Getting divorced? How to avoid disaster by steering clear of these all-too-common mistakes

I’ve talked before about how divorce is nearly always much more expensive and time-consuming than you ever expect it to be – frequently many times more – and given tips on how to not only reduce this time and expense, but how to reduce the stress and toll the divorce process has on you and your children.  Particularly in California divorce, and divorce in the Bay Area, courts are overcrowded and lawyers expensive, so this problem is exacerbated.

There are things you can do to ease the process – for example, hiring an experienced attorney to help you – but there are also things you can do in your relationship with your ex that will make the process go more smoothly.  The marriage may be over, and even perhaps the friendship and trust that certainly existed at some point, but if you have children, there is still going to be a relationship of some sort, and what you say and do – how you conduct yourself – will have a large bearing on what the post-divorce relationship looks like.  Even if you don’t have children with your ex, you still have to maintain a relationship to get through the divorce process.  Here are some tips to help you through:

1. Divorce is hard.  It’s hard on both of you.  Focusing on the reasons for the divorce or bringing up old arguments will do nothing but make it all worse.  The marriage is over, don’t dwell on these things.  If you have issues – anger, sadness, resentment – then work on them with a qualified therapist.  Don’t make it worse on you, your ex and your children by hanging on to issues that no longer matter.  One qualifier: if the issues you’re focused on involve concerns about your children (substance abuse, violence, neglect, for example), then these are relevant to the divorce case.  Never listening to you, not picking up socks, and that pesky affair are not generally going to be issues that move your case along.
2. Make sure you know what you’re talking about before you open your mouth.  Threatening to “take custody” or to quit your job to avoid child support or bad-mouthing your ex’s lawyer do nothing but make the emotions in your case escalate.  Yes, we all can say things we don’t mean when we’re angry.  All the more reason to think before speaking to your ex.  This is agreat articleabout the nasty things spouses say to each other in a divorce – and why they’re empty threats.
3. This is an issue I’ve talked about before – as soon as you possibly can, start thinking of the divorce in business-like terms.  Once you decide to divorce, the court and legal process essentially strips all emotion out of the equation and gets to the business of dividing assets, determining appropriate support, and working out the child custody and child visitation schedule.  Try to look at the divorce as a business transaction, because that’s what the court is doing.  It’s the break-up of a family unit, so each side gets half of what’s in the family.  Removing your emotions in the court process (and keeping them reserved for therapy, for example) will help to move the process along because you will not be delaying the process on emotional grounds.
4. One last tip for those working with legal professionals: refuse to work or stop working with someone who is making the process worse.  Unfortunately for you, lawyers benefit financially when cases take longer and are more acrimonious.  If your lawyer tells you to stop talking to your ex (saying all communication has to be through the lawyers) or discourages you from making a reasonable settlement in favor of an expensive trial, find someone else to work with.  You’ll all be better served in the long run.

Or, I suppose if you have endless funds, time and anger, you can do all of the above, fight for years, and make a few lawyers rich.  It happens, all too often.  Remember, you get to choose how your divorce proceeds.  Which will you choose?

Advertisement

So, your spouse has hired a lawyer in your California divorce. What do you do? How to negotiate with OPC (opposing counsel)

One of the most terrifying things you can experience in a divorce is coming into court, expecting the hearing to be between you and your spouse, and finding out that your spouse has hired an attorney.  It can be scary.  Lawyers vary, too, in how they deal with unrepresented litigants.  I am always polite but firm.  I know one attorney who is outright nasty, from calling the other party names to threatening them to yelling at them.  You can’t always expect that an attorney is going to be civil…or even professional, unfortunately.

So, what do you do?  First, if you find yourself in the situation, and you want to or think you can hire an attorney, ask the judge at your hearing to continue (postpone) the hearing so you don’ t have to go forward and get steamrolled by the attorney.  Then get thee some legal advice and/or a lawyer, ASAP!  Generally judges will allow unrepresented parties a break if blindsided by an attorney at a hearing.

Second, if you get an attorney or other help or not, make sure you learn as much as you can about your case and the law.  The more you know, the better decisions you’ll make and quite possibly, the less you’ll pay for your attorney. Third, remember that the attorney is getting paid to do a job, and is also a person as well as an attorney.  If the attorney is rude or says things you don’t like, it’s not because they have it out for you.  They’re doing their job.  They also may be a fantastic attorney, or they may not be so knowledgeable or experienced.  They may be having a bad day.  They may hate their client.  You just don’t know what’s going on in their head, but if you treat them like you would treat your ex (react emotionally, take offense to everything, or reject everything they say simply because they’re saying it), it’s not going to be productive.

Fourth, remember to keep your eye on the ball (and the bill!).  Don’t spend $1,000 on attorney fees over a $500 stereo.  If the other attorney has a reasonable proposal, don’t refuse to agree to it out of mistrust. I’ve had many clients insist that I draft settlement documents because they didn’t trust the other side.  In certain cases, this is appropriate since the other side might be sneaky. But in many cases, this just isn’t true and by having your own attorney prepare documents, you’re just upping the bill for yourself.

Finally, try to keep it together.  If you tend to be overly emotional, see a therapist.  Lawyers won’t help with this at all – they’re not trained for it and they’re much, much more expensive than a therapist.  As soon as you can and as much as you can, try to view the divorce as a business relationship breaking apart.  This is the way the court sees it, so the sooner you get on board, the better.  This may see impossible, but it can and should be done as it will be better for everyone.

Want more help? Use the link to the right to schedule an appointment online.

Divorce in the new year? What you need to get started & exclusive offer

I read a recent article about divorce in the new year, and wanted to take the opportunity to give a little advice I have learned over the nearly 15 years I have been practicing divorce law: get the information you need before you make a decision.  Do you think you’re headed for divorce in 2017? Have you already decided, and what’s left is to pull the trigger? Are you wanting to proceed but perhaps anxious, nervous or scared about the process, time and expense involved?

I offer comprehensive consultations because I think that it’s critical for anyone thinking of divorce to understand your rights and the various options open to you and your circumstances (here’s a bit more about our consultation philosophy).  Even if you haven’t decided, getting the accurate and specific-to-you advice can help you to make a more informed decision. In addition, it can help you to understand what to expect, which can make the entire process easier.  Divorce is hard enough as it is – anything that can make the process easier is extremely valuable.

So whether it’s signing up for my FREE divorce series, getting a book on divorce, or scheduling a consultation with us, get the information you need before you decide on your course of action.  To make this easier, I am offering a 30% off discount for consultations scheduled in January. Instead of the usual $300 cost, mention this blog post and I’ll give you an hour of my time for $200 – 1/3 of my regular hourly rate!

To remind you of what you get in a consultation with me: I want to spend our time answering your questions and giving you the most advice I can.  To that end, I try to gather as much information about you and your situation as I can, in advance. I’ll look at your documents, review a written narrative of what’s going on, have you complete my intake form so we don’t waste time with me gathering basic information, and get a list of your specific questions.  That way, we can hit the ground running when you come in to see me. The hour is packed with information you can use immediately and I don’t know of any attorney who does what I do.

What are you waiting for?  Call me at 925.307.6543, email me directly at cmm@mcphersonlawgroup.com or schedule an appointment by clicking here.

How to change your child custody &visitation schedule 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 asyou 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.  We can help!  Click on the link to the right to schedule your appointment online.

Looking for a free California divorce consultation? Why it’s not worth the money

I came across an article recently that purported to give advice on how to select a divorce attorney.  One of the bits of advice was that most “reputable” attorneys will offer a free consultation.  I was stunned to hear this, as I think the precise opposite!  The free consultation from the divorce attorney is a loss leader, which means that it’s free because the attorney is looking for the potential client to pay the big bucks at the end of the consultation. In addition, the attorney doesn’t offer anything of value to the potential client during the free consultation, so why would it cost anything?!

Remember, you get what you pay for!

Many attorneys offer a free or reduced-cost consultation and the appointment goes like this: the potential client arrives and fills out some paperwork, finishing after about 10-15 minutes.  Then s/he waits another 5-10 minutes, so the actual appointment starts at least 15 minutes into the alloted “hour.”  The attorney, naturally, want to know what’s going on, so the potential client spends at least 20-30 minutes – often this is closer to 45 minutes – telling their “story” to the attorney.  So, at this point, it’s been 45 minutes to an hour, and the attorney has yet to *do* anything but sit and listen.  At the end of the consultation, the attorney says, well, yes. I can help you with that.  And the retainer will be $10,000.  Or $5,000.  Or $20,000.  So the potential client has paid nothing to get nothing but a very high retainer quote, and the client has (unless s/he has the money) wasted an hour or so of time.

Is that worth it?  Are these the practices of a “reputable” attorney?

A paid consultation can be more worthwhile, as they tend to be a little longer and involve more attorney advice and counsel.  Often, the intake sheet is sent in advance, and the “hour” spent is really an hour – hopefully, an hour spent gathering real, useful, and practice advice that the individual can use.

Another option is what we do: we take your information and story ahead of time (!) in the form of documents, email, faxes, a letter, etc., we have the intake form completed in advance, and spend most of the full hour with you, giving YOU real advice that you can use now.  Yes, the consultation costs, but you get what you pay for.

Which would you choose? Use the link at the right to make an appointment online.

Divorce & the sleepover with the new boyfriend/girlfriend: When is it ok if there are children in the house?

The divorce process can take years, literally. In addition, in many cases, the relationship is long over by the time the couple pulls the trigger on the divorce paperwork. In the Bay Area – in California – the waiting period is six months, which means that a couple cannot be divorced earlier than six months after the divorce Petition is filed. But some divorce cases – I had one recently out of San Ramon – can be resolved in a matter of weeks, and the paperwork is just a little slower. Other divorces – like one client I have from Oakland – can go on for years and years.

So, with those varying timetables, in many cases it seems inevitable that one or both parties will move on into other relationships. Also inevitable is what the parent is to do when faced with the dilemma of when to allow the significant other to sleepover or, perhaps more difficult, when to allow the ex’s significant other to sleep over. Here are some tips to consider:

1. Just because it’s too soon for you may not mean it’s too soon for your ex or your child(ren).
2. Making it a big deal makes it a big deal.
3. Try to understand your child’s point of view, and then determine how to react. Children can be very adaptable, so the change from dates to overnights may not make much difference to the child.
4. If you can, get to know the significant other. And don’t interrogate your child to do so. Simple, non-threatening questions about whether your child likes the significant other, and why, what they do together, how much time they spend together, and what they talk about will be sufficient. Don’t make it an agenda about your ex! Make sure you’re asking to determine the relationship the significant other has with your child, because this is the important part.
5. Take into consideration the age of the child, as well as the child’s maturity, always bearing in mind that it is likely to be much more traumatic for you than your child.

It’s inevitable that it will happen sometime, so you might as well make it an easy transition now. Plus, the better you react, the more likely your ex will react well when it comes time for you to have a sleepover.

What does “irreconcilable differences” mean in California divorce?

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 want to be married to each other anymore.

Thinking about filing for divorce? Don’t miss these critical first steps

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. Ready for more information? Make an appointment online by clicking here.

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.

Changing retirement & insurance beneficiaries during & after California divorce

While you are married, generally you name your spouse as the beneficiary on your life insurance, 401K, pension, etc. Once you get divorced, however, you are going to want to change those beneficiaries. This may sound simple, but it is extremely common for someone to forget and their ex-spouse ends up with their assets upon their death.

Why is that? I can only guess. First, as I have discussed before, during the time your case is in the court system (after you have filed your Petition but before you have your Judgment), you MAY NOT change any of your beneficiaries or your will or trust without consent from the other party. You cannot even sever a joint tenancy without notifying your spouse. But AFTER, when the case is over, you are not only free to do so, but you really need to.

I think some people forget, or once they have their Judgment, they want to put all of the hassle behind them. Don’t do this! You took the effort to get divorced – don’t forget to complete the process and change the beneficiaries on your accounts!

A friend of mine came to me recently because the spouse of a colleague of his had passed away. The only asset this person left was a life insurance policy that named a girlfriend of his from nearly twenty years before. She’s likely to lose her home because her husband, in twenty years, never changed his life insurance policy beneficiary. This was a sad situation that could have been easily avoided.