Articles Posted in Divorce

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So you’ve been married for 9 years and you know your marriage has hit a point where you are ready to get out. Perhaps you and your spouse have talked about your impending divorce or maybe it’s just a thought you’ve had in the back of your mind lately.

Either way, is it worth it to stretch the marriage past that ten-year mark? In California, there are several reasons why it might be in your best interest to reach the ten-year marriage mark before seeking to get a divorce

Spousal Support

There are special spousal support rules in California for marriages that are ten years or longer in duration. If a marriage lasted less than ten years, the court will typically order spousal support for a period equal to one half the length of the marriage. However, for a marriage that lasted more than ten years (from date of marriage to the date of separation), the court recognizes it as a “marriage of long duration“. This means that the court retains jurisdiction over spousal support and may not set a termination of spousal support date without the parties’ agreement. Thus, the spouse entitled to spousal support may be entitled to receive spousal support for life or until remarriage. The parties will be required to come back to court in the future to determine whether the spousal support obligation will continue.

Military Benefits

A marriage lasting at least ten years is also important if your soon-to-be ex-spouse is in the military and will be eligible for retirement benefits. If you were married for at least ten years and that time overlaps with ten years of military service, then you will be eligible to qualify for direct enforcement. This means that your portion of military retirement pay will be paid directly to you by the military finance office (who will garnish the service member’s retirement and pay the ex-spouse directly), rather than the service member writing you a check each month.

Social Security Benefits

Another benefit of a marriage of at least ten years is that the Social Security Administration considers it to be a “long-term marriage,” making you eligible for Social Security benefits based on your soon to be ex-spouse’s earnings record when you reach the age of retirement (as long as you aren’t remarried to another person at the time). Read more about retirement benefits and divorce.

No matter how good the financial benefits seem for a marriage lasting longer than ten years, there are some situations in which you should not wait. If, for instance, there is any danger to you or your children, then it is important for you to focus on your safety rather than the potential benefits of staying in the marriage for a longer period of time.
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Word leaked recently that former Florida congressman and host of MSNBC’s “Morning Joe”, Joe Scarborough, quietly divorced his wife, Susan Waren, back in January 2013. The couple, who actually filed for divorce in September 2012, was married for 12 years and they have two minor children together. Despite going through a divorce, the couple apparently managed to keep their divorce under wraps.

Many clients who are considering divorce or already in the process of a divorce wonder what they should keep to themselves during a divorce so that they can have a “quiet divorce” like Scarborough. Keeping a divorce quiet will ride on what and how much you share with your children, spouse, friends, coworkers, the Court, etc.

Keeping Quiet With Your Children
If you are going through a divorce and you have children then it is important that you consider drawing boundaries for yourself regarding what you share with the children – especially young children. This doesn’t mean that you need to lie or hide things from your children. But rather, information pertaining to the divorce should be rephrased in a manner that won’t be as detrimental to the kids’ well-being. For instance, your children don’t need to know who’s “fault” it is that mommy and daddy are getting divorced or what the details are regarding how your assets will be divided. Rather, your children simply need to know that both during and after the divorce they are safe and will be loved by both parents just the same. When it comes to divulging your divorce to your kids, “less is more” if you don’t particularly want their teachers, classmates, and friend’s parents to know about your private life.

Keeping Quiet With Your Friends, Coworkers, and Spouse
What you discuss with your attorney, both written and oral, is subject to the attorney-client privilege. As the client, you are the holder of the attorney-client privilege and only you can waive that privilege. If you want to keep your divorce quiet and not jeopardize that privilege by publicly disclosing the communication, then don’t be too liberal in the information that your share with your friends, spouse, coworkers, etc.

Keeping Quiet With the Judge
If you feel like you need to talk to someone about your spouse or your divorce at large, the Court might not necessarily be your best outlet. The court only wants to hear evidence that is relevant to the issues at hand, separation of assets and debts or valuation of property for instance, not whose fault it is for the divorce. Rather, you might consider meeting with a counselor so that you are able to get everything off your chest in the right setting.
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For most litigants in San Diego, divorce is a heart-breaking and devastating process. Much of the fear, anxiety and turmoil are created by the many “unknowns” a divorcing spouse faces. If a person is getting divorced for the first time, he or she generally has no idea what to expect with regard to finances and child custody and visitation. Local divorce attorneys can provide a road map of the divorce process but cannot offer solid guarantees for the future. In the beginning of a divorce case where custody and visitation is at issue, many parents ask: “What is normal?” Although there is no general consensus of “normal” in family law, a number of arrangements have become “typical”.

With the holidays approaching many divorcing parents are anxious to find out how that first holiday season should be handled. Every set of facts is unique and how the holidays proceed is generally dependent on the relationship between the parties. In some cases the parents are proceeding with an amicable divorce and agree to share the holidays together with their children. Although this might not be the most comfortable arrangement for the parents, it reinforces stability for the children during this tumultuous time. If the parents cannot get along, it may not be advisable to spend holidays together in the presence of the children. Another alternative for parties capable of working productively together is to share the children on each holiday. For example, the children might spend Christmas morning with their mother opening gifts and then later go with their father to enjoy Christmas dinner.

If you are a parent looking to arrange a more long-term child-sharing schedule for the holidays, you might consider the following options:

Alternate Holidays Every Year

Frequently parents set up an “alternating system” in order to fairly distribute holiday time. In this type of system one parent will have the children on certain holidays (for example Christmas and Easter) in even numbered years and have the children on the other holidays (for example Thanksgiving and New Year’s Eve) in odd numbered years. The other parent will have the children on the same holidays alternating years. By breaking up the holidays the parties ensure they both have some holiday time with the children each year.

Exchange Holidays Within the Year

In some cases, the parties have different holiday priorities and are able to agree to a holiday schedule wherein they have time with the children on all holidays which are important to them every year. This is possible in situations where one parent celebrates different holidays (Hanukkah) than the other (Christmas). Some families emphasize Christmas Eve while others focus on Christmas Day. The most obvious example of this option would be where the children spend Mother’s Day with their mother, and Father’s Day with their father. Parents are encouraged to discuss these possibilities when determining an ongoing holiday schedule. In all cases, if a holiday schedule exists, it does take precedent over the general timeshare plan.
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The issue of spousal support is often a hot topic in divorce proceedings. In today’s economy, one specific aspect of spousal support that becomes a very important consideration the couples going through a divorce is whether the spousal support order will be modifiable or non-modifiable. Typically, an agreement for spousal support awarded to either party is subject to subsequent modification or termination by court order. However, Family Code Section 3591(c) provides that the parties may agree in writing (or oral agreement entered into in open court) to non-modifiable spousal support.

Modifiable spousal support means that a party could later file a post-judgment action with the court to request an increase, decrease or termination of spousal support upon demonstration of a change in circumstances that would justify a change to the original spousal support award. There are several reasons that a spousal support order might need to be changed. Perhaps the spouse who is receiving support no longer needs as much spousal support because he/she has had an increase in income or is cohabitating with a person of the opposite sex. Or if the supported spouse remarries, then spousal support needs to be terminated all together. On another note, sometimes the payee spouse, for reasons out of his/her control, has a significant decrease in income and can no longer afford the amount of spousal support that was ordered. The court would likely consider these factors in making a modification to the support order.

Non-modifiable spousal support, on the other hand, means the spousal support award will not be subject to modification or termination. Many divorcing couples may wonder if this is a good idea. The most common reasons why parties would want to agree to non-modifiable spousal support is that it gives both parties a sense of certainty because they know exactly how much they will be paying or receiving each month. This helps parties budget accordingly for future payments and expenses without having to worry that the amount may change at any time. Another reason a party would be inclined to agree to non-modifiable spousal support is if that party is expecting an increase in his/her income or a major upcoming payout, then he/she would not have to share that increase in income with his/her spouse.

While it may seem like there are some pretty good reasons to agree to non-modifiable spousal support, it is important to remember that if the parties waive their right to modify, it does not matter if there is a change in circumstances – a court absolutely will not modify the spousal support award. So, if the party receiving support wins the lottery jackpot, the payor spouse would still be stuck paying spousal support to him/her. Or, on the other hand, if the payor spouse becomes completely disabled and can no longer afford to pay spousal support, he/she will still on the hook for a spousal support payment, despite his/her inability to work.

Despite the uncertainty with modifiable spousal support, parties seem to have greater motivation these days to choose modifiable spousal support due to the high rate of unemployment. To ensure that you make the right decision regarding modifiable or non-modifiable spousal support it may behoove you to seek the assistance of an experienced divorce attorney.

Read reviews of Nancy Bickford, San Diego Divorce Attorney
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The cost for a college education can be astronomically high these days. Of course, most parents are still eager for their children to get a college education. However, a major concern for divorcing parents with children is not only how they will pay for college once their child graduates high school, but who exactly will pay for all of the expenses that come with a college education. For some divorcing couples, this might not be an issue if money has already been earmarked for college. For other divorcing couples, the thought of their child being accepted to college can cause bittersweet anxiety.

Generally in California, child support payments will cease when the child reaches the age of 18. Beyond that, divorce attorneys will advise that there is typically no legal obligation for either parent to pay for the child’s college education, unless so ordered by the courts. So what happens, for instance, when one of the divorcing parties plans to remarry and ends up having other children who have their own tuition needs? Will he/she even chip in when it comes time to pay for college?

The best way to ease anxiety and secure payment for college expenses from your soon-to-be ex-spouse is to include such an obligation in your Marital Settlement Agreement (MSA) that addresses college support in addition to any child support agreements. An MSA is an agreement between divorcing spouses that addresses issues such as custody, support, and property division. A provision in a Martial Settlement Agreement regarding payment of college expenses will typically include details such as what percentage of college expenses each parent will be responsible for, restrictions on which types of college the provision will apply to (if any), and exactly which expenses will be covered (this may include tuition, room and board, books, extracurricular activities, etc.).

So while there is no legal obligation for one or both of the divorcing parents to pay for their kids’ college, absent a court order, it’s advisable that the parties not overlook the possibility of including a provision regarding college expenses in their Marital Settlement Agreement. This might serve to save a considerable amount of financial worries down the road and encourage divorcing parents to start setting aside funds for their portion of the future college payments.
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Many divorcing couples wonder if there is a point in their life at which time they may be considered “too old” to divorce. Of course, a person may file for divorce in California no matter what their age is. But, still some may wonder if, after a certain age, it is even worth it. Nonetheless, as we have previously blogged, divorce among the over-50 crowd appears to be on the rise. New York Times even reports that “more Americans 50 and older are divorced than widowed, and the numbers are growing as baby boomers live longer”.

One such statistic in the over-50 crowd is well known actor, Richard Gere, and his model-actress wife, Carey Lowell, who are reportedly calling it quits after 11 years of marriage. Gere is at the ripe age of 64, while Lowell is 52 years old.

So why are older couples like Gere and Lowell headed for divorce? LA Times reports that the reason for the split between Gere and Lowell is that Gere allegedly enjoys privacy and socializing. For other couples over 50, the possibility of divorce may be more tempting as there is a greater social acceptance of divorce these days. Another reason is that people are living longer and thus still view themselves to be able to get out and have a life after divorce. This is especially the case once the children are grown up and out of the house, at which time it may actually seem easier to get out of a marriage that has grown stale.

The increased economic autonomy of women has also given women over 50 years old a greater likelihood of seeking divorce, even at a later age in life, because many women feel that they have the ability to support themselves and live a stable life after divorce, despite their older age. The increased work experience of women and greater sense of their own responsibilities is often incentive to get out of a marriage rather than to just wait it out.

Although there are many reasons for the rising divorce rate among people over 50 years old, there are also some pretty significant reasons why divorce is not a good idea for the older crowd. One big reason is that older folks have a greater likelihood of being in poor health; an emotionally draining divorce can deteriorate a person’s health even more. Those considering divorce over 50 also must consider how a divorce will affect retirement plans. Moreover, divorce between older couples with children may result in placing an even heavier burden on the children to help support each parent financially and emotionally.

If you are over the age of 50 and considering divorce or separation, it is important to seek the advice and assistance of an experienced divorce attorney.
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As we have previously blogged, the majority of couples going through a divorce experience extreme change in their financial situation as they begin untangling one household and establishing two. It seems a little counterintuitive to think that as our economy improves and the average San Diego resident can live a little more comfortably, that more and more people are getting divorced. However, couples have more economic stability today which tends to lessen the financial impact of divorce. Although more money doesn’t necessarily lead to unhappy marriages, it does make divorce more practical and affordable for those who would like to end their marriages. During our recent recession many people chose to stay together because their houses were underwater or one or both spouses were unemployed.

Prior to the recession, typically the most valuable asset owned by divorcing couples was the martial residence. At divorce, the parties usually sold their home and began new lives with the net proceeds. During the recession, couples were unable to sell their homes and realize profits because many San Diego homes were underwater. Therefore, in the face of financial ruin and without any reasonable way to live two separate lives, parties remained married. In the past year, home prices have skyrocketed throughout San Diego. In addition, interest rates have been at a (near) historical low which would enable parties to purchase a smaller home with a manageable monthly payment using the proceeds from the sale of the marital residence. Afraid that the value of their home could plummet again, many couples filed for divorce.

In addition to having assets to divide, an improving economy also means that more people are employed (or have a reasonable expectation of being able to return to work) as they consider divorce. If both parties are able to work or one party is able to earn a higher income, they may be able to maintain two separate households once support is ordered. When jobs were harder to come by and many people were laid off after years of steady employment, numerous California residents struggled to support their family living in one household. For any family, there is only a finite amount of income to apportion for support and living expenses of the supporting spouse. When spouses are struggling to maintain one household, separating into two may not be an option.

Further, one or both parties may have more funds available to retain an attorney in an improving economy. Without the requisite legal knowledge required to navigate the divorce process in California, it is difficult for parties to proceed with a divorce. During the recession, many people could not afford to hire an experienced family law attorney to represent them and protect their interests. Therefore, rather than risk being steamrolled or reaching unfavorable agreements, many spouses decided to avoid divorce altogether.
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When a San Diego couple first considers getting a divorce one of the most common questions is: “How long will it take to be divorced?” Experienced family law attorney’s typically respond that there is no way to estimate the length of any given divorce case with any certainty. The length of time it takes to complete the divorce process is dependent on a number of factors, including:

  • The attitude of the parties
  • The parties’ tolerance for litigation
  • The attorneys (if any) hired by the clients
  • The court’s availability
  • The number and complexity of issues in the case

At a minimum, the parties must wait six months before they can officially terminate their marital status per the mandatory waiting period imposed by California Family Code 2339(a). However, this does not mean that the parties cannot settle all issues in their case and submit their final paperwork pending the conclusion of the six month waiting period.For two Ohio law professors, their divorce and other related disputes has lasted 17 years…so far. The shocking length of this controversy is even more surprising considering the divorce has lasted 7 years longer than the 10 year marriage. This incredibly litigious divorce has resulted in over 1400 entries in the former couple’s divorce file.

Most of the litigation began as a dispute over child custody and visitation. The parties have two children together who are currently ages 17 and 20. Now that one of the children is an adult and the other is nearly an adult, the parties will now turn the focus of their disputes on monetary issues still to be litigated.

Considering the legal background of the parties, most commentators are surprised that they were unable to resolve the majority of their disputes informally. In fact, the two attorneys were chastised by the Ohio 1st District Court of Appeal which wrote, “The parties, who are both law professors and ought to know better, engaged in thoroughly inappropriate behavior that was detrimental to the resolution of their case and to the welfare of their children for which both claimed to be primarily concerned.”

The Ohio District Court of Appeal went as far as to say both professors should be admonished by the Ohio State Bar.

In California, a spouse can be sanctioned for engaging in conduct which frustrates the public policy to promote settlement in litigation. This is because in domestic cases it is generally in the best interest of both parties to resolve their differences out of court – especially when children are involved. This case is a good teaching tool which stands for the proposition that not all battles that can be won should be fought. In family law, there are rarely “winners” and “losers” in a case. Both parties tend to suffer through litigation both emotionally and financially. Most battles are not worth the time, effort, and money necessary to win in court.
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As we have previously blogged in “Understanding Parental Alienation in California Part 1,” parental alienation can be extremely detrimental to the children and alienated parents involved. Luckily, there are ways to combat parental alienation and attempt to reunite the child and alienated parent who have been affected by parental alienation.

How Courts Deal with Claims of Parental Alienation

Courts have found ways to address claims of parental alienation and seek remedies that will repair broken relationships and help establish both parents as having a role in raising the child. In mild to moderate cases of parental alienation, a child custody evaluation will typically be performed by an expert to determine how severe the problem is and what kind of therapy and child time sharing should be recommended to help improve the relationship between the child and “alienated” parent.

However, in severe cases of parental alienation, sometimes the only solution is to remove the child from the parent who is alienating the other parent and to instead place the child with the alienated parent. But, before a judge will change the custody arrangement, they will typically require that a psychological evaluation to be done. Unfortunately, such evaluations can take anywhere from three months to a year to complete. In addition, some evaluators will simply argue that the detriment caused by parental alienation can simply be cured with therapy and thus the evaluator will not recommend a custody change to the alienated parent, but instead will recommend a reunification plan involving therapy. If it appears that reunification is not working then the court will typically want the same or new psychologist to re-evaluate the situation, which will take additional time.

Reuniting Alienated Parents with the Child

As an alienated parent, reuniting with your child can pose several challenges. As a result of the parental alienation the relationship with the child is likely very fragile and must be handled carefully in an attempt to repair what has been broken.

However, with proper psychological care, time and patience it is possible to attempt to reverse the effects of Parental Alienation Syndrome and mend your relationship with your child.

It is also advised that the alienated parent not retaliate against the other parent. Rather, if the alienated parent acts reasonably then the parent who is causing the alienation will hopefully be influenced to do the same.
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While broken marriages can be stressful and emotional for both spouses involved, it is typically the children who end up suffering the most throughout the parents’ continued divorce battles. One prime example is where children end up suffering from “parental alienation syndrome,” which is commonly associated with child custody battles that occur during and after divorce. Parental alienation can be extremely detrimental to the child and the alienated parent alike.

What is Parental Alienation?

Parental alienation occurs when one parent acts in a manner that attempts to cause the child to reject the other parent by undermining and thwarting the child’s relationship with the other parent. The purpose of such alienation is usually an effort by one parent to gain or keep custody of the child.

The following behavior will typically lead to claims of parental alienation:

  • Not allowing the other parent to see or visit the child;
  • Refusing to allow the child to talk to the other parent on the phone;
  • Mis-informing the other parent about child’s special events so that it appears that the other parent chose not to attend;
  • Creating a perception that the other parent is dangerous;
  • Discarding mail or gifts sent to the child by the other parent;
  • Creating expectation that the child must choose a side; and
  • Bad-mouthing the other parent.
Parental Alienation’s Effect on the Children – PAS

Parental Alienation Syndrome (“PAS”) is a form of psychological injury to the child as a result of the above behaviors, wherein the child becomes “brainwashed” or manipulated into viewing the alienated parent in a negative light. As a result, the child adopts negative views of the other parent which in turn causes the child to reject the other parent and choose no longer want to spend time with that parent.

This can be extremely detrimental for any child. However, it is important to note that Parental Alienation Syndrome is not recognized a psychiatric diagnosis, but rather it is a theory that was developed by Dr. Richard Gardner. Nonetheless, there is even scholarly consensus that parental alienation (which leads to Parental Alienation Syndrome) is a form of abuse to children.

Parental Alienation’s Effect on the Parents

The impact of parental alienation is not only detrimental to children involved but also to the alienated parent, who involuntarily loses contact with the child, which in turn impairs his/her relationship with the child. In severe cases of parental alienation, the love and bond that the alienated parent once had with the child may be completely destroyed beyond what seems possible to repair.

In Understanding Parental Alienation in California Part 2 we will explore ways that courts deal with claims of parental alienation and tips for reuniting the alienated parents with their children.
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