Uncontested divorce in California (part 2): Mediation when both agree

Another way in which an uncontested divorce comes my way is in the context of a couple who are fairly amicable and would like to work together to complete their divorce. Often, they either agree on everything (how to divide assets, on support, and on child issues) or they have one or two relatively minor issues that they’d like help with.  Often, too, the couple is concerned about (1) completing the process correctly, (2) not having time on their own – with family, work, and other personal concerns – to figure out how best to proceed and fill out all of the documents, (3) making sure nothing is left out because of their lack of knowledge of the “ins and outs” of California divorce, and (4) having someone to reach out to for questions and concerns as the process progresses.

Mediation is the way to go in these circumstances. Mediation is where an attorney (or non-attorney, though I generally recommend working with an attorney-mediator) to help you to come to a resolution of your divorce case. It’s significantly less expensive than litigation and drastically reduces the amount of contention and conflict in the process. Essentially you are working together to come to an agreeable solution. Instead of forcing a stranger – a judge – to make decisions for you, your children, your future and your finances, YOU control the process. It’s much quicker, too, than the traditional divorce process.

If you and your spouse get along reasonably well & just want to get your divorce completed as quickly, painlessly, and with the least expense, consider mediation. Want more information? Give us a call at 925.307.6543.

Uncontested divorce (part 1): when your spouse won’t participate

On occasion I talk to someone who tells me that while they want a divorce, their spouse refuses to talk about it and says they won’t participate or sign anything.  Understandably, the spouse who wants the divorce finds this distressing.  But this is nothing to be stressed about, and here’s why:

First, once you file for divorce, your spouse is likely to at least seek out some kind of advice from someone, whether it’s looking around online, buying a book, talking to a family member, or talking to a lawyer.  When faced with an unknown, most individuals will act in self-preservation.  Since the only advice to give to someone who says they don’t want to participate in their divorce is DON’T DO THAT, those that get advice often find their way to action one way or another.

Second, there is a process for a default divorce, which is what it is called when one party does not file any documents (unlike “uncontested,” which doesn’t really mean anything anymore because in California, and in most states, you can’t “contest” a divorce – though you can contest the terms of the divorce!).  Once you file the Petition and serve it on your spouse, your spouse has 30 days (again, in California.  Your state may vary in its rules) to respond by filing a Response to the Petition.  If that Response is not filed, then the Petitioner spouse can file for default.  This is the process whereby the Petitioner files all of the income, expense, assets and debt information with the court and gets to determine who will get what, including child custody, visitation, child support, spousal support, and asset and debt division.  It still must be equitable (or roughly equal), but what you consider equal and what your spouse considers equal may be radically different concepts.  So long as the proposed Judgment by the Petitioner is not too skewer in one party’s favor, the Judgment gets filed and is an order of the court.

It’s simple in theory but can be complicated to complete, especially since the forms can be a pain to fill out.  But the fact that one spouse can make all the decisions regarding the divorce generally prompts the other spouse to action.  Consider the possibility of child and spousal support being determined without your input or participation at all, or child custody and visitation.  Most spouses tend to act when faced with the actual divorce paperwork, even if they say they don’t want any part of it.

Tomorrow we’ll have Part II, where we discuss ways you can get your divorce completed if you and your spouse agree on some (or many) of the terms.

Changing child custody and visitation after the divorce is final

So, you got divorced a year ago…or two or five or ten years ago, and you want to make a change to your custody plan. Called a “post-Judgment modification,” it frequently comes up, especially when custody arrangements were made when children were little…and now they’ve grown. Extra-curricular activities, changes in residence or school, and gradual agreed-upon modifications in the custodial plan can cause problems when there’s a disagreement down the road. Or, common too is when the custodial plan just isn’t working.

I frequently get questions about problems with child custody and visitation after a couple has gotten a divorce, or completed their paternity suit and gotten a Judgment. One parent is constantly late or absent, one parent keeps changing the parenting plan, or one parent has a new boyfriend or girlfriend, and the new significant other is causing problems, or there is some problem with the child that one parent thinks is the other parent’s fault.

The answer is that there is a solution to these issues. Once your divorce is completed, or you have a Judgment, any of your orders can be modified upon a showing of a “change in circumstances.” A change in circumstances is some change from the time of your divorce/Judgment that has caused the problem. It could be a work schedule change, a new partner in your ex’s life, a change in residence, a change in the child’s school performance or behavior, or just a change in the situation. Most courts are pretty lenient when it comes to what kind of change is required.

But you do have to file a motion with the court if you can’t get an agreement with your ex about the change. I always recommend starting the easy way, which is sending a letter or email about the change you want, why you want it, and what steps you will take if the ex doesn’t agree. The steps you take may include going back to court, and you have to make that decision before you put it in writing.

If you have been through a divorce, you probably know how tough the court system can be on your wallet, your nerves, and your relationship with your ex, so think hard about whether you want to open up that can of worms. A qualified attorney can help you to assess the pros and cons of each option, and which would be the best for you and your family. If the situation isn’t working, get the advice you need to remedy the situation.

Don’t overlook these important estate planning concerns in divorce

When you get a divorce in California (and everywhere else!), there are important estate planning considerations to take into account.  In fact, these are so critical that you could end up leaving your estate to your ex spouse (ouch!), having your ex make important medical decisions for you, or – if you act hastily and without the proper information – you could get into trouble with the court system.

During Divorce:  First, when you file for divorce in California, regardless of whether it’s Alameda County, Contra Costa County, or any other county, once the other party is served, both of you become restrained from doing certain things.  One of these restraining order involves your will or trust, and prohibits you from making any changes to your will or trust once you’ve filed for divorce and served the other party.  One of the others prohibits either of you from changing or cancelling any insurance, such as life, health, auto/property, etc., or changing the beneficiaries on any insurance or other account where a beneficiary is named.  Do not make the mistake of cancelling your ex’s health insurance or changing your will after you have filed for divorce!

You may make these changes with permission from the other party or with a court order, and you may want to seek this.  Particularly if you have separate property, the last thing you want is for your ex to get it all if something happens to you. You may also want to get permission to change the beneficiary of your life insurance into a trust for your children, but you need permission for both of these actions.

One of the changes that you should make as soon as you can, and there is no court prohibition on this, is your powers of attorney.  For both health and finances, you want to make sure you designate someone other than your ex who will make decisions for you and manage your affairs should you become incapacitated.  If you’re lying in a hospital bed unconscious, do you really want your ex deciding whether to get surgery or wait to see if the medication improves your condition?

After Divorce:  Once your divorce is final, you want to make sure you change your will or trust, your powers of attorney (if you’ve not done so already), the beneficiaries on your life insurance, retirement and other accounts, and make sure you have enough life insurance for your children and long-term care insurance to care for yourself as you get older.

Want more information? Schedule a one-hour consultation by calling 925.307.6543.

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Secrets of child and spousal support (alimony) in California divorce

One of the hot button issues in divorce is child and spousal support. It’s a hot button because it involves money, and money is a leading cause of divorce. Many couples are already tense about money, and when you add in the support issue, things can blow up. The problem is one of simple math:

With a married couple, you generally have one household surviving on the income of two parties. You take that household and divide it in two when the couple separates, and you have the same amount of money (not enough) now supporting two households instead of one. Ouch.

Regardless of who moves out and who is the spouse paying for child and/or spousal support, it hurts both parties. The one paying can see in his or her paycheck that the amount being brought home is, in some cases, actually smaller than the amount being paid for support. The one being paid just looks at the money coming in and the bills to be paid, and can’t quite see how to resolve the disparity.

Arguments, often heated ones, ensue. The key is to recognize that not only is this going to happen, but to catch it early and address it. It isn’t going to be easy for either of the spouses, and they had better be prepared. Both spouses, in most cases, are working hard to maintain their lives while they go through the difficult time, and a small amount of understanding goes a long way.

Want more information? Call us at 925.307.6543 to schedule a one-hour consultation – 20% off in July!

Legal Separation versus Divorce: What’s the difference & why does it matter

The term “legal separation” or “separation” mean two things in family/divorce law, and they can be confusing.

First, your “date of separation” applies to everyone getting divorced. After your date of separation, which is the date you made the decision to separate and live forever apart, AND you physically separated, you are ‘separated’ from your spouse, and – here’s the important part – everything you acquire, including earnings, property and debt, is your separate property and not subject to equal division with your spouse.  Don’t overthink this date. Generally it’s the day you made the final decision to divorce.

Second, there is a box on the Petition for you to mark “Legal Separation” or “Dissolution” (divorce). Almost everyone marks Dissolution” here because they want a divorce.  A Legal Separation is the same as a divorce in that you will still determine child custody, visitation and support, property division, and spousal support, but at the end of the process, you and your spouse will be legally married. This means that you may not marry someone else.  When you get a dissolution, you are not married at the end of the process.

Legal Separations are rare, but they happen.  There are a couple reasons why someone may check the “Legal Separation” box on the Petition.

The first is due to residency. To file for divorce in California, you have to be a resident of California for the six months immediately prior to the filing, as well as a resident of the county you are filing in for the three months immediately prior to the filing. There are no such requirements for a Legal Separation, so some will file that way to get the process started, then amend the Petition for divorce once the residency requirements have been met.

The second is for religious reasons, when spouses do not wish to ‘divorce.’ It must be noted, however, that one spouse cannot force the other to remain married. This is not permitted under California law. If one spouse, therefore, files for Legal Separation, and the other responds by filing for dissolution of marriage, then the court will amend the Petition to dissolution. A Legal Separation is only available if both parties agree to it.

The final most common reason for filing for Legal Separation is for health care reasons, most frequently by older couples. I had a case where the parties had been married for more than 40 years, and the wife was covered under the husband’s health insurance. She would not be able to obtain health insurance on her own except at exorbitant cost. Because both parties were elderly, they determined that they would not wish to marry again, and decided to go with the Legal Separation to protect the wife’s health insurance.

Does your California divorce attorney knows estate planning? How about your California estate planning attorney? Make sure they know family law, too

There is a great deal of overlap between estate planning and family law.  So much so that, if you’re seeking a lawyer in either area, you should make sure you have one with experience in the other area of law.

Take your divorce lawyer.  Why would knowledge of estate planning be important?  Well, for starters, your divorce is going to end at some point.  And because divorces often take much longer than we’d like, we are often exhausted after they’re done, and have no desire to do any other kind of planning or work on the whole divorce issue.  But once the divorce is done, this is when the really critical aspects of your financial life and future come into play.  You need to change your beneficiaries on your retirements and life insurance.  You need to change and update your will and estate plan, your powers of attorney, and the guardians for your children.  A divorce lawyer without estate planning experience is not necessarily going to make sure you’re properly advised on these issues.

Conversely, let’s look at your estate planning attorney.  First, in blended families (where one or both spouses have children from a prior relationship), there are specific estate planning issues that overlap with family law.  In addition, it’s important to know whether either of the spouses has separate property.  Separate property is property that either spouse owned prior to the marriage.  If either has separate property, then putting the property into the trust without a separate property agreement transforms the property into community property….and this could make the owner spouse quite upset should the couple eventually decide to divorce.

These are just a few of the small issues that overlap, and there are many more.  So many that it would be detrimental to you and your family – not to mention your financial future – to consult with an attorney who lacks knowledge and experience in one of these areas.