Articles Posted in Divorce

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key divorce documentsEssential divorce documents. While a number of questions necessarily accompany any divorce proceeding, some of the most intense and complicated issues often relate to financial matters. To ensure a reasonable settlement and the peace of mind that comes with knowing you got a fair shake, it is essential to have a strong legal voice advocating for you throughout the process. Securing the services of a local divorce attorney is likely the best move you can make.

Three Essential Divorce Documents

Although there are numerous forms and documents that will be associated with your divorce, key financial decisions will be centered around three documents that reveal a lot about your life and money:

  • Tax Returns: You will want a minimum of three years’ worth of your tax returns, along with any documentation associated with them.  In particular, couples who divorce when one or both partners hold ownership in a business will want their attorneys to take a look at these forms. They can literally provide a wealth of information that could impact your divorce settlement.
  • Lifestyle Analysis: It is essential that you complete a detailed analysis of one-time and continuous expenses. This should include anticipated expenses that you will incur down the road, as well as those that are part of daily life. Future expenses, including medical and education costs, should be viewed while considering inflation. Online expense trackers can be helpful in organizing this for you.  
  • Net-worth Statement: Finally, you will be filing an affidavit for the court that provides a clear picture of the financial status of the marriage, including earnings and income, assets and liabilities, and current and projected expenses. One way to get an overview of present costs is to run your credit report, which will help you to get a snapshot of liabilities and joint obligations. You should also consider any assess you have, including items in your safety deposit box, artwork, antiques, etc. This statement will serve to elucidate spending priorities in the context of all other financial information, including retirement accounts and other investments.

Hidden Assets?

In some cases, spouses may have engaged in some tricky shenanigans in order to hide assets. This may include hidden bank accounts, substantial payments provided to entities unbeknownst to you, or unusual payments to utility or phone companies. Sometimes, spending patterns do not match up to reported earnings, providing an indication that there may be secret sources of income.  In the event your spouse appears to be trying to keep the facts from the court, serious dings to their credibility may result, giving you the benefit of the doubt when the facts appear shady. 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.

Continue reading →

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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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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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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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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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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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