- Family Law
- Family Immigration
- Contact Us
- About Us
Gwyneth Paltrow annoyed millions when she referred to her impending divorce from Chris Martin as “conscious uncoupling.” I find it noble that they’re attempting to split amicably; however, framing this as some kind of enticing spiritual experience belies the reality of how difficult divorce is when children are involved. I see no point in sugar-coating. I’m in the midst of separation with two kids and I can attest, it’s best to face the truth, have strategies for coping and support lined up.
Here are 5 Inconvenient Truths about Divorcing with Children:
1. Kids are not THAT resilient.
When I told a friend I was getting divorced, he asked, “Why don’t you just run over your kids with a truck?” Immediately, I knew he “got it.” Most divorcing parents hear repeatedly that “kids are resilient.” This platitude sets up very unrealistic expectations. In the same vein, the notion that “if you are okay, your kids will be okay” is also an exaggeration. While you must take care of yourself and stabilize as quickly as possible, your children are not extensions of you; they have their own interpretations, their own desires and their own processes. In fact, if children are experiencing grief or struggling to comprehend, it can be disturbing and offensive when parents are glib or celebratory. Even if divorce makes perfect sense to you, it most likely does not make sense to your children. They should be allowed to see it from their own perspectives and not talked out of that. Rather, help them work toward acceptance while understanding how their new lives will operate. Allow them to heal in their own time (which could take many years). Don’t be defensive or shut down their experiences of what is happening.
2. Most likely one, if not both spouses, will flip out (at least temporarily).
Divorce can propel one or both spouses into destitution, depression, and even physical jeopardy. Likely, the “left spouse” will feel screwed over, betrayed, distraught, desperate, terrified, abandoned, vengeful or some combination of negative emotions. These feelings may not be comprehensible to the other spouse who feels some equally potent mix of heightened emotions (perhaps even relief and elation). So, a cycle of misunderstanding and defensiveness is set in motion. In the middle of all of this upheaval are children who need present, stable parents. Both spouses must remember that the well-being of your ex directly impacts that of your children. That doesn’t mean you should accept manipulation or unreasonable settlements; it means temper your behavior with the awareness that, because you created children with this person, you may not be able to cut ties as swiftly and easily as you’d like. It is essential to employ a great deal of empathy, as well as patience, when managing communication with an ex.
3. Many problems don’t go away (and the ones that do, get replaced by new ones).
Ah, the biggest bitch about divorcing someone with whom you’ve had children is that you still have to deal with them on a regular basis. The things that pissed you off about your ex will still piss you off. In fact, I’ve observed that, at least temporarily, most spouses become the worst versions of themselves during divorce. There are huge paradigm shifts when a family breaks up and new problems emerge in the process. Do the spouses keep agreements? Is there enough money for two households? Are new partners or lovers being introduced to the children? Are the parents abiding by common child-rearing methods or contradicting each other? Is one parent absent? Is one parent bad-mouthing the other? Are the kids falling apart, acting out or struggling to adapt? The list of issues that may arise is endless. Obviously, there were problems in the marriage that precipitated the divorce but just know that there is no panacea. Relative freedom comes at a price and it can take time to feel that it’s worth that cost.
4. Divorce is a failure.
Two people make a legal commitment to stay together for a lifetime. By definition, divorce is reneging on that agreement. Yes, you failed to keep that commitment — I’m not judging — I did too; I’m just calling a spade a spade. People like to reframe experiences in a way that feels more comfortable and less damning (e.g., “conscious uncoupling”). I get that, but we all fail sometimes. Can’t we admit that we’ve failed? Healing from divorce requires a great deal of forgiveness on the part of all parties involved. If you can’t even admit that you failed, how do you even know what to apologize for? This is not to say there aren’t valid reasons to divorce. We humans make mistakes and fail a lot; hopefully we glean something in the process.
5. This ain’t no Eat, Pray, Love.
Certainly, being wealthy can make divorce significantly less stressful. But if you’re a parent, there’s no amount of money that will afford you the ability to set off on a personal pilgrimage AND be a half-decent parent in the process. Even if I had the means, I wouldn’t trade my time with my kids for hot romances, meditating on a mountain or decadent meals in exotic locales (although that does sound enticing). And while, in my worst moments, I’ve contemplated driving north and never turning back, the reality is, I’d happily settle for a night out, a yoga class, or even just a decent stretch of sleep. Living is stressful, parenting is stressful, living and parenting while going through divorce is a whole other level. You have to process your own pain and upheaval while managing that of your children. The presentation of divorce as some sort of personal renaissance is rather distasteful to me. There are certainly opportunities borne out of all struggles. If I were clubbed in the knees tomorrow, I would gain strength and self-love in the process of recovering; that does not mean I want to get clubbed in the knees, nor do I recommend it!
As for “conscious uncoupling,” that strikes me as a fancy way of labeling something that many of us parents are already in the trenches doing — attempting to soften the blow of divorce by getting along with our exes. But let’s be real here. There is no pleasant way to skin a cat and there is no pain-free way to divorce, especially with children.
By Lia Sestric, Contributor
The divorce process is a stressful one that can easily bring out the worse in people. Some people even see divorce as a way to seek revenge on a spouse by seizing money and assets.
Although divorce can bail you out of an unhappy marriage, it can also milk you for all you are worth if you don’t know your rights. Check out these 40 secrets from top divorce attorneys to help you protect your assets and stay on the winning side.
Related: 10 Most Expensive Divorces of 2015
Divorcing people often want to take out their hurt feelings on exes, however it’s important not to let emotions interfere with the business at hand. In the long run, being spiteful could harm your own pocketbook.
“Asking your lawyer to write a letter to your ex over who gets the $50 coffee table book is kind of nonsensical,” said Brendan Lyle, a former divorce attorney and CEO at BBL Churchill, a divorce finance firm. He went on to reveal that a short letter could cost you $500 in attorney fees.
Understanding that divorce can be costly, savvy petitioners opt to pick their battles.
Individuals often make the mistake of assuming that assets that are in their names can’t be claimed by spouses in a divorce. However, divorce experts caution that the opposite is true.
“Practically everything is divisible, including frequent flyer air miles or royalties from a book you wrote,” said Ann Narris, a Massachusetts attorney with the Narris Law Office & Family Mediation Partners.
Because the same holds true for liabilities like debt and credit cards, couples should be sure to consider all factors when doing their financial planning.
Have a big purchase in mind, such as a new car?
“Most states issue automatic financial restraining orders prohibiting people from making big purchases or liquidating assets after the divorce is filed, absent a court order or an agreement,” said Narris.
In her practice, she advises those considering divorce to buy big items before filing.
If you’re thinking of filing for divorce or even marriage separation, it’s a good idea to take a look at your spouse’s financial situation. According to Narris, spouses should start by tracking partners’ new credit card and loan applications.
“People are more generous in their income reporting on credit or loan applications than they are in, say, their 1040,” said Narris, who went on to stress that loan applications could be crucial parts of a divorce discovery.
If you’re thinking of filing for divorce, it can be tough not to walk out the door when your spouse pushes your buttons. However, Narris recommends that individuals take time to collect evidence before a split. Along with taking pictures of assets, individuals should make copies of account statements and jot down any important numbers. Preparation is key if you hope to come out ahead in court.
When it comes to divorce, almost all property is fair game. However, spouses can’t hope to get their fair shares if they don’t know the value of assets.
“No sense in guessing on the worth of his baseball cards or your engagement ring — never mind a house or a business,” said Narris, who reminds couples that there are experts available who can appraise just about anything.
Doing your homework now is the best way to come out ahead down the line.
You can try to deceive your spouse by hiding or concealing assets, but don’t forget that you’re also messing with the law. According to Narris, if what you’re hiding is discovered, you’ll lose your credibility in court. There could also be stiff penalties, including monetary sanctions. To protect yourself and your property during a divorce, it’s best to declare all assets upfront.
People who pay alimony are rarely grateful for the opportunity. However, ex-spouses can actually help you out come tax time. According to Narris, people who pay alimony to their exes can write it off as a tax deduction. On the other hand, those who receive alimony must report it as taxable income.
It’s important to note that alimony is different from child support, which is neither taxable nor deductible.
On the contrary, if the transfer of money in a divorce is not considered alimony, the receiving spouse is in luck: these funds aren’t regarded as taxable income, according to Christian Denmon, founding partner of Denmon & Denmon, a personal injury, divorce and criminal defense law firm in Tampa.
Not so lucky is the payer, as there is no tax break for money transferred during the divorce process.
During a divorce, it’s important to stay alert to hidden tax obligations.
“A husband might have purchased stock for $50 during the marriage,” said Denmon. “The stock has gone up in value so that at the time of the divorce, the husband ends up transferring $75 to the wife. If not otherwise addressed in the divorce settlement, the husband will be on the hook to pay taxes on the $25 gain on the stock.”
According to Denmon, spouses who are receiving real estate, stocks or bonds need to understand that taxable gains can leave them vulnerable.
If you are currently being supported by your spouse, you might want to consider taking the time to dust off your resume and freshen up your skill set before seeking a divorce.
“Even if you receive support, the courts can impute income and expect you to be working if your kids are school aged and you are not of retirement age or disabled,” said Narris, who cautioned against “depend[ing] too much on a hopeful spousal support award.”
Updating your education now can help protect you later if things don’t go your way in court.
Normally, one person in a household manages the finances. However, this arrangement can create a “power imbalance when it comes time to negotiate settlements,” according to Narris. So what can you do to protect yourself?
Seek professional help to guide you in making more informed decisions about finances being filing for divorce. Doing this will help you come out swinging when you get your day in court.
It’s no secret that divorce can be expensive. In fact, according to Narris, the average cost of legal fees in a divorce is an astounding $15,000! One way to cut down on these expenses is to use a mediator.
A mediator doesn’t work on behalf of any one party, just facilitates agreements. If you want to keep your divorce details behind closed doors while cutting costs, a mediator might be the best bet for both you and your bank account.
According to Narris, many people mistakenly believe that their house is their biggest asset when it is actually a retirement or pension account. Even if your retirement account is less than robust now, the court will likely consider its future value when dividing assets.
“There are many ways to divide your portion of your spouse’s retirement asset (called a qualified domestic relations order) so give that due consideration,” said Narris.
Many individuals are hesitant to shell out for a PI or forensic attorney when going through a divorce.
However, according to Eva Cockerham, an attorney with Burke Jaskot law firm in Baltimore, “Private investigators are useful for investigating people who own small businesses, as independent data about numbers of customers, employees and resources can give a much fuller picture of a person’s true finances.”
Likewise, Cockerham noted that forensic accountants can give “insight as to whether a person going through a divorce is getting accurate information from their soon to be ex-spouse.” By spending a little now, you might be able to save yourself a bundle in the future.
Pick your divorce lawyer wisely, as it could save your bottom line.
“Find one that is experienced and knowledgeable, but is also a good fit for you,” said Narris. “You have the power to set the tone for your divorce. The attorney should advise you, but also respect your position on how to approach the negotiations.”
Just because an attorney has a high hourly rate doesn’t necessarily mean he or she will honor your wishes. For best results, go with your gut feeling.
“Some states do not divide marital debt if it’s just in one person’s name, so if possible, during separation you may want to pay down that debt preferentially,” said Sunderman.
The last thing you want is to be on the hook for debts you didn’t accumulate.
Divorce attorneys note that many clients fail to remove former spouses from their beneficiary designations.
Cautioned Sunderman, if you fail to remove these designations, “those amounts may end up being paid out to a former spouse. Usually that’s not the result you want!”
For best results, handle beneficiary designations and other tedious paperwork as soon as possible.
Court-ordered attorney fees are no joke.
“The court can order one spouse to contribute to the other spouse’s attorney fees,” said Denmon, who went on to explain that this type of debt was treated in a special manner. When it comes to court-ordered attorney fees, the judge can throw the offending spouse in jail for failing to pay.
In light of these regulations, Denmon advises that spouses who are receiving financial help should have language drafted into agreements clarifying how much money must be paid and by what date.
Doing this gives spouses the ability “to enforce the agreement should the paying spouse fail to follow through with his agreement,” said Denmon.
Clients typically strive to get as much as possible in a divorce. However, according Russell Luna, a certified divorce financial analyst in Colorado, higher incomes can disqualify individuals from important tax deductions.
“If you file single and make more than $380,750, your personal exemption of $4,000 is not available,” said Luna.
In light of this fact, individuals might not want all the items they originally requested in a divorce. For best results, speak to a financial professional about your specific fiscal situation and options.
Most attorneys will offer free consultations, said Narris, who advises clients to “take advantage of that and get some basic information, see if the lawyer is the right fit.”
To ensure you make the right choice, be sure to consult with a few attorneys before coming to a hiring decision. After all, the outcome of your divorce depends in large part on the quality of your legal advice.
While you might be tempted to file as soon as possible, it’s important to note that property division is based on the date of marriage separation in some states. Typically, the court uses a formal date of separation (DOS) to determine property division and the value of certain assets.
“If you are expecting a large increase in the value of a major asset upon a certain occasion, be mindful of that when you decide to initiate the divorce,” said Narris.
Unlike claiming a child as a tax dependent, claiming head of household is not assignable, said Narris, who went on to explain that individuals either met the criteria or did not.
If you’re negotiating who will claim a child as a dependent, Narris said, “You can include a provision that the right to claim the child is dependent on the parent being up to date on their support obligation.”
Clients often neglect to consider how their financial planning can change after a divorce.
“Your risk aversion may be very different than your former spouse[‘s] and you do not need to keep the same investment trajectory you had before the divorce,” said Narris.
If you don’t know where to begin, you might want to hire a financial adviser. Remember to think long-term when planning finances after divorce.
While most assets are divisible in divorce, there are some exceptions to the rule. Documents can help preserve what you believe to be separate property when it comes to divorce proceedings and should be collected beforehand.
“Too many times the necessary documents seem to disappear after a divorce starts, so to the highest degree possible, gather those documents before you start the divorce,” said Jeff Anderson, a Dallas family law attorney.
Dividing assets and properties isn’t always a simple numerical transaction.
“Negotiating the division of property is an art form all its own,” said Keith Nelson, a family law attorney in Dallas. “It’s a three-step process: characterize the asset, value it, divide it.”
After the asset is identified as community property, separate property or both, figuring out the value can be tricky. “For instance, a bank account with cash in it is pretty easy to value — look at the balance,” said Nelson. “But a retirement account, a house or securities can have more complex issues.”
Just as it can be difficult to value assets, couples often struggle to determine the true value of their retirement accounts. One reason that retirement accounts pose problems is that deferred tax will have to be paid at some point. In light of this fact, Nelson cautions clients that retirement accounts might be worth even less than the balance minus tax.
“If one of the parties will be liquidating a retirement account early, then the highest marginal tax rate and the early withdrawal penalty might need to be subtracted from the value of the account,” said Nelson, who went on to explain that the value of these assets is often drastically reduced as a result.
According to Nelson, “Even if the account is not going to be liquidated, the taxes which will be paid on the money at the time of retirement can be considered and a reduction of the overall value of the asset might [be], and very often is, appropriate.”
When a divorcing couple heads to court for a property dispute, state law is used to divide the property using one of two classifications: community property or equitable distribution. With community property, both spouses own income and assets equally, and items can be divided evenly. Additionally, individuals can keep separate property.
According to NOLO, a legal advice website, community property applies to the states of Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin as well as Puerto Rico. On the contrary, every other state uses equitable distribution, which involves “fairly” divvying up assets and money accrued during marriage. Knowing the law of the land can help you avoid surprises during your divorce proceedings.
According to the government research site InsideGov, the five states with the easiest and most lenient divorce laws are Alaska, South Dakota, Wyoming, Iowa and Washington. The ease of filing, fees and processing times are all considered as part of the rankings. If time and cost are of the essence, you might want to consider where you live before filing divorce papers.
Based off InsideGov’s data, the most difficult states to get a divorce include Arkansas, New Jersey, Rhode Island, South Carolina and Vermont. Arkansas takes the longest amount of time at 540 days. If you live in one of these states, you and your spouse might want to consider relocating to expedite the divorce process.
Todd Huettner, president of the residential and commercial real estate mortgage bank Huettner Capital and a financial analyst who has helped many individuals dealing with divorce, advises clients to seek professional help at all costs.
“A simple mistake that drops your credit score 40 points can cost you thousands on your next mortgage,” said Huettner. “Making a mistake separating accounts, renaming beneficiaries or not setting up life insurance properly can cost you hundreds of thousands and impact you for years.”
Despite their eagerness to be divorced, many people actually fail to complete all the steps needed to make their divorces legal, according to Huettner. For best results, clients should make sure all their bases are covered and check up on spouses to ensure they have completed the necessary steps.
“You don’t want to find out that your ex-spouse never refinanced the house five years ago like he was supposed to and [it’s] now in foreclosure,” said Huettner. “By the time you find out about it, your credit will be destroyed for years.”
You win some, you lose some, right? Unfortunately, divorcing spouses often refrain from compromising out of spite.
While you might be tempted to fight every battle that comes your way, agreeing to compromises could save you a lot of headaches and money on legal fees when going through a divorce. As an added bonus, your decision to compromise could encourage your spouse to do the same.
Although federal law might dictate that you have health insurance access under your former spouse, Narris cautions clients against relying on COBRA coverage long-term due to the high cost.
Her advice: “Start doing legwork for available options that may be less expensive. Better yet, find a job for yourself that has benefits!”
While individuals tend to factor the price of getting divorced into their budgets, they don’t always consider other everyday expenses incurred during the process.
Narris recommends that clients carve out a little extra money to care for their personal needs during this difficult time. “Factor in a gym membership, therapy co-payments, massages,” said Narris. “You will want to be as healthy as you can to help your kids through the process, and you never know when you may have a bad day.”
Savvy divorce attorneys advise their clients to be cautious when filing for divorce.
According to Luna, it’s important to make sure you have the current statement for your spouse’s brokerage account before announcing and filing for the divorce. After all, a deceitful spouse could very easily liquidate the account with no paper trail by neglecting to cash checks until later. The last thing you want is to find out your spouse set up a new account after the divorce settlement while leaving the current brokerage statement with a zero balance.
It should go without saying that divorcing individuals need to know what their spouses earn monthly, as well as where the money goes. According to aarticle, when considering the cost of future living expenses, it’s important to take into account the effect of inflation.
Narris recommends keeping receipts so you have a good idea of what everything actually costs. Doing this will help you maintain quality of life after a divorce.
Whether you have an emotional attachment to your family home, or are just seeking vengeance against your former spouse, be sure you’re thinking wisely about your decisions with regard to shared property. You don’t want to discover later that you gave up other assets just to keep a home in which you can’t afford to live.
When contemplating divorce, it’s important to consider what assets you value most and be prepared to let some things go.
“A major mistake in divorce, that everyone can get trapped into, is spending hundreds or thousands of dollars fighting for something that you don’t even want,” said Narris.
Take your time so you can make the most rational and intelligent decisions.
It might seem like a small matter, but buying nice clothes for court can boost one’s confidence.
“You will feel better and likely fair better with the judge,” said Narris.
Of course, clients should remember to keep it professional and avoid dressing in a manner that’s flashy or overly pompous. Play it safe by keeping clothing neutral and accessories to a minimum.
It’s important to remember that divorce law varies by state, and some of these tips might not be applicable in your region. Be sure to find a divorce attorney in your area to advise you on how to get a divorce. Doing this will help protect your assets and property while ensuring the process goes as smoothly as it possibly can.
Updated By Lina Guillen,
The biggest mistake divorcing spouses can make is being in the dark about finances. If your spouse has always handled all of the financial decisions in your household and you don’t have any information about you and your spouse’s income and assets, your spouse will have an unfair advantage over you when it comes time to settle the financial issues in your divorce.
If you suspect your spouse is planning a divorce, get as much information as you can now. Make copies of important financial records such as account statements (eg., savings, brokerage, and retirement) and all other data that relates to your marital lifestyle (eg., checking accounts, charge card statements, tax returns).
If you believe your spouse may liquidate (sell or transfer to cash) assets or retitle marital assets without your consent, notify the holder of the asset or property in writing and get a restraining order from the court. Watch out for any cash held in joint checking and brokerage accounts, and the cash value of life insurance policies. If your spouse uses or moves assets without your knowledge, you may have to hire legal and forensic accounting experts to help you locate and value the assets.
If you and your spouse can work together to reach a fair settlement on most or all of the issues in your divorce (eg., child custody, child support, alimony, and property division), choosing mediation to resolve your divorce case may save thousands of dollars in legal fees and emotional aggravation. The mediation process involves a neutral third-party mediator (an experienced family law attorney trained in mediation) that meets with the divorcing couple and helps them reach an agreement on the issues in their divorce. Mediation is completely voluntary; the mediator will not act as a judge, or insist on any particular outcome or agreement.
Mediation also provides divorcing couples a lot of flexibility, in terms of making their own decisions about what works best for their family, compared with the traditional adversarial legal process, which involves a court trial where a judge makes all the decisions.
Mediation, however, is not appropriate for all couples. For example, if one spouse is hiding assets or income, and refuses to come clean, you may have to head to court where a judge can order your spouse to comply. Or, if one spouse is unwilling to compromise, mediation probably won’t work.
For more detailed information about the divorce mediation process, see Divorce Mediation Basics, by Emily Doskow.
This is a very bad idea for two reasons. First, except in extremely egregious cases, most courts won’t punish your spouse financially for being a bad person.
Second, hiring an attorney to punish your spouse will cost you because your attorney will need to increase the number of hours spent on your case. Increased attorney hours means higher divorce costs, and higher divorce costs means there will be fewer assets and cash left for you and your family. Try to take the emotion out of your divorce, and treat your case as a business arrangement. The best revenge is to live well after the divorce is over.
Work together with a divorce financial planner or tax accountant to minimize the total taxes you and your spouse will pay during separation and after divorce; you can share the money you save. Don’t forget that both spouses are liable for taxes due as a result of audits on joint returns, so it’s usually in your best interest to work together and minimize possible liabilities. If you’re facing complicated tax issues in your divorce, it’s best to consult with an experienced family law attorney and an accountant.
Divorcing spouses usually underestimate living expenses when they produce their initial budget for temporary alimony (also referred to as “maintenance”), and later find that they aren’t able to cover all of their bills. Use a financial professional to help you produce an accurate and complete budget.
It’s important to remember that after the divorce is final, you may get taxed on the marital assets you received through your settlement. Say your spouse handles all the investments and offers to split them 50/50. Sounds good, right? The only way to know if you’re getting a fair deal is to determine the value of the investments on an after-tax basis, then decide if you like the deal. Again, you should speak with a tax professional about the impact of any proposed property division before you agree to it.
If you’re trying to decide whether your spouse’s proposed divorce settlement is fair and workable, you should try to figure out how the settlement will impact your finances in the years ahead. There are many factors to consider, including assets, incomes, living expenses, inflation, alimony, child support, taxes, retirement plans, investments, medical expenses and health insurance costs, and child-related expenses such as education.
There are specialized divorce computer models that produce comprehensive and realistic analyses of your post-divorce lifestyle. You should speak with a local divorce attorney or financial planner that specializes in divorce for help analyzing any proposed financial settlement.
The marital residence, the pension you earned, a painting purchased during your marriage – these assets often bring an emotionally charged debate to divorce negotiations, which can impair good decision-making. Often, divorcing spouses that are attached to the family home don’t realize that they can’t really afford. Yet, they fight tooth and nail to keep it, sometimes at the expense of retirement planning.
However, the real estate market crash has made it abundantly clear that homes have a very low return on investment and, in some cases, have a negative return; many houses today are still underwater, and couples have had to walk away from their homes and the hard-earned money they invested.
In addition, a home is a major cash expense (eg., mortgage payments, property taxes, repairs, and utilities). Let go of any emotional attachments you may have. During your divorce and settlement negotiations, your main focus should always be on how to maximize your finances by making sure you’ll have enough cash for living expenses after your divorce and in retirement.
Divorce attorneys generally charge $200- $300 per hour, and partners in well-known New York City, Los Angeles, and San Francisco family law firms typically charge $450 per hour. These attorneys can provide advice on divorce-related issues, but they are not therapists or certified financial planners. If you need to talk through the emotional aspects of your divorce, or need career counseling or financial analysis, save money on additional attorney’s fees and be sure to talk to the right professionals, such as a licensed therapist, vocational expert, or a financial planner.
Both spouses and children must make compromises in their life styles post-divorce. A settlement that does not give one spouse enough money to live on is likely to go into default in the future. Be fair, but verify the numbers. Get payments up front whenever possible, even if you get less in total. Try to secure all payments with assets and insurance. It may be worth speaking to a family law attorney who can review a settlement offer and make sure your rights are fully protected.
The effects of inflation on the cost of a child’s college education, or on retirement, 15 years in the future can be dramatic. The “Rule of 72” is a simple way to judge the impact of inflation. For example, if the inflation rate is 3%, the “Rule of 72” means that prices will double in 24 years (72/3=24). College costs at 5% inflation will double in 14.4 years (72/5=14.4). Be sure to work inflation into your settlement negotiations so you can cover the true costs of future financial expenses.
If a couple is married for 10 years or longer, a non-working or lower-earning spouse is entitled to derivative social security benefits on the higher earning spouse’s (“worker spouse”) record. These derivative benefits do not impact or lower the worker spouse’s social security payments, which is why it’s so ironic that the average length of marriage for people who get divorced is about nine and a half years. Waiting just another six months may guarantee increased retirement options with no reduction in payments.
For more information on this topic, see Social Security Benefits After Divorce by Lina Guillen.
After divorce, many people forget to change the beneficiaries on their life insurance policies, IRAs, and will(s), so the estates they wanted to leave to their children, new partner, or favorite charity may go instead to their ex-spouse. If you’re going through a divorce, talk to a family law attorney to find out what changes you can make to your estate plan during and/or post-divorce.
Your ex-spouse’s premature death or disability can be devastating and may result in a loss of alimony, child support, college tuition, or property settlement payments. Life and disability insurance policies can guarantee that these payments will continue despite an unexpected loss or injury.
One indisputable fact of divorce is that two households cost more to operate than one. Many divorcing spouses fail to realize that their divorce settlement must last a significant amount of time: perhaps even the rest of their lives. Financial planning can help people transition from a married to single lifestyle by prioritizing financial goals, developing realistic expectations, and producing sound plans for the assignment and division of financial resources.
You have a California divorce and you are concerned about your kids. You are asking, “how do I get full custody in California of my child?” and you want answers. We are here to help.
First, we have to make sure we know what “full custody in California” really means so you are clear.
Full custody is the term that parents sometimes use when referring to the legal term of sole custody. Sole custody comes in two forms – Sole legal custody and sole physical custody. There is a significant difference between the two and in this article we will discuss how parents can and should obtain it.
If you are a real visual person and want to see a cool graphic we created regarding some of the more common ways you can get full custody in California of your children, visit this PDF page entitled Sole Custody in California of Children MindMap.
To contact us, please fill out the form at the end of this article or call us at any one of our three Orange County offices. To reach us at our central office in Santa Ana, call us at (714) 937-1193.
The court needs a compelling reason consistent with the children’s best interest to order full custody to one parent. We have a written a comprehensive guide on California child custody laws which discuss California’s public policy of favoring frequent and regular contact with both parents and generally favoring joint custody.
A parent who seeks full custody in California needs to be aware of this because walking into the case blind and with the thought that persuasive evidence (more than just your word against that of the other parent) justifying a sole custody order won’t be necessary will likely cause that parent to lose the court case.
Similarly, a parent who is facing a full custody order against him or her must be aware that he or she cannot just walk in the court and assume everything will work out. Although a request for full custody is not something that a court should ever take lightly, a defending parent must be vigilant in his opposition and be prepared to set forth to the court why the requesting parent does not meet his or her burden of proof that is required by California law.
In addition, a parent opposing a request for full custody should consider whether he or she should make a counter request for full custody if the request for custody by the other parent is made in bad faith. This includes but is not limited to situations where the other parent has engaged in misconduct such as false allegations of abuse, parental alienation, improper influencing of the children or interference with joint custody rights and is using any of that as a basis for the modification.
The short answer is yes unless the other parent can persuade the court that the presumption of Family Code 3044 should not be applied. Family Code 3044 in subsection (a) states:
Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.
Section 3044 then goes on to state how you rebut the presumption.
Practically and pragmatically, that means that a judge should favor a sole legal and sole physical custody request when one parent has been found to have committed domestic violence.
That however is not a conclusive presumption but rather a rebuttable one which means that the parent facing such a request can produce evidence to avoid a sole legal and sole physical custody order.
The court can take substance abuse into consideration when evaluating a request for full custody by one parent. This includes drug or alcohol use and abuse of prescription medication, the latter of which is becoming an epidemic in America.
Parents often make the mistake of thinking that a simple allegation or even proof that the other parent has used drugs or alcohol is, by itself, enough to support a sole legal and physical custody request. California law generally requires more than just the bare allegation that one parent uses drugs. For example, to get an order for an alcohol or drug test, a parent must show habitual, frequent or continual illegal use of alcohol or drugs.
That is because the focus is on the children’s best interest and unless alcohol or drug use has reached that point of compromising the children’s best interest, family law judges may hesitant to make a sole legal and sole physical custody order.
That is very different than making orders other than full custody. Certainly, parenting time may be limited and other orders can be made to protect the children, short of an order for sole legal and sole physical custody.
A parent faced with another parent who uses illegal drugs or abuses prescription medication or alcohol should be vigilant in his or her retention of an experienced family law attorney to evaluate the facts and determine what requests should be made to the court and whether or not sole legal and physical custody orders or something different is best. Since every factual situation is going to be unique, no article will evaluate your specific situation.
Similarly, a parent facing a full custody (or any) request against him or her must be prepared to submit evidence that he or she does not abuse alcohol or use illicit drugs.
If the parent used to have a drug or alcohol problem, evidence that he or she has participated in treatment as well as alcohol or narcotics anonymous and has taken other steps to curb or eliminate his or her addiction will generally go a long way with a family law judge in the divorce and custody case.
Sincerity and honesty is a big factor in addiction and one mistake parents make is to try to hide the alcohol and drug use thinking that it will not be found out. Doing so generally makes a bad problem worse when the addiction gets to a point where the evidence of it is clear and there is now also a history that the parent lied to the court about that addiction.
Anytime the parent gets caught lying to the court under oath about something serious, which an addiction and substance abuse is, that fact may not bode well for the parent in future hearings.
Child abuse also qualifies as a justifiable reason seek a full custody request in California. The nature and extent of the abuse, as well as its proximity to the filing, are all important factors.
Parents who wait and do nothing regarding abuse for many months or a year or more may face an uphill battle when trying to persuade the court that the past abuse is good cause for current full custody orders.
A family law judge has to be a realist.
It may be difficult to persuade a judge that something is an emergency or a child needs immediate protection if you have done little to nothing to protect the child from the very abuse about which you’re complaining.
In addition, delaying the reporting of the abuse and seeking a full custody request much later will put your own credibility at issue if the abuse is not documented (photos, etc.) or there is no evidence of its reporting (law enforcement, child protective services, medical providers) and it becomes a he said and she said scenario, especially when the child is too young to testify and corroborate the abuse.
On the other hand, if the abuse is recent or it has a lengthy history which is likely to be repeated, parents stand a very good chance of obtaining full custody of the children in order to protect the children from further abuse.
In such situations, family law courts, especially in Orange County, may appoint a child custody investigation (called a CCI) or private child custody evaluation of some type to determine the history of the abuse as well as obtain facts and recommendations from court-appointed expert witnesses or social services.
This is a difficult topic because courts do take false allegations of abuse seriously, as they must pursuant to California law, but, in our opinion, do not take it seriously enough.
False allegations of abuse is one of the worst things that a parent or spouse can do to the other parent and children. The more serious the false allegation, the more likely that a parent will need to take immediate action.
When dealing with knowingly false allegations of sexual abuse, California law states in Family Code 3027.5(b):
The court may order supervised visitation or limit a parent’s custody or visitation if the court finds substantial evidence that the parent, with the intent to interfere with the other parent’s lawful contact with the child, made a report of child sexual abuse, during a child custody proceeding or at any other time, that he or she knew was false at the time it was made. Any limitation of custody or visitation, including an order for supervised visitation, pursuant to this subdivision, or any statute regarding the making of a false child abuse report, shall be imposed only after the court has determined that the limitation is necessary to protect the health, safety, and welfare of the child, and the court has considered the state’s policy of assuring that children have frequent and continuing contact with both parents as declared in subdivision (b) of Section 3020.
Those who are victimized by false allegations of abuse must take the case as seriously as those victimized by actual abuse itself. It is the only way to protect the children’s best interest and avoid further damage to their emotions and psychology.
Abandonment is a serious allegation and there does need to be evidence in support of it. However, if it can be shown, courts can make full custody orders against the parent who abandoned children.
We most often see this in one of two situations.
First, a situation where there has not been any custody order and one parent has been the sole caretaker of the children. The other parent has provided little to no financial support and little to no time has been invested with the children since separation.
In such a scenario, when it has gone on long enough, the court has the discretion to order full custody to the parent who has been the caretaker. That is because there has been no bonding between the abandoning parent and the children and it clearly would not be in the children’s best interest to completely turn the status quo upside down and destroy what they have become accustomed to simply because the abandoning parent now suddenly wants to get back into the children’s lives.
Does that mean the parent who abandoned the children is forever barred from re-entering the children’s lives? Of course not. However, in such situations, the court will want to see actual effort (and the result of that effort) by the abandoning parent and genuine and proactive work into restoring the relationship with the children and increasing the parental bond.
This is done by starting off with visitation that is not overnight and will allow the children to adjust slowly and steadily to the increased parenting time as he or she demonstrates to the court that he or she is now serious about spending time with the children.
The second scenario happens when there is actually a court order in place but the abandoning parent does not follow it. The result should be the same but, because there is a court order, it is not uncommon for the abandoning parent to use it as a means of harassment of the other parent and threaten the other parent with contempt proceedings or other court intervention if the parent who has been caring for the children does not capitulate to the abandoning parent’s whims, whenever he or she decides that he or she wants to see the children.
The parent who has cared for the kids full-time is placed into a difficult situation. On the one hand, no right-thinking parent wants to violate a court order. On the other hand, that parent knows that it is not in the children’s best interest to be shuttled back-and-forth unpredictability like this just because of the other parent’s lack of stability and abandonment.
The best course of action is to seek an immediate court order for a child custody and visitation modification. Otherwise, the full-time parent will continue to be under constant harassment, intimidation and threats. Once the court orders are modified, those things do not become an issue anymore because the abandoning parent has lost all of his or her leverage for his or her misconduct.
Before you file for divorce, you’ll probably want to know how long it takes to get one. The answer will depend on a number of factors. Changing any one of these factors can affect how long the divorce process takes.
How Long Does It Take to Get Divorced?
The time it takes for getting a divorce is affected by:
“Cooling Off” Periods and Periods of Separation
Whether or not you can have a relatively quick divorce can depend upon your state and whether it has a mandatory waiting or “cooling off” period. A cooling off period is the time you must wait before you can get divorced. A waiting period allows you to consider reconciling or to get adjusted to your new situation.
If you read articles about each state’s waiting period, you will get different and often wrong answers. How long getting divorced takes will depend on what the waiting period is in your state.
Some states don’t have waiting periods, while others do: California has a six-month period. Tennessee has a 90-day period when there are children and a 60-day period without children.
In some states, you can’t even file for divorce unless you’ve been separated for a specific period of time—often one year. Check with a family lawyer to find out about your state’s waiting period and if you need to be living separate and apart for a specific amount of time.
Residency requirements can increase the time it takes for your divorce to be finalized. You must meet your state’s residency requirements before you can file for divorce. A family lawyer can inform you of these requirements.
Whether Your Divorce Is No-Fault or Fault-Based
You can file for a no-fault divorce in every state. A no-fault divorce is where no one takes the blame for breaking up the marriage. Some states also allow you to file a divorce based on fault. That means you can claim adultery, cruel and inhuman treatment, or other grounds for divorce.
If you’re trying to slow down the divorce process, filing a fault-based divorce does that because you have to prove grounds for divorce at a hearing or trial. Your spouse could file a fault-based divorce in an attempt to stop the divorce. Most of the time, filing a fault-based divorce doesn’t stop the divorce, but it will make the process take longer.
Serving Divorce Papers on Your Spouse
If your spouse avoids getting served with divorce papers, your divorce will take longer. Sometimes spouses play games when it comes to getting served with papers. If this happens, get a process server.
Uncontested Divorces Take Less Time
An uncontested divorce take less time because there is no trial. You and your spouse sign the required papers, including a marital settlement agreement. This allows your case to move quickly through the court. The judge merely needs to look at your papers, make sure they’re in order, and then grant the divorce.
A divorce that is no-fault and uncontested will be the fastest way to get divorced because you’re agreeing with your spouse about everything. Depending on your state, your divorce could take from one to several months.
A Contested Divorce Will Take Longer
If your divorce is contested, your divorce could take a lot longer. A contested divorce, where at least one major issue cannot be resolved, will often involve a trial on any unresolved issues.
If you add the time for a trial to the mandatory waiting period, your divorce proceedingscould take more than a year.
Your County Court’s Work Load
How long does a divorce take in your county? If your family or matrimonial court has a backlog of cases, your divorce will take longer. Your case has to get on the court calendar before a judge can grant your divorce.
If your county has a large population, it is likely the court has a long list of cases ahead of yours. A backlog adds additional time to your divorce.
The Complexity of the Issues
How long does it take to get a divorce if your situation is complicated? If your case involves a lot of property, has complex issues about assets or visitation, or contains difficult custody issues, then your divorce will take longer than other cases.
If you can get your spouse to agree on such issues, then your divorce can be done more quickly. Even difficult cases can be resolved by a marital settlement agreement and move swiftly through the court.
If Your Spouse Is Hiding Assets
Make sure you trust your spouse to have made a complete disclosure about assets. If you don’t trust that all assets have been disclosed, consult a family lawyer. While it will slow down your divorce, you don’t want to walk away from assets you may be entitled to.
So, How Can You Speed Up Your Divorce?
There are several ways to speed up a divorce. The best way is to reach agreement with your spouse on:
Make sure you meet your state’s residency requirements. Also make sure your divorce papers are correct and complete, so you don’t have to redo them.
In the states that have mandatory waiting periods, you might be able to get a waiver if you and your spouse agree to it or if you show good cause for the waiver. Consult with a family lawyer to identify steps you can take to get your divorce done properly and quickly.
There are two types of divorce available in most states: contested and uncontested divorce. The time required to obtain a divorce, waiting periods between filing an initial petition and receiving a final divorce decree, separation prerequisites, residency requirements, legal costs, and court costs may vary by jurisdiction and which type of divorce is filed. As such, separating couples approaching a divorce should educate themselves on the differences between the two divorce types.
The contested divorce is the type in which the spouses cannot arrive at an agreement on one or more key issues in order to conclusively terminate their marriage. When spouses cannot arrive at an agreement, even with the assistance of their legal counsel (if any), they must approach a court to adjudicate their dispute. Contested divorces are commonplace now, especially since there are so many different issues to resolve during the course of terminating a marriage. The typical hot button issues requiring resolution during the course of a contested divorce include sensitive topics such as:
Uncontested divorces are often referred to as simple divorces. An uncontested divorce occurs when the couple agrees on all issues required to conclusively and effectively terminate their marriage, leaving nothing of consequence that is disputed or unresolved. This type of agreement is not equated necessarily with an amicable divorce, however. Instead, the agreement means that all disputed items raised between the couple were settled out of court and short of the requirement of judicial adjudication.
Most couples would probably express a preference for uncontested divorce because of its speed, simplicity, convenience, privacy, and inexpensiveness. The efficiency and cost savings of uncontested divorces are the major advantages highlighted by most divorcing couples. Lawyers are not required in order to achieve an uncontested divorce, although they can be used and often are indeed used in such situations. It is important to realize though, that any party can technically file a petition or complaint for divorce without the assistance of legal counsel.
When an uncontested divorce case involves a couple with a minor child or children, the case often is referred to a part of the applicable court for the conducting of interviews and recommendation(s) in child custody matters. Those custody matters regard which parent receives custody of the children, the type of custody determined to be in the children’s best interests, and the child support award amount. If any objection to the ruling arises on the part of either spouse, then counsel usually intervenes, and the divorce becomes contested. If no objections are filed, the case continues to court.
Before any state can grant a divorce, it must have jurisdiction over both spouses. Jurisdiction gives it the right to decide issues between them. When you file for divorce, your petition or complaint attests to the fact that you’ve met residency requirements. This gives your state jurisdiction over you. When you serve your spouse with a copy of your petition or complaint, your state gains jurisdiction over him. After jurisdiction is established, you can usually leave the state, either temporarily or permanently. However, exceptions exist if you have children.
When you file a complaint or petition for divorce, you must meet each state’s residency requirements at that time. The exact time period depends on individual state laws; some states only require a few weeks, and others require months. However, the time must generally be continuous. If your state has a three-month requirement, you can’t live there for two months, leave for a month, return for a month, then file for divorce. When you do file, jurisdiction requirements over you are satisfied, so you don’t have to stay.