Nancy J. Bickford

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So not only has your wife/husband left your marriage high and dry, but your ex already has a new boyfriend or girlfriend who is just plain bad news. Perhaps the new boyfriend/girlfriend is an ex-convict, does illegal drugs, is involved in an inappropriate lifestyle or is simply not a good influence to your children. The last thing you are going to want is for that new significant other to be hanging around your kids, and possibly living under the same roof as them, when your ex-spouse has custody of the kids. So what can you do in this type of situation to protect your beloved children from this potential physical and/or emotional risk?

You first need to consider whether you are simply just upset that your ex has already moved on, and thus you are looking for revenge by requesting more custody of the kids, or if your ex’s new boyfriend/girlfriend actually poses a physical or emotional risk to your kids’ health, safety and welfare. If the latter is the case, then you may consider asking the court to award sole physical custody of the children to you.When making a custody order, the court looks at what is in the best interest of the child. California Family Code Section 3011(b)(3) states that the court shall consider the health, safety and welfare of the child when determining what is in the best interest of the child. Thus, if your ex is allowing the new boyfriend/girlfriend to spend time alone with the kids and as a result the children are being significantly negatively affected on a physical or emotional level, then perhaps the court will find that the children’s health, safety or welfare would be at risk if left in your ex’s custody. Or perhaps your ex’s new boyfriend/girlfriend has affected your ex’s ability to properly care for the children. Whatever the situation may be, you will need to prove to the court how the children’s health, safety and welfare would be at risk if left in your ex’s physical custody.

Even if your divorce is already final and custody orders are already in place, the California family law court has continuing jurisdiction over custody matters. According to Family Code Section 3022, custody orders are generally modifiable whenever the court finds that a modification is “necessary or proper” in the child’s best interest. If you have a “permanent” custody order then you may be required to show a significant change of circumstances such that custody modification is essential to the children’s welfare. In any case, if your divorce is already over and custody orders are already in place, then one possible solution is ask the Court to modify the current custody orders to give your ex-spouse less time with the children.
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In California child support cases, the parties may be surprised to learn that a parent’s duty to financially support his or her child may continue after the child becomes a legal adult at the age of eighteen (18). This idea is often confusing to the parties because child support is inextricably linked to the time the child spends with each parent. Generally, the more time the supporting parent spends with the child, the lower the child support amount will be. On the other hand, the lower the amount of time the supporting parent spends with the child, the higher the child support obligation will be.

Pursuant to Family Code section 3901, “the duty of support imposed by [Fam. Code §3900] continues as to an unmarried child who has attained the age of 18 years, is a full-time high school student, and who is not self-supporting, until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first”. As stated in this code section, even if a child attains the age of 18 years, a parent will still be obligated to financially support the child until the child finishes high school. However, despite the ability of the family court to order child support, the court cannot make corresponding custody and visitation orders of an 18 year-old adult. Therefore, a parent may be ordered to pay child support for a child who is not required to spend specified time periods with either parent.Considering the fact that timeshare with the children is such a major factor in calculating child support, parties are faced with a conundrum when one child requiring financial support is a legal adult and cannot be forced to comply with a custody and visitation order. In these cases, the court bases child support on actual timeshare instead of timeshare which is ordered pursuant to a custody and visitation agreement or order. This means that if the 18 year-old student does not want to spend time with the supporting parent, child support will be calculated with the supporting parent have minimal time with the child. As a result, the supporting parent’s child support obligation will be higher than if the parties shared equal time with the child.

Cases where a child does not want to spend time with one or both parents are very difficult. If you feel like the relationship between your child and you and/or your former spouse is deteriorating, it is important to discuss your options with your divorce attorney to work towards repairing that important relationship before the child turns 18.
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There are a plethora of differences between one state’s divorce laws and another state’s. Whether one state is better for your divorce versus another is typically a subjective opinion based on whether your specific situation would benefit from community property laws for division of assets, whether you prefer the court to be biased with regard to favoring the mother in a custody battle, etc. However, on a more objective scale, one state may be more preferable for divorce than another state simply based on how expensive and time-consuming the process is and the requirements for filing or actually getting divorced. According to Bloomberg Rankings, the following are the top 5 worst states to get a divorce in based on the state’s court filing fees, minimum time required to complete the divorce process, residency requirements, minimum separation periods before filing and other mandatory waiting periods.

5th worst: California
Unfortunately, California is ranked as the fifth worst state for a divorce. The filing fee just to get the process started is $435, which is one of the highest in the country. In order to file for divorce there is a six month residency requirement. Additionally, California is the only state that requires a six month mandatory cooling off period after filing for divorce, meaning that even if you have resolved your divorce in less than six months, the court will not restore your status to a single person until the six month waiting period expires.

4th worst: Arkansas
Arkansas also made the top 5 for the worst states to get divorced in. Although the filing fee is only $165, the state has a minimum processing time of 540 days, which is the longest in the country. The reason for this lengthy processing time is because there is an 18 month mandatory period of separation, in which living together is prohibited, before the court will grant a divorce.

3rd worst: South Carolina
Apparently, the 3rd worst state to get divorced in is South Carolina because the state requires that couples be separated for an entire year before even being able to file for divorce. The couple must also live apart during that one year separation period. Additionally, the state has a three month residency requirement if both parties are residents of the state, resulting in a minimum processing time of 450 days. If only one party lives in South Carolina, then the residency requirement is one whole year.

2nd worst: Rhode Island
Rhode Island is also near the top of the list for worst states to get divorced in. Although it has a reasonable filing fee of only $120, Rhode Island has the second-longest wait to get a divorce with a minimum processing time of 510 days.

And the Worst State to get Divorced in is: Vermont
According to Bloomberg Rankings, the worst state to get divorced in is Vermont. Married couples filing for a no fault divorce must live apart from each other for at least six months. Also there is a one year residency requirement before a divorce will be granted. But before the judge actually approves the divorce and it becomes finalized, there is an additional three month waiting period that must expire.New Hampshire: Easiest State to Obtain a Divorce
Unlike the above states, which have the most expensive filing fees, most extensive waiting periods and the most stringent residency and minimum separation period requirements, Bloomberg Rankings rates New Hampshire as the easiest state for a divorce. Perhaps this is because in New Hampshire there is no minimum processing time or minimum residency requirement, which makes the process for getting a divorce much faster. So couples in Vermont should consider going “next door” to New Hampshire for their divorce!
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One of the first hurdles to overcome in the beginning of any contentious divorce case is to determine how much support is owed from one spouse to another, if any. Many times, a dispute over the proper support amount lands the parties in court for a short hearing at the outset of the case. After a month or two of crunching numbers and producing financial information, the parties are typically relieved when they walk out of the courtroom just to have a number that they can count on to pay or receive each month. In addition, many times the parties reach an agreement regarding the amount of support on the courthouse steps and simply read their agreement on the record in front of the judge. Although neither party is usually satisfied with the amount of support, having certainty regarding monthly support provides both sides with a little stability.

The amount of support is usually the main focus in any support negotiation or hearing. However, often times the parties, attorneys, and judges forget to include details (or decide not to include details) regarding when the support payments are due each month. In a typical scenario the parties appear in court on a particular date during the month and receive a support order that is effective another date. On the first date of the following month, the supported spouse expects to get that first support check in the mail. After waiting a few days, the supported spouse may call his or her spouse or his or her attorney claiming that the paying spouse is “late” on payment. However, careful review of the support order is necessary to determine whether the paying spouse is late on his or her payment. Many times, the support order is silent on the due date of the monthly support payment.

An optimal order will state something like “Effective August 1st, 2014, and payable on the first of each month thereafter, Husband shall pay to Wife for her support and maintenance the sum of $2,000.00 per month”. Pursuant to the default family code provisions, absent a specific due date for support, the support payment is due on the last day of the month in which the support payment is to be paid. The paying spouse may be able to go over a month without paying support after the hearing which puts the supported spouse in a difficult financial position as bills become due.

In addition to waiting to the last minute to make support payments, some paying spouses argue that the support order does not become effective until a formal order is signed. Following most support hearings, the parties must agree upon and execute a formal order. However, this process can be delayed if the parties “disagree” on exactly what was ordered in court. Luckily, California courts have held that support orders become operative at the moment of pronouncement. This means that the support order is effective prior to the execution of a formal written order.
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Thinking about or talking about the possibility of divorce is very different than actually taking affirmative steps to file for divorce in Family Court. Moving forward with this step can take a significant amount of mental and emotional strength. If you’re still in the thinking or talking stages of a potential divorce, ask yourself the following questions to help determine if you are ready to take the next step and file for divorce from your spouse.

1. Are you Facing a Hard or Soft Problem?
The need for a divorce may be more immediate if you are in a situation where you are facing a “hard problem” as marital therapists like to call it. “Hard problems” include situations in which you are facing abuse from your spouse or your spouse has an untreated addiction. If this is the case, you may want to act fast and stop just dwelling on the possibility of divorce. However, if you are facing a “soft problem” maybe you need more time to decide if you and your spouse can work on the problem or if a divorce is the preferable option. “Soft problems” include things such as feeling as if you’ve grown apart from your spouse, that you’re unhappy in the relationship or that you aren’t in love anymore.

2. Are You and Your Spouse Even Compatible?
What are your odds of succeeding as a married couple? Perhaps taking a “Rate Your Mate” quiz (http://www.divorcenet.com/interest/rate-mate-compatibility-divorce-test.htm) will help you determine if you’re destined for doom, in which case you might as well just go ahead and prepare those divorce papers. The “Rate Your Mate” quiz tests areas such as common interests, money, mutual respect and personal safety, which are common issues that many couples face.

3. Should You Stay Together for the Kids?
There are two opposing schools of thought: 1) stay together because divorce is destructive to children; or 2) get a divorce because if the parents are happier the children will ultimately be happier. If you are contemplating divorce and you have children with your spouse then you should think about whether it’s in your children’s best interest if you stay with your spouse or split. Many couples prefer to wait until their children have turned 18 and left for college before they decide to get a divorce. But if your children are young, this might not be a realistic option for you. Also, if your marriage is filled with havoc and constant fighting then staying together for the kids might actually be hurting, rather than helping your kids.

4. Are You Ready to Part With Some of Your Stuff?
Your house, your cars, your furniture and furnishings…these are all things that were likely acquired during your marriage and will be subject to division during a divorce. Getting a divorce means parting with some or all of these “things” in order to divide assets with your spouse. For instance, in many divorces, where one party cannot afford to keep the home and “buy out” the spouse, the family home will need to be listed for sale. Even though you can likely negotiate with your spouse to keep certain items or assets, you will need to accept the reality of parting with some of your stuff. If this idea seems too traumatic for you then you should re-evaluate whether or not a divorce is the route that you want to take.
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Family law is the most personal and emotional area of law for the litigants. Family law issues penetrate your finances, your time with your children, and even your home. It is sometimes difficult for divorcing spouses to be completely open and honest with their divorce attorneys from the onset of the case. This is understandable considering that the client probably spent hours during the initial consultation and retaining process being probed with very personal questions by a stranger. It is imperative to resist the urge to hold back information from your attorney during the beginning of your case. Especially if your case is contentious, all of your “dirty secrets” will be revealed in time and your attorney needs to be prepared to defend you.

Divorce attorneys hear shocking confessions each day and do not sit judging you for your past mistakes. In addition, a confidential relationship exists between attorneys and their clients ensuring that all of the client’s secrets remain private. However, it is much better to divulge all of the information that may be used against you privately to your attorney rather than be questioned about it in open court. Family law attorneys are trained to defuse negative or difficult facts in your case, but your attorney cannot do that if he or she does not know all of the pertinent information.

It is helpful to consider the following questions during the initial phase of your divorce case:
1. What is the worst thing your spouse might present to the court about you, even if this is not true?
2. Are there any friends or family members that would be willing to testify against you?
3. Have you been convicted of a crime?
4. Do you have any mental or physical health issues?
5. Have you previously been represented by another lawyer in your divorce case?
6. Have you had past involvement with a child protection agency such as child welfare services?
7. Do you have any other children that are not a result of your current marriage? If so, are you supporting those children? If so, are you caring for those children?
8. Do you have a history of substance abuse?
In addition to considering the above questions, also feel free to tell your attorney any information which might be uniquely important to your individual case.
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As a family law litigator, I see on a first-hand basis how much clients are shelling out just to get a divorce. The entire process can very quickly take a dramatic toll on someone both financially and emotionally. In today’s economy, most of us don’t have unlimited funds set aside to spend on a divorce. Instead, we would rather save our pennies for our children’s college education, our retirement, our mortgage, paying off student loans, etc. If you are in this situation, consider the little-known secrets below from an attorney’s perspective to help you save money on your divorce case.

Organize Your Documents for Your Attorney:
Often times, clients will just drop off a pile of documents that we have to sort through and try to make sense of. Keep in mind that your lawyer will never know your life as well as you do. So make it easier on your lawyer by providing him/her will a three ring binder with tab dividers and make a tab for each of your assets and their supporting documents. This will allow your lawyer to draft your declarations of disclosure much quicker and will reduce the amount of times your lawyer has to call you to get additional documents and information.

Don’t Use Your Lawyer as a Therapist:
Sending lengthy emails to your lawyer about non-relevant legal matters or talking on the phone with your lawyer for hours about your situation will only serve to rack up your attorney fees. Unless it’s truly relevant to your case, don’t copy your lawyer on emails between you and your spouse. And think about getting a therapist to talk to instead of your lawyer. Chances are your therapist’s hourly rate will cost much less than your lawyer’s.

Email Your Lawyer Instead of Calling or Meeting in Person:
Most divorce lawyers charge an hourly rate. If you call your lawyer, he/she likely won’t be available immediately and will instead need to schedule a phone call for a later time. Chances are that preparing for and taking the phone call will take more time than simply responding to an email. Same thing goes for meeting in person. If you just have a few simple questions that need to be answered, a quick email will likely take less time for your lawyer to review and respond rather than meeting with you in person.

Talk to Your Spouse:
It may seem impossible to talk to your spouse if you are amidst a heart-wrenching divorce. But if you can figure out a way to amicably talk to your spouse you will have a chance to settle smaller issues, like the division of household furniture or your frequent flyer miles, without accruing more attorney fees.

Separate Panic from a True Emergency:
Think about whether your situation truly warrants a phone call to your attorney. Perhaps a phone call to the police would better serve your interests. Or if it’s 4:00 pm on a Friday and you know that your attorney won’t be able to go to court or get ahold of opposing counsel, perhaps you should wait it out.

Choose Your Lawyer Wisely:
Choosing the right lawyer can make all the difference in your divorce case. You want to choose a lawyer who will see you as a valuable and important client at the firm. Hiring the biggest firm in town might cause you to get your case ignored if you don’t fit or exceed their client profile. Also, keep in mind that a lawyer who practices exclusively in family law and is a certified family law specialist will likely have more knowledge about the divorce process than a lawyer who just does family law on the side.

Unless Truly Necessary, Avoid Changing Lawyers Mid-Divorce:
If you change lawyers mid-divorce, your new lawyer will have to charge you to review your file and try to catch up, which will likely cost you a considerable amount of money that could have been avoided by just sticking with your original lawyer.
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Many countries, including the United States, have become members of the Hague Convention. The Hague Convention contains an Article on the Civil Aspects of International Child Abduction. Pursuant to the child abduction provisions, the court “shall order the return of a child forthwith” upon proper petition of the court if a child has been wrongfully removed from another country. This creates a nearly automatic return order for any children in the United States which have been wrongfully removed from other countries. However, there is one small catch. The provision ordering the immediate return of a child only applies if a petition requesting the return of the child has been made within one year of the child’s wrongful removal.

The one-year period attached to the child abduction provision of the Hague Convention has caused a growing split between lower courts. Some courts held that the one-year period is tolled (essentially put on pause) when the abducting parent has concealed the location of the child. Other courts held that the Hague Convention does not contain a provision tolling the one-year period and therefore, courts cannot impose one. In March 2014, the United States Supreme Court handed down the deciding vote and determined that United States courts cannot toll the one-year period for parents to file a Hague petition requesting a child’s immediate return.

The U.S. Supreme Court based its decision largely on an analysis of the best interest of the abducted children. The Court reasoned that, regardless of whether a child’s whereabouts were concealed, the child would likely be settled in a new place after a year had passed. Ordering automatic return of the child would uproot him or her from his or her newly established life, which may be detrimental to the interests of the child. In addition, the Supreme Court relied on the fact that the drafters of the statute could have included exceptions to the one-year period but did not.

In a concurring opinion, one Supreme Court Justice pointed out that although U.S. courts cannot toll the one-year period, judges still have the ability to return the child after the one-year period. If the judge determines that the factors favoring the child’s return outweigh the factors favoring the child being settled in a new home, the court may order the child returned. In addition, the court may take the concealment of the child into account when weighing all of the appropriate considerations. In sum, the Supreme Court’s ruling does leave a loophole open for courts to order the return of child when it is in the child’s best interest to do so.
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Family law is such an emotional and unpredictable area of law. Because of the various personal, economical, and emotional factors that are involved in divorce cases, it is difficult to pin down the “right” path for each family. If a divorce case proceeds to trial and a judge ultimately decides the outcome of a case, there is a clear “right” and “wrong” analysis for the issues before the court. It is a judge’s job to hear all of the facts and evidence presented and then to apply the law as directed by the family code and case law precedent. But what if the parties want to reach an agreement for an outcome that would not be obtained in court? Is it “wrong” for the parties to enter into agreements that are outside the scope of potential outcomes in the courtroom?

Many California divorce lawyers use what a court might do in a particular case as the measuring stick for settlement negotiations. Some attorneys highly discourage their clients from entering into agreements which are outside of the norm. However, courts will apply the family code and case law which only amount to “default” rules. Just as if the parties’ entered into a premarital agreement (commonly referred to as a “prenup”), divorcing parties can decide to avoid the default rules and opt for a different agreement. At Bickford Blado & Botros, we encourage our clients to come up with creative solutions to their divorce case in order to avoid trial.The default code sections and case law are not for everyone. It is impossible to structure a “one size fits all” solution for divorces. Sometimes parties do not believe that the law applied to their case generates a “fair” outcome. For example, the parties may think it is fair to divide their assets equally after a long term marriage without consideration for separate property rights of reimbursement. However, although settlement is encouraged by both attorneys and judges, it is important to ensure both parties are adequately informed regarding their legal rights before they sign off on any agreement.

In order to appropriately weigh the costs and benefits of settlement versus litigation, both parties should sit down with their respective attorneys and discuss their legal rights and likely outcomes at trial. Both parties should also carefully consider the potential emotional and financial cost of litigation.
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At some point during your divorce you will inevitably be feeling emotionally drained. You may feel like the only person in the world going through your type of situation or you may wonder if there is hope for you to someday remarry again. Here are some fun facts regarding world record holders for marriage and divorce to help lighten your mood for those difficult times during a divorce.

According to the Guinness Book of World Records:

Highest Divorce Rate:
The Maldives is the country with the highest divorce rate in the world. The Maldives has 10.97 divorces per 1,000 inhabitants per year. The Unites States is third in line, with 4.34 divorces per 1,000 inhabitants. So even when you feel like the only one going through a difficult time, think of all the other people going through a divorce right alongside you!

Hollywood Stars to Marry the Most Amount of Times:
We are constantly hearing the latest gossip about celebrity marriage and divorces. Well, Lana Turner, Mickey Rooney, Zsa Zsa Gabor, Elizabeth Taylor and Georgia Holt, have surely had plenty of attention as they have each been married eight times. So even if you’re going through your second or third divorce, just remember that some people have gone through seven divorces!Oldest Person to Get Divorced:
Harry Bidwell of the United Kingdom is the oldest known divorcee. He divorced his 65 year old wife on November 21, 1980 at the age of 101. Just imagine trying to handle all of the divorce paperwork at age 101, seems a bit daunting. Bidwell is proof that you’re never too old to get divorced.

Oldest Couple to Get Married:
In February 2002, Francois Fernandez and Madeleine Francineau exchanged marriage vows in France at the age of 96 years 290 days and 94 years 201 days, respectively. Even if your dating life seems bleak during or after a divorce, remember that there is still hope of finding a mate as you get older.

Most Marriage Vow Renewals by the Same Couple:
Apparently one wedding wasn’t enough for US couple Lauren Lubeck Blair and David E. Hough Blair, who as of November 2011 have renewed their marriage vows 101 times since they first got married in 1984. Additionally, all of those wedding ceremonies have been in separate locations. Oddly enough, the first time that David proposed Lauren said no!

Couple to be Married the Longest:
If you’re thinking about getting married again after your divorce maybe you should get some advice from Herbert Fisher and Zelmyra Fisher who, as of February 2011, were married for over 86 years.
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