Nancy J. Bickford

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During marriage, it is pretty common for one spouse to have health insurance coverage provided through his/her employer and to cover the other spouse and the couple’s children under that plan. How will a divorce affect both the spouse’s and the children’s coverage during the divorce proceedings and after the divorce?

Health insurance pending divorce:
While a divorce is pending and you are simply separated from your spouse, if you are currently covered under your spouse’s health insurance plan, your spouse is not allowed to unilaterally remove you or change your health insurance coverage. On page 2 of the Summons, there is a list of the Automatic Temporary Restraining Orders, including a specific order regarding health insurance. If your spouse attempts to remove you from the coverage, talk to an attorney and consider filing a Motion for Contempt.

Health insurance after divorce:
It is common for one spouse to be a stay at home parent without any access to health insurance benefits or employed at a job that doesn’t offer health benefits. If this is the case, getting health insurance after a divorce may be a significant burden and expense especially because after the divorce an ex-spouse is no longer considered a “family member” for purposes of qualifying under the other spouse’s health coverage plan.

To avoid this dilemma, sometimes couples decide to proceed with a legal separation rather than a dissolution of marriage. Although they will be legally separated and property division, custody and support issues will all be resolved in a separation agreement, they will remain married for purposes of remaining qualified under the other spouse’s health insurance plan. The parties may agree to remain legally separated for a specified amount of time (i.e. until the “uninsured” spouse is able to obtain health insurance through other means) before actually filing for divorce.If filing for legal separation is not an option for you and you are instead proceeding with a dissolution, there are still other state and federal statutes (Consolidated Omnibus Budget Reconciliation Act “COBRA”) which allow you to temporarily retain coverage, at a cost, under your spouse’s health insurance plan for a limited period of time after divorce. Many divorces also result in an arrangement whereby the insured spouse makes cash payments to the uninsured spouse as and for health insurance coverage. This arrangement will typically cover the children as well if the uninsured spouse is the custodial parent after the divorce. Making sure that the spouse and children remain insured is an important issue to discuss in settlement negotiations or divorce litigation if the parties cannot amicably agree.
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A family law contempt action can be a civil or criminal process which is used when one party is in violation of a court order. In the civil context, the goal of the action is to correct the problem, but if criminal contempt is pursued, the violating party pay be sentenced to five days in jail per violation. Family law orders are often ignored by one or both parties causing significant frustration for both sides throughout the case. It is an expensive and lengthy process to enforce court orders and the parties regularly end up disappointed by the court’s treatment of the violations.

The word “contempt” is frequently used to describe one party’s violation of a family law court order. For example, if one parent fails to make a court-ordered child support payment, the other parent might tell his or her lawyer that the supporting parent is in “contempt”. However, despite his or her violation of a court order, a person is not in contempt of court until that finding has been made by a judge. Therefore, if you wish to pursue a contempt action, you will have to file that request with the court before the other party will actually be in “contempt”. In addition, the general public is familiar with terms such as contempt. In a support case, the supported spouse may want to hire a lawyer to “contempt” the other side if he or she is not paying support.

Although contempt is a common method of relief shown on television and in movies, it might not be the most practical in the family law area. Considering the child support example, sentencing a non-paying party to jail time might cause him or her to lose wages or even his or her employment. In family law, attorneys often caution clients not to “kill the goose that lays the golden egg”. If the supporting spouse loses his or her job, he or she will be unable to pay support. This discussion also comes up in contentious divorce cases where a vindictive spouse may want to use information acquired during marriage to get the other party fired from his or her job. Unfortunately, an unemployed spouse cannot provide financial support to his or her former spouse and children.

The family code provides litigants with a myriad of options to enforce court orders, especially child support orders. It is advisable to consult with a certified family law specialist before filing an action for contempt. Such actions may cause more harm than good in your family law matter.
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At the beginning of each divorce case, the parties always have questions regarding how the divorce will impact their daily lives, especially their finances. One of the biggest issues, and often most disputed, is support. The parties cannot plan for their separate futures until they know whether a support order will be made and the level of support which will be ordered. Once the parties have a support order or agreement they will next consider what that support amount is intended to cover? Will my spouse have to continue paying my health insurance? Will my spouse pay for our children’s health insurance? Will my spouse pay for uncovered medical and dental expenses? Will my spouse pay for extracurricular activities? Will my spouse pay for childcare? Typically these are the main concerns for divorcing parties when discussing support issues. However, it is not uncommon for family law litigants and their attorneys to forget one important issue – support in the event of the death of the paying spouse.

Life insurance can be an uncomfortable topic of discussion; however, the issue of life insurance is an extremely important subject to include in divorce settlement negotiations. In the event that the parties cannot reach a full agreement regarding all issues, they can ask the court for orders. The court has jurisdiction to address the issue of life insurance and to make appropriate orders for the parties. In cases where child and/or spousal support amounts are relatively high, it is reasonable to consider insuring the paying spouse as a form of security for support. In high conflict cases the supporting spouse may be hesitant to agree that his or her former spouse will be the beneficiary of an insurance policy on the supporting spouse’s life. The supporting spouse often says “I don’t want to give my former spouse more incentive to kill me”. This type of argument will not likely be given much weight by a family court judge.Through agreement or court order, once the parties determine that the supporting spouse’s life should be insured as security for support, the attorneys and clients should discuss the amount of policy and which party should be responsible for the premiums. In cases where the parties take out life insurance as security for child support, the supporting spouse may be ordered to pay the life insurance premiums in the form of additional child support. If available, the parties often agree that the supporting spouse shall maintain a currently existing life insurance policy. The total amount of insurance should be based on the monthly support obligation and the number of years support will likely be paid. Each case is unique; therefore, it is important to discuss the issue of life insurance as security for support with an experienced family law attorney.
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The term “Legal Separation” and “Dissolution” are distinctly different in that a legal separation does not result in dissolving the marriage itself, while a dissolution of marriage does indeed dissolve the marriage and will return the parties to their single status. There are several reasons why a spouse may want to file a petition for legal separation rather than a petition for dissolution of marriage. Some common reasons are because of the person’s religious background, an interest to maintain certain healthcare benefits, or perhaps because the parties do not qualify to file for divorce because they have not met the residency requirement (there is no residency requirement to file a petition for legal separation in California).

Information about the Divorce Process.

If you initially filed for a legal separation for one of the reasons listed above or for any other reason, but you decide that would prefer a divorce, then you will need to convert your case into one for divorce. In California, you are able to convert your legal separation to a divorce at any point during the legal process, even after your legal separation is final. Either spouse can be the one to request that the legal separation be converted into a dissolution of marriage.If a judgment of legal separation has not yet been obtained (meaning that you have filed your petition for legal separation but the proceedings are still pending) and your spouse has not yet responded to your petition, then so long as the residency requirement is met, you (the Petitioner) can simply file an amended petition and check the box for “Dissolution of Marriage”. Your spouse will need to be served again with the amended Petition. However, if a judgment of legal separation has not yet been obtained but your spouse has already filed his or her Response to your original Petition for Legal Separation, then you may need to request approval from the Court.

If a judgment of legal separation has already been obtained from the court and you later decide that you would prefer a divorce, then you cannot just file an amended petition. Instead, you will need to start over with a new case by filing a petition for dissolution of marriage and pay the filing fee again.

Regardless of the status of the petition for legal separation, either spouse can petition the Court for dissolution of marriage. Because of this, it is typically better to simply petition for dissolution of marriage from the get-go unless both parties agree to the legal separation or a legal separation would benefit one or both parties. Also, it is important to keep in mind that the six month waiting period to be returned to single status does not start ticking until the Petition for Dissolution of Marriage has been served on the Respondent, despite the status of the petition for legal separation.
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It is not uncommon for spouses who have filed for divorce to question their decision to end the marriage multiple times throughout the process. Getting a divorce is life-changing for both spouses. Sometimes, after one or both parties realize the implications of divorce, they begin to reconsider whether their differences are really “irreconcilable”. If you have filed for divorce, but would like to take a step back from the proceeding to reassess your decision, there are a few options to consider.

Reconciliation: If you and your spouse have made the decision to reconcile and no longer wish to pursue a divorce, you may dismiss your divorce petition. Once you dismiss your divorce case your proceeding will end, but neither side will receive a refund of any fees or costs expended pursuing a divorce. This is an important consideration because if the divorce petition is dismissed, but you later decide to re-file for divorce, both parties will have to pay their respective $435.00 filing fees just to file their initial paperwork.

Legal Separation: If you are not ready to obtain a divorce, but also are not interested in reconciliation, you have the option to convert your divorce petition into a petition for legal separation. Through the legal separation process, the parties can obtain similar orders as through the divorce process such as support orders, custody and visitation orders and property division orders. After making a request for legal separation, the court will continue to track your case setting status conferences and encouraging you and your spouse move through the system. If you change your mind later, you also have the option to revert back to the divorce process and terminate your marital status.Suspend the Proceedings: While parties are attempting to decide whether to continue with the divorce or legal separation process, they have the option to suspend the divorce process through agreement. The parties or their attorneys can prepare a stipulation and order that is filed with the court that will put the entire case on hold. Divorce litigants are not be required to fulfill deadlines and make court appearances while their divorce case is suspended. You may also want to suspend the proceedings if you and your spouse have decided to get a divorce, but cannot actively participate in the process. Parties may agree to suspend the divorce process for medical reasons, work-related concerns, or even issues related to their minor children.
If you are trying to navigate the procedural options for your divorce, it is important to consult with an experienced family law attorney to learn the implications of each option.
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The realm of family law, as is the case with pretty much all areas of law, is filled with lots of legal paperwork and legal jargon. Being able to understand and properly fill out the judicial council form is half of the battle for a layperson. These forms can provide you with a lot of information that will be helpful throughout your case. The divorce petition, for example, is one of the first forms filed in a family law action. Even without having a family law attorney to review and explain the form to you, you can easily learn a lot by yourself simply by taking a close look at the Petition from top to bottom.

The Petition (i.e. Form FL-100 on the top right corner) is a one page document (front and back) that you will receive when your spouse has filed for a divorce, separation or annulment. Beginning at the top left of the document, you can note whether your spouse has hired an attorney to represent himself/herself or if he/she is in pro per and intends on proceeding without legal representation. If your spouse has hired an attorney, the attorney’s name, state bar number and address will appear in this box. You can then visit www.calbar.ca.gov to perform an attorney search or you can review various websites to get more information about the attorney that your spouse has hired.

Below the contact information section of the form, it will specify the address of the court. This will tell you where your case will be heard so you know whether you will have to drive to North County San Diego, downtown, East County, etc. to attend your court hearings.

Below your names, there is a box that indicates whether the Petition is for 1) Dissolution of Marriage, 2) Legal Separation or 3) Nullity of Marriage. This lets you know when your spouse actually wants a divorce or if he/she prefers to get a legal separation. If your spouse checked the Nullity of Marriage box then your spouse is contending that your marriage is not legally valid.

Under the section of “Statistical Facts” you can see what date your spouse is claiming is your date of separation. If you disagree, you can claim a different date of separation on your Response form. A family law attorney can help assist you in determining the appropriate date of separation to claim.Under Section 4 and Section 5 of the Petition your spouse should have listed all items that he/she contends are his/her separate property and which items are community property and subject to division by the court.

If your spouse has filed for either a dissolution of marriage or legal separation then he/she can either claim that the reason is because of irreconcilable difference or incurable insanity. This selection will be marked in Section 6 of the Petition. There are several reasons why a person can request a nullity of marriage. If your spouse is filing for nullity of marriage, his/her reasoning will be identified in Section 6 as well.

Section 7 of the Petition will give you an idea of what your spouse is requesting as far as custody of your children, if any, who will pay attorney fees and spousal support, etc. Please note that just because your spouse checks the box, does not mean that the court will order his request. Don’t take these checked boxes at face value and remember that the law may not even support your spouse’s requests.
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Spouses who are served with divorce papers usually fall into one of two categories: completely shocked or not surprised. Whether you expected your spouse to file for divorce or not, receiving divorce papers can be an overwhelming experience. Likely you will served with a large packet of forms, some of which have been completed by your spouse and some of which are blank. In addition to the standard divorce packet filled out by your spouse, you will also receive notices issued by the court. All of this information can be confusing and difficult to process if you are not familiar with family law and procedure.

Once you are served with divorce papers one of the first thing you should decide is whether or not you want to retain an attorney at the onset of your case. An experienced family law attorney can demystify the divorce process and take over a lot of the work that needs to be done. In addition, the attorney will understand what the court requires of family law litigants and can ensure you do not miss deadlines and court appearances. At Bickford Blado & Botros, we offer a variety of services to divorcing parties. You can retain an experienced family law attorney to consult with you and answer your questions throughout the process or you can opt for full legal representation. In addition, we offer attorney-assisted divorce wherein our paralegal will help prepare all of the necessary divorce paperwork.If you decide not to retain an attorney at the beginning of your case, you should begin to familiarize yourself with the courthouse where your case has been assigned and note any hearings which are currently on calendar. At the onset of each divorce case, the court will assign a judge to hear the case and may even notice the first status conference at which the parties or their attorneys are required to appear. After you have reviewed all of the documents served by your spouse, you will want to determine how contentious your divorce will be. Depending on the circumstances, you may want to reach out to your spouse in an attempt to discover what issues you agree on and which issues you and disagree on. If you both are in agreement to proceed amicably, you can discuss mediation with a professional or informal conversation to resolve disputed issues.

Regardless of how you and your spouse agree to proceed with the divorce, you should talk to a professional (either your attorney or someone at the family law facilitator’s office) about the upcoming deadlines in your case and which forms you should be filing to protect your rights.
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Along with the New Year comes a plethora of New Year’s resolutions. Most people chose a resolution like exercising more, eating less or starting a new hobby. Some are able to stick to their resolution the whole year while other barely make it through the first of the year. For divorced individuals, there are a handful of resolutions that could put you on the right track for the upcoming year if you can resolve to stick to it throughout the year. These resolutions focus on improving your post-divorce relationships with your ex-spouse, your children and yourself.

Whether you just wrapped up your divorce or you have been divorced for quite some time, there is always room for improvement in the following areas.

1. Attempt to Communicate Better with Your Ex-Spouse
Divorce is filled with a variety of emotions, typically emotions that include a whole lot of anger and resentment. After the divorce is finalized you might have a bitter taste in your mouth and want nothing to do with you ex-spouse. However, if you have kids, chances are you aren’t quite done seeing or speaking with your ex. Do yourself a favor and make a resolution to work on communicating better with your ex-spouse. Simply avoiding the snarky emails to your ex can put you in a step in the right direction. And if you’re up to it, perhaps you could try going to lunch with your ex-spouse. This will give you an opportunity to catch up on the children’s activities and exchange information. Better communication will inevitably lead to better co-parenting.2. Put your Attention on Your Kids, Not your Ex-Spouse
Chances are you have spent a whole lot of time thinking about your ex-spouse…thoughts about what you could have done to make it work or thoughts about how upset you still are with him/her. Well it’s a new year and that means its time to shift your focus to your kids! Whether they show it or not, your kids have gone through a lot of change as a result of your divorce. Putting more attention on your kids can help them adjust in the New Year.

3. Limit Sharing Your Private Life on Social Media
Although Facebook, Twitter and other social media sites offer you the perfect opportunity to just say what is on your mind and let the whole world know about it, resolve to stop “bashing” your ex-spouse through your status updates. Also, if your ex-spouse can still view your social media profiles think about putting a halt to posting intimate details of your new relationship. If there were unresolved feelings between the two of you, this will give your ex-spouse a chance to heal without stirring up more feelings of anger and resentment.
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We often blog about the statutory requirement in all California divorces for divorcing parties to exchange complete financial disclosures. The required disclosure documents consist substantially of an Income and Expense Declaration and a Schedule of Assets and Debts. Through the completion of these documents, the parties are obligated to provide all material facts and information regarding their income, expenses, assets and debts. Failure to complete these forms in accordance with the highest duty of good faith and fair dealing may result in severe sanctions imposed by the court. Considering these strict requirements, the California Court of Appeal surprised family law attorneys in a recent case, In re Marriage of Evans, in which it held that the parties could reach enforceable divorce settlements prior to the exchange of the financial disclosure documents.

In Evans, prior to filing for divorce, the parties negotiated and signed a “pre-divorce agreement” which divided their interest in the marital residence. After a Petition for Dissolution was filed, Mr. Evans filed a motion to set aside the parties’ pre-divorce agreement. Mr. Evans argued that the agreement was invalid because the parties did not exchange their disclosure documents prior to its execution. The trial court disagreed with Mr. Evans and held that the pre-divorce agreement was valid and ordered its terms to become part of the Judgment of Dissolution. Mr. Evans appealed the trial court’s decision and lost again. The appeals court held that the financial disclosure statutes only were intended to apply after service of a divorce petition.With the Evans ruling now a published opinion, there is a loop hole for parties who wish to enter into property agreements prior to exchange of disclosure documents. It is important to note that Evans does not extinguish the requirement for both parties to abide by the disclosure statutes once a divorce has been filed; it only addresses agreements made prior to filing for divorce. In addition, pre-divorce agreements made in contemplation of divorce may be set aside for various other reasons. If you and your spouse would like to enter into a pre-divorce agreement, but are not yet ready to file for divorce, it is important to consult with an experienced family law attorney prior to executing any agreement. The right attorney can help you draft an agreement that will be enforceable in the event of divorce.
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Trying to figure out a custody arrangement that will work best for both yourself and your children can be difficult and overwhelming. One type of custody arrangement that is not often mentioned or considered is what is known as a “nesting custody arrangement.” This type of custodial agreement (typically agreed upon between the parents rather than a court) means that the children will live full-time in the family home and the parents will share custody by taking turns living there with the children.

A divorce results in a lot of change for children. One of the big changes is that the children may feel like they have to uproot their lives, friends, and activities each time that the other parent exercises custody. A nesting arrangement might actually be best for your children because it will not require them to pack their bags every weekend (or whatever the custody schedule may require) to go to “mom’s house” or “dad’s house.” Instead, the children can remain where they are comfortable and around things that are known to them. This is particularly important for children with disabilities, who would find it even more difficult to constantly change residences. Rather, with a nesting custody arrangement, the children’s lives remain somewhat free of disruption, while the parents are the ones who are inconvenienced.

Although a nesting agreement may be the best for the children, it is possibly one of the harder arrangements for the parents. It requires a lot of cooperation and self-sacrifice on behalf of both parents. The parents must be on somewhat good terms with each other and be devoted to the concept of family, even though they are choosing to no longer live together. It also requires the parents to each have a second place to reside when it is not their “turn” to be in the family home.Depending on your specific circumstances, such as your financial situation, the level of tension between you and your spouse, the age of your children, whether your children have any disabilities, etc., a nesting custody arrangement might work best for you and your children. Perhaps it is an arrangement that you could consider trying out temporarily before setting anything in stone. Although it is an uncommon arrangement, it is one that should be explored more often if divorcing couples are truly looking out for the best interest of their children.

We understand that this is a sensitive situation that could greatly affect your family and your relationship with your children, and our team can provide you with the caring and outstanding legal counsel you need and deserve. If you would like to discuss your rights under California’s child custody laws, we encourage you to contact us as soon as possible.
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