Archive: Family Law Blog

CALIFORNIA DIVORCE MYTHS – PART ONE

I’ve placed the myth in italics and the reality follows.

1.   I am automatically divorced 6 months after I file for divorce.  No.

2.   I am legally separated once I file for divorce.  No.  Your Petition for Dissolution of Marriage or Legal Separation only lists the date you contend is your date of separation from your spouse.

3.   If she/he withholds child support, I can retaliate by withholding visitation for him/her with our children.  NO!   Child support and visitation are not linked.  Even deadbeat dads and deadbeat moms get to visit their children.  However, the failure to financially support a minor child may be one of the factors a family court considers to decide primary custody of that child.

4.   If he/she marries a high earner, my child support payments will go down.  NO.  Your ex’s new spouse, even if they are a billionaire, has no legal duty to financially support your children.  This means your ex spouse could marry a billionaire who flies her/him and your kids around on a private jet and they all live in a large and magnificent estate with servants, and a private chef, etc., and you are still legally required to pay child support.

5.   If I buy a house with a fat mortgage, I can’t afford child support, so it will go down.  NO.  In fact, under the California child support guideline, your child support will probably increase because that fat mortgage gives you a bigger tax deduction and therefore you have more net money available for child support.

6.   If my name is not on the credit card, I don’t owe the debt incurred during the marriage.  Wrong.  However, there may be some credit card debts incurred by your spouse that a family court will confirm to them. It depends on the facts.

7.   I can be reimbursed for paying his/her premarital debts.  NO.  That was a good deed and no good deed goes unpunished.

8.   The Court can make the other parent chip in for the kids’ college.  NO.  In California, there is no legal requirement that a parent pay for the college education of their child.

9.   If I quit my job, I won’t have to pay support.  Are you kidding me?   Who told you that?

10. If we’re married more than 10 years, then he/she has to pay for me to get a college education.  NO, that is what your spousal support can be used for.

11. Children can make custody decisions at age 12.  Not very often, if at all.  However, there has been a major shift in California law regarding the custody of minor children age 14 and older.   Children 14 years and older now have the right to express their preference with respect custody to the family court.  How this will manifest itself is still being worked out by the family courts in California.  It is probably unlikely that we will see children on the witness stand in custody cases.

12. If we have equal custody, there won’t be any child support.  Wrong.  Child support in California is determined by a statewide uniform guideline and the timeshare parties have with their children is just one of the factors that is considered in determining child support.

13. I know we’ve been married for 15 years, but our child who was born 15 years ago, isn’t mine.  I want a paternity test.  You’re kidding me, right?  Sorry, too late to ask.

14. If the family court orders me to pay community debts, I can always discharge them in bankruptcy.  Probably not since the bankruptcy laws changed a few years ago.

Share
For more information, please call Philip A. Wasserman at 661-294-8484 or email him at paw@santaclaritafamilylaw.com.

Continue Reading

DISCLOSURE REQUIREMENTS, PART TWO.

     Parties going through a divorce in California have a duty to disclose all of their assets and debts.  California has created a form that assists you in disclosing your assets and debts.  It is aptly named a “Schedule of Assets and Debts.”  You can use this form and then add to it on additional pages. 

     The duty to disclose your assets and debts exists until the asset or debt has been divided, either through a written agreement or court order.  You must list all of your assets and debts, even if you contend that an asset is your separate property and even if you contend that an asset is held by a third party.  However, just listing an asset is not good enough.  You also need to disclose its value.  The case of Marriage of Brewer and Federici (2002) 93 Cal.App.4th 1335, illustrates this point.  Ms. Brewer listed her pension plans, but the Court of Appeal stated that she failed to provide accurate and complete valuations of those plans.  The California Court of Appeal stated that Ms. Brewer had a duty to provide accurate and complete valuations of her pension plans to her husband, Mr. Federici.  This led to the parties’ settlement agreement and judgment being set aside. 

     Obviously, some assets have so little value that you could bundle them together and estimate a value.  For example, all of the kitchen appliances, pots, pans, etc.  Normally, these items would be given “garage sale” or “swap meet” value.  Likewise, the big screen television that you bought last year is probably now obsolete and not worth anywhere near what you paid for it.

     What happens if you fail to disclose?   You don’t want to go down that road.  In the case of Marriage of Feldman (2000) 153 Cal.App.4th 1470, Mr. Feldman was sanctioned $250,000.00 by the Court for his failure to provide his wife with information regarding his financial dealings during their divorce.  He was also ordered to pay her $140,000.00 in attorney fees. 

     During the divorce process, nearly everyone who is paying child and/or spousal support immediately calls their attorney if they lose their job or their pay is reduced, because they want to make sure the support they are paying is likewise reduced.   Attorneys rarely hear from a client when they get a raise or bonus during the divorce process.  However, California law requires that you must disclose to the other party immediately upon a significant change in your income.  If your spouse discovers that during the divorce process you failed to disclose a significant change in your income  you could be sanctioned and also ordered to pay all of your spouses attorney fees and costs.  What is a significant change in income?  Unfortunately, we don’t have any guidance on that yet, so just to be safe…disclose.

Share
For more information, please call Philip A. Wasserman at 661-294-8484 or email him at paw@santaclaritafamilylaw.com.

Continue Reading

PET CUSTODY DISPUTES

      Can you have shared custody of a dog or cat?  Here in California, pets acquired during marriage are presumed to be community property.  This means that in a divorce, the family court will divvy up pets similar to dividing furniture or vehicles.  One spouse gets the pet, the other doesn’t.   In my experience, California family courts will not order a shared custody arrangement of a pet if the parties cannot agree.  California family courts have not adopted a best interest standard for pets, which is used to determine custody of children.  Children are almost always subject to some type of shared custody arrangement between divorced spouses or domestic partners, and custody can be modified when circumstances change.  However, with pets, one side wins and the other loses forever.  Still, family courts should not put a pet into a situation where it is likely to be mistreated.  Family courts should therefore consider the psychological attachment which each party has to a pet before making a decision on who gets Fido or Fluffy.  

      In at least one area of California law affecting families, pets have gained important legal rights.  The victim of domestic violence can obtain a restraining order that will award them the sole possession, care and control of their animals.  The victim can also obtain an order that the perpetrator of domestic violence stay away from the animals and not “take, sell, transfer, encumber, conceal, molest, attack, strike, threaten, harm or otherwise dispose of the” animals.  The heading for this order states:  “Animals:  Possession and Stay-Away Order.”  Although this law extends protections to animals, it does not use the words “sole custody” to describe that protection.  This seems to put animals somewhere between property, such as a vehicle or residence and children.  Or does it?  Consider that the restraining order states that the alleged committer of domestic violence is ordered not to “molest, strike, threaten, or harm” the animal.  This language is the same language that is used to protect the victim of domestic violence and their children. 

      Is the California legislature’s decision to extend protection to our animals in domestic violence cases a harbinger of expanded rights for our pets in future divorce cases?  That is a difficult question to answer.  With the exception of the aforementioned restraining orders, there is no California law that deals with pet custody in divorce.  A family court should, however, consider whether awarding a pet to one party would subject the animal to abuse, before making that award. 

     While there is no published California Appellate Court case that directly deals with pet custody in divorce, the emotional link between humans and pets was recognized by former California Supreme Court Justice Armand Arabian in his dissenting opinion in the case of Nahrstedt v. Lakeside Village Condominium Ass’n (1994) 8 Cal. 4th 361, 393, 394.  At issue was a condominium association’s restrictive covenant which banned pets.  Justice Arabian wrote:

“The value of pets in daily life is a matter of common knowledge
 and understanding as well as extensive documentation.  People of
 all ages, but particularly the elderly and the young, enjoy their
 companionship.  Those who suffer from serious disease or injury and
 are confined to their home or bed experience a therapeutic, even
 spiritual, benefit from their presence.  Animals provide comfort at
 the death of a family member or dear friend, and for the lonely can
 offer a reason for living when life seems to have lost its meaning.  In
 recognition of these benefits, both Congress and the state Legislature
 have expressly guaranteed that elderly and handicapped persons living
 in public-assistance housing cannot be deprived of their pets.
 (12 U.S.C. §170r-1; Health & Saf. Code,§19901.) Not only have children
 and animals always been natural companions, children learn responsibility
 and discipline from pet ownership while developing an important sense
 of kindness and protection for animals.  Single adults may find certain pets can   afford a feeling of security.  Families benefit from the experience of sharing that having a pet encourages.”

     Even the Court’s majority agreed with Justice Arabian when it came to the emotional bond between humans and pets, but decided the case against the pet owner on the narrow issue of whether the restrictive covenant was legal.  The reasoning of former Justice Arabian might be the starting off point for a party who seeks joint physical custody of a family pet in a divorce.   Meantime, the idea that pets are merely property is being challenged in family courts across the nation.  Combined with numerous cases on pet custody from other States, so-called secondary legal authority that California Courts may consider, the time may be ripe for a California Appellate Court to consider pet custody. 

      To avoid a pet property or custody dispute, parties might want to consider a pet prenup, which will dictate who gets Fido or Fluffy in a divorce.  Or, if you received your pet as a gift from your spouse or a third party, make sure you get that in writing and keep the writing in a safe place. 

     A final note about sharing pets.  Animal experts tell us that if divorced parties decide to share a pet, they should make sure the pet eats the same food at each residence to avoid stomach upset and that the disciplinary rules should be the same at each residence.  Animal experts also tell us that shared custody may work for a dog, but not a cat.  Cat fans might disagree.

Share
For more information, please call Philip A. Wasserman at 661-294-8484 or email him at paw@santaclaritafamilylaw.com.

Continue Reading

21st Century Divorce

     If you are getting divorced in the 21st century, why would you rely on 20th century thinking?  Televisions shows of the last century, such as “L.A. Law,”  presented a picture of litigation that was both dramatic and appealing.  An entire generation of audiences became convinced that the legal process what just like television—your case could be neatly wrapped up in a one hour episode.  Sadly, the truth is far different, especially when parties decided to end their marriage through litigation.  The “average” litigated divorce in Los Angeles County takes about 2 years and will cost at least $50,000.00, probably more.  If you have that kind of money and want to spend it, go ahead.  After all, it is your money.  However, I submit that you are giving in to 20th century thinking.

     Divorce mediation should be your first step in the 21st century.  A trained and experienced family law mediator can make your divorce less emotionally painful and certainly much less expensive than litigation.  There is nothing wrong about saving money.  Ask yourself this question: Do you want to spend tens of thousands of dollars on attorneys and expert witnesses, such as custody evaluators and forensic accountants, or would you rather spend that money on yourself and/or your children’s futures, such as their college education?  Most middle and upper middle class families do not have the money for both, and at the end of a long and expensive litigated divorce they are not only emotionally spent, they are also financially wrecked.

     Of course, not every case is suitable for mediation.  A marriage which includes a history of domestic violence or recent domestic violence, drug and/or alcohol abuse and psychological disorders are problematic for mediation at best.  Fortunately, these types of cases are the distinct minority.  The overwhelming number of divorces involve people who simply do not get along anymore and want out.  We even have a word for this in California: “Irreconcilable Differences,” which underscores our State’s no-fault divorce law. 

      Couples in mediation may be angry and/or disappointed, but these emotions are not insurmountable obstacles to reaching a mediated agreement.  When appropriate and needed, I will suggest the parties include counseling as part of the mediation process.  The counselor will assist the mediator in acting as a third party neutral to help facility an agreement, usually in issues regarding custody and parenting.

     Like it or not, we are living in the 21st century.  Mediation should be the first choice of divorcing couples in this new century, and 20th century thinking about divorce should be left in the past, where it belongs.

Share
For more information, please call Philip A. Wasserman at 661-294-8484 or email him at paw@santaclaritafamilylaw.com.

Continue Reading

FAQs ABOUT FAMILY LAW MEDIATION

What is Family Law Mediation?

 Mediation is a process where parties work with a trained family law mediator to resolve their issues rather than litigate those issues in court.  It involves confidential meetings with a trained family law mediator who acts as a neutral to assist and empower the parties to resolve issues in dispute.

How does the process work?

 Initially, I conduct an “introduction to mediation” session with both parties where I explain the mediation process and answer any questions about the mediation process.  This “introduction” is non-substantive and only deals with the process of mediation.  Specific issues are addressed in mediation. 

What is your training and background as a family law mediator?

 I have taken more than 120 hours of both basic and advanced mediation training, which includes 40 hours of training in collaborative divorce.  In addition, as a licensed attorney, I also practice law at the courthouse.  This gives me a perspective of how family law judges deal with issues that often come up in mediation, which I share with the parties when applicable. 

Family Law Mediation is Confidential.

 Whatever is said in mediation is confidential and can never be used in litigation.  However, in litigation everything becomes part of the public record, even matters that you might not want to become public.  Most mediation is successful and an agreement is reached without the parties ever stepping inside of a courtroom.  However, in the few cases where mediation does not succeed, neither party can force the mediator to testify in the divorce case. 

Can I still have an attorney if I choose mediation?

 Yes.  You and your spouse can both have attorneys during the mediation process.  Sometimes parties feel more comfortable having an attorney they can contact before and/or after each mediation session to ask legal advice.  I allow attorneys to be present during mediation sessions, but only as long as both parties have attorneys.  I do not allow one party to have their attorney present and the other party to be without an attorney during mediation sessions.

What if I decided I don’t want to mediate anymore?

 Family law mediation is a completely voluntary process.  You cannot be forced to continue mediation if you feel it is no longer working for you.

Do we have to go to Court if we reach an agreement?

 No.  If you reach an agreement, the mediator will write up your agreement and file it with the Court.  You will never see the inside of the courthouse.     
How can I be sure the mediator won’t take sides?

 It is normal for people going through a divorce to be defensive, suspicious, and sometimes even a little paranoid.  However, in order for mediation to work, the mediator must be neutral.  This does not mean that the mediator must be passive.  It is fair for a mediator to tell a party that the other party is being reasonable.  This is because too often, parties going through a divorce don’t actually hear each other.  As one wise mediator said, “listening isn’t the same thing as obeying.”  The neutral mediator asks that both parties listen to each other and understand what is being said, before moving on to exploring resolutions to problems.
What if I don’t want to mediate, but I don’t want to litigate?  Are there other choices?

 Yes.  There is a relatively new process called Collaborative Divorce.  In Collaborative Divorce, both parties have attorneys but they have pledged not to litigate their divorce.  If either party decides to litigate, the attorneys must disqualify themselves.

Share
For more information, please call Philip A. Wasserman at 661-294-8484 or email him at paw@santaclaritafamilylaw.com.

Continue Reading

THE JOB OF THE MEDIATOR – DEFINED

“The job of the mediator is to either find the road or make the road.”

Mediators “seek to create a solution that saves time, saves money and shortens or does away with litigation.”

 The words of former NY Gov. Mario Cumo, as quoted in the Wall Street Journal on March 3, 2011.

Share
For more information, please call Philip A. Wasserman at 661-294-8484 or email him at paw@santaclaritafamilylaw.com.

Continue Reading

HOW MUCH DOES IT COST TO RAISE A CHILD?

     It is invariable that a party paying child support thinks they are paying too much and the party receiving child support thinks they are not receiving enough.  California has a statewide uniform guideline which determines the presumptively correct amount of child support.  It is a rebuttable presumption, but family law courts rarely deviate from the guideline.  The guideline begs the question: How much does it really cost to raise a child in the United States?  Obviously, the answer depends on which State the child lives in.  For example, the cost of living here in California is much higher than Iowa.  Since 1960, the United States Department Agriculture (USDA) has been providing estimates of how much it costs to raise a child from birth through the age of 17.  Those costs consist of the following categories: Housing, food, transportation, clothing, health care, child care, education and miscellaneous expenses.  Importantly, the reports only cover through age 17.  In California, child support continues until a minor child reaches 18 and graduates from high school.  You can find the USDA’s report at the following web site:

 www.cnpp.usda.gov/calculatorintro.htm

     The bottom line is what every parent already knows:  Children Are Expensive and that expense doesn’t go away because parents are getting divorced.

Share
For more information, please call Philip A. Wasserman at 661-294-8484 or email him at paw@santaclaritafamilylaw.com.

Continue Reading

HOW TO PROTECT YOURSELF ONLINE IN DIVORCE OR POST-DIVORCE MATTERS

 

You should expect that anything you post on social networking and dating sites such as Facebook, Twitter, Match.com etc., can and will be used against you in your divorce case or post-divorce case.  You don’t need to delete all your social networking profiles, provided you understand that a family law judge may read them one day.  If you are comfortable with that, keep using social media.  However, you should probably limit your social media to photos, videos and matters that are innocuous, i.e., matters that are not controversial or offensive.  Dull is good when it comes to social networking sites and divorce matters.

I recall one former client who testified in court that she never drank alcohol.  However, her social network profile had a picture of her partying with her friends and clearly having a drink.   Another client said he didn’t drink alcohol (this was an issue in the divorce), but he listed himself as a social drinker on a dating web site.

A number of attorneys now search social networking sites to get background information, i.e. “dirt” on their client’s spouse or ex-spouse.

What about e-mail?  Assume that your spouse is able to read all of your e-mail.  So, if you are starting the divorce process, get a new e-mail account. Better yet, if you can afford it, get a new computer—preferably a laptop so you can take it with you.  If you are sharing a computer with your soon to be ex-spouse, assume that you have no privacy and that he/she can and will not only read and copy all of your e-mails, but they will also know each web site you have visited.

Finally, if your spouse leaves the residence, you should still get a new computer or have your computer swept for spyware.  I know of one case where a husband left a very specific type of spyware on the home computer and he could read every e-mail that his wife wrote or received and every web site she visited, even though he no longer lived at home.

This all may sound a bit paranoid, but forewarned is forearmed.

 

Share
For more information, please call Philip A. Wasserman at 661-294-8484 or email him at paw@santaclaritafamilylaw.com.

Continue Reading

CHILDREN AND DIVORCE – WISE ADVICE

I recently attended a conference where I listened to adult children of divorce.  Here is some of their wise advice: 

“Don’t let or allow your children to lose their childhood in your divorce.”

“You don’t have to have 50/50 custody to be a 50/50 parent.  Quantity of time is less important than the relationship you build with your child.”

“Don’t abdicate responsbility for your bad behavior to your lawyers.”

Share
For more information, please call Philip A. Wasserman at 661-294-8484 or email him at paw@santaclaritafamilylaw.com.

Continue Reading

HOW NOT TO NAME A CHILD

The following is a true story. At least those who claim they saw and heard it happen swear it is true.

Once upon a time, a Los Angeles Superior Court family law judge was hearing a case where there was no name on the child’s birth certificate. Mom and dad each had attorneys and they both asked the judge to assign the child “their” requested name.  The judge happened to be retiring two days later.  He warned the parties to settle or he “would” pick a name.  There was no agreement, and after a break the judge took the bench and he entered an order naming the baby.  However, the judge did not select either of the requested names.  Instead, the judge named the baby after himself!  It was then suspected that the parties went into the hallway and settled their fight.

Share
For more information, please call Philip A. Wasserman at 661-294-8484 or email him at paw@santaclaritafamilylaw.com.

Continue Reading