Protecting your finances in a California separation or divorce

One of the most difficult aspects of divorce is the financial aspect.  Suddenly, two households need to be maintained with the same income as what maintained one household before the separation.  In addition, there are court filing fees, attorney fees, expenses for getting a new home and new ‘stuff,’ and many hidden expenses, such as the expense for taking time off work for court hearings, expenses in increased insurance, for example, and the list goes on.

One of the ways to protect yourself is to talk to both an attorney and a financial advisor.  Both should be qualified and be working to help you and not trying to get more money out of you.  If you educate yourself on the legal process and financial planning, you can make better decisions throughout the process. This will help you in the long run.

In addition, make sure you change the beneficiaries on your life insurance, retirements, and other payable-on-death accounts.  Do you really want your ex getting your money? Similarly, update your estate plan to reflect your new circumstances. Note, however, that in California, once the Petition has been filed and served, you may not change your estate plan during the divorce/separation action without permission from your spouse or a court order.

Finally, do an assessment of what you have.  Assemble your life insurance, bank/stock account documents, retirement accounts, debts, etc., and put them all in one place.  Knowing what you have can be the first step in determining where you’re going and how to get there.

How to file for California divorce

Filing for divorce in California is pretty simple – you just file a form with the clerk.  Nolo Press has a great book about how to file your California divorce that goes over the process.  After making the difficult and emotional decision (usually it’s emotional and difficult; there are exceptions), the actual filing can be a bit anticlimactic, if pricey.  All you need to do is fill out the Family Law Summons, Petition, and the Declaration Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which is a form you need only if you have children of the marriage.  All three forms are pretty straightforward, but they do need to be completed properly to ensure your rights are protected.

For example, the Family Law Petition outlines the basic issues in the case.  It isn’t a formal request for anything, but rather is a form that defines the universe of the issues in your case.  It is the Family Law RFO (Request for Order) or motion that gets you before the judge asking for the judge to make orders, not the Petition.  So if you mark on your Petition that you want your ex to pay your attorney fees, you won’t get those unless and until you also file a court motion, which is separate from the Petition.  Many of my clients come in to my office, upset that their ex has marked something on the Petition, when there’s nothing to get upset about.

Of course, once you have filed the documents, you need to serve them on your ex, which can be easy or difficult, depending on your situation.  Of course, you cannot serve the documents – they must be served by someone who is not you but is over 18 years of age.

And with that, your divorce is underway…

Need more help?  Click here for our FREE Divorce e-Course.

A summer parenting plan: why the summer schedules can be more difficult than the holiday schedule

Aaaaah, summer.  It may seem far away now, but if you need to make a change, the time to start working on it is now.  The California family law court system works very slowly, so plan at least 3 months before you may need court assistance, if not more.  In Alameda County and Contra Costa County, courts are setting hearings out as much as 6-8 weeks.

Summer brings with it thoughts of sunshine, barbeques, vacations and…custody issues if you’re a family law attorney working with divorced parents.   Summer brings with it unique challenges for the separated couple that interrupt the schedule:

  1. Vacations: a regular schedule can get way off track once a two-week vacation is scheduled.  Anticipating this in advance is critical to avoid last-minute problems.
  2. Summer camps, sports camps, and musical camps: summer camps cause problems because it is often one parent who signs the child up, and invariably the camp is set for the other parent’s time. Again, this needs to be anticipated in advance to avoid problems.
  3. Summer school: Like summer camps, summer school invariably messes up both parent’s schedules, and the parent signing the child up often does so without the permission or consultation of the other parent.
  4. Child care challenges arising from the modified summer schedule: Summer schedules often vary from the school schedule to give the lower-time parent extra time.  Week-to-week schedules are not uncommon where the school schedule just provides for weekends for the lower-time parent.  This means that both parents have to adjust for the summer, which can be tricky when dealing with younger children (who need child care) and working parents not used to having a child home all the time.

The key here is ensuring that you work with someone who knows and can anticipate these problems ahead of time and provide for them in your parenting plan.  First, this means both of you have thought of the potential problem and talked out how you would deal with it.  Second, it provides for a solution in the event you can’t agree when the dispute arises.

When to go back to court and change your custody/visitation after your divorce is final

In a prior post, we talked about how we can change the parenting plan post-divorce or –Judgment.  What we didn’t talk about is when it is imperative that we do so.  All too often I have someone in my office or calling me who needs help immediately – if not yesterday or last week or month.  Don’t wait too long in a potential emergency, or you could end up in a very difficult spot.  Here are some emergencies that require immediate action:

  1. Move away: when one parent is planning on moving to another location, and this move could be just to another school district, if you want to stop it (and you can), you need to act as soon as you know the move is happening.  If you don’t, then this can be seen as consent to the move away.  Especially when the other parent has made plans for school, a new house, etc., it can be difficult to stop the move unless you act quickly.
  2. Substance abuse:  if you suspect or you know that your ex is abusing substances, such as alcohol, marijuana, cocaine, methamphetamines, or other illegal drugs, then you need to get back into court to protect your children.  Particularly if there has been legal action, such as a DUI or other arrest, you should file a motion as soon as possible to ensure your children are not harmed.
  3. School changes/issues: if your child is having trouble in school or you want to change your child’s school, then you should try to get this before the court as soon as you can.  With the delay in the Bay Area courts – sometimes 6 weeks or more to get into an Alameda County courtroom – you can’t wait until July to make a change in the school situation.
  4. Domestic violence:  If you or your ex is being abused, get back into court as soon as possible to remove your children from the situation before they are harmed.  Domestic violence is a serious issue that should never be ignored.

Of course, this all assumes that the other parent will not cooperate with the change you want.  Start there, and if you cannot accomplish a change on your own, then you may need to go to court.  A Family Law Coach can help!  See the links at the top.

What are “irreconcilable differences”?

Whenever a celebrity couple splits, the media make a fuss over the citation of “irreconcilable differences” in the divorce paperwork.  What does this mean?  In California, there are three “grounds” for divorce: irreconcilable differences, fraud and bigamy (having more than one spouse).  Fraud not only is hard to prove, but the kinds of fraud are limited in California, and bigamy does not come up too often.  So any couple wanting to divorce is generally going to be in the “irreconcilable differences” category.

Irreconcilable differences essentially means that your problems are so big in your marriage that you can’t fix them, even with counseling or other outside help.

In reality, the court doesn’t much care why you want to get divorced.  This is why, when my clients want to tell me about affairs and cheating and what s/he did, I have to tell them that it doesn’t really matter for the court case (save substance abuse & domestic violence when there’s children involved).  I also tell me clients that, when they’re hung up on what happened and who did what to whom (and really, who isn’t fairly obsessed with that during a divorce?), then they should get themselves to counseling as soon as they can.  Most therapists are far cheaper than I am on an hourly basis, and they’re trained to help someone with the emotions of divorce…while I am not.

So the next time you see someone talking about “irreconcilable differences,” you’ll know that this just means the couple doesn’t like each other anymore.

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.

How to prepare for divorce

Is there anyone out there anymore who doesn’t know someone who is getting divorced or thinking about it?

The first question on anyone’s mind is what will happen? The most common concerns are about money – rent, bills and health insurance – as well as children. Where will they live? How will we share custody? What are my rights?

Basically, you want to know: what do I need to know NOW so that the process is easier, smoother, and I don’t get in trouble?

Sadly, it can seem nearly impossible to find out this information. If you go to see a lawyer, he or she will spend most of the time trying to convince you to pay out thousands of dollars in a retainer. Trying to find relevant, informative, accurate and current information on the internet is like trying to sort sand on the beach.

So, what can you do? One solution is to consult with an attorney, but say up front that you only want information and do not intend to retain. That can work sometimes, but not all lawyers are equal, and the information you get can be of varied usefulness. You can research on your own – for example, Nolo Press has some GREAT resources. Be sure you stick with state-specific information, however, since state divorce laws vary widely. You can check out my FREE 7-day divorce series on how to save money when getting divorced. Or, you can try family law coaching, which is what I do.

Here are some tips to get you started:

1. Scan or copy your important documents, like tax returns, bank and credit accounts, retirement and 401K statements, mortgage statements, house and car title deeds, etc.
2. Change your powers of attorney before you file. You may also consider severing your joint tenancy.
3. Get all the most sentimental items out of your house, particularly if they are breakable and/or you have a spouse prone to angry outbursts.
4. Courts like to continue the status quo, so if you plan to make a change (go back to school, change your children’s school, start medical treatment, get braces for your children), then start that before you file for divorce.
5. Talk to a lawyer so you know your rights in your specific situation.
6. Consider getting a post office box.
7. Understand what the date of separation means so you don’t hurt yourself by filing too early or too late.
8. Prepare mentally. Deciding on getting the divorce is not the hard part. It’s only the beginning. Consider going to therapy, even if you think you don’t need it. If insurance covers it, it couldn’t hurt.

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 "Legal Separation" in California divorce? It’s not what you think!

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

First, the one that applies to everyone getting divorced. After your date of separation, which you learned all about in the last posting, 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.

Second, there is a box on the Petition for you to mark “Legal Separation” instead of “Dissolution” (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.

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 a 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.

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.