Category Archives: Family Law

How And When To Obtain Emergency Child Custody And Visitation Orders

how and when to obtain emergency child custody and visitation

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

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

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

Grounds For Obtaining Emergency Child Custody And Visitation Orders 

Domestic abuse 

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

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

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

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

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

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

A parent threatens to take a child away or withhold visitation 

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

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

One parent is refusing to agree to a necessary medical procedure 

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

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

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

We’re Here To Help You When You Need It

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

Co-Parenting While Sheltering In Place

co-parenting while sheltering in place

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

Your Child Custody Order Still Reigns Supreme 

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

Review your child custody order

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

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

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

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

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

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

Create An Agreement For Co-Parenting While Sheltering In Place

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

Have an honest conversation around: 

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

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

Get Your Changes in Writing 

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

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

Need Professional, Third-Party Support? 

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

Is Alimony Modification Possible If I’m Unemployed?

is alimony modification possible if im unemployed

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

The California Family Law Courts state: 

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

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

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

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

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

Applying For An Alimony Modification May Help 

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

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

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

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

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

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

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

Penalties For Failing To Pay Court-Ordered Spousal Support 

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

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

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

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

Effects Of Divorce On Child School Performance

effects of divorce on child school performance

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

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

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

Statistics Around Divorce And Its Impact On School Performance 

Some studies have shown that students with divorced parents: 

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

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

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

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

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

The Psychological Effects Of Divorce On Children 

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

Your honest communication and preparation are essential 

According to verywellfamily.com: 

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

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

Emotional impacts affect the ability to concentrate or focus 

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

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

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

Children may outwardly resent and punish you 

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

Informing the school can instrumentally help 

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

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

Can I Have My Child Transfer Schools During A Divorce?

can i have my child transfer schools during a divorce

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

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

Will Your Child Transfer Schools During Your Divorce?

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

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

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

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

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

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

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

Do you have sole or joint legal custody? 

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

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

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

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

Will your child transfer schools and be happy? 

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

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

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

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

We’re Happy To Serve You

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

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.

The Biggest Child Support Mistakes To Avoid

the biggest child support mistakes to avoid

When it comes to deciding child support allocations, the state of California is transparent, and the financial parameters are primarily determined by incontestable, mathematical logarithms. In other words, what you’re going to pay – or receive –rarely varies from the legally-specific standards.  

That being said, there are serious child support mistakes you can make that result in harsh fines, stiff interest rates (payable to the child support recipient), or that can jeopardize other aspects of your child custody case.  

Always consult with a lawyer, and remember that honesty is always the best policy – even if it means paying more. 

6 Child Support Mistakes to Avoid During and After Your Divorce 

These are some of the most common child custody mistakes, the bulk of which occur when parents don’t have an experienced lawyer or legal professional advising them through the process. 

Hiding or lying about your income 

This one is huge. Just as you should never lie about or try to hide assets during a divorce, you should never hide income – including side job income – from the courts or your partner/ex-spouse when you pay OR receive child support.  

This is one of the simplest ways to make a judge angry – and you can be held in contempt of court. Plus, you will wind up owing back-pay (child support arrears) and the rate of back pay interest is a whopping 10% – made payable to the child support recipient. 

Making payments outside the court-approved methods is one of the common child support mistakes

Many counties in the Bay Area use a wage garnishment method to collect court-ordered child support payments. This is a streamlined approach with the funds paid by your employer to the local child support services office, with payments automatically transferring to the other parent. This can be unnerving at first but is beneficial to both parties.  

As the person responsible for paying, this method ensures you’re never late with a payment, which could immediately trigger a driver’s license suspension through the CA DMV – and places you in arrears. Emotionally, it takes money out of the equation so co-parenting your child(ren) remains the primary focus. 

However, each county has its own court-approved child support payment methods, and these are the only methods you should use to pay/receive child support payments to alleviate any potential hassle down the road. 

Always report changes in income – in either direction 

If you have taken a recent income hit, report it to your local child support services and request a modification. This may lower your child support payments. On the other hand, all raises, major bonuses, or side job income should also be reported to the payee, so s/he can determine whether or not to apply for a modification in the other direction.  

Angry ex-spouses commonly hire private investigators to track your habits and prove uncited employment, side jobs, etc., so it’s not a good idea to hide or be dishonest about any means of income. Again, the online child support guideline calculator is the best resource for determining if current income changes would alter child support payments.  

Quitting a job or not getting a new job when unemployed 

Unemployment and/or disability status does not change or stop your current child support order. You owe the amount stated in the order regardless of your personal or financial circumstances – unless and until a modification is granted. If you are at all employable, the court determines your earning potential and bases child support payments on that figure – regardless of whether you have a job or not. 

Pay precisely what the court order dictates 

If you have a court order, always pay the stated amount, no matter what. So, for example, let’s say you’ve fallen on hard times, and your generous ex says you can pay less until you get on your feet – your answer should be, “thank you, but no thank you.”  

While you’re welcome to apply for the aforementioned child support modification, you are obligated to pay the court-ordered amount, period. If your ex were to turn you report that you’ve paid less, you’ll owe back payment and interest.  

Not adjusting your budget (and paying something) immediately 

California uses a precise mathematical algorithm, that takes the combination of both parent’s incomes, and determines a specific percentage of that as the “cost of raising their child(ren). That percentage is used for resulting mathematical calculations to determine who owes what to whom. 

We often find that clients are surprised at how steep these individual payments can be. And, most of the time, those payments are owed from the time the person responsible for paying the support moves out – even if the divorce papers haven’t been filed yet. 

If you are pretty sure you’ll be paying child support, use California’s Child Support Guideline Calculator to determine the estimated amount you’ll be paying and plan your budget accordingly. Getting used to life without that money now makes it easier when you need to start paying. Note: Child support may be allocated to parents in 50/50 child custody arrangements in order to ensure a child’s reasonable standard of living is upheld in both households.  

We’re Here For You

Are you interested in paying a fair and honest child support payment, and remaining in the court’s good graces? Contact me here at The Law Offices of Gerald J. Falzone. I’m prepared to meet with you for a consultation or two in order to answer questions or help you establish estimated child support payments, to facilitate child support or custody mediation, or to represent you in court. You can also give our office a call at (510) 521-9500. 

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.

How To Tell Your Spouse “I Want A Divorce”

how to tell your spouse i want a divorce

Every year, more than 800,000 couples throughout the U.S. decide that they want to get a divorce.

Deciding to get a divorce is never easy, nor is it easy to tell your spouse that that’s what you want.

Have you been putting off having this conversation for weeks, months, or even years? It’s a hard conversation to have. The sooner you do it, though, the sooner you can move forward with your life.

If you’re ready to tell your spouse, “I want a divorce” but aren’t sure how to go about it, keep reading.

Listed below are some tips that can make the conversation a little easier.

Be Honest With Yourself

Before you sit down and tell your spouse that you want a divorce, it’s important to know that this is truly what you want.

Once you throw out the “D” word, your relationship to your spouse will change. Don’t say it unless you really mean it.

Knowing whether or not a divorce is right for you is tricky, to say the least.

Be brutally honest with yourself about your desire for a divorce. You may also need to enlist the help of a therapist or counselor to help you figure out whether you want to proceed or not.

Consider Your Spouse’s Current State

Think about your spouse and how they’re feeling at the moment.

Do they seem blissfully ignorant and unaware that you’re unhappy? Or, is it clear that they’re unhappy, too?

Knowing where your spouse stands can help you decide the best way to broach the subject of a divorce.

Choose The Right Time And Place

No matter what your spouse’s current state is, there is definitely such a thing as a good time and place to talk about your desire for a divorce.

Do not bring it up ten minutes before you have to leave for work or while you’re out grocery shopping. Plan ahead for the conversation.

It may seem impossible, but you should try to choose a time and place when your spouse will be most receptive to your comments.

At the very least, plan to discuss it when you both are least likely to be stressed and will have the time to talk things out.

Choose Your Words Carefully

There’s also a right and wrong way to tell your spouse that you want a divorce. 

No matter how fed up you are with the marriage, there’s no need to be cruel. Remember, too, that the words you use will have an effect on the way they react.

If you choose the right words and avoid placing blame on them for your problems, you’re more likely to have a productive conversation. This isn’t always the case, of course, but choosing the right words can definitely help.

Work with a counselor if necessary to figure out what you’re going to say beforehand.

Be Firm Yet Gentle

It’s not just about the words you say. It’s also about the way you say them. Make sure that your tone is firm, yet gentle.

Be clear about what you want. Don’t hedge or try and sugarcoat things. At the same time, though, there’s no need to be overly blunt or aggressive.

You may want to practice expressing your desire for a divorce before you sit down and have the conversation. That way, you can make sure you’re using an appropriate tone. 

Prepare For Their Reaction

In addition to preparing your remarks, you also need to prepare for your spouse’s reaction to those remarks.

Do you think they’ll take it well and agree with you and your concerns? Will they cry or get angry?

No one knows with total certainty how they’re going to handle those situations. It’s a good idea to consider several different possible reactions so you can be prepared no matter how your spouse responds.

Take Safety Precautions If Necessary

Is there a possibility your spouse will become violent when you tell them that you want a divorce? If so, it’s important to take precautions to keep yourself safe.

Consider having the discussion in a public place where your spouse is less likely to make a scene.

If you prefer to talk in private, at least make sure that someone knows where you are and when you’re going to have the conversation. That way, they can come and check on you or be waiting on standby just in case. 

It might be a good idea to have your cell phone handy with 911 pre-dialed before you begin the conversation.

Don’t Discuss The Details Yet

Immediately after you announce that you want a divorce is not the proper time to go over custody issues or other details.

There will be plenty of time for that, and it’s best if you can have those discussions after you’ve officially filed for divorce and have a divorce lawyer or mediator present.

If you discuss details now, when emotions are running high, you’re more likely to act rashly and may say or do things that you regret later on.

Don’t Involve Your Kids

Finally, don’t get your kids involved.

They shouldn’t be present during the discussion and you should do your best to keep them out of the conversation. This is an issue between yourself and your spouse.

Your kids will have to know about the divorce eventually, but they don’t need to be present at this time.

This rule applies whether your kids are adults or are young and still living at home.

What To Do After Saying, “I Want A Divorce”

After you have the hard conversation and told your partner, “I want a divorce,” it’s important to have a plan in place for how you’re going to proceed.

It’s good to have already hired a lawyer, too.

If you live in or around the Bay Area, contact the Law Offices of Gerard a Falzone today.

We make it easy for you to set up a free phone consultation so we can learn more about your case and help you figure out the best course of action.