When Your Spouse Refuses To Sign Divorce Papers

when your spouse refuses to sign divorce papers

Regardless of how toxic or dysfunctional a marriage may be, signing divorce papers is a very final step. Once a divorce is final, there is no going back without getting remarried all over again. So, it makes sense that some people have a harder time signing the final docs. 

Sometimes spouses are vindictive and spiteful, so their refusal is another way to get back at you. But then, there are cases where one person truly doesn’t believe divorce is the answer, in which case they’re honoring their personal values and feelings. 

Your Spouse Won’t Sign Divorce Papers? Here’s What To Do

Either way, a spouse’s refusal to sign divorce papers doesn’t mean you can’t get a divorce. Here are the steps to take to keep things moving forward.

Ask to meet with a mediator

The media has done a lot of damage when it comes to depicting what the average divorce actually looks like. For some, the idea of standing in a courtroom, spending thousands on lawyers, battling over child custody, etc., is a nightmare they refuse to participate in. That’s understandable, and there are ways to avoid that altogether.

First and foremost, if your spouse refuses to acknowledge the papers s/he was served, send a very neutral email or text requesting to meet with a divorce and child custody mediator. This is a much more affordable and straightforward way to move through a divorce with a minimum of drama. Read Mediation in Family Law Disputes to learn more about how mediation might be the right way to get your spouse in a more cooperative and collaborative state of mind.

Do NOT escalate the situation

There is absolutely no point in escalating the situation, especially if children are involved. Plus, it will do no good. Instead, keep a calm, neutral, and steady approach. Your spouse has been served, which is a legal action in and of itself. If s/he refuses to acknowledge that or follow the instructions, you have the right to move forward with a “Default Divorce,” in 30 Days.

Stay calm, breathe deep, get the support you need for you and your children, and remember that California is a “no-fault,” divorce state. There is absolutely no “power” in not signing, and it does not give your spouse the upper hand in any way. In fact, it could be viewed otherwise. For example, the California Family Law Court states:

In a “true default” case, you are giving up your right to have any say in your divorce or legal separation case. Before you choose this option, make sure you read the papers your spouse or domestic partner filed very carefully. What your spouse or partner asked for in his or her papers is probably going to be what the court orders. 

Your spouse’s refusal to respond or sign the documents as they are sets the Default Divorce in action. It does not alter how assets would be divided, child custody visitation and payment, or any owed spousal support. If your spouse and you are unable to come to an agreement, the court will decide for you.  

Nobody can prevent you from getting divorced, but you will have to abide by the court’s timeline to get to the other side.

If your spouse won’t sign divorce papers request a default divorce

Once your spouse is served, s/he has 30 days to respond. The judge automatically sets a Default Divorce hearing when a spouse doesn’t respond. There is nothing you need to do but show up to the hearing. Not responding means your spouse also waived his/her rights to contest any of your requests. 

At your hearing, the judge will decide on all counts and typically goes along with whatever the petitioner (you) requested since your spouse neither agreed to nor contested your petition and requests. In some cases, failure to acknowledge the divorce may actually compromise your spouse’s child custody/visitation situation. 

For example, if you requested an 80/20 child custody situation, and the court agrees, your spouse will only have the children 20% of the time and most likely owe you child support – ordered by the courts. Had s/he responded, she could have said, “No way, I want 50% custody of my children,” which is almost always honored by the courts (unless abuse of some kind is in question). In that case, you’d only have your child(ren) 50% of the time and may not receive any child support at all.

Regardless, once your divorce moves into the Default category, the judge determines:

Schedule A Consultation With A Family Law Attorney

Either way, it’s always wise to schedule a one-time, fee-based consultation with a family law attorney. That is especially the case with a contentious, apathetic, or unresponsive spouse. We provide all the guidance you need to proceed on your own and ensure things are fairly handled. 

The Law Offices of Gerard Falzone have served Bay Area couples and families for more than 30 years. Mediation is always our first stop, but we are also here to represent your interests in a family law court. Contact us to schedule a free, 30-minute consultation or to schedule fee-based appointments to ensure your divorce moves forward as quickly, and with the least amount of stress, possible. Call our East Bay Office at (510) 521-9500 or contact our Marin County Firm at (510) 521-9500.

Coping With Joint Custody Over The Holidays

coping with joint custody over the holidays

Once the divorce is final and child custody and visitation agreements are in place, most families find a rhythm to it, and life begins to move forward in the “new normal.” However, joint custody over the holidays can throw a big fat wrench in the works.  

For example, this year, the Christmas and New Year’s holidays fall right smack dab in the middle of the weekend, which may not flow with families who have every-other-weekend visitation built into their schedules. Some parents may be just fine with taking a child over the entirety of a holiday break. For others, that’s a significant work/child care struggle, regardless of what the child custody agreement decrees. 

Always Put The Child’s Wellbeing First

Now is the time to compare your child’s schedule, the school schedule, and the other parent’s schedules to come up with a holiday visitation calendar that puts the child’s emotional wellbeing first but honors the tenets of your agreement. 

Honor your child’s feelings when it comes to joint custody over the holidays 

This doesn’t mean that if your child says s/he wants to spend more time with you than the other parent, you get to honor that. It means you need to keep any negativity, irritation, or frustration about the other parent completely separate from your child. Children tend to take on the responsibility for their parent’s divorce and unhappiness. They often feel they are the ultimate cause. Any negative energy they pick up from you about their other parent is internalized and can manifest in different ways such as academic struggles, social anxiety, depression, and anxiety.  

Take care of child custody business away from children’s hearing and witnessing so they can enjoy the best relationship possible with each parent. 

Review the child custody/visitation order 

If the divorce or child custody agreement is fairly new, get it out and review it to make sure you both understand the holiday agreements. Sometimes, clients are “sure” of a specific agreement – only to find the court order is different. The court’s final order is the rule you have to follow. If your situation has changed and you need to modify that, you can do it in writing as a shared agreement – and leave the court out of it. If, however, you feel it may become an issue down the road, it’s best to request a post-custody modification from the court.  

Get everything in writing 

Most child custody agreements include things like “every other holiday” turns or “Christmas Eve with one parent/Christmas day with the other,” etc. The challenge is that some holidays float through the calendar year and may land on a weekend or weekday that would have been the other parent’s typical visitation day.  

Negotiating agreements within the general family law court guidelines are fine, but it’s best to get everything in writing. Start an email chain (email is almost always better than text) that outlines where children are on each day of the November/December/early January days – and that clearly states both parents’ agreement once it’s decided. This keeps things clear and transparent. 

Keep an open and gracious mindset 

Be as gracious to your ex as you want him/her to be with you. If your sister is coming from out of state and would like to visit the kids for dinner or lunch, ask permission and reiterate that you will do the same in return if/when a similar situation happens on the other side.  

Again, this is always what’s best for the children – who should feel like they have somewhat of a healthy flow between households and extended family visits – as needed – regardless of what the “letter of the law” dictates. Never use your children (or power plays) as pawns. 

Keep children out of negotiations 

This is a reiteration of #1. Your children should never feel like they’re part of an emotional or powerplay tug of war between parents. They want to rest in as much open-hearted grace and fluidity as possible so they can remain healthy, loving, and respectful relationships with each one. To this end, do not discuss any changes to the plans until everything is decided. Once the plan is official and parents agree, is it okay to share the finalized plan with children.  

If things are strained, or you and the other parent have a history of contentious negotiations, try to use written documentation as much as possible. Do what you need to do (breathwork, seeing a therapist, stress-reduction apps, etc.) to remain respectful and businesslike no matter how triggered you are. Your words and sentiments could come back to haunt you in future child custody modifications, so always strive to take the high road. 

Need Help Negotiating Joint Custody Over The Holidays?

Do you find it nearly impossible to create changes to the plan or negotiate joint custody over the holidays? There’s no need to go to court, but I do recommend seeking support from a neutral child custody mediator. For a reasonable fee, we can sit down together and resolve the holiday visitation schedule for this year as well as the years to come. Contact the Law Offices of Gerard Falzone to create a healthy, balanced, and children-first holiday custody and visitation agreement.

How Is Child Custody Determined In California?

how is child custody determined in california

For the most part, California family law courts believe both parents have equal rights to their children and support a 50/50 custody split. Parents create a child custody agreement and visitation calendar that afford children even time with each parent when that happens. Child support becomes a non-issue unless there is a dramatic discrepancy in the quality of life between households. 

That said, child custody battles abound. And that is where the courts become involved. 

California Child Custody Basics 

Before we begin, let’s review legal child custody basics: 

  • Legal custody: This refers to who makes important decisions for your children (like health care, education, and welfare). In most cases, this is split 50/50 between both parents, regardless of who the child(ren) lives with. Both parents’ signatures are required for any legally relevant documentation. 
  • Physical custody: This refers to who the child lives with, and it is split in various ways. 50/50, 80/20 (the every-other-weekend setup), 70/30 (every other weekend and one night per week), and so on. 
  • Joint custody: This is when both parents share the right and responsibility to make important decisions about the children’s health, education, and welfare. 
  • Sole custody: Sometimes the court awards (or parents agree to) only 1 parent has the right and responsibility to make the important decisions about the health, education, and welfare of the children AND the children live solely with that parent. 
  • Child support: Child support depends largely on who has the child more often. Unless there are major income discrepancies, child support is not awarded in 50/50 custody splits. 

Seek Child Custody Mediation Whenever Possible 

After more than four decades in family law, I cannot tell you how devastating child custody battles are to witness and take part in. The bottom line is that unless you truly feel your child’s wellbeing is compromised (physical, verbal, emotional abuse, or neglect), these battles do a tremendous amount of harm to the children. Only proceed if you are doing it for them – and not your ego! 

Whenever possible, work with a family law professional who specializes in divorce and child custody mediation. Using the mediation process, family law attorneys serve as completely neutral parties. We listen to both sides, help you find common ground that supports the well-being of everyone involved and the bigger picture, and can provide recommendations based on how we suspect a judge would decide regarding any given scenario.  

Read Why Divorce Mediation is the Best Way to Handle Child Custody for more on that topic.  

Also, it’s worth pointing out that successful mediation saves clients thousands – or tens of thousands – of wasted dollars on traumatic and emotionally stressful court battles. 

5 Factors That Affect Child Custody & Visitation 

If you DO opt to go to court, here are the factors the judge evaluates when reviewing your case and your child’s best interests (ren). 

The child’s best interest 

This has nothing to do with who the child is closest to, but more about his/her wellbeing on all counts. For example, if there is a documented history of physical or emotional/verbal abuse, the judge reviews that. If your family has worked with an MFT or mental health professional who strongly believes one parent is less fit to have custody of a child, his/her records may factor into this equation as well. A child’s academic or behavioral records may also come into play if they are relevant or a school counselor/administrator has valid insight. 

History of drug or alcohol abuse 

Be very careful when pursuing this unless things are clean on your side of the street. Never accuse the other parent of alcoholism or drug addiction unless you have documented evidence or proof – and you aren’t a regular consumer of those chemicals yourself. I’ve seen plenty of parents trying to pin alcoholism on the other parent even though they are daily drinkers themselves. This doesn’t work. The same is true for drugs. “He drinks/uses drugs more than I do!” is not an argument that holds up in court. 

You must truly believe the child’s other parent has an addiction or substance abuse problem and may need to spend thousands of dollars in private investigator fees to prove it if you don’t have evidence of your own. However, if the court rules in your favor, they may recommend supervised visits for now and will offer the other partner guidelines for reclaiming custody. This includes requirements such as joining (and consistently attending) substance/rehab programs, routine drug testing, etc. If the parent compies, s/he earns the right to custody and unsupervised visits back. 

A tween or teen child’s preference 

By the time a child is aged 12 to 14, the courts are more willing to listen to his/her side. If the reason for wanting to move in with one parent over the other has to do with better rules, better food, or easier to get along with, the judge could care less and will still advocate for some type of joint custody.  

If, however, the adolescent or teen can give solid reasons in one parent’s favor, the judge is apt to pay attention and may alter the custody/visitation agreement accordingly. 

The parent works late hours and often travels for business 

In this case, the judge may not rule in your favor, BUT s/he might rule that you have the first right of refusal to have your child when the other parent is at work or on business trips. In that case, you may have your child more often, and that difference will be compensated in child support payments that honor your extra time/expenses. 

Mental or emotional instability 

This is such a hard one. It is hard to prove unless the other parent has a diagnosable mental illness that is known to compromise their parenting/decision-making. For example, depression and high anxiety probably aren’t enough to make your case. Clinically diagnosed and unmanaged narcissism, borderline personality disorder, severe manic depression, schizophrenia, etc., are potential reasons a court might decide in your favor.  

Read Mental Illness & Child Custody…, from bridgestorecovery.com for more about that topic. 

Again, this path isn’t easy because it’s difficult to prove, messy to defend, and exposes confidential information about the other parent. I recommend taking a very compassionate and soft approach if this is truly an issue for your family and your children’s safety/wellbeing is compromised by living with the other parent.  

This is an area where child custody mediation can be a tremendous help. Creating a non-confrontational space where the child(ren)’s best interest is the priority, you may find the other parent willing to create a “for now” custody agreement with you based on their treatment and management timeline. 

Do you need help navigating the possibilities around child custody and visitation? Contact the Law Offices of Gerard A Falzone.  

Spousal Support vs Alimony In California

spousal support vs alimony in california

Spousal support is a term used by family law courts to describe a sum of money paid from one party to the other after divorce to support the recipient’s “accustomed lifestyle” up to a certain point. 

For example, spousal support would help an ex-spouse who was typically home with the children or who had a part-time job so s/he can pay general living expenses in their new home. However, it is not intended to accommodate luxury items for the average Bay Area divorcee. 

Spousal support vs alimony, the terms are often used interchangeably, but the way they are decided upon, upheld by the courts, and terminated are the same. 

Spousal Support vs Alimony: What’s The Difference? 

The terms are the same. Alimony is an “old-fashioned” way to describe spousal support. It goes back to when women predominantly stayed home without working or a means of income, while men brought home the paycheck. As a result, during a divorce, the courts decided on a set amount of money an ex-husband paid to the wife every month (separate from child support) until a specified amount of time.  

Back when we referred to it as alimony, payment duration was usually set until the wife remarried, OR the ex-husband went back to the courts to ask for a modification or termination. Today, we refer to this monthly payment as “spousal support” because it may be paid from either partner to the other during the separation, divorce proceedings, and beyond. Usually, the one who makes the most money each month is the one left paying spousal support if that’s what the courts decide. 

After over 40 years of experience with divorces and family law, I can assure you that working with a divorce mediator is the best way to avoid paying spousal support, minimize the spousal support amount, or come up with the most reasonable length of time to terminate the payments. Read Could Your Divorce Benefit From Mediation to learn more about that. 

How Is Spousal Support Determined? 

One benefit of divorce mediation is that you can set your spousal support agreement without involving the courts. Sometimes, the .gov spousal support and child support calculators spit out figures that simply aren’t realistic. A realistic compromise is the best alternative, and agreeing in a family law mediator’s office is far more affordable than paying to have the judge decide. 

If you do take your divorce into the courtroom, the judge considers multiple factors. Some of the most critical include: 

Earning potential of both parties 

If you have a viable degree, certification(s), experience, and skillsets that are still relevant in the current job market, the judge is less likely to award spousal support. Or, they’re likely to award a smaller amount for a reasonable amount of time, expecting you to re-enter the workforce once you are settled. 

Note: If you own a business, I highly recommend seeking pre-divorce counseling with a family law attorney before beginning the divorce proceedings. You don’t want to risk losing your business as a result of its asset value when the judge is evaluating each party’s individual worth or income potential. 

Child support obligations 

If one party pays child support, the courts subtract that amount from their net income and then factor the spousal support into the equation. This is one reason why spousal support payments are fading fast for California’s middle class. Many people simply cannot pay more than the child support they’re already paying while still maintaining a decent standard of living, which may drastically reduce or eliminate their need to pay spousal support.  

If children are involved in the divorce, consider seeking child custody mediation to support the emotional wellbeing of your children at all costs. I also recommend reading, The Biggest Child Support Mistakes to Avoid. 

A sufficient standard of living 

Suppose the earning differential between the two of you is marginal. In that case, you will both have the same “standard of living” (more or less) after the divorce because California is a community property state, and communal assets are divided equally. If, however, there is a significant income discrepancy, the judge may award a larger alimony settlement to support the less-earning spouse for a certain amount of time. 

An individual’s ability to pay spousal support 

Again, this is largely determined by income discrepancy between both parties. If the higher-earning party can barely pay reasonable living expenses, the judge may not award much spousal support at all. For example, if the higher-income earning party rents a two-bedroom apartment in the Bay Area and has 50% custody of the children, the judge would rarely award a spousal support payment that would compromise basic the payor’s living standards. 

Similarly, if you’ve recently lost your job, changed your job, or experienced a decrease in earnings, you should file spousal support (alimony) modification ASAP to lower or cease payments. 

The duration of the marriage 

Spousal support payments also reflect the length of the marriage, including the number of years a payor has to make the payments. Typically, the rule of thumb is that the person who has to pay spousal support must do so for one-half the length of the marriage (often up to 10 years).  

A history of abuse 

If there is a documented history of physical or emotional abuse, the judge will consider that. Victims of domestic abuse, both verbal and physical, can have a harder time re-entering society as an independent income earner, leading to larger spousal support payments or payments made for a more extended period than average. 

Age and health of both parties 

While algorithms and calculators can give a black-and-white perspective as to who owes what, most judges honor personal stories as well. A person’s age, retirement, and health conditions may also factor in how the judge decides.  

Click Here to read the California Family Law code for specifics pertaining to the criteria used to determine spousal support. 

Are you worried you can’t afford to pay spousal support for an upcoming divorce? Are you currently paying spousal support vs alimony even though you can’t afford it? Contact the Law Offices of Gerard A. Falzone. I can support you in various ways, ranging from pre-divorce legal counseling, mediation, or helping you file for spousal support or child support modifications. 

Could Your Divorce Benefit From Mediation

could your divorce benefit from mediation

Couples do not get married with the intention of getting divorced, but when a marriage is no longer functional, it’s necessary to find the best alternative. In our culture, divorce is typically the end result, but how that result comes about – and the ramifications or consequences of that result – depends entirely on the process you select to dissolve the legal marriage standing and choose a new set of agreements. 

Mediation Eliminates The Trauma Of A Courtroom Divorce  

I completed law school and joined the California bar in 1982. At that time, divorce almost always meant hiring a lawyer and going before a judge to finalize the process and agreements. Unfortunately, for the weeks and months required to finalize decisions, each “side’s” lawyer encouraged their client to fight for this or fight for that. The stress this lengthy process created led to more frantic and less thoughtful decision-making by the parties involved.  

The tension, anger, and resentment that built through the divorce proceedings, in addition to the strife that led to divorce in the first place, wholly traumatized individuals and their families. The failure of the modern court system to support conflict resolution, resilience, tolerance, mutual respect, and integrity led to the development of family law mediation.  

The benefit of mediation process allows individuals to dissolve or legally end their marriage in a way that puts everyone’s emotional wellbeing at the forefront of the process. The goal is to come to agreements that make sense for the good of the whole, with respect to what a judge is most likely to decide if it were to go before the courts.  

How Your Divorce Can Benefit From Mediation 

Ultimately, I prefer to practice using a mediation approach whenever possible. If clients can’t come to an agreement, I’m happy to support them in the courtroom, but I advise keeping the idea of “going to court” as a last resort. Fortunately, divorce mediation is successful more often than not.  

There are five benefits of using mediation to facilitate legal divorce proceedings and make sound custody and visitation agreements. 

Your children are far less traumatized 

Trauma is a powerful word, and I don’t use it lightly. However, research clearly shows that divorce is a trauma for most children. The effects of divorce correlate with a child’s increased risk of behavioral problems, emotional instability, academic struggles, heightened anxiety, and alcohol/drug abuse. 

Read, Effects of Divorce on Child School Performance to learn more about one facet of the painful legacy of divorce for children. If you have children, I absolutely recommend starting with a family law mediator before hiring a divorce lawyer. 

I also recommend working with a family therapist to support your children through the process. Even the “best divorce” is painful for all involved, but children are the most vulnerable and compromised parties in almost all cases. Not only do they not have a say in the bulk of the proceedings, they often misunderstand the causes and precursors to divorce and believe they were the cause. Supporting your children and minimizing the negative impacts of divorce proceedings is a parent’s ultimate responsibility.  

You’ll save thousands of dollars 

Money is clearly not the most important thing, and yet it is the driving force behind our economy, ability to pay for homes, medical care, bills, food, etc. For that reason, it makes sense to spend it on things that make sense.  

According to Nolo.com, the average cost of a conventional divorce is $12,900 ($11,300 of that is typically paid to attorneys. The average cost for divorce mediation ranges between $3000 and $8000. Since mediation is almost entirely based on a per-session or per-hour fee basis, that range reflects the differences between a couple who could make decisions within a handful of sessions and one that needed a family law mediator to facilitate their debates, conversations, and decisions a dozen or more times.  

It’s also important to say that plenty of my clients pay $1000 or less. That typically means they’ve done their homework, prepared for the mediation process ahead of time, and were most likely to make decisions from a centered place rather than an angry one. 

Another benefit from mediation, maintaining your integrity

Really good people can make really horrible decisions when they’re stressed, fatigued, or resentful. I’ve seen the calmest, kindest, and most compassionate people do and say terrible things to their soon-to-be-ex-spouses. Stress, financial and emotional instability, anger, and fatigue all do their part to whittle away the ability to make sound, big-picture decisions. If you aren’t careful, your integrity is at risk. 

The divorce mediation process is facilitated by an expert who helps you diffuse high emotions. That rational facilitation helps you return to a stable foundation from which to make decisions about property, assets, child custody, and other terms of a divorce agreement. 

Integrity is invaluable. Making your way through a divorce process with your integrity intact means that you can move forward into your new life with far less doubt, regret, or self-loathing. You will rarely owe any apologies for your actions or sound decisions made through divorce mediation. Your children will not be wounded because of the inappropriate, degrading, or negative things they overheard you saying about your ex-spouse. 

There is no value that can be put on saying that you are legally divorced and that you and your ex-spouse can greet each other with mutual respect (even if there is no love lost between you). Children are infinitely grateful when they look back and know their parents got divorced with the children’s long-term wellbeing as the highest priority.  

Before meeting with a divorce lawyer, I encourage you to imagine a different way. Consider how your divorce process will benefit from mediation. Divorce and family law mediation exist to diffuse as much negativity as possible while ensuring equitable decisions are made every step of the way.  

If you’re interested in learning more about divorce mediation and how it can streamline your divorce proceedings while honoring each individual and the family, schedule a consultation with the Law Offices of Gerard A. Falzone.

Protecting Your Small Business Through A Divorce

protecting your small business through a divorce

Your small business may seem like “yours,” but the state of California may view it as “community property” when it comes to a divorce. This is especially true if your spouse works there, worked there, or can show proof that s/he was essential to helping you start, develop, and grow your business. 

Many small business owners make the mistake of assuming their spouse would never threaten or compromise their business. Unfortunately, the mental and emotional strain of divorce causes good people to make bad and unethical decisions. Consider the protection of your business to be a sound business strategy rather than a personal slight on your spouse or fiancee. 

Save Your Small Business From Divorce Proceedings 

If you don’t take proactive steps, you may have to repurchase your own business from the marriage, and, in worst-case scenarios, business owners have to close shop altogether. But, don’t let that happen to you. A small business is the most significant asset for many, and it must be protected as such. 

As the National Federation of Independent Businesses (NFIB) states, “The importance of protecting your small business before initiating (or even considering) divorce cannot be overstated.” 

Get a prenuptial agreement 

If you aren’t married yet, we highly recommend scheduling a pre-marital legal counseling consultation with a family law professional. These consultations shed light on a range of topics couples should consider, including protecting assets like their current small business or future entrepreneurial projects.  

If you are a business owner, odds are the lawyer will recommend drafting a prenuptial agreement. In either a pre- or post-nuptial agreement (see below), you want to state that the business is “your separate property,” not part of the community property pot, and unable to be divided in a divorce.  

Hire a business lawyer 

If you are in the beginning stages of building a business or have not yet retained a business lawyer, now is the time to do so. While a family law professional certainly has some level of insight and experience on how to protect a business from divorce, a lawyer who specializes in business law is your best bet. Beyond the idea of saving a business from divorce, a lawyer practicing business law can support you in the short and long-term in a more well-rounded way. 

Depending on the terms of your prenuptial or postnuptial agreement, your business lawyer can help you determine which percentage of the business’s proceeds are entitled to your spouse in the event of a divorce. If this amount isn’t explicitly stated, California family law courts view the business’s profits after your wedding day to be community property, split 50/50 in a divorce. 

Draft a post-nuptial agreement 

A post-nuptial agreement is a smart solution if divorce isn’t on the immediate horizon, but you realize you’ve left your business vulnerable. Odds are your spouse understands your desire to keep the business aspect of your business separate from the marriage.  

On the other hand, this also gives your spouse the ability to establish what portion of the business, if any, should be legally his/hers depending on the level of sweat equity or finances s/he contributed to the business. Either way, a collaborative post-nuptial can protect the business if the marriage ends and you find yourself in the midst of a divorce. 

Do NOT use your business to hide assets 

The courts frown heavily on individuals who hide assets prior to or during a divorce. It is absolutely a no-no. In your case, any evidence you used to business to try to hide assets can create major backlashes for you, including the loss of your business and liquidated assets being granted to your ex. 

Read, The Risks & Consequences of Hiding Assets in a Divorce. 

Maintain meticulous records 

If you aren’t a natural-born accountant, bookkeeper, or tax expert – hire a professional to do that work for you. Your business should have current, organized, and meticulous records. Without that, the financial statement portion of your divorce filing will be excruciating to complete. 

Give yourself a salary increase 

Entrepreneur.com writes, “If you starve the family’s cash flow to build the business, a lawyer might later make the case that your ex is entitled to more of the company’s assets.” Giving yourself a substantial salary boost may be a better way to accomplish the same goal and then meticulously track the salary contributions you “loan” or grant back to the business. 

Again, the further away from the divorce this takes place, the better. However, if there’s any whisper that your marriage is in distress, convert shared profits into a salary increase. If you opt to make less now to “save for retirement,” those retirement savings get split equally. Giving yourself a larger salary allows you to factor that in when it’s time to figure the business’s value.   

Put the your small business in a trust 

Depending on your situation, it might make the most sense to put your business in a trust. Again, entrepreneur.com points out that putting your business in a trust “…keeps the business from being counted as a marital asset as you no longer personally own it. The move also protects the value of the company’s growth.” 

Discuss this idea with your lawyer or an estate attorney before making any permanent decisions to weigh the pros and cons. 

Use divorce mediation rather than the courtroom 

Whenever possible, try to use a family lawyer that offers divorce mediation rather than “fighting” in a courtroom. I’ve built my practice around mediation over litigation. It makes a tremendous difference in protecting the dignity and heart of each person while coming to the best decisions that support the highest good for all. 

Are you interested in learning more about how to protect your small business through a divorce? Schedule a consultation with me here at The Law Offices of Gerard A. Falzone. (510) 521-9500.

Who Needs A Family Lawyer?

who needs a family lawyer

Technically, anyone can file legal paperwork, get divorced, or make child custody or financial support decisions without a family lawyer. Realistically, that’s not a good idea. As a result of DIY legal aid, I’ve seen clients who made legal decisions that haunted them for years or decades before they hired a family law professional who created a better way forward. 

Most family law attorneys offer free consultations and I highly recommend taking advantage of those. In just 30-minutes or less, complimentary family law consultations establish whether or not you need a lawyer.  

6 Signs You Should Hire a Family Lawyer 

Here are 6 of the most typical signs or scenarios indicating you need a family lawyer, rather than using a paralegal or trying to do things on your own. 

You’re planning to get married 

Family lawyers offer Pre-Marital Legal Counseling, and it’s one of my favorite consults of all. Some of the most common reasons for divorce become nonissues by meeting with a lawyer before ever saying, “I do.” At these meetings, we help couples determine: 

  • How marriage affects their legal rights and responsibilities  
  • Whether they need a pre-nuptial 
  • How individual financial picture will impact the marriage 

It’s incredible how many couples have never thought deeply about – or conversed deeply about – what marriage will mean in the long term, besides the obvious themes of love, partnership, and family building.  

You worry divorce is on the horizon 

Marriage and family therapy is considered a no-brainer for couples struggling to get along. Pre-Divorce Legal Counseling is equally as important. You’d be surprised what can emerge when individuals and couples speak with a legal representative. Common myths or beliefs about what does or does not happen during divorce and child custody, the division of real estate/assets, etc., are teased out and cleaned up. 

These meetings may steer you toward a more affordable and peaceful divorce mediation process rather than an angry or bitter battle in the courtroom. Pre-divorce legal counseling can save you thousands of dollars in unnecessary legal fees. 

You want to establish healthy child custody and co-parenting agreements 

Whether you are married or not, all of the research shows that children in split-parent households fare best when their lives are as consistent and predictable as possible. As parents, it’s your responsibility to find a cooperative way forward to support your children’s wellbeing. 

Meeting with a family lawyer is a way to learn what works and what doesn’t for other families and can establish reasonable child custody, visitation, and co-parenting agreements for your family.  

You want to avoid the family law courtroom 

California divorce and child custody laws are relatively black-and-white. Things like community property laws, prenuptial agreements, and state-established child custody premises based on child welfare research mean a judge already knows what his/her decision is in regards to your case. When hurt feelings, blame, resentment, and revenge enter the picture, very straightforward divorce and child custody cases can bleed days, weeks, months, and even years of time, energy, and money. 

Family mediation is the way to go whenever possible. Family lawyers offering divorce mediation serve as completely neutral parties. We let you know how a judge is most likely to decide on topics where you are stuck, disagree, or feel entitled to something different. From there, you can make informed decisions while saving hundreds to thousands of dollars in legal and courtroom fees. 

Visit our post on Preparing and Organizing Your Divorce Mediation List to learn more about what we discuss during those sessions. I also recommend reading Why Divorce Mediation is the Best Way to Handle Child Custody if you have children.  

You are deciding whether or not to file a pre-nuptial agreement 

Pre-nuptial agreements have a bad rap because people focus on the idea that a couple is already thinking about divorce before getting married. Others who oppose prenups cite that couples should love and trust each other enough to know they will navigate the unpredictable future with mutual respect.  

While both of these sound true on paper, we’ve all watched good-hearted, intelligent people we love, become different people during an ugly divorce. Emotional triggers are powerful, and they cause us to think, act, and speak in ways we can’t imagine in a centered and content moment. A pre-nuptial agreement is a sound way for couples to rationally determine what makes the most sense should a worst-case scenario rise up and for families to protect their estates. 

Visit our post, The Good and Bad of Pre-Nuptial Agreements, to learn more about the pros and cons. 

Child endangerment cases 

If your child is endangered by his/her other parent or immediate family members, schedule a consultation with a family lawyer. While you can file restraining orders and take specific actions on your own, it is always better to have a legal professional’s support and representation so you can act swiftly, within the law, and in your child’s best interest.  

We recommend retaining a child custody lawyer if/when: 

Do one of these signs ring true for you? My name is Gerard Falzone, and I’ve served as a family lawyer in the Bay Area for nearly 40 years. I support my clients in finding swift, cooperative, and affordable solutions whenever possible. Contact my office to schedule your free, no-obligation family law consultation. (510) 521-9500. 

The Good & Bad of Prenuptial Agreements

the good bad of prenuptial agreements

Are you on the fence about whether or not to create a prenuptial agreement? That’s understandable. It’s hard to tell the one you’re about to marry that you also want to be prepared in the case of an eventual divorce.  

Prenuptial Agreements: Good or Bad? It Depends… 

There are some advantages and disadvantages of prenuptial agreements. While this post can highlight some of the most common considerations, you should always consult with a professional family law attorney before proceeding with any legal document or procedure affecting your marriage or family. 

The Advantages Of Preparing A Prenuptial Agreement 

Here are some of the positive aspects I witness when helping couples decide whether or not they should get a prenuptial agreement. 

It can improve communication 

Every culture and family is different when it comes to finances. For some, their financial status and checkbook balance are practically an open book. In other households, finances are never spoken about. This can result in some pretty serious tension when two people are deciding to get married. 

Having conversations about current financial status, projected financial status, and what that means in case of a future separation can help to get you both on the same page. Most importantly, I highly recommend that engaged couples run and share their current credit report. Your partner may have serious debt that will become yours the minute you say, “I do.” For example, once you’re married, the IRS may garnish your joint tax filing for his/her unpaid college debt. 

Any issues or tensions that arise while discussing a prenuptial helps to uncover differences so you can sort them out before being legally bound to one another. 

Save time and energy 

Getting a divorce is never easy, but a well-crafted prenuptial can make it far simpler. Your prenuptial agreement will have laid it all out there, simplifying the pre-divorce financial preparations we typically work through during mediation or in the courtroom. 

Protect separate property and family heirlooms 

In a perfect world, these items are already protected due to California’s separation between separate and community property. However, if you do wind up getting divorced, the onus is on you to prove that certain assets, property, and family heirlooms were yours before you got married, were bequeathed specifically to you from a deceased loved one during the marriage, or were actually your family heirlooms. 

When you create a prenuptial agreement, these items are categorized and clearly stated so there is no debating the fact of whose was whose in the future. If the property is the main concern, rather than assets or wealth, a marital property agreement may make more sense. 

Protect children’s inheritance 

Prenuptial agreements are specifically helpful for couples where one or both have children from prior relationships. Your prenuptial agreement will determine the children’s future inheritance so it doesn’t become a part of the community property pot. 

Ultimately, prenuptial agreements benefit the person who has the most wealth and protects that wealth from being unfairly used or taken advantage of at any point during the marriage. This includes the ability to limit future alimony (spousal support) that would be paid if you get divorced. 

The Disadvantages of Prenups 

The disadvantages or “bad” of prenuptial agreements are: 

You may limit your inheritance 

If your spouse is wealthy California’s intestate succession laws grant that the majority of the estate (excluding certain properties or heirlooms, etc.) is yours when your spouse dies. You may not retain that inheritance depending on how the prenuptial is written. That said, your partner and you should also consider creating an estate plan that accommodates what your portion of the estate would be to protect your interests. 

One partner’s efforts and energy in the business may not be accounted for 

If you have or own a business, or you are an entrepreneur with a business plan, that should be taken into account in the prenuptial agreement. Otherwise, any time or energy you or your spouse spends growing or working for the business may not be recognized in the event of a divorce. 

Read, Am I Entitled to My Spouse’s Business in a Divorce, to learn more about that. 

Your lifestyle may not be accommodated 

If you or your spouse are a lower wage (or no wage) earner, the prenuptial agreement may not account for that, which means s/he is put in a position to fight in court to maintain a certain lifestyle or to keep the house, etc. A good prenuptial agreement should account for this, as we mentioned above, by ensuring the lower-wage earning spouse is taken care of.  

Romance may preclude reason when it comes to prenuptial agreements

If you’re the one without the wealth, it’s easy to be cajoled into settling for less or depriving yourself of that normal California divorce laws or inheritance laws would have provided for without a prenuptial. Romantic and honeymoon periods can put a person in a position to agree to things that are not in their future best interest. 

If you are considering creating a prenuptial agreement, get your own lawyer or the two of you should visit a neutral lawyer for premarital legal counseling. This way, the lawyer can advise you both without bias or preexisting loyalties involved and help you determine which premarital documents if any, make sense. 

As with any long-standing legal document, such as estate plans, prenuptial agreements should be revisited regularly (annually or every other year is recommended) to ensure the things you agreed upon in the moment continue to make sense for your evolving lives together. If not, the prenuptial agreement can always be revised and amended as needed, making it a more relevant legal document called a postnuptial agreement. 

Contact The Law Offices of Gerard A. Falzone to schedule a consultation or to discuss whether a prenuptial agreement is worth it.

Parental Kidnapping In California

parental kidnapping in california

When things are heated between partners or spouses, or when a parent believes his/her child is in danger by the other custodial parent, “kidnapping,” may feel like the only option. In most cases, the courts consider “kidnapping” to require force or a threat. If one parent removes the child from the region, state, or country without the other parent’s consent, and with the intention of keeping the child away from the other custodial parent, the courts consider it “parental abduction” or “parental kidnapping.”

We cannot tell you enough how important it is to avoid violating the child custody agreement in any way. If you are found guilty of kidnapping, it can be the very worst thing you could ever do to your child because it prevents your ability to protect his/her well-being in a lawful way. 

If you are concerned about your child’s wellbeing and have even considered physically removing your child without the other parent’s awareness, consult with a family law specialist immediately so we can begin helping you navigate this very stressful and complicated situation. 

How The Courts Define Parental Kidnapping 

The courts may find a parent guilty of parental kidnapping or abduction if: 

  • You violate a child custody order or agreement and it appears that it is intentionally done to keep the child and other custodial parent away from one another
  • You hide or contain a child away from the other parent
  • A refusal to return the child to the other parent at the end of your stated visitation time 
  • You left with the child without the other parent’s consent (while you can take them within the same state during your stated visitation time, you can never take a child across state lines or out of the country without a written agreement from the other parent or legal guardian). 

Seeking Legal Permission to Take a Child out of State or Country 

You must always seek legal permission to take a child out of the state or the country – even if there is a verbal agreement between both custodial parents. This is as simple as completing a detailed letter that outlines the plan, travel dates, flight numbers, etc., and that is signed by the other custodial parent or guardian. You must also have the document notarized.  

In addition to protecting you from potential child abduction charges, these letters may be necessary for officials in other states or countries to prove your child has permission to leave the region, state, or country. 

Visit the Family Travel Forum’s page on travel consent letters to learn more. 

An Emergency Child Custody Order can Protect You from Kidnapping Charges 

In most cases, parents facing child abduction charges are doing so because they feel their child’s physical, mental, and emotional wellbeing are at risk in the other parent’s custody. This is 100% understandable.  

Fortunately, the courts have created Emergency Child Custody Orders. These orders are handled expediently through the court system and can protect you from facing or being charged with parent/child kidnapping or abduction charges. 

Read our post, How and When to Obtain an Emergency Child Custody Order, to learn more about how to pursue that option. The post also includes hyperlinks to CA.gov family law pages to help you get to the forms you need. 

Abduction of a Child by a Parent is a Misdemeanor or Felony 

Depending on the case, California courts typically charge parent abduction of a child as a misdemeanor or felony. Fines can range from $1000 to $10,000 dollars and can have a minimum of one year of jail time.  

The severity of the charges and penalties depend on three key factors: 

The legal status of the offending parent

Your prior criminal history as well as any current charges, probation, or warrants can affect the judge’s viewpoint. 

Existing court-ordered child custody agreement(s)

If you are in violation of the most current, legal child custody order, it’s a problem. This is why it is so important that you file a temporary Emergency Child Custody Order, which shows the court you are doing your best to proceed through the legal channels while also prioritizing the wellbeing of your child. 

The intent of the offender (you, as the abductor)

If you have a solid cause to back up why you are keeping the child away from the other parent, and there is substantial proof, the court may be more lenient. 

As you can imagine, spending time in jail only makes matters worse for your child who may be handed over to the other parent with full custody or to the foster system as the courts decide what is in the child’s best interest. 

Are you currently in a position where you are considering parental kidnapping or abduction to protect your child? Please contact me here at The Law Offices of Gerard A. Falzone. I will do everything I can to expedite your temporary emergency custody order and provide sound legal counsel to help you determine the next safest steps. 

Lawyer vs Attorney: Is There A Difference?

lawyer vs attorney is there a difference

Choosing which term to use, lawyer vs attorney? They are frequently used interchangeably in advertisements, websites, and brochures. In truth, they are not exactly the same thing. From the logical point of view, all attorneys are lawyers, but not all lawyers are attorneys. 

Here’s why… 

Attorneys Have Passed The Bar Exam 

Attorney is actually short for attorney-at-law, a distinction that requires passing the state bar exam. In addition to finishing and graduating from an accredited law school, attorneys-at-law has passed the bar exam in their respective state.  

Here in California, attorneys have to pass several, proverbial, bars: 

  • They’ve graduated from an accredited college or university 
  • They subsequently attended and graduated from an accredited law school** (not mandatory in CA, but more on that below) 
  • They’ve studied extensively using state bar preparation materials and/or course work 

The Baby Bar 

In their first year of law, law students take an exam called “The Baby Bar.” This exam consists of four one-hour essay questions and 100 multiple-choice questions. It’s a good way to establish how serious the “real” bar will be and can help some students determine that the attorney path may not be for them after all. 

Multistate Professional Responsibility Examination 

After the first year of law school, but before they become licensed attorneys, law students must also pass a two-hour multiple-choice test called the Multistate Professional Responsibility Examination (MPRE).   

Once aspiring attorneys-at-law pass the Baby Bar, graduate from law school, and feel up to the challenge, they sign up and pay to take the state bar exam.  

California State Bar Exam 

The California State Bar Exam’s reputation as a grueling examination is widely respected, and it often requires multiple attempts. In fact, only about 45% of all testers pass the California Bar Exam the first time. You can take it as many times as you want. I am proud to say that I passed the California bar exam after my first attempt, and have been practicing as a family law attorney ever since.  

The test has three parts: 

  1. Five one-hour essay questions 
  2. One 90-minute performance test (standard style questions/answers) 
  3. The Multistate Bar Exam (MBE) has 200 multiple choice questions 

The key content areas covered on the exam include: 

  • Conflict of laws 
  • Real property 
  • Family law 
  • Contractors 
  • Business associations (Partnerships, limited liability companies, and corporations) 
  • Criminal law and procedure 
  • Torts 
  • Uniform Commercial Code, Article 9 (Secured Transactions) 
  • Evidence 
  • Trusts and estates 

After passing, lawyers register for their license to practice as an attorney-at-law in the state of California.  

**Note: California is one of four states that allows anyone to take the bar, regardless of whether they attended law school or college. That said, in the history of the CA bar, less than 20 people (out of more than 100,000 test-takers) have ever done so. The caveat is that you must have worked as an apprentice and “read the law” under the guidance of a judge or licensed attorney for at least four years.  

Lawyers: Education Without The Bar 

To call yourself a lawyer, you must have studied and graduated from a law school, but there is no need to pass the bar. Lawyers can work as professional law advisers, but they cannot legally represent someone in court, nor can they practice in a prosecutor’s office.  

Lawyers often prefer to work behind the scenes, offering legal information, advice, or guidance around policies or strategies, and are active members of legal teams. 

What Does Lawyer vs Attorney Mean For Clients? 

Because the general public doesn’t have a clear understanding of the difference between lawyer vs attorney, many attorneys refer to themselves as lawyers because it is the more widely understood term and is used more often in the pop culture vernacular.  

If you simply want legal advice, a lawyer with solid credentials and a diploma from a reputable law program should be able to do the job. Their services may be more competitively priced, but not always. Ultimately, however, lawyers have not passed the bar exam, and there is something to be said about the extra “stamp of approval” and the level of deep legal expertise required to pass the exam.  

If you are looking for a legal professional who knows the law and can represent you in court if need be, you should always seek the help of an attorney. Their website will typically note them as attorneys, even if some of the language and terminology on the site refers to them as lawyers. Attorneys should always be able to provide evidence of their licensure upon request. 

Are you interested in hiring an attorney to support you in your upcoming divorce, family mediation, or child custody case? Schedule an appointment at The Law Offices of Gerard Falzone. You’ll benefit from a licensed attorney-at-law who approaches family law with the groundedness and humility of a lawyer.