What is collaborative law?

Posted on February 7, 2013 by Barbara Hammers

Collaborative law

Collaborative law

Traditionally, obtaining a divorce or separation could be very adversarial.

In a traditional divorce proceeding, each side hires an attorney and both submit their dispute to a judge, who makes rulings on each issue submitted. While this method may be the only answer in some cases, there are alternate methods that most divorcing couples can utilize which may be more effective and less costly.

Collaborative law is a new dispute resolution method…

where both parties to a divorce retain separate, specially-trained attorneys whose only job is to help them settle issues regarding the divorce and, if required, child custody or support. An agreement is entered into by the parties and the lawyers that they will not go to court and are committed to working out a solution and resolve their problems.

Collaborative dispute resolution requires…

the parties to agree to work together respectfully, honestly and in good faith to try to find an optimal solution for both sides. During the collaborative law process, neither party may go to court, or even threaten to go to court. In fact, if the collaborative law process is unsuccessful, the attorneys hired for the collaborative law process may not represent their clients in court and the couple would have to start again with new attorneys.

California law recognizes the collaborative law process…

as an alternative dispute resolution method for resolving family law disputes. The law allows parties to avoid the adversarial judicial method for family law disputes, and provides a method for the parties to file a stipulation with the local family court notifying the court of their desire to utilize the collaborative law method.

Collaborative law differs from mediation.

In mediation, a neutral party attempts to help the divorcing couple settle their case. However, the mediator may not offer legal advice or help either side advocate their position.

Collaborative law maintains the same absolute commitment to settlement, but allows for the skilled collaborative law attorneys to prevent emotion or a lack of negotiating skill from creating a problem.

The attorneys’ sole purpose is to work with their own client to prevent them from being overly emotional or unreasonable and make sure the process remains positive and productive.

Support professionals and experts, such as mental health professionals, real estate agents, financial planners, and forensic accountants are brought into the process if needed.

This type of attorney representation differs from the traditional divorce attorney representation in key ways. Rather than attempting to get the largest amount of money and property for their client, no matter what the cost, a collaborative law attorney is dedicated to assisting their client by ensuring that the process is completed smoothly with both sides receiving what they are entitled to pursuant to the law.

Collaborative law attorneys have been highly trained…

and operate with the highest level of integrity, so they will not take advantage of inadvertent mistakes made by the other party, nor will they threaten or insult their clients or the other side. While both attorneys owe primary allegiance to their clients, in accordance with the rules of professional responsibility, they also know that the way to best serve their clients is by working together to a just outcome.

In essence, collaborative law succeeds because it puts two attorneys in the same room with their clients to pull in the same direction and solve the same list of problems.  This allows for a more creative and peaceful resolution.

Learn more about the collaborative law process at Hamers & Baltazar..

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A Brief Rundown on Community Property or (The devil’s in the details…)

Posted on February 4, 2013 by Barbara Hammers

HB_CP-dogs

The laws in the State of California express that any real or personal property acquired during a valid marriage, except for an inheritance or gift, should be considered community property.

This is according to California Family Code §760 which explains the laws referring to community property and §771, which refers to separate property. In the case of a divorce, judges in California must divide community property equally between spouses. However, California community property law only applies if the couple divorces in the state, unless a couple signs a prenuptial agreement to the contrary.

In California, both parties to the marriage have equal rights to the control and management of community property - even property held in one person’s name – if it is acquired during the marriage. As a matter of fact, it is a breach of a spouse’s fiduciary duty to the other spouse to withhold any property from the other spouse, or bar the other spouse from any assets of the marriage.

Once a divorce has been filed, spouses require the other spouse’s consent or a court order to sell, transfer, encumber or give away any property, whether acquired during marriage or separate. Any leasing, sale or encumbrance of community real property must be jointly consented to, and participated in, by both spouses. The laws also establish that absent a will stating otherwise, community property will automatically pass to the surviving spouse when the other spouse dies.

It is important to note that it in the matter of real property, even if a quitclaim deed is signed, all property could still be deemed community property.

There is a presumption that assets acquired during marriage are community property regardless of how title is held.  In order to convert community real property into separate property, one would have to sign a writing making it clear that they intended to change the character of the property from community to the separate property of the recipient spouse.

For example, if the parties wanted to make a piece of real estate acquired during the marriage into one party’s separate property, they would have to enter into an agreement in writing stating the intent of the agreement –to make the property the separate property of the other- with a clear statement that they intended the transfer of the property to the recipient spouse as separate property and their understanding that they give up any interest in the property as a community asset. (Family Code §852)   A statement that the transferring spouse understands the effect of the transfer will be to give up any right to the property is essential.

As long as there is an agreement in written form- that contains all of California’s required legal elements, a married couple may agree to transmute or change community property into separate property as much as they deem necessary. See 116 P.3d 1152, (2005) In re Marriage of Benson (giving up rights in writing).  See also Family Code §850 et. seq

In addition, a prenuptial or postnuptial agreement - may be drafted to define property rights outside of the state laws denoting community property. Though it should be noted, even with a prenuptial or postnuptial agreement, there still may be a fight over assets in the event of divorce. However, most courts will acknowledge a properly negotiated and drafted prenuptial/postnuptial agreement when presented as evidence.

Unless certain things are done to change community property into separate property, as delineated above, the way title is held, may make little difference in a divorce action. If the couple holds the title on a piece of real estate jointly, it is presumed to be community property. See Family Code §2581. However, in certain circumstances, the parties may take title in joint form and still make it one party’s separate property. For example, if they take the title to the property in joint name, but the grant deed clearly states it is the separate property of the other party, it will be considered separate property even though it is held in joint name

In short, California law regarding separate property differentiates it from community property as follows:

  1. Any property owned before a couple was married or acquired during the marriage with separate property,
  2. Any property inherited or received as a gift from a third party during the marriage,
  3. Proceeds from the rent or sale of separate property and any subsequent assets purchased with the proceeds,
  4. Items and money earned while legally or physically separated from the spouse and
  5. Any items conveyed from one spouse to the other with the intention of designating it as separate property as long as the requirements of Family Code §852 are met.
  6. Everything else accumulated during the marriage outside of these parameters is considered community property according to law.
  7. For all these reasons, it is crucial to seek legal advice from a competent, Certified Family Law Specialist in family law before contemplating any property transactions with your spouse. It may eliminate any surprises down the road in the event of a separation or divorce.

 

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BUSINESS VALUATION IN DIVORCE PROCEEDINGS

Posted on January 30, 2013 by Barbara Hammers
Business woman accountant shocked

As a part of the marriage’s community property, the business is subject to division.

The valuation and distribution of marital property can be a contentious issue for both parties.

The process can become even more difficult when the assets include an interest in a business, because the business interest is often the most valuable part of the divorcing couple’s community property.

Division the business in a fair and equitable manner, requires the business be valued.

Valuing a business is a very complex task, often requiring the assistance of a professional business appraiser. The appraiser will select the most appropriate valuation method based upon the characteristics of the business and the availability of relevant information.

Valuation methods fall into three categories: market, income or asset approach.

Market Approach

The market approach determines the value of the business by comparing the business to similar businesses that have been sold. The market approach is very similar to the method used by real estate agents when valuing homes. The difficulty with the market approach lies in finding data about other comparable business sales in the same geographic area. In fact, most businesses being valued are small, privately held businesses, while most transactional information available relates to large publicly held companies, with significant differences in size, sales, profits and geographic location.

Income Approach

The income approach determines the value of the business using one or both methods that convert anticipated economic benefits into a present single amount. The income approach is the most widely used method for valuing small, privately held businesses. In reaching a business valuation, the expert will collect and review the business’ historical financial data, in an attempt to estimate future business earnings. The valuation expert will attempt to determine the future income, along with the risk that the projected income will actually be received.

Asset Approach

The asset approach determines the business’ value by using one or more methods based on the value of the assets minus any liabilities. The asset approach initially seems very simple; however, there are a number of complicating factors. For example, the value of property and equipment can, at times, be difficult to ascertain because their value is not always the equivalent of book value. In addition, assets like goodwill and intellectual property are notoriously difficult to value, because they are intangible. The asset approach is typically relied upon when the business is an investment or holding company or with very small businesses or professional practices where there is little or no goodwill.

It is important to note that, in some divorces, each spouse will obtain a separate valuation. However, the use of multiple valuation experts can create additional problems. It is very rare for two valuation experts to reach the same valuation for a business. In that case, each spouse will provide their expert’s valuation for the judge to consider, and he or she will determine the business’ proper value.

In short, if the divorcing couple can agree on using one valuation expert, they can save a considerable amount of money, time and trouble.

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Serving Divorce Papers

Posted on January 28, 2013 by Armine Baltazar

You’ve Been Served! Really?

HB_Process server

We’ve all seen movies where a clever process server tries to serve an unwilling recipient.

“Fed Ex!” “Flower delivery!” Whatever costume it takes to hand papers to someone or drop them at their feet, right?

Well, how about this one? A process server is 12 feet away from you at a bar. From a distance, she tells you she has papers for you. You say, “No you don’t,” and you walk away until you’re out the door and driving home.

Incidentally, after you said, “No you don’t” and started walking away, even though you weren’t even looking at her, she tossed the documents in your general direction and said out loud, “You’ve been served.” Were you served?

 Yes, according to the Second Appellate District

in the case of In re Ball, which contained essentially the same facts. What if you’re 20 feet away? What if you never acknowledge the process server? The answer is that it depends on the circumstances. The guidance we’ve been given by the Ball court is this:

 “We take it that when men are within easy speaking distance of each other and facts occur that would convince a reasonable man that personal service of a legal document is being attempted, service cannot be avoided by denying service and moving away without consent to take the document in hand.” In re Ball (1934) 2 Cal.App.2d 578.

Reasonable advice, but of course…

people can spend thousands arguing about whether certain actions constituted good service or not. I just had a case where an “avoider” was called on it by the court. Not only did the court decide that he had been served, but he was made to pay some of my client’s attorneys’ fees for having to defend against his allegation of non-service.

Alas, in law as in life, avoidance doesn’t pay off.

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Divorce like a Discrete Celebrity: Outside the Courts

Posted on January 25, 2013 by Armine Baltazar

Divorce like a Discrete Celebrity: Outside the Courts

Some celebrities manage to keep their divorces outside the courts. Sure, they have to file paperwork to legalize their divorce, but we don’t hear about any courtroom drama.

Two celebrities who did that are 28 year old pop singer Katy Perry and her husband of 18 months, 36 year old British comedian and actor, Russell Brand. They reached a divorce agreement and submitted it to the court. Sorry celeb afficionados, there’ll be no photos of Katy and Russell walking in and out of the Stanley Mosk Courthouse in LA with their lawyers.

Katy Perry and Russell Brand’s divorce had the potential makings of a high asset divorce – the kinds that’s brewing with paparazzi fodder. We didn’t see any of that. Why? Word on the block is that Russell didn’t want any of Katy’s money, so it was easy to reach an agreement and stay out of court.

But how can couples stay out of court when they have big disagreements? One way is through Collaborative Law – a process where parties and their respective attorneys commit to resolving their disagreements without going to court. While agreements may be reached quickly in some cases and slower in others, the prospect of staying out of court is appealing on different levels:  the private business of your life doesn’t get discussed in a public courtroom or put into a public file, you don’t have to wait for months before you get a preliminary hearing date at which a judge makes decisions for you, you avoid the emotional trauma of “duking it out in court,” and in a lot of cases, you end up paying less in attorney’s fees.

While I’m personally not much of a celebrity admirer, to those of them who set the example of a low-drama, discrete divorce – thanks for the cue.

Posted in Alternative dispute resolution, Armine Baltazar, Collaborative Law, Complex Asset Division, Contributors, DIvorce, High Net Worth Divorce, Mediation, Property and Asset Division | Tagged , , , , , , , , , | Leave a comment

Gene Simmons & Shannon Tweed: Not a Common Marriage

Posted on January 22, 2013 by Armine Baltazar

Gene Simmons & Shannon Tweed: Not a Common Marriage

After 28 years together, KISS rocker Gene Simmons and former Playboy Playmate Shannon Tweed finally got married on October 1, 2011! Probably not your common, every day wedding. Indeed, the invitation said, “Classy Cocktail Attire Requested – although we know some Rockstar attire will be worn.”

Aside from the emotional leap the wedding was for Gene and the “Finally!” sigh the world presumably heard from Shannon, it doesn’t seem like the couple’s nuptials will change their life much. After all, over the course of 28 years, they lived together and raised two now-adult kids.

How about any legal changes? Weren’t they married already? Didn’t they legally have a common law marriage after all those years? No, they didn’t. Why? Because California abolished common law marriage in 1895! In California, consensual cohabitation alone doesn’t create a marriage. Whether a couple’s lived together or not, according to Family Code Section 300, consent to be married must be followed by the issuance of a license (remember going to the County Registrar for that?) and solemnization (the “I do”s).

Although California recognizes a valid common law marriage established in another state which allows for the formation of common law marriages, you can’t form a common law marriage here. Shannon and Gene lived in California during their long, pre-marital courtship. So unless they had a valid oral or written contract (which could be the basis of a “palimony” suit) or they were Registered Domestic Partners with the state of California, Shannon isn’t entitled to any of the high net worth assets (real property, intellectual property rights, investments accounts, business and pension interests) that Gene may have amassed before he became Mr. Tweed.

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Marriage Rights | Hammers & Baltazar

Posted on December 4, 2012 by admin

Marriage Rights | Hammers & Baltazar from Hammers & Baltazar on Vimeo.

Marriage Rights | Hammers & Baltazar from Hammers & Baltazar on Vimeo.

LEGAL RIGHTS OF A MARRIED PERSON

 This is Hammers & Baltazar’s sixty seconds of Family Law.  Got a minute?

Hello, I’m Barbara Hammers and I’m gonna talk about the legal rights of a married person.

There is a debate over marriage rights and whether or not to extend those rights to couples of the same sex or if a civil union or domestic partnership is sufficient.

Do you know what rights are given to married couples?

With marriage you can file federal taxes together, have rights to your spouses’ social security, inherit without a will, get health care and have a say in your spouses’ medical treatment or burial arrangements.

Most of these rights are not available to non-married people. When deciding where you stand on this issue, knowing the rights married people have can assist you in making an important decision.  Also, knowing your rights as a married person, may help if you ever face one of these issues.

This family law minute is brought to you by Hammers & Baltazar Family Law.

I’m Barbara Hammers, thank you for watching.

See more family law facts on our blog at www.family-law-authority.com

 

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Domestic Violence | Hammers & Baltazar

Posted on November 28, 2012 by admin

Domestic Violence | Hammers & Baltazar from Hammers & Baltazar on Vimeo.

DOMESTIC VIOLENCE

 This is Hammers & Baltazar’s sixty seconds of Family Law.  Got a minute?

Hello, I’m Barbara Hammers and I’m gonna talk about domestic violence.

Every day we hear stories in the news about an intimate partner injuring or killing their significant other.

Did you know that approximately one quarter of the women in the United States will be victims of domestic violence in their lifetimes?

The department of justice data shows 25% to 50% of domestic violence isn’t reported.  85% of the victims of domestic violence are women; that is not to say that men aren’t victims also, they’re just less likely to report it.

This violence isn’t just physical abuse it’s about control.

Perpetrators isolate their victims from friends and family, control access to money, interfere with their victim’s ability to get or keep a job and threaten them if they try to leave.

A victim should remember that violence is never okay.  It’s not your fault, you’re not alone and help is available.

This family law minute is brought to you by Hammers & Baltazar Family Law.

I’m Barbara Hammers, thank you for watching.

See more family law facts on our blog at www.family-law-authority.com

 
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Collaborative Divorce | Hammers & Baltazar

Posted on November 20, 2012 by admin

Collaborative Divorce | Hammers & Baltazar from Hammers & Baltazar on Vimeo.

COLLABORATIVE DIVORCE

This is Hammers & Baltazar’s sixty seconds of Family Law.  Got a minute?

Hello, I’m Barbara Hammers and I’m gonna talk about collaborative divorce.

Fighting with your spouse in a divorce is stressful, costly and unpredictable.

You can never be sure of the outcome, but now, all that can be avoided.

Did you know that you can divorce, stay completely out of court, and maintain complete control of the process with collaborative divorce?

In this process, each party has their own attorney representing their interest.

They all agree that they will settle the divorce without going to court.

This keeps everyone motivated to resolve their issues with the least impact on the children and finances of the family.

Because you stay in control, the outcome is predictable, private and less stressful.

These are all reasons why many well-known Hollywood celebrities have discovered and used collaborative divorce.

This family law minute is brought to you by Hammers & Baltazar Family Law.

I’m Barbara Hammers, thank you for watching.

See more family law facts on our blog at www.family-law-authority.com
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California Community Property | Hammers & Baltazar

Posted on November 14, 2012 by admin

California Community Property from Hammers & Baltazar on Vimeo.

COMMUNITY PROPERTY

This is Hammers & Baltazar’s sixty seconds of Family Law.  Got a minute?Hello, I’m Barbara Hammers and I’m gonna talk about community property.

In California, except for inheritance or gift, property-real or personal- no matter where it is located acquired during the marriage, is community property.

Did you know that even property held in one person’s name can still be community property?

If property held in one person’s name is acquired during the marriage, even if a quitclaim deed is signed, it is still community property with a few exceptions.

Unless certain things are done to change community property into separate property, the way title is held, may make little difference in a divorce.

It is very important to get competent legal advice before doing a property transaction with your spouse, so that there are no surprises if you later end up in a divorce.

This family law minute is brought to you by Hammers & Baltazar Family Law.

I’m Barbara Hammers, thank you for watching.

See more family law facts on our blog at www.family-law-authority.com
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