Tag Archives: marital property

Why Does Divorce Have To Be So Complicated?

Why Does Divorce Have To Be So Complicated?The process of legally separating from somebody with whom you’ve been previously tied, perhaps for many years, sounds like a complicated process. That’s why most people don’t think getting a divorce is going to be fast and pain-free. However, the lengths many people go to during a divorce can make the process so complicated that even the cynics among us find it miraculous.

Why are divorces really so complicated though? While it depends on the couple, and every situation is different, there are some common reasons why a divorce can be a long, drawn-out affair.

Real Estate And Assets

When a couple owns a home together, trying to decide who stays in the house can be a major issue. If the couple used joint funds to buy the home, determining who will stay and how funds will be paid to the person relocating can be very tricky. It can also make tempers flare since many situations lead to both partners feeling like they’re entitled to stay in the home.

Other joint assets like investment and retirement accounts complicate the divorce process further. Splitting investments isn’t always as easy as cashing out an investment plan, and in many cases, dividing them is the best choice for both partners.

Figuring out who gets what and why can be a serious problem however, especially when both partners want to retain the same assets.

Spousal Support

Spousal support, or one partner paying to help the other support themselves after a split, can be troublesome for many couples. The most common problem when it comes to spousal support is the amount one partner pays the other.

Often, the individual that has to pay spousal support may feel like they no longer should have to pay for their partner since they’re no longer connected to them. At the same time, the person looking to receive financial support may feel they’re owed payment because of money earned in the relationship when they were an equal partner.

When couples can’t resolve this issue on their own it is often up to the courts to determine what is fair. That makes the issue of spousal support one that could take months or years to completely hammer out.

Do You Have Children?

One of the biggest reasons divorces can become complicated affairs is trying to figure out who will take care of the children and when. Many parents want equal custody, but in some cases, one partner may want that while the other wants full rights to care for their children.

In some cases, you’ll also find that parents argue over when they get to have their children at the home. If both partners work for example, weekends are going to be when parents want to spend time with their kids.

Cases where one parent things the other is an unfit caretaker also may divorce very complicated. These divorces can drag on for months and often turn nasty very quickly.

Hiring The Right Attorney

Getting a divorce isn’t always going to be a simple task. Even when young couples with few assets and no children get divorced, the process can take months.

Hiring a skilled attorney to help you negotiate divorce is something you need to do. Even if you don’t want a contentious divorce – and nobody really does – you need somebody on your side to make sure whatever arrangements are made are fair to you.

Hiring the right attorney can also keep conversation between you and a former partner from turning into screaming matches. If you’d like a free telephone consultation, please contact us at (510) 521-9500 for our East Bay office, or (415) 482-7800 at our San Rafael office.

What is a Malignant Divorce?

malignant divorceThere is no question that divorce is a time of stress and can bring out the worst in us for a period of time. There aren’t many people alive who don’t have the ability to respond negatively to divorce.

But sometimes the negativity and stress go beyond normal and develop into what is now being called a “malignant divorce.” It’s one way of describing a divorce that involves high-conflict and often toxic behavior. Fortunately, most divorces don’t descend into the kind of hostility and potential danger that malignant divorces do.

What Are Characteristics of a Malignant Divorce?

Hostility perhaps best defines a malignant divorce. Instead of legal negotiation when it comes to issues such as child custody and how to divide marital assets, a couple resorts to hostile confrontation. Malignant, high-conflict divorces typically involve the following personality types and the resultant behaviors which come with each:

The Victim.  When one of the parties in the divorce is obsessed with the idea that they’re wronged – as well as the certainty of it – then they’re acting in the role of the victim. He or she believe that they’ve wasted years of their life being with you, or that you’re now unfit to take care of your children.

Control Freak.  He or she may have been a control freak during the marriage and is now taking it to a new extreme during the divorce. He’s now planning every detail, such as documenting your incompetence, so he cannot lose in court.

Narcissist.  This is a common type of behavior type when it comes to malignant divorces. The person is completely self-centered and self-serving, and even more so now during your divorce. He or she will completely dismiss your needs and all of the history of devotion and companionship you once had.

Avenger.  This is the most dangerous type of participant in a malignant divorce and the behavior can be a natural extension of the traits listed above. The avenger is not just interested in winning, but is obsessed with you losing and, hopefully, losing in a miserable way.

What Else Characterizes a Malignant Divorce?

The speed at which it occurs, as well as the ferocity, are two common characteristics of a malignant divorce. What was once an ordinary, functioning couple, is now two people at each other’s throat in what seems like the blink of an eye. Resentments that have festered over the years are suddenly out in the open, and with a vengeance. Pent-up anger comes pouring out and what was once love turns quickly to hate. A person that you were once sexually attracted to now seems repulsive.

As previously mentioned, the ferocity of a malignant divorce is enough for both parties to renounce the good history they had together, including the family you nurtured, to be swept away in anger and victimization, and an obsession with being the one who ‘wins’ when the divorce goes to court. Normal communication dissolves into accusations, blames and threats. Everything, from the house, to the kids, to dividing of the assets becomes an issue.

A reasonable divorce, on the hand, occurs when the couple value what they had and mourn the loss while recognizing that the relationship has ended. But one of the ironies of divorce is that the force needed to blow apart what was a close-knit family is enough to bring on the ferocity of a malignant divorce.

If you’d like a free telephone consultation, please contact us at (510) 521-9500 for our East Bay office, or (415) 482-7800 at our San Rafael office.

7 Tips for Positive Communication with Your Ex

communication with your ex

Communication is an integral part of any type of relationship, be it personal or business. While communicating should be easily undertaken, things can sometimes get so complicated that even the simple act of saying “hello” becomes difficult. Divorce undermines the line of communication between couples, as emotions circulating between them makes it challenging for them to remain courteous to each other.If you are in such a situation, don’t despair.

This article highlights 7 tips that will help you maintain positive communication with your ex-spouse:

Consult A Third Party

If it proves difficult for the two of you to discuss important issues concerning the children, consider seeking help from a third party. You can consult a friend you both trust, a therapist, or a member of the clergy. A therapist can teach you the significance of not engaging in conflicts and how to control your emotions in case you’re tempted to fight back when provoked.

Set Clear Boundaries

You need to set clear boundaries and stay within them, especially where children are involved. It is imperative that each of you understands the value of one another’s relationship with the kids and respect that relationship. It is best when such boundaries are clearly stated in your final divorce pronouncement.

Let The Past Be The Past

Never bring up the past when resolving problems. Talk over the issue at hand and if you can’t remain calm and collected as it’s advisable to excuse yourself from the conversation. You should treat your ex-partner in a similar way you would a business associate.

Schedule appointment to talk over issues, meet in a neutral place, and always be punctual and considerate. Name-calling and blame games should be out of the equation if you want to remain in good talking terms with your ex-spouse.

Be Empathetic

Your ex-spouse has fears and concerns just like you do. Recognizing that will make you feel more empathetic and ready to find a solution to any problem that may arise. Empathy is an excellent equalizer. Once you can see and understand that your ex-spouse loves the kids just like you do, you’ll be less prone to engage in conflict.

Be Mindful Of Your Children’s Needs

It is very important to know what your children need from you as a parent. While you may find it difficult to be around your ex-spouse, prioritizing the needs of your children will help develop the kind of relationship that is beneficial to them.

Practice Active Listening

Make a deliberate effort to not only hear, but also understand the whole message being relayed to you. Moreover, it’s imperative that you remain objective and non-judgmental when listening to your ex.

Respect Your Ex’s Family

Interacting with your ex-spouse’s family members can be an unpleasant and an awkward experience. However, this interaction is inevitable as your children are connected to both sides of their family. Hence, it is everyone’s best interest to get along for the good of the children.

In every relationship, communication is essential for conveying important messages and clarifying issues that may not be well-understood. However, when divorced, it becomes quite challenging to remain in good communication terms with your ex-partner. The marriage may be over, but parenthood reigns on. As such, you need to find ways to positively communicate with your ex-spouse for the well-being and happiness of your children. That’s where the aforementioned tips come in handy.

Tax Implications to Consider Following a Divorce


Going through a divorce is not an enjoyable experience to say the least. It is one of the most stressful things that two people will ever have to go through in their lives. When a couple decides that it is time to go their separate ways, they have a lot to think about, a lot of decisions to make. They have to think about their kids and where they will go, what to do about their house, their pets, other assets and so on. One other thing that has to be taken into account is the tax implications that come into play when you are talking about a divorce.

Taking care of things on the tax side is pivotal:

Settling on Property

One of the tax implications that goes along with a divorce is that of figuring out what to do with property from a tax perspective. It is far more difficult to figure out tax implications relating to property than it is dividing up the property in the first place. Certain assets, such as a home with a mortgage, are going to have tax liabilities or benefits, while others may have no tax implications at all.

Child Support

Child support payments are not deductible on your personal income tax return, no matter what other people may actually tell you. So when you are paying child support, do not do so thinking that you are going to be able to get a deduction as a result of it. This can cause issues with the IRS when you try and use these things to take away from your taxable income.

Tax Exemptions

When you have children you have the ability to get tax benefits and exemptions. A child can get you an exemption of thousands of dollars and figuring out who is going to be able to claim the children and the exemption or exemptions is very important. Generally whoever has custody of the children is going to be able to include them on their tax return.

Alimony Payments

Alimony payments, contrary to child support payments, are something that is tax deductible. If you are the person that is paying out the alimony payments, you get to deduct these to reduce your taxable income.

Tax implications relating to a marriage are important to pay attention to. There are just so many different areas where taxes can come into play. When you are talking about property, alimony, child support, understanding how to file your return and what you can deduct and not deduct is pivotal to accurately settling with the Internal Revenue Service.

Why You Would Need a Paternity Attorney?


Establishing paternity isn’t a forthright case of completing the paternity acknowledgement form and ensuring your name is not omitted on the child’s birth certificate. Signing the form may only acknowledge you as the dad and only serve as an authorization for the state to deduct child support from your salary. Unfortunately, it does not mean you are sharing the child’s custody.

This case serves to show how paternity issues can be so complex and emotionally overwhelming that the need for expert help is almost inevitable. In this article, we examine why a paternity lawyer would come in handy if you find yourself in a paternity tussle.

Who is The Child’s Father According to Law?

Paternity laws are quite complex, given that the legally recognized father may not be the child’s biological father. Here’s a look into how law categorizes fathers:

  • Presumed Father – This is a married man who at the time of child’s conception or birth, was married to the child’s mother; or legally accepted to be the father to his wife’s baby; or behaved as if the baby was his own.
  • Acknowledged Father – This is unmarried man who has self-confessed to being the child’s father.
  • Unwed Father – This is an unmarried man who begets a child with a woman.
  • Step Father – This is a man who marries a woman who already had a child with another man

Each of these fathers has their obligation’s according to law, meaning that you need a paternity lawyer to advise you accordingly depending on where you fall in these four categories.

A Paternity Attorney Will Help You Secure Visitation Rights

With the help of a paternity attorney, you’ll not only be able to establish paternity, but you’ll also have visitation rights. Your child will also benefit significantly from the development. He will have entry to your health records and benefits. Most importantly, he will also benefit from the fact that he has eventually known the biological father.

You Also Need a Paternity Attorney If You’re Challenging Paternity

Sometimes, you may go to court to challenge paternity. In such a situation, there are a whole lot of things that will be required from you, which include affidavits, forms, and lawful advice. Therefore, the best thing you’ll have to do is getting a paternity attorney. You can as well find an attorney who would deliver the results as a separation attorney, particularly if the paternity case was influenced by a split up, annulment, or separation.  Nevertheless, it is imperative that you hire an experienced attorney to help you challenge the paternity in court.

The birth of a child comes with it joy, love, as well as hope for the future. To the unmarried partners, it brings about the added responsibility of determining the paternity of their child. All in all, establishing paternity is among the important steps that parents need to take, especially the unmarried, as it creates a legal relationship between the father and the child.

Paternity attorneys normally have the ability to handle various issues that can have a bearing on the mother, the father, and their child, such as custody, visitation, and child support. Besides, it is important to present evidence in court to help establish or challenge paternity. Therefore, you need to hire an experienced paternity attorney to help represent you in court.

Your Child and Your Divorce

your-child-and-your-divorceDivorce will always be the end of something to which your child or children are accustomed, but this transition often brings plenty of positive changes. With a little help from the countless experts devoting their studies to helping everyone involved in this kind of situation, you can showcase the good coming from this change and diminish its more worrisome effects. Following these tips should improve you and your children’s abilities to stay positive through the trying times to come.

Inspire straightforward, positive and open communication

Solid communication between everyone involved is the key to making the best of this situation. Experts agree that the level of hostility between parents is one of the most influential factors for children coping with divorce. Regardless of how things ended with you and your ex, you both need to put work into keeping your relationship strong and honest.

Your child or children must also be given a voice. Encouraging children to talk it out with someone empowers them, which is vital for them when facing such a potentially stressful future. Not listening to them incurs the opposite effect, and any loving parent can see why essentially taking away the child’s voice at this time would be plain awful.

This includes both parents’ ability to avoid “sugarcoating” anything. You cannot make excuses for your ex or the situation, but you also don’t want to blame or insult your ex, either. “Badmouthing” your ex is a lose-lose-lose situation. Your child will think less of one, if not both of their parents, and possibly feel worse about themselves in turn. Both “badmouthing” and “sugarcoating” can put your child or children in situations where they feel like they have to choose a side. This should be avoided at all costs, as the comfort of any children in these moments relies greatly on their ability to feel supported by both sides.

Give everyone involved their opportunity to speak with a psychologist

Sometimes we could all use a professional listener, which is a key component to the psychologist’s duty. The ability to speak with someone outside of the family and uninvolved with the divorce lets kids speak their mind freely. This can be vital to their coping ability and overall comfort with what’s going on, and it also gives them a chance to speak with a professional about any other personal matters that could be troubling them.

If you and your ex are having trouble coping with one another without hostility, you should both reach out for psychological support as well. As mentioned before, the level of hostility between you and your ex plays a huge role in the children’s ability to flourish through this trying time. The ability to talk with an unbiased professional goes hand-in-hand with the previously mentioned strategies of openness and proper communication.

Learn to say “hello” and “goodbye” properly

Sending the kids off for their time with the ex can be very difficult, especially at first, but your strength in these times affects your child’s strength. Leave with a smile when you drop them off, and never let them feel like you’re upset about leaving them with your ex. Make transitions as positive and peaceful as you can, and find a way to leave that works well for you, your ex and your children. Allow your child feel as little tension about these drop-offs and pick-ups as possible.

With some hard work from you and your ex, your two new families can thrive instead of just survive through these tense times.

8 Questions to Ask a Potential Divorce Attorney


Hiring a divorce attorney and proceeding through the divorce process does not have to be the horrific endeavor that is commonly portrayed in pop culture and media. While it is true that during a divorce, emotions do run high, what is important is getting the right attorney to help you with the process. There is a lot of information available but critically, not all this information is accurate or helpful in making a determination if a specific attorney is right for your case. Knowing what to ask a prospective divorce attorney is important to your situation and circumstances. Therefore it is vital to ask right questions of any attorney you are considering.

Eight Important Questions To Ask A Prospective Attorney

Due to the fact that speaking with an attorney about your pending divorce involves discussing personal aspects of your life, it is crucial that you feel comfortable discussing with your divorce attorney all the relevant information necessary. To help ascertain how your potential attorney can help you, here are the eight important questions to ask.

  • Is Family Law a specialty for you and how many years of experience do you have in Family Law?
  • Who will be working on my case? Will there also be associates or junior attorneys assigned to my case?
  • What steps are involved in the divorce process?
  • Are you familiar with the local Family Law Judges and how they tend to rule?
  • Are their any resources you recommend for clients?
  • Will we sign a written retainer agreement?
  • Will the invoice be itemized?
  • How will you communicate with me and how often?

It is important for your situation to find the most qualified attorney possible. Family Law is an ever changing construct of different laws, rulings or precedents and societal norms based on a wide range of variables and will differ from state to state. However, the basic questions above allow you to evaluate a potential attorney and their ability to assist you with your specific case and circumstances. Other aspects such as children in the relationship and property will and can have an effect on your specific case and in some situations the scope of the case could be widened to encompass other attorneys as part of the process. However, these questions are still valid for those rare circumstances where this situation occurs.

Your attorney is your trusted partner in handling your divorce case. When engaging a prospective attorney, be sure to provide the attorney with as much initial information as possible so the attorney can determine how best to help you. Remember, the attorney is your representative and therefore should have the same information that you do concerning your individual circumstances.

Name Change and Divorce


Divorce includes many pressing issues like child custody and alimony, it is often easy to overlook some of the smaller long-term decisions you need to make. Changing your name is a decision you should consider carefully before finishing your request for a final judgment.

Some things to consider as you decide if you want to keep your married name or change it.

The Process.  The process of changing your legal name during a divorce in California is simple. You simply need to request that a name change order be included as part of the final judgment in your divorce. This is the easiest way to take care of changing your name if you are certain you want to. However, if you are unsure, there is also a provision in California law that will allow you to request an alteration of your final decree at a later time. You can also have your name changed to something other than your maiden name, but this requires you to follow the process for a standard Petition for Change of name, and is a separate process from your divorce proceeding.

Impact on Children.  There is often a strong emotional reaction to names for people. Wives and husbands often feel the need to have the outward sign of a name change to signify the end of their relationship. But, parents are often concerned that their children may suffer from having a different name from their mom. In most instances, the courts will not change the name of minor children as part of a divorce proceeding, even if their parent has a name change. The good news is that children having different names from their parents is not nearly as stigmatized as it once was in society, nor is it confusing for things like school records. If you desire to go back to your maiden name, be sure to talk with your kids about the situation and let them know the change in name does not change your relationship with them. Lay the groundwork for them to be able to come to you with any concerns that might come up about having a different name than yours.

Updating Your Information.  If you have no particular feeling toward your last name, and there is no overriding need to change it, the biggest factor in your decision may be whether or not you want the hassle of updating all of your accounts and documents to reflect a new name. Take time to make a list of all the various items and accounts you will need to update. The most important are:

  • Driver’s License
  • Social Security Card
  • Bank Accounts & Credit Cards
  • Passport
  • Loans or Mortgages
  • Investment Accounts

Most other items can be updated as you run across them, but having a list of everything does help make the process easier.

Impact on Your Business or Profession.  If you are a professional, or own your own business and it is associated with your name, it may serve you better to keep your current name. Often times after being married for many years, people will choose to keep their married name, or hyphenate back to their maiden name, to maintain the name recognition they have worked so hard to earn over the years.

If you have questions or aren’t sure about whether or not you want to change your name, your attorney can help you list out and weight the pros and cons.

How to Prepare for Child Custody Mediation


Going through a divorce always means challenges and adjustments. If there are children involved, one of the biggest challenges often revolves around child custody issues. When parents can’t agree on child custody arrangements, mediation can help prevent bitter custody disputes and lengthy court battles by creating a child custody plan that’s agreeable to both parents.

What is Child Custody Mediation?

Most courts encourage parents to use alternative dispute resolution (ADR) programs instead of a court trial to deal with child custody disputes. Mediation, the main ADR for child custody cases, saves parents and courts time and money that are typically spent on lengthy court trials. During mediation, both parents and their attorneys meet with a neutral third party, a mediator, to discuss child custody issues and concerns. Although there is no judge present, the results of the process can impact the outcome of your child custody case, so it’s important to be well prepared. By understanding the process and preparing for discussions, your child custody outcome will be more favorable.

Preparing for Mediation

To prepare for mediation, there are three important steps you should follow: gather information and evidence, outline your issues and concerns, and establish your objectives.

Gather Information and Evidence

  • Information – Gather relevant records such as your child’s medical history and school records. Write out daily schedules for you and your child and prepare your requests for visitation and custody proposals, including holidays and birthdays. Present any information that’s in your favor to substantiate your requests.
  • Evidence – If you’re disputing custody of the other parent due to poor parenting skills or an unhealthy home situation due to abuse or violence, drug or alcohol use, or mental health issues, you will need evidence as proof. Although discussions during mediation are considered confidential, certain inappropriate parental conduct will be reported to the court.

Outline Your Issues and Concerns

Before mediation begins, outline and organize important custody issues and concerns for discussion:

  • A regular visitation and child custody schedule
  • Exceptions to the schedule like holidays, birthdays and vacations
  • School and after school activities and events
  • Special concerns like religious preferences, medical care, and emergencies
  • How parents will communicate with each other concerning the children
  • Any future changes to the custody agreement

During the process, the mediator will help you with discussions on child custody issues and concerns. For best results, it’s important for each parent to discuss issues openly and listen to requests by the other parent. To come up with a fair child custody agreement, each parent should stay focused on solutions that are in the child’s best interest.

Establish Your Objectives

It’s important to discuss your objectives with your attorney prior to the mediation process. If you want full custody, make sure your attorney knows that before mediation begins. If your ideal scenario proves impossible during discussions, make sure you’ve discussed a backup plan with your attorney so you know what your next steps will be. You can set up phone visitations on days you don’t have visitation, or set up a special agreement for school events and birthdays. Courts encourage parents to work together to allow the non-custodial parent meaningful access to the child’s life.

Finalizing the Mediation Process

In most child custody cases, the mediator has a big impact on the outcome of  mediation. The mediator presents reasons for their conclusion including detailed information that’s discussed during the mediation process by both parents. If a child custody agreement can’t be reached during mediation, the mediator will make recommendations which are typically accepted without question by the court.

Divorce Terminology


When going through a divorce, you will likely encounter terms you may not be familiar with. This guide to divorce terminology will help you better understand them.

Alimony: Refers to money paid by one spouse to the other that is separate from child support. Alimony is sometimes referred to as spousal support or spousal maintenance. It may be granted on a temporary basis while the spouse adjusts to being single, or permanent to allow the receiver to maintain the lifestyle he or she enjoyed while married.

Annulment: A method of ending a marriage by declaring that it was never valid to begin with. Annulments are sometimes given because one party is underage or of unsound mind, but may also be granted when there is fraud or coercion.

Arrearage: A sum of money that is past due for the payment of child or spousal support.

ATRO: Automatic Temporary Restraining Orders, which are court orders included in each California divorce summons. The standard language in an ATRO prohibits either party from removing children from the state of California, canceling insurance policies, borrowing against the estate, or disposing of property.

Child Support: A sum or money paid by the non-custodial parent to the custodial parent to help offset the cost of raising any children produced by the marriage.

Child Support Guidelines: A set of guidelines that is used in calculating child support. The California Department of Child Support Services is responsible for monitoring child support payments between parents, and also provides a calculator that you can use to estimate payments.

Community Debts: Debts that a husband and wife owe jointly.

Community Property: Consists of everything that a married couple owns together, which may include real property, stocks, and pension benefits.

Complaint: The formal document filed with the court which states that one party wishes to divorce the other and the grounds for doing so.

Custodial Parent: The parent who has the child(ren) living with him or her the majority of the time.

Date of Separation: Under California law, the date of separation is the day when you and your spouse mentally ceased being husband and wife. It is not necessarily the date when one party left the marital home.

Ex-Parte: An emergency request from the court on a family matter due to extreme circumstances.

Guardian ad Litem: An attorney who may be appointed by the courts in order to represent the best interest of the child(ren).  A guardian ad litem is not automatically appointed, but can be requested by either party through an attorney or by visiting the Equal Access Project for assistance.

Irreconcilable Differences: Means the marriage is irretrievably broken, and there is virtually no chance of reconciliation. Irreconcilable differences is the standard by which California divorces are granted.

Paternity: Involves legally determining fatherhood, and is required before child support is ordered.

Pre-nuptial Agreement: An agreement entered into by the parties that spells out certain rights for each one in the event of a divorce.

Restraining Order: An order preventing one party from contacting or harassing another. This differs from an ATRO in that it is not automatically granted by the court, but instead is something that one of the parties must petition for. Restraining orders are typically granted in cases of domestic violence.

Visitation: The right of a non-custodial parent to spend time with his or her children after primary custody has been established.

Waiting Period: The amount of time required between the filing of paperwork and the actual order from a judge dissolving the marriage. In California, the waiting period for a divorce is six months and one day.