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baby boomer divorce ratesHas there been an increase in Baby Boomer divorce rates? Although time and practice make many endeavors simpler, that is certainly not the case in many marriages. Likewise, those who experience divorce in later years may find that it is one of the things that seems to get more complicated, not less so, after years of marriage. With the recent decline in divorces in the past decade, it appears divorce is a less likely option for many; this is simply not true when it comes to older Americans, among whom divorce rates have nearly doubled in recent years. Statistics show that more than one in four divorces in this country, in fact, involve individuals aged 50+. If you are one of them, a local divorce attorney can help you sort through the difficulties ahead.

Reasons For Baby Boomer Divorce Rates

According to this Market Watch article, Baby Boomer divorce rates are skyrocketing. Many older Americans find that marriage simply no longer suits them, and they look for a fresh start through divorce. Grey divorce, as it is often called, occurs for a variety of reasons:

  • The old classic: We have grown apart. Empty nesters often discover they no longer share common activities, goals, and dreams, making life together unsustainable.
  • Financial woes: After years of irrational spending decisions and poor investing, one partner decides to call it quits, frustrated with the never-ending bills and the stress of debt.
  • Aging at different rates: When one partner is no longer physically or mentally active, it can put a real strain on the relationship. When one partner chooses to let himself or herself deteriorate, it may become increasingly unpleasurable for the other to stick around.
  • Sex: Different levels of sexual interest may lead one partner to look elsewhere for physical satisfaction.

Baby Boomers Have Decisions to be Made

When it comes to the point that grey divorce is the final option, it is important to keep a clear head while making decisions related to how the divorce unfolds. Grey divorce may involve several pertinent issues that should not be overlooked:

  • Division of Property: After years together, it may be difficult to prove that particular items were the exclusive property of one partner prior to the marriage.  Since California’s community property laws exclude personal property that one person held prior to the marriage, this could prove to be an important issue.
  • Compensation:  When considering issues related to spousal support, earnings are a key factor.  It is crucial to consider all components of compensation, from the actual salary drawn, to stock options, travel incentives, bonuses, and other perks.
  • Expected expenses for adult children: Issues  such as tuition, marriage, and other significant responsibilities should be addressed in the divorce agreement.

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stepparent rightsThough I never adopted the children, now that we are divorcing do I have any stepparent rights? Let us say you have spent a fair amount of time helping to raise the children that your spouse brought to the marriage, but you, for whatever reason, never took steps to adopt those children. Although you have deep attachments to the kids, you and your spouse are ready to call it quits. The biggest thing standing in the way is the kids: Will you ever be able to see them after a divorce if you have no legal claim to them? This, and other questions you may have, can be answered by a knowledgeable, local divorce attorney.

Stepparent Rights – California Code on Visitation

The laws (Family Code 3011) regarding children of divorce are quite clear: The court must make decisions based on the best interests of the kids. That means it is totally possible for a stepparent to have reasonable visitation granted. The key word is possible.

What Could Get in the Way of Court-Ordered Visitation for a Stepparent?

To be clear, determining what is best for a child is no small matter. Your past and present behavior will have a significant impact on a judge’s decision. Some questions that might be considered include:

  • Do you have a history of domestic violence?
  • Do you now, or have you ever had a problem with drugs or alcohol?
  • What was the nature of your role with the children in the past, and how what would you like to see happen in the future?
  • If the children are old enough, what are their wishes with regard to you?
  • Does the children’s biological parent support the idea of visitation rights for the stepparent?
  • Do you have a volatile relationship with your spouse at this time?
  • Are there other issues that might get the attention of the judge in a negative way?
  • Do you have a good reputation in the community, and have people willing to testify to your character, attachment to the children, and fitness as a stepparent?

Benefits to Visitation

In many circumstances, stepparent visitation can be extremely beneficial for children:

  • It can help lessen the strain of a major life change for youngsters;
  • It can validate that children are still loved and are not responsible for the breakup;
  • It can be a logistical help in terms of child pick-ups and drop-offs for school, activities, appointments, etc.;
  • It is a way to demonstrate that when adults disagree they can nonetheless behave in a civil manner.

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divorce parent passport problems childrenLet’s say you are a divorced parent hoping to take a trip out of the country with the kids, but your former spouse is not supportive of the idea. Are you allowed to leave the country anyway? The short answer is maybe. An experienced local family law and divorce attorney can address these, and other related issues in your specific case.

Divorced Parent Traveling With Kids

If you have shared physical and/or legal custody of the child/children, then each divorced parent has a legal right to participate in decisions regarding travel. A divorced parent who has sole custody has more latitude to make such decisions, but is required to provide documentation to prove their legal status. According to the State Department’s Public Law 116-113, the consent of both divorced parents is required before any child under the age of 16 may be issued a passport. Certain documents are required in the event both parents cannot be present during the application process. Depending on your circumstances, one or more of the following may be necessary during the application process:

  • The court order or divorce decree that grants the divorced parent sole custody of the child/children;
  • A court order that explicitly defines the divorced parent’s right to apply for a passport or to travel internationally;
  • A signed, dated, and notarized Form DS-3053 Statement of Consent from your former spouse along with a photocopy of their ID.

Flagging Kid’s Passport Applications

A divorced parent of minor children can also request to have their child/children’s names entered into the Children’s Passport Issuance Alert Program.  This is a system that automatically notifies the parent in the event someone else, such as a former spouse, attempts to apply for a passport.

If Parents Were Never Married

In the event a child’s parents have never married, both still have the right to block a passport application if both of their names are on the child’s birth certificate. The exception is in a case in which one has been granted sole legal custody in a family court.

If Children Already Have Passports

What if your children had passports prior to the divorce? Can you or your spouse take the child/children out of the country without the other’s consent? If your divorce does not specifically address travel outside the United States, it is possible for such travel to occur.  However, in the event that there is a serious concern about one parent absconding with the children with no plans to return, you should definitely consider getting a court order preventing international travel. The court can also require one parent to surrender the child/children’s passports to the other, or to keep the passports in the possession of the court. Continue reading →

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contested divorce processWhile the contested divorce process is obviously familiar to your divorce attorney, it is likely something new to you. Getting a general outline of what is in store can help you to be ready for the weeks and months ahead, both practically and emotionally. Breaking the contested divorce process into easily understandable stages can make the whole thing easier to wrap your head around. A local divorce attorney can help to make the entire process easier.

Contested Divorce – Initial Steps

  • The Complaint and Summons: It all starts with one spouse filing a complaint describing the grounds for divorce and the basic details related to the parties. The court will then issue a summons with the attached complaint to the responding spouse, requiring a response. At this point, it will become clear whether or not this is a contested divorce. A contested divorce will clearly require more time and deliberation.
  • Discovery: The facts outlined in the original complaint and any counterclaims will now be verified.Documents may be requested related for finances and other matters. Assets will be appraised, child custody issues will be examined, and interrogatories will be given to each spouse to answer.  There is a potential that both spouses will be interviewed under oath with a court reporter present to record answers.
  • Motions and Hearings: In the best-case scenario, spouses will be able to resolve the majority of issues with the help of their attorneys. In the event resolution does not occur, a motion will be filed asking for the judge to determine the outcome. Hearings will be held to determine temporary issues while the divorce proceeds. Some temporary issues to be weighed might include spousal support, child custody and support, and possession of the family home. Each of these issues will hold until the divorce is finalized, when a more permanent solution is determined.
  • Pre-trial Conferences/Court-Ordered Mediation: At this point, an attorney will file notice requesting a trial date.  In some cases, a judge may order parties to make one more attempt to determine a mutually agreeable outcome on all matters through conferencing or mediation. While it may be difficult to come to a compromise, this is the last opportunity for the parties to work together to determine the outcomes of their divorce. This is often a time to get a sense of how the judge is looking at the specific issues of this divorce.
  • Trial: A divorce is a civil proceeding, and the actual trial will unfold in several distinct steps:

Contested Divorce Process – Trial

  1. Opening statements from each side;
  2. Evidence to support the claims of the plaintiff, potentially including documents, witnesses, and exhibits, each to be challenged by the defendant’s side;
  3. Presentation of evidence to support the defendant, including cross-examination by the prosecution;
  4. Rebuttal by the plaintiff;
  5. Closing arguments by both sides;
  6. Judge’s ruling on any issues under dispute, along with the judgment for dissolution of the marriage.

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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;

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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.

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