Nancy J. Bickford

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Getting through a divorce and preparing to move on from a marriage is an emotionally and financially draining process. However, if all of the issues were handled correctly, you should be able to make a new start and begin building your new future without your former spouse. Unfortunately, sometimes important issues fall through the cracks because they were not within focus for the parties at the time they negotiated their settlement. If you want the ability to purchase a new home after divorce, below are some considerations which must be addressed at the time of settlement or trial.

It is not uncommon for divorced parties to discover that they are still liable on their old home loans when they approach a bank for a loan on a new home. In many San Diego divorces, one party buys the other party out of their interest in the parties’ home and remains in the marital residence (often with the children). When the parties reach these types of agreements, their settlement documents might only contain a provision awarding the home and all encumbrances to one party with a simple “hold harmless” clause. This means that the party retaining the home is responsible for all obligations encumbering the home. However, this provision is irrelevant to the creditor who holds the note on the loan. The creditor can still seek payment from either party. The only way to get off of your home loan is to sell the home or have your spouse refinance the home into his or her name alone.Depending on your finances, if you are still liable on a home loan, you will likely not qualify to purchase a new home even if your spouse is responsible for the debt. It is important to talk to a certified family law specialist regarding this issue before your divorce judgment is finalized. If your spouse will not qualify for a refinance in his or her name alone, you may want to consider selling the home so that you are able to separate that one remaining financial tie. If your spouse may qualify for a refinance, ensure that your divorce judgment has appropriate provisions in place regarding transfer of title and a deadline for the refinance. For example, you can require that your spouse refinance the home within 120 days of execution of the settlement. If your spouse does not refinance, the home will be listed for sale. If your spouse does complete the refinance, you will execute a quitclaim deed transferring title to his or her name alone.

If you do agree to a buy-out by your spouse and your spouse is unable to refinance the home, it is important that your name remain on title to the home. Review your settlement documents carefully to ensure you are not required to transfer title without your removal from all related loan obligations.
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As discussed in my previous blog, “Supervised Visitation as a Safeguard in Divorce Cases,” a family law judge may order supervised visitation when necessary to protect the safety of a child. A non-professional provider is typically a friend or family member of the parents who provides the supervised visitation services without pay. If you have been selected as the designated non-professional supervised visitation provider, then you will want to become familiar with your role and duties.

Supervising visitation is a very important responsibility and can be difficult. You must be able to not only follow the court order but also to set your personal feelings aside and have adequate time to supervise properly in a structured setting. Essentially, your role is to help contribute to the welfare of the child.

As the supervised visitation provider, your specific duties will include the following:
1) Get a copy of the court order from one of the parents, the parent’s attorney or the Court Clerk’s office. Read the court order so that you know the times, places, restrictions and other conditions of the visitation.
2) Do not allow the parent to discuss the court case with the child 3) Do not allow the parent to make derogatory comments about the other parent to the child.
4) Be present during the entire visit and make sure that you can clearly see and hear all conversations and contact between the parent and child 5) Avoid taking sides with either parent and instead remain a neutral third party 6) Although not mandated by law, you are encouraged to obtain training in identifying and reporting child abuse and neglect and to report any known/suspected instances of child abuse or neglect to the child abuse agency or child abuse hotline.
7) Do not allow any emotional, physical or sexual abuse. This may seem like a no brainer but remember that this includes spanking, tickling too hard, or even just threatening the child.
8) Do not allow visitation to occur when the parents appears to be under the influence of illegal drugs or alcohol.It’s imperative that you are strict with setting rules and that you do not let the parent violate any of your rules or stray outside of the court order. Family Code Section 3200.5 specifically requires that “Each provider shall make every reasonable effort to provide a safe visit for the child and the noncustodial party. If a provider determines that the rules of the visit have been violated, the child has become acutely distressed, or the safety of the child or the provider is at risk, the visit may be temporarily interrupted, rescheduled at a later date, or terminated.”

Spending time with a child in the presence of a third party supervisor can be very uncomfortable and awkward for both the parent and the child. However, acting as a non-professional supervised visitation provider can be rewarding to protect the welfare of a child and watch the relationship between a parent and child grow.

Learn more about supervised visitation

If you anticipate supervised visitation orders as part of a child custody battle, it is important to know that a lawyer can help you understand the process accurately. 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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If you are going to family court then chances are that you have children. With your attorney fees and court filing fees adding up, paying for childcare is likely not an additional expense that you want to incur while attending court hearings. However, bringing your kids to the court hearing is not an ideal alternative. In fact, courthouses, especially family law courthouses, are not the best environment for young children to be a part of. In family court, the atmosphere is typically very emotionally-charged and can be frightening to young children if exposed to what is going on. Luckily, there is an alternative option now as many courthouses offer a Children’s Waiting Room.

California Government Code Section 26826.3 and California Rules of Court Section 10.24 set forth the state’s policy that each court must make an effort to provide a children’s waiting room in each courthouse for the children who are present in court with their parent or guardian attending a court hearing either as a litigant, a witness or for other purposes. The waiting room is supervised and open during normal court hours.The Children’s waiting room is meant to be a safe and nurturing area for children to go while their parents are in family court. The waiting room is staffed with trained volunteers who will care for your children. It is stocked with child-sized furniture, toys and games, which will help keep your child occupied while you attend your court hearing. With your children safely occupied at the Children’s waiting room you are able to focus on your court hearing or other meeting being held at the court.

In California, there are actually sixty-seven courthouses that have children’s waiting rooms. Specifically, in San Diego, a Children’s Waiting Room is currently offered at the following locations: Family Court, Juvenile, North County Regional Center, East County Regional Center, South County Regional Center, and three locations Downtown.
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Despite the oppositional nature of family law, many cases are able to proceed through the court system with little to no hostility between the parties. However, for a variety of reasons, some cases are so high conflict that the parties’ lives are consumed by their family law matter. This high conflict case structure is particularly common if custody and visitation is in dispute. In addition to the emotional and mental drain a high conflict case has on both parties (and their child(ren), conflict also drains the financial resources of the parties especially if one or both parties have retained counsel. If you think your custody matter is high conflict, here are a few tips on how to reduce further tension between you and your co-parent.

Adult Issues are for Adults: Although children have substantial information about your co-parent, never discuss custody/visitation or any other adult issues with children. Not only are such conversations detrimental to the children, but if discovered, could be used against the parent and result in reduced (or even supervised) visitation time. Further, must custody/visitation orders contain direct prohibitions restricting both parents’ communication with the children about the pending case and any other adult matters. Thus, such conversations may be treated as a direct violation of a court order and could result in sanctions imposed against the offending party.

Implement only the Current Order: In a high conflict case, giving or requesting “one time” adjustments to the current custody/visitation order often leads to more problems. In these cases, it is best to stick to the exact language of your custody/visitation order or agreement. Further, when the court makes custody/visitation orders, it is important to request that the court be as specific as possible. This same rule applies to any negotiated custody orders. For example, ensure the order specifies the date, place, and manner of transfer for all exchanges. In addition, lay out a clear plan for holidays, school breaks, and special occasions. It is also important to limit the child’s exposure to potential domestic conflict or violence and ensure the safety of all people involved.Communication is Key: Conflict tends to arise out of frequent negative communication between the parties. Communication could be considered harassing due to its volume or the tone of the parties’ exchange. If one or both of the parties have “unfinished business” with each other after the break down of their romantic relationship, they sometimes try to hold onto that former relationship by attempting to “get to” the other parent through an ongoing custody battle. In order to avoid this type of conflict, make sure all communication is in writing (except in the case of an emergency). Restrict the topic of communication only to matters related to the children and keep a friendly tone with your co-parent. In some cases, the parties use a service called Our Family Wizard which records the written communication between the parties and makes it accessible to attorneys and even the judge on the case. Often, when parents are aware their communication is being monitored (particularly by the judge in their case), they tend to speak more civilly to each other.

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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If you are going through a divorce then you are likely aware of how impacted the courts are, due to a limited budget, and how long a divorce can be drawn out as a result of court hearings being scheduled months out. Impacted courts are especially a concern for litigants going through a divorce who are dealing with a heavily emotional legal case.
Couples who need the Court’s assistance with getting permanent orders with regard to child custody, division of property, spousal support or other issues related to a divorce, may need another avenue to end their divorce sooner. Privately compensated temporary judges offer just that.

Perhaps the acronym PCTJ has come up in discussions with your attorney or opposing counsel. PCTJ stands for Privately Compensated Temporary Judge. California Rules of Court Rule 2.834, which became effective January 2010, provides parties with the option to opt out of public courts and make use of a privately compensated temporary judge.

A request for the appointment of a privately compensated temporary judge must be directed to and granted by the family court judge. The parties can sign a stipulation agreeing to hire a privately compensated temporary judge, which will then become a court order.

A privately compensated temporary judge has and exercises all powers and duties of a San Diego Superior Court Judge. However, matters that occur before a privately compensated temporary judge are not held at the courthouse. Since the proceedings will be held outside court facilities, typically court personnel may not be used in the proceedings.Hiring a privately compensated temporary judge typically results in a quicker hearing and therefore quicker resolution of the disputed issue(s) in the case. However, hiring a privately compensated judge does involve an additional cost. The parties will not only incur the expenses of their attorney’s fees, filing fees and other costs, but also the cost to hire the privately compensated temporary judge. The parties can agree to split the cost. However, this additional cost must be weighed against the cost of going through the public sector, which may actually rack up more attorney fees as a result of delayed hearings and potentially interrupted trials.
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In family law, especially cases involving custody and visitation disputes, it can be tempting for litigants to make false allegations in order to get ahead in their cases. However, false accusations have no place in family law and in fact may be severely punished if discovered. San Diego family law judges take allegations of child abuse seriously and tend to err on the side of caution if there is any doubt to an allegation of abuse. There are three main statues which were enacted, in part, to deter the use false allegations of abuse as a litigation tactic by providing the following remedies to the falsely accused.

Supervised Visitation or Limited Custody/Visitation: Family Code § 3027.5 provides that the court may order supervised visitation or limit a parent’s time with the child if the court finds the parent knowingly made false accusations of child abuse against the other parent. In order to prevail on a claim brought under this code section, the accused parent must also show that the accusations were made with the intent to interfere with the other parent’s lawful contact with the child (particularly during the pendency of a custody proceeding). The court will also take into consideration whether supervised visitation or limited custody/visitation is necessary to protect the child’s health, safety, and welfare balanced against the child’s interest to have frequent and continuing contact with both parents.Sanctions: Family Code §3027 provides family courts with authority to impose monetary sanctions upon any witness, party or party’s attorney who knowingly makes false child abuse or neglect accusations during custody proceedings. The amount of the sanctions imposed will be calculated based on all costs incurred by the accused as a direct result of defending the accusation plus fees and cost associated with bringing the sanction request. It is important to note that the court may impose monetary sanctions in addition to (not in lieu of) any additional remedies requested. The requesting party, however, must be sure to bring his or her claim for sanctions within a reasonable time after clearing his or her name.

Mandatory Reconsideration of Custody Order: A parent falsely accused of child abuse or neglect has the option of pursuing criminal charges or a civil action against the accusing parent. If the accusing parent is convicted of a crime in connection with false allegations of child against the other parent, the falsely accused parent may move for reconsideration of the existing child custody order. A parent’s motion for reconsideration of such an order must be granted under these circumstances.

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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According to a recent study highlighted by the Wall Street Journal, two economists at Emory University identified a correlation between expensive weddings and high divorce rates. In addition, the researchers also noted a connection between the price of the engagement ring and the rate of divorce. The more expensive the ring, the more often the marriage ends in divorce. Despite the statistical link between an expensive wedding or engagement ring and a subsequent divorce; the researchers were not able to conclude that the price of the wedding or the engagement ring was the cause of the divorce.

The Knot, a popular website used by brides to plan their dream weddings, reports that the average U.S. wedding costs approximately $30,000. The wedding industry today is brings in roughly $52 billion dollars in revenue each year. As a result, the industry pushes the idea that expensive weddings result in long-lasting happy marriages. In addition, the more the couple spends on their special day, the more they must love each other and want to share their joy with friends and family. Although the economists discovered that high attendance at less expensive weddings is actually correlated to a long-term marriage, the price for wedding guests to attend the wedding (often priced per person) is typically the most expensive part of a wedding.The study conducted by the economists tends to disprove the message perpetrated by the wedding industry based on the following findings:

Cost of the Engagement Ring: Couples who spent between $2,000 and $4,000 on an engagement ring are 1.3 times more likely to get divorced than couples who spent between $500 and $2,000 on an engagement in. It looks like less is more when it comes to the ring after all.

Cost of the Wedding: Couples who spent $20,000 or more on the wedding were 1.6 times more likely to get divorced.

Common Factors in Long-Term Marriages: High wedding attendance, taking a honeymoon, relatively high household income, regular attendance of religious services, and having at least one child together.

These initial findings are interesting, but the economists are not finished with their work on this subject. They are discussing additional research which dives deeper into specific populations and following couples through multiple stages of their relationship.
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The state of California has a public policy to promote the best interest of the child when his/her parents have a custody or visitation matter in family court. In addition to promoting frequent and continuous contact with the child, the courts must make sure that the child is safe and protected. Sometimes as a safeguard in order to protect the safety of a child, a family court judge will place limits on the non-custodial parent’s visitation with the child and order what is known as supervised visitation.

Supervised visitation means that a child may only have visitation with the non-custodial parent when a neutral third party is present to supervise the visit. The third-party can be a professional or a therapeutic provider who has experience and is trained in providing supervised visitation. Professional and therapeutic providers typically charge an hourly fee to supervise the visitation. The third-party may also be a non-professional provider, like a family member or family friend who is qualified under specific criteria and agrees to supervise the visitation (typically at no cost to the parties).A family court judge may order supervised visitation for a variety of reasons in which there is a concern about the protection and safety of a child. For instance, allegations of neglect, substance abuse, domestic violence or child abuse will likely warrant supervised visitation. Supervised visitation may also be ordered when there is a threat of kidnapping or there is a concern of mental illness. Additionally, if the parent has been absent in the child’s life for a significant period of time or there is a lack of relationship between a parent and child, supervised visitation may be necessary to help introduce the parent and child.

A court order for supervised visitation will specify when the supervised visitations will take place and for how long they will last. Sometimes the court order will also specify where the visitations are to take place and who exactly will be the designated supervisor. Depending on the circumstances, a court may even order that the supervised visitation only take place within a visitation facility.

Ultimately, the goal of supervised visitation is to protect the child and to get the family in a position where supervision isn’t necessary. A court will continue to monitor a case to determine if supervised visitation is still necessary or if it can be lifted to unsupervised visitation.
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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Most divorce litigants are unfamiliar with the family law statutes and cases regarding attorney fees and costs. In the criminal law arena, the average person knows that the accused has a constitutional right to representation by an attorney whether or not they can afford to pay for one and that the prosecution is paid for by the state. Most people also know that in the civil litigation system, the “loser pays all” rule applies in some jurisdictions or in particular cases. Under these circumstances, an individual with a legitimate legal claim or defense does not take on a big hit for attorney fees when pursuing his or her rights. Justice can prevail in a criminal or civil courtroom and the winning party can leave feeling vindicated. Unfortunately, most family law litigants are hit with the harsh truth at the beginning of their divorce case. There are no winners in the family law world and justice has no place in a family law courthouse.

According to California case law and statutes, there are two main methods by which a family law litigant can collect attorney fees and costs from the other side. First, if a party can prove obstreperous conduct by the other side which has frustrated the policy of settlement in the case, he or she may recover some monetary compensation in the form of sanctions. However, it often costs thousands of dollars to bring to bring a sanctions motion and such a motion often derails the case at hand resulting in additional fees and costs. Second, if a party can demonstrate a true disparity in income and assets such that he or she cannot pay his or her own fees and that the other side has the ability to pay, the party may recover attorney fees and costs from the other side. However, an award of attorney fees based on need and ability is within the discretion of the family law judge, and after payment of support and division of assets there is no real disparity between the parties.In a large portion of San Diego family law cases, each party must pay his or her own attorney fees and costs. The average cost of a divorce in the United States is $20,000 with a likely much higher average in California, particularly in the city of San Diego. As a result of the cost of divorces, more often than not, divorce litigants cannot afford to pursue “justice” in court. For example, if a spouse has a valid $25,000 separate property claim, but the other side simply will not agree that such a claim exists, the spouse will likely waive the $25,000 claim because a trial on that issue would undoubtedly cost more than the claim is worth. The only option that parties in this situation have is to go into court self-represented. For the average person, the idea of conducting a trial is overwhelming and seems impossible. In addition, most people do not have the time and resources to devote to proper trial preparation.

The current attorney fees regime governing California divorce cases often leaves parties frustrated and feeling slighted by the “system”. Fortunately, there is a little relief available for family law litigants in the County of San Diego. The Family Law Facilitator’s office provides free legal assistance; however, the facilitators will only assist with document preparation and cannot give legal advice or represent clients. In addition, many non-profit organizations provide free legal representation and other forms of support to victims of domestic violence.
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October has been recognized as Domestic Violence Awareness Month since 1987 in hopes of connecting advocates across the nation to help end domestic violence against women and their children. Various activities are held at local, state and national levels including mourning those who have died as a result of domestic violence, celebrating those who have survived domestic violence, and offering a toll-free hotline to help provide services and information. In San Diego, the Domestic Violence Hotline is 1-888-DVLINKS (1-888-385-4657). In 1994 a national registry called “Remember My Name” was even created to help increase public awareness of those who have died as a result of domestic violence. Unfortunately, domestic violence between married couples is very real and more prevalent than we would like to think it is. Family Law attorneys often encounter clients who have been or are currently the victim of domestic violence. Family law attorneys can play a pivotal role in helping victims of domestic violence.

California law defines domestic violence as “abuse committed against an adult or minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.” Victims of domestic violence have several legal options to protect themselves from further abuse. Although these remedies don’t necessarily stop the abuser, they do permit the victim to call the police and get the abuser arrested if/when they break the order.

If you are a victim of domestic violence and you are married to your abuser, you will likely be interested in getting a divorce. Domestic violence can be a factor in certain aspects of your divorce case, including child custody and spousal support, so it’s important that you have an experience attorney who can explain your rights to you.

Even if you haven’t filed for divorce from your abuser yet, a San Diego family law attorney can help you file a Domestic Violence Restraining Order. If granted by the Court, a restraining order against your abuser will require your abuser to not do certain things, such as being prohibited from calling, texting, emailing, stalking, attacking, or disturbing you. Your abuser may also be ordered to stay a certain distance away from you. This can be done on an emergency/immediate basis, whereby your attorney will seek a temporary restraining order to protect you while waiting for the court hearing to determine if the restraining order should become permanent for a specified period of time.
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