Secrets of winning child custody in California divorce or paternity cases

I have many clients that come into my office and say they “want custody” of their children.  What does this mean in a California divorce or paternity case?

In California, there are two kinds of custody: physical and legal.  Physical custody involves where your children live.  If they live with both parents, as in most cases, then custody is shared jointly.  In the case where one parent is not involved at all with the children or has domestic violence or substance abuse issues, then one parent may have sole physical custody.  The norm is shared joint physical custody.  Legal custody involves which parent has the right to make the decisions about your children’s health, education and welfare.  Again, this is generally joint except in the instances mentioned above.

What most clients are talking about when they say they want custody is the parenting plan.  This is the schedule of when your children will be with which parent.  I am often asked what a “normal” schedule is, but the reality is that schedules vary as much people do!  The important part of creating a parenting plan is to keep your children’s needs in the forefront of your mind.  They are adjusting, too, and the transition is difficult on everyone.

Second, be reasonable.  You may despise your ex, but that doesn’t give you the right to cut him or her out of your children’s lives – they remain a parent even though they are no longer your spouse.  A judge will frown on an unreasonable request made for no good reason.

Third, pick your battles.  Remember the adjustment period?  Well, that often translates into dropping grades, acting out, misbehaving, sleep problems, and overall a difficult mood or behavior from your children.  This doesn’t mean it’s all your ex’s fault, and it’s not your fault, either.  It’s just a natural part of the process.  Now, if your spouse is acting inappropriately, such as not properly feeding or dressing/grooming your children before school or harming them, then you should see the judge immediately.  But normal acting out in a divorce is, well, normal.

Finally, remember that it will pass.  At some point the custody fight will end and you will settle into a routine.  I mean, you can fight until your children are 18, but do you really have the time, money and energy to do that to yourself and to your children?  The sooner you can get to that normalcy, the better for everyone.

How much is this going to cost me: why attorney fees for divorce and family law cases are so hard to predict: Part III – Keeping attorney fees down

We’ve spent some time in the last couple days, talking about how it’s nearly impossible to predict total attorney fees/costs in a family law or divorce case. But you may be wondering if it’s just hopeless or if there’s at least a way to keep them as reasonable as possible. There is! Hope! Now, it may take some effort on your part, but if you want to save on attorney fees, then here’s a few ways to do so:

  1. Choose the right attorney. This may seem obvious, but many clients pick the first attorney they see. It’s understandable, as it can be emotional, time-consuming, and even expensive to see more than one attorney for a consultation (also see my article on why you shouldn’t see attorneys with free consultations – click here). You may be taking time off work or traveling to their office, which can be a pain. But it’s your family, your children, your money, your assets and your future – shouldn’t you pick the right one? Also, attorneys vary a LOT in temperament, approach to cases, billing practices, responsiveness, and personality. Choose someone you feel you like and trust – this is probably the most important thing. It can be rather expensive to change attorneys, and if you’re doing that, it’s possible you have to work to undo what the first attorney did. It’s much better to just choose wisely in the beginning, even if it’s a little tougher at the start to see a few before you decide.
  2. Know and understand the attorney’s billing practices. Attorneys vary in their billing. We bill in the smallest increments possible – 0.1 of an hour, or 6 minutes. Many attorneys bill in 15 minute increments – which can lead to a whopping bill if you’re charged $100 (0.25 of a $400/hour attorney) for every “quick question” email you send to your attorney! By understanding their practices, you can then tailor your actions to keep the costs down, like, for example, combining your “quick question” emails into not one each day, but a list of 10 questions once a week.
  3. Find out if they will help you keep fees down. In our office, we have a letter for new clients that gives tons of advice and options for keeping attorney fees lower. We let clients know that one email with a bunch of questions will likely be charged less than 10 emails with one question each. We offer the client options for service of documents: we can do it if the opposing party will pick documents up, or the client can do it at no charge to them, or we can pay a service. These are just a couple examples of how we work with clients who want to save money on fees. If your attorney doesn’t have suggestions for keeping fees lower, then maybe they’re not concerned about it – which could be a red flag for you as a client. This of course goes back to suggestion number 1 on keeping fees down.
  4. Stop fighting! The more you and the opposing party argue, the more your fees will be. The more you agree, the less they will be. Court hearings & trials will almost always be the largest chunk of fees that you pay, since family law attorney billing in California is nearly always time-based and court hearings can take multiple hours. Now, you don’t want to just agree to anything to lower your attorney fees, but you should be considering – and talking to your attorney about – the fees when contemplating certain actions. I have clients who want to file this motion and that motion, and in our discussion of whether it’s a good idea or not, we discuss not just the chances of winning, but also the consequences of the action in terms of family harmony and fees. This is how we work holistically with the client to be sure we’re acting in the client’s best interests. But fighting and high conflict for the sake of conflict – because you’re angry that you’re getting divorced, for example – is most often not appropriate to be brought into court. When there’s high conflict for the sake of fighting, the only one who wins is the attorney who is collecting the fees. We always try to encourage settlement when we can.
  5. Stop the bleeding if you’ve made a mistake. If you discover that you have the wrong attorney or have been approaching your case in the wrong way, then it’s not too late to change. It’s almost never too late, so find another attorney or dial down the hostility or change your tactic, and this could bring the fees down – and probably get your case completed more quickly, too.

I hope you’ve enjoyed our series on divorce and family law costs. If you have more questions, we always love to hear from you directly, or you can make an appointment to meet with us by clicking on the tree to the right.

How much is this going to cost me: why attorney fees for divorce and family law cases are so hard to predict: Part II

Yesterday we talked about how family law/divorce case fees are hard to predict because every case is different. Today, we’re going to talk about how the other side makes things unpredictable as well.

In discussing how we approach our family law cases, we made it clear that we look at each case individually, and determine strategy depending on what that case, that client, and that specific issue requires. Generally-speaking, you’d think that, with time and experience, we’d be able to make estimates or educated guesses on the total cost of a family law or divorce case. Unfortunately, there’s another variable in these cases that throws a wrench into that theory, and sadly, blows it all apart: the other side.

We don’t know what the other side is going to do.

When we talk to a client, we talk about the current relationship between the parties and potential reactions to whatever action we’re contemplating. We talk about tone for declarations and proposals. We talk about the need to be gentle where needed, and more aggressive in other situations, where appropriate. We talk about options the other side might agree to, and what are more likely to be sticking points. Our goal is to get the result that our clients wants, and part of that is understanding how to present ourselves and our case to get that result from the other side or from the court. But that’s just step one.

Ultimately, though, we don’t know what the other side is going to do.

We’ll present our argument – whether it’s to the court or to the other side directly (or most often, both at the same time in a Request for Order) – in a manner that we think will maximize our chances of getting what we want. But then it’s time for the other side to respond to our request.

Initially, it’s a pretty fair assumption to make that the other side will get some advice in determining what to do. They most likely won’t respond, agreeing or not, based on just conversations between the spouses or what they think they know about divorce or family law. They’ll look for advice. That advice could take the form of talking to a family member or friend, whose advice could be spot on, but is more likely to be utterly inaccurate. The advice could be in the form of internet research, which could be as helpful as it is harmful. The advice could take the form of consultations with an attorney or several attorneys, each of whom could have different approaches or advice. The advice could, of course, be the hiring and retaining of an attorney for the other party, which is most often what happens.

Before we move on, I want to make one point clear. Regardless of whether the other side has a great attorney or not-so-great attorney or no attorney, we must respond to what they do. So if they file unnecessary motions or react explosively to every little thing, then we have to respond. If they have an attorney who is hard to get in touch with – or they don’t have an attorney and are hard to reach – then we have to work harder (i.e. spend more time and money) to get things done. If the other side hires one of those aggressive attorneys we discussed yesterday, and send over a mountain of discovery on a simple case, we still have to respond. In this way, the actions of the other side have a lot to do with how much any case costs. In fact, each side contributes almost equally in determining how much a family law case costs. The difference is that we can only have any control over what our side does.

So, by not knowing – or having any way of knowing – what the other side is going to do, we just can’t make any predictions as to the total cost of any of our divorce cases. No one can. We don’t know if the advice they get will be good or bad. We don’t know if they’re going to hire an attorney who is both responsive and reasonable – like we are – and thus allow us to keep fees down. We don’t know if they’re going to hire someone who will do everything they can to drive up the fees. We don’t know if they won’t hire anyone, and will make mistakes or emotional decisions, being unreasonable & delaying the process because they can’t handle it or don’t know what to do.

All we can do is control what our side does, and keep in close contact with our clients to be sure our approach is consistent with what the client and case needs. Tomorrow, in the final Part III of this series, we’ll talk about ways to keep attorney costs down.

Putting your affairs in order: what documents to collect to save your family

Generally, we think of “putting our affairs in order” as something we do after we get the terminal illness diagnosis from the doctor.  There are many reasons not to wait for that time to get your affairs situated, but I’ll leave that for another time.  Today I want to talk about what it actually means to get your affairs in order. First, though, let’s see why it’s important:

Have you ever been the one “in charge” after someone has died?  No?  Imagine this: your nearest and dearest loved one has passed away.  You’ve talked to the hospital and picked a mortuary, so that’s a process that’s been started.  It’s really hard to talk about your loved ones “body” or “remains” while you’re still trying to process the loss in the first few minutes or hours.  But then you feel like you have to DO something, so you head to the house to see if you can find the “important papers.”  Two things can happen at this point:

Scenario one is that you arrive, and already know where the estate plan is, and head right for it.  With it are all of the life insurance policies, retirement and bank accounts, instructions, pre-need funeral planning receipts and contact information, and smaller things like an address book to get in touch with all his/her friends, a locked box (which you have the key) with all of the computer passwords, safe combinations and the like.  There seems to be a lot to do, so you contact the estate planning attorney, who, after asking you a couple questions, says, “there’s nothing to worry about and nothing to do.  Take care of you, your family, and the final arrangements.  Then call me back in a couple weeks if you have questions, but the instructions should all be there…just don’t worry about it now.”  So this is what you do, as you start calling friends and family members and bracing for the days ahead.

Scenario two is that you arrive, and don’t know where anything is.  Does s/he even have life insurance?  Where are the bank accounts?  Was there a will?  Where is it?  You start tearing apart the desk, closets, cupboards,…and find nothing.  Now you’re grieving, in shock, have a million things to do, and now you can’t find anything.  This adds to your stress, so you call in other family members, who are now tearing apart the boxes in the garage.  Everything is chaos, and still no information.  It’s overwhelming to the family.

Which would you prefer your loved ones experience?

The former?  GREAT choice.  Now, here’s what to put in the file:

  1. Your estate plan, with trust and will.
  2. Your powers of attorney.
  3. Your life/long-term care insurance information.
  4. Your retirement information.
  5. Bank account information.
  6. Pre-need funeral planning documents.
  7. Investment account documents.
  8. Deeds of property, such as homes, vehicles and boats.
  9. Health, disability, auto and property insurance documents.
  10. Income source documents (social security, employment, investments, child/spousal support).
  11. Credit card statements and evidence of other debt.
  12. Important papers, such as marriage/birth/death certificates, passports, tax returns, military or genealogical records.
  13. Names/contact information of trusted professionals, such as accountants, lawyers, financial advisors, gardeners, house cleaners or caregivers, home repair professionals (electrician, plumber, roofer, chimney sweep, etc.).

And one final thought: make sure you have at least one trusted friend or family member who knows where it is and what’s in it.

How much is this going to cost me: why attorney fees for divorce and family law cases are so hard to predict: Part I

I am working with a client right now to help her file a motion to modify her child and spousal support (alimony). It’s a fairly straightforward motion, but there are several moving parts that complicate things a bit. The incomes of both parties have changed, both parties have moved out of California, and there may be an issue of under- or over-payment of support because both the former agreement and the specific circumstances are unclear (the agreement is contradictory in terms in a couple places, and some payments received by one party were for one thing – severance – but called something else – bonus). Oh, and the other party’s income is from a side business of sorts that the other party claims doesn’t exist (or at least doesn’t lead to any income, naturally!).

This client is also trying very hard to save money because funds are tight. So, with this situation, there are a couple options that I have, as an attorney, in proceeding. I could spend 10 hours on this motion to modify, outlining what’s happened in great detail in the 2 years since the agreement. I could document and chart every payment over the years, and compare it to pay stubs and the agreement, showing the payments were or were not appropriate. I could file a lengthy Points and Authorities about the various legal arguments on each issue. I could send discovery over to the other party to discern the situation with the side business. All of this would be proper and appropriate, but at the same time would also cost this client several thousand dollars to complete. Some attorneys will only handle cases in this way.

But the client doesn’t want to spend thousands of dollars to file a modification of a support order – she wants to modify the support order because she is struggling financially. Usually it’s sufficient in a motion such as this one to explain the situation in the plainest terms and request the modification. As an attorney, of course I want to pull all of the stops and file the strongest motion I possibly can. But family law is more than that. Family law issues must take into consideration the time and fees it takes to prepare documents. It has to take into consideration the reaction by the other side, and subsequent breaking down (or not) of the relationship between the two parties – who are often parents…parents who have to parent together for a lifetime. There is often a very strong interest in maintaining civil relationships in family law cases, and the importance of that cannot be ignored. Pulling all the stops in a family law motion – and making the other side angry – may break down any possibility of an informal settlement/agreement (and no time & money spend on a court hearing) before the process has hardly started. Why close that door unnecessarily? I’d much prefer to be a bit more diplomatic, a bit more neutral in my recounting of the circumstances, so that the door to settlement, the options for agreement without court intervention, stay wide open. There’s always time to fight more aggressively, but if you come across too strongly to begin with, then it can be hard to undo the alienation it caused, dial that back effectively & reach agreement.

All of these things have to be discussed between client and attorney to determine the best course of action, given the client’s all-around circumstances. I know a lot of attorneys who approach every case the same way. Sometimes it’s by going full-out on every case, whether it’s warranted or not. Sometimes it’s the opposite, and an attorney will do the bare minimum in each case. I just don’t think cases and clients can be lumped together that way, in a one-size-fits-all manner. Especially when it’s a family law case, with real and long-term repercussions for real people and children, too.

Clients and potential clients have told me about attorneys who have insisted to them that they “fight aggressively” for every client, on every issue, and that this is their job. There are plenty of attorneys who have this philosophy and act accordingly with their cases – and often, too, are quite proud of their “shark” reputation. Personally I think this is poor lawyering, at best, and unconscionable, unethical behavior at worst. Family law involves families, and figuring out how to approach each client, each circumstance, and each case is a balancing act of strong advocacy at all times, tempered by tact, gentle persuasion when appropriate, and consideration of the situation (and consequences of each action) at every turn. A case may start out both amicable and collegial between the parties, and then turn in to a high-conflict, difficult case requiring “shark-like” tactics. The reverse may also happen.

The point is to (1) meet the client where they are, and not try to force the case or its issues to be either higher or lower conflict than they are (though we always encourage settlement, we don’t encourage it when not fair or warranted), and (2) tailor the response to any situation by taking into account the entirety of the case, client, other party, finances, potential consequences, and circumstances in a holistic manner. Every case is different, so every case should be approached by the attorney in a way that’s consistent with the nature of the circumstances.

We do this because we work closely with our clients to achieve their best possible result, and we believe that tailoring the approach to the client and case is the only way to do that effectively. A highly aggressive approach may be appropriate in some situations, and may even be effective in many court situations, but when there are consequences that can do more harm that the aggressive “win” helped, we don’t think that’s the way to go. When choosing an attorney, I think these considerations are important. You want to be sure you’re picking the right attorney for you, your case & circumstances, and for your family and children.

Today we talked about how family law costs are unpredictable because cases vary so much in general. Tomorrow we’re going to talk about the unpredictability of case fees in another way – how the actions and response of the other side/party make all the difference in the world…and again, can’t be predicted with any accuracy.

Have step-children or a step-parent? Are you one? How to avoid disinheriting your family in California

Estate planning presents unique issues for blended families.  Blended families are families in which one or both parents have children from a previous relationship.  The problem comes when one spouse dies without an estate plan, or an old or outdated one.  Generally, when spouses hold property in California (or anywhere in the US), they hold it in joint tenancy.  When one joint tenant dies, the other one gets the entire property.

Can you see where we’re going with this?

When one spouse of a blended family dies, then the other spouse generally gets all the property of the couple, often by default.  When it comes time to distribute the assets at the death of the second spouse, the second spouse can essentially disinherit the first spouse’s children.  The second spouse, with all the property in his/her name, has control over the ultimate disposition of the property.  If there is a family rift between the second spouse and the step-children, if the second spouse is negligent in creating an estate plan providing for the step-children, or in other cases, then the children of the first spouse to die can be left out in the cold.

Don’t leave your children out in the cold by failing to provide for them with an estate plan.

California divorce in the new economy: Legal separation pros and cons

Divorce is an expensive business, not just with lawyers, but without them, too.  Filing fees are high (most California counties charge up to $400 to file – and that’s for each party!), plus hearings take time – and time off work.  Child care expenses may increase, and living apart means separate rent or mortgage payments, utilities, and other household expenses.

So, with that in mind, is a separation financially preferable to a divorce?  In some cases, yes, as this article explains.

Would you, or have you, and your spouse separate without filing for divorce?  Do you have a separation agreement (hint: you should!)?

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