WILL & TRUST
POWER of ATTORNEY
MANY OTHER ISSUES
Divorce mediation is about you and your soon to be ex-spouse deciding your own divorce and what is best for the both of you and most importantly, your children. In mediation, you and your spouse meet with a neutral third party, the mediator, and with their help, you work through the issues you need to resolve so the two of you can end your marriage as amicably and cost effective as possible. The issues covered include but at not limited to the following:
- Distribution of Property (Assets/Liabilities)
- Child Custody and Parenting Time
- Child Support/Maintenance
How Mediation Works
The couple, with the help of the mediator, discusses and comes to mutual agreement on the above issues. Sometimes agreements come easy, sometimes they take time and a lot of work. When agreements are hard to reach, that is when the mediator intervenes. It is the mediators job to keep the lines of communication open, brainstorm ideas, reality test the couple, teach empathy and assist the couple in their decision making process. Mediators help keep the couple focused on the issues at hand, trying not to get them off track. When divorcing couples get off track and away from the above issues during mediation, arguing, name-calling and bad prior memories are brought up.
Mediation is flexible and confidential. It gives you and your spouse a way to settle the conflict between you in a way that helps you to work together as parents. This is extremely important if you have children and must interact with your ex-spouse after you are divorced. Mediation brings about communication between the couple, which can then be used when they must discuss issues in pertaining to the children. Lack of communication may have been one of the main reasons for their divorce. Mediation has the ability to help the couple learn to communicate again, if only for the sake of the children, and make their post-divorce relationship better than their married one.
A divorce mediator is neutral and doesn’t “work” for either parent. That means the mediator can not give advice to either party. They must remain neutral no matter what the situation.
What the mediator can do, though, is assist the divorcing couple in formulating ideas that can eventually lead to agreements that will stand the test of time. That open and free exchange of information frees up both spouses to negotiate with each other in confidence. Because both spouses are working with the same base of information, it usually takes far less time to negotiate a resolution that makes sense to both spouses.
Child Custody and Visitation
Legal Custody and Physical Custody
People often think about custody in terms of “legal” custody and “physical” custody. Legal custody means having the right to make important decisions about your children, such as where they go to school, what religion they are, and major medical decisions. Physical custody refers to the children’s living arrangements.
Custody can be “sole” or “joint.” Sole custody means only one parent has custody. Joint custody means the parents share custody. If parents share legal custody, they must make important decisions about their children together. If parents share physical custody, the children take turns living with each parent.
A parenting time schedule tells when the children spend time with each parent. If a court order says “reasonable” parenting time, parents must work out the specific dates, times, and other conditions together. The children’s ages, how far apart the parents live, and the parents’ schedules can affect a parenting time schedule.
If a judge orders specific parenting time, all the details are included in the court order. It may work best to have a specific parenting time schedule if you and the other parent can’t easily talk to one another or agree on a parenting time schedule.
Many family courts have a standard parenting time schedule that may be used in your order. A standard parenting time schedule normally gives parents every other week and/or weekend. Holidays are split between the parents, and they switch each year. For example, this year you have the children for Christmas Eve and the other parent has the children for Christmas Day. Next year the other parent will have Christmas Eve and you will have Christmas Day.
If one parent is irresponsible or has harmed or threatened to harm the children, the judge may order parenting time to be supervised by a third party. The supervisor could be a friend, relative, or another person the judge chooses.
Most parents know that it’s important to choose someone to take care of your kids if something were to happen to you and you were no longer around to raise your children. Yet, too many parents don’t understand why it’s important to legally document your choice of guardian, why no child should ever be without a guardian for any period of time, and the steps you can take to ensure your child has a trusted guardian under any circumstance.
What Is a Legal Guardian?
In order to appreciate the significance of guardianship, it’s helpful to understand its legal underpinnings. Because children under the age of 18 are considered minors and not capable of taking care of themselves, they must always be under the care of a legal guardian. The guardian has both the ability to make decisions for the child and the responsibility to financially support the child.
There are certain actions only a legal guardian is authorized to take on behalf of a child, such as enrolling a child in school and authorizing medical treatment.
Who Is a Child’s Legal Guardian?
When a child’s biological parents are alive and are able to care for the child, the parents are automatically deemed to be the child’s guardians unless their parental rights are terminated by a court.
If a child’s parents pass away or are otherwise unable to care for their child, the child may temporarily be without a guardian until one is appointed by a court. This is true even if you have designated a guardian in your will, since there is a gap between a person’s death and the time that a court probates a will and appoints a guardian.
What Happens If a Child Has No Guardian?
If the child has no guardian, the authorities may take the child into state custody, with the state being named as the child’s legal guardian. The child may remain in state custody until a guardian is named. This is why you never want your child to be without a legal guardian.
What Steps Can I Take to Make Sure My Child Always Has a Trusted Legal Guardian?
There are a few things you can do to ensure your child is in the care of a guardian you trust.
- First, make sure you have a will that designates the person you would choose to care for your children in the event that you and the child’s other parent pass away.
- Second, talk to the individual(s) you’ve chosen so that they’re on alert and know what steps to take in the event you pass away and your child is in need of a guardian. Giving your guardians a heads up beforehand can prevent delays in petitioning the court to make the guardianship appointment.
- Third, execute a standby guardianship document. A standby guardianship document authorizes someone to take legal custody of your children in the event you are incapacitated, for example, if you were in an accident and unconscious in the hospital. It also allows a chosen guardian to take custody of your children immediately if you should pass away, rather than having to wait until your will is probated and a court makes a formal guardianship appointment.
What does probate mean? California Probate is a legal proceeding required to settle a deceased person’s estate, paying all debts of the decedent, and distributing the property to the heirs and beneficiaries. When a Living Trust holds the title to some of the decedent’s property, however, that property can pass to the beneficiaries without going through probate. A court probate of a will, depending on the size of the estate, can be expensive and time-consuming. The probate process varies dramatically between states, but can be completely avoided with proper estate planning.
Previously, all estates had to be formally brought before a judge before assets could be distributed to the beneficiaries. In more recent years, however, the courts have simplified the California probate process and now there are several ways to transfer property at death. Some of these procedures do not even require formal court proceedings or may be able to be handled through a more simplified probate proceeding. The term “probate” is often used loosely to describe any process where an estate is settled and distributed.
Wills & Trust
- If we do nothing else to take care of our legal affairs, we should write a will. If you don’t make a will before your death, state law will determine who gets your property and a judge may decide who will raise your children.
- What a Will Won’t Do: Many kinds of property — perhaps some of the most valuable things you own — don’t necessarily pass through your will. Here are some things you shouldn’t expect to accomplish in your will.
- An introduction to living trusts — a popular way to avoid probate.
- Why You May Not Need a Living Trust: Some people need a living trust immediately, others will never need one, and most of us fall somewhere in the middle. Factors to consider are how old you are, how wealthy you are, and whether you are married.
- Other Advantages of a Living Trust: The main reason for setting up a revocable living trust is to save your family time and money by avoiding probate after your death. But there are other benefits as well.
- Living Wills and Powers of Attorney for Health Care: An OverviewPut your health care wishes in writing, in case you are ever unable to speak for yourself.
- Living Wills & Health Care Powers of Attorney in Your StateSelect your state to learn about your state’s laws.
- About Physician Orders for Life-Sustaining Treatment (POLST) FormsMany states are offering a new document to help you keep control of your medical care at the end of life, called a POLST form — short for “Physician Orders for Life-Sustaining Treatment.”
- Durable Financial Power of Attorney: How It WorksThe durable financial power of attorney is a simple way to arrange for someone to handle your finances.
- Financial Powers of Attorney: Do You Need One?Almost everyone can benefit from a durable power of attorney for finances.
Unlawful Detainer and Eviction
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