it considered abandonment if a parent does not pay child support during the separation period? The answer: it depends.

Child support actions typically begin when married parents file for divorce. Once the request for child support is filed, it must be served to the other parent. The receiving parent generally has 9 days to respond before a hearing is set to issue a temporary order. The court will review each parent’s paperwork, listen to testimony, and issue a support decision. This decision will be memorialized both verbally and on the court’s record.

Generally speaking, the sooner a case is filed, the sooner the courts will set a temporary support obligation for the paying parent. This order can usually be obtained within 60 days of filing for divorce, though delays can occur if the seeking parent fails to properly complete the support request or the paying parent does not properly or honestly complete their income and expense declaration.

Legally, you are not required to make child support payments to your spouse unless the court orders the payments. While parents are always free to make arrangements and offer agreements on child support on their own, the court retains the final word for the best interests of the children.

Child support actions, while seemingly simple, can expose parents to numerous frustrations and pitfalls if not handled by an experienced attorney. Whether you are looking to pursue child support from your child’s other parent or are concerned about being required to pay an unfair amount, the Southern California divorce lawyers at Holstrom, Block & Parke, APLC can provide the strong guidance you need to ensure your best interests are guarded.

To find out more about what our 300 years of combined family law experience can do for you, call our office today at (855) 747-6225.

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