How Are Investments Divided In A Divorce

Dividing assets is one of the most challenging and laborious parts of going through a divorce, especially if couples aren’t in agreement about who gets what. As a community property state, California has simplified the process somewhat, assigning 50% of the assets accumulated during the marriage to each spouse.

However, that process becomes more convoluted if portions of those investments belonged to one or the other party before the marriage, the money was part of an inheritance, there was a prenuptial agreement in place protecting some portion of the investments, or when one of the spouses holds assets as part of their small or medium-sized business.

What To Expect: Dividing Investment Assets in a Divorce

We highly recommend meeting with a family law mediator if you are in any disagreement about how to divide investment assets in your divorce. In a single consultation or two, we will review your assets and explain how a judge is most likely to see the situation. This saves couples thousands of dollars and keeps the energy more focused in a neutral – rather than contentious or escalated – space.

In the meantime, here are general “rules” around how investments are divided in a divorce:

Are you legally separated?

If the splitting of assets is a charged topic, we recommend filing a legal separation with the courts as you navigate the divorce process. Without that clear line between “married” and legally separated/divorced, your spouse is entitled to the money coming in during the interim. That means that while you may have moved out, or your spouse did, they may still be entitled to your recent big bonus or lottery winnings as part of the community property laws. Your legal separation is a smart move to beginning the work of separating assets.

Investments divided prior to marriage

Any investments that were yours before the marriage are still considered yours and not part of the community property pot. If those funds were merged into a joint account along the way, you are typically entitled to your original amount, which will be subtracted from the community property portions. The courts use specific algorithms to work out interest gained/lost during that time to keep it equitable between both parties.

Inheritance money or financial gifts

Did you add money you inherited into the investment portfolio? Have you received specific financial gifts during your marriage? That money is also protected from the “community property” clause. Once you’ve shown proof of where the money originated, the courts consider it yours.

Retirement funds

Any retirement funds earned prior to your marriage remain yours. However, all pension, IRA, 401K, and other retirement funds earned during the marriage are split 50/50. In some cases, the amounts are so similar between each person, couples decide to keep their own retirement accounts without splitting anything, and that decision is legally recorded in the divorce agreement. Otherwise, the courts enforce the 50% split of each account using a Qualified Domestic Relations Order (QDRO). The order is issued to the administrator of the retirement account, who sets up accurate partial payments to each spouse when they retire, ensuring you don’t have to suffer the tax hit that would ensue if you split the accounts and drew the money out now.

Business-related Investments

Did you start a business during your marriage? There is a chance your spouse is entitled to the business investments or assets as well, depending on how you set things up. If s/he was largely involved in starting it or worked to support you as you started it, their portion of the business could be significant. Meet with a business or family law specialist ASAP to learn more about what to expect during a divorce.

Negotiating Property & Other Assets Instead of Dividing Investments

You also have the option to forgo dividing assets and swapping them for property or other liquid assets instead. Here in the Bay Area, where real estate investments arguably perform far better than the typical investment portfolio, couples often give up their portion of certain investments or retirement funds in order to keep the house and a car.

Again, using specialized algorithms, family lawyers or mediators can help you determine the fairest way to split your assets without having to file QDROs for every retirement or investment account you have.

Have Questions Regarding Assets And Investments Divided Fairly?

Are you struggling to agree on how to fairly divide your joint investments and community property assets? The Law Offices of Gerard A. Falzone are prepared to stand by you every step of the way. While we prioritize mediation whenever possible, we are also willing to go to bat for you in court to ensure you get your fair share of marital investments and assets. Contact us to schedule a free phone consultation and learn more about the process. (415) 482-7800.

Do Stepparents Have Visitation Rights?

Most of the time, couples think about child custody agreements for biological children resulting from a dissolving marriage. However, in a culture where more than 50% of American children of divorce experience a remarriage of one or both parents, family law specialists frequently handle stepparent visitation cases as well.

Unfortunately, regardless of how long a stepparent has been in a child’s life or the bond they may share, current California law does not automatically grant stepparent visitation rights when a couple divorces – or if the biological parent dies. This is why we recommend blended families work with family law specialists to ensure the child’s wellbeing is always a top priority in any divorce.

Securing Visitation Rights As A Stepparent

Here are the legal steps you can take, whether you are a stepparent about to divorce a partner with children, or you’re in the midst of a divorce and want your children to retain a relationship with their stepparent after the divorce.

Have honest conversations with your children

If your children are old enough, it’s essential to discuss the situation with them in age-appropriate ways. You may want to work with a family counselor or therapist to facilitate this process. Children are inherently wired to protect their parents’ emotional well-being and may be afraid to let a mom or dad know they want to remain in contact with their step-parent.

In most cases, step-parents interested in maintaining a relationship with former stepchildren have developed solid and reciprocal bonds. Creating a visitation schedule is a healthy way to protect a child’s emotional wellbeing through the divorce proceedings and beyond.

Make co-parenting a priority

If the children’s other biological parent is still in the picture, you are not involved in a co-parenting triangle. Co-parenting isn’t easy, but every study ever done on children and emotional health during/after a divorce focuses on the importance of healthy co-parenting. Create co-parenting agreements between all relevant parties and use it as something you can all come back to remain on the same page with parenting, regardless of the adults’ water under the bridge.

Consult with a family law mediator

Using a family law mediator can exponentially decrease the stress and financial drain common in a divorce. This is especially true if there are children in the picture. Your divorce agreement, including child custody and visitation agreements, is yours to create. The courts uphold virtually anything you agree to as long as all relevant parties sign the documents.

Your family law mediator can work with you and the children’s other biological parent to create a visitation agreement that makes sense. Sometimes, this includes scheduled days, overnights, weekends, or vacations. Or, the agreement may be as simple as regular phone calls, email/text communication, and open invitations to all birthdays and important school or extracurricular activities.

You can fight for your right as a stepparent.

The first three recommendations are for couples and families who can navigate the same page. In some cases, this may not be possible. For example, if your stepchild’s parent(s) resist your request to retain visitation rights of some kind, the law may still be on your side.

California family law code states: Notwithstanding any other provision of law, the court may grant reasonable visitation to a stepparent if visitation by the stepparent is determined to be in the minor child’s best interest. That holds true as long as the visitation by the stepparent doesn’t conflict with the custody or visitation of the other custodial parent who is not part of the divorce proceeding.

Factors the court considers when ruling on stepparent and visitation/custody include:

Age of the child.
Length of the stepparent/child relationship.
Any history or evidence of domestic violence or abuse.
Emotional relationship/strength of the bond between the child and biological parent (in some cases, stepparents are the more stable and emotionally healthy adults).
Resistance from either biological parent about the stepparent’s child visitation request. In this case, the stepparent must show unarguable evidence their presence is in the child’s emotional best interest.
Input from the child if they are old enough.

The first step is to find an experienced family lawyer and schedule a consultation. While clear communication with the other party/parties and mediation is always our first recommendation and preference, we are happy to support you in court if it is in the best interest of the child.

Have you considered adopting the child?

If the other biological parent is out of the picture, it is in a devoted stepparent’s best interest to adopt the child if they want a legally vested interest in the child’s present and future wellbeing. However, keep in mind that even the most attentive and loving stepparents have zero legal rights in their child’s lives.

For example, you can take them to the hospital in an emergency, but you can’t authorize medical treatment; you can pick them up from school if they’re ill, but only if a biological parent has added you as an emergency contact. Even so, you cannot sign any legal school documents or forms.

Adopting your stepchildren, when possible, gives you the automatic consideration of the courts if you and your spouse or partner decide to separate or divorce down the road.

Expert Legal Advice Is A Must For Stepparent Visitation Rights

Expert legal advice is necessary if your marriage is struggling and you’re worried about stepparent visitation rights. Knowing your options and having time to prepare may be the key to ensuring you and the children you love have the right to enjoy a steady, healthy, and long-term relationship.

Contact the Law Offices of Gerard Falzone to schedule a consultation and receive personalized recommendations and advice. First and foremost, I’m committed to mediation and child custody/visitation decisions that are as nonconfrontational as possible. However, I’m willing to go to court and protect your rights – and the rights of any child – if necessary.

What Is Spousal Abandonment?

Spousal abandonment was one of the most commonly used reasons to pursue a legal divorce before California became a no-fault divorce state. While you don’t hear the term “spousal abandonment” much these days, it is still a very real issue and takes a heavy emotional and financial toll on those who are left behind.

Understanding Spousal Abandonment

Spousal abandonment is defined as when a person leaves a legal marriage without an intent to return, without working through proper legal channels, and failing to honor their financial responsibilities. It happens without warning or communication, and often the spouse left behind cannot locate their spouse. While spousal abandonment is not grounds for divorce in no-fault divorce states, the one left behind can move forward with divorce on their own using “irreconcilable differences” as the reason.

Marriage is a legally binding contract. While spousal abandonment does not affect how a divorce is filed or how it moves forward, it can affect the divorce process and a judge’s final decisions. In our experience, judges do not take spousal abandonment lightly and the final judgment is likely to err more in your favor.

When Should I Take Legal Action If Abandoned By My Spouse?

It is worth your while to meet with a family lawyer sooner rather than later because time is of the essence when it comes to the legal and financial realities for one left behind. Ultimately, the decision to file a divorce is entirely up to you. However, there are some situations where we recommend taking legal action or filing for divorce if your spouse is not communicating.

Consulting with an experienced family law attorney is a wise first step. We can help you determine which steps are necessary to move forward in a way that aligns with your values while ensuring your spouse is held accountable for their marriage responsibilities.

You have children

A parent’s first priority should be their children, and the law certainly views it that way. If your spouse has left and is not contributing financially, or the money they are sending is not enough, sporadic, or unpredictable, you speak with a family law specialist ASAP. Regardless of whether or not you choose to file for a divorce, your child’s parents owe you child support.

The court has all kinds of ways to find your spouse if you can’t. If they don’t respond to the court, they risk having their driver’s license and passport suspended, bank accounts frozen, etc. The courts can garnish wages from employers as well as any future returns. And, they charge 10% interest to your spouse on unpaid balances, which are payable to you.

You can download and complete child support forms on the California Child Support Services webpage. I also recommend scheduling a consultation with a family law specialist to make sure the forms are filled out correctly. If you miss anything, they get kicked back and it delays the process. Investing in even a single consultation can help expedite your process.

You’re ready to get divorced

In many cases, regardless of the heartbreak and stress associated with spousal abandonment, clients are more than ready to file for divorce. In this case, the way is clear. Technically, there is no need to hire a lawyer to pursue a divorce. The California Self-Help Divorce Forms page has a wealth of information, as well as the forms you can download and print.

Also, check your local family law court website to learn more about their self-help offerings, which typically include in-person support by appointment. In most cases, you are best off consulting with a Bay Area family lawyer

You are in trouble financially

If you are currently a stay-at-home parent, you were the lower wage-earning spouse, or you’re struggling to pay the bills, take legal action. Again, I recommend consulting with a legal family law specialist to determine your next best steps. Alimony, called spousal support, is not like child support. It is not an automatic right so you’ll need to take a different route if you’re entitled to financial support from your spouse.

In this case, if you are not ready to file for divorce, you’re advised to move forward with a legal separation. With a legal separation, your spouse will be legally ordered to pay child support, may be legally ordered to pay spousal support, and marital assets and debts are divided in half so you aren’t responsible for the whole.

Your spouse has or is running up additional debt

There are many benefits to living in a community property state. In a spousal abandonment situation, these benefits may be detrimental depending on your spouse’s actions. Each day you remain legally married, without filing legal separation or divorce papers, your spouse has the ability to add to your household debt and you are legally responsible for it.

In many cases, the spouse who leaves acquires new credit cards and has them sent to a new p.o. box or mailing address, without you knowing it. Filing for a divorce is the best way to stop your responsibility for any bills or debts s/he’s wracking up. We also recommend running regular free credit reports to keep an eye on any lines of credit or loans (cars, toys, etc.) that appear after they move out.

Also worth keeping in mind, any assets your spouse acquires during his/her abandonment are 50% yours; and any assets you acquire in the period between abandonment and legally filing for divorce are 50% theirs, too. The more you uncover prior to filing for a divorce, the better the outcome of the proceedings will be.

Our Family Law Practice Is Here To Help

Are you wondering about how to handle your spousal abandonment scenario? The Law Offices of Gerard Falzone are here to provide solid counsel and personal recommendations. Contact us to schedule a free consultation. (510) 521-9500. Even a single meeting or two may be all you need to support your forward movement in the right direction.

Legal Separation Or Divorce? Which Is Right For You?

Married couples often jump straight to the divorce option when conflicts or seemingly irreconcilable differences are such that dissolution of marriage feels like the only option. However, legal separation is also a possibility and is overlooked more and more as divorces have become easier to obtain.

Learning more about the differences between legal separation and divorce may create a different pathway forward for you, your spouse, and your family.

Difference Between Legal Separation & Divorce

Legal separation functions like a divorce in many ways. Couples typically decide to live in two separate places and can live their own lives without being accountable to the typical vows of marriage (love, honor, and monogamy). A legal separation may also involve other legal decisions associated more typically with divorce, such as:

Division of certain assets and/or debts
Spousal support (aka “alimony”)
Child custody/visitation
Child support

A legal separation is filed with the California Family Law courts, and there is no time limit on how long a couple can stay legally separated. Because you are still legally married, neither party can remarry anyone else. If you decide to pursue a divorce, you’ll move forward by filing the paperwork required for a dissolution of marriage. Once the divorce paperwork is officially filed, the divorce becomes final in six months.

As with a divorce, we advise couples to work with a family law mediator whenever possible. In addition to saving you thousands of dollars and keeping you out of the courtroom, mediation is known for creating a more safe, amicable, and peaceful space to come to your determined agreements. Again, this is a smart step forward to keep the energy mutually respectful and positive.

5 Reasons Couples May Prefer Legal Separation

There are many reasons couples prefer legal separation to a final divorce agreement. Most of them fall under the following five categories:

You’re not sure you want a divorce (yet)

I’ve seen it all – including couples who’ve gotten divorced and remarried again. A divorce is a final and legally binding agreement. Even in the best-case scenarios, where a divorce moves forward via non-combative mediation, it is still emotionally and energetically draining.

Sometimes, couples realize that while they are feeling divorce is on the horizon – they aren’t 100% sure it’s what they want. These individuals know they don’t want to divorce in haste or due to disagreements or hurts that time might heal. A legal separation allows them to see what life would be like if they did divorce. Also, legal separation gives them physical and emotional space to work on themselves or on their relationship. That, along with time, may be exactly what’s necessary to reconcile again.

Your religion prohibits divorce

If your religion prohibits divorce, legal separation is often viewed as the way to “get divorced without actually getting divorced.” However, it’s important to remember that the court will handle the asset/debt division, child custody/child support, and potential spousal support payments in the same way it would if you were getting a divorce.

Your personal views or beliefs prohibit divorce

Most couples get married with the intention of never getting divorced. However, some individuals are more committed to never getting divorced than others. If you are one of those people, legal separation is a smart alternative. It gives you space and time to truly take stock and determine what is best for your personal and collective paths forward.

That said, if your spouse doesn’t feel the same, your legal separation won’t and can’t provide protection from getting divorced. Furthermore, if one of you decides to file for a divorce (dissolution of marriage), the California courts will ultimately honor that decision, and you may wind up being divorced anyway. So, while this is a good option for you both to gain a buffer as you make your future decisions, it’s not feasible to escape divorce if that is what the other person wants.

To give the children an adjustment period

This is a gamble. Just as a couple might choose legal separation as their own cooling-off period as they decide whether or not they truly want a divorce, some couples use legal separation as an adjustment period for their children. This is a gamble. It may be worth it if you actually think there is a decent chance of reconciliation. If you are sure you’re eventually divorcing, it’s probably best to skip the legal separation and move forward with a divorce. Pretending otherwise may do more harm than good to the children’s well-being.

In my experience, children assume a legal separation will result in reconciliation and may hold fantasies that crush them later on. So while a divorce is painful and has a negative impact on most children, it’s always best, to be honest, and clear (in an age-appropriate way) about what is happening so children can get the support they need in real-time.

Retain the financial benefits of marriage

Some long-term partners decide to take the plunge because of the financial benefits of marriage. That same idea works in reverse. I have clients who opt for legal separation over divorce because it makes more economic sense to remain married. Couples may choose legal separation to:

Retain their married tax status
Continue joint business interests
Remain on one or the other’s health insurance policy
To receive future benefits (such as retirement or social security) now or in the future

In this case, legal separation is more like a business decision than one of emotion. It works because it’s legally recognized and allows individuals to live separate lives in separate homes/locations. However, you may find that future partners aren’t entirely happy about it, which may eventually force a divorce decision down the road.

We Can Help You Decide On Legal Separation Or Divorce

If you’re in the process of deciding whether or not to get legally separated or divorced, it’s time to schedule a consultation with a family law mediator. Contact the Law Offices of Gerard Falzone to learn more about your options and to determine whether legal separation or divorce makes the most sense for your situation.

Mediation vs Collaborative Law Processes Divorce

As an experienced Bay Area family law professional, I’m a big supporter of mediation. I’ve spent countless thousands of hours in contentious courtroom divorce proceedings, and it’s not the ideal way to go if you’re moving forward with divorce. Last month, we focused on the differences between divorce mediation and DIY Collaboration (filling out your own paperwork and filing it with the court).

There is another option, which is called collaborative law processes for divorce – or collaborative divorce proceedings. This option works well for individuals or couples who prefer retaining independent counsel – but still want to minimize overall expenses, courtroom drama, and unnecessary stress.

Mediation vs Collaborative Law Processes: Which Is Best?

First, we’ll define each option, and then we’ll present scenarios where collaborative divorce may serve you better than mediation practices. Regardless of which one you choose, both options reduce total divorce expenses, protect the confidentiality, and keep you out of the ugly world of courtroom divorce litigation.

Mediation

As the name implies, divorce mediation is designed to help couples navigate their divorce with fairness and integrity while minimizing the negative emotional spectrum and stress. It’s highly recommended for couples who have children as the stress and tensions inherent in courtroom battles put a detrimental strain on children.

In this scenario, the couple meets with a family law mediator. The lawyer serves as a neutral party who listens to both sides, reviews the assets/financial accounts, and provides his/her input on how a judge would weigh on any existing conflicts or requests. In addition, family law mediators prioritize the well-being of children, so they also help with custody and child support agreements.

The idea of mediation is to provide a safe and comfortable space for both parties to review the facts and where legal disputes can be discussed – and hopefully resolved – to both parties’ satisfaction. Mediation is also much more affordable than the fees associated with courtroom proceedings. While divorce and family law issues are often heated and tragic, my goal is to keep both parties calm and rational so that they can make agreements based on facts and reason rather than emotion.

Collaborative Divorce Processes Using Lawyers

Collaborative divorce processes using lawyers share the same goals, but each party has individual legal counsel. In this model, you hire your divorce attorney, and your spouse hires theirs. You let both lawyers know you’re interested in pursuing collaborative divorce proceedings.

Both parties and their respective collaborative family law attorneys sign a contract stating their intention to use cooperative dispute resolution techniques, rather than combative tactics, to negotiate the gamut of divorce issues. We call this contract a “participation agreement.”

Now, over a series of scheduled meetings, you’ll come together much the same as you would in mediation, but your lawyers are there to represent your best interests. While things may get more contentious than in mediation (but not always), divorce attorneys also know your goal is to stay out of the courtroom, minimize conflict, and (again) minimize the negative impact of divorce on children’s wellbeing.

Scenarios When Divorce Collaboration Using Lawyers Is Best

Here are some scenarios when you may want to consider using individual lawyers for a collaborative divorce process.

You don’t completely trust your partner

If you don’t trust your partner or s/he has a history of being manipulative, hiring your lawyer may be the way to go. Your lawyer supports your process as you gather the paperwork, documentation, and other evidential items required to move forward. And their office will handle all of the legal forms necessary for divorce proceedings.

If you suspect your partner is hiding assets, leading a dual life, or you’re wary of being able to negotiate without your advocate, lawyer-facilitated divorce collaboration is ideal.

You are the one who wanted a prenuptial agreement

If you led the prenuptial agreement charge, odds are you had family assets or personal acquisitions you wanted to keep out of the communal pot. Despite their role in the legal marriage arena, prenuptial agreements are not always the most secure documents. If there’s a prenup to protect, your lawyer knows how to manage that while working collaboratively with the other side.

You run your own business

If you didn’t take the necessary steps to protect your business interests from the marriage’s legal “community property” state, it could be at risk. If you aren’t careful, your spouse could have all kinds of legally sound grounds to maintain partial ownership of the business or force you to buy them out to continue running it as your own.

Tensions or anger levels are elevated

If the anger or tension levels are at an 8 – 10, and you fear this may threaten the mediation process, a collaborative divorce with attorneys is a good middle ground. This allows you both to honor the mediation and minimal conflict goals you share while minimizing the risks of arguments or old energy that may find its way into the picture without your own representatives there to help keep you both in check.

There are atypical complications (abuse, mental illness, addiction, etc.)

If your spouse (or yourself) has a history of domestic violence, abusing your children, or addiction, lawyer-led divorce collaboration ensures you and your children’s wellbeing and protection are the top priority. However, it supports the two of you moving forward with as much integrity and minimized tensions as possible. These scenarios may entail different protocols, documents, or agreements around child custody and visitation agreements. If any of these pertain to you, we recommend meeting for a consultation with a family law professional before making any agreements with your spouse around mediation or collaboration. Your attorney can help you determine which option is the wisest and safest.

Contact the Law Offices of Gerard Falzone to learn more about your divorce proceeding options. My goal is to facilitate your divorce with the least amount of stress, anxiety, financial burden, or negative outcomes possible. I’m happy to hear your side of things or meet with you both, to determine whether mediation or lawyer-led collaborative divorce proceedings would be best. Contact me to schedule a free consultation. (510) 521-9500.

Mediation vs Collaborative Divorce: Which Is Best?

Are you opting to forgo the courtroom and finalize a more amicable divorce on your own? Good for you!

Unless there is no way for you and your spouse to agree on major divorce tenets, such as spousal/child support, visitation, or the distribution of joint assets, it is always better to get divorced using a mediator or by coming together and collaborating.

Divorce Mediation vs Collaborative Divorce

Divorce mediation or collaboration are options you can use if you want to avoid courtroom drama and excessive legal payments and fees. Currently, the average cost of a divorce settled in the courtroom is $17,500, and many divorces cost far more than that. The ability to move forward with your divorce – and your life – without the added stress, time, and expenses is a bonus of both mediated and collaborative divorces.

Mediation

Mediation is an increasingly popular way for couples to settle family law disputes without the emotional and energetic drain of the courtroom. Mediators are neutral parties; they do not take sides. Instead, they work with both parties as a neutral educator and facilitator, informing them about common court practices and rulings and helping them to determine the wisest and fair means of settling every aspect of their divorce and/or child custody disputes.

Most mediators are paid by the hour for their consulting services. Another benefit, besides navigating a divorce as affordably and conflict-free as possible is that mediators take care of all of the legal paperwork and can file it for you, to ensure nothing is kicked back by the courts. The average divorce by mediation runs around $7,000 or less. Some couples only require a session or two to make their final decisions, which means they get divorced for $1000 or less.

Collaboration

All of the legal divorce paperwork required by the California family law courts are available for you to fill out and complete online. All county court systems also offer appointment- and walk-in free support services to review the documentation for you or answer general questions about the process.

This means you and your spouse can collaboratively work through the paperwork and create your own divorce terms without any legal assistance. That said unless you have no children and relatively few (if any) assets, I rarely recommend collaborative divorce unless your situation is very friendly.

Which is Best For Your Divorce?

The number of decisions you’ll make determines whether or not a meditative approach is better than a collaborative one. Decisions lead to complications, especially where emotions are involved, and a mediator is well-skilled in facilitating difficult discussions while providing insight as to the court’s most likely decision based on statistics.

On the flip side, if you’ve only been married a few years, have no property to speak of, and there are no children in the mix, a collaborative divorce may be just the thing to quickly move through the paperwork and file it with the court. It may still be worth paying a paralegal or mediator to review the final documents to make sure they’re filled out accurately. Even the smallest of paperwork errors leads to the courts kicking the documents back for you to correct and refile, which gets cumbersome.

I recommend using a mediator when there are more complicated things to work out.

NOTE: If there are children involved, mediation is the way to go. Your children deserve to have the most legally accurate and smooth experience possible. Your decision now to hedge one way or the other to “keep the peace” can backfire when both parties move on and you all embark on the new path. Mediators prioritize the children’s health and wellbeing throughout the divorce so you can make decisions that are in their best interest at all times.

If any of the following apply to you, investing in a mediator can save you exponentially throughout the divorce process and afterward:

Spousal support (or not)
Child support
Child custody/visitation
Decisions about who’s keeping the house and what that looks like
Dividing assets outside of California’s 50/50 community property laws
Etc.

Sometimes old patterns rear up even in the most well-meaning of people. I’ve seen clients who were willing to sign off on a fair amount of their entitled assets “just to be done with it and move forward.” While this may seem ideal in a collaborative divorce model, those decisions can come back to haunt you.

Should your ex-spouse decide things were unfair or his/her story changes later on and it turns out they felt pressured at the time or were too distressed to make sound decisions, you could wind up in a divorce court to iron things out with a judge.

Benefits of Using a Mediator

There are multiple benefits to using a mediator for your divorce, including:

The process is smoother, less fraught with fights or stress, and almost always healthier for children and the larger family dynamic.
Now you have a known ally who you can hire again and again over the years to provide sound legal advice in case you need to come back to the table to modify child custody or support issues.
You have the opportunity to work methodically through all of the same questions a divorce lawyer would, but at the same time in mediated settings so it’s faster and more affordable.
Gain insight into whether a judge is likely or not to support your stance, vs. your spouse’s, to make fair decisions across the board.

Would you like to work with a Bay Area divorce mediator with a proven track record for helping couples move through their divorces with as much compassion, gentleness, and respect as possible? Schedule a consultation with the Law Offices of Gerard A. Falzone.

Fault vs No Fault Divorce

In the beginning, all divorces had to be considered “fault” divorces. That meant one party was responsible for the action or actions leading to the divorce. In the era of “fault” divorces, states only granted divorces under a certain set of circumstances. Over time, however, most states have moved from fault vs no-fault divorce proceedings to completely no-fault grounds for divorce.

However, it’s important to note that a no-fault divorce state doesn’t mean there are black-and-white rules for handling divorce settlements and child custody. While anyone can petition for a no fault divorce, and have it granted, your actions still have an effect on a judge’s ruling.

California Was The First No Fault Divorce State

California was the first state to sign no-fault divorces into law back in 1970. This means anyone can file for – and be granted – a legal divorce for any reason, typically stated as “irreconcilable differences.” The no fault divorce state also ensures you can move forward with a divorce whether your spouse signs the papers or not, and whether or not they want to get divorced.

While all of the other states have since filed suit and all honor no-fault divorce scenarios, 17 of the states are strictly no fault divorce states. These are:

California
Colorado
Florida
Hawaii
Indiana
Iowa
Kansas
Kentucky
Michigan
Minnesota
Missouri
Montana
Nebraska
Nevada
Oregon
Washington
Wisconsin
Washington, D.C. also has true no-fault divorce laws

The rest of the states allow the court to make a determination between whether a case is a fault or a no fault divorce. In states that still make a determination between fault and no fault divorce, reasons to file for a fault divorce include:

Adultery
Violence or malicious behavior
Abandonment for a specific amount of time
Incarceration for a specific length of time OR imprisonment for certain crimes
Incurable mental illness
An individual’s failure to disclose they are unable to have sex
Patterns of immoral or unethical behavior

It’s important to note that while no-fault divorces may be the standard in California, it does not mean that a person’s behavior won’t affect the judge’s final rulings regarding divorce settlements, division of assets, child custody, child support, etc.

Faulty Behaviors May Alter A Judge’s Final Rulings

While a judge won’t force anyone to stay married anymore, and they can’t state anyone’s fault or responsibility in legal court documents, there are situations that affect the outcomes.

Never hide income or assets

During the divorce process, you’ll have to disclose your income and all of your assets. This is not a time to be sneaky or hide anything as a way to prevent it from being split 50/50. California is also a communal property state, which means that without legal prenuptial agreements in place, all incomes and properties acquired during the marriage are split 50/50 in a divorce. There are certain exceptions for things like inherited property or money.

Failure to disclose assets, especially if the judge suspects it was intentional, can mean your spouse gets the lion’s share of the assets as your punishment.

Think twice before moving out if you have children

Couples should always seek legal counsel, starting with mediation, if there are children in the picture. The actions you take in good faith can slant the bigger picture. For example, moving out and starting a new life elsewhere may seem like the best plan on paper because it keeps the peace and prevents children from being exposed to toxic fights or information that isn’t age-appropriate.

Without a clearly written agreement between the two of you stating decisions around child custody, visitation, child support, etc., the person who moves out may lose. An angry spouse’s attorney can paint a negative picture about the parent who leaves, which can affect the terms of your child custody later on.

Take steps to protect your business

The business may seem like it’s yours while you’re married. When you go through a divorce, it might appear differently to the courts. Any money, time, or energy your spouse put into the business is taken into consideration. This can have a profound impact on a small business owner who can’t afford to “buy out” a spouse in the divorce. Take care to protect your small business if you suspect divorce is on the horizon.

A record of illegal activity will have an impact

If you have a record, it can significantly impact how your child custody and visitation are decided. Clean up your act to the best of your ability, and consider attending AA meetings regularly (and meaning it) if addiction has been part of your story.

The best path to a no fault, no contest, and fair divorce is to work with a family law specialist who can provide insight, advice, and legal support. Contact Gerard A Falzone to schedule your first appointment. Our firm prioritizes mediation whenever possible, but we’re also prepared to advocate for you in the courtroom.

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:

Division of property
Child custody and support payments
Division of assets
Alimony (spousal support)

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

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?

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.