Category Archives: Divorce

Protecting Your Small Business Through A Divorce

protecting your small business through a divorce

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

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

Save Your Small Business From Divorce Proceedings 

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

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

Get a prenuptial agreement 

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

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

Hire a business lawyer 

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

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

Draft a post-nuptial agreement 

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

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

Do NOT use your business to hide assets 

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

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

Maintain meticulous records 

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

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

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

Put the your small business in a trust 

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

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

Use divorce mediation rather than the courtroom 

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

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

7 Important Steps To Take Before Leaving An Abusive Spouse

7 important steps to take before leaving an abusive spouse

Taking the steps necessary to leave an abusive spouse takes a tremendous amount of strength and courage. Breathe into that and know that you have a community of people here to help support you through the process. 

The priority is to keep yourself and your children safe while doing what’s necessary to legally extricate yourself from any binding relationships if necessary.

Before You Leave Your Abusive Spouse

Use the National Domestic Violence Hotline ASAP 

If you haven’t already, we highly recommend using the National Domestic Violence Hotline as often as you need. This free service can provide invaluable support for women and children, and experienced, knowledgeable, and compassionate representatives are available to answer questions, offer information, make recommendations, etc., 24 hours a day, seven days a week. 

You can contact them online here or by calling them at 1-800-799-SAFE (7233) or TTY 800-787-3224. 

Contact an attorney with experience handling domestic abuse cases 

The reality is that domestic abuse is a very delicate situation when it comes to leaving, separating, and divorcing a partner. Nobody understands that more than you. The problem is that many “experienced” divorce attorneys are actually not all that experienced at handling divorces involving domestic violence. As a result, they can make rookie mistakes that compromise the safety and wellbeing of their clients and families. 

Seek counsel with Bay Area divorce attorneys who have experience with domestic violence cases and who can provide sound counsel around how to protect yourself as well as helping to facilitate a swift and as drama-free divorce as possible. We can lead you through pre-divorce counseling sessions so that you are protected, safe, and ready to launch when you officially file your divorce paperwork. 

Identify and confirm a safe space to flee to 

Leaving on the spur of the moment or in the immediate aftermath of a fight is not always the best move because it leaves you little to fall back on. Often, clients who’ve done that find themselves having to return to their abusers because they have nothing with them to take that first next step. Click Here to access a list of Bay Area domestic violence organizations and shelters. Call ahead of time and they can help you make a plan. 

We can’t emphasize enough how important it is to bide your time and plan well. Secure a safe location, whether it be a local women’s shelter or a trusted friend. Under NO circumstances should you share your location with your partner. Make your move when you are calm and collected, have all of your necessary documents (birth certificate, license, passport, credit cards, a flash drive or cloud account to access your resume and contacts, cash if possible, etc.), as well as clothing, shoes, and toiletries.  

Make sure you have the following items 

We want to re-emphasize the documents and items you want to bring with you if at all possible. They will be necessary as you step into your new life, and they are also complicated to get a hold of once you are out of your home. 

  • Driver’s license 
  • Social security card 
  • Passport/REAL ID 
  • List of key contacts both printed and in some type of cloud storage (such as DropBox) so you can access it with your prepaid phone (See #7) 
  • Health insurance cards 
  • Bank account statements 
  • Any copies of existing or former restraining orders (Don’t have a restraining order in place? Visit, Do I Need a Restraining Order, to learn more) 
  • Copies of tax documents for the past three years 
  • Marriage license (if you have one) 
  • Your birth certificate 
  • Kids’ birth certificates 
  • Copy of your resume 
  • Clothes (both casual and work/interview appropriate) 
  • Toiletries 
  • Any precious heirlooms/jewelry/etc., that is small enough to take with you 

Your credit cards and some cash are also ideal to have with you. Abusers are notorious for canceling credit cards as soon as their partner gets away, so be prepared for that. If you have the ability to get your own card, that is ideal. OR, get a cash advance on existing cards so you have working cash in case your credit cards are canceled in an effort to strop you of your resources once s/he’s learned you’ve left. 

Get a post office box 

Secure a post office box before you leave and begin having your mail forwarded there. If you can, consider using a post office or mailbox location that is out of your normal loop or routine so it isn’t as easy to trace you there. These locations are secure and there is no way your abuser can find out your new address if you don’t offer it to him/her. 

Only access your mail in full daylight, during busy times of the day, so any potential altercation will have witnesses and more access to protection from the public. 

Speak to your children’s teachers, principal, coaches, etc. 

Share your situation with the teachers, administrators, coaches, etc., in your children’s lives. Make sure they also have copies of any existing restraining orders.  

This can feel embarrassing or intimidating, but remember that your abusive spouse is the one who should be embarrassed. You have done nothing wrong. Your leaving is an act of courage, bravery, and love for yourself and your children. It will be seen as such by others and learning to grow into a lean on your expanding community will be a good first step as you begin baby-stepping into your new life. 

It’s also good for the adults in your children’s lives to know what is going on. It’s very common for children of domestic violence and/or divorce to struggle in school, withdraw socially, become more sad or angry, etc., and so knowing what is going on allows the adults in their lives to provide better and more compassionate support.  

Acquire a prepaid cell phone before leaving an abusive spouse 

These “burner phones” are exactly what you need because the calls can’t be traced. Do not share the number with anyone who might even consider giving it to your abusive spouse. If you have a moment of weakness or you suspect your abuser has found out your new number, you can ditch the old phone and get a new one.  

Call Us When You’re Ready To Leave

It breaks our heart that posts like this need to be written. That said, we are here for you whenever you need expert legal counsel or advice about your domestic abuse situation and to begin taking you through the steps to file and finalize your divorce. Contact me here at the Law Offices of Gerard A. Falzone to schedule your free phone consultation, or call me at 510-521-9500 or 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. 

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. 

Can My Ex Track Me During My Parenting Time?

can my ex track me during my parenting time

Even the smoothest of divorces are emotionally complex when children are involved. All of a sudden, the loss of control over where your children are and what they’re doing when they’re with the non-custodial parent can lead to excessive worry and concern. 

That worry or fear, combined with the innovation of GPS trackers and other monitoring devices, can make it tempting to track the non-custodial parent when they have custody of the children. This is completely illegal in the state of California. 

Is Your Ex Tracking You During Your Parenting Time?

If an ex is tracking you during your parenting time, you should consult with an experienced family lawyer who can help you decide what to do next. 

California is a dual-consent state 

California is a dual-consent state. This means that both parties must consent before wiretapping, GPS tracking, or other location tracking devices are used to monitor someone’s movements or behaviors. In addition to facing criminal charges, any information or evidence supplied by these devices is considered null and void in a courtroom.  

However, there are exceptions to this law. The most common is if your ex has convinced the courts that you are at risk for taking the children outside the jurisdiction without consent. In this case, a judge can order tracking devices on your car, phone, etc., so your ex can keep track of your movements when you have the children.  

Again, the ability for an ex to track you during your parenting time would only be legal if it was ordered by the court. Otherwise, s/he is violating your right to privacy and your rights as a parent. If you have found a GPS or other tracking device on your car or phone that was installed for your ex’s use, without your consent, s/he can face civil and criminal charges. 

Avoid the need for your ex to track your movements during parenting time 

Any time spent in a courtroom is expensive, and it can create ugly, unnecessary emotional entanglement that is detrimental to your child(ren)’s wellbeing. If your ex is so upset or worried that s/he’s threatening to track your movements when you have the children, we recommend taking the following actions. 

Meet with a family law mediator 

Meeting with a licensed, family law mediator can work wonders for facilitating communication between ex-partners who cannot see eye-to-eye about child custody arrangements, or who are not acting or thinking rationally when it comes to the other partner’s time with the children. 

Family law mediators are completely neutral parties. We do not take sides. We simply facilitate communication and negotiations between two parties and let them know what a judge would be most likely to say or decide if the issue is brought to court. 

Because you pay by the hour, session, and/or the documentation required for filing – family law mediation continues to be markedly more affordable than hiring a lawyer and going to court. Simply put, mediation often saves couples tens of thousands of dollars in legal fees. 

Consult with a family law attorney

If your ex is unwilling to go the mediation route, consult with a family law attorney to explain your situation and determine the next steps.  

The goal is always to move forward with the least amount of stress and contention as possible, so the first step may be for your lawyer to write a letter explaining the illegality of your ex’s threat to track you – and that legal steps will be taken if you are, indeed, being tracked without your consent. 

If first-step actions are ignored by your ex, we can move forward with further steps to protect your rights and to support you in building a trusting relationship with your children. 

Find evidence of the tracking device(s) and take action 

Next, it’s time to consult with device tracking professionals who can scan your vehicles, phones, computer, etc. to locate and identify actual tracking devices. This is the evidence you would need to pursue action from the courts. 

Just as a judge hates to be lied to about hidden assets, s/he also balks when an individual says they haven’t been tracking their ex – only to have evidence presented to the contrary. There is no point in taking legal action until you have solid proof of tracking devices to follow it up. 

We Are Here For You

Do you need professional legal and emotional support as you work through sticky and painful child custody details? Please give me a call, 510-521-9500 (Oakland) or 415-482-7800 (San Rafael), or contact the Law Offices of Gerald Falzone online to schedule a free consultation.

Can Child Support Debt Be Consolidated?

can child support debt be consolidated

Court-ordered child support payments are strictly enforced, and failure to pay on time – or skipping payments – has serious consequences. Child support debt consolidation is an option, preventing you from paying steep interest rates, or facing some of the more dreaded results of getting behind in your payments, including: 

  • Suspension of your driver’s license 
  • Legally enforced payback interest rates of 10% or more (paid to the child support recipient) 
  • Wage garnishment 
  • Tax return garnishment 
  • Property and/or asset seizure 
  • An outstanding warrant for your arrest 
  • Jail time 

While it can feel like child support enforcement is out to get you, the system is equally rigged in favor of child support debtors getting back on track. 

Determine If Child Support Debt Consolidation Is The Best Option For You 

Debt consolidation can be a solution, clearing the money you owe (child support arrears), to get you back on track. However, it’s not always the best solution.  

Continue making payments on time 

Keep in mind that you are legally responsible for continuing to make monthly child support payments while a debt consolidation loan is pending. Skipping on payments while waiting for the loan to come through can backfire if you owe thousands more than the debt covers when the loan finally funds. 

Is there a family member willing to provide a low-interest loan? 

Both the interest charged by Child Support Services and the interest charged for most unsecured loans is on the higher side.  

  • In California, and here in the Bay Area, the standard interest rate charged by the state for child support arrears is 10%.  
  • The average interest rate for a consolidated loan is 8% to 28%, depending on your credit history. 

You may find that taking a loan from a family member or friend, drawing up the paperwork, and deciding on a slightly lower interest rate is the happier medium. 

Secure fixed-rate loans at rates that are higher than what the state charges 

If your child support debt consolidation loan has an introductory rate of 8% but comes with an APR (adjusted percentage rate), you have no control over the amount the interest will raise over the course of the loan term. So, while the original 8% rate feels like a deal, you may wind up paying twice that – or more – over the ensuing months or years.  

It may be worth it to work with the county where the child support order originated – or where the petition to collect back owed child support was filed. They are willing to work with you directly to come up with a reasonable payback plan, and their fixed interest rate may save you money overall. 

Have you looked into child support modification? 

California is known for having higher-than-average child support payments because the state uses an amount per child driven by both parents’ joint income, rather than a fixed “cost per child” amount.  

However, this also means the amount you owe is fluid to a certain point. If your child’s other parent gets raises or bonuses, those need to be reported, as do yours. The same is true if a person makes notably less money than they did when the divorce and child support orders were filed. 

Visit the Child Support Services website, where you can use the online calculator to estimate current payment obligations, speak with a free family law specialist, or begin the process to request a child support modification. The child support recipient is equally obligated to help with this process (the county will take it over if s/he isn’t cooperative) by providing their most recent paystubs and/or tax information.  

If you know s/he is making money under the table, the combination of a private investigator and some well-timed surveillance can result in evidence that not only lowers your payments but results in the other parent having to pay you back with interest. 

Does bankruptcy clear child support debt? 

No, Chapter 13 bankruptcy does not clear child support arrears. Child support debt is considered a “priority debt,” and it will be added into your Chapter 13 priority debt repayment plan – including the state’s additional 10% interest rate. 

Keep this in mind because knowing that may mean that filing bankruptcy will do more harm than good for your overall financial situation. 

If the stress of child support debt is weighing you down, or you’re tempted to bury your head in the sand, it’s time to contact a family law specialist and schedule a consultation. We can help you sort out exactly which plan makes the most sense for getting you back on track, and we can facilitate your request for child support modification. 

We’re Here To Help You

Contact us here at Gerald A Falzone,  to schedule a child support debt consultation, so we can work together to find a solution. We have two convenient office locations – Oakland (510) 521-9500, and San Rafael: (415) 482-7800.

Property Division: Annulment vs Divorce

property division annulment vs divorce

California is considered a community property state, which means all properties and assets acquired after the marriage takes place are considered evenly shared between both parties. When the marriage is dissolved (referred to as a divorce or dissolution of marriage) those properties/assets are divided jointly.

Annulments are very different than a divorce. When a marriage is annulled, it is as if that marriage never took place at all. Once the annulment goes through, there is no legal record of the marriage, and neither party is beholden to any of the laws pertaining to a legal marriage or divorce. For the most part, properties, assets, financial holdings gained individually during the marriage, etc., return back to their pre-marital status.

We recommend reading our post, Annulment of Marriage, to learn more about the ins-and-outs of marriage vs. annulment. You may find that your marriage does not qualify for an annulment, in which case you’ll need to pursue a divorce, and property and assets may be divided after all.

The Basics When It Comes To Property Division

How Annulment Differs from Divorce (or a Dissolution of Marriage)

First and foremost, it’s important to know that annulment isn’t an option for all. The courts only grant an annulment if, there is evidence of fraud that led or induced an individual to get married in the first place:

  • Bigamy (one or the other is already legally married to someone else)
  • Incest (the individuals are too closely related by blood in accordance with the state’s laws)
  • One or both of the parties were married by force
  • There is a physical incapacity to consummate the marriage
  • One or both of the individuals are 17 years old or younger
  • One or both of the individuals are of unsound mind
  • Someone was intoxicated at the time
  • Domestic violence and/or substance abuse is discovered within 6 months of the marriage date

If you feel your marriage qualifies for annulment, we recommend consulting with an experienced divorce attorney in your area to make sure before moving forward.

Property Division in an Annulment

Assuming your marriage qualifies for an annulment, your assets, retirement plans, properties, etc., you held before you were married automatically return to their original owner/holder. Because most annulments take place within a relatively short time after the marriage, it is relatively easy for the divorce to facilitate their division between both parties.

If, however, you have been married for some time, and have acquired assets or properties together while you were married, things become more difficult. In this case, an experienced divorce attorney is your greatest asset when determining what belongs to who.

Also, the longer a marriage has gone on prior to an annulment, the more likely a court may order temporary alimony if one spouse was dependent on the other for income or financial support. Similarly, the court may order temporary child support for “step-children” to eliminate any chance that innocent parties are negatively impacted by the loss of financial stability. Even so, these orders are typically only temporary, granted for the length of time the court feels is required for the individual to get back on his/her feet and begin earning an income again.

Because the division of jointly held properties, financial assets, a jointly held business, and other assets is so complicated, it is generally recommended that both parties hire an attorney if there is any disagreement about property division.

Child Custody Issues are Handled Separately

If any children were conceived by you and your spouse, or your recently annulled marriage, your state’s child custody laws will dictate how legal and physical custody, visitation, and child support payments are handled. Whether or not your marriage was annulled will have zero effect on how child custody is handled because the law protects a child’s well being above all else.

If there is a question pertaining to the paternity of your child(ren), we recommend visiting our post, What You Need to Know About Paternity Law in California.

Have You Considered Mediation to Settle Your Annulment?

Have you considered mediation, rather than court-based annulment proceedings? Mediation via a professional law professional is a cost-effective – not to mention an emotion-effective – way to settle an annulment.

Mediation can save you thousands of dollars and can prevent things from becoming emotionally ugly. A mediator will explain the law surrounding asset and property distribution during annulment vs. divorce and can offer input as to how the court is most likely to decide things if you pursue your case in court. Mediators are completely neutral parties, which help to de-escalate high tension and emotions.

We’re Here For You

The compassionate team here in the Law Offices of Jerald A. Falzone is here to answer questions pertaining to property divisions in both annulments and divorce. We can serve as mediators or can represent you in court when you need strong and effective support. Contact us to schedule your free consultation.

Am I Entitled To My Spouse’s Business In A Divorce?

am i entitled to my spouses business in a divorce

California is considered a community property state, and a privately owned business is part of that property’s assets. If your spouse owns his/her own business – it may be considered part of the community property, or not, depending on the situation.

If you’re pursuing a divorce and your spouse owns a business, we highly recommend you consult with an experienced family law attorney, rather than relying on blogs or online sources for your answers. Every business is unique, and complex factors affect what – if any – share of the business you have an interest in, as well as whether or not your share of the business is worth fighting for.

Here are some general considerations for anyone facing a divorce where a spouse’s business is in the picture:

When did your spouse establish the business?

If the business was owned by your spouse prior to your marriage, you may not be entitled to an entire 50% interest. It may be that the court determines the entire business – or a larger portion of it – belongs to your spouse.

What funds were used to establish the business?

If the funds came from the two of you, that’s one thing – community property. However, if the initial funds came from elsewhere, or was money your spouse already had in savings before you were married (not considered community assets), then you may be entitled to less than you think when all of the financial analysis is complete.

Is there are prenuptial or postnuptial agreement in place?

If you and your spouse drafted a prenuptial agreement to protect his/her business in the case of a divorce, you may not be entitled to any of it. However, these agreements are often contested during a divorce, especially if:

  • You weren’t represented by your own lawyer
  • You’ve determined your spouse hid assets or business interests from you when the agreement was drafted
  • The agreement was drafted the week or night before you were married, rather than in a more methodical, timely fashion
  • Your lawyer finds clear loopholes that slipped by the original lawyers

So, while the prenuptial agreement (prenup) may prevent the business – or a particular share of it – from ever becoming yours, it may also be that the loopholes or shortcomings of the prenup work in your favor.

Did the business’s equity or profitability grow during your marriage?

Even if your spouse protected his/her share in the business before you were married, any increase in the business’s overall value over the course of your marriage is considered community property. Therefore, you are entitled to 50% of that appreciation.

Did your spouse take a salary, or did s/he roll profit back into the business?

If you didn’t benefit financially from the business via your spouse’s competitive salary, because s/he rolled any extra funds back into the business, you may be entitled to more than half of the business since 50% of re-invested funds were actually yours.

How involved were you in the business?

The more involved you were in the business – helping to set it up, participating in decision making, working there, etc., the more shares of the business you may be entitled to.

What is the business’s professionally assessed value?

While the questions listed above can paint a better picture as to whether you’re entitled to your spouse’s business in a divorce, there are additional considerations as well. One of these is the business’s value – and that is assessed professionally. Forensic accountants perform this type of work – assessing the business’s debt to asset ratio.

If your spouse’s business still has considerable debt, that decreases it’s overall “value,” and you may determine you are just fine with allowing him/her to keep the business.

Is your spouse willing to relinquish his/her share of other assets?

If it’s the financial portion of the business’s value that matters most to you, and you aren’t interested in the business itself – there are other ways to divvy up the assets. Sometimes, a business owner is willing to give up his/her share of other shared assets (the house, car(s), retirement account(s), other property, etc.), in which case you can forgo your share of the business and recoup the value by retaining a greater share of other joint assets.

If you’re on the same page about most of the divorce decisions, but things are getting sticky around the business, we recommend meeting with a mediator to see if you can come to a mutual decision without having to go to the more costly, time- and energy-consuming court process.

There Are 3 Ways Private Businesses Are Handled During Divorce

If the court determines that you are entitled to any portion of your spouse’s business, there are three ways to handle it:

1. You become business partners

Often the least desirable outcome, we have also seen cases where ex-spouses become business partners, and the business remains as is with both spouses at the helm. Obviously, this is not the best solution for most couples, particularly if you weren’t emotionally or professionally involved in the business and have your own work and/or source of income.

2. Your partner sells the business

Depending on the situation, you may determine that selling the business is the best solution – particularly if one or the other of you is unable to buy the business from the other spouse, or your spouse is unwilling to grant more of your other shared assets to you, selling the business and splitting the proceeds might be the best way. Keep in mind that this can significantly slow down divorce proceedings if the business doesn’t sell as soon as you’d like.

3. One of you buys the other one out

Once the business’s value is determined, one of you buys the other one out at 50% of the value. This can be a no-brainer solution if you aren’t interested in the business, and your spouse has the means to buy it via cash or a third-party loan.

Again, your best bet is to hire a lawyer to review your options before making any final decisions about whether you are or are not interested in a share of your spouse’s business.

We’re Here To Help You

My name is Gerard Falzone and I am an experienced Bay Area family law specialist. My goal is to help my clients navigate their divorce proceedings without unnecessary angst, animosity, or drama. Contact my office to schedule a consultation at (510) 521-9500.