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. 

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. 

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.

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 Gerard 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.

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.