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.

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The divorce process in California

When I first started practicing family/divorce law in California, I wanted someone to walk me through the process, start to finish, so I could understand it as a whole.  What is troublesome, unfortunately, is that all divorces differ in many ways, so looking at the process in general can be tricky.  But let’s try…

In California, the first step in getting a divorce is to file a Petition.  It’s fairly easy, and it doesn’t matter at all which spouse files the Petition (or files first).  There’s no advantage or benefit to filing the Petition over the Response (though there may be some advantages/disadvantages to filing sooner or later, but see an attorney on this…like me!).  To file a Petition in California you have to have lived in California for six months prior to the filing and in the county where you have filed for three months prior to the filing.

Once the Petition is filed (and the UCCJEA if you have children), you may need to file for an immediate court order regarding support, child custody and visitation, property or debt division, or some other urgent manner.  To do this, you file a Request for Order.  For any issues regarding support, you much file an Income and Expense Declaration, showing your – you got it – income and expenses so the court can calculate the appropriate support.

To complete your divorce, not only do you have to agree on child and spousal support, child custody and visitation, asset and debt division and any other issues you may have, but you have to complete your disclosures and obtain a Judgment.  The disclosures are forms: the Income and Expense Declaration and the Schedule of Assets and Debts (which is, you guessed it, your assets and debts), as well as a form showing you delivered these to your soon-t0-be-ex-spouse.  These are required in California, so you must be prepared to share all of your income, expenses, assets and debts with your spouse to get divorce.

You’re now in the home stretch: to obtain a Judgment, once you have everything resolved, you have to file a number of documents with the court.  It can be confusing, and most courts have packets at the clerk’s office to help you complete it.  Of course, a Family Law Coach can always help if you get stuck.  Need more detailed help? Click here to make an online appointment.

Mediation for California divorce & family law disputes: What is it? Why is it helpful? Who needs it?

Mediation for California divorce & family law disputes: What is it? Mediation is a way for couples to resolve their family law case (divorce, custody, support, visitation, asset division) outside of court. The couple can work with or without attorneys, and they meet with a mediator (that’s me) to discuss the issues before them in their case. Depending on the case, the number of issues to resolve and the intensity of the dispute, mediation can take two to many more sessions. In most of my cases, the issues are resolved in about two meetings.

Why is it helpful? Mediation is helpful for a variety of reasons. First, it’s MUCH cheaper than each spouse hiring their own attorney. Mediation can cost from about $3,000-10,000 TOTAL while just hiring an attorney for ONE spouse can be as much as $5,000 to start. Second, couples in mediation can come to agreements that the court is not permitted to make. For example, if the couple wants to make provisions for the payment of their child’s college expenses, then they can. The court is not permitted to make sure orders. Third, mediation is private, so the couple does not have to air their dirty laundry (and finances) in public court documents. Finally, mediation is a way for couples to OWN the agreements they make. Individuals in a dispute are more likely to disobey a court order handed down by a judge (who doesn’t know you, doesn’t know your situation, and makes a decision based on a few short minutes of listening to argument) than they are an agreement they developed themselves. There’s buy-in for decisions made in mediation, which makes all the difference in the world. As a side benefit, mediators are trained in diffusing the emotions of a family law case…and court proceedings are not really known for this.

Who needs it? Anyone with a family law case who would like to preserve their finances for themselves instead of spending it all on attorneys. Also, family law litigants who want to ensure that their children are as minimally damaged by the divorce as possible.

What’s not to like about mediation?

Emotions of child and spousal support – for recipient and payor

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 the 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:

You 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.

Child Support Calculations in California

When I first meet with a family law client, if the individual has children one of the initial questions is invariably what child support will be. To my client’s frustration, I am not able to answer that question because child support is calculated in a complex manner in California. In some states, child support is calculated in a straightforward manner, such s simply taking a percentage of income. In California, this is not the case.

California uses a software program to calculate child support (the California Department of Child Support Services has it here: Child support calculator. The program takes you and your co-parent’s gross income, the percentage time share that you spend with your children, certain deductions (mortgage interest, union dues, mandatory retirement payments, for example), then it calculates your taxes and determines the appropriate ‘guideline’ child support by using a complicated calculation that the California legislature adopted years ago. Once the inputs to the program are determined (or ordered by a judge), the number that the program shows for child support is mandatory for the judge to order unless BOTH parties agree to something different (which happens rarely). Even if both parties agree to a different amount, either party may come back at ANY TIME to modify the support to the guideline level.

In California, then, the critical part of negotiating child support is knowing how the input numbers can be modified or calculated to your advantage. For example, take the time share itself. If you calculate using days versus hours, you could come out with a very different result. Bonus or overtime income is also a tricky issue, as it’s not consistent. You have to be careful that it’s not overlooked in situations where, like in construction, some seasons have little or no overtime (and some have a great deal). If you’re calculating support on the outside of a ‘dry spell’ for overtime, then you could miss the upcoming overtime. If you don’t look back twelve months, similarly, you could in November overlook a substantial holiday bonus coming in December.

Finally, as a family law litigant you have to understand that the smallest change – often unknown until the day of your hearing – can make all the difference in the world for purposes of child support. You can plan and prepare as many printouts of the child support program as you can think of, but if you get to court and the payor has lost his job the day before, that will change the situation dramatically. It is extremely important, therefore, to have a qualified professional helping you to do the calculations so that you can maximize the potential benefit to you.

Long-Term Care Insurance: California divorce and estate planning

There are a lot of misconceptions and misinformation about long-term care insurance, and I don’t profess to know all of the ins and outs of it. But I DO know that it’s critical to have for just about everyone. By the time you’ve hit your forties, you need to look into it and get a policy before it becomes too late.

Now, what does this have to do with divorce? When you’re married, you have a built-in buddy. Someone who may be able to take care of you once you start having trouble taking care of yourself. You have to figure that either you or your spouse is going to lose it before the other, and the one left standing will be the caregiver.

Well, I don’t think that’s necessarily fair, and I am a strong believer in long-term care insurance for everyone, but this post is about divorce, so I’ll skip that.

It’s even more critical to have long-term care insurance when you are divorced because you don’t have an automatic back up to care for you if you fall ill. Long-term care covers in-home help and fills in the gap of health insurance or Medicare. In-home help can cost $25-30 per hour, and this really adds up if you need around the clock care. If you care about staying in your home and staying independent as long as you can, you should check into long-term care. And if you don’t care about these things now, believe me, you will. But perhaps by the time you realize how much you care about these things, it might be too late to get the insurance you need.

Don’t wait. Look into it now. It’s not very expensive and could mean a world of difference to you.

Your family law hearing in California divorce: child custody, child visitation, child support, spousal support, attorney fees…

In most family law cases, one or both parties need the court to help them with initial matters, such as child custody, child visitation, child support, spousal support, and attorney fees.  Because the parties cannot agree on how to handle these matters, a motion is filed with the court, asking the court to make orders on these issues.

After you file your motion with the court, you have to serve it on your opponent. Hopefully, you know that already. Once your opponent receives your motion, he or she has time to file a response. By filing your paperwork in advance, you each have the opportunity to review what the other is saying, and prepare your response to it. This is important because you should never be forced to respond to something about which you do not have advance warning. This goes both ways: you can’t spring something on your opponent and get away with it.

When you get to court on your appointed day and time, remember the following:

1. Get there early to allow yourself to get lost (and find it), to 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.
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.

What is your date of marriage and date of separation in California divorce, and why are these critical dates?

On the Family Law Dissolution Petition, you have to state your date of marriage and date of separation. These can be critical issues, even if it doesn’t seem so at a passing glance.

The date of marriage is generally not the big issue, as the date is not only commonly known by the couple as their anniversary, but it’s recorded on the publicly-recorded marriage certificate.

The date of separation is trickier. This is the date that you and your spouse physically separated and had the intent to “separate and live forever apart.” If you continued to live in the same house, this can be a difficult date to pinpoint. But what you must understand is that this is generally not a big deal because both parties frequently agree on the date of separation (I think it’s the day when you both knew/decided it was forever and finally over).

But it CAN be a big deal in certain situations. For example, say one party wins the lottery, and then says that the date of separation was before the win (thus making it the winner’s separate property as opposed to be divided equally between the couple). In that case, the issue of the date of separation can be separately litigated in a trial. The court will look at the physical separation of the parties – did they live apart, for example – as well as the intent of the parties and the way they “held themselves out” to others. This involves looking at what others though, such as their friends and family. Did they think they were together or separated? Finally, the court has a pretty strong presumption that the later date is the date of separation.

Planning to remarry? A helpful ‘to do’ list before you walk down the aisle (again)

The decision to remarry is a big one, especially after the pain and ordeal of divorce. Divorce in the best of circumstances is still very difficult.  While it can be overwhelming, it is very important to ensure that these steps are completed/taken care of before the second marriage starts.  Here is the detailed list, but items on the “to do” list include determining if child support or social security benefits are affected by the remarriage, realizing that alimony may be affected (and in California will end) by your remarriage, determining if you intend to relocate and how that will affect any child custody orders, ensuring that your estate planning documents are up to date, such as your nomination of guardian, living trusts, wills, etc., and – of course most importantly – ensuring that your divorce was indeed final before marrying again.

Dissolution: issues in a California divorce

In every divorce (or dissolution) case, the court has a universe of issues it may resolve. The issues are common to most cases in that most cases have all of them, but some omit a couple. The issues are child custody and visitation, child and spousal support, property and debt division, attorney fees, and status. We’ll examine each of these in detail, but here’s an overview:

There are two aspects of the non-financial issues with your child (and I say child with the understanding that many folks have more than one child): custody and visitation (or parenting time). There is physical and legal custody, and you can have joint custody or sole custody (for one parent). Parenting plans vary like personalities. Some parents share parenting time equally and fluidly with few specifics written down. Some parents have to have every detail recorded in excruciating detail. There are some “standard” parenting plans, but by no means are they uniform.

Child and spousal support are also issues in a divorce case. Support is calculated using a software program adopted by the State of California. You can find it for free here: Support Calculations. Permanent, or long-term, spousal support is calculated using a variety of qualitative factors not necessarily related to the software, however.

The court will also divide all property and debt you and your spouse acquired during your marriage. This includes any real property, or homes, as well as personal property, vehicles, bank and stock accounts, 401Ks and pension/retirement accounts, and any and all debt. California law provides for EQUAL division of all property and debt.

The court can and will also resolve the issue of attorney fees, particularly if the incomes of the spouses are very different. If one spouse makes the majority of the money in the household, the court will likely order that spouse to pay the majority of the attorney fees.

Finally, there is the issue of your status. Your status is whether you are divorced or single. You can separate, or bifurcate, the issue of your status and become divorced if you feel your case is taking too long. Divorce cases can last several years. Most often, your status is dissolved, making you a single person, at the resolution of your case. The earliest this can happen is six months and one day from the time the Petition was served on the Respondent.