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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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getting through the holidaysWhile everyone else seems to be giddy for the holidays, you may be feeling a bit glum if this is your first holiday season by yourself after a divorce. Trying to create a festive home may seem impossible, but it is important to be gentle with yourself, and find ways to make the season special. Experts offer these suggestions to consider:

Focus on Giving During the Holidays

There really are people less fortunate than you out there, and giving your time and energy to help someone else can be surprisingly empowering.  You will find that your own troubles tend to melt away when doing good deeds. So, consider volunteering at a soup kitchen, supporting a Sub-for-Santa, or helping a family that has suffered serious losses in the recent California fires.  

Create New Traditions for the Holidays

If the thought of missing your kids or your family traditions has got you down, consider creating some new traditions. Find a new restaurant or bar to enjoy, a new town to explore, or new friends to hang out with.

Decorate

Do not bypass on the holiday cheer by forgoing a tree and decorations. Spruce up your place with fun new holiday embellishments. If you are tight on cash, string some popcorn for your tree. You deserve some holiday spirit, so take the initiative to create a warm holiday home for yourself.

Cooperate with Your Ex

Avoid punishing your ex, and make things easy for both of you by being flexible and pleasant when it comes to making arrangements for kids to spend time with each parent. It is the best holiday gift you can give yourself and the whole family.

Find Solace When and Where You Need it

When you find yourself feeling lonely, reach out to get the support you need.  Whether it is family, friends, or your faith, do not be too proud to admit you need a little help.

Do Not Sit Around Being Sad

Get busy! Take walks, go to the gym, catch the latest flick. Bake something, make something, or otherwise push your creative side to do something new.  Whatever you do, avoid burrowing under your covers and counting the minutes until the holidays are behind you.

Do Not Put Off Being Happy

Sure, things are different this year. But you are still you, totally worthy of satisfaction and joy. Believe it, and do not settle for the doldrums. Make choices that benefit you, and pursue a fulfilling life no matter what. Continue reading →

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complex divorceA complex divorce involving a large and complicated portfolio, may require an attorney who knows precisely what documents are relevant as you proceed through divorce court. More often than not, having access to both personal and corporate records has the potential to provide an accurate picture of the financial state of things, which is essential when it comes to an equitable financial settlement as your marriage ends. Regardless of how much you may have trusted your spouse, you have to allow for the possibility that efforts will be made to avoid sharing assets and funds. Going forward with as much information as possible can only benefit you.

Records Worth Investigating in a Complex Divorce

If one spouse owns a business that is subject to community property laws in California, things can get complicated pretty quickly. Depending on your circumstances, a variety of records could be helpful as financial negotiations proceed, including the following:

  • Financial Statements: Obviously, personal and corporate bank statements for several years will reveal both personal and corporate health. Patterns will be examined, and any recent changes will be analyzed.
  • Tax Documents: Tax returns are particularly insightful because they tend to reveal an accurate picture of the financial state of affairs. Falsification of these documents could lead to perjury charges, fines, and prison time, which compels typical filers to be fairly straightforward. Comparing tax returns to other financial statements that are less aggressively examined by the federal government will either support a reported financial scenario, or will reveal inconsistencies.
  • Work papers from Company Accountants: These papers may inform investigators as to the foundational thinking behind the use of particular figures or transactions.  
  • Ledgers: These will be examined with an eye toward understanding the overall financial status of the business. They will reveal specific details regarding disbursements, expenditures, and expensing.
  • Bill Receipts: It is essential to know whether particular disbursements were for business or personal matters.
  • Insurance Policies: Business interruption insurance policies that seem extravagant in the face of claims of a poorly performing business may indicate underreporting of profits. In an unrelated situation, personal items that you have no clue exist may be being insured.
  • Company Brochures: If the company claims to be # 1 on the West Coast, but your spouse pleads failing profits, you can use advertisements and brochures to challenge the inconsistency.
  • Lease Agreements: If your spouse claims business is doing poorly, it could be useful to look at whether downsizing is in the works.  
  • Calendars: Calendars may reveal how busy the business is, the amount of vacation time being taken, and other factors worth knowing.

Continue reading →

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fraudulent claims of abuseNothing is worse than divorce. Actually, the only thing worse than a divorce is a nasty divorce, or a divorce in which one partner makes vicious attacks and cruel claims of abuse that never occurred. Either party may be guilty of this tactic, causing misery for the innocent spouse, and often for the children, as well. If your spouse is using false accusations against you to secure some advantage in divorce proceedings, it is critical for you to obtain aggressive, ethical legal representation right away.

Abuse and Protective Orders

An individual who claims that abuse, stalking, threats, or harassment is occurring may file an order with the court to keep the abuser away. This can come in three varieties:

  • Personal conduct orders simply order specific behaviors, such as battering, destroying property, and harassing, to stop.
  • Stay-away orders are designed to make the person under the order keep a specific distance away from the alleged victim. That means the restrained individual must stay away from the home, work, school, etc. of the person who filed the order.
  • Residence exclusions require the individual named in the order to move out of the home that is shared with the person who filed the order, taking only personal belongings.

Consequences to Persons Named in these Orders

The impact of this type of order on an individual is immeasurable. In addition to marring one’s reputation irreparably, it can result in losing access to one’s home and children. It will limit the ability to go particular places, to own or keep a firearm, and to maintain immigration status.

Fighting Back Against Untrue Abuse Charges

With an experienced attorney, it is possible to battle false charges and mitigate the consequences.  This will encompass several key strategies:

  • Preparing evidence to demonstrate the reality of the situation: There are many ways to show an innocent person in a positive light. Perhaps there are emails, texts, or other communications that demonstrate your true nature.
  • Witnesses to your relationship with your spouse may be able to verify your claims of innocence. They can testify as to their knowledge of events that may have been misrepresented, or that never occurred at all.
  • Alibi witnesses may be able to show that you were nowhere near an alleged incident.
  • Circumstances can be examined to determine what might have motivated an angry spouse to make false accusations. Was it out of spite for an affair? Was it to gain custody of the children?
  • Presenting the real you in a court of law can speak volumes. Fabricated allegations can be unnerving, but your confidence and honesty will be a useful tool in establishing your credibility.

Continue reading →

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custody of frozen embryosArizona is breaking new legal ground when it comes to who gets custody of frozen embryos in a divorce. A new law, which took effect July 2018, allows legal custody of the embryos to go to whichever partner wishes to use them to have a child. The other partner has no legal rights, responsibilities or obligations to any future child, including no duty of child support.

The controversial law has changed the landscape for many divorcing couples in Arizona. In California, what are the challenges facing couples with similar issues related to custody of frozen embryos?  An experienced local attorney can investigate the intricacies of California law with you.

Custody of Frozen Embryos – Case in Point

The first California case dealing with this issue occurred in 2015. It involved Mimi Lee, who was 46 years old and had lived through cancer treatments. She believed she would not be able to have biological children in the future if not for the frozen embryos. Lee’s ex-husband, Stephen Findley, objected to the use of the embryos, and he had a legal document to support his stance:  the couple had signed an agreement that the embryos would be destroyed in the event of a divorce.

The judge was required to wade through emotional testimony, accusations, and unrest, and ultimately ruled in favor of Findley. The embryos were to be destroyed. Her ruling was in line with what judges across the country have determined: One individual’s desire not to procreate outweighs another’s wish to have a child. With no federal regulations to provide guidance, state judges have had to base their decisions on the cases before them.

What Does Arizona’s Law Mean for Custody of Frozen Embryos for Californians?

Because the issues related to custody of frozen embryos are relatively new, precedents are being created with each new law and each new case. Maryland, Pennsylvania, and Illinois have all determined that women who wish to use their frozen embryos as a last chance to bear biological children should have a right to do so.  But New York, Tennessee, and New Jersey, among others, have found in favor of the party who wished to have the embryos destroyed. California, like other states, requires fertility clinics to provide consent forms designating the disposition of frozen embryos in the event of a divorce. However, Arizona’s new law puts the power of these consent forms into question. Will other states, like California, follow suite with similar legislation? That remains to be seen. As it stands now, future cases involving the custody of frozen embryos in California could go either way. Courts could choose to enforce previously signed consent forms, or could opt to provide one party the opportunity to procreate. Continue reading →

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spousal support changesHow can spousal support changes to the new 2019 tax law affect you? For anyone looking to get divorced in the near future, you may want to get things settled in the very near future—before the end of the year, in fact. That is because changes in federal tax laws are going to have a significant impact on anyone who receives or pays spousal support, potentially making negotiations for these payments significantly trickier.

Factors Considered When Determining Alimony

A number of issues must be weighed as the court makes judgments regarding spousal support payments. Naturally, disparate incomes are a central factor. Just a few of the many other items considered include:

  • The length of the marriage;
  • The ability of the lower-earning spouse to obtain employment without having an adverse impact on minor children;
  • The amount of support one partner gave another in the pursuit of education and/or career goals;
  • The health of the parties involved;
  • The tax consequences of any settlement agreement.

How Important Are the Upcoming Spousal Support Changes?

The implications of the new tax laws will be felt by all individuals paying or receiving alimony payments, and is expected to be be quite significant for couples who jointly earn between $60,000 and $500,000. Here is why:

For the past 75 years, alimony payments were deductible for payers, and recipients were expected to claim the money as income. Since the higher-earning spouse received a deduction, Uncle Sam collected taxes based on the lower tax bracket of the recipient. The couple jointly kept a bigger chunk of dollars earned with this arrangement. Starting in January 2019, all of that changes, and the payer will be unable to deduct alimony payments, making that money taxable at the earner’s higher tax bracket rates.  

Spousal Support ChangesThe Numbers Tell the Story

So, let us say in 2018, Spouse A, who is in a 33% tax bracket, is paying $30,000 in alimony. The deduction saves him or her $9,900.

Spouse B, who receives that $30,000, is in only a 15% tax bracket. The tax burden on alimony income is $4,500. The couple has jointly saved $5,400 that would otherwise be going to the federal government. In 2019, Spouse A will be paying the taxes on that $30,000, meaning there will be $5,400 less in the joint coffers to divide between the divorcing spouses.

Do not be fooled into thinking that Spouse B will be making a killing by keeping that extra $4,500.  Experts predict that alimony negotiations will take all of this into account, meaning each spouse will take a hit. Presumably, a 2018 alimony requirement of $30,000 will be significantly less in 2019 because the government’s chunk of the money will have to be factored in. Continue reading →

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pet custodyPet custody in a divorce was not unlike the all too familiar division of property, splitting up the furniture and deciding who gets the car. For some couples, things got significantly more challenging when it came to deciding what happens to the family pets. If you are besieged with this issue, a local divorce attorney can help.

Pet Custody Previous to This Law

In the past, pets have been considered property, to be given to one party in exchange for something of equivalent value. That has been markedly dissatisfying to many divorcing couples as well as to attorneys and judges who have witnessed the emotional strings that are attached to many animals who are truly considered part of the family. One attorney noted that clients have spent thousands of dollars trying to secure a beloved pet, with one woman spending more than $30,000 in a legal battle for custody. The fact of the matter is, judges have struggled with making the right decision in these circumstances, as well.

Methods to Determine Pet Custody

Some of the strategies used in court illuminate just how difficult this decision can be. Some of the ways judges have approached the decision include:

  • Putting the pet in between the divorcing spouses to see which person the pet prefers;
  • If there are two pets, splitting them up and giving one to each partner;
  • Assigning custody arrangements by alternating weeks or months;
  • One person is assigned custody, and the other is given visitation privileges;

Pet Custody and Impacts on the Pet

Divorce can be very stressful, and not just for the humans involved. Animal advocates point out that significant changes can take a toll on any pet’s well-being, leading to depression and other signs of anxiety, including:

  • Excessive sleeping;
  • Declining appetite;
  • No interest in the usual daily activities, like taking walks;
  • Unusual whimpers or cries;
  • Having accidents indoors;
  • Unusual grooming, licking, or self-biting.

AB 2274

Assembly Bill 2274, recently signed into law, takes more factors into account than previous law, which viewed the pet based on its financial value. Now, the animal’s well being, as well as issues related to the care of the animal, will be weighed. Is the animal bonded to children? If so, it may go where the kids go. Are there multiple pets in the home? Are they bonded to one another? What would the impact of splitting them up be?  Who was responsible for the feeding, grooming, and general care of the pet? Who took the animal to the vet? Who has the financial and time resources to provide continued care for the pet? All of these factors may be considered as the pet’s ultimate location is determined. Continue reading →

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long term spousal supportLong term spousal support and celebrity couples. What do the following couples all have in common?

  • Ben Affleck and Jennifer Garner;
  • Jenny Garth and Peter Facinelli;
  • Idina Menzel and Taye Diggs;
  • Courtney Cox and David Arquette.
  • Tom Cruise and Nicole Kidman;
  • Gwyneth Paltrow and Chris Martin.

If you guessed that they are all divorced, you are only half right. There is more to the story here, and it has to do with California law.

Long Term Spousal Support – The 10-Year Rule

When Jennifer Garner and Ben Affleck officially called it quits, it was precisely one day after their 10-year anniversary. Coincidence? Maybe. In California, there is some method to the madness of many couples who decide to end their marriages just after the 10-year mark. It has to do with spousal support, and for the lesser earning spouse, remaining married for any time over 10 years changes the statute in connection with long-term spousal support. In the case of the celebrities listed above, each couple lasted just past 10 years.

Understanding Long Term Spousal Support

California law (Family Code Section 4336(a)) provides:

“Except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration. A marriage of long duration is a marriage that lasts for more than 10 years.”

So, what does all that mean you ask? Does it mean a spouse could conceivably have to pay the other support for life? No. Not necessarily. What it does mean is that both parties in a marriage lasting more than 10 years are on the hook to each other for the rest of their lives as to the possibility of the court awarding spousal support to one spouse or the other unless an exception applies. When you think about it, that is a huge flying monkey on your back.

At any time after the divorce, either party can go to the other and request spousal support. Of course, the criteria and elements of an award of spousal support must be met for the spouse to prevail, but imagine a situation where both former spouses are making the same income. Ten years later one former spouse becomes disabled while the other’s income has steadily increased. Unless the disabled former spouse has remarried, or the supporting former spouse has died, they can knock on the door of the other and request spousal support.

So, the only ways this monkey flies away is if the former spouse requesting support has remarried, either spouse has died, or the parties agree to terminate spousal support at the time of their final judgment. In a marriage over 10 years, the court does not have authority on its own to terminate spousal support at judgment, however the parties may agree to do so.

Additional Long Term Spousal Support Considerations

In addition to the length of the marriage, there are many factors the court considers in ordering support and every case is decided on its own merits.

Some of these factors found in California Family Code Section 4320 include:

  • The marital standard of living – essentially the supported spouse is entitled to maintain their station in life they had during the marriage.
  • The marketable skills of the supported party.
  • Age and health of the parties.
  • Ability of the supporting party to pay support.
  • Any other factors the court determines just and equitable.

In the case of Affleck and Garner, that could amount to a significant amount of money, since Ben was pulling in about $105 million and Jen was earning just about $60 million at the time of their divorce. Continue reading →

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