What is involved in a child custody case?

One of the most important aspects of a divorce is figuring out who gets custody of the children. Sometimes it goes smoother than others, meaning the parents are able to create a co-parenting plan together. Other times, parents wind up going to court to involve a third-party in deciding the best course of action.

We are going to talk about each of these scenarios.

Child Custody Case – Settlement 

Fans of TV shows and movies with a high focus on law may already be familiar with a few court terms, such as the term “settlement.” A settlement occurs when two parties come to an agreement without having to go all the way to court.

A settlement is typically seen as the optimal outcome. While it often means neither party gets 100% of what they want, it is less likely to lead to animosity and strained relationships down the road. This is especially important in a child custody case since it’s generally best if both parents stay involved in the child’s life.

If parents are able to settle, they come to an agreement on the terms and create a co-parenting plan together. The plan lays out exactly how the parents will work together to care for their children. The plan is then submitted to a court where a judge can turn it into a final order.

Child Custody Case – Trial 

When child custody can not be mediated by a settlement agreement between the parents, the custody case goes to court.

To make a custody court case a bit more seamless parents should be prepared with a number of documents on hand. While it’s best to speak with an attorney for a full list of the documents needed in preparation for a court case, we recommend starting with these:

Tax information – Tax information helps the court determine the recent income of each parent. This factors into both who gets primary custody of the child as well as child support for whoever doesn’t get primary custody. 

Pay stubs – While tax information provides proof of previous income, pay stubs provide proof of current income. 

Daycare information – If the child or children involved in the custody case need daycare in order for the primary custody holder to work, it’s important to show the court the cost of the daycare.

Once parents have spoken to attorneys and organized documents needed for court, it’s time to schedule a hearing. The timing of this can be difficult thanks to COVID, as a lot of cases were put on hold and the courts are now backed up more than usual.

 Ideally, parents can expect to have a hearing about once a month until the case is resolved.

A hearing can last anywhere between thirty minutes to a few hours. During hearings witnesses are examined and cross-examined. Evidence is discussed. And, eventually a judge makes a decision.

Conclusion

While there are some basic commonalities, the truth is each child custody case is unique, just as each family and child is unique. Give us a call at 714.456.9118 or send us an email at info@voneschlaw.com and we’ll see how we can help.

Who gets the house in a divorce

Occasionally, clients ask us who will get the house in a divorce. The short answer (that our clients don’t like to hear) is that it depends. 

Is it Marital Property or Separate Property? 

Property that was purchased by one of the spouses while they were married is called Marital Property. It doesn’t matter if the title features one name or both names. As long as it was purchased during the marriage, it’s considered marital property. 

Separate property pertains to property that a spouse purchased prior to their marriage. For example, if someone purchased their first house after college and then a few years later got married and lived in that house together, the property is considered separate.

The type of property involved is important because it plays a role in the divorce. If the home was considered separate property, it stays with whoever purchased it. If it’s marital property, the home’s value will be considered part of the assets getting split. 

Who Gets the Kids? 

Another factor that can determine who gets the house is the kids. However, if no young children live in the house at the time of the divorce, this doesn’t apply. 

For instance, suppose the father has visitation rights, but the mother gets custody of the children. In that case, the mother is more likely to get the house in the divorce because it provides her with a good place to raise the kids. 

Equitable Distribution Plays a Role in Who Gets the Home

As you go through the divorce process, you’ll likely hear the term “equitable” a few times. Essentially, this means fairly divided. Note that it does not mean equal – although many times, that’s how it shakes out. 

Let’s take the case of a couple that has a home worth $200,000 and financial assets worth $250,000. Their total assets are $450,000. 

 With equitable distribution dividing assets and finances the court may say one spouse can keep the home and $25,000 while the other spouse gets the rest of the $225,000 in assets. 

Unfortunately, the case usually isn’t this simple. Still, it gives you an idea of how equity comes into play in who gets the home. 

Who Can Afford the Home?

It may seem obvious, but it should be said – if one of the people getting divorced can’t afford the home on their own, they probably shouldn’t stay in it. 

For example, maybe it was a two-income family, and the home was a significant expense. It will probably be hard for one person to pay for it after dropping down to one income. Things like alimony or child support help, but they shouldn’t be relied upon to pay the mortgage every month. 

Can the Home be Sold?

Now and then, the court will order the home to be sold. This makes it easier to divide the assets between the two individuals because it brings extra cash into the picture. 

Conclusion

For personalized guidance and advice on how to secure your home in your divorce, send us an email at info@voneschlaw.com. We’re here to help you in any way that we can. 

Legal Remedies If a California Home Seller Conceals a Defect

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Your rights, including to sue the seller, over a home defect that the seller failed to tell you about.

You’ve closed escrow and moved into your dream home. Your happiness is short-lived, however, as you discover a defect that the seller seems not to have told you about beforehand.

Perhaps, following the first rain, the new fresh coat of paint decorating the walls turns out to have concealed mold and water infiltration from a leaking roof. The bills are stacking up as you seek to replace the roof and remediate the mold. Are these bills your responsibility? Or can you file a lawsuit and force the seller to pay?

Under California Law, Sellers Must Make Written Disclosures to Prospective Buyers

California law requires sellers to disclose to potential buyers, in writing, any details about the property that may affect the potential buyer’s desire to purchase the property, or the amount the potential buyer is willing to pay. These important facts concerning the property’s condition are frequently called “material” facts, and a seller can face severe penalties if he or she fails to disclose one.

What Is a Material Fact?

Material facts frequently involve information concerning the property’s walls, ceiling, floors, insulation, roof, windows, doors, foundation, driveways, sidewalks, fences, electrical systems, plumbing systems, or other structural components. This is not a complete list, as any fact concerning any part of the property can be a material fact if it affects the property’s value, desirability, or ability to be used as intended.

In California, material facts are most often disclosed by completing a form called a “Transfer Disclosure Statement,” which your real estate agent may also refer to as a “TDS.” The point of the Transfer Disclosure Statement is to accurately describe the condition of the property. You should check your TDS to see if the seller, in fact, failed to disclose the defect now troubling you.

So, in our example, above, the relevant section would be part “B” which asks, “Are you (Seller) aware of any significant defects/malfunctions in any of the following?” If the seller failed to check the box next to “Roof,” the seller has failed to disclose that defect.

How Do You Prove That the Seller Concealed a Defect?

If the seller concealed a known defect, you can sue the seller for fraudulent misrepresentation. You will have to prove that the seller actually concealed the defect, as opposed to having perhaps been unaware of it.

You might be able to prove the seller’s intent to conceal from the seller’s conduct, such as having painted over the evidence of the roof leak. You might also prove the seller’s intent to conceal a defect based on any instructions given to an agent not to tell you, or other prospective purchasers, about the concealed defect. Speak to your neighbors, your agent, and perhaps even the seller’s agent, to gather all relevant facts.

If you end up filing a lawsuit, your lawyer will take depositions (interviews of relevant parties) and gather evidence to establish whether or not the seller was aware of the defect and concealed it from you.

The Seller Will Be Responsible for Damages Resulting From a Concealed Defect

If you can prove that the seller was aware of the defect and concealed it, instead of disclosing it, odds are you have a case for fraudulent misrepresentation. You may also have a case against the seller’s real estate agent, your agent, as well as any inspectors who knew, or should have known, about the defect but didn’t tell you.

If you go to court, you may be awarded one or more of the following:

1. Compensatory Damages: The seller could be forced to pay compensatory damages, to compensate you for any out-of-pocket costs associated with the concealed defect. These could include the cost of repair and any diminution in property value resulting from the defect.

2. Punitive Damages: If you can prove that the seller acted with malice in concealing the defect, you may be able to recover punitive damages. Punitive damages can be awarded by the court in addition to compensatory damages, as they are intended to punish the wrongful conduct and deter the seller and others from committing future fraudulent acts.

3. Rescission: In rare, serious cases, the purchase agreement can be rescinded, or cancelled, such that you would get your money back and the seller would get the house back.

Is Going to Court Your Only Option?

Going to court is not your only option. It can be faster and less expensive to try to resolve your issue informally. A good first step is to make a few phone calls, to the:

• Home warranty company: Find out if the item at issue is under warranty. If so, you may be entitled to repairs under the terms of your warranty.
• Insurance company: Call your insurance agent to find out if insurance will cover repairs of the defect. (If it’s a pre-existing condition, they may not.)
• HOA: If your home is within a community governed by a homeowner’s association, call the management to see if the affected area is considered part of the common areas. If so, the HOA may contribute to or pay the cost of repairs.
• Seller: Write a brief demand letter to the seller describing the issue and demanding payment for all expenses related to repairing or replacing the defect. You may want to send a similar letter to the seller’s real estate agent if you have reason to believe that the agent was aware of the defect and participated in concealing it.

Post courtesy of nolo.com

Alimony Guidelines: What Records to Keep Regarding Your Alimony

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You should probably keep records of both your dispersal and acceptance of alimony payments.

In general, alimony (or spousal support) refers to payments from one spouse to another following a divorce or separation. Alimony is not a requirement of a divorce and it is up to the judge to determine whether alimony is needed on a case by case basis. The more modern trend is away from alimony orders, but courts still issue judgments for alimony after long marriages where one spouse earned significantly more than the other. Alimony is also ordered in divorces where one spouse left the workforce to care for children or take care of the household.

In most situations, alimony is tax deductible for the person paying the alimony and is classified as taxable income for the person receiving the alimony payments. This is why alimony guidelines suggest that you keep records of all payments and acceptance of alimony. It often happens that after a messy divorce, the spouses will challenge (or, in some situations, the IRS will look into) amounts that are paid and accepted as alimony. If you do not have documentation that shows just how much was paid or accepted, the person paying alimony may end up losing the tax deduction for the alimony payment and could even be ordered to pay the other spouse any payments that were not documented.

Alimony Guidelines: What the alimony payer should keep

In general, the person that is responsible for paying alimony should keep:

• A document that has a list showing when each payment was made. This information should include the check number, the address that the check was sent to, and (if your bank supplies it) a copy of the cashed check;
• Copies of each check that is used for alimony payment. Be sure the write in the memo portion of the check which month the alimony payment is supposed to cover; and
• Receipts for each alimony payment that is made by cash. Be sure that you have the other person sign each receipt that shows they received the alimony payment as well as the month that it was for.

As with all documents that you may need in case of a tax audit, you should keep all of these records for at least three years from the date you file a tax return on which you claim the alimony tax deduction. Some experts even go so far as to say that you should never throw away these records, as they can be used to show that you did indeed pay alimony should your ex-spouse ever decide to challenge you in court.

Alimony Guidelines: What the alimony recipient should keep

The former spouse that is receiving the alimony payments should keep a detailed list that records each alimony payment that was received. For each payment, the recipient should include:

• The date that the payment was received;
• The amount of the payment that was received;
• The check number that the payment was issued from (or another piece of identifying information such as the money order number);
• The account number from which the check draws payment;
• The name of the bank from which the check draws payment (or the place where the money order was issued from);
• A copy of the check or money order that was used for payment; and
• A copy of any receipt that you signed in acceptance of a cash payment.

Just like the payer of alimony, the receiver of alimony should keep these records for at least three years in case the IRS comes knocking. In addition, if you feel that your former spouse has stopped making alimony payments, you can take your record to court with you to show where your ex stopped making payments and demand that future payments be made.

Free Legal Review Of Alimony Issues

If you’re facing alimony issues in your divorce case, there are a number of factors that the courts will consider in deciding whether and how it should be granted. Alimony could also be used during negotiations and may help you to achieve an out-of-court agreement. Before making any promises, however, it’s important to speak with an experienced family law attorney.

Post courtesy of family.findlaw.com

The Different Types of Child Custody

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Child custody hearings can produce a number of different outcomes, so it is important to be familiar with the different types of possibilities before planning for your hearing. Each one comes with different guidelines and provisions for both parents, and each needs to be approached in a different manner. Here is an overview of the four primary types of custody for children.

Legal Custody

This form of custody provides the most involvement in the raising of the child. Legal custody gives the appointed parent the right to make decisions on how the child will be raised. This includes determining the child’s education, medical care, standard of living, and even their residence. Legal custody is not always awarded solely to one parent. In cases of shared legal custody, both parents have legal rights for making decisions regarding the different options for raising their child.

Physical Custody

This type of custody involves where the child lives and with whom. Physical custody grants a parent the right to have the child live with them. While this determines the primary residence of the child, the other parent is typically awarded some form of visitation rights based on their relationship history with the family unit. There are cases where joint physical custody is awarded, and in this scenario, the child splits time between two separate residences of each parent.

Temporary Custody

Temporary custody is normally only issued when there are additional circumstances surrounding a case. This can include cases where an investigator is used to ensure that a particular parent or residence can provide a safe and healthy environment for the child. The length of temporary custody can vary from 30 days to more than year. Ultimately, a final hearing will determine which parent will obtain long-term physical custody. Visitation rights are often sporadic within temporary custody periods. Judges usually tend to structure visitation rights during this time based on the desires of the child as opposed to other extraneous factors.

Bird’s Nest Custody

A “Bird’s Nest” judgment is rarely issued, but it can come into play under the right circumstances. In this instance, the child maintains a consistent residence (normally a related family member’s home) and each parent rotates living at the home. For example, a judge may award bird’s nest custody to the home of a grandparent, while both the mother and father alternate turns residing in the home.

A judge determines the best custody arrangement on the basis of the child’s needs. Many factors influence this decision, including financial, health, and education considerations. By being familiar with the types of custody available, you can target your approach to secure a ruling that best fits you and your child.

Basics of the Americans with Disabilities Act

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The Americans with disabilities act came up in 1990 and was patterned after Section 504.

1. The basics of the Americans with Disabilities Act (ADA)

This Act was formed to protect Americans living with disabilities against various forms of discrimination. Other atrocities or crimes that may happen to the people living with disabilities are not covered by this Act.

2. What it means

The ADA describes all persons considered as living with disabilities and whom the act would apply to in the areas in takes effects. This act considers several factors so that one can be considered as living with disabilities. One should have a physical or mental impairment that has substantially limited his or her major activities in life, have a record in history of having such impairment is considered as living with disabilities and the Act protects them.

3. What it protects

The ADA Act protects all people said to be living with disabilities from discrimination in several areas mostly in post secondary education in facets that include admissions, academics and also research. It also protects people living with disabilities to have equal employment opportunities, equal opportunities in state and local government activities, accommodation in public transportation and other public amenities, good access to telecommunication services that caters to them specifically. Privately owned accommodations have also a minimum standard for accessibility that they should implement so as to accommodate the persons with disability. Miscellaneous provisions are also made with provisions relating between the ADA Act and other laws and their impacts to the society.

Any complaints or violations committed are addressed by the Department of Justice within 180 days from the date of the alleged discrimination acts were committed. .

4. Requirements

Post-secondary institutions are required by this ADA Act to make allowances and services that will accommodate the persons living with disabilities and ensure they have equal opportunities as the other people. These opportunities come in form of courses, programs and activities that they all undertake. Adjustments and modifications necessary can be done so that all people can be accommodated well.

However, the accommodations should not be to an extent where the educational programs or requirements have to be fundamentally altered them but to just accommodate them and maintain the set standards.

Faculty members and training directors are encouraged by the Act to adopt several Dos and Don’ts that are in line with the Act so that they can help the institutions comply and also challenge stereotypes that are with the public about persons living with disabilities.

Writing Business Contracts

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In business, it is likely you may be in situations that you require to use an agreement and contracts, whether it stick with clients, distributors, tenants, landlords or even additional business partnerships. In brief, a contract is a lawfully joining agreement between individuals of legal age. Having contracts can help protect your business, enable you to conduct business actions with additional ease as well as add a degree of professionalism which you display to consumers as well as business partners.

Before creating up the contract, start having almost all parties work out the terms, the try to be performed, and the price to get paid and also just how payments would be made. Also obtain the legal names, address, and communication information as well as occasionally tax Identity numbers of the celebrations involved with the contract.

If you are preparing the legal document, maintain the language as clear and distinct as possible, to ensure that there are absolutely no miscommunication. Getting a lawyer to review the completed written compose is a good idea.

 

The initial part of the document usually contains the time frame into which the contract is to be entered along with the contact data of the people or even companies involved.

Next, clarify the terms of the contract within the body of the document. Be clear with regards to quality of attempt to be completed along with dates as well as deadlines. Are success reports or even meetings needed through the contract period? Easily explain almost all risks as well as responsibilities of both or even all parties.

The final step is ensuring both parties to approve as well as sign and also date the document, if needed face-to-face with a witness or even attorney. All parties should obtain a copy of the authorized agreement.

While any significant changes are created to the contract, it may be smart to note them in publishing with the addendum authorized by almost all parties involved.

If you work with legal documents routinely, you can really save time by utilizing pre-written contracts which are design by legal experts. There is no need to write the contract by yourself, instead you place the terms of the particular arrangement which you have negotiated with the additional party or parties.

If you really wish to know more about the tips on how to write business contracts then it will be no doubt the best idea to visit http://voneschlaw.com/

Business Division in a Divorce

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Business division in a divorce is an issue which comes up with many challenges. The parties separating can fail to agree on many aspects. In order to get the issue solved to your satisfaction, you need to hire a family lawyer who understands how the process is handed. There are many options which can come into play when in the court of law trying to divide your business. Among the options available include:

The business is awarded to a spouse who has greater involvement

The court of law will assess the evidence available and award the business to the spouse who tends to have greater involvement in the business. The other spouse who has less contribution towards the business will be compensated accordingly. The compensation will be based on the level of involvement of the two spouses.

The business may be sold

In some cases, the court will study the claims from each party and decide to sell the business. The business will be sold and the proceeds will be shared among the spouses basing on their contribution. This is a situation which the family court can adopt if letting the business with one of the spouses will fail to meet different needs which may have been legitimately demanded by the spouses.

The business can be jointly operated after divorce

In rare occasions, the business can be jointly operated by the parties after separation. The court will have to assess the two options and decide whether letting the business to be run by both parties will be practical. The two parties should demonstrate to the court that they are willing to have the business running while they relate as business partners.

Valuation and Compensation after Divorce

After the court awards the business to one party, who was more involved in the business, the issue of compensating the other party rises. In this case, the court will have to get reports from a qualified financial expert who will assess the value of the business assets so that the court will compensate the other party accordingly to his or her contribution.

Sharing Business Assets in a Divorce

The court can decide to allow the parties involved continue to jointly run the business. In such a case, both the parties involved should demonstrate to the court that they are necessary for the running of the business. If any spouse will ask for the division of the assets, the court will deny option of jointly running the business venture after divorce.

Determination of Spousal Support

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When two people are getting a divorce in in many states, support payments can have an impact on how property distribution is awarded. Therefore, alimony can directly affect the outcome of a divorce. If you and your spouse are having difficulty coming to an agreement over support payments, the Superior Court can step in and order one spouse to pay support to the other on a case-by-case basis.

No two marriages are alike, nor are the reasons for getting a divorce. There are times when a husband or wife may seek alimony payments from their spouse in a divorce. Spousal support serves a specific purpose in divorce cases – it’s meant to provide economic support to one spouse who has a much lower earning potential capacity over the other spouse.

It is usual for one of the spouses to be in the workforce, commanding a high salary, while the other spouse manages the household and cares for the children. Although only one person is making money, it is considered that both spouses are contributing to the marriage and the family unit. If the couple were to get a divorce, the wife might seek spousal support until she can become self-sufficient.

The courts will take into consideration how long it will take the wife to become self-supporting and what actions she must take to get there. For some, it might take four or five years – the length of time it takes to go back to college and earn a degree.

As courts want to cause as little disruption in the children’s lives as possible, they might award the mother spousal support for some years as without alimony; she wouldn’t be financially capable of keeping up the payments and standard of living that she and the children previously enjoyed.

Whenever a divorcing spouse seeks support payments, there are certain factors that the judge will take into consideration when making that determination. First and foremost, the court will take into consideration the length of the marriage. The courts would be far more inclined to award alimony to a man or women who were married for ten years versus someone who was married for only a year.

They will also look at what each spouse needs. For example, one spouse may have a solid, steady job, while the other spouse might be unemployed. On the other hand, if one spouse were a doctor and the other a lawyer, they might not award any spousal support since both individuals were making a good living.

The courts will look at what each person can pay. If neither spouse can afford to support the other, it might be unrealistic to award spousal support payments. They will also look at whether having a job would make it too difficult to care for the couple’s children.

The judge will also consider the age and health of both spouses. If one of them is suffering from a debilitating disease, the judge might be more inclined to award support to that person if their ex can afford it.

In the situation where one spouse or partner supported the other through college, career training or while pursuing a professional license, the judge will take that into consideration.

The courts will also consider debts and property and whether one spouse’s career was affected by years of unemployment by taking care of the home or children. Furthermore, the judge will factor in each spouse’s unique hardships that they are presently facing.

An important issue regarding awarding spousal support is that of domestic violence. The courts will evaluate all documented evidence of any history of domestic violence between both parties. The history of domestic violence and the emotional distress it caused will be a factor in awarding support, no matter whether the victim was the supported party or the supporting party.

The courts will also consider the immediate tax consequences for both parties and whether or not, either spouse has any prior criminal convictions.

Breach of Contract in Real Estate

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Any field that works with prominent legal elements usually also features the phenomena of the contract in some shape or form. In real estate, contracts are regularly utilized in a range of deals. They are employed with the purpose of protecting all parties that are included in a real estate deal. However, as in any other domain, there is always a chance that one or more parties will breach the same contract. When this happen, everyone should understand what their options are. For that purpose, here are the most important facts anyone should know about the occurrence of a breach of contract in real estate.

What is a Breach of Contract?

Basically, this occurs when the terms and conditions of a certain real estate contracts end up not being followed. While contracts mostly deal in sales transactions, they can also cover things like an agreement between the landlord and tenants, purposes of property use, subleases and leases, subsequent construction, boundaries and land usage, just to name a few most prominent. There are also many more factors that are included in one or more real estate contracts.

What do Terms and Conditions Represent?

Any real estate contracts include a range of terms and conditions. They cover things like closing date, the price of real estate, items included in the sale, decryption of the property and so forth. In case these are breached by either party, the other party or parties will have a chance to submit a legal claim that is focused against those who breached it.

Types of Breaches

Mostly, breach of contract in real estate is related to payments, their timing, form or exact amount that was determined beforehand. But, they can also include failure to deliver on the side of the sellers, sub-leasing that is not authorized and problems with warranties that were implied in the contract. In other words, a range of things that are done by any involved party can lead to a breach.

Legal Remedies for a Contract Breach

When a breach of contract in real estate occurs, there is a range of things that can be done. In most instances of a breach, there is a damages award that will be provided to the inflicted party. But, breaches can also be resolved through several other processes. The first one is arbitration that includes a neutral party, or an arbitrator who goes over the matter and decides the resolution, bypassing the need to go to court. Mediation also includes an impartial third party which works with the other two with the purpose of finding a mutually beneficial solution. Finally, there is the small claims court that can be used to resolve a dispute in case damages are under $3,000.

With this information, anyone will be fully knowledgeable about the eventuality of experiencing a breach of contract in their real estate dealings.