Category: Uncategorized

By Deborah A. Perkins, Esq.

Do you own your own business?  Are you concerned with what will happen to the business during a divorce?  Here are some things you should know.

Resolving the issue of a community property business in a divorce raises issues in both family law and business law.  As such, it is a good idea to consult both types of attorneys.

The most common resolution of this issue is where one spouse buys the other spouse out of the business, i.e. a lump sum cash payment in exchange for full ownership of the business.  In this case, the spouses will need to agree on the value of the business.  There are many ways to arrive at a business valuation, but usually a finance professional is hired to provide a valuation.

Another option for resolving this issue is for one spouse to actively run the business and the other spouse to maintain only an ownership interest.  The non-managing spouse may have voting rights, but would not be involved in the day-to-day operations.  In this case, a valuation is usually not necessary.

Another option, although not often used by divorcing spouses, is for both spouses to continue to own and operate the business together.  In this case, a buy-sell agreement with exit strategies should be drafted by a business law attorney.  Such an agreement is very helpful in preventing future disputes between the spouses regarding how either spouse can cash out his or her interest at a future date.

Finally, the business could be sold to a third party and the proceeds split between the spouses.  A business law attorney would be needed to assist with such a sale.

Regardless of the option you choose with respect to your business upon a martial dissolution, there are a number of factors to consider, each with its own legal consequence.  The family law and business law attorneys at Schneiders & Associates, L.L.P. work together to achieve the best result for our business clients pursuing a marital dissolution.  Please call for an appointment to discuss your particular situation.

By Deborah A. Perkins, Esq.

What if you could keep your divorce out of the courtroom, save time and money, and obtain a more satisfying result? You can, through divorce mediation.

Mediation is a voluntary process in which you and your spouse meet with a mediator who assists you in reaching an agreement. The mediator is not a judge; he or she does not decide your divorce for you. The mediator simply facilitates discussions and negotiations in an effort to help you settle your divorce. Although the mediator is often an attorney, he or she does not represent either spouse and cannot give legal advice.

Each mediation session is approximately two to four hours in length. The number of sessions required will depend on the complexity of the issues and the willingness of the spouses to work together. At the first session, the mediator helps outline the issues to be resolved and determine what information needs to be gathered. Subsequent sessions generally focus on developing and analyzing potential solutions.

Since the mediator cannot give legal advice, spouses often find it useful to consult with an attorney during the mediation process. Attorneys usually do not attend the mediation sessions.

One significant advantage of mediation is the cost savings. A mediated divorce generally costs thousands of dollars less than a traditional litigated divorce. Instead of each spouse paying the hourly fee for his or her own attorney, each can just pay half of the mediator’s hourly fee. Even with the cost for the consulting attorneys, the overall cost of a mediated divorce is significantly lower.

Divorce mediation has other advantages as well. First, a mediated divorce is often settled within a few weeks or months, as opposed to a litigated divorce which often takes a year or longer. Second, mediation is confidential so spouses avoid airing family issues in open court. Third, spouses who mediate have the mindset that they are working together instead of being at war. As a result, the divorce is usually much easier on the children. Finally, studies show that spouses tend to be more satisfied with a process in which they remain in control, as opposed to handing control over to the judge.

Since most family law attorneys either act as mediators or can refer you to one, they are an excellent source of information and can help you determine if the mediation process is appropriate in your case.  If you are interested in learning more about divorce mediation, you may contact a family law attorney at Schneiders & Associates, LLP.

By Deborah A. Perkins, Esq.

“Do it yourself” divorce is fraught with risks – even if your case is “simple” and both parties agree on all issues regarding division of property, support, and child custody and visitation. As many have learned the hard way, it is all too easy to make critical missteps today that will come back to haunt you down the road.

The proliferation of DIY websites and non-attorney legal document preparers give the impression that the process is simpler than it is. These services can help you deal with the court forms required to dissolve a marriage, including financial disclosures, motions, hearing notices and child support paperwork. It’s tempting to save money by using one of these services to prepare and file your divorce forms without using an attorney.

Unfortunately, these services will leave you in the lurch when things do not go as planned, as they cannot offer you any legal advice or engage in any negotiations on your behalf. Worse still, they cannot point out the pitfalls contained in your paperwork which can pose risks to your financial future long after you think you’ve put the marriage behind you.

The typical do-it-yourselfer believes that everything is correctly resolved because the court accepted and processed the forms and has issued the divorce decree. However, this may or may not be the case; and any problems can remain undiscovered for years until, for example, one spouse embarks on a significant financial transaction such as purchasing a home.

A common scenario involves incomplete (or incorrect) provisions in a marital settlement agreement, leaving both spouses legally on the hook for a mortgage. What happens when the spouse who kept the home and who is obligated to make the monthly payments fails to do so? What happens when the other spouse applies for a mortgage on a new home, but the amount of the monthly payment of the previous mortgage is still considered when calculating the debt-to-income ratio? This is just one example of how “saving money” on the front end of your divorce can cost you greatly in the future.

Even if your divorce is “uncontested,” in that you and your spouse agree on all of the settlement terms, getting legal advice upfront will ensure the process goes smoothly and that you do not encounter any unpleasant surprises in the future. A consultation with a family law attorney can identify what issues must be addressed, point out potential negative consequences of certain decisions, and let you know what to expect throughout the divorce process.

If your divorce case is “contested,” meaning you cannot agree on terms regarding your property or children, it is important that you consult with an attorney to obtain a realistic idea of what you can expect based on your legal rights under the circumstances. And, unlike the DIY services, an attorney can also represent your interests during settlement negotiations and in court.

Take the first step to protect your rights today by scheduling a complimentary consultation.

Child support disputes can bring out the worst in many parents, conjuring images of greedy ex-spouses, and children who are used as pawns in games of parental posturing and revenge. While there may be a certain degree of truth to some of these stereotypes, a variety of myths regarding child support exist.

Myth: Child support payments are based solely on the needs of the children.
Fact: California has a complex child support formula that is based on many factors.  The formula does not attempt to quantify the specific needs of each child; instead it is heavily dependent upon the income of each parent and the amount of time that each parent spends with the children.

Myth: Child support payments must be spent on the child
Fact: Although child support is intended to be used for the food, clothing, shelter, and other needs of the children, California does not require a parent to prove how he or she spent the funds.

Myth: I can move out of state to dodge my child support obligations.
Fact: Each state has its own child support enforcement agency and these agencies all work together. You cannot escape this obligation.

Myth: I can quit my job in order to avoid making child support payments.
Fact: The courts are permitted to “impute” income to a parent who intentionally quits a job, whether or not that parent is currently earning a paycheck. Obligations will continue to accrue and payments must be made.

Myth: I lost my job and can no longer afford to make child support payments, so I will be sent to jail.
Fact: If you lost your job through no fault of your own, then you will not be criminally liable for failing to make your child support payments.  However, you must petition the court to modify child support otherwise the obligation continues.

Myth: My ex-spouse uses child support payments for shopping, dining and to support a lavish lifestyle; therefore, my support payment should be reduced.
Fact: So long as the custodial parent pays expenses to feed, clothe and house the minor children, which is the ultimate purpose of child support payments, whatever else she spends money on is generally not scrutinized.

Myth: Child support payments are deductible on my income taxes.
Fact: Child support payments are not deductible to the paying parent; nor are they considered “income” to the receiving parent.

Myth: My ex-spouse claims that she can take my house, bank account, and other assets as part of a child support order.
Fact: The child support order specifies a certain amount of money to be paid each month.  Only if you fail to pay the child support ordered by the court can your ex-spouse put a lien on your house, levy your bank account, and take other steps to collect the past due amounts.

If you are receiving child support or contemplating a proceeding which will result in child support, or if you might be obligated to pay child support understand, your rights by contacting the family law attorneys at Schneiders & Associates, L.L.P.

By Deborah A. Perkins, Esq.

Regardless of how long you have been married, negotiating a settlement is the most important part of the divorce process. Although it is no easy task, working with your spouse to arrive at mutually agreed terms of your marital dissolution is easier on your wallet and your psyche. Whatever conditions caused the breakdown in the marriage are likely still present throughout the divorce negotiation, exacerbated by emotions such as anger and fear as you each transition into the next stage of your lives.

However, staying focused on what’s best for your future will serve you well as you navigate these tumultuous waters. Taking your divorce case to trial and letting the court decide what will become of your property or children is rarely in your best interest. Although you may not get everything you hoped for during a settlement negotiation, you will save a tremendous amount of money, time and emotional anguish.

Divorce settlement negotiations involve a degree of both skill and art, both of which can be attained by following a few simple tips. Even if your attorney is doing the negotiating on your behalf, it is important that you are clear regarding your priorities, so you can make decisions that are truly in your own best interest for the future life you are establishing post-divorce.

Negotiating a settlement agreement necessarily involves a certain amount of give and take, on both sides, so keep in mind that you most likely won’t get everything you want. But following the tips below can help ensure you get what’s most important to you.

• Establish clear priorities.
• Know what you can give up completely, where you can be flexible and those critical items where you are unable to budge.
• Be realistic about your options and the bigger picture, so you can be reasonable when you must “give” something in order to “take” something.
• Stay focused on the negotiation itself, and your future; avoid recalling past resentments or re-opening past wounds. Your divorce settlement negotiation is no place for “revenge” which can ultimately delay your case and cost you thousands in unnecessary legal expenses.
• If your soon-to-be-ex-spouse becomes emotional or subjects you to personal attacks, don’t take it personally. This may be easier said than done, but it is important to stay focused on your priorities and realize that such “noise” does not get you any closer to a settlement agreement.
• If your spouse presents you with a settlement offer, consider it carefully and discuss it with your attorney. It may not include everything you want, but that may be a fair trade off in order to finalize your divorce and move on with your new life.
• If you are negotiating your own settlement agreement, consult with an attorney before you make an offer to your spouse or sign any proposed agreement.

By keeping the focus on your priorities, and avoiding the emotionally-charged aspects of your failed marriage, you can ensure you negotiate a divorce settlement agreement that you can live with.

The family law attorneys at Schneiders & Associates, L.L.P. can assist you at every stage of the negotiation process.  Whether you are just beginning your divorce or are already considering your settlement options, we are here to help.  Contact us today for a complimentary consultation.

By Ted J. Schneider, Esq.

When it comes time for your business to move into a new commercial space, make sure you consider the terms of your lease agreement from both business and legal perspectives. While there are some common terms and clauses in many commercial leases, many landlords and property managers incorporate complicated and sometimes unusual terms and conditions. As you review your commercial lease, pay special attention to the following issues which can greatly affect your legal rights and obligations:

The Lease Commencement Date

Commercial leases typically will provide a rent commencement date, which may be the same as the lease commencement date. Or not. If the landlord is performing improvements to ready the space for your arrival, a specific date for the commencement of rent payments could become a problem if that date arrives and you do not yet have possession of the premises because the landlord’s contractors are still working in your space. Nobody wants to be on the hook for rent payments for a space that cannot yet be occupied. A better approach is to avoid including in the lease a specific date for commencement, and instead state that the commencement date will be the date the landlord actually delivers possession of the premises to you. Alternatively, you can negotiate a provision that triggers penalties for the landlord or additional benefits for you, should the property not be available to you on the rent commencement date.

Lease Renewals

Your initial lease term will likely be a period of three to five years, or perhaps longer. Locking in long terms benefits the landlord, but can be off-putting for a tenant. Instead, you may be able to negotiate a shorter initial term, with the option to extend at a later date. This will afford you the right, but not the obligation to continue with the lease for an additional period of years. Be sure that any notice required to terminate the lease or exercise your option to extend at the end of the initial lease term is clear and not subject to an unfavorable interpretation.

Subletting and Assignment

If you are locked into a long-term lease, you will likely want to preserve some flexibility in the event you outgrow the space or need to vacate the premises for other reasons. An assignment transfers all rights and responsibilities to the new tenant, whereas a sublease leaves you, the original tenant, ultimately responsible for the payments due under the original lease agreement. Tenants generally want to negotiate the right to assign the lease to another business, while landlords typically prefer a provision allowing for a sublease agreement.

Subordination and Nondisturbance Rights

What if the landlord fails to comply with the terms of the lease? If a lender forecloses on your landlord, your commercial lease agreement could be at risk because the landlord’s mortgage agreement can supersede your lease. If the property you are negotiating to rent is subject to claims that will be superior to your lease agreement, consider “negotiating a nondisturbance agreement” stating that if a superior rights holder forecloses the property, your lease agreement will be recognized an honored as long as you fulfill your obligations according to the lease.

Schneiders & Associates, L.L.P. is a multi-service law firm located in Oxnard, California with a focus in real estate related matters.