Law Office of Heather Cullen

Facebook | Divorce Mediation

2010-09-30T19:55:00.000-07:00

Understanding Mediation

2010-05-21T15:53:00.001-07:00

Mediation, which can be described as "assisted negotiation," is the fastest growing Alternative Dispute Resolution (ADR) method. Courts in many jurisdictions now require that disputes be mediated before they will be heard in court. Mediation differs from arbitration; in mediation, the parties create their own settlement terms with the assistance of a neutral mediator. The mediator's job is to keep the parties conversing about their issues and to move them toward an agreement. To accomplish this, the mediator engages in discussions with both parties to identify the core issues and possible options to solve those issues. At the same time, the mediator tries to obtain an agreement on minor issues to move the discussion forward. The mediator may propose various settlement options or suggestions when appropriate. Lawyers do not have to be present during mediation. However, they may be a part of this process, they can point out the risks of the various settlement proposals and help the parties focus their energies on solutions that best meet their legal needs. Mediation is not binding unless the parties reach an agreement and the agreement is approved by the court.

The key qualities of the mediation process are its voluntary nature (the parties can leave at any time for any reason), collaborative approach, element of control (no decision can be imposed without the parties' consent), confidentiality and impartiality. Based on having resolved their own conflict, the parties may achieve greater satisfaction, which in turn leads to a greater likelihood of compliance with the decision.

The selection of a mediator will depend on the dispute and the parties' personalities. A mediator must be a good listener and a creative problem-solver. A mediator will also identify and clearly articulate the parties' fundamental underlying interests and help the parties over the emotional roadblocks to resolution. The mediator must also have sufficient experience, qualifications and certifications in order to be hired for mediation.

The success of mediation will depend on the attitudes of the participants. If the parties think of mediation as a means to achieve a tactical advantage, such as causing delay in the resolution process, agreement will be unlikely. On the other hand, for parties that enter into mediation in a good-faith attempt to air their grievances and reach a compromise, the process holds great promise. It is essential, however, that the parties move beyond the personalities and emotions involved if mediation is to be successful.

If parties have attempted to negotiate a settlement with each other but have failed, mediation may be the most efficient next step in the resolution process. It is particularly appropriate when the parties wish to remain on good terms with each other, since mediation avoids much of the hostility that may be present during litigation. Mediation is often fast and economical, and it can be customized to meet individual needs. However, mediation may not be the best option for everyone, and may be inappropriate in some cases. It is important to discuss mediation with your attorney and determine if it is a suitable option for you.

The Law Office of Heather Cullen
4094 Chestnut Street
Riverside, CA 92501
951.715.4632
www.LawCullen.com

Facebook | Heather Cullen, Attorney at Law: Understanding Mediation

2010-05-21T15:53:00.000-07:00

Facebook | Heather Cullen, Attorney at Law: Understanding Mediation

Establish Parental Relationship (Paternity)

2010-04-13T13:56:00.001-07:00

Paternity

Paternity refers to the legal determination of who is the biological father of a child. While the identity of a child's biological mother is usually known, the father's identity may not always be as certain. Paternity issues often arise in cases involving child support, but they can also be important in relation to adoption, inheritance, custody and visitation, health care and other issues.

An action to establish paternity is a civil proceeding.

DNA profiling is a major breakthrough in paternity testing. In a DNA test, the scientist examines the genetic material that the child inherited from his or her biological parents. First the child's genetic characteristics are compared to those of the mother. The characteristics in the child that are not found in the mother are determined to have come from the father. If the man being tested does not have these genetic characteristics in his DNA, he can be scientifically excluded. If he does, the probability of his paternity is calculated. DNA testing can establish a father's paternity with over ninety-nine percent accuracy and can also be done even before the child is born. Along these lines, DNA testing is generally done only when a party contests paternity allegations. For instance, the putative (or alleged) father in a paternity action, that is the basis for child support, may require proof that he is the child's father before he consents to payment of support. In other situations, the mother may contest the putative father's paternity, such as when a man attempts to gain custody of, or visitation with, a child he believes to be his.

In contrast, paternity may also be established by circumstantial evidence, such as when a man takes a child into his home and holds the child out to the public as his own. A married man is presumed to be the father of a baby born to his wife during or shortly after their marriage as well. Once paternity is established by DNA or circumstantial evidence, the father may be ordered to pay child support for his child. A father who is not married to the child's mother generally will not be awarded custody of the child if the mother is providing reasonable care, but he may receive preference over third parties, such as grandparents or prospective adoptive parents.

Paternity issues, like most family law issues, can have far-reaching implications, both financially and emotionally. It is important when faced with these issues to seek the counsel of an objective, experienced lawyer who can guide clients through the legal maze of these difficult, emotionally charged issues.

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2010-04-13T13:55:00.000-07:00

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Child Support

2010-02-19T13:28:00.000-08:00

Child Support

When married parents divorce or separate, or when only one of the unmarried parents has custody of a child, the court may order the non-custodial parent, or the one with whom the child does not live, to pay a certain portion of his or her income as child support.

In the United States, nearly half of all marriages end in divorce and almost one-fourth of all children are born to unmarried parents. As a result, the regulation of child support is an important social issue. Whereas once the arrangement for and payment of child support was left to the parents, now state child support enforcement agencies are taking an aggressive role in seeking payments from non-custodial parents. Frequently, the agency and the court will work together to implement a child support withholding order, by which the child support amount is automatically taken from the payer's paycheck. If the child support payments become delinquent, the agency can implement other collection mechanisms, such as withholding support amounts from tax refunds, or seizing real estate or personal property.

Child support orders are issued by the family court, which bases the amount of support on state child support guidelines. These guidelines establish the amount of required support, based largely on the non-custodial parent's income and the number of children. The court will also take into account other relevant factors, such as the custodial parent's income and the needs of the children. The court can deviate from the guidelines if there are significant reasons to do so. The fact that the custodial parent has a high income does not justify deviation from the guidelines; by law, children have the right to benefit from both parents' incomes. Child support can be increased if there is a change in circumstances justifying the increase, such as an increase in the payer's income or the cost of living, a decrease in the custodial parent's income or an increase in the child's needs. Similarly, the amount can be reduced if the circumstances justify the reduction.

In cases involving unmarried mothers seeking child support, the first step may be to legally establish the father's paternity of the child. The father can do this voluntarily, but if he does not the mother may need to bring a lawsuit to establish paternity, which is usually done using genetic (DNA) testing. The court will order the putative, or alleged, father to submit to the testing if he does not agree to do so voluntarily. Once paternity is established, the court will issue an order for child support.

When the non-custodial parent moves to another state, the custodial parent may have to rely on the Revised Uniform Reciprocal Enforcement of Support Act to implement or ensure payment of child support. This Act provides the procedure by which a support order issued in one state can by enforced by the courts of another state.

A lawyer experienced in family law may assist a parent in obtaining an order for child support, and in enforcing the order once issued. Family law lawyers may also represent either parent in a support modification proceeding or in a proceeding to establish or disprove paternity. Given that the well-being of a child is at stake, child support issues are an important concern, and the assistance of an experienced lawyer is essential to the process.

If you would like to discuss this issue further, please contact The Law Office of Heather Cullen at (951) 715-4632 or visit us on the web at www.LawCullen.com.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

Facebook | Heather Cullen, Attorney at Law: Child Support

2010-02-19T13:27:00.000-08:00

Facebook | Heather Cullen, Attorney at Law: Child Support

Child Custody & Visitation

2010-01-13T12:56:00.000-08:00

When parents divorce, the divorce decree will specify with whom the children will live, and how often and under what circumstances the other parent will visit with the children. Often, parents work out these arrangements between themselves, either voluntarily or with the assistance of their attorneys or a mediator. When they are unable to reach a decision, or when unmarried parents are unable to agree on who will have custody of their child, the court may intervene and make a decision based on the "best interests of the child."

In some situations, physical custody is awarded to one parent (sole custody). However, often the custodial parent has "primary physical custody" and shares "legal custody" of the child with the non-custodial parent who has "secondary physical custody" or "visitation". "Legal custody" includes the right to make decisions about the child's education, religion, health care and other important concerns. When one parent is awarded sole physical custody, the other parent is granted visitation, either according to a clear schedule of dates and times, or on a "reasonable" basis. If allegations of abuse have been raised against the non-custodial parent, any visitation granted may be subject to supervision by a neutral third party. Grandparents and stepparents may also be entitled to visitation privileges.

Some parents have chosen a joint-custody arrangement in which the child spends an equal amount of time with both parents. Since joint custody requires a high degree of cooperation between the parents, courts are reluctant to order joint custody unless both parents are in agreement and can demonstrate the ability to make joint decisions and cooperate for the child's sake. Another option is split custody, in which one parent has custody of one or more of the parties' children and the other parent has custody of the other(s). Courts usually prefer not to separate siblings, however, when issuing custody orders.

When the child's parents are unmarried, most state laws require that the mother be awarded sole physical custody unless the father takes action to be awarded custody. An unwed father may have difficulty gaining custody over a mother who is a good parent, but he will usually take priority over other relatives, foster parents or prospective adoptive parents.

In deciding who will have custody, the courts consider various factors. The overriding consideration is always the "best interests of the child.” Often, the main factor is which parent has been the child's primary caretaker. If the children are old enough, the courts maytake their preference into account in making a custody decision. Once entered, a custody award can be changed by the court if the parent's or children's circumstances have changed.

Some commentators have criticized the courts as being gender-biased, since many custody awards are in the mother's favor. Others respond to this criticism, however, with the fact that historically mothers have been, and in many cases continue to be, the children's primary caregiver, so the higher number of awards to mothers is appropriate. As more fathers become more actively involved in their children's care, there likely will be more custody awards to fathers. Because custody and visitation decisions involve such important considerations and impact so many lives, the assistance of an experienced lawyer is an essential element of the decision-making process.

Please contact my office if you need more information on this issue.

Law Office of Heather M. Cullen
A Professional Corporation
4094 Chestnut Street
Riverside, CA 92501
Telephone: (951) 715-4632
Website: LawCullen.com
Email: Office@LawCullen.com

Facebook | Heather Cullen, Attorney at Law: Custody and Visitation

2010-01-12T11:30:00.000-08:00

Facebook | Heather Cullen, Attorney at Law: Custody and Visitation

Facebook | Heather Cullen, Attorney at Law: DIVORCE

2009-12-27T21:53:00.000-08:00

Facebook | Heather Cullen, Attorney at Law: DIVORCE

Happy Holidays

2009-12-23T21:28:00.001-08:00

We wish you a very happy Holiday Season and a New Year filled with peace and prosperity.

Facebook | Heather Cullen, Attorney at Law

2009-12-15T16:19:00.000-08:00

Facebook | Heather Cullen, Attorney at Law

Divorce (“No Fault”)

2009-12-15T16:03:00.000-08:00

In a marriage dissolution proceeding, commonly referred to as a “divorce”, the marital contract of the parties is terminated and other related issues, including child custody, child support and visitation, spousal support (alimony) and property and debt division are decided.

In the past, courts would not grant couples a divorce unless one of the spouses could establish sufficient grounds (such as cruelty, desertion, adultery, nonsupport or neglect, alcoholism, drug addiction, insanity or criminal conviction) to terminate the marriage. Today, in California, divorces are considered "no-fault," that is, the parties can terminate their marriages on the grounds of incompatibility, irreconcilable differences or an irretrievable breakdown of the marital relationship.

Property distribution may be strongly contested in a divorce action. Commonly distributed property includes real estate, personal property, cash, bank accounts, stocks, bonds, ownership interests in family businesses and retirement benefits. There are two main methods of property distribution, equitable-distribution or community property.

California is a community property state. The court will equally divide all marital property, which generally consists of all property acquired during the couple's marriage. Each of the spouses has a one-half interest in all of the property acquired during the marriage. It is presumed that all property acquired by either spouse or both of them during the marriage belongs to the community, unless proven otherwise.

Although non-marital property, including property acquired before marriage, gifts to one spouse and property inherited by one spouse are usually not divided between the spouses, the amount of non-marital assets held by each party may affect the court's distribution of marital property.

When property is evenly/equitably divided, each asset is not necessarily split between the parties. Rather, each party is given his or her fair share of the total package. One spouse may receive more property than the other receives, but make up the difference through cash payments. Alternatively, in some cases, the actual distribution may take place at a future date. This may occur when there is significant equity in the family home, but a sale is not in order because the custodial parent wishes to live in the home until all of the children are raised. In such cases, the equity is determined at the time of divorce or separation, and the shares are then calculated, but the money does not change hands until the house is actually sold.

Recent developments in property-distribution law include the recognition of a homemaker spouse's contribution to the increase in value of a family business, and the wage-earner spouse's contribution to the other spouse's education and professional degree. Courts are now awarding greater shares of family businesses to wives who managed the household so their husbands could tend to their business, and dividing the value of a professional degree or practice, such as law or medicine, between both spouses if one supported the other financially while the necessary education and experience were obtained. Property and debt distribution in a divorce can be a difficult process, and the advice of an experienced family law lawyer can help to expedite the process.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

Law Office of Heather M. Cullen
A Professional Corporation
4094 Chestnut Street
Riverside, CA 92501
Telephone: 951.715.4632
Fax: 951.715.4601
E-mail: Office@LawCullen.com
WEBSITE: www.LawCullen.com
www.RiversideFamilyLaw.com