Articles Tagged with divorce

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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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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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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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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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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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