Alternative Dispute Resolution in Marital Cases

Posted October 27, 2015 in Family Law by Michael Lonich.

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October 27, 2015
Alternative Dispute Resolution in Marital Cases
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No one marries with the intent that they will divorce someday. However, there may be a point in a relationship when it is clear that marital dissolution (i.e., a divorce) is inevitable. How the parties proceed after this point can make the difference between an amicable, peaceful conscious uncoupling and a nasty, drawn-out battle.

Even though a trial, complete with a judge and court-room setting is glorified on television, most cases do not make it to trial and are more commonly resolved with a settlement. Contrary to what some believe, a divorce does not have to go to court. Parties looking to divorce may resolve their dispute through informal negotiations by using out-of-court alternative dispute resolution (commonly referred to as ADR). These proceedings between you and your spouse along with your attorneys promote voluntary settlement though they can also include traditional court proceedings.

Several ADR processes that family law attorneys use are mediation and arbitration in lieu of proceeding to trial. These forms of dispute resolution are gaining in popularity and are shifting the role divorce attorneys play from representing their clients in a legal battle to acting as divorce mediators who help their clients achieve their goals. In order to determine which approach might be right for you, it’s helpful to understand the process each one entails.

Mediation

The goal of mediation is for a neutral third party to help disputants come to a consensus on their own. In mediation, a professional mediator works with the conflicting sides to explore the interests underlying their positions. Parties in mediation find it effective at allowing them to vent their feelings and to fully explore their grievances.

Mediation sometimes requires the parties to sit in a room together, while other times the parties are in separate rooms and the mediator goes back and forth. This is typically referred to as Kissinger style shuttle diplomacy after it was used to describe the efforts of the United States Secretary of State, Henry Kissinger.

Mediation may be particularly helpful when parties have a relationship they want to preserve (e.g., family members, neighbors or business partners have a dispute) or when emotions are getting in the way of finding a resolution. An effective mediator can hear the parties out and help them discuss issues with each other in an effective and nondestructive manner.

Arbitration

Another form of alternative dispute resolution in family law cases is arbitration where a neutral third party serves as a judge who is responsible for resolving the dispute. The arbitrator listens as each side argues their case and presents relevant evidence, and then renders a binding or non-binding decision, depending on the type of arbitration entered into. Arbitration is less formal than a trial, and the rules of evidence are often relaxed.

Although used more often in civil litigation, arbitration is less often used in divorce cases. In marital dissolution cases, an arbitrator’s decision is not necessarily final, and the parties may still be able to resolve key issues before a court at a later date. It is important to keep in mind that most out-of-court alternatives for resolving a divorce will still require some level of court approval.

Litigation

Perhaps the most recognizable form of dispute resolution, litigation involves two parties facing off before a judge or judge and jury (Currently, Texas and Georgia are the only states that offer spouses the opportunity to litigate their divorce before a jury). During the trial of a divorce case, the attorney’s for each party present evidence on contested issues while the judge (or jury) is responsible for weighing that evidence and making a ruling.

Typical issues that arise in litigation are the determination of the separate property of a party, how to divide community property and liabilities as well as determination of the validity of a pre- or post-nuptial agreement. If children are present the custody arrangement, child and spousal support as well as the time sharing schedule of the children are often areas prone to increased litigation.

It is important to keep in mind that all of the alternative dispute resolution processes are available in settling any ongoing dispute such as property division, child custody or support. However, the effectiveness of these alternatives in contrast to a full trial depend on factors such as how willing the parties are to work on resolving these issues and the general degree of animosity between them.

These choices can make the decision to divorce a complex field. If you are considering filing for divorce, the Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters.  Please contact the Certified Family Law Specialists at Lonich & Patton for further information.  Also, please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

Source: http://www.pon.harvard.edu/daily/dispute-resolution/what-are-the-three-basic-types-of-dispute-resolution-what-to-know-about-mediation-arbitration-and-litigation/?mqsc=W3814478&utm_source=WhatCountsEmail&utm_medium=PON%20Harvard+Neg%20Insider%20(Tuesday/Thursday)%20Standard%20Rule+Neg%20Insider%20(Tuesday/Thursday)%20Standard%20Rule&utm_campaign=Neg_WIR_10242015

 

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The Many Forms of Nonprobate Transfers

Posted October 7, 2015 in Estate Planning by Michael Lonich.

Many Americans, even those with children, die without a will. State intestacy laws may provide a framework for how a decedent’s asset should be divided amongst his or her heirs. However, many know that it might be wise to avoid the probate process because it ties up property for months and it can be very costly.[1] There are other processes in place for transferring remaining assets after death. In California, there are several options to transfer assets without probate administration.

Here are a few of these options for transferring assets at death, while avoiding probate: 1) joint tenancy, 2) community property with right of survivorship, and 3) California Probate Code Section 13100 et seq.

  • Joint Tenancy
    • Pros
      • Joint tenancy has a right of survivorship.
      • Each joint tenant owns an identical percentage of the entire asset.
      • Clearing the title to a joint tenancy upon the death of a joint tenant is often a straightforward process.
      • Joint tenancy may be severed unilaterally.
    • Cons
      • The new joint tenants will have the power to manage the asset along with the original owner, which may not be the intention of the original title owner.
      • The transfer may have gift tax consequences.
  • Community Property with Right of Survivorship[2]
    • Pros
      • Real or personal property may be owned by a married couple as community property, but with the survivorship features of an asset held in joint tenancy.
      • Community property with right of survivorship is normally more favorable than joint tenancy ownership since both the decedent’s and the survivor’s half of the asset receive a basis adjustment equivalent to the fair market value of the asset at the death of the first person to die. When the surviving spouse dies later still holding the asset, the basis will receive another adjustment to the fair market value.
      • A spouse can establish an account that provides for a nonprobate transfer at the spouse’s death to a non-spouse beneficiary.
      • There is no gift tax consequence.
    • Cons
      • A spouse may be able to act alone to revoke the right of survivorship.
  • Probate Code Section 13100 et seq.
    • Pros
      • If the total gross value of the decedent’s real and personal property in California does not exceed the amount of $150,000, the decedent’s personal property may be conveyed by affidavit or declaration pursuant to Probate Code Section 13100 et seq. and no court involvement will be required.
    • Cons
      • Probate Code Section 13100 et seq. is only available if no probate proceeding will be commenced for the decedent’s estate or the personal representative of the decedent’s estate consents in writing to the transfer of property through this method.
      • May not be used to transfer real property, regardless of the value of real property.

These are only a few of the methods to avoid probate administration of a decedent’s estate. In planning for nonprobate transfers, individuals should be aware of the pros and cons of their options and anticipate which option works best for their needs. Individual should also be aware of issues regarding liquidity and the intended beneficiaries. Even so, many can benefit from the use of the various nonprobate transfers.

Estate planning is a highly complex area of law. If you are interested in nonprobate transfers or have any questions regarding your current estate plan, please contact the experienced estate planning attorneys at Lonich & Patton for further information. The attorneys at Lonich & Patton have decades of experience handling complex estate planning matters, including nonprobate transfers, and we are happy to offer you a free consultation. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.



[1] http://www.nolo.com/legal-encyclopedia/why-avoid-probate-29861.html

[2] Cal. Civ. Code 
§ 682.1

[3] California Trust and Estates Quarterly (2014)

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