green house

SmartMoney has posted an article on MSN indicating that divorcing couples no longer want the family home.  This should really be of no surprise.  Given that homes these days are essentially losing investments laden with debt; what person really wants to come out of a divorce with a massive debt obligation on their hands?  This is the first time in a long time anyone has seen a bear market in housing.  To make matters worse, the house is the kind of debt obligation that is unique.  Unlike a bad stock that you can unload when the investment goes sour or a credit card which is an unsecured obligation, a mortgage is usually tied to one or two lenders.  The more lenders involved, the more difficult it is to get all parties cooperating; not to mention you still have to deal with the other divorcing party who may be hostile and not wanting to communicate about this.

The declining housing market is wreaking havoc with divorce rates and in trying to have clean divorce settlements.  The market itself just isn’t allowing homes to sell like the good ole’ days.  The MSN article alludes to giving advice such as “waiting it out”, “renting out the house” or considering a “short sale”.  What if none of those are good options?  The first two involve working with the other party in a divorce and the third involves receiving written permission from one or maybe two lenders.  This sounds all good but the bank is literally a big enemy where you have an underwater home and a divorcing couple. 

Bankruptcy issues are crossing over into family law in these types of scenarios.  I cannot provide any significant advice on this issue except to talk to your attorneys about this and one of them might in fact have to be a bankruptcy attorney in certain situations.  One thing is for certain, while deciding to divorce can be challenging; unloading the biggest debt a couple can have that is tied to a bank, lender or other third party, is even more challenging. 

Link to MSN Article:  http://articles.moneycentral.msn.com/Banking/HomeFinancing/a-recession-divorce-no-one-wants-the-house.aspx

For more information concerning this issue or others involving divorce and the marital home, consult with a San Francisco divorce attorney in your area. 



Standard Family Law Restraining Orders

Litigants are often unaware of what are called Automatic Temporary Restraining Orders [ATRO] issued by the court when they initiate divorce proceedings.  The ATROs  are listed in the Summons which is a mandatory form that is served with a Petition for divorce.  The person who files the Petition for Dissolution must abide by them on filing; the person receiving the Summons is bound to them upon proper service of the Petition.

The ATRO’s mean that both parties are restrained from:

1.  Removing the minor child or children of the parties from the State without written consent of the other party or further order of the court.

2.  Cashing, borrowing against, canceling, transfering, disposing of, or changing the benficiaries of any insurance or other coverage including health, life, automobile and disability, held for the benefit of the parties.

3.  Transfer, encumber, hypothecate, conceal or dispose of property [of any kind] without the written consent of the other party or further order of the court except in the usual course of business or necessaries of life.

4.  Create a nonprobate transfer or modify a nonprobate transfer that affects the disposition of property without the written consent of the other party or further order of the court.  Before revocation of a nonprobate transfer can take effect or a right of suvivorship is eliminated, notice of the change must be filed and served on the other party.

Violation of these temporary restraining orders acts as if you are disobeying a court order.  It is imperative your attorney advise you of these restraining orders upon the initial filing because very often, litigants do not read the 2 page Summons which contains this information.  Follow the link to see what a Summons looks like.

http://courtinfo.ca.gov/forms/documents/fl110.pdf


John Marcotte: Credit to boingboing.net

John Marcotte: Credit to boingboing.net

Web designer John Marcotte is seeking the voters of California to support him in his drive to ban divorce in the state permanently.  After voters outlawed same sex marriage in 2008, Marcotte believes that since voters sought to protect the sanctity of marriage that logic follows they would be willing to ban divorce as well.  Despite the crudeness of this, Marcotte is receiving some support from others joining him in his crusade to ban divorce.  Marcotte needs 694,354 signatures by March 22 to have it appear on the next ballot.  At this time, some same sex marriage coalitions have not joined Marcotte in his efforts. 

John Marcotte is Catholic and voted against Proposition 8.  The United States divorce rate was last 47.9% but those figures do not include statistics from six states including California who no longer reports their divorce rates to the National Center for Health Statistics. 

Personally I don’t feel this helps the plight of same sex marriage advocates who have spent a great deal of time, effort and money to get others to recognize this is a serious subject that goes beyond publicity stunts.  Mr. Marcotte may feel this is not intended as a publicity stunt but his actions of seeking to ban divorce altogether show extreme logic in trying to prove the point that same sex marriage should be on the same plane as traditional marriage.   

changing-handsMany represented litigants in divorce proceedings are fully aware of attorney fees, expert fees, appraisal fees, notary fees etc.  These kinds of fees are usually anticipated by most individuals expecting a divorce or a child custody battle.  However, most people who walk the halls in divorce court are unaware of the additional fees levied by the Superior courts of each county.  These fees can add up quickly and usually catch most individuals off guard who are not expecting them.

Technically even a divorce without an attorney is not free.  Unless you qualify to have your court fees waived and fall in a very low income bracket set by the local county, you will pay initital filing fees, stipulation fees, and associated fees for filing for a hearing.  Stipulation fees???  Yes, even if you agree with the other party, you still have to pay a court fee to have a written stipulation formally approved by a Judge.  If you want to file for a hearing before a family court judge, expect to pay a court fee just to get the matter on calendar.

It is no secret that the State of California is in a severe budget crisis.  All local agencies including the courts are getting squeezed.  This is most evident in the mandatory furloughs that the San Francisco Superior Court and every court in California has instituted through June 2010.  Every 3rd Wednesday, the courts are now closed.  To no surprise, fees for initial divorce filings also increased overnight.

As of January 1, 2009, the fee in San Francisco to make an initial filing for divorce was $365.  In September 2009, the court raised that amount to $370.  Could we see this go up in January 2010?  With the furloughs and the increased fees, this is putting immense pressure on the courts who are already overloaded with work, had their budget slashed and are sorely understaffed.   In short, make sure you account for the court fees you will have to pay if you are considering filing for divorce.

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