Do I Need A Restraining Order

do i need a restraining order

It isn’t always easy to know if filing a restraining order is your best way forward without support from law enforcement or legal professionals.  

In addition to consulting with a family law attorney, you can also schedule an appointment with the family law division of your country court, where anyone is entitled to free help and information. 

Things To Know About A Restraining Order 

The following explains the basics of a restraining order, how they are most commonly used, and whether or not you may need to file one. Keep in mind, however, that restraining orders move through the legal court system and are pieces of paper. If you or your children are physically at risk, consult with a family law professional to outline your safest, next steps. 

What is a restraining order? 

Ultimately, a restraining order is a legally binding order from the CA courts. In their words: 

A restraining order (also called a “protective order”) is a court order that can protect someone from being physically or sexually abused, threatened, stalked, or harassed. The person getting the restraining order is called the “protected person.” The person the restraining order is against is the “restrained person.” Sometimes, restraining orders include other “protected persons” like family or household members of the protected person. 

One of the problems with restraining orders is that paperwork doesn’t necessarily prevent another human from doing what they decide to do. In other words, filing a restraining order can’t keep your potential abuser from reaching out to you, harassing you, or from violating other sections of the order. When and if they do, however, your restraining order allows the police to take more instant action. 

There are two different types of restraining orders.  

Civil restraining order 

This is filed when an offender is not intimately or closely related to you. If the person harassing or threatening you is a neighbor, roommate, friend, family member more than two-degrees removed, like an aunt or uncle, a niece or nephew, cousins, and more distant relatives, or another person you are not closely related to. 

Domestic violence restraining order 

The second type of restraining order is dedicated to victims of domestic violence. This is the type we see most often in the family law arena. This one is filed by adults who are victimized by people with whom they share an intimate or close relationship, including:  

  • married or registered domestic partners 
  • divorced or separated 
  • dating or used to date 
  • living together or used to live together 
  • parents together of a child 
  • closely related (parent, child, brother, sister, grandmother, grandfather, in-law) 

Restraining orders, themselves, are divided into four different categories: 

  1. Emergency 
  2. Temporary 
  3. No-Contact 
  4. Domestic violence 

Emergency orders are often the first step, getting the ball rolling and putting some protection into place as the case moves forward. Temporary orders extend the emergency orders and bide you more time until the judge is able to hear your case and decide whether a more permanent restraining order is necessary. 

Do You Need A Restraining Order?

You may need to file a protective order if the person listed in the above, domestic violence restraining order category, has abused you or threatened to abuse you. Save any and all texts, emails, voicemails, or video footage that prove your case. Solid eyewitnesses (no hearsay) may also help your cause. 

The same is true if you are a parent in a child custody situation where you feel like the child’s other parent or someone living in the other parent’s household has been abusive, is threatening to abuse the child, or where domestic violence between other adults or members of the household is traumatizing your child. 

If you feel like your child is at risk, we recommend filing Emergency Child Custody and Visitation orders, as well as a restraining order, to keep your child(ren) safe. 

Along with all of the legal documents you need to file, make sure to have a professional, evidence-based case to present in court. This includes things like: 

  • Photos of personal damages or vandalism 
  • Signed affidavits by eyewitnesses 
  • Prior or current medical records and police reports 
  • Any records of threatening conversations, messages, photos, etc. 

Sadly, even though you are the victim here, you have to be your own strongest and most professional advocate when moving your case through the legal system if you cannot afford legal representation. 

Tips For Helping Police Uphold Your Restraining Order 

Police officers do not have instant access to any and all court orders. For that reason, it is essential that you keep your original court papers tucked in a safe and locked location.  

  • Make copies and keep them everywhere you may need access, including your home, your car glove compartment, your desk at work, your friends’ houses, etc.  
  • Report any and all violations. Any inconsistencies on your part (like texting or calling the person sometimes but then reporting them when they do the same) will compromise your case 
  • Try to find a safer place to live if the person you’ve filed against is too out of control or uncaring about the law to be affected by a restraining order 
  • Consistently call the police and file a report each and every time there is a violation to support your case with legitimate documentation 

We are so sorry to hear of any clients who find it necessary to file a protective order, and yet they are essential in helping to keep yourself or loved ones safe. Need help working through a complicated separation, divorce, child custody case that requires a restraining order of some kind? Work with the compassionate family law team here at the Law Offices of Gerard A. Falzone. (415) 482-7800.

Understanding Premarital Legal Counseling

understanding premarital legal counseling

The majority of the sentiments around marriage are focused on the romantic aspects of the partnership. Premarital legal counseling focuses on the legally-binding and financial aspects of what it means to get legally married.  

Scheduling a premarital counseling appointment to learn more about the most typical divorce triggers, the legal and tax ramifications for blending or separating current property, assets, and financial accounts help couples make more sound decisions before saying, “I do.” 

Premarital Legal Counseling: Educate & Empower Yourselves Before Tying the Knot 

Our legal strongly believes that while no one gets married with the expectation of getting divorced, everyone who gets married should know how their marriage will affect their legal rights and responsibilities. Couples who are informed, educated and empowered around how marriage affects their legal and financial future make better decisions. They enter the binding marital contracts with greater wisdom, and that paves the road for a successful marriage. 

At Your Legal Counseling Session, We’ll Focus On: 

Your current financial, property, and assets holdings  

Because California is a community property state, what’s yours is his/hers and what’s his/hers is yours – unless you’ve legally stated otherwise. In an era where individuals wait longer to get married, often as homeowners, business owners, with established savings accounts, etc., it makes sense to protect what is yours independently and merge what is created together as a couple.  

This is especially true if your partner has a challenging relationship with money, is in debt, or has bad credit (all worth discussing with a financial or legal professional before getting married!). 

This isn’t about who has more or who is not wanting to share; it’s more of a conversation of what’s best to keep legally out of the couplehood that can be shared as desired along the way. It also allows two loving, respectful, and forward-thinking adults to prepare for every situation the future may throw at them.  

If, in a worst-case scenario where divorce is potential – the way you want things shared, divided, or separated now is a much more logical, fair, and compassionate option than what might happen years or decades down the road when you are not able to hold such an unconditional perspective. 

Prenuptial agreements & other forms 

If one or both of you has a situation where prenuptial agreements make sense, your legal premarital counseling sessions are the space where you can draft those. I recommend prenuptial agreements for individuals or couples when: 

  • There’s a need to keep finances separate 
  • There are children from another partnership  
  • Funds need to be protected to care for aging or ill parents/relatives 
  • There are large income discrepancies (protects unreasonably high alimony payments down the road if you get divorced) 
  • One spouse has more debt or bad credit than another (always run complete credit checks before marrying someone) 
  • There are family properties, trust, or assets that should remain separate from community property laws 
  • You want to avoid drawn-out court proceedings if you get divorced 

If any of these apply to you, it’s worth having a conversation with your partner. Your premarital legal consultation gives you expert advice and recommendations to help you move forward in a way that feels clear and authentic for the two of you. 

Understand the common precursors or triggers for divorce 

It may sound crazy to talk about causes of divorce before you get married, but we have learned it makes good sound sense. As family law mediators and legal professionals, we have heard variations of the same stories over and over again. It’s heartbreaking to see individuals and couples who might have been able to remain in a healthy marriage if they’d known which red flags to look out for from the start. 

We recommend reading our post, The 9 Most Common Risk Factors for Divorce for a detailed description of the hows and whys. In the meantime, the following are the basic bullet points. Review them with your fiance and see if any of them resonate. The more work you can do with premarital counselors – therapeutic and/or legal – beforehand, the better equipped you’ll be to navigate them now or in the future. 

  • Affairs/infidelity 
  • Financial discrepancies/hardships 
  • Your parents were divorced 
  • Different drinking/recreational drug habits (if this is a red flag now, seek help before your marriage!) 
  • Getting married too young OR waiting too late 
  • Weddings that cost 20K or more 
  • Lower education levels or lower economic status 
  • You lived together before marriage 
  • Poor communication 
  • Having a child before or within the first year of marriage 

Don’t panic if any of these apply to you. These aren’t absolutes; they are simply some common roots of why people get divorced and are worth discussing and working through before you officially get married. 

The Law Offices of Gerard A Falzone has supported Alameda and Marin County couples through premarital legal counseling consultations for more than 30 years. Contact us to schedule yours. (415) 482-7800. 

5 Myths Of Divorce Litigation

5 myths of divorce litigation

They say there is no such thing as a simple or easy divorce, and we have to admit this is mostly true. However, when it comes to mediation vs. the courtroom, we can honestly say that the courtroom should be avoided at all costs whenever possible.  

As a Bay Area family lawyer with more than 40 years of experience, I’ve seen over and over again how these 5 myths of divorce litigation lead people to make the wrong decisions.

Divorce Litigation Myths

I want to share these myths so individuals and couples have the information they need to make the right choice for how to proceed with a divorce. 

Myth 1: You have to go to court to get divorced 

This is not true at all. Couples who are mostly amicable and are in complete agreement around how assets should be divided, child custody and visitation agreements, and so on can often move through the paperwork with the help of a paralegal or a single consultation in a lawyers office. Others are able to more calmly and fairly navigate their divorce through mediation channels

You only need to go to court if you are in dispute and cannot come to an agreement on a final divorce agreement/settlement. 

Myth 2: You don’t need a lawyer in the courtroom 

This is legally true, but it is absolutely one of the worst mistakes a person can make. While individuals are technically “allowed” to represent themselves in court, it is never a good idea. First and foremost, a single error on the legal paperwork, missing a filing deadline, etc., can give the upper hand to the other side and cause you to look irresponsible and unprofessional.  

The legal process is not as straightforward as it should be, and legalese on court documents can be overwhelming – even the most educated individuals. In my post, 8 Reasons You Shouldn’t Divorce Without A Lawyer, some of my top reasons include: 

  • You aren’t “fluent” in divorce law 
  • The copious amount of paperwork is challenging 
  • Your version of equal may not be as equal as you think 
  • It’s an emotional roller coaster 

The emotional point is not one to overlook. I’ve had clients who cry every time in my office appear as knife-edged stoics in court, and I’ve had men who never showed any signs of emotional regret fall apart in the middle of divorce litigation proceedings. You do not know what you will feel or experience until you are in the courtroom, which means you need a legal professional standing by your side to keep things professional, organized, and moving forward. 

Myth 3: You’ll come out on top because your spouse cheated on you 

California is a no-fault divorce state. There are only two grounds by which residents of California can file for divorce. The first is “irreconcilable differences that have caused an irremediable breakdown of the marriage,” and the second is, “a permanent legal incapacity to make decisions.” In almost all cases, divorces are filed under the former, “irreconcilable differences…” 

This means that shy of any illegal activities (domestic abuse, child abuse, etc.), the judge cannot factor your spouse’s infidelity or other unsavory behaviors into the proceedings. The fact that your spouse had an affair does not give you a leg up in any way. This is why working with a lawyer is the safest way to ensure you keep things in the black-and-white realm of the divorce litigation arena, even when you are understandably floundering in the shades of gray. 

That said, your spouse’s poor decision making in regards to alcoholism, drug use, a revolving door of sexual partners in the home while your child(ren) is present, etc., can affect the terms of your child custody and visitation agreement. As a result, your lawyer can help you attain the safest and most healthy outcomes for your children and the family in ways that representing yourself may not achieve. 

Myth 4: The wife always gets alimony 

This is not true at all anymore. In fact, in marriages where both parties are capable wage earners, without any major discrepancies in income, alimony is a far less common court order in California these days.  

If there are major discrepancies or the husband has been the at-home care provider for the family, there is a good chance that the husband will be paid alimony for a set period of time until he has time to find suitable employment and the children have time to adjust. Husbands who aren’t aware of that often make the mistake of not pursuing it, which makes it worth your while to at least consult with an attorney before you head into the courtroom. 

Myth 5: Everything will be split 50/50 or by who is on title 

This is not true either. People often confuse the idea that California is a “community property” state with the idea that everything is split 50/50. They also mistakenly believe that if their name is on the title of a car, toy, property, etc., then it is theirs. Both of these beliefs are false.  

Community property only applies to assets that were acquired during the marriage but excludes anything that was an inheritance or gift. So, your husband’s family dining room table is his if he wants it, even if you’ve used it throughout your entire marriage. If your wife’s name is on a car title, but the car was purchased during the marriage – it is viewed as joint property from the court’s perspective. Equally available to be divided are retirement accounts, investments, financial accounts, and any debts you’ve accumulated – including credit card debt charged on your spouse’s card.  

Also, your spouse could have hidden assets or assets s/he’s secretly squirreled away to hide them from you. Legal experts have a network of professionals to track these things down and bring them to light. Your courtroom litigated divorce could shine a light on things you never knew about, whereas a family law consultation and mediation sessions can ensure everything is brought to the table and fairly distributed with far less stress and without any of the drama. 

Let Us Help You

Are you thinking divorce litigation in the courtroom is your only option? Give me a call at the Law Offices of Gerard A. Falzone, (510) 521-9500 or (415) 482-7800 for a free phone consultation. We work for our clients every day to minimize the financial, emotional, and energetic costs associated with divorce proceedings, and we’ll do the same for you. 

How To Deal With Same-Sex Divorce In California

how to deal with same-sex divorce in california

People assume that because same-sex marriage is legal in Calfornia, same-sex couples have the same issues as their heterosexual counterparts when it comes to divorce. This is not the case. There are few ways in which dealing with same-sex divorce in CA requires proactive planning and preparation.  

These tips will also help you if you are ending a legal domestic partnership. 

What To Know About Same-Sex Divorce In California 

Here are some of the things that can help you prepare for your divorce when both parties are the same sex. 

Are you legally married? Or are you domestic partners? 

Longtime couples often forget that their well-established legal domestic partnership, or that under-the-radar “marriage ceremony” in a friends’ backyard (pre-legalization of same-sex marriage), are not always viewed the same as established legal marriages. 

If you actually established your legal domestic partnership (LDP) with the state of California, the state considers you legally married. It is worth locating and making copies of all official documentation so you have proof of your partnership/marriage status as you move forward.  

If you only established your domestic partnership with your company as a way to reap medical or retirement benefits, or it was recognized by city/county/or other entities – but your legal domestic partnership was never legalized by the state of CA – your dissolution of assets is not considered a legal divorce.  

It’s always best to consult a divorce attorney and bring any official/legal documentation pertaining to your domestic partnership and/or marriage for the attorney’s review. 

The length of time you’ve been together can be a factor in same-sex divorce 

The length of time a couple has been married can impact two important factors. The first is the amount of alimony to be paid (if it is to be paid at all). Second, the length of time you have been married also determines which assets fall into the community property pot, and which are retained by the individual (called “separate property”).  

Because many same-sex couples were together and cohabitating for years or even decades before same-sex marriage was legalized back in 2008. The time you cohabitate prior to your legal marriage or DLP date may be taken into consideration when it comes to the division of assets or benefits, as long as the two of you can agree to the exact length of time you’ve been together. 

Legal parentage is not automatically assumed 

Unless both of you have already moved through the family legal system to establish legal parental rights to your child(ren) your parenthood is not “assumed” during the divorce. In the case of a child that is born into a heterosexual marriage, the courts assume both parents are the legal parents. That is not the case for same-sex marriages. 

Same-sex couples who go through fertility treatments or other means to have a child should take the steps necessary to legally establish parental rights. If you are not legally recognized as your child(ren)’s parent, you should take those steps ASAP. Clearly establishing your parental rights is essential before you can move forward with legal custody and visitation agreements.  

Keep in mind that divorce is exceptionally hard on children, and can negatively impact their emotional wellbeing as well as their physical health, sense of self-worth, and divorce is known to negatively affect their academic pursuits. For this reason, we highly recommend working with a family law mediator to make the process as calm, compassionate, and smooth as possible for everyone involved. 

We also recommend reading some of our blog posts pertaining to divorce and child custody, including How to Prepare for Child Custody MediationHow to Talk With Your Kids About Divorce, and, Tips for Co-Parenting After a Divorce

Dividing retirement assets 

There are still some lasting vestiges from the Defense of Marriages Act. As a result, you and your spouse may need to take extra-legal steps to divide your retirement assets (typically considered “community property” from your marriage date or the agreed-upon date as per #2).  

The IRS states: 

“If [a retirement plan’s] terms are inconsistent with [United States v.] Windsor or Revenue Ruling 2013-17, a retirement plan must . . . [be] amended to comply with Windsor and Revenue Ruling 2013-17. For example, a plan must be amended if it defines ‘spouse’ by reference to section 3 of DOMA, or only as a person of the opposite sex.” 

An experienced divorce attorney will work with you to ensure this is taken care of as per your divorce agreement and settlement. 

Work with a mediator first 

The divorce process is painful and stressful, even in the “best” of situations. Family law mediators work with couples and their families to mitigate tension, learn about the typical court process, and to save thousands of dollars in unnecessary legal and court fees. 

We always recommend that clients work with us through a mediation process first, only hiring us as divorce attorneys if you are not able to come to an agreement via mediation. Read, The 10 Most Common Divorce Mediation Questions & Answers to learn more. 

Schedule A Consultation

Would you like to ensure everyone’s rights are respected and attended to during your same-sex divorce in California? Schedule a consultation with me here at the Law Offices of Gerard A. Falzone

9 Most Common Risk Factors For Divorce

9 most common risk factors for divorce

Researchers spend a great deal of time evaluating what makes things work – and what doesn’t. When it comes to the dissolution of marriages, psychologists and legal professionals have determined that there are universally common risk factors for divorce.  

Knowing what they are, and remaining vigilant when one or more rears its head in your own marriage or domestic partnership can ensure you get the help and support you need before things fall apart.  

Are You Experiencing Any of the 9 Most Common Red Flags in Your Marriage? 

The following are nine of the most common risk factors for divorce. If you are already past the point of no return, we highly recommend consulting a family law specialist who focuses on mediation, which can save you thousands of dollars and help to create a smoother transition for you and your children. 

Extramarital affair (lack of commitment) 

By and large, the two most likely reasons for divorce are cheating and/or a lack of commitment by one or the other spouses. These two reasons alone account for roughly 60% to 70% of all divorces. 

Your parents got divorced 

If you were raised in a household with parents who got divorced, you are more likely to get divorced yourself. And, of course, the same is true for your spouse. Interestingly, it is not necessarily because your parents provided a model of divorce.  

Researchers who studied more than 20,000 adults who had been adopted as children found that the child’s likelihood of getting divorced was linked more closely to their biological parent’s models than their adoptive parent’s models. They believe it is due to genetically linked personality traits such as impulsivity and neuroticism (tendencies towards anxiety, self-doubt, depression, and other negative feelings. 

Different drinking habits 

If you are a big drinker, and your spouse is not, it can cause problems. The University of Buffalo, NY reviewed couples who were not heavy drinkers, couples who were both heavy drinkers, and couples where either the wife or the husband was a heavy drinker. Those with mismatched drinking habits, 45% to 55% got divorced before their ninth anniversary, compared with a 35% divorce rate for couples who had the same drinking habits/patterns. 

Getting married too young OR waiting too late 

Couples who marry in their late teens and early 20s, as well as those who wait until after age 32, are more likely to get divorced. 

You spent $20,000 or more on your wedding 

A 2015 study out of Emory University showed a direct correlation between the money spent on a wedding and a couple’s divorce rate. Those who spent $20,000 or more were 3.5 times more likely to get divorced. On the flip-side of the wedding coins, couples who spent $1000 or less are the least likely to end their marriage. 

Less income (as well as less education) 

We’re going to put these two factors together. Studies consistently show that couples who have at least a four-year degree are more likely to stay married. They also show that the lower the income or the more money problems a couple have, the more likely they are to split up. Since education and income are linked, it makes sense that a lower level of education and a lower income are both risk factors. 

You lived together before you were married 

This one may seem surprising since you would think the familiarity and comfort level of already living together before marriage would eradicate any of the initial hurdles of moving in after marriage. But, the reality is that studies have consistently found couples who lived together before they were married have higher divorce rates.  

We aren’t really sure why this is the case, but researchers suspect it might be that those who were raised without strong religious connections are more likely to live together before tying the knot, and being raised without a religious background is also a risk factor for divorce. 

Poor communication is another risk factor for divorce

These two go hand-in-hand. Individuals who do not have the skills to express their feelings verbally, or who are not good communicators are more likely to either argue and cause conflict, or shut-down and not deal with the emotional challenges and issues that arise in a marriage or long-term partnership. So, when communication skills are poor, arguing and conflict escalates, and one or both individuals are more likely to want a divorce. 

Keep in mind that combative partnerships are detrimental to everyone involved, including children. Consulting with a divorce mediator can be the best way to work through the issues together and with as little harm done to the children as possible. 

Have a child before marriage (or within the first year of marriage) 

Couples who got married after they got pregnant or after the birth of their baby, as well as couples who have a baby within the first year of marriage, are more likely to get divorced than those who marry first and wait longer to bring children into the mix.  

We’re Here To Help

Are you struggling to keep your marriage together? A pre-divorce consultation with a family lawyer can be a helpful way to evaluate your situation and determine which next steps make the most sense for you. Contact the Law Offices of Gerald A. Falzone to learn more. 

How And When To Obtain Emergency Child Custody And Visitation Orders

how and when to obtain emergency child custody and visitation

Child custody and visitation orders are legal documents that stand strong in the eyes of the family law court. That said, there are situations when parents or potential legal guardians can apply for and obtain emergency child custody and visitation orders.  

Legally and technically speaking, it is illegal to violate the court’s child custody and visitation orders unless and until a judge has ordered otherwise. Of course, if a child’s physical and/or emotional wellbeing is seriously in jeopardy, California family law courts often make exceptions while the case is moving through the courts.  

If you are concerned that the custodial parent is jeopardizing the child’s safety or wellbeing, or is a threat to him/herself and others, contact a local family law attorney ASAP to learn more about your options and to create a plan of action. 

Grounds For Obtaining Emergency Child Custody And Visitation Orders 

Domestic abuse 

If your child expresses the s/he has witnessed or overheard domestic abuse in the form of physical or verbal/emotional abuse, you can apply for an emergency order. This includes both scenarios where a custodial parent is either the abuser OR the abused. 

In either case, the court will be inclined to suspend unsupervised visitation or child custody in an abusive household while social workers assess the situation and render their observations and conclusions. In the meantime, if the child desires it, the courts may require supervised visitations with the co-parent, with which you must legally comply. 

The child is a victim of abuse or their custodial parent is charged with abuse 

If a child reports any type of abuse – physical, sexual, verbal – in the custodial household, it is grounds for getting an emergency child custody and visitation order. If the perpetrator is the parent, the child is typically removed until the investigation is complete. If the offender is someone other than the parent, the courts might agree to remove the child from that household until they have done further research, but they might not if the custodial parent is 100% cooperative and agrees to protect the child from further contact with the suspected perpetrator. 

For example, in cases where the reported abuse wasn’t done by the custodial parent, the courts may not grant the emergency order if the custodial parent agrees to remove the potential offender out of the house or to prevent the child from coming in contact with the suspected offender (such as a neighbor, relative, or babysitter). In this case, the parent’s word might be enough and the court will follow through on the case.  

If the suspected perpetrator is not a member of the household, and the child expresses that s/he feels safe with the parent as long as s/he’s kept away from the suspected abuser, the courts will probably uphold the current custody/visitation order with specific promises on the custodial parent’s behalf. 

A parent threatens to take a child away or withhold visitation 

As mentioned above, the standing court order is always the “legally binding agreement” between parents and the courts. If, however, a parent threatens to take a child away, to not return a child on the date specified, or to remove the child across state lines without your consent, you can apply for an emergency order. 

As always, this is to protect the child but not to support tension or animosity between exes. So, if the child’s custodial parent wants to take the child across the state/country borders to visit family or for normal vacation, it’s typically best for you to agree. And, your application to the court may backfire on you if the judge feels it had more to do with your ex than supporting your child’s health and safety. It is only when evidence looks like a parent is trying to take a child away or play manipulative games that the court would issue the emergency order. 

One parent is refusing to agree to a necessary medical procedure 

If your child requires a necessary medical procedure and one parent won’t agree (typically out of fear of the results), the courts may grant a temporary, emergency legal child custody agreement. This allows the parent supporting the medical procedure to make the decisions in the best interest of the child. In that case, California courts call in social workers and legal professionals who analyze all of the information, including medical records and the doctors’ input/recommendations, to form an opinion that is shared with the court.  

Co-parenting during COVID-19 sheltering-in-place may be grounds for emergency child custody and visitation orders

Most recently, we have had calls from parents who are afraid their co-parent is not following COVID-19 social distancing and is putting their child at risk for contracting the virus. This is newly chartered terrain, but there may be grounds for obtaining an emergency child custody or visitation order in this case. The cases moving through the courts today will help to set the stage for future years if/when we’ll need to shelter in place to avoid the spread of an epidemic. Again, consulting with a family law professional is your best resource. 

We’re Here To Help You When You Need It

Do you need swift support and counsel to move forward with the application for an emergency child custody or visitation order? Contact us here at the Law Office of Gerald A. Falzone and we’ll do whatever we can to facilitate your case as swiftly as possible. 

Co-Parenting While Sheltering In Place

co-parenting while sheltering in place

Co-parenting while sheltering in place puts multi-household children and their families in a tight spot. On one hand, there is the desire to honor all of the sheltering in place stipulations, which prohibit visiting others’ houses or social gatherings of any kind. However, it does allow traveling to and from your home to other locations for “essential” reasons, and honoring the orders set forth in your child custody agreement is absolutely “essential” in the court’s eyes. 

Your Child Custody Order Still Reigns Supreme 

While it’s understandable that you or your spouse may have concerns about a child traveling from house to house, and the risk of potentially catching or spreading COVID-19, your child custody order still reigns supreme unless the parents have a written agreement that states otherwise. 

Review your child custody order

If you worked with an attorney or family law mediator to draft your child custody order, there may be specific clauses you’ve forgotten about along the way. This may include information such as: 

Does illness or medical emergency alter the co-parenting while sheltering in place? 

Sometimes, child custody orders dictate that an illness, serious injury, or other medical emergency alters the plan. Nolo.com writes, “If your child has asthma, is immunocompromised/suppressed, or has another underlying medical condition that makes your child more susceptible to COVID-19 or resulting respiratory complications, you should speak to your child’s pediatrician for advice and talk to your ex about how to reduce the risk to your child in both homes.”  

  • Perhaps a child remains longer with one parent or another to provide a greater level of stability during healing. The other parent will be fully entitled to a make-up time later on and can use Zoom or other video-streaming, phone calls, online games, letters, texts, email, and other digital options to remain closely engaged with his/her child. 
  • If your child is diagnosed with coronavirus, you may have to disclose that to the other parent or you may not – it’s probably in the agreement. 
  • If you or the co-parent are diagnosed with a contagious, life-threatening illness (such as COVID-19) it could be considered negligence to keep that information from your child’s other parent or to have your child in your home again until you recover are test negative for the virus or contagion. 

Your child custody agreement is your primary resource. But, of course, it is only a template. It cannot answer every question or dilemma that may arise throughout the course of life’s unpredictability. For that, you rely on (hopefully) healthy communication skills.  

Visit 7 Tips For Positive Communication with Your Ex to help set the stage for open, honest, and heartfelt conversations.  

Create An Agreement For Co-Parenting While Sheltering In Place

If you and your child’s other parent are more or less in agreement, see if you can draft a simple COVID-19 Co-Parenting Agreement that prioritizes overall health and wellbeing – starting with the child’s and then including each of the parents and other household members. 

Have an honest conversation around: 

  • Your ability to honor shelter-in-place orders. If both households are vigilantly honoring the tenets of the Bay Area’s shelter in place orders, there’s no reason a child can safely travel between homes (always washing in and out, of course). 
  • Are one of you at higher risk for contracting COVID than another? Some of my co-parenting clients work in the ICU or healthcare industries, or in supermarkets where they feel especially exposed. In these cases, some of them have established it’s better to have the child remain 100% with the other parent and have gotten creative with visitation. Others have established their own honoring of protective gear and sanitization routines are enough to protect them and their child(ren). 
  • Is the child expressing a wish to remain with one parent over the other right now? Some households are more tense, anxious, and afraid right now and can spill right over onto the children. If your household climate, or your ex’s, is agitating your child or seems detrimental to his/her sense of safety, happiness, and security, s/he might express a desire to spend more time with one parent over the other. In this case, you can make a temporary agreement to accommodate the child’s understandable request.  
  • Will there be changes to child support/alimony during this time? While you can apply for a modification to any child support or alimony payments as a result of COVID-related financial hardship, you’re still beholden to the original agreement unless the two of you have agreed to temporary changes. 

That said, any disagreement between the parents needs to be resolved ASAP with help from a family law specialist or the judge. In the meantime, the existing order or agreements remain in place. If you truly feel your child’s health is at risk, you and/or your lawyer may be able to obtain an emergency child custody/visitation order. Click Here to learn more about that. 

Get Your Changes in Writing 

If you decide to create a temporary COVID-19 Co-Parenting agreement, make sure to get it in writing. Even a clearly worded, detailed email that states the new tenets of the agreement – and the recipients have written acknowledgment and agreement of those changes – may be enough to hold up in court if a dispute arose afterward. However, I highly recommend working with a family law professional, even if it’s a one-time consultation with a mediator, to keep your child custody and visitation agreement clear and legally sound. 

The agreement can always include that either party retains the right to revert back to the original agreement, or to amend the temporary version, by communicating in writing to the other parent. You may also want to clarify that the temporary agreement is immediately null and void and that both parties will revert back to the legal co-parenting agreement as soon as sheltering in place restrictions are reduced or eliminated. 

Need Professional, Third-Party Support? 

Would you benefit from third-party support from a family law professional as you navigate co-parenting while sheltering in place during COVID-19? Contact us here at the Law Office of Gerald A. Falzone. I work with couples to calmly and compassionately make decisions that always prioritize the child’s and family’s well being.

Is Alimony Modification Possible If I’m Unemployed?

is alimony modification possible if im unemployed

If you make court-ordered alimony (spousal support) payments, you must maintain the payment schedule whether or not you are unemployed. Even if you and your former partner have a verbal agreement, and s/he agrees to take a reduced payment, you must continue making the payment in full until a new court order has been issued.  

The California Family Law Courts state: 

Unless the judge signs a new court order, the existing spousal or partner support amount and order will not be changed. So, to protect yourself, even if you have a verbal agreement with your spouse/domestic partner to change the spousal or partner support amount, put it in writing and have a judge sign it. That way you have a current spousal or partner support order that reflects the current amount. 

A court order translates to a legal obligation, and failure to meet that obligation can have severe consequences (see below). Continue making full spousal support payments until a family law court orders an alimony modification or otherwise. 

As with child support, the court expects you to pay the full amount of your court-ordered payment whether you are working or not. In fact, family law courts typically view unemployment as a temporary situation. They view your education, training, prior work history, the average of your last 12-months of earning, and other pertinent details to establish your general earning potential.  

According to the Bureau of Labor Statistics, most unemployed adults find a new job in about five to 15 weeks. As a result, the courts consider unemployment to be a short-term situation. If you are unemployed, the courts expect that you will be employed shortly as a result of your diligent job hunting attempts, fueled in part by your legally enforced alimony payment obligations.  

Even so, you should ask for a spousal support modification sooner rather than later in case a modification lowering or waiving your payments will be granted. 

Applying For An Alimony Modification May Help 

If you are actively looking for a job and have not found one, you can apply for an alimony modification of payment. This is also the case if your unemployment is due to something more serious than a typical job layoff. For example, if you are recently disabled or facing a diagnosis of terminal or chronic illness, you may be eligible for a spousal support payment modification. 

We recommend working with a family law attorney who can provide you with legally sound advice while facilitating the payment modification process.  

In California, you begin the process by completing and filing the following forms, available on the courts.ca.gov website

  • Request for Order (Form FL-300 “https://www.courts.ca.gov/documents/fl300.pdf”). You can use the Information Sheet for Request for Order (Form FL-300-INFO “https://www.courts.ca.gov/documents/fl300info.pdf”) for information to fill out FL-300
  • Income and Expense Declaration (Form FL-150 “https://www.courts.ca.gov/documents/fl150.pdf”). 
  • If you are changing a spousal or partner support order made as part of your divorce or legal separation judgment, or after the judgment, it may be helpful for you to use the Spousal or Partner Support Declaration Attachment (Form FL-157 “https://www.courts.ca.gov/documents/fl157.pdf”). This form asks you to provide the information the judge will need to make a decision in your case, addressing all the factors the law tells the judge to consider when making decisions about long-term spousal or partner support. This form is optional, but even if you do not use it, you may want to take a look at it to make sure you understand what you will have to prove to the judge. 
  • Also, use a Declaration (Form MC-030 “https://www.courts.ca.gov/documents/mc030.pdf”) or an Attached Declaration (Form MC-031 “https://www.courts.ca.gov/documents/mc031.pdf”) if you need more space to explain why you believe a change in spousal or partner support is needed. 

Again, we recommend having those forms reviewed by a family law facilitator. Even a one-time payment for their time will ensure the forms are filled out completely and correctly. Filing incomplete forms, or forms containing errors can result in the forms being kicked back to you – delaying the court date and potentially modified payment reductions. Finally, don’t forget to make two copies of the forms, one for you and one for your former spouse/partner.  

Once the forms are completed and filed, you’ll move forward with additional steps for alimony modification, including: 

  1. Getting an official court date 
  2. Serving your former spouse or partner with the relevant forms 
  3. Filing proof that your former spouse/partner has been served 
  4. Attending your court hearing 

Penalties For Failing To Pay Court-Ordered Spousal Support 

The courts have a very clear format for penalizing individuals who are delinquent in paying alimony or child support payments, including reduced or missed payments. This includes: 

  • Wage garnishment 
  • Garnishment of tax returns 
  • Repayment plans with 10% interest tacked on (paid to your former spouse/partner) 
  • Suspension of your driver’s license 
  • Jail time 

Again, a one-time consultation with a family law attorney can make all the difference in ensuring spousal support payments are fairly based on your current employment status and earnings, and to facilitate the modification process. 

Contact the Law Offices of Gerald Falzone to schedule a free, 30-minute consultation or to schedule an appointment to discuss how your current unemployment situation could lower or waive alimony obligations.

Effects Of Divorce On Child School Performance

effects of divorce on child school performance

It’s no mystery that children suffer from the effects of divorce when parents separate and suffering can hurt a child’s school performance, social interactions, and a sense of self.  

It is not easy to navigate the role of “adult getting divorced” and “parent,” but the more you can do to positively support your child’s process and provide the mental/emotional support they need, the better off they will be at school, at home, and in the world-at-large. 

FYI: Children are not alone. Divorce can also impact a parent’s work performance. Read The Effects of Divorce on Work Performance to learn more about how to support yourself through the process as well. 

Statistics Around Divorce And Its Impact On School Performance 

Some studies have shown that students with divorced parents: 

  • Have lower overall GPAs  
  • Are more likely to have to repeat a grade 
  • Have lower comprehension scores 
  • More likely to have behavior and impulsivity issues at school 
  • Are less likely to attend/graduate college 

While that sounds bleak, more recent and comprehensive studies indicate there’s more to it than that. Statistics from a recent UCLA study on divorce and its impact on school performance took a bigger-picture view.  

Researchers divided families into three different groups: couples unlikely to divorce, couples more likely to get a divorce, and those who fell in the middle.  

  • In families in the “unlikely to divorce” group, children of divorced parents were 6 percent less likely than children of non-divorced parents to graduate from high school and 15 percent less likely to complete college 
  • For children in the “likely to divorce” group, there was virtually no impact on their likelihood to graduate from high school or college if their parents’ marriage ended. The paper noted that children in that group already have lower levels of academic achievement — so a divorce generally didn’t make things better or worse for them. 

Ultimately, it seems like socio-economic stability, and emotionally healthy home has more to do with academic success than divorce rates. While divorce often causes temporary or semi-long term ripples in a child’s behavior or academic progress, an emotionally healthy and supportive household allows children to regain their traction. 

The Psychological Effects Of Divorce On Children 

It’s also important to remember that a decline in academics or escalating behaviors at school is a normal response to emotional upset.  

Your honest communication and preparation are essential 

According to verywellfamily.com: 

Children from divorced families dont always perform as well academically. However, a study published in 2019 suggested kids from divorced families tended to have trouble with school if the divorce was unexpected, whereas children from families where divorce was likely didn’t have the same outcome. 

Read 5 Tips For Helping Children Cope With a Divorce for more information on how to support your children (and yourself) through the process. 

Emotional impacts affect the ability to concentrate or focus 

The emotional impacts of divorce are like a continued ripple effect. There are so many things going on at the same time. In addition to losing the security of two parents who live together and a familiar home landscape, many children must move to a new home, change schools, make new friends, or change sports teams – all amid their personal, all-time low.  

Children often feel they’re somehow to blame for the divorce, or that if they were “good enough” the parent who has moved out or changed houses would have stayed, etc. etc. All of this diminishes their ability – and their will – to focus on academics.  

Negative feelings are painful to hold, and they’re difficult to express, which means they can come out in detrimental ways. 

Children may outwardly resent and punish you 

If academics are a household value, your children may also use academic decline, disruptive behavior at school, or negative peer interactions to punish you. This is a call for help, and any notable decline in academics, social isolation, or atypical behavior issues at school should be handled with care and close attention if it doesn’t resolve in a reasonable amount of time. 

Informing the school can instrumentally help 

Telling the teacher, administration, and counselor can be instrumental in helping your child. While you may feel as if the information is private or embarrassing, the faculty’s awareness of your child’s experience can exponentially support your child as s/he adjusts to the new version of normal. Together, you can collaborate on the best ways to support the child, tailored to his/her personality and needs and the school may be able to offer counseling support as needed, as well as space to take breaks or vent. 

Contact the Law Offices of Gerald Falzone to work with a Bay Area family law attorney who specializes in mediation and whole-family divorce support to improve the family’s emotional wellbeing. 

Can I Have My Child Transfer Schools During A Divorce?

can i have my child transfer schools during a divorce

The parameters around whether you can have your child transfer schools during a divorce are governed by the current custody agreement – temporary or legally -, a court or judge’s decision and the emotional wellbeing of your child.  

While we can provide general information about transferring a child’s school during a divorce, we recommend consulting with a family law attorney if you haven’t already before making any final decisions.  

Will Your Child Transfer Schools During Your Divorce?

If you transfer your child without respect for California child custody laws, you may jeopardize your own custody status in the eyes of the law. 

What is best for your child’s mental and emotional wellbeing? 

First and foremost, your child’s mental and emotional wellbeing should be the top priority before making the decision to change your child’s school. Divorce is extremely hard on children, disrupting their sense of self, their security, and their happiness. As the secure and familiar world they know begins to splinter and re-build around them through the divorce, the stability of the same school and friends can provide a healthy anchor while children slowly adjust to their new life with divorced parents and a divided home life. 

If you haven’t already, consider meeting with a family law mediator to negotiate child custody agreements, as well as decisions around whether or not to change a child’s school. This can save you thousands of dollars in legal fees, and neutral mediators are experienced at smoothing over the rough emotions that can get in the way of making the healthiest decisions for your child. 

Read How to Prepare for Child Custody Mediation for more on that topic. 

Is the decision a mutual one between you and your spouse? 

If the decision is mutual, there should be no issue. That said it is a good idea to get your mutual consent in writing and sign it. That way, if negative feelings or contentious disagreements arise in the future, you have proof that your ex-spouse supported your decision. 

Do you have sole or joint legal custody? 

If you have sole legal custody, you can change your child’s school without permission from your ex. If your spouse has visitation rights or partial/joint physical custody, you should notify him/her about your decision so s/he can’t say that you’re trying to keep the child from him/her by withholding information about where your child is, needs to be picked up for visitation, etc. 

If you have joint legal custody, you cannot transfer your child to another school without your ex-spouse’s consent OR a judge grants you permission. 

Is the new school a reasonable distance from your ex’s home or place of business? 

If you have joint physical and legal custody, it makes sense that your child’s school should be a reasonable distance from your home, and your ex’s. Transportation to and from visitation is a 50/50 endeavor between parents. If your chosen school is notably further from your ex’s home or work than the current school, s/he has a right to oppose it. In that case, you may need to go to court. 

Will your child transfer schools and be happy? 

How does your child feel about the transfer? Hopefully, your child’s feelings are seriously considered by you and your ex-spouse. Keep in mind that if your child does not want to change schools, and your ex opposes you, the judge may not side in your favor if you wind up in court. 

Is transferring your child’s school worth a trip to the courtroom? 

If you have joint legal custody (even if you have sole physical custody), you cannot make the decision to transfer your child’s school until your ex-spouse agrees or the court orders it so. If your ex is not willing to budge on his/her stance, you will need to go to court and let the judge decide. This can cost thousands of dollars if lawyers have to be involved, and there is a chance the judge will want to hear from the child, which can be traumatic for some children. 

While younger children’s testimony is sometimes requested, California Family Code 3042 states that children who are 14 years or older, and who can clearly express their feelings or preferences can have a say in where they live and where they go to school. If your child is 14-years old or more, the odds are the judge will want to know how s/he feels about the idea of transferring. While judges do not automatically base their decision on older children’s feelings, they do take the child’s testimony into consideration to establish whether your reasoning justifies the switch. 

We’re Happy To Serve You

Contact me here at Falzone Law, 415-582-7800, and schedule a free, consultation. In addition to reasonable hourly fees, I am happy to serve as a mediator to keep you out of the courtroom and facilitate a more streamlined divorce and child custody agreement process.