San Diego Divorce Attorneys Blog

March 24, 2014

Beware of Steep Fines for Violating the ATROS

The moment a divorce commences, automatic temporary restraining orders (“ATROS”) take effect and they remain in effect until entry of the final judgment. Specifically, the Petitioner is bound by the ATROS once he or she files the Petition and Summons and the Respondent is bound by them after he or she is served with the Petition and Summons. The ATROS can actually be found on the second page of the Summons.

According to California Family Code Section 2040(a), these ATROS restrain both parties from doing the following:
1) Removing their minor children from the state without prior written consent from the other party or an order from the court;
2) Transferring, encumbering, hypothecating, concealing, or in any way disposing of any real or personal property (even separate property) without the other party’s written consent or an order from the court. There are, however, exceptions if the action is within the usual course of business, for the necessities of life, or to pay reasonable attorney fees;
3) Cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage (i.e. life, health, automobile, disability, etc.) held for the benefit of the parties and their children for whom support may be ordered; and 4) Creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the other party’s written consent an order from the court.

Despite being aware of and bound by the ATROS, parties going through a divorce often ignore them, thus disregarding the potential penalties for their violation. Perhaps if the parties were aware of how steep the penalties for violation of the ATROS can be, they would think twice before violating them.

Violation of the ATROS can result in some pretty hefty fines and even time behind bars. (See Family Code Section 233). Specifically, Penal Code Section 278.5 provides that “every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment…” Willful and knowing violators of any of the other orders may also be subject to a $1,000 fine, imprisonment or both pursuant to Penal Code Section 273.6.
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March 23, 2014

How to Work Well with Your Divorce Attorney

By Bickford Blado & Botros

One of the first things that most people do when they decide to get a divorce is to find, interview and hire a divorce attorney to help them through the divorce process. The relationship that you develop with your divorce attorney is an important one as it will likely continue throughout the entire divorce process and even possibly years down the line. Depending on how well you work with your divorce attorney can have quite a significant impact on the pace of your divorce proceeding and the amount of legal fees you will incur. The best way to ensure that you work well with your divorce attorney is to outline your expectations and understand what your attorney expects from you in return.

What You Should Expect From Your Attorney

After hiring an attorney some things that you should expect from him or her include the following:
1) Your attorney should begin with developing a strategy.
2) Your attorney should explain your options to you and help you decide which route to take.
3) Your attorney should consult with you before making any major actions.
4) Your attorney should return your phone calls and/or emails within a reasonable time frame.

On the other hand, you should not expect your divorce attorney to act as a therapist for your emotional issues relative to the divorce, nor should you expect your divorce attorney to act like the attorneys you see on television or to act unethically to appease your unrealistic or illegal expectations.

Understanding What Your Attorney Expects from You

In order for your divorce attorney to attempt to meet and perhaps even surpass your expectations, it is essential that you also understand what your divorce attorney expects from you in return throughout his or her representation of you.

Shortly after hiring a divorce attorney, he or she will likely ask you to provide and produce a significant amount of information and documentation. When your divorce attorney does so, it is very important that you respond in a quick, concise and complete manner. More importantly, it is vital that you always tell your attorney the truth, even when it might be unpleasant, embarrassing or not in your favor. It’s very important that you maintain a trusting relationship with your attorney if you want to get the best possible representation and avoid backtracking (i.e. more legal fees for you).

In addition, your attorney will expect you to be well prepared and willing to openly listen to his or her advice. And as you likely suspect, your attorney will also expect to be paid in full and on time Continue reading

March 22, 2014

Talking to Your Children About Divorce

By Bickford Blado & Botros

Throughout San Diego County, custody and visitation is a highly litigated family law issue which causes turmoil within local families. The court system and family law attorneys encourage parents to take whatever steps necessary to ease their children through the divorce process. One of the most important steps a parent can take to help their children through the transitional period of a divorce is to have a conversation with them early to explain what is going on. The nature and depth of the conversation will depend on the age and maturity of the children involved; however, it is always important to reassure children of their security and stability within the family. The following is a list of questions commonly posed by parents who have recently decided to divorce.

Q: Who should tell the children about the divorce?
A: If possible, both parents. It is important to present a “united front” right from the onset when initially discussing divorce. This can reassure the children that they will still have both of their parents and are still part of a family unit. Parents can also brainstorm possible questions their children may ask and come up with agreed-upon answers.

Q: When should we tell the children about the divorce?
A: As soon as possible after you have conclusively decided to get a divorce.

Q: What should we say to the children about the divorce?
A: The truth. While explaining to the children why their parents are separating it is imperative that both parents refrain from any comments which might turn the children against the other parent. An honest explanation regarding the reason for the divorce will encourage the children to come to their parents with their feelings and thoughts on the subject. The first conversation regarding the divorce is also a good time to explain to the children that it is normal to feel upset and sad.

Q: How can we minimize behavioral issues during this transition?
A: Stick to the program. Children experience many significant changes in their lives when their parents are going through the divorce process. Therefore, maintaining established parenting styles is crucial for encouraging behavioral stability. Although tempting, parents should avoid overcompensating their children with gifts or relaxed discipline. This continuation of routine will prove to your children that not everything will change as a result of the divorce.
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March 21, 2014

Consequences for False Allegations of Child Abuse

By Bickford Blado & Botros

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. 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 stand to deter litigation tactics involving false allegations of abuse by providing the following remedies to the falsely accused.Sanctions: Family Code section 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 their claim for sanctions within a reasonable time of their exoneration.

Supervised Visitation or Limited Custody/Visitation: Family Code section 3027.5 provides that the court may order supervised visitation or limit a parent’s time with the child if the court finds that that parent made knowingly 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.

Mandatory Reconsideration of Custody Order: A parent falsely accused of child abuse or neglect has the option of pursuing criminal charges 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.
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March 18, 2014

How to Prepare for Your Day in Family Law Court: Part II

By Bickford Blado & Botros

My previous blog, “How to Prepare for Your Day in Family Law Court: Part I” I discussed how to mentally prepare for court, what to bring with you to court and what to do when you arrive at court. Part II aims to prepare you for your day in court by helping you becoming oriented with who you will see in court and how the proceeding will occur.

Who You Can Expect to See In Court

As you likely know, from watching a little too much Law and Order perhaps, the judge is the person who presides over the court. However, there are no jury trials in family law in California. In addition to the judge, there are typically three other people in most courtrooms: the bailiff, the court clerk and the court reporter.

The bailiff is a uniformed officer and is usually the first person that you will talk to when you check into the courtroom. The bailiff’s primary job is to maintain order in the courtroom. The bailiff also acts as the middleman in handing documents from the attorneys/parties to the court clerk or to the judge directly.

The court clerk sits near the judge and is in charge of managing the court. Prior to the morning calendar, the court clerk will give the judge all of the case files. Once court is in session, the court clerk will be the one to administer the oath to any witnesses and also serve as a clerical assistant to the judge.

The court reporter is the person who is in charge of recording everything that is said while the court is in session. Following the hearing, you or your attorney may request the court reporter to prepare a transcript, which is a verbatim script of the court proceedings.

Typical Order of Events in Court

Calendar Call: The first thing the judge will do once he takes the bench is to do a calendar call in alphabetical order to determine how many cases are going to be heard and the time estimate for each. Based on this information, the judge can put the cases in the order of his choosing. Once the calendar call is completed, the judge will typically call the cases with the shortest time estimates first.

Statement of Appearances: Once your case is called, both the attorneys and the parties will step forward and take their place at their respective tables (Petitioner on the left of the podium and Respondent on the right of the podium). The attorneys will state their appearances for the record. If you are not represented by legal counsel then you are responsible for stating your own appearance.

Administer Oath: Next, the court clerk will administer the oath to both parties and instruct them to raise their right hands and say “I do”. This means that your testimony will be given under penalty of perjury such that you can be convicted of a crime if you knowingly tell a lie during your testimony.

Determine Resolved and Unresolved Issues:

Before the actual hearing begins, the judge will want to determine which issues, if any, have been settled by agreement and which ones still remain unresolved. The judge will review any written agreements or listen to statements regarding settled issues. The judge will then ask the parties if they understand the agreement and then he/she will typically make a statement accepting the stipulation and confirming that the agreement is a court order. Once this is completed the actual hearing will begin.
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March 14, 2014

How to Prepare for Your Day in Family Law Court: Part I

By Bickford Blado & Botros

During a dissolution case, also known as a divorce, you will likely be required to attend a court hearing at some point during the process. Regardless of what type of hearing it is, getting oriented with the family law court and properly preparing yourself for your day in court is half the battle.

Mental Preparation

Whether or not you are being represented by an attorney, it is important that you come to court well-rested and ready to participate in the proceedings with a clear mind. Family Court hearings can be quite stressful and emotional draining so getting the proper amount of rest will surely help your mental well-being.

If you have not been to the courthouse before, be sure to get proper directions, figure out how long it will take you to get there and look into the parking facilities. Knowing where you are going and giving yourself enough time to get there will help alleviate some of the stress that you will inevitably be feeling. Also, it is important to make sure that you have any necessary paperwork ready to go the night before so that you don’t have to worry about rushing on the morning of your court date.

What to Bring and What Not to Bring With You

Courts require payment by the parties for the Court Reporter on certain days and for certain hearings. Be sure to have your checkbook with you when you come to court so that you are prepared if a payment needs to be made for your share of the Court Reporter’s charges.

On the other hand, be sure to leave anything that might be considered a weapon at home as most courthouses have metal detectors at the front door.

What to Do When You Arrive

If you are represented by legal counsel make arrangements with your attorney where to meet once you get to court. Typically, attorneys will meet their clients in the hallway outside of the courtroom where your hearing is taking place. If you are not currently represented by legal counsel then go directly to the courtroom designated for your hearing. A calendar will be posted right outside of the courtroom which will list the cases scheduled for that day. Confirm that your case is listed on the calendar to make sure that you are indeed at the right courtroom.

Once you are inside the courtroom you might be interested in orienting yourself with the court personnel and order of events. For detailed information, please read “How to Prepare for Your Day in Family Law Court: Part II”, which will be posted March 18, 2014.
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March 13, 2014

New York Dad Loses Custody Battle Over Fast Food Dispute

By Bickford Blado & Botros

In the midst of a New York divorce case, father David Schorr gave his son a common ultimatum when his son demanded McDonald’s for dinner – “you can have dinner from anywhere besides McDonald’s or have no dinner at all”. In response, the stubborn five-year-old decided to have no dinner at all and threw a tantrum. Schorr immediately regretted the harsh position he had taken with his son but felt it was inappropriate to back down in response to his child’s outburst. While trying to convince his son to change his mind, Schorr took his son back to his mother’s house early and waited for her to return home.

In the Schorr divorce, the court appointed a neutral psychologist to evaluate the parenting abilities of both parents in the context of the best interest of the child. The psychologist recommended that, considering the “McDonald’s incident,” the Court should eliminate or limit Schorr’s weekend visits with his son. During the pendency of the divorce, Schorr has alternating weekend visits with his son and dinner with him each Tuesday. In response to the psychologist’s statements, Schorr has filed a lawsuit against her for defamation. As the suit was filed in early November, there is little information available regarding its progress.

During the pendency of a divorce action where child custody and visitation is a disputed issue, each party’s parenting is under strict scrutiny. In the Schorr case, one father’s attempt to teach his son discipline cost him time with his child. It is hard to imagine that legal parenting tactics such as spanking (within reason) and other various forms of discipline can result in a parent losing custody of his or her child. Outside of the parameters of a divorce case, if a problem is reported to authorities, such parenting decisions would be evaluated by Child Protective Services (“CPS”) rather than a court-appointed psychologist. It is not likely CPS would have removed a child from his father’s care based on the McDonald’s event described above. This is a cautionary tale for all parents involved in a custody dispute, even one “mistake” could cost you valuable time with your children.

In a California custody case, the court, the parties, or the attorneys have the ability to request a neutral evaluation be conducted by a mental health professional (like in the Schorr case). If both sides agree a neutral is needed, they can stipulate (agree) to appoint an evaluator without Court intervention. Generally, once the evaluation is complete, the evaluator will prepare a report outlining his or her findings. The expert’s report may be read by both parties and the judge in the case.
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March 11, 2014

Coping with Divorce: Is it Harder for Men?

By Bickford Blado & Botros

Despite their typical tough exterior, recent studies indicate that men actually seem to have a more difficult time coping with divorce than women. Unfortunately, studies also show that divorced men are more likely to have heart disease, strokes, high blood pressure, and commit suicide.

One reason why men may have a more difficult time coping with divorce is because oftentimes men don’t let themselves properly grieve during the divorce process. Unlike most women, men tend to bottle up their feelings and oppose therapy or other means of getting their emotions out. As a result, they are less likely to lean on others for support and to release their built up emotions and stress stemming from the divorce.

Women, on the other hand, are much more apt to seek assistance from friends, family, a therapist or even a support group regarding their emotions. Doing so helps women to be more emotionally prepared to tackle the challenges and stressors that come with a divorce. Without the ability to properly grieve and reach out to others for support, men are more likely to experience feelings of depression. If men want to properly grieve and allow themselves to heal during and after a divorce, it’s necessary to put aside the “Men don’t cry” and “I can do this alone” attitude and instead reach out to those who can help with the grieving process. Addressing emotions early on can help the grieving process later on down the road.

Another reason men may have a harder time coping with divorce is because they tend to lose their sense of identity as a result of the divorce. This is especially true when the man’s role in the marriage is the “breadwinner” and “protector” and then they become disconnected from their children during or after the divorce. Many men have a paternal instinct to be a provider so when the family dynamic changes because of a divorce, men are often times forced to re-identify their role. Those men who remain very connected and involved in their children’s lives, however, tend to have an easier time re-instilling any lost sense of identity and belonging.
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March 10, 2014

How Much Will My California Divorce Cost?

By Bickford Blado & Botros

One of the most common questions asked in an initial divorce consultation is “how much will this divorce cost me?” Many prospective clients are surprised when divorce attorneys answer “I have no idea”. The only concrete information a family law attorney can provide clients regarding the cost of their divorce matter is the filing fees imposed by the courts ($435 in 2013). Other than basic hard costs and billing methods, divorce attorneys can provide clients with little information regarding the cost of their divorce at the initial consultation because the overall cost is based on a combination of the following factors.The Client: A family law client has the ability to greatly influence the cost of his or her divorce. If the client needs a lot of counseling or “hand holding” his or her bills will generally be much higher because the clients repeated phone calls and e-mails substantially increase the time an attorney devotes to the case. Considering the fact that a vast majority of family law attorneys charge an hourly billing rate, daily e-mails and phone calls could potentially add up to thousands of dollars per month.

The Opposing Party: Generally the attitude of the opposing party falls into one of a few categories: (1) emotionally stable and ready to move on with his or her life, (2) angry, vindictive, and willing to do anything to “get back at” his or her spouse, (3) hopeful that the parties can reconcile and therefore doing everything possible to delay the divorce process or (4) self-proclaimed victim who is busy feeling sorry for him/herself. If the opposing party wishes to drag out the divorce process, for whatever reason, there are endless methods of doing this. Delay is particularly easy for a non-represented party who does not incur attorney fees by filing countless motions, propounding burdensome discovery, or litigating every small issue.

The Opposing Counsel: Just like repeated communication with the client can increase attorney fees, onerous correspondence from the opposing attorney can greatly increase the cost of a divorce. This is because attorneys generally have a duty to read and respond to all pleadings and correspondence from the other side. Further, family law attorneys generally have a reputation for either working amicably with the other side to reach a mutually beneficial agreement whenever possible or for using their client’s vulnerable state to fuel litigation for their own financial gain. Therefore, the general practice of the opposing attorney will likely minimize or increase the overall cost of divorce.The Judge/Court: Every family law judge in San Diego is different. As such, every judge has a different calendar, schedule, and view of each case. Many of the court calendars are impacted and family law motions go months before being heard.

Number/Complexity of Contested Issues: The number and complexity of the contested issues in a divorce case is a major factor in the overall cost. For example, if the parties were married for 15 years but have no children, no real property, no retirement accounts/savings, and both earn similar incomes there will be few issues to litigate. However, if the parties were married for three years but have two minor children, retirement accounts, own a home and only one spouse works, the parties will have to address property division, custody and visitation, and support issues. The more contested issues that exist, the longer and more expensive the divorce will be. However, if the contested issues are not complex, a simple hearing will generally resolve the disputes and keep costs low.
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March 6, 2014

Jennifer Lopez Plans to Take Back Maiden Name Post-Divorce

By Bickford Blado & Botros

Many women choose to take their husband’s last name when they get married. Jennifer Lopez, known by many as “JLo”, did just that when she married Marc Anthony in 2004. According to her legal documents, JLo’s legal name is Jennifer Muniz, which is her husband’s legal last name. But, according to TMZ, now that the couple is on the road to divorce “JLo” is adamant about getting her maiden name back!

Just like you made the choice to take your soon to be ex-husband’s last name when you got married, you can chose to restore your maiden name post-divorce or just keep your married last name, despite the divorce. Some considerations to think about when deciding whether or not to change your name are the impact a name change has with regards to your children, your profession and your well-being. Some women prefer not to have a different last name as their children and therefore keep their married name. To others, this isn’t that big of a deal. If you made a name for yourself at work before marriage and then put work on hold during your marriage, perhaps you will want your maiden name back so you can return to the same industry post-divorce and be recognized a bit easier. When deciding whether or not to change your name back it’s also important to think about whether it’s worth the extra time and hassle to change your name on your driver’s license, passport, financial accounts, etc. Perhaps you are more comfortable with your married name because that’s how the people in your community know you, or maybe you want nothing to do with your soon to be ex-husband and want a fresh start. Either way, divorce attorneys will advise their clients that changing your last name back after a divorce is a personal decision and you are entitled to do as you wish. Your soon to be ex-husband cannot force you to change your last name back or to keep your married name.

Changing your name back to your maiden name can be done either at the time of the divorce or at a later date after your divorce is final. However, if you already know that you want your maiden name back, it’s a good idea to go ahead and take care of it during the divorce process. A specific provision can be included in your marital settlement agreement such as the following: “This Judgment incorporating the terms of this Agreement shall restore to Wife her former name of ____.” Doing so will allow you to avoid any stress or time related to going through the process to change your name after the divorce has already been finalized.
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