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ATROS Automatic Temporary Restraining OrdersWhat is ATROS and what does it have to do with my divorce? Let’s say you have filed a petition for divorce, and your spouse is planning to clean out your savings account in order to move with the kids to another state and reside with the grandparents. Do you have any say in the matter? The short answer is, yes. A good, local attorney can explain your rights in more detail.

ATROS – Family Code Section 2040

ATROS or automatic temporary restraining orders, are included in the Summons of any California divorce. When the Petition for Dissolution of Marriage or Domestic Partnership is signed, the signatory is legally bound to adhere to the matters addressed by the ATROS, which essentially restricts both partners from a number of actions while the divorce is pending.  Included in the list of prohibited activities is removing any minor children from the state. In fact, even applying for a passport without the consent of both parties and the court is not permitted. Section 2040 has a number of additional restrictions that are worth understanding.

Parties are not allowed to transfer, encumber, conceal, or dispose of any property during this time frame without the written agreement of the other party and the court. This includes both community property and separate property, except under very specific circumstances:

  • When it is in the normal course of business, or;
  • If it is none as a necessity for living, or;
  • When the actions are undertaken in order to pay for attorney’s fees related to the divorce.

ATROS Can Restrict Certain Changes

Neither party may make changes to any insurance policies, including automobile, disability, life and health insurance policies. This restricts the ability of parties to:

  • Cash in on or borrow from policies;
  • Cancel policies;
  • Transfer policies;
  • Change beneficiaries on policies.

The parties may not create or modify a non-probate transfer in any fashion that might impact the disposition of property without the written consent of both parties and the court.

Purpose of ATROS

While any part of the ATROS may be modified if there is agreement on the issues, ATROS are in place in order to protect divorcing parties from unethical actions, like concealing or changing one’s financial status during the course of the marriage or sneaking the kids away from one spouse in order to cause distress. Some describe it as a sort of freeze on financial activity for a temporary period. It can be a crucial action, particularly if one party holds more control over assets than the other. In addition to offering a level of protection to divorcing couples. It also provides more clarity as to the value of assets, since little to no changes are allowed to occur during this period. Continue reading →

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mental health issues and divorceWith millions of Americans struggling with mental health issues, it is no surprise that these problems impact the health and viability of many a marriage. If divorce is in your future and mental health issues are a factor, having an attorney experienced in dealing with such concerns is well worth considering.

Grounds for Divorce – Mental Health Issues

In California, one of the reasons you may file for divorce or the termination of a domestic partnership is on the grounds that your partner has been declared incurably insane. Proving this requires documentation of a debilitating condition from a licensed psychiatrist. Divorcing on these grounds is rare, since California is a no-fault divorce state, meaning that by and large the majority of divorces are based on irreconcilable differences. This is more likely the course any divorce would take, even if serious mental health issues plague the relationship.

Mental Health Issues and Divorce

In the event you are unable to secure the necessary documentation to divorce on the grounds of insanity, or you simply choose not to go that route, you can still file based on irreconcilable differences, of course. Here, mental health problems may still factor into the terms of the divorce, in ways you may not have considered. With California’s no-fault divorce, community property is equally divided, regardless of who is “at fault” in the relationship. The fact that your partner has mental health issues, diagnosed or otherwise, will not mean that you get a bigger piece of the pie.

Mental Illness Considerations in a Divorce

Various mental illnesses may impact the way you proceed through the divorce process. If you are dealing with a partner who suffers with depression issues, you may have fears about self-harm, causing you to tread lightly through this difficult time.  If your partner is unstable or violent, you may fear for your own safety. Perhaps your divorce involves a partner with Narcissistic Personality Disorder. In this case, your partner may fill the coming months with lies and nasty smears to hurt you. Whatever your situation, dealing with a spouse who is plagued with a mental illness will require the careful diplomacy and finesse of an experienced attorney.  

Document Concerns

In the lead-up to your divorce, it is important that you carefully document any interactions that give rise to concerns around safety. It may be necessary to obtain a protective order in some cases. In other situations, a mentally unstable spouse may be unable to fulfill parenting obligations, impacting child custody and visitation arrangements.   Continue reading →

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strained marriageCan a strained marriage and the stress of a government shutdown lead to divorce? There is no doubt about it: Stress has an impact on relationships, and it is generally not a positive impact. So, if you are one of the over 800,000 people whose family has been directly impacted by the government shutdown, or one of the hundreds of thousands affected by the sudden stagnant cash flow in your community due to the shutdown, will your marriage be affected?  It would be almost miraculous if the stress associated with the absentee paycheck did not touch your relationship.  If the stress escalates to the point that divorce is on the table, discussing your situation with a local divorce attorney is a good idea.

Strained Marriage – The Anxiety is Real

Studies indicate that marital satisfaction and longevity are at risk during high stress periods.  The government shutdown certainly qualifies as such for many, many couples with an already strained marriage:

  • Living without a paycheck, particularly for those who are still required to show up, affects families’ ability to make required payments, secure necessary child care, or make essential purchases;
  • Credit ratings are negatively impacted as creditors are dissatisfied with late or missing loan payments;
  • Individuals in the midst of home purchases are suddenly unable to qualify for loans;
  • Formerly self-sufficient families are having to rely on food pantries and soup kitchens for meals;
  • Breadwinners feel helpless as they are unable to earn a living while caught up in circumstances that are beyond their control and understanding;
  • The unpredictability of the situation only serves to amplify the unrest;
  • Employees who used to take pride in their work are left experiencing feelings of humiliation and desperation.

Relationships Within a Strained Marriage

It is no surprise that when individuals are struggling with anxiety and depression that stems from stress, their physical health, mental stability, and close personal relationships suffer, as well. Research abounds connecting stress with troubles in a strained marriage:

  • The original issues of stress and depression sometimes exacerbate other problems that may have been lurking beneath the surface of the marriage, causing them to become more visible and prominent;
  • Stress can translate into frustration, which may lead to impatience, verbal sniping, arguments, and even physical encounters;
  • As communication becomes strained, marital partners may become more defensive, impacting a couple’s ability to experience trust and intimacy;
  • Eventually, positive interactions may diminish, blaming and hostility may rise, and thoughts of parting ways may bubble up.

Strained Marriage – Positive Interventions for Stress

However temporary the stress may be, it is certainly real for those under its grip.  Suggestions to deal with the strain include:

  • Physical Interventions: Exercise, yoga, or breathing exercises;
  • Mental Interventions: Discussing options with supportive family members and friends, engaging in distractions like puzzles or books;
  • Emotional Interventions: Watching funny movies or spending time with friends and having the opportunity to laugh as you temporarily escape the stress;
  • Spiritual interventions: Praying, enjoying nature, and meditation;

Continue reading →

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high asset divorceIs a high asset divorce any easier? When Jeff and MacKenzie Bezos announced their separation and pending divorce, speculation spanned all kinds of topics, from the reasons behind the split after a quarter century of marriage to questions about how the couple would divide their many assets. After all, Amazon’s Bezos is purportedly worth nearly $140 billion. He is notably the most wealthy man in the world, and the 28th largest landowner in the United States, with properties in Beverly Hills, New York City, Washington D.C., Texas, and Washington State. As luck would have it, every acquisition that has occurred over the course of the couple’s marriage is joint property. That means it will be a high asset divorce  with assets having to be split equitably between the spouses.

High Asset Divorce – Financial Decisions

As one observer noted, people who are rich are generally pretty savvy, and they know they are going to have to part with a chunk of change when they get a divorce. They also realize that they can pay out the big bucks to attorneys while they go through a long and bitter battle, or they can settle things more amicably by simply coming to an agreement as to who gets what, keeping the money in the family, so to speak. Sure, there is still going to be emotional strain—even trauma. But in a high asset divorce when there is a lot of money to spread around, it can make parting a bit quicker and easier. The theory goes like this: When very large amounts of money are involved, there is simply more gauze for the wounds.

Other High Asset Divorces

When Google founder Sergey Brin split with wife Anne Wojcicki, they kept things pleasant, remaining friendly in public, and choosing to raise their kids jointly. They had $50 billion in cash and assets to divvy up in their divorce.

Su Ann Hamm settled for roughly 5% of her husband’s net worth, a paltry $975 million. Husband Harold kept the lion’s share of the couple’s assets, and continued merrily on with his career as an oil and gas executive.

After five years of marriage, Frank and Jamie McCourt divorced. Things proceeded despite bad feelings, and she walked away with a check for $130 million.

Complications Always Possible with a High Asset Divorce

Naturally, money does not solve every problem. There can still be pretty rough emotions around child custody and/or visitation issues, and there may be particular possessions that are held dear by both parties. In some cases, there are significant challenges to a high asset divorce due to ownership of property across multiple jurisdictions. The divorcing couple’s attorneys need to be pretty nimble and willing to investigate particular rules, procedures, and timelines in each. Continue reading →

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Can the government shutdown trigger a child support payment modification? If you are a parent who counts on child support payments to make ends meet, and your former spouse is a furloughed federal employee, can you still anticipate getting child support payment modificationthose essential payments?  On the other hand, if you are the furloughed employee, how can you be expected to send out a check when you are not receiving one yourself? Whichever side of the issue you are on, it is entirely possible that you will feel the impact of the government shutdown. If you are not sure what to expect, a local Santa Rosa family law attorney can help.

Child Support Payment Modification Options

Certainly, both parents in these circumstances have a valid point. Raising a child is expensive, and a parent’s obligation to pay child support is a significant one. When income is significantly altered, as it is during a furlough, there are options. An order requesting a child support payment modification could be one of them.

In order to make such a child support payment modification change, you must fill out a form indicating that there has been a change in circumstances since the previous child support order was made. Typically, such requests for a reduced child support payment are based on one or more of several factors, including:

  • A change in your income;
  • The loss of your job;
  • Your incarceration;
  • You have had another child in another relationship for whom support will be necessary;
  • There has been a significant change in the amount of time you spend with the child;
  • The needs of the child have undergone a dramatic change due to health, education, or other issues.

In the case of a furlough, your change in income is likely temporary. The court would have to consider this as it weighs any changes to the child support order.

Stipulating a Child Support Payment Modification

In some situations, both parents may agree to changes in the child support agreement, and may stipulate to adjustments for the period of the furlough.  In this case, they can simply sign off on the settlement, get the judge’s signature, and it becomes a new order. Parents may come to their own agreement and proceed without the approval of the courts, but one parent could always go after another for back payments unless the judge’s signature sanctions the changes.

Filing a Motion for Child Support Modification

In the event the parents can not agree to changes in the support payments, the parent seeking a change must file a motion requesting a modification in payment requirements. Payment expectations will not change unless and until a judge signs off on any modification requests. (The exception to this is when the payer is imprisoned for at least 90 days and is unable to make payments, at which point payments are suspended automatically). Continue reading →

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who moves out in a divorceWho moves out? Let us say you have already had that difficult conversation, and your spouse knows that you want to get a divorce. Now what? Do you keep living together in the family home while the legal process moves forward, or does one party pack up and move out? Ultimately, of course, separate living arrangements will have to be made, right? When and how that happens is largely up to you and your spouse. A knowledgeable local divorce attorney can help you figure out the best way to proceed.

Who Moves Out – Making an Amicable Agreement

The best-case scenario, of course, involves a grown up discussion about what works best for the family, particularly if children are involved.  This will save you money, emotional turmoil, and time. Obviously, this can get more complicated than you might imagine.  Splitting one household into two can be a tricky endeavor. In addition to the actual physical location for the spouse who is leaving, and the financial implications of such a move, the couple will have to think about all of the items in the family home. Is the spouse who is leaving expected to purchase all new furniture, kitchen appliances, and towels? Or can you come to an agreement as to what moves out along with the spouse who is leaving? These discussions will likely be stressful, emotional, and fraught with wavering stances on a variety of specifics.  That is why it is always a good idea to put any agreements in writing.

Who Moves Out – A Court Order Forcing One Spouse Out

Sometimes, one spouse is legally entitled to the home. When the court finds that one party has the legal right to remain on the premises, the other may be ordered to leave. This might be the case if the home belonged to one spouse prior to the marriage, for example.

In particularly contentious situations, it is sometimes necessary to get the courts involved in removing one party from the family home. According to Family Code 6321, there are certain circumstances in which this might have to happen, involving an emergency wherein one party is at risk of immediate impending harm:

  • There is a history of domestic violence and the court finds that it is necessary to exclude one partner from the home in order to protect the other partner and minor children from future violence. In such a situation, the determination of who stays in the home may be may on a temporary basis, and may not consider which partner is legally entitled to the home;
  • The individual being excluded from the home has made threats to physically harm the spouse or custodial children in the home;
  • Emotional or physical harm would likely be the result if the excluded party were to have access to the home;
  • Witness statements substantiate that specific incidents of abuse have occurred , and a restraining order is necessary to protect residents of the home.

Continue reading →

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sonoma county divorceIf you are considering a Sonoma County divorce, chances are it is your first rodeo and you may not know where to begin. Experts recommend seeking the advice of a knowledgeable local attorney.  From there, many of the questions you have specific to your circumstances can be addressed.  For general information, here are some things you need to know.

Residency Requirements for a Sonoma County Divorce

There are both state and county requirements for residency. One or both parties in the divorce must meet both requirements:

  • Living in the state of California for at least six months;
  • Living in Sonoma County where the claim is filed for at least three months.

Grounds for a Sonoma County Divorce

Your marriage may be dissolved based on the following grounds:

  • Irreconcilable differences, wherein a breakdown of the marriage has occurred;
  • Incurable insanity, as determined by qualified medical opinion.

Sonoma County Divorce – Property Division

California is a Community Property state, meaning that the parties will share marital debts and property—that which was acquired during the course of the marriage—equally. The court will consider whether debts were necessary for the support of the family or if they benefited one partner in particular. For instance, a car loan might be assigned to the spouse who retains the car.

Sonoma County Divorce – Spousal Support

The court will consider a number of factors in determining the amount and length of spousal support, if any, to be paid to the lesser earning spouse. Some key considerations include:

  • Each party’s capacity to earn a living;
  • The degree to which one partner supported the other in obtaining an education and/or career;
  • The ability of the higher earning spouse to make support payments;
  • The length of the marriage;
  • The standard of living enjoyed during the marriage;
  • The ability to balance childcare with work outside the home for the lesser earning partner;
  • The health and ages of the individuals;
  • Any history of domestic violence;
  • Tax implications of support;
  • The eventual ability of the lesser earning spouse to become self-sufficient.

Child Custody and Support

Custody arrangements will be determined based on the best interests of the child. A number of factors will be weighed, including:

  • Any history of abuse by either parent;
  • Relationships with step-siblings, half-siblings, and/or other caretakers;
  • Relationships custody-seeking parents have with other adults who might play a significant role in the child’s life;
  • The nature of the relationships the child has with both parents;
  • Alcohol and/or substance abuse by either parent.

A minimum amount of child support is required based on the county of residence, and that amount may be increased based on a number of factors, ranging from income to parental stipulations. Child support may be ordered for either parent, in addition to medical insurance. Continue reading →

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cheating spouseDo you have a cheating spouse? Statistically speaking, it is not impossible. And the times, they are a-changin’. Adultery seems to be more socially acceptable today than in previous generations. The question for you is, what are you going to do now? If divorce is on the horizon, the time to seek legal assistance from an experienced divorce attorney is now.

Cheating Spouse – Statistics

Infidelity impacts more marriages than you might think:

  • Studies show that the label of cheating spouse could be applied to 22% of married men and 14% of married women at least once during their time together;
  • Nearly 40% of  cheating spouses say their flings occurred on business trips;
  • 36% of cheating spouses report to having affairs with co-workers;
  • Almost half of men say they knew what their cheating spouse was doing, while the same is true for just about one-third of women;
  • Women who suspect their husband’s are cheating are correct 85% of the time, while men are correct about half of the time.

What Does a Cheating Spouse Mean for Your Marriage?

In this country, nearly 20% of divorces that occur cite infidelity as the primary reason for the split. If your marriage is doomed to be a statistic, you should know that California is a community property and a no-fault state. This means that any marital property must be equally divided. Except for cases of incurable insanity, the only other grounds for divorce are irreconcilable differences. Therefore, the court will not consider any evidence you may have of adultery, no matter how salacious or despicable. In other words, just because your spouse is a cur, you will not be given extra consideration in the financial or property settlement. There are, however, a few ways in which you may benefit.

What the Judge may Consider

If your spouse’s actions impacted the marital estate, the judge may consider those impacts.  For instance, if funds belonging to both of you were used to buy gifts, housing, or other items for a lover, it is possible that those funds may be reimbursed to the estate prior to splitting it in half.

Also, if the cheating spouse moves in with this partner during, or shortly after the divorce, it could impact the need for that spouse to receive spousal support, since those payments are determined based on financial need.

Cheating Spouse and Child Custody

While adultery can have a devastating impact on families, it will not be a factor in determining child custody or visitation except in rare circumstances when neglect or abuse of a child can be linked to the affair itself. Continue reading →

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holiday visitation scheduleCreating a holiday visitation schedule. Perhaps one of the most difficult aspects of any divorce revolves around custody and visitation issues, and those become exponentially more poignant during the holidays. Creating a holiday visitation schedule for visitation that extends for a lengthy period of time, yet maintains a certain level of flexibility, can help everyone enjoy the holidays with a minimum of stress.

Holiday Visitation Schedule – Days to be Considered

In addition to the obvious holidays like Christmas, Thanksgiving, Halloween, Independence Day and Easter, parents should keep in mind the numerous school breaks, such as President’s Day, Spring Break, and Memorial Day. Also important are Father’s and Mother’s Day, and each parent’s and step-parent’s birthdays. Clearly, the children’s birthdays should also be considered.

Typical Holiday Visitation Schedule Scenarios

California courts offer documents to help families take a long-term look at holidays and school vacations as they attempt to share the kids. One form lists common holidays that couples should consider as they determine their holiday visitation schedule, and allows parents to consider schedules for one particular year, or even for alternate years. Depending on location, work schedules, and circumstances, couples may contemplate a number of ways to deal with holiday visitation schedules:

  • Some couples divide important days by the hour. This way each parent gets to celebrate milestones with the children: One parent may enjoy breakfast and presents in the morning on Christmas Day, while the other has a family dinner that evening.
  • For parents who live significant distances away from one another, it sometimes makes more sense to split the holidays. One may get the kids for Thanksgiving, while the other has a significant chunk of time over the Christmas holidays.  
  • Many couples alternate where the children spend special days by odd and even years.  2018 may be Dad’s year for Christmas, but Mom gets the kids for the holiday in 2019.

Of course, most couples find that these and other scheduling strategies have to be adjusted and combined over time. That is because circumstances may change for one or both parties, the holiday schedule may interfere with regular visitation schedules, or children may become sick, interrupting a scheduled visit.

When the Holiday Visitation Schedule Conflicts with the Regular Schedule

It can be frustrating to be the parent whose visitation time is impacted negatively by a holiday visitation schedule, but parents need to understand that the holiday visitation schedule trumps any regular schedules, period. If kids spend time with parents on alternate weekends, in some cases, it could lead to more time than usual with a particular parent. For example, let us say December’s weekend schedule is Mom, Dad, Mom, Dad. In a particular year, Dad’s Christmas visitation occurs during Mom’s weekend three. So Mom loses that third weekend with the kids. And yes, Dad gets to keep the kids on his normal weekends, too, so he gets them three weeks in a row. Continue reading →

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custody and same-sex divorceIf you are in a same-sex marriage and considering a divorce, you are entitled to a divorce with essentially the same procedural map as heterosexual couples. There are, however, potential complications related to child custody issues that may require additional attention. Seeking the help of a local divorce attorney could make the path ahead easier.

Same-Sex Couples and No-Fault Divorce

In California, getting a no-fault divorce is the norm. That means that neither party will be blamed or shamed, and assets will be equally divided. There is no reason to expect debt and asset issues to be any more or less complicated than they are for any other couple.

Same-Sex Couple Child Custody and Visitation

There could be, however, issues with child custody if only one partner has a biological or a legal connection to the children. Legal rights are determined based on several potential questions:

  • Was the child born into a civil union, domestic partnership, or marriage in California or in a state where parental rights are given to a non-biological parent?
  • Was the child legally adopted by the non-biological parent?
  • Did the parents jointly adopt the child?
  • Was the child conceived prior to marriage, but with the full intent of sharing child-rearing responsibilities?
  • Are both partners’ names on the birth certificate?
  • Can de-facto parentage be established?
  • Is the biological parent unfit, opening the option for a third-party custody petition (family code 3041)?

In some situations, a biological parent who is not involved in raising a child may have refused to waive parental rights, leaving no room for a stepparent adoption.  In other cases, children have already been adopted by one partner prior to the marriage. The new partner in the marriage is a step-parent. As a stepparent, one may have engaged in all the normal parenting activities and responsibilities that the children needed. Nevertheless, a step-parent’s legal standing with regard to custody is virtually non-existent under normal circumstances.  

Essentially, establishing parentage is the best way to be assured of the rights and responsibilities associated with being a parent, including gaining physical and/or legal custody, obtaining visitation rights, receiving or paying child support, and/or sharing childcare and medical costs.

On the other hand, even if parentage is not established, the court does have discretion to provide visitation under California Family Code Section 3100. While a step-parent may not have a legal claim to custody, reasonable visitation is clearly possible to anyone who has a vested interest in the welfare of the children. Continue reading →

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