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
We are ecstatic to announce that the State Bar of California has certified Andy as a Family Law Specialist. Andy has been a valuable part of the Goldberg Jones team and he continues to demonstrate his commitment to his clients and his practice by pursuing opportunities that expand his skills and knowledge.
Becoming certified as a Family Law Specialist is no easy feat and only a small percentage of practicing attorneys earn that distinction. To be considered for certification an attorney must meet a variety of criteria. Some of the necessary qualifications include:
- Demonstrating competency and excellence in their legal practice for at least five continuous years prior to applying.
- The area of specialization must account for at least 25 percent of the applying attorney’s practice.
- The attorney must complete more than 45 hours of continuing education within three years of their application.
Furthermore, attorneys applying for certification as a family law specialist must demonstrate actual experience in the areas of restraining orders and domestic violence proceedings, dissolution of marriage, custody, support, modifications, and contempt—to name a few.
For a complete list of the requirements please visit the State Bar of California’s website.
The merit of being a Certified Family Law Specialist is reserved for California attorneys that have met the high standard of professionalism, demonstrated skill and expertise, and passed a rigorous exam. Only attorneys that have exceeded the requirements and passed the exam can use the moniker of Certified Family Law Specialist.
Andy has built a reputation as a tactical litigator and a creative strategist. He works diligently to serve his clients and provide aggressive advocacy for the husbands and fathers of the San Diego Community. We are excited that he can now add Certified Family Law Specialist to his list of qualifications.
Guest post by Andrew Lawes
I remember when I found out my marriage was over. It sent me into a downward spiral; a drink-and-drug-fueled period of bad memories and even worse situations. I didn’t care – the pain inside me was too raw, too visceral to cope with. Blacking out and forgetting was better than dealing with the crushing reality that the woman I loved no longer shared the same emotions.
Maybe you are experiencing this situation right now. Maybe you are also struggling to cope with the fallout of divorce, and are engaging in some questionable activities. Maybe, like me, your days have become about existing, rather than living. You don’t know when the pain will end. All you want is for it to go away.
There is no timescale for how long it takes a broken heart to heal. Sometimes it can take days; other break-ups can take months or even years to overcome. There is no secret cure; all you can do is continue living.
As a man, my mentality is the same as most other men: there’s a problem; how can I fix it? How can I save this relationship? The truth is that, most likely, you can’t. Nobody walks away from a marriage without an awful lot of thought. When the conclusion they have come to is that it is over, there is very little you can do.
The Kübler-Ross model of the Five Stages of Grief can be applied to the end of a relationship. Although nobody has passed away, you still need to grieve. The death of a relationship; the ending of a future you had planned out; in many ways, it is harder to handle than death. At least there is finality to death. With heartbreak, there is no finality. There is no clean break. You can’t help but wonder “what if…?”
The five stages of the Kübler-Ross model are: Denial; Anger; Bargaining; Depression and Acceptance. Each of them apply to the end of a relationship equally as much as the grieving process:
Denial – “This isn’t happening” “Don’t be silly, it’s just a row (argument). You’ll feel different in the morning”
Anger – “Why are you doing this to us?” “What have I ever done that’s so bad?”
Bargaining – “I can change” “Please, let’s work through this”
Depression – “It’s all my fault” “I don’t blame them for leaving”
Acceptance – “It was over; it has been for a while, I just couldn’t see it”
All of the above are phrases I’ve used during the period after a break-up, and I suspect I am not alone in that. I have used them to highlight how the Kübler-Ross model of grief relates to the end of a relationship too. Now, it isn’t as clean-cut as I’ve perhaps made it appear. You may get to the Bargaining stage and then slip back to Denial. Depression and Anger often overlap; especially in men, who generally display signs of depression differently to women. Indeed, the first four stages can be a nightmare to work through, and there will be times when you feel you will never get past it.
When you reach the stage of Acceptance, that is the moment you will start to live again. The thing is, you can’t wait around for the acceptance of the situation to come – that isn’t how it works. Acceptance isn’t a moment when you suddenly become fine with what’s happened, and waiting for that moment makes it much more unlikely to come.
What you need to do is focus on yourself. Look at the aspects of your own life that you are unhappy with. Maybe you feel like you have let yourself go physically. Maybe you feel like your life has become mundane and routine. These are all things that you have the power to change, so do it! Sign up to a gym; take up jogging, work on your physique. If your life has become boring, make more time for the things you enjoy, and take up new hobbies. Become the man you’ve always wanted to be, and you’ll find that acceptance of the divorce comes so much quicker.
It is important to reflect on why the marriage ended. In the immediate aftermath, people always tend to blame the other party, but there is always fault on both sides. If you can begin to understand why the relationship failed, then it will leave you in good stead for the future. Hard as it may be to believe right now, one day, you will love again. When that day comes, be the man you've always wanted to be. Learn from the mistakes of relationships past.
You may think you can’t get through this time, but you will. Sometimes, good things have to fall apart so better things can fall into place. Focus on yourself, and improving your life, and I promise you will be happy again.
Andrew Lawes is a 28 year-old man from England. He started writing in September 2012, when he published his first article, entitled “Depression – My Story“. The intention behind this was to finally open up about what his battle with depression was truly like, so that family, friends and loved ones would understand him better.
Andrew continues to write about mental health issues, and has expanded his writing to encompass many different topics. He is currently working on a book based around his experiences, as he believes his openness and honesty on such secretive subjects can help a lot of people, both sufferers and their loved ones. He hopes that his writing will help to bring an end to the stigma that wrongfully surrounds mental health issues, and bring to light the reality of what depression actually is.
Divorce is ripe with uncertainty about what is going to happen and how assets will be divided. We have outlined general answers to these frequently asked divorce questions, but if you would like specific answers tailored to your unique circumstances, please give us a call. (619) 243-0888
How long will my divorce take?
The short answer to this question: more than six months. A California divorce will take longer than six months due to the mandatory waiting period. Six months is the least amount of time it will take.
Due to the complicated and often contested nature of dissolving a marriage, most divorces take longer. The six-month time frame only applies if there are no contested issues and both parties are amicable.
The more accurate, but ambiguous, answer is that every divorce is unique and there are a lot of factors that will extend the duration of the divorce process. If you would like to learn more about what variables will slow down your divorce, check out this blog post.
How much will my divorce cost?
It won’t be cheap. The decisions made in your divorce will affect your life for years to come, and in some cases the rest of your life. It is important that the choices you make and the terms you negotiate are something you can live with.
While it is possible to save money upfront by filing the divorce yourself, it is all too common for D-I-Y divorces to need modifications down the road. These modifications can be time consuming and costly, not to mention stressful.
Because every set of circumstances is unique, it is difficult to estimate the final cost of a divorce without knowledge of the situation. According to online sources, divorces in the United States average between $15,000 and $20,000—but divorces are anything but average and that number can be deceiving.
If you are considering divorce and want an estimate of what it will cost, given your unique circumstances, please give us a call. We are always happy to answer your questions over the phone at no charge and no obligation.
What issues will be resolved in my divorce?
A divorce will address all the legal issues involved in dissolving your marriage. The most common topics that are included in your divorce decree are the division of assets and debt, custody (if children are present), support, and retirement. Once again, your unique circumstances will dictate what needs to be included in your divorce decree. This list is not an exhaustive example of what a divorce will resolve, but merely an example of some of the most frequently included items.