Monthly Archives: December 2012

Divorcing in the Golden Years (surprise!)

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This recent article was inspired by Danny Devito’s divorce after 30 years of marriage.  The article attempts to describe a number of reasons why couples may divorce after a long marriage.  One recent study found, “The divorce rate among older adults has more than doubled since 1980, and 1 in 4 persons who divorces today is over age 50.”  So it seems that divorce isn’t just for thirty-somethings with children.  The big-D may be for couples of all ages.

 

When people are living longer healthier lives, are able to have sexual relationships later in life (thanks Viagra®), and since women are more financially independent than in times past—to some extent divorce at a later stage in life makes more sense than it did in the past. 

 

Divorce for seniors can lead to some very specific concerns. Division of assets and retirement funds at a relatively younger age (30s-50s) leaves divorcing couples with time to financial recover—but for most seniors who are divorcing, there is much more finality to this division and no work-life to recover from the financial repercussions.  In addition, assisted living facilities are not cheap.  Attempting to support both spouses in such facilities post-divorce may be too much for the community to bear.  And although children are no longer young, adult children acting as caregivers may have a difficult time coping with their parent’s divorce. 

 

However, in some ways divorce for older couples is simpler.  Retired couples need not worry about the bread-winner quitting their job, child custody and child support are not an issue at all.  At the same time, it may be more important for the parties and their counsel to work together—towards a creative solution.  Due to the possibility that the payor spouse may die and no longer be able to pay spousal support, the parties may want to retain a life insurance policy.  However, due to the increased cost of life insurance as a senior, the parties may benefit from an alimony trust.  An alimony trust is when the payor spouse transfers investments or other assets that generate income into an alimony trust for the recipient spouse or beneficiary.  It may create more protection without the high cost of life insurance. 

 

It seems as society becomes increasingly egalitarian—the pitfalls of life (including divorce) will affect different populations more equally than in the past.  Here are some key issues for couples divorcing as seniors to think about:

  • Long term care planning
  • Estate planning
  • Alternatives to traditional spousal support
  • Health insurance coverage
  • Social security benefits
  • Longer term marriage issues

 

If you would like a free consultation with regard to your family law issue, please give us a call at (805) 482-1170.

 

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California’s Legal Document Assistant Problem (I can’t give you legal advice, but….)

Forms picture blogpost on LDA

Many times, clients come to our office and we get to “clean up messes.”  In some of these cases–the damages already done to the client’s legal position are irreparable.  For many of these parties it would have also been cheaper to have an attorney from the start–instead of trying to fix the harm done while unrepresented.  Many of these parties used Legal Document Assistants to start their case.

 

What we do:

It’s not that every family law case in California demands an attorney (yes, I just said that).  I frequently instruct potential clients during their free initial consultation that they really could do this on their own if they want, I give them some free advice, I print them out a few forms, and I send them on their way.

 

Forms are free:

The thing is that much of family law work is done on forms which are provided by the state.  Many of the forms also have corresponding “INFO” pages that explain how to use them and how to fill them out.  These forms are published by the California Judicial Council and freely available online.  You, as a taxpayer, are paying the State of California to develop and maintain these forms.  They are free.

 

California Superior Court Self-Help Centers:

Every California State Superior Court has self-help centers.  At these centers you can receive these free forms and get help filling out those forms.  Unfortunately, the self-help centers don’t provide a high level of service.  You work on their schedule, they only help you with certain issues, and they can’t provide legal advice.

 

The California Legal Document Assistant (What they do):

California has something called “Legal Document Assistants” or LDAs.  These LDAs are able to provide forms (the forms we just discussed that are found free online, and help you fill them out, as long as they don’t give legal advice.  So, they provide you a form that is free and readily available online, they help you complete it, and they charge you for it. Under Bus. & Prof. Code § 6400 (the relevant portions of which are at the bottom of this post) states that “A legal document assistant may not provide any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, selection of forms, or strategies.”  Right.  In reality, these LDAs give legal advice and explanations all the time.  They simply couch advice with language like, “I can’t give you legal advice, but…” and then they proceed to give legal advice.  There is a reason why LDAs are not allowed to give legal advice–they weren’t trained to practice law.

So, what is the LDA supposedly able to do?  They are supposed to be, “Completing legal documents in a ministerial manner.”  What the heck does that mean?  It means they are simply an “instrument” and should have “no personal discretion or judgment in its performance.”  They simply fill it out as you tell them.

So, LDAs charge you for forms (which are available for free online and at the courthouse), they also charge you for filling them out (which the self-help center does for free and you can figure out), and they can’t provide legal advice or explanations.

 

Beyond the Form:

Does your family law case require action beyond these California Judicial Council forms?  Maybe.  Ask yourself some of these questions:

  • Do you need to make your spouse come to the hearing without a subpoena–and/or make them bring documents with them to the hearing?
  • Do you need to demand specific answers to questions?
  • Do you need to demand they complete their preliminary or final declaration of disclosure?
  • Do you need to write a points and authorities and when is one needed anyway?
  • Who can help me figure out what questions to ask at the hearing, which questions are objectionable, and what I can object to?
  • Where do I find a marital settlement agreement and what should it have in it?

Many times family law attorneys prepare documents beyond the free forms published by the California Judicial Council.  Although LDAs may have some of these forms laying around, they are not allowed to suggest them, explain them, or advise you on when to use them.  It’s not every case that requires them–but sometimes they can make a big difference in the outcome.

Free Consultation:

Your first appointment with an LDA is going to cost you.  We give free consultations and help you figure out if you need us or not.  Give us a call at (805) 482-1170.

 

 

Bus. & Prof. Code § 6400

(g) A legal document assistant may not provide any kind of advice,

explanation, opinion, or recommendation to a consumer about possible

legal rights, remedies, defenses, options, selection of forms, or

strategies. A legal document assistant shall complete documents only

in the manner prescribed by paragraph (1) of subdivision (d).

(2)(d)(1) Completing legal documents in a ministerial manner, selected by a person

who is representing himself or herself in a legal matter, by typing or otherwise completing

the documents at the person’s specific direction.

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Enjoying the holidays as divorced parents (maybe)

A recent article from the Washington Times explores ways in which divorced families can survive the holidays.  The article does correctly point out that, like in other areas of life, a little advanced planning can go a long way.

Here are my own thoughts on working your way through the holidays as a divorced (or divorcing) parent:

  • If you have a court order, read it, follow it, and keep a copy with you.
  • Consistently communicate with the other parent using the same means.  Don’t call sometimes, text sometimes, and email sometimes.  Pick one method of communication and stick with it.
  • Use a shared calendar online.  There are an incredible number of free calendaring services online.  Create a Google, Hotmail (Windows Live), or Yahoo calendar and share it between parents.  It’s free.  It works.
  • Do not use the kids as messengers.  For example: “When you see your dad tell him____.”  If the end of that sentence is anything other than “Merry Christmas,” then send him/her the message yourself.
  • Benefit from consistency.  If your ex makes the kids go to bed at 9:00pm, don’t be their hero and allow them to stay up until 2:00am.  Children benefit from consistent rules and expectations.
  • Have an outlet and schedule it ahead of time.  Work into the holiday visitation schedule a healthy way to vent and channel your frustration with your ex.  For some people that means exercise or a round of golf.  For others that means a chat with friends at a local pub.  Vent, just not directly on your ex and not around your kids.
  • Use “I” statements.  I know, it’s silly, but it’s true.  Don’t start any sentence to your ex with the word, “You.”  For instance, instead of “You always do stuff like this last minute,”  say something like, “I feel like these last minute changes are not helpful or fair.”  Focusing your feelings internally prevents the other person from feeling threatened and from becoming defensive–shutting down altogether.

 

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