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.

Divorce hearing coming up? Tips to make it more successful and less nerve-wracking

A divorce hearing, especially your first one, can be cause for panic and extreme nerves.  After being a part of hundreds of them, I’ve learned a few tricks to help you get through it more smoothly:

1. Get there early to allow yourself to get lost (and find it), park, get the layout of the place, and to have time to get settled and take a deep breath.
2. Read the signs posted in and around the courtroom, as these will give you a lot of information about what is going to happen and the specific court’s procedures. Determine which notes apply to you and act accordingly.
3. Take a deep breath and try to relax. You may be waiting a long time.
4. You will probably have the check in and let the court know you are present. Often you check in and give your name (and sometimes case number) to the bailiff or the courtroom clerk.  Signs should make this clear.
5. Most counties have a rule regarding a “meet and confer” prior to being heard by the judge. This is a requirement that you at least try to talk to your opponent to work out your differences before the judge will hear your dispute. DO NOT avoid this if it is a county rule in your county, as it will anger the judge that you ignored the rule – and do it even if there is no rule. Making the judge mad is a big no-no in my book.
6. When your case is called, announce your name and approach the tables in front of the judge. You’ll get an opportunity to present your side of the argument, and it’s helpful if you have notes responding to what your opponent is going to say. You know what your opponent is going to say because you read his or her paperwork and also talked to him or her immediately prior to the hearing.
7. Don’t make the judge mad. If he or she cautions you because you have done or said something inappropriate, be sure NOT to repeat your error. One thing that makes most judges mad: interrupting. If you have something to say, find the right time to say it rather than interrupting your opponent or the judge.
8. Once the judge has heard enough, she or he will say so and announce the order. THIS IS WHAT YOU CAME FOR! Take detailed notes because you will need to create a written order from the judge’s words.
9. Before you leave, ask the court for the “Minute Order,” which is the court’s informal notes of the results of the hearing. You can use this to prepare the order. Also, find out which party is preparing the order. Whoever brought the motion generally does this.
10. Thank the judge as you leave, whether you won or lost. Judges work hard and deserve your thanks for taking their time to help you. You may not like their decision, but thank them anyway.

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Post-death process with a living trust and estate plan

Yesterday we talked about the probate process, and what happens after a loved ones dies. Today, let’s go through that same process, but this time, our loved one has an estate plan and has put all of their affairs in order before they passes.  Remembering what we went over yesterday, here is how it would go with an estate plan:

In the hours following the death, you go to the funeral home, and the director tells you that your loved one came in years ago and chose their own service, with music, readings, flowers, and everything all picked out and paid for.  You don’ t have to decide a THING except what day to do it.  Oh, and your loved one already planned – and paid for – the life celebration party afterwards.  There are no decisions to make – the director tells you to go home, grieve, and take care of your family.

You get to the house, and you already know where the estate plan binder is.  Because you’ve already been over it, you know there’s a letter right inside that’s intended to be instructions for you on what you need to do.  You go to it, and feeling overwhelmed by everything, with the letters swimming on the page in front of you, you decide to just call the lawyer – me.  What do I tell you?  I say – there’s nothing you have to do right now.  You, take care of your family, grieve, and get back to me in a couple weeks – if you still need me – when you’re ready to move forward.

Those early hours, days and weeks are precious – precious time to be with your loved ones, to remember and celebrate to one who has died, and to work on our own processing of what’s happened and what it means to us.  An estate plan gives you that time.

When it comes time to assess the assets, pay the debts and transfer the property, the process:

  1. Involves no lawyers and no court;
  2. The fees are overall generally less than $100 in total; and
  3. Takes a few days to a month, depending on how quickly YOU work

Because you have all of the instructions, you don’t need to call a lawyer. The process is simple and quick, and costs almost nothing.

Does that sound like something you’d prefer to have from your loved one than the probate example?

Then, I ask, WHY are YOU not doing this for YOUR loved ones?  How could you not, knowing now what you do? What are you waiting for?

The probate process in California

Many people know that it is wise to create an estate plan that allows your estate to avoid probate when you pass away.  But few know or understand why probate it something to be avoided. One of the ways to understand it is to take you through the process of what happens when someone passes away.

For our purposes here, imagine for a moment that it’s not you that is passing away, but rather your closest family member – except for this discussion let’s choose someone other than our spouse.  Take a quick moment to think of how difficult that would be to lose someone you love so dearly.  And now, imagine all that there is to do when someone passes away:

  1. There’s the funeral, which generally happens pretty quickly and plans are made within hours of the death.  There are decisions to be made about clothing, caskets, scheduling day and time, who will read, what will they read, will there be a gathering afterwards, will there be food, where will it come from, who will be invited…it’s overwhelming.
  2. Then there’s the will – is there one?  The life insurance, the retirement accounts, the bank accounts.  You go to the house: do you know where your loved one keeps the important documents?  Would you be tearing apart the desk, the file cabinet, the drawers?  What would you find?  How would you feel about having to search?

REMEMBER:  This is all in the first few hours and days after the death, at a time when the loss is most shocking, most raw, and most difficult to deal with.

  1. Once you find the documents – did you find them? – you have to figure out how to transfer the property, and generally – without a plan – this means the probate process, which we’ll talk about in a minute.
  2. In come the lawyers, the lawyer’s fees, the appraisers – the strangers, in your home, in your life.
  3. To transfer the property, the pay the debts, to sell the house – or even transfer it – to get access to the bank accounts…all of these things can take weeks, months and years.
  4. The probate process, which is the court procedure for transferring your property when you don’t have an estate plan or have just a will, is a long, arduous process.  It involves:
    1. Multiple court hearings and appearances, lawyers, accountants, appraisers…
    2. A timeline of 2-3-5 years…or more
    3. Cost:  A huge cost.  Probate fees and costs can take up to 8-10% of your gross estate – that’s your assets not including your debt, so if you have a house worth $300,000 and nothing else, probate fees can be up to $30,000
    4. You have – your family has – worked your entire LIFE to create and build your estate.  Why give it to lawyers and courts?

In the probate process, while the cost is a big consideration, the time is also key because you and your family need and want to move on from the death and the grief, and when the probate process continues on for years and years – and you can’t sell the house, and you can’t get access to the accounts, then it drags out the normal emotional process way beyond what is healthy.

Does this sound like something you want to go through?  Something you want to put your family through?

Now, what if I were to tell you that there is a BETTER WAY?  A way to avoid ALL of this trouble?  We’ll go through this again in the next blog post…stay tuned!

Thinking about filing for divorce? What you need to do first:

Are you thinking of filing for divorce?  Had it with your spouse?  Before you pull the trigger, so to speak, and file for divorce, do some investigating and some collecting.  You’ll be glad you did.  Specifically:

  1. Gather copies of financial documents, such as tax returns (at least the past three years), bank statements (go back several months to a year), investment accounts, and business records.  Print them out in case you lose access.
  2. Keep the copies in a secure location away from your home.  Try a friend or relative’s home or your workplace.
  3. Secure and possessions you’d be heartbroken to lose, especially anything breakable or very valuable. If your spouse “loses” your father’s antique watch, it’ll be up to you to prove it was your spouse’s fault.
  4. Learn your rights.  Listening to your friends, relatives and neighbors about what happened in their divorce will not help you one little bit as each divorce is individual to the circumstances of the couple.  Consult with a licensed lawyer or Family Law Coach in your area, and don’t feel pressured to hire someone at this point.  Do some fact-finding.  Read some books on divorce in your area.
  5. Learn your responsibilities.  Just as critical as rights, what you have to do as a member of a divorcing couple, and perhaps a parent, is as critical.  You don’t want to damage your children, your future, or your credit by not understanding what’s best for you to do.
  6. Consider counseling, like now.  Divorce is so difficult that it’s considered one of the five major life events/traumas.  The legal process is not designed to help you through the emotional aspects, and it won’t.  It will likely make them worse.  Find a counselor, find a divorce support group, talk to your church, or discover some way to deal with the emotional aspects.
  7. Learn the process.  Divorce, as I have mentioned before, takes far longer and is far more expensive then you ever anticipate.  If you’re not aware of this at the outset, then the delays, disappointments and cost can become quickly and repeatedly overwhelming.
  8. Open your own bank account, without your spouse’s name on it.  Just before you file, if you have money in a savings account, consider transferring HALF of the money – just half – into that account.  Check with a lawyer in your area first, however, to make sure you don’t get in trouble later for doing this, as every state has different rules.

The more prepared you are in advance, the easier the process will be.  Divorce is so difficult that it’s well worth your time and effort to make it easier, because when you’re going through it, you’ll appreciate each and every break you can manage.  And you could end up like this couple, whose divorce “rehearsal” actually saved their marriage.

What is a conservatorship?

I have been asked recently by a number of different sources to help them with a conservatorship, so it occurred to me that I should write a little bit about it.  A conservatorship occurs when you or your loved one is no longer able to manage their affairs, both the decisions about their financial affairs and the decisions regarding their personal affairs.  A conservator, often a family member, takes over these many decisions.

The problem with conservatorships is that they are court proceedings, can be lengthy, are public, can be expensive if you need an attorney (and many family members do), require filing, investigator and court fees (in addition to legal fees), require approval for certain transactions, and can require accountings of finances.  Conservatorships can be avoided altogether if the family member puts powers of attorney in place before there is an issue with capacity.  Unfortunately, not enough individuals do this in time.

There are two different kinds of conservatorships: conservatorships of the person, and conservatorship of the estate.  For a conservator of the person, decisions about food, clothing and residence are made.  For conservator of the estate, decisions regarding the financial affairs of the individual, such as paying bills, collecting income, and making investments.  Often, the conservator is the same person, though they can be two separate individuals or can be institutions.

Your best bet if you are worried that you or a loved one will become incapacitated is to execute powers of attorney for assets and health care.  These are simple documents that any estate planning attorney can prepare quickly and easily.  If it looks like it’s already too late, then you’re going to have to go down the conservatorship route.  You may want to start the proceedings before you think you need to, because the process can be lengthy.

A Family Law Coach can help to cut costs because I can walk you through the process, help you with documents, and make sure you are prepared for every step of the way…plus keep costs way down compared to traditional legal representation.

Financial issues in California divorce

Since we’re talking about California divorce this week, I thought I’d add a note on finances, since they seem to be at least one of the top reasons for divorce. Untangling your financial lives can be really tough, even out of court.  Here are some things to consider:

During divorce:

Tax implications – what are the tax implications of your filing status as you go through divorce?  What are the implications of your asset division?

Expert fees – what are your attorney/accountant/child custody evaluator/financial advisor fees going to be?

Support – there are tax implications to paying and receiving child and spousal (or family) support in California. If you just take the highest/lowest amount because funds are tight, you may be in trouble later.

But the divorce process is just the beginning.  You also have to consider the financial aspects of your post-divorce life.  You need to consider these things as soon as possible, and not wait until it’s happened.

Post-Divorce:

Cost of living adjustment – here’s still the same bills, but only one of you is paying them.

Change in auto/home/health insurance costs

Increase in “combined” costs.  Did you share a Netflix account?

Lower savings and discretionary income due to the tightened financial belt.

Loss of assets in the divorce – that retirement home may be gone.

Needing/getting new employment – what do you do if you’ve never worked?

Reduced retirement income or savings – you may have thought you were set for retirement…now what?

The theme for this week seems to be planning.  Planning is you’re thinking of divorce, and planning if you’re in the process of divorce.  Don’t let the process or anything that happens in the process to take you by surprise.  It doesn’t have to if you know what to look for and where to look. Need more help? Click here to make an online appointment.