Divorce is a stressful time and having a solid understanding of what to expect can save you money and your sanity. The Internet is a valuable resource when it comes to researching your divorce options—unfortunately there can be a plethora of inaccurate and misleading information posted online. These are three of the most common divorce myths that we have come across.
1. Common Law Marriage
There is an often-cited rule that after seven years of dating, your relationship automatically defaults to a common law marriage. This is false. The State of California does not recognize common law marriages. There are only a handful of states that recognize common law marriages, and those that do have very specific requirements for a relationship to be considered a common law marriage.
That being said, California does recognize meretricious relationships. If you have been cohabiting with your significant other for a significant amount of time, have been pooling resources to pay for joint projects, and the intention of the relationship is/was a romantic partnership you may still be required to equitably divide property. If you have children, the issues of custody and support will need to be addressed.
2. My Spouse Has to Agree to the Divorce
It is not uncommon for men to come into our office frustrated and perplexed because their wife won’t agree to a divorce. We also see men who have been served divorce papers, but want to just ignore the situation in hopes it will go away.
In California, your spouse does not have to agree to the divorce. While having an agreeable spouse will speed up the process and potentially reduce the cost, it is not required.
Once the divorce paperwork is filed your spouse (or you if your wife filed) will have specified time frame to respond. If the respondent (the person who didn’t file) fails to reply or acknowledge the petition, the petitioner can request a motion for a default judgment. A default judgment will usually grant the petitioner a divorce under the terms requested because the spouse did not object.
If the spouse does respond, but refuses to the terms of the divorce, the case will go to trial. During the trial the court will decide the terms of the divorce
3. Quick Divorce
Unfortunately divorce can’t be delivered by FedEx. There is no next day delivery. In California there is a six-month waiting period for a divorce to be finalized. The six-month timeline is a best-case scenario and many divorces can take much longer.
There are numerous factors that can slow down the divorce process. Things like division of property, assets and debts, custody and other contentious issues can put the brakes on finalizing the divorce. As a general rule of thumb, the more conflict there is in the divorce, the longer the process will take.
These are just a few of the most common divorce myths. If you have questions about child support, custody, divorce, or any other family law matter, please give us a call. Having accurate information is imperative when facing these types of situations and we are here to help. (619) 243-0888
California is a community property state and understanding how that will affect the division of debts and assets in your divorce is important. Many people interpret community property to mean there is an automatic 50/50 split of stuff, no matter what.
There are two ways that assets and debts are divided in the US. Forty-one states use equitable distribution and the remaining nine states use community property. Community property states view all marital assets as joint property regardless of title. This means that if while you are married you purchase a house (or car, or boat, etc.) and only your name is on the title, your spouse can claim 50 percent of that asset.
If the same scenario occurred in an equitable distribution state, your spouse would still be entitled to part of that asset. The difference would be how the asset is divided. Equitable distribution gives judges more discretion in allocating assets (and debts) based on the financial circumstances of both parties.
It is true that if an item is acquired during the marriage, both parties own the item equally. That doesn’t mean that each party will be awarded exactly half of every asset. In some instances it makes sense for one spouse to take an unequal division of assets in exchange for a lower support payment. This type of arrangement can be more financially advantageous in the long run.
For assets to be excluded as marital property, the item must be purchased solely in one spouse's name and maintained using money that is separate from marital funds. To illustrate this, imagine you would like to purchase a Triumph motorcycle and you would like it to be excluded from being considered community property. The motorcycle would need to be titled to only one spouse and the money used to purchase the bike would have to come from a separate account that is never used to pay for marital expenses. Furthermore all maintenance and insurance of the bike would have to be paid for from that separate account. If any marital funds are used for the bike, it could become community property.
Regardless if you live in a community property state or an equitable distribution state, the division of property and debts should be carefully considered. Thoughtful planning and an effective strategy can prove very effective in protecting your interests through the divorce process.
If you have questions about how your assets, property, or debts will be divided when you divorce, speak to an experienced family law attorney.
“How much does a divorce cost?” is the most common question we hear. Often people are frustrated when we answer, “That depends”. Unfortunately, divorce can be a complex issue with a plethora of factors that will drastically affect the cost—making it difficult to estimate the final expense.
If you have Googled “cost of divorce”, you have no doubt come across a multitude of offers like “Online Divorce $159” or “Low cost, fast divorce $150”. These ads can set the stage for sticker shock during your first meeting with an attorney.
The average cost of a divorce in the United States is frequently cited somewhere between $10,000 and $20,000. This ballpark range is strictly an estimate; significant assets, children and how contested the divorce is will all add to the expense. In complex divorces that are highly contentious, it is possible for the cost of divorce to exceed $100,000.
While those numbers can be intimidating, you do have some control over how much a divorce will cost. The more issues that you are able to reach an agreement with your spouse, the less expensive the divorce will be. Negotiating an agreement often requires the suspension of emotions and relying on a logical approach for dividing assets, debts and parenting time.
All too often, we see parties blinded by emotions spend thousands of dollars to “win” a piece of property that could have been replaced for a couple of hundred bucks. An example of this would be a couple spending thousands of dollars in attorneys’ fees and court costs to be awarded a television that would cost $400 to buy new.
There are some costs that are incurred in almost every divorce and others that are required only under special circumstances. Here is a breakdown of some items common to divorce proceedings and a general estimate of the cost. The following is a rough estimate; your unique circumstances will dictate the final expense of your divorce. For a detailed assessment based on the facts of your situation, speak to your family law attorney.
All cases will incur an initial filing fee. In San Diego this costs $435 and additional motions will run close to $60.
The cost of a complex divorce will be impacted by the necessity of experts. Many cases don’t require experts, but for those that do, it can be an expensive proposition. Here is a list of the common experts required in a divorce and an estimate of the cost for their services.
- Vocational Evaluation $1,500
- Custodial Evaluation $2,500 to $7,000
- Minor’s Counsel $2,000 to $5,000
- Forensic Accountant $5,000
- Special Master $2,500 to $5,000
- Home appraiser $350
- Personal Property Appraiser for collectibles, art, etc. $100+ per hour
- Computer expert for data recovery and discovery $75+ per hour
- Court Reporters and transcripts $0 to $2,500
- Process server $75 to $400
- Private investigator $300 to $3,500
- Mediator $150+ per hour
- Financial Planner or accountant $60+ per hour
Divorce isn’t cheap and the consequences of trying to save a little money now can sometime cost you more down the road. With many divorces you only get one shot to create an agreement that you will have to live with for many years. Issues like spousal support can rarely be modified; and child support and custody arrangements are challenging to modify once the parenting plan has be finalized.
The best way to reduce the cost of your divorce is to educate yourself on your rights and understand what to expect from the divorce process. The first step in educating yourself is to meet with an attorney. An experienced family law attorney can be an invaluable asset for helping you navigate the challenges of divorce and will be able to provide specific answer that address your unique circumstances.
If you have questions about the cost of divorce, custody or any other family law issue, please give us a call. (619) 243-0888
There is a pervasive misconception that a legal separation is the first step in getting divorced. While legal separation can be part of the divorce process, it is not a requirement for dissolving a marriage.
A legal separation is a formal and legally binding agreement that divides debt, assets, and property between spouses;It will also address the issues of support and custody. Creating a separation agreement is similar to getting divorced, with the main difference being after a legal separation is finalized, you are still married.
Legal separations are often used by men wanting to protect their interests during a trial separation. Additionally, men who don’t want to divorce due to personal or religious beliefs, or wish to allow their spouse to retain medical benefits, will choose legal separation instead of divorce.
Legal separations are beholden to the same rules of law and procedures as a divorce and can set a precedent that will carry over if a divorce is pursued. The courts will usually assume that you were satisfied with the terms of the separation and therefore will apply the same arrangement to your divorce. Because a legal separation will lay the foundation for a future divorce, it is imperative to protect your rights from the beginning.
There are several types of separations and these variations have contributed to some of the confusion surrounding legal separation. The most common types of separations include:
Many couples in troubled relationships will take a time out from the relationship to determine if ending the relationship is the best course of action. Trial separations can provide space to evaluate the consequences and benefits of a divorce. They do not require the involvement of the courts, but it is important to keep in mind that moving out or providing financial support during a trial separation can establish a precedent of support that the courts will consider if a divorce is pursued.
As the name implies, the couple ceases living together. Some couples will continue to work on their relationship after moving out and others will combine a trial separation with living apart. If you are considering moving out, it is in your best interest to consult with an attorney before you move. An experienced attorney will educate you on your options and how to protect your rights while transitioning out of cohabitation.
A permanent separation is an end to a relationship and indicates that there is no chance for reconciliation. If you pursue a permanent separation it is advised that you file the paperwork to make the end of the relationship official. If you don’t file for legal separation or divorce, you can still be held liable for debt your spouse incurs and she may be entitled to assets you acquire. Failing to file official documentation can create expensive complications down the road.
This is the most formal type of separation —it creates a legal agreement that is enforceable and recognized by the courts. A legal separation will provide the most protection if the relationship is unsalvageable and a divorce is pursued.
Legal separation is an excellent alternative to divorce for people that want to end their relationship, but remain married for a variety of reasons. If you are considering legal separation, speak with an family law attorney.
The California legislature is blazing a trail in custody. On October 4, 2013 State Senate Bill No. 274 was signed into law and established provisions for recognizing more than 2 parents. Until the passing of Bill 274, parentage was established using guidelines from the Uniform Parentage Act. Those guidelines limited the legal status of parent to two individuals.
The Uniform Parentage Act was first implemented in 1973 to guide the determination of parentage—particularly paternity. In 2002 an updated version of the Uniform Parentage Act was promoted to address technological changes like DNA testing and in vitro fertilization. While the guidelines have evolved to address the increasing complexity of defining parentage, until now it has been restricted to two parents.
The new legislation states:
“This bill would authorize a court to find that more than 2 persons with a claim to parentage, as specified, are parents if the court finds that recognizing only 2 parents would be detrimental to the child. The bill would direct the court, in making this determination, to consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time."
This means that in rare circumstances the courts may recognize more than 2 people as the child’s parents. The courts will still use the Uniform Parentage Act as a guide for establishing parentage, but will not be limited to applying the state’s strict guidelines to only two individuals.
History of the bill
The motivation for passing the bill stems in part from a 2011 case that involved a lesbian couple. According to the LA Times, “One of the women was impregnated by a man before the couple resumed their relationship. When a fight broke out, one of the women was hospitalized and the other put in jail, but the daughter was sent to foster care because her biological father did not have parental rights.”
Bill 274 will become state law on January 1, 2014 and will make California the 5th state to provided provisions for recognizing more than two parents. The other 4 states recognizing these circumstances are Delaware, Louisiana, Maine, Pennsylvania, and the District of Columbia.
Bill 274 seeks to protect the best interest of the child, but it isn’t without potential pitfalls. Custody issues can be some of the most contentious cases in the area of Family Law. Adding more people to the mix is a recipe for further complications. Additionally, how visitation, physical custody, and support payments are calculated in cases with three or more parents has yet to be determined by the state. The lack of guidelines leaves an ambiguous grey area that could lead to intense litigation and greater conflict over what is in the best interest of the child.
The California Legislature should be commended for acknowledging the evolution of the anatomy of the American family. Bill 274 will provide alternatives for acting in the best interest of the child and should prevent children from winding up in foster care when a suitable parent is available.
It will be interesting to see the impact of the new bill when it goes into effect on January 1, 2014.
Men researching options for ending their marriages are often overwhelmed by what can seem like a confusing game of terminology. Divorce, legal separation, mediation, and collaborative divorce are a few of the most common terms used to describe some of the different paths to ending a marriage.
Of these examples, mediation seems to be the most ambiguous—we are often asked “what is mediation” and “is it right for me”? Mediation is a form of alternative dispute resolution. In plain English, it is a way for both parties to reach an agreement that is legally binding, but doesn’t require the involvement of traditional legal channels.
Typically, mediation is voluntary and done by bringing in a neutral third party to help the parties reach an agreement. Trained mediators will use a variety of tactics to keep negotiations moving forward. The mediator should help you and your spouse work through issues and reach an agreement that meets both your needs.
Mediation will address the distribution of property, including debts and assets, custody, visitation and parenting time, taxes, spousal and child support, and any other issues that need to be resolved in the process of ending your marriage.
Mediation can be an effective tool for divorce or custody cases, but parties considering mediation should be well informed prior to beginning the process. Contentious or high conflict divorces are often not well suited for mediation— couples that are amicable, willing to compromise, and communicate openly tend to have the most success.
If you think mediation is the right path for you, speak with an experienced family law attorney before you begin the mediation process. It is important to discuss your situation with a divorce lawyer that is well versed in mediation and is proficient in coaching clients through the process. It is beneficial to have independent counsel guiding your mediation to ensure your rights and interests are served and protected.
If you want to learn more about mediation and other divorce options, please give us a call. Our managing attorney, Zephyr Hill will help you evaluate your situation and determine your best course of action. (619) 243-0888
“How do I win custody?” is often the first question that we are asked by fathers in an initial consultation. This isn’t surprising; child custody can be a complicated topic rife with stress and frustration. Understanding the information the court uses to make a decision on custody can ensure that dads are doing everything they can to preserve their relationship with their children.
Trying to completely exclude your wife from access to the children will work against you. The courts favor situations where both parents are proactively working to create a stable and healthy environment for the kids. The only way to truly “win” custody is when the best interest of the child is served.
If divorce is on your horizon, a little bit of planning can go a long way. In divorces where children are involved, it is essential to avoid making rash decisions or acting out of frustration or anger. In an effort to create peace, many men will take the path of least resistance. This often creates additional challenges through the custody process.
The months (and sometimes years) leading up to divorce will be considered as the precedent for custody and support. Making sure you are actively involved in your child’s daily routine before you file for divorce will be beneficial to your case. If you have already filed for divorce, it is in your best interest to maintain as much contact with your children as possible. Dropping them off and picking them up from school, helping with homework, constructively communicating with their teachers and other caregivers are all ways you can continue to support your child through the divorce and demonstrate your involvement in the child’s life.
When determining custody, the courts will evaluate the consistency of parenting. It is important that being reliable is at the forefront of your interactions with your child. Missing scheduled visitations, appointments, and court dates will undermine your custody case.
Additionally, making consistent financial contributions is important even if they haven’t been court ordered. When making payments, never use cash. It is critical to have a paper trail that proves support has been paid—checks, money orders, etc. are more advisable than cash.
Your marriage might be over, but you will have to co-parent with your soon-to-be-ex wife for the rest of your life. Finding a way to work out a parenting plan that acknowledges the wants of both parties will give you an advantage. Proactively trying to resolve your custody issues outside of the courtroom can save you money and increase the likelihood of getting more time with your children.
If you are unable to resolve your custody issues and you need to litigate the case, it is possible that the court will appoint an attorney to represent your children as well as additional experts like psychologists or counselors. You will be responsible for the cost of this additional lawyer and experts. The court often relies heavily on these third-party opinions to reach a decision in your child custody case.
Working with your spouse to create a reasonable parenting plan will benefit you, even if your case ends up in front of a judge. Being willing to negotiate and cooperating to act in the best interest of the child is favored by the courts.
Cooperating with your spouse does not mean you agree to all of her wishes. In custody cases it is imperative that you pick your battles. Identifying the key points that you aren’t willing to compromise will help you and your attorney focus your efforts on the important elements while allowing you to negotiate on items that are less important.
Child custody cases present some of the most challenging and contentious issues in divorce. It is crucial to educate yourself on your rights and have a plan for navigating the custody process. If you have children and are facing divorce, speak with an experienced family law attorney. A good lawyer can be an invaluable asset and will advocate for your rights as well as help you survive the custody process with dignity.
If you have questions regarding custody or any other family law issue, please give us a call. (619) 243-0888
If you are considering divorce, you may be wondering, “what are grounds for divorce in California?”
California is a no-fault divorce state. This means that neither party is required to show that wrongdoing was committed. No-fault divorce allows couples to dissolve their marriage without the petitioner (the person asking for the divorce) having to prove the other party has broken the marital contract.
In the past, proving fault was required to obtain a divorce in California. The most common grounds for divorce were adultery, sexual deviance, abandonment/desertion, substance abuse, and criminal conviction. Under an at-fault divorce, the party filing for divorce was required to prove that their spouse had committed an act or acts that violated the marital agreement.
The requirement to prove fault created challenges for couples in distressed relationships. An article published in the Wall Street Journal highlighted this issue stating:
“The legal situation put many distressed couples in a quandary. Some devised adulterous situations. Those with money went out of the state to divorce—to places like Indiana in the 1800s, Nevada in the 1900s, or Mexico in the 1960s. (The cheap, fast Mexican divorce drew many celebrities too, including Marilyn Monroe during her split from Arthur Miller.) Still others remained bound to spouses they could not stand.”
California was the first state to adopt no-fault divorce when it enacted the Family Law Act of 1969. The Family Law Act of 1969 introduced the concept of irreconcilable differences and thereby eliminated the requirement to show fault.
There are two grounds for divorce in California: irreconcilable differences and incurable insanity. For a marriage to be dissolved due to incurable insanity, the petitioning party must prove that the insane spouse cannot be cured. The petitioning party is required to provide testimony by medical and/or psychiatric experts. Additionally it is important to note that a divorce granted on the grounds of incurable insanity will not absolve the petitioning spouse from potential spousal support obligations.
A divorce that is granted due to irreconcilable differences is a no-fault divorce. The definition of irreconcilable differences is “the existence of significant differences between a married couple that are so great and beyond resolution as to make the marriage unworkable, and for which the law permits a divorce.”
Since California passed it’s no-fault statute in 1969, the rest of the states have followed suit. All fifty states have either removed fault-based divorce from their code or added irreconcilable differences clauses to their code.
If you have questions about California’s grounds for divorce or any other family law matter, please call our office. Our managing attorney, Zephyr Hill, is available to answer your California divorce, custody, and support questions in our office or over the phone (619) 243-0888.
What is a restraining order?
A restraining order is a legal restriction that prevents or requires a party to refrain from performing certain actions. This can include limiting where a person can and can’t go and with whom they can interact.
There are two types of California restraining orders: temporary (ex parte) and permanent. A temporary restraining order will expire at the time of the hearing where the court evaluates if a permanent restraining order should be issued. Temporary restraining orders can be issued as emergency orders. In an emergency situation, the respondent isn’t required to be present or even given notice of the hearing. A temporary restraining order will usually last for a matter of days and at the most a matter of weeks.
Emergency restraining orders fall under the category of temporary orders and are granted when the judge believes there is immediate danger of harm (domestic violence) or if a child’s welfare is in immediate and present danger. Situations involving the threat of abuse or abduction will be awarded emergency protective orders in an effort to prevent the domestic abuse, child abuse, and/or abduction.
Permanent restraining orders require a higher burden of proof, meaning the person requesting the order will have to demonstrate to the court that the restraining order is necessary. The court only orders permanent restraining orders after a hearing where the respondent has been notified and given the opportunity to have their story heard. A permanent restraining order can remain in effect for up to 5 years.
How do you get a restraining order?
If you are in immediate danger call 911.
Domestic violence restraining orders are filed with the appropriate family court. After the forms have been filed with the court they will be given to a judge who will review them. It is possible that the restraining order will be granted the same day that you file the paperwork, but sometimes it can take up to 48 hours for the judge to sign the order.
Regardless of whether or not you are granted a temporary order, you will be assigned a hearing. This is usually scheduled around three weeks from the time your paperwork is filed.
The person that you are filing the restraining order against will have to receive formal notice that a restraining order has been filed against them. This formal notification is referred to as “serving” the proper documents. The judge cannot grant any long-term orders until the documents have been properly served and the other party notified.
How will a restraining order affect my divorce case?
Divorce cases that involve allegations of domestic abuse can be complicated and every situation presents a different set of facts. Because restraining orders inherently have so many variables it is impossible to predict an outcome without comprehensive knowledge of your specific circumstances.
That being said there are some common issues that will arise in divorces that involve protection orders.
If you have filed for a protection order from you wife, the court will likely impose restrictions on her access to the marital home as well as temporary child custody and visitation orders.
Restraining orders and protection orders serve a very important purpose in shielding people from dangerous situations. However, we have seen parties seek protection orders as a way of leveraging their position to manipulate the facts of a situation.
For men that have been falsely accused of domestic violence, dealing with a protection order posses a whole host of challenges, from dealing with potential criminal charges to how the courts will evaluate custody issues, it can be an uphill battle.
Restraining orders should not be taken lightly. If you are facing divorce or custody issues and need a restraining order (or have a restraining order against you), the first thing you should do is speak to an experienced family law attorney. Your attorney will guide you through the process to make sure your rights are protected.
If you need to speak to a San Diego divorce lawyer about protection orders, please give us a call. (619) 243-0888Disclaimer – The materials posted in this blog are for informational purposes only. The information presented is general in nature, and may not apply to particular factual or legal circumstances. The information presented here does not constitute legal advice or opinions and should not be relied upon as such.
Men facing family law issues like divorce, custody, or child support, often find themselves needing to hire an attorney. For many of these men, this is the first time they have required the services of a lawyer and the task of finding the right person is daunting. Here are some suggestions for finding the best San Diego divorce attorney for your situation and your case.
Before hiring an attorney, take a minute to assess your situation and your needs. Defining what you are trying to accomplish will help you decide what to look for in a lawyer. Take stock of your circumstances and make a list of all the factors that might affect your case. Some questions to ask yourself:
Are there children involved?
Are there any criminal charges to contend with?
Are there complex or significant assets that will be affected?
Are you or your wife in the military?
This is just a brief sampling of areas that might affect your custody or divorce case. Whatever your unique circumstances are, it is imperative that the San Diego family law attorney that you hire has experience handling cases that are similar to yours. For example, if you own a business and you have a restraining order against your wife, hiring an attorney that only handles uncontested divorces might not produce the outcome you are looking for.
Hiring an attorney can be a big investment. You will be relying on this individual to provide you guidance on making decisions that will potentially affect you for the rest of your life. It is important to make an informed decision that takes into consideration your unique circumstances. By doing a little research now, you can save yourself headaches (and money) down the road.
Researching family law attorneys usually begins by asking for referrals from friends and family. Referrals are a great place to start, but keep in mind that no two divorce or custody cases are the same. What worked for your friends might work for you, but it might not. That being said, personal references are an excellent place to begin.
An Internet search will also provide you with a list of local attorneys that practice family law. In California, attorneys that advertise they are specialists in family law must be certified by the State Bar. This certification is only awarded to attorneys that have experience handling a variety of family law cases, have taken the required continuing education, and have passed a rigorous examination.
Once you have compiled a list of candidates visit their websites to learn more about their practice areas and their personality.
Meet with prospects
After narrowing down the list, schedule initial consultations with your top choices. Meeting the prospective lawyers will allow you to assess how they intend to handle your case, ask questions about their experience, and determine if you feel comfortable with them. Your attorney should share a similar philosophy about how to achieve your goals.
It is important that you trust the divorce attorney you hire. Divorce and custody cases often require that you divulge personal information, so it is critical you are comfortable discussing sensitive topics and private info.
Many attorneys will provide an initial consultation at a reduced rate and the benefit of sitting down with your prospective attorneys face to face will far exceed the cost.
The final step in hiring an attorney is to create a formal agreement often called a retainer agreement. This contract will outline what work the attorney will be doing, the cost, and define the scope of the representation that the attorney will provide.
Having the right legal representation is the first step in protecting your rights and your assets in a divorce or custody case. An attorney that is experienced and knowledgeable handling family law cases is imperative to securing the most favorable outcome possible.
If you are a man facing divorce, custody or other family law issues and you are in need of aggressive advocacy from an experienced San Diego divorce lawyer, please give us a call. (619) 243-0888