Category Archives: Divorce and The Law

Limited Scope Representation and Collaborative Law Featured at October Luncheon

Robert Hawley speaks with CDSOC members and guests at its October luncheon. Photo: Diana L. Martinez

Robert Hawley, former Chief Labor Counsel, Deputy Executive Director and then Acting Executive Director of the State Bar of California, addressed members of Collaborative Divorce Solutions of Orange County and guests at the organization’s monthly luncheon on October 11.

Mr. Hawley shared his expertise to a full house luncheon honoring former CDSOC president and dear friend, Tracy McKenney who passed away on September 22, 2016.

Robert Hawley began his legal career as a disciplinary prosecutor for the State Bar.  He then entered private practice for over ten years representing management in labor and employment matters before state and federal courts and administrative agencies.  He served as a member of the State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) as well as its Chair and Special Advisor, as a hearing officer in the former voluntary State Bar Court, as a frequent MCLE speaker, and as a qualified expert witness in professional responsibility and labor law matters.  Mr. Hawley has taught Professional Responsibility and labor law at various Bay Area law schools for the past twenty-five years, and is currently on the adjunct faculty of Pacific McGeorge School of Law. Mr. Hawley is the recipient of the National Organization of … Read More “Limited Scope Representation and Collaborative Law Featured at October Luncheon”

The Effect of California Propositions 60 and 90 on Your Divorce

Get advice from a skilled family law attorney, financial professional or qualified real estate agent to make good decisions about your property when facing a divorce.

by Diana L. Martinez
Collaborative Lawyer and Mediator, West Coast Law & Mediation, APC

When you are trying to navigate a divorce, there are many issues you need to address. If you own property in California, your decisions about your real estate can be among the most challenging, and perilous, if you are not fully informed.

One area often overlooked when making decisions about real property are the tax consequences. The tax implications can end up making a significant impact on your financial well-being, especially if you are part of the current wave of “gray divorces” among adults 55 years and older.

Many older couples who own property qualify for a lower property tax rate under California’s original Proposition 13. At the discretion of each county in California, Proposition 60 and Proposition 90 allow qualifying sellers to carry their Proposition 13 tax base on their original property with them towards the purchase of a new property of equal or lesser value. (Prop 60 governs real estate sales and purchases in the same county; Prop 90 governs real estates sales and purchases between two California counties).

Proposition 13 protects longtime homeowners against escalating property taxes as the value of their property … Read More “The Effect of California Propositions 60 and 90 on Your Divorce”

Your Six Different Divorce Alternatives

You have choices in the way you pursue a divorce in California. Collaborative Divorce in Orange County. 949-266-0660.

by Leslee J. Newman, CFL-S, Family Law Attorney
Orange, California

1.  Self-Representation (“Pro-Per”)

Both parties may consult with attorneys, but decide to represent themselves in or out of court. Both parties are ultimately responsible for the agreements and paperwork that goes to the court for filing including the final Judgment.

2. One-Party Representation

One party is represented by an attorney and the other is not. Generally, the party who has the attorney is responsible for drafting the paperwork, and the unrepresented spouse would get advice as to what he or she wants included in the final Judgment.

3. Both Spouses Have Representation

Both spouses have their own litigation counsel, and try to settle parts of the case through settlement discussion. If they are unable to settle some or all of the issues, the case goes to court for a judge to make the decisions for the spouses.

4. Mediation

Both spouses retain the same mediator who acts as their neutral facilitator and does not represent either party. Depending on the style of the mediator, and whether or not the mediator is an attorney, the spouses may have the benefit of being educated as to the law, available options, recommendations, … Read More “Your Six Different Divorce Alternatives”

10 Best Reasons To Do Your Divorce Collaboratively

Ten smart tips for managing a divorce to get the best possible results for you and your family.

by John R. Denny, Family Law Attorney
Hittelman Strunk Law Group, LLP, Newport Beach, California

  1. The team approach helps you get through the process without going to war.

You will work with a team of legal, financial, and mental health professionals who are specifically trained in the Collaborative Process. They agree to work with you to reach a settlement outside of court.

  1. You make the decisions, not the judge.

In the Collaborative Process, the parties do not go to court. They resolve their differences through cooperative negotiation. Thus, all orders are made with both parties’ agreement.

  1. The process is less expensive than a litigated divorce.

While all cases are different, studies show that a successful Collaborative case is less expensive than a litigated case, even one which settles before trial.

  1. Coaches help you and your spouse learn to communicate in ways which can reduce the adversarial nature of the divorce.

In a full team Collaborative Divorce, each party will work with an assigned mental health professional acting as a coach. Among other things, the coach will assist the party to avoid the type of communication which will further divide the parties, and make settlement more costly and difficult.

  1. Your children’s
Read More “10 Best Reasons To Do Your Divorce Collaboratively”

Social Security and How It Affects Your Divorce

Know your options when it comes to your Social Security benefits if you are divorced and nearing retirement age. A financial professional can help.

by Tracy S. McKenney, CFP®, CDFA™
Irvine, California

When a couple divorces, you may wonder whether anything happens to their Social Security benefits.  What if the husband has been employed the entire marriage and the wife has stayed home with the children?  Do they split the husband’s Social Security benefit at retirement?  What if one of them remarries?

First, divorce laws are different from state to state.  Social Security is a federal program and can’t be overridden by

divorce laws or a divorce judgment in any individual state including California.  California courts cannot issue a divorce judgment to ‘split’ Social Security payments at retirement, because the federal rules governing Social Security override them.

What does the law say about Social Security and Divorce?

As of summer 2016, if a person has been married longer than 10 years and then gets divorced, the ex-spouse can receive 50 percent of their former spouse’s Social Security benefit –OR- 100 percent of their own Social Security benefit.  Notice: you can collect only ONE benefit, not both.

For example, “Dolly” and “Dennis” got divorced when Dolly was age 52, and Dennis was age 54.  Dennis decided to start collecting Social Security when he turned … Read More “Social Security and How It Affects Your Divorce”

Community Property and Separate Property: What’s the Difference?

Laws governing real estate can complicate divorce matters. Be sure to get expert advice before making financial decisions.

 by Sara E. Milburn, Attorney at Law
Milburn Family Law, Laguna Beach, California

Many of my clients come into my office with the mistaken belief that after a long marriage, everything they own together is community property, and they are going to leave the marriage with one half of this property. Sometimes it is a shock for them to learn that is not necessarily the case.

Property issues in a divorce can be very complex. These are the basics to help you start working through your decision-making process.

Separate Property

In California, separate property is defined by Family Code 770. Separate property of a married person includes all of the following:

  1. All property owned by the person before the marriage,
  2. All gifts or inheritances received.
  3. The rents and profits the separate property earns.

Where this can become confusing is when the spouse who owns the separate property uses his time and talent (called “community effort”) to cause an increase to his or her own separate property. This must be more than a diminutive amount of time or effort. The court has wide discretion here. If the separate property was a stock account and the spouse was a … Read More “Community Property and Separate Property: What’s the Difference?”

The Cost of Divorce To Your Business

Personal challenges follow employees into the workplace and negatively affect their performance, including divorce.

by Diana L. Martinez
Collaborative Lawyer and Mediator, West Coast Law & Mediation, APC

Divorce takes an emotional, physical, and financial toll on spouses and their children. But the potential negative effects of divorce don’t stop with the family directly involved. They often spill out past the front door and affect many other people.

When a valued employee is going through the trauma of a divorce, the divorce can affect the entire workplace. The cost to employers can go well beyond absenteeism for a few days here and there to attend court hearings or meetings with the lawyers. Trying to accommodate the employer and the divorce process can prove challenging.

Courthouses are open only between 8:30 a.m. and 4:30 p.m. Most lawyers’ offices are only open between 9 a.m. and 5 p.m. While some lawyers can be more flexible, most judges and courts cannot. The higher the conflict in the divorce, the more court appearances and the more time spent with the lawyers and in court.

Additionally, less obvious costs include:

  • “Presenteeism”: The employee who is physically present at work, but unable to focus as a result of the divorce.
  • Employees wasting valuable work time talking with co-workers about their
Read More “The Cost of Divorce To Your Business”

The Most Important Decision You Will Make in Your Divorce

You have choices in the way you pursue a divorce in California. Collaborative Divorce in Orange County. 949-266-0660.

by Brian Don Levy, Esq., Collaborative Attorney & Mediator

The case history: John first came to see me looking for an attorney to represent him in his divorce case in family court. This is the most important choice he will have to make in the entire divorce process: choosing the process for his divorce case.

As a firm believer in the Collaborative Divorce Process, we discussed why John should consider the Collaborative Divorce process, which is part of every initial divorce consultation – when I meet with clients – I discuss divorce process options.

John then disclosed he had already been in mediation with some of my legal colleagues. John’s wife, Mary, withdrew from the process. He was distrustful of the process and not inclined to give it another try.

In spite of John and Mary’s failure, I still believed the Collaborative Process would serve them well. Nearly a year later, the divorce case was successfully concluded through the Collaborative Process.

How did we make this work?

I suggested that this would be a different experience because we would build a more complete team of collaborative professionals. I also suggested that I would ask the team to implement a protocol … Read More “The Most Important Decision You Will Make in Your Divorce”

How You Can Benefit from the Collaborative Practice Philosophy

Divorce can create anxiety in many ways. These tips can help you find ways to cope. Photo: Marinadel Castell, Creative Commons

by Brian Don Levy, Esq., Collaborative Practice Attorney & Mediator

Social science research including the United States Census routinely reports that roughly fifty percent or more of all marriages end in divorce. Co-habitating relationships fail at similar rates. We expect same sex marriages to follow the same pattern statistically once enough time passes to gather the data over the next decade as well. Psychology Today reports that in 1990, fewer than one in 10 persons who got divorced was over the age of 50, while today one in four people getting divorced is 50 or older.

Since a certain amount of divorce is statistically inevitable, it is imperative we find better ways to facilitate the legal, financial, and emotional processing of a human experience through our civil systems. The emotional devastation that often occurs with the breakup of a relationship shouldn’t be a given. This is where Collaborative Practice lives.

Despite the jokes and eye-rolling over the term “conscious uncoupling,” actress Gwenyth Paltrow put her finger on a healthy modern attitude embodied within Collaborative Practice. Collaborative Practice is the process that provides a more respectful alternative to the destructive divorces we see too often when parties use the court system … Read More “How You Can Benefit from the Collaborative Practice Philosophy”

Recovering From the Fog of Divorce

foggy beach

by Leslee J. Newman, CFL-S, Family Law Attorney

Members of Collaborative Divorce Solutions of Orange County had a wonderful opportunity to train with Vicki Carpel Miller and Ellie Izzo, Collaborative mental health professionals from Scottsdale, Arizona. Miller and Izzo discussed how people going through divorce are often in a “fog” of confusion and paralysis. Our job as competent and compassionate Collaborative professionals is to help each of the spouses to “recover” through what we hope will be a transformative process through Collaborative Practice.

How does this happen? By the use of a cohesive and skilled team of Collaborative professionals—attorneys, mental health, and financial professionals– who can alert you, educate you, and bring you out of the chaos and into the sunlight.  This can be done by identifying the different phases of transition and encourage the following stages of recovery:

Recovery Mode: Burned out, over stimulated. Trying to be productive is hard. Transition by focusing on the basics like adequate sleep, water, exercise, the comfort of friends, etc.

You have a little bit more energy but still hard to focus.  Start by creating new experiences in your life by meeting new people, learning something new, and reaching out to others … Read More “Recovering From the Fog of Divorce”