Articles Posted in Divorce

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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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California child custody laws have most certainly evolved during our history as a state. Historically, it appeared that mothers were favored in court to get custody of the parties’ children just because they were female. Mothers were pretty much guaranteed to get custody of the children, while even the best fathers were only given a limited visitation schedule while the children. Perhaps this was because traditionally mothers were viewed to be the more nurturing of the two parents; they were viewed as the parent who does everything in their power to make sure the children are taken care of properly and grow up right.

Despite popular belief, such favoring of mothers in child custody arrangements is not the case today. In this modern day in age, most states’ laws actually prevent the courts from considering a party’s gender when making a ruling on child custody. In San Diego, courts grant equal rights to both mothers and fathers in child custody cases. California Family Code Section 3040 specifically states that “custody should be granted… according to the best interest of the child…and shall not prefer a parent as custodian because of that parent’s sex.” Moreover, it is the public policy of California to ensure that children have frequent and continuing contact with both the mother and father.

Read more about child custody and visitation modification

The legal standard of “the best interests of the children” requires a court to take various factors into consideration, not including gender, when making a decision regarding the care and custody of the parties’ children. The Family Code sets forth various factors that a court will consider, including but not limited to, the following:

  • Any history of abuse or neglect by either parent;
  • The habitual or continual illegal use of controlled substances;
  • The habitual or continual abuse of alcohol or prescribed controlled substances by either parent;
  • The overall health, safety and welfare of the child;
  • The requests of the parents;
  • The requests of the child if the child is of sufficient age and capacity to form an intelligent preference as to custody or visitation (Family Code 3042);

Thus, the main concern of any San Diego family law court is what custody and visitation arrangement is going to be consistent with the children’s best interests. A parties’ sex, therefore, will not determine who gets priority for being awarded the care and custody of the children involved.
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A divorce can be quite devastating for all parties involved, especially the children of divorcing couples whose lives are often affected in a variety of ways. One issue that frequently arises during a divorce is a dispute over where the children will attend school after the parents have moved their separate directions. Children with parents involved in an active divorce case at family court often worry that they will be uprooted from the friends and teachers that they have come to know, or that they will bounce around between different schools each year.

So who exactly gets to decide where the minor children will go to school after a divorce? Divorce lawyers will advise their clients that the answer depends on the custody order. When one parent has sole legal custody, then that parent has the right to choose which school the children will attend without the input of the other parent. On the other hand, when parents share joint legal custody, they have to agree on various important decisions related to the children, including which school to send their children to.Thus, one parent cannot enroll the parties’ minor children into a school without the consent of the other parent. If the joint custody/parenting plan doesn’t already address the issue of which school the children will attend, then the parents either have to come to an agreement on their own, agree in mediation, or direct their family law attorney to file a motion and take it to court for the Judge to decide. If the Judge is left to decide which school the minor children will attend, the Judge will typically look at what is in the best interests of the children. Some factors include, but are not limited to, desires of the children/parents, previous school selection by the parents, academic standard, proximity to custodial parent, children’s educational needs, commuting time from each parent’s home, tuition cost, etc. In situations where the children are already attending a certain school, then the likelihood of them continuing to attend that school is quite high, unless a compelling case is made that continuing attendance at that particular school is not in line with the children’s best interests. However, when the children are about to start kindergarten or are transitioning into a middle school, junior high school, or high school, then the decision might be a bit more complicated and the Judge will have to take various factors into consideration.
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A common issue that comes up during the divorce process with our San Diego family law clients is how to divide the beloved family pets. It’s not uncommon for pet owners to view their dogs, cats, birds, horses, etc. to be part of the family, much like a child. However, unlike children, California courts cannot divide a pet by way of a custody and visitation arrangement. Instead, pets are considered to be a piece of the marital property and can be given to only one of the pet owners in the divorce, not both of them.

Dividing Pets in Court

There really is no way to predict what a Judge will decide if you take your claim regarding the family pet to court. Judges will often consider some of the following factors of the divorce:

  • When the pet joined the family and whether one party had the pet before marriage;
  • Who the primary caretaker is (which spouse is typically responsible for grooming, feeding, walking and day-to-day care);
  • Who has more space for the pet to play and exercise;
  • Who has more time to be able to spend with the pet;
  • Whether either party has abused the pet and is therefore unfit to be awarded the pet; and
  • Which party has the greatest emotional bond with the pet.

Dividing Pets Outside of Court

Although courts will not consider options for sharing a pet, spouses do have the option to come to an agreement outside of court regarding sharing custody of the pet or giving the other spouse visitation rights of the pet after a divorce.

If keeping custody of your pet after a divorce is very important to you, it might be best to keep the issue out of court and instead try to negotiate a shared custody arrangement with your soon to be former spouse or compromise regarding giving up other marital assets in order to keep the pet. However, you have to prepare yourself to be willing to give up some pieces of marital property that your soon to be former spouse wants, so that in exchange you can keep your beloved pet. Although difficult, you have to weigh what is more important to you.

It is also important to keep the best interest of the pet in mind. For instance, if you have minor children too, it might be best for the parent who has custody of the children to also have “custody” of the pet. Also, you should consider whether you will truly be able to give the pet the love, care and attention that it requires. If you know that you have a busy schedule, your finances are going to be extremely tight following divorce, or if perhaps you are moving into a new place without adequate space for the pet, then maybe it would actually be in the pet’s best interest to be given to your soon to be former spouse.
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Along with the emotional challenges of a divorce, financial challenges often also accompany a divorce proceeding. In relation to the many financial challenges, one question that often comes to the mind of our San Diego clients is:

How does divorce affect my credit?

The fact that you are now divorced won’t directly affect your credit, credit scores or credit history. This is because your creditworthiness is not based on your marital status. However, divorce can indirectly affect your credit in a number of ways, and usually not in a good way.

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Due to the nature of California family law, divorce lawyers have a tough job when it comes to pleasing the client. Many divorce lawyers are proficient practitioners who are skilled in court room advocacy, preparing appropriate pleadings, and getting people divorced. However, at the end of a family law case, both parties walk away from each other with less than they started with and the emotional strain of separation. Undoubtedly in every divorce case, bank accounts and retirement plans will be divided, debt will be assigned, valuable property will be sold and the parties must figure out a new way of life. Family lawyers often work tirelessly to ease the stress of divorce for the client by attempting to create mutual beneficial solutions for the parties outside of the courtroom.

If the parties cannot reach an agreement on all issues in a divorce case, they must face each other as opponents in trial. Any family law trial is incredibly expensive for both parties to litigate. In fact, many trials can be more costly than the item(s) over which the parties are arguing. Another unfortunate reality about litigation in family law cases is that litigation is often funded by the liquidation of the community assets.

This means that the longer the parties battle on, the more the “pot” left to divide shrinks. After all of the arguments, hearings, and trials are over, the parties may not have any assets left to share. In order to avoid that outcome, family law attorneys work to help the client consider the cost-benefit analysis for each dispute.

Family law litigants often become frustrated with the settlement process in cases where one spouse remains firm in his or her positions and is unwilling to compromise on any issue. In these cases, the spouse who is willing to engage in “back and forth” settlement offers may feel cornered and vulnerable. The cooperative spouse will likely see no other option than to yield to every demand of the unreasonable party.The only alternative is a lengthy, expensive and draining trial. The emotional and financial cost of trial is rarely worth a potentially successful outcome. This problem is only compounded when the spouse and his/her attorney are confident they will prevail if a disputed issue is litigated; however, they must rescind their position to preserve the community estate.

There are many opportunities throughout the divorce process for parties to reach a settlement on disputed issues. If child custody and/or visitation are involved in the case, the parties are required to attend mediation at Family Court Services. A mediator will work with both parties and attempt to create a mutually agreed upon custody and child sharing arrangement.

In addition, before any issue proceeds to trial, the parties are required to attend a Mandatory Settlement Conference (“MSC“). At the MSC, a family law expert will work with the parties in an attempt to settle all issues which could potentially go to trial. Both of these services are provided without charge for family law litigants. WCENY8KDWAEH Continue reading

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A divorce almost always results in a change in housing for one or both spouses. As if qualifying for a new mortgage isn’t hard enough, unfortunately, getting a mortgage after a divorce can be further complicated by several factors related to the dissolution. During a divorce proceeding, family lawyers frequently answer the question:

“How do I get a mortgage after a divorce?”

Mortgage lenders look at your overall debt-to-income ratio to see what you quality for. Thus, it is important to keep in mind that the following liabilities will be considered as part of your ability to qualify for a mortgage:

  • Child and Spousal Support Obligations:
    Lenders will look for any undisclosed financial obligations such as the payment of child support or spousal support pursuant to the divorce decree. These financial obligations will, unfortunately, reduce your ability to qualify for a mortgage because they are looked at as debts, which reduce your income.
  • Credit card debt, student loans, and automobile loans: These liabilities will also be considered as part of your ability to qualify for a mortgage unless you are able to prove that your ex-spouse is responsible for the credit obligation by showing twelve months of canceled checks or bank statements.

Although getting a mortgage after divorce can be complicated by the above factors, with some extra planning, discipline and awareness, it surely is not impossible. Here are some tips to help make it easier to get a mortgage after divorce:

  • Disclose receipt of child support and/or spousal support: The income received as child support and/or spousal support pursuant to your divorce decree can be used to help you qualify for a mortgage.
  • Carefully review your credit report: Make sure the accounts on your credit report belong to you only, not jointly with your ex-spouse. This can be quite a process and time some time to sort through but it is worth it because, for instance, if your ex-spouse pays a debt (pursuant to the divorce decree) late that is on your credit report, it will negatively affect your credit score and make it harder to qualify for a mortgage.
  • Provide evidence that ex-spouse is responsible for current mortgage: You can improve your ability to qualify for a new mortgage if you own a house and are currently on a mortgage with your ex-spouse but the divorce decree awards the home to your ex-spouse and he/she is willing to provide evidence that they make the mortgage payments on the home.

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The date of a premarital agreement (commonly referred to as a “prenup”) will determine the law applicable to its enforcement and validity. The law related to the validity and enforcement of premarital agreements has changed substantially throughout the past 30 years. Divorce attorneys are frequently asked the question:

“Is my prenup valid?”

Any premarital agreement executed after January 1, 1986 is subject to the Uniform Premarital Agreement Act (UPAA). However, prior law continues to govern any pre-1986 premarital agreements. In 2002, portions of the UPAA were significantly amended. Again, those changes do not apply retroactively so the 1986 version of the UPAA applies to all premarital agreements executed between January 1, 1986 and January 1, 2002. So, considering all of these timelines, the following is a list of differences to examine:

Premarital Agreement Executed Between 1/1/1986 and 1/1/2002

  • Relaxed statutory disclosure standards – Spouses are held to a lower duty to make a fair, reasonable, and full disclosure regarding property or financial obligations
  • Burden of proof – The party claiming the premarital agreement is unenforceable bears the burden of proof on that contention.
  • Representation of counsel – No requirement that party against whom enforcement is sought was represented by an attorney at the time the premarital agreement was executed.
  • Waiting period – No mandatory waiting period between presentation of premarital agreement to a party and the date it is signed.
  • Spousal Support Waiver – Relaxed statutory requirements applied to spousal support waiver.

Premarital Agreement Executed Between 1/1/2002 and the present

  • Heightened statutory disclosure standards
  • Burden of proof – Burden shifts to party attempting to enforce the premarital agreement to prove it was executed voluntarily.
  • Representation of Counsel – Party against whom enforcement is sought must have been represented by independent counsel or signed an express waiver of representation in a separate document.
  • Waiting period – There must be at least seven days between the date a party is first presented with the premarital agreement and the date it is signed.
  • Spousal Support Waiver – A spousal support waiver in a premarital agreement must meet strict statutory standards in order to be enforceable.

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