Should I Stay or Should I Go:  Thinking About Divorce

If you are thinking about getting a divorce, you are not alone.  The decision to pull the trigger can have consequences for your finances, your family, and your freedom to move or make decision.  This article will help walk you through questions to ask an experienced divorce attorney if you are on the fence about whether you should get a divorce at all or if you are deciding when you should get a divorce.

What will be the effect on my time with children?

If you have children, your time and decision-making power for them are likely to be two of your top concerns.  Discuss with your attorney some of the typical parenting plan arrangements so that you can get an idea ahead of the divorce of the options that are best for you.

How will a divorce impact my ability to move out of state?

If you have children, a divorce can impact the ease with which you can move out of state.  Consider your long terms plans for yourself and your children, and if you prefer to settle outside the state you are currently in, then that’s definitely a topic you should discuss with your attorney.

How will divorce impact my standard of living?

Think about the property/assets that you had prior to marriage and those that were acquired during marriage.  Discuss how these will be divided.  Consider timing.  Are you or your spouse eligible for a raise or bonus in the near future.  Is now a good time or would a short wait be more or less advantageous to you?  It’s important to think in advance about the optimal timing.

What are the tax consequences?

Evaluate how taxes will likely play into the mix.  Will keeping or selling property have tax consequences?  How do the retirement accounts play in?  How will claiming the children on taxes factor in?

How adversarial is my spouse likely to be?

Planning ahead includes thinking through your spouse’s reaction to divorce and preparing to manage his or her reaction.  If you can find a fair middle ground with your and your spouse, you will both save on legal fees that come with an adversarial posture.

What would be the consequences of losing at trial?

Be sure to understand all the consequences of a plea and all the consequences of losing at trial so that you can make an informed choice.  Get the whole picture of counseling, probation, and fines.

The choice of whether to call it quits on the marriage or keep trying to work things out is a difficult one with many unknown consequences.  If you can get an idea of what you would be entitled to and how you will be impacted overall, you can make a better decision about the right way and time to end the marriage.

 

 

Changing the Terms of Your California Divorce Decree

Circumstances change over time, and sometimes that means that the divorce decree, or Final Judgment of the Dissolution of Marriage, needs to be modified. There are two ways a divorce judgement can be changed.

  1. Appealing the judgment to the California District Court of Appeals.

Appealing the judgment is a method that is not used as often because appeals are usually only granted If the trial court did not apply the law correctly or if the judgment was the result of one of the party’s bad faith, such as intentionally hiding assets.

  1. Motion to Modify the Terms.

A motion to modify the terms is the more commonly used approach to change the divorce decree.  Modifications are usually more likely to be successful, less expensive, and faster.

  • Can modifications be temporary?

Yes, modifications can be either temporary or permanent.  For example, if a party has lost his or her job, the divorce judgment may be modified to change child support or alimony temporarily.

  • Can modifications be permanent?

Yes, modifications can not only be permanent, but they can change some or even all of the divorce decree.   Examples of a permanent modification might be where one party permanently changes careers or acquires a disability or injury which permanently changes that party’s ability to pay child support or alimony.  Other changes could be to child custody, where the changes accommodate the growing and changing needs of children.

Some people feel locked into the divorce decree, perhaps because they don’t realize that changes are possible or perhaps because they fear the pandora’s box that may be opened if they readdress the current terms.  An experienced divorce attorney, such as David Knecht, can provide advice about how to modify your divorce decree to make it right for you.

California Divorce:  What Happens if You Want to Move Out of State With Your Children?

Your rights with respect to your children will be governed by your own specific custody situation, but this article will discuss some of the general topics relating to relocation that you can discuss with your attorney.

  1. Can one parent relocate out of state and take the children?

In general, a parent who has sole custody of the children can move out of state, unless the other parent can show that the children will be harmed.  If the parents have joint physical custody and one parent opposed the other one leaving, the parent who wants to relocate will have to show the court that the move is in the best interest of the children.

  1. Can a parent take a vacation or trip out of the state or country with the children?

If the other parent is going to miss their visitation, you will typically need that parent’s permission to travel out of state with your children.  You can also look at your order and see whether it contains restriction on travel.  If so, you will need a special order to modify those terms.

  1. Can custody decisions be made in the states of each parent, if they are not in the same state?

 

No, custody decisions are only made in one state.  Here is some general information in what courts look at for determining the right state for the decision:  if the state is the child’s home state (living in the state for the last 6 months), or if the child has significant connections to people in the state, so that it can be proven that the child’s care, personal relationships, etc. are based there, or if the child is at risk of being abused or neglected if sent back to a different state.  (See the Uniform Child Custody Jurisdiction and Enforcement Act for complete information on this topic.)

Taking your child out of state in violation of the order can be serious business, so consult an attorney experienced in family law to get answers on whether you can take a trip or relocate with your family.  David Knecht is an experienced family attorney who can find the answers for you.

 

Dating and Divorce:  Can Dating Impact Your Divorce in California?

If you are in limbo during the sixth month waiting period for a California divorce, you may be wondering if you can start dating again.  This article will discuss the ramifications dating may or may not have on your California divorce.

California is a no fault state, so dating will not impact your ability to get a divorce.

In California, you do not need to prove that one party did something “wrong” in order to file for divorce. Divorces are generally filed for “irreconcilable differences,” so if whether you are dating or not dating during the marriage or separation period is irrelevant to your divorce.

Dating could impact spousal support if you are living with the new boyfriend/girlfriend.

Section 4323 of the Family Code states: Except as otherwise agreed by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabitating with a nonmarital partner.

This does not mean that living with your new boyfriend/girlfriend will for sure impact the spousal support.  With a rebuttable presumption, you can present evidence to show that your need for spousal support is not reduced by the cohabitation. For example, if you showed that the new partner did not provide any of the money used for the cohabitation, then that may be sufficient to overcome the presumption.  The facts will vary depending on your circumstances, so consult with an attorney about your case, but the point of this section is to make you aware that living with someone new could impact your spousal support so that you can research the issue further.

Dating could impact custody.

The court will be looking at the best interest of the child to determine custody, so the person that you are dating could potentially impact that analysis in many ways:

  • Will the person you are dating be involved in child care?
  • Does the person you are dating have any criminal history?
  • Does the person that you are dating have history with your ex such that your ex may be able to argue that the person is a bad influence on the child?

The choice of whether to begin making friends or romantic connections before your divorce is final is one that faces many couples going through a divorce.  Although dating may not impact your case itself directly, you should certainly consider all the collateral ways in which a new relationship may affect you and make an informed decision about how to incorporate someone new into your life.

 

 

 

Why the Separation Date is Important for California Divorce

If you are considering a divorce in California, your separation date is a very important issue.  This article will discuss why that date is significant.

The separation date defines the line between community property and separate property.

  • Community property in general is assets, income, or debts earned or acquired during the marriage.
  • Separate property in general is property owned before the marriage, property inherited or gifted to one part during the marriage, money from the rent or sale of a separate property, money earned while legally or physically separated from the spouse, and items given from one spouse to the other with the intention of designating it as separate property.

Community property is shared by the spouses, separate property belongs to the individual.

  • The separation date is important because the determination of the type of property determines how it is split. Community property is shared by the spouses.  Separate property is for the individual.

How is the date of separation determined by a court?

If the date of separation is unclear or the parties disagree, the court will look at two methods for determining the effective date:

  • Objective test: Here the court will determine when you started living apart from each other. However, in some instances the spouses may be living in the same home but be physically separated within the home if the evidence suggests that the spouses unambiguous conduct indicates an intent to be separated.
  • Subjective test. Here the court will look at your conduct toward each other. At what point did one or both of you think you were done? When did you decide you no longer wanted to be married?

What should you watch out for?

  • The higher earner is typically incentivized to have a date of separation sooner rather than later. It is often in that person’s interest to have an earlier date so that more of the income or assets will be earned after the separation date.

In some cases, the date of separation is agreed upon by the parties, but this article should alert you to concerns and questions that may arise if the date of separation is contested.  Consult with an attorney early in the process of considering a divorce to find out how to navigate the date of separation mostly advantageously to your case.

 

 

 

 

California Divorce:  Custody Issues with Teenagers

Do you have a teenager?  If so, you’ll want to know what rules are specific to teens when it comes to custody.  This article will focus specifically on teens and outline some of the rules and considerations that will help you create a smoother experience for your teen in coping with divorce and change.

 

  • Does my teenager have a say in custody?  Typically, yes.

 

Children of any age can address the court, but as per Family Code 3042, children 14 years of age or older specifically can address the court regarding custody and visitation, unless the court determines that it is not in the child’s best interest.  This means that unless there is a special circumstance, your teenager will get to have a voice in the process if he or she so desires.

 

  • Will it matter what my teenager’s preferences are?  Typically, yes.

 

California judges must promote the best interest in the child after considering the factors, which can include the preference of the child.  There is no exact formula as to the weight the child’s preference has in the overall determination. What this means is that your teenager’s choice isn’t necessarily the final answer, but it will likely weigh into the judge’s decision.

 

  • How does the court hear the teen’s preferences?

 

The judge has discretion to talk to the child in open court or in chambers. The parents may be present but they may not.  The judge has a wide latitude in determining how to get the information needed, and as always must take into consideration the best interest of each child.

 

  • What issues should I think through with my teenager and the divorce?

 

Often teens go through a lot of changes at this time of their lives, so you can probably expect some adjustment challenges that may need to overcome.  Does your teenager have a car that will enable the teen to ignore custody plans? Do you and the other parent have similar rules for curfew, financial support of the teen, etc.?  What will be your strategy if your teen’s preferences for custody change over time? A wise parent will think through the potential issues and challenges that may arise with the teen and talk about those issues before they become big problems.

 

  • Can I modify the custody arrangement?  What if my teenagers preferences change?  Yes.

 

Yes, the existing custody order may be modified when there has been a change in circumstances. It may be that the teen’s preference is the change in circumstances, or it may be that other changes are prompting a modification. Again, the court will consider what suits the best interest in the child and will consider all the same factors that were used initially to establish custody. The teen can play a role in voicing opinions for the modification just as the teen’s preferences factored into the original custody determination.

You teenager is going through a lot of changes themselves and in their environment, so a divorce can be an additional stress.  However, your teen is likely also more capable of understanding and processing the divorce process than small children, and the opportunity for your teen to participate in the custody process can be a step in the right direction of helping them navigate the future.

5 Strategies for a Successful Financial Divorce Settlement

You are probably new to the divorce process, so you may be at a loss on how to successfully negotiate the financial side of your divorce settlement.  This article will highlight five of the most important strategies for success in sorting out the money side.

  1. Be prepared to change your mind and don’t draw lines in the sand with the other party until you know what’s for certain the best course of action for you. Over the course of a separation and divorce process, one or both parties often have a change of perspective on what’s the best course of action.  For example, initially a party may want to keep the home or sell the home. Often expectations of custody arrangement play into this, where on parent may want to keep the home to keep the stability for the children in terms of schools, neighbors, activity programs, etc.  As the terms of child custody become clearer, you may find it more advantageous to sell the home or rent it, or your original plan may end up being the best.  Your goal is to look after the best interest of yourself and your children, so it’s often best to avoid drawing lines or going to battle until you know for sure what you want. You don’t want to pen yourself into a decision that ends up being disadvantageous.
  1. Look into the tax consequences and financing realities of each decision course. Initially couples tend to gravitate to simple solutions:  sell the house, sell the business, have one spouse buy the other out, etc.  This may be the best for you, but it may not.  Talk to a professional about the tax implications of each course of action.  For example, if you have to liquidate tax deferred investments in order to finance a buy out, then it may not be in your best interest to do so.  If selling a business at this juncture will significantly impact its value, maybe that is not the right decision. Talk to the experts and open your mind to solutions that may initially be more complicated, but may pay big over the long haul.
  1. Be conservative and avoid making big decisions until your divorce is finalized. Negotiating the finances is emotional and stressful for all parties involved, and it is typically a very bad time to make huge changes in your life. Avoid changing or quitting a job during this time if possible. Keep the status quo as much as possible financially. Don’t do anything to destroy value in any of your assets or to hide income or assets from the other spouse. 
  1. Try to settle quickly and efficiently. Some cases cannot be settled and in those instances you should feel entitled to enforce your rights.  However, in many instances a negotiated settlement saves money for both parties.  To the extent you can, take your emotions out of the picture and look at the numbers.  Educate yourself as soon as possible on the options and the ramifications of each option. The more you can take the lead in finding meeting ground that is favorable to you and acceptable to the other party, the faster your finances will be settled and you can move forward.  Typically neither party will benefit from dragging the process out. 
  1. Consult the right people. You will get a lot of advice from family, friends and coworkers. Listen to that advice and take it for what it is worth. However, take the time to consult people with experience and knowledge. The final decision is always in your hands, but the right professionals can give you the information necessary to make good decisions.

3 Basic Facts You Need to Know about Custody in California

That you love your kids is a given, so if you are considering a divorce, you are probably wondering what will happen to your children and how will the divorce impact your parenting.  This article will discuss three basic facts about custody, which will help you plan for the future.

What is legal custody and what is physical custody?

  • Custody is the legal rights and responsibilities of the parents or caretakers. Visitation is how and when each parent spends time with each child. Either parent can have sole custody of the child, or the parents can share the custody.
  • Legal custody involves the right to make decisions on behalf of your children relating to school, health care, etc.  Physical custody refers to where the kids actually live.
  • It is common for sole physical custody to be granted to one parent and then visitation to the other. For legal custody, the preference if for the parents to share legal custody.  Joint legal custody can be tricky because it means that the parents must share in the making the important decisions for their children.

What are some common schedules?

  • Schedules can vary as per the best interest of the child, but some that are commonly used are as follows:
    • For joint physical custody, common schedules include one week per each parent, 2-2-3 schedules where a parent has Mon/Tues, the other parent has Wed/Thursday and the first parent has Friday, Sat Sun.  
    • For sole custody, weekend visits from Friday-Sunday with one or two weekday visits.

Can the court favor one gender over another?

  • No, the judge cannot favor one gender over another.
  • The standard question in any analysis is what is in the best interest of the children.
  • Judges have discretion, which allows for gray areas and wiggle room.
  • Bonding is an important factor in child custody cases, and goes to the emotional attachment a child and parent have.  

 

5 Best Practices to Help Your Children Cope with Divorce

Divorce doesn’t mean your children have to suffer. You can help your children cope with the changes that inevitably come with divorce. This article will focus on what you can do, independently of the other parent, to help your children navigate the divorce and successfully adjust.

  • Speak respectfully about the other parent.

Although divorce is often an adversarial process with the ex-spouse, your children will be benefited by your protecting them from the battle. Speak respectfully of the other parent. Try to avoid venting to your children about what the other parent is wrong. This can place the child in an uncomfortable position of feeling forced to take sides.

  • Clearly communicate with the other parent and your children.

Clear communication is key to setting expectations. If you are organized, plan things out, and convey meaningful and firm messages then everyone will benefit.  When a parent assumes various schedules, meeting places or other expectations, then the situation is ripe for misunderstandings and inconvenience. Often text or email communication can prevent problems.

  • Express love to your children every day.

Your kids are going through a hard time and need you now more than ever.  Remember to tell them every day that you love them. Try to show them through your actions that they are important to you and you care about them. Be supportive. Listen to their concerns and comfort them when they are sad.

  • Allow your children to grieve.

For some children, losing the one family unit can feel like a death, and they need time and space to grieve the loss.  Understand that they may go through the grief cycle of denial, anger, bargaining, depression and acceptance. Seek to understand the emotions and be supportive.

  • Keep calm and put your children first.

There will likely be many instances of anger, annoyance and frustration with your ex-spouse. Find a friend or a counselor to confide in. Remember that you are always setting an example for your children, so be the person that you want them to become.

The changes in your family can be an opportunity to show your children fortitude, sacrifice, leadership, forgiveness, communication and love.  Many parents who achieve the best outcomes for their children during the divorce process do so because they set goals for how to handle the ex-spouse appropriately and they achieve a reliable, safe space for their children to thrive in.  

Common Questions About Your Divorce in California

This article will examine some of questions that are commonly asked about the divorce process in California.  It will help you get a broad overview of the process and understand what to expect.

Do I have to wait 6 months to get divorced in California?

Yes, although the waiting period can be challenging for couples, six months is the minimum and its common for the divorce process to take longer than six months.

Can I remarry during the waiting period?

No, unfortunately you can’t remarry while you are waiting for the divorce to be finalized.

Why is date of separation important?

The separation date is important in determining what property is community property (must be split) and separate property.

Should I sell or mortgage the house while we are separated?

You’ll want to hold off on making major changes to assets or debts during the separation/divorce process.

Does it matter what state we live in?

Yes, in order to file for divorce in California you or your spouse must have lived in California for at least six months.  You also need to have lived in the county for at least three months.

What are some of the important factors for determining temporary child support?

Important factors in determining child support are each parent’s income and the amount of time each parent takes care of the child.  

Do I need to wait to get spousal support?

Spousal support can be granted with an Order to Show Cause early in the divorce process, so you do not need to wait until the divorce process has progressed for temporary spousal support.

What’s the general timeline of important steps in the divorce process?

  • The first step is a Petition with the Court and serving the Petition on the other spouse.  This marks the beginning of the waiting period.
  • The next step is responding to the Petition and perhaps an order to Show Cause if certain disputes are involved.
  • Hearings or mediation can be scheduled to resolve certain issues.
  • Dividing property is a step that will happen somewhere along the process. As part of this, discovery and disclosure of assets and obligations will be conducted.
  • Settlement Agreements occur where you and your spouse are able to reach an consensus.

While this is not a complete list, it gives an overview of some of the steps in the divorce process and helps you understand important questions relating to your divorce. For answers to specific questions you may have, consult with an attorney who has experience in family law to guide you through the sometimes intricate divorce process.