Am I Too Old to File for Divorce? A Look at Divorce After Age 50

December 9, 2013

divorce over age 50Many divorcing couples wonder if there is a point in their life at which time they may be considered "too old" to divorce. Of course, a person may file for divorce in California no matter what their age is. But, still some may wonder if, after a certain age, it is even worth it. Nonetheless, as we have previously blogged, divorce among the over-50 crowd appears to be on the rise. New York Times even reports that "more Americans 50 and older are divorced than widowed, and the numbers are growing as baby boomers live longer".

One such statistic in the over-50 crowd is well known actor, Richard Gere, and his model-actress wife, Carey Lowell, who are reportedly calling it quits after 11 years of marriage. Gere is at the ripe age of 64, while Lowell is 52 years old.

So why are older couples like Gere and Lowell headed for divorce? LA Times reports that the reason for the split between Gere and Lowell is that Gere allegedly enjoys privacy and socializing. For other couples over 50, the possibility of divorce may be more tempting as there is a greater social acceptance of divorce these days. Another reason is that people are living longer and thus still view themselves to be able to get out and have a life after divorce. This is especially the case once the children are grown up and out of the house, at which time it may actually seem easier to get out of a marriage that has grown stale.

The increased economic autonomy of women has also given women over 50 years old a greater likelihood of seeking divorce, even at a later age in life, because many women feel that they have the ability to support themselves and live a stable life after divorce, despite their older age. The increased work experience of women and greater sense of their own responsibilities is often incentive to get out of a marriage rather than to just wait it out.

Although there are many reasons for the rising divorce rate among people over 50 years old, there are also some pretty significant reasons why divorce is not a good idea for the older crowd. One big reason is that older folks have a greater likelihood of being in poor health; an emotionally draining divorce can deteriorate a person's health even more. Those considering divorce over 50 also must consider how a divorce will affect retirement plans. Moreover, divorce between older couples with children may result in placing an even heavier burden on the children to help support each parent financially and emotionally.

If you are over the age of 50 and considering divorce or separation, it is important to seek the advice and assistance of an experienced divorce attorney.

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Obamacare May Make Divorce More Affordable

November 19, 2013

Divorce, Obamacare, and health insuranceAs we have previously blogged, healthcare can be a big financial concern for divorcing spouses. In many cases, one spouse provides health insurance for the entire family through his or her employer. However, upon divorce, the non-providing spouse must obtain his or her own health insurance. This can be a difficult process if he or she has a pre-existing condition and is denied coverage or if the premiums are prohibitively expensive. Additionally, obtaining health insurance can be especially problematic for those part of the "gray divorce" trend.

Divorce attorneys have noticed that the number of divorces involving spouses over 50 years old has been increasing. This phenomenon is known as the "gray divorce trend". Many spouses in this age group are even holding out to finalize their divorce until they reach the age of 65 and are eligible for Medicare. Another tactic employed by spouses who cannot obtain outside health insurance upon divorce is to file for legal separation. These couples become legally separated but remain married to maintain their health insurance benefits. This strategy is not always a permissible option under an employer's healthcare plan and the employee spouse may be charged with fraud and required to make financial restitution.

Beginning January 1, 2014, health insurance may not be such a financial hardship for the uninsured divorcing spouse. Health insurance may be more affordable and more accessible under the Affordable Care Act. Under this Act, health insurance companies will no longer be able to deny coverage or charge exorbitant premiums on the basis of a pre-existing condition. The knowledge of the spouse's ability to purchase affordable healthcare will take a significant amount of fear out of the divorce process.

Obamacare, Insurance, and DivorceSince health insurance is a factor considered in support calculations, divorce attorneys anticipate that Obamacare will also have an impact on that area of family law. When calculating child support, the Court will consider the health insurance premiums paid by both spouses and adjust accordingly. The "uninsured spouse" will typically be forced to pay extremely high premiums to obtain insurance and therefore his or her need for support is greater. This means that currently the supported spouse may argue for higher spousal support awards if they are obtaining new health insurance. With the introduction of Obamacare, the supported spouse may have a reduced need for support as healthcare may be more affordable. Additionally, many people may be eligible for a government tax credit toward their health insurance premiums. Undoubtedly, supporting spouses will ask family law judges to take this into considering when calculating support.

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With the Economy Improving, Divorce is on the Rise

November 18, 2013

Divorce on the riseAs we have previously blogged, the majority of couples going through a divorce experience extreme change in their financial situation as they begin untangling one household and establishing two. It seems a little counterintuitive to think that as our economy improves and the average San Diego resident can live a little more comfortably, that more and more people are getting divorced. However, couples have more economic stability today which tends to lessen the financial impact of divorce. Although more money doesn't necessarily lead to unhappy marriages, it does make divorce more practical and affordable for those who would like to end their marriages. During our recent recession many people chose to stay together because their houses were underwater or one or both spouses were unemployed.

Prior to the recession, typically the most valuable asset owned by divorcing couples was the martial residence. At divorce, the parties usually sold their home and began new lives with the net proceeds. During the recession, couples were unable to sell their homes and realize profits because many San Diego homes were underwater. Therefore, in the face of financial ruin and without any reasonable way to live two separate lives, parties remained married. In the past year, home prices have skyrocketed throughout San Diego. In addition, interest rates have been at a (near) historical low which would enable parties to purchase a smaller home with a manageable monthly payment using the proceeds from the sale of the marital residence. Afraid that the value of their home could plummet again, many couples filed for divorce.

In addition to having assets to divide, an improving economy also means that more people are employed (or have a reasonable expectation of being able to return to work) as they consider divorce. If both parties are able to work or one party is able to earn a higher income, they may be able to maintain two separate households once support is ordered. When jobs were harder to come by and many people were laid off after years of steady employment, numerous California residents struggled to support their family living in one household. For any family, there is only a finite amount of income to apportion for support and living expenses of the supporting spouse. When spouses are struggling to maintain one household, separating into two may not be an option.

Further, one or both parties may have more funds available to retain an attorney in an improving economy. Without the requisite legal knowledge required to navigate the divorce process in California, it is difficult for parties to proceed with a divorce. During the recession, many people could not afford to hire an experienced family law attorney to represent them and protect their interests. Therefore, rather than risk being steamrolled or reaching unfavorable agreements, many spouses decided to avoid divorce altogether.

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The 17-Year Divorce Case

November 6, 2013

When a San Diego couple first considers getting a divorce one of the most common questions is: "How long will it take to be divorced?" Experienced family law attorney's typically respond that there is no way to estimate the length of any given divorce case with any certainty. The length of time it takes to complete the divorce process is dependent on a number of factors, including:

  • The attitude of the parties
  • The parties' tolerance for litigation
  • The attorneys (if any) hired by the clients
  • The court's availability
  • The number and complexity of issues in the case

At a minimum, the parties must wait six months before they can officially terminate their marital status per the mandatory waiting period imposed by California Family Code 2339(a). However, this does not mean that the parties cannot settle all issues in their case and submit their final paperwork pending the conclusion of the six month waiting period.

17-year-divorce-case.jpgFor two Ohio law professors, their divorce and other related disputes has lasted 17 years...so far. The shocking length of this controversy is even more surprising considering the divorce has lasted 7 years longer than the 10 year marriage. This incredibly litigious divorce has resulted in over 1400 entries in the former couple's divorce file.

Most of the litigation began as a dispute over child custody and visitation. The parties have two children together who are currently ages 17 and 20. Now that one of the children is an adult and the other is nearly an adult, the parties will now turn the focus of their disputes on monetary issues still to be litigated.

Considering the legal background of the parties, most commentators are surprised that they were unable to resolve the majority of their disputes informally. In fact, the two attorneys were chastised by the Ohio 1st District Court of Appeal which wrote, "The parties, who are both law professors and ought to know better, engaged in thoroughly inappropriate behavior that was detrimental to the resolution of their case and to the welfare of their children for which both claimed to be primarily concerned."

The Ohio District Court of Appeal went as far as to say both professors should be admonished by the Ohio State Bar.

In California, a spouse can be sanctioned for engaging in conduct which frustrates the public policy to promote settlement in litigation. This is because in domestic cases it is generally in the best interest of both parties to resolve their differences out of court - especially when children are involved. This case is a good teaching tool which stands for the proposition that not all battles that can be won should be fought. In family law, there are rarely "winners" and "losers" in a case. Both parties tend to suffer through litigation both emotionally and financially. Most battles are not worth the time, effort, and money necessary to win in court.

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Divorce Disclosure Requirements and Offshore Assets

November 5, 2013

San Diego point lomaIn divorce cases where the parties have offshore assets, those assets are generally not reported to the Internal Revenue Service ("IRS"). However, California family law imposes a strict fiduciary duty of disclosure on all divorcing spouses. Throughout the pendency of a divorce case, the parties are under an ongoing obligation to disclose all material facts and information regarding income, expenses, assets and debts.

This includes unreported income and assets hidden overseas. If a spouse has made efforts to conceal income or assets from the federal government he or she may feel very conflicted about disclosing that information in a state dissolution matter. Therefore, the spouse may be torn by a desire to cooperate with the divorce process and make full disclosures yet fearful of criminal and pecuniary penalties which may be imposed by the IRS. In many cases, both spouses may be aware of the offshore assets or at least suspect they exist.

If a California family court determines that a spouse has failed to meet the strict fiduciary disclosure requirements, he or she will likely be sanctioned in an amount sufficient to deter repetition of the impermissible conduct. In high asset/high income cases, the amount of the sanction could be staggering. In addition, failure to disclose an asset exposes the non-disclosing party to the possibility of the court awarding 100 percent or an amount equal to 100 percent of the asset to the other spouse. On the other hand, if a spouse's failure to disclose offshore assets and/or reportable income to the IRS is discovered by federal authorities, the spouse will likely face time in jail in addition to substantial financial penalties.

In these cases, the client has limited options. The client could attempt to amend prior tax returns to fully comport with IRS requirements and immediately disclose all hidden assets/income in the divorce case. If a client pursues this option, there is still no guarantee of avoiding federal prosecution. If this option is no longer available, the client could enter the Offshore Voluntary Disclosure Program ("OVDP"). The OVDP was started in 2012 and allows taxpayers to voluntarily disclose offshore assets before they are uncovered by other means. Entering the OVDP can help taxpayers avoid criminal prosecution; however, they will likely still face harsh financial penalties for nondisclosure.

It is incredibly risky for a divorcing spouse with hidden assets or income to fail to make efforts to become compliant with IRS regulations. In a divorce proceeding, attorneys and clients spend substantial time and resources digging into the finances of both parties. It is unlikely that hidden assets or income will remain uncovered under such scrutiny.

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How Will Divorce Affect My Social Security?

October 25, 2013

Effect of divorce on social securityDivorce can have a devastating effect on many aspects of the parties' lives. In some cases, the parties may not even realize the full effect of the divorce for years to come. For example, in the heat of litigation many spouses may not consider how divorce will impact their social security benefits. In order to get specific information regarding your case, it is important to consult with a divorce attorney who is a financial specialist. However, below are a few general principles to consider.

The first factor to consider in any social security analysis in the context of divorce is the date of separation, and accordingly, the length of the marriage. Neither spouse will be entitled to the other spouse's social security benefits unless the marriage lasted 10 years or more. A marriage which lasts 10 years or more is typically considered a "long-term marriage". For the purposes of spousal support, if a marriage lasts less than 10 years, the length of a spouse's spousal support obligation is generally limited to half the length of the marriage. In a marriage of long duration, the term of spousal support will likely not be limited to half the length of the marriage. Therefore, the length of the marriage will be a significant issue in the context of social security and the divorce in general.

If you are looking to collect social security benefits based on your former spouse's earning record, the next factor that your divorce attorney will ask you to consider is your marital status. You cannot collect social security benefits based on your former spouse's earning record if you are currently married. However, if you remarried following your divorce and your second marriage ended in death, divorce or annulment, you may still be able to collect social security benefits as a result of your first marriage. Further, the benefit you would collect based on your former spouse's earning record must be higher than what you are eligible to collect based on your own earning record.

In order to collect social security benefits as described above, you must meet age requirements and your spouse must meet eligibility requirements. The minimum age to collect social security benefits is age 62. In addition, your former spouse must be eligible to collect or currently receiving social security benefits. In other words, you cannot collect benefits based on your former spouse's income if he or she is not eligible to collect. If your former spouse is eligible to collect his or her social security benefits but has elected not to receive them yet, you must have been divorced for a minimum of two years before you can collect based on your former spouse's earnings. If you are considering a divorce, the effect it may have on your social security benefits is another factor to keep in mind when planning for your retirement years.

Read more from SSA.gov about qualifying for divorced spouse benefits

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Kris Jenner and Bruce Jenner Separated

October 24, 2013

It is no secret that Kris and Bruce Jenner have recently experienced some marital troubles. Kris Jenner has been in the public eye since her late ex-husband, Robert Kardashian, represented O.J. Simpson during his murder trial. Bruce Jenner has his own claim to fame as a gold-medal winning Olympian. Since their initial entrance on the public scene, Kris and Bruce Jenner have become reality T.V. celebrities by starring on the hit show, "Keeping Up with the Kardashians". "Keeping Up with the Kardashians" is a reality show that follows the life of the Kardashian-Jenner family. True to reality show fashion, the show chronicles the personal lives of Kris and Bruce, including their marital discord.


In the past few seasons of "Keeping Up with the Kardashians" Kris and Bruce have been struggling with finding their own space in their shared family home. In order to reach some sort of compromise, the Jenners have experimented by renting out other homes for Bruce to stay in from time to time. Some of the Jenner children have criticized this marital arrangement by stating that it is one step toward divorce for the parties. The couple had previously announced that they were living separately but that they are much happier that way. The Jenner children have proven wise beyond their years when it comes to their observations about living apart and divorce. Kris and Bruce have now announced that they have completely separated. If the Jenners do pursue a formal divorce, their current living arrangement may greatly impact the divorce proceeding.

Under the California Family Code, all earnings and accumulations acquired by the parties during marriage is community property and divided equally upon divorce. All property acquired before marriage and after the date of separation is separate property and confirmed to the party that acquired it. The point at which the Court will draw a line in the sand between community and separate property is called the "date of separation". The Court will find that parties are separated when two criteria are met. First, the parties must be living separate and apart and second, at least one party must have the intent never to resume the martial relationship.

As Kris and Bruce Jenner are currently living separate and apart, it would not be difficult for one party to claim he or she had the requisite intent to end the marriage and therefore claim an earlier date of separation than the other. Another factor to take into consideration is the possibility that the Jenners have an enforceable premarital agreement, commonly known as a "pre-nup". As both Kris and Bruce had been married and divorced before they married each other, they would be prime candidates for a premarital agreement. In a premarital agreement the parties have an option to make agreements outside of default California community property laws thereby make other arrangements for distribution of earnings and accumulations during marriage in the event of divorce.

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Why it Might be a Good Idea to Put Dating on Pause During a Divorce

October 16, 2013

Dating during divorce - is it advisable?Just because you're in the process of ending your marriage through divorce doesn't mean that it's the end of all hope for future love, romance or even another marriage in the future. However, while you might be eager to move on with your love life by jumping back into the dating scene, there are a few reasons why you might want to take a step back and put dating on hold until after your divorce is finalized.

  1. Both dating and going through a divorce require a lot of time and attention.

    Going through a divorce can be extremely time-consuming, exhaustive and emotionally draining. This is especially true when the divorce is contested and there are children involved or there are complex, high-valued assets at issue. Jumping into a new relationship might not be the best move as you will need to devote a significant amount of time, energy and resources into finalizing your divorce. Also, if you want your new relationship to be successful then it is advised that you enter into it when you are emotionally, psychologically and financially stable. Otherwise, your new relationship might head down the same path as your marriage did.

  2. Dating could result in issues related to child custody.

    If you are going through a divorce and there are minor children involved then dating can cause several issues that might affect custody and parenting arrangements. First of all, divorce is not only difficult on the spouses involved but also on the children. By bringing a new boyfriend or girlfriend into the children's lives too soon might cause emotions of resentment and confusion to surface as the children have likely not had an adequate amount of time to adjust to and grasp all of the changes the come along with a divorce. Adding another person to the mix is just another change that is not in the best interests of your children.

    Also, keep in mind that custody arrangements might also be affected if your new boyfriend or girlfriend has a bad (i.e. criminal) past. Legal fees will likely skyrocket if the focus of the divorce becomes about the new significant other, rather than just the two spouses.

  3. Infuriating your ex-spouse is not the best idea during a divorce.

    If you begin dating while going through a divorce and your soon-to-be ex-spouse finds out, then he/she might react in a not so pleasant manner, to say the least. Inciting emotions of anger and jealousy will only lead to a more complex divorce as your spouse will be less likely to want to settle with you and the divorce will have less of chance of being as amicable as you had hoped. Finding someone new while ending the relationship with your current spouse will only add fuel to the fire in a contested divorce.

When it comes to dating while going through a divorce, it's important to take a step back and look at the reasons why it might be in your best interest to wait until the divorce is officially over before seeking someone new. Even though you might feel lonely during a divorce and feel a longing to fill an empty space, remember that a divorce is only a bump in the road and that you have plenty of time afterward the divorce is final to begin moving on with your life. Focusing on resolving your divorce, rather than putting your time and energy into dating right away, will likely result in a quicker divorce with hopefully less emotional exhaustion.

Continue reading "Why it Might be a Good Idea to Put Dating on Pause During a Divorce" »

Divorce Tips from Celebrity Divorce Attorney Laura Wasser

October 15, 2013

Laura Wasser - Hollywood Divorce
Laura Wasser is an LA divorce attorney who represents Hollywood's most famous celebrities. Considering her clientele, Wasser encounters her fair share of drama in her practice. Recently Wasser published a new book entitled "It Doesn't Have to Be That Way" full of intriguing divorce stories and advice for any divorcing couple. Although Wasser has been involved in many divorce battles, she provides her readers with the following ten tips for a civilized divorce.

  1. Marriage is a contract. Although this "tip" seems harsh, it is true. Marriage is a contract between adults and when that contract ends, parties must wrap up their relationship in accordance with default California community property laws (unless a premarital agreement is in place). Further, once the relationship originally established between two people has changed, a new relationship must be discussed and negotiated.
  2. Divorce is a business transaction. Another harsh reality regarding divorce is that it is a business transaction. It may be difficult to calmly divide up the life you shared with your spouse, but emotional outbursts will only hinder the process. Wasser recommends parties keep their cool when negotiating divorce issues. Taking unreasonable positions in an attempt to punish your ex-partner will inevitably increase fees and delay the divorce process.
  3. Dissolve it before it gets ugly. The dissolution process will proceed more smoothly if the parties have maintained amicable feelings toward each other. If the parties still respect and care for each other, they are more apt to reaching mutually beneficial resolutions in the event of a dispute.
  4. Before discussing divorce, consider what you want to say. The opening discussion regarding divorce can set the tone for the entire dissolution process. If the parties openly discuss their options and agree to proceed in a collaborative manner, the divorce will likely proceed much smoother than if the parties open the dialogue with insults and threats.
  5. Keep your feelings to yourself. By wrapping up family, friends and co-workers in your divorce you may disclose too much information. It is important to keep the details of your divorce confidential by only sharing them with your attorney and a therapist if you are seeing one.
  6. Be prepared to share. If you have been the primary earner in the marriage you should be prepared to split all of your marital assets and to pay child and/or spousal support. This legal principal applies regardless of gender. The Court will order a female breadwinner to pay support just as a male breadwinner. Additionally, the parties should begin considering sharing their children and the difficulties of being apart from them.
  7. Do not behave badly in front of your children. For the well-being of your children, it is always best to make every effort not to involve them in the divorce process. This requires both parents to refrain from making disparaging remarks about the other in the presence of the children.
  8. Be graceful under pressure. In the event your spouse takes a "less than graceful" approach to the divorce process, it is important to remain stoic. Regardless of the poor behavior of one party, it is not appropriate to retaliate.
  9. Split assets together. Parties can save significant attorney fees and costs by reaching agreements together regarding smaller assets such as personal property in the family home. Often couples walk through the family home together and discuss what they would like. Read more about property division methods
  10. Don't sleep with your ex-partner. Having a sexual relationship with your ex-partner post-separation can greatly impact your divorce case. A sexual relationship implies the marriage is not over and may change the date of separation.

Continue reading "Divorce Tips from Celebrity Divorce Attorney Laura Wasser" »

Understanding Parental Alienation in California - Part 2

September 24, 2013

What is Parental Alienation pt 2As we have previously blogged in "Understanding Parental Alienation in California Part 1," parental alienation can be extremely detrimental to the children and alienated parents involved. Luckily, there are ways to combat parental alienation and attempt to reunite the child and alienated parent who have been affected by parental alienation.

How Courts Deal with Claims of Parental Alienation

Courts have found ways to address claims of parental alienation and seek remedies that will repair broken relationships and help establish both parents as having a role in raising the child. In mild to moderate cases of parental alienation, a child custody evaluation will typically be performed by an expert to determine how severe the problem is and what kind of therapy and child time sharing should be recommended to help improve the relationship between the child and "alienated" parent.

However, in severe cases of parental alienation, sometimes the only solution is to remove the child from the parent who is alienating the other parent and to instead place the child with the alienated parent. But, before a judge will change the custody arrangement, they will typically require that a psychological evaluation to be done. Unfortunately, such evaluations can take anywhere from three months to a year to complete. In addition, some evaluators will simply argue that the detriment caused by parental alienation can simply be cured with therapy and thus the evaluator will not recommend a custody change to the alienated parent, but instead will recommend a reunification plan involving therapy. If it appears that reunification is not working then the court will typically want the same or new psychologist to re-evaluate the situation, which will take additional time.

Reuniting Alienated Parents with the Child

Reuniting alienated parentsAs an alienated parent, reuniting with your child can pose several challenges. As a result of the parental alienation the relationship with the child is likely very fragile and must be handled carefully in an attempt to repair what has been broken.

However, with proper psychological care, time and patience it is possible to attempt to reverse the effects of Parental Alienation Syndrome and mend your relationship with your child.

It is also advised that the alienated parent not retaliate against the other parent. Rather, if the alienated parent acts reasonably then the parent who is causing the alienation will hopefully be influenced to do the same.

Continue reading "Understanding Parental Alienation in California - Part 2" »

Understanding Parental Alienation in California - Part 1

September 23, 2013

CA Parental Alienation 1While broken marriages can be stressful and emotional for both spouses involved, it is typically the children who end up suffering the most throughout the parents' continued divorce battles. One prime example is where children end up suffering from "parental alienation syndrome," which is commonly associated with child custody battles that occur during and after divorce. Parental alienation can be extremely detrimental to the child and the alienated parent alike.

What is Parental Alienation?


Parental alienation occurs when one parent acts in a manner that attempts to cause the child to reject the other parent by undermining and thwarting the child's relationship with the other parent. The purpose of such alienation is usually an effort by one parent to gain or keep custody of the child.

The following behavior will typically lead to claims of parental alienation:

  • Not allowing the other parent to see or visit the child;

  • Refusing to allow the child to talk to the other parent on the phone;

  • Mis-informing the other parent about child's special events so that it appears that the other parent chose not to attend;

  • Creating a perception that the other parent is dangerous;

  • Discarding mail or gifts sent to the child by the other parent;

  • Creating expectation that the child must choose a side; and

  • Bad-mouthing the other parent.

Parental Alienation's Effect on the Children - PAS


What is Parental Alienation pt 1Parental Alienation Syndrome ("PAS") is a form of psychological injury to the child as a result of the above behaviors, wherein the child becomes "brainwashed" or manipulated into viewing the alienated parent in a negative light. As a result, the child adopts negative views of the other parent which in turn causes the child to reject the other parent and choose no longer want to spend time with that parent.

This can be extremely detrimental for any child. However, it is important to note that Parental Alienation Syndrome is not recognized a psychiatric diagnosis, but rather it is a theory that was developed by Dr. Richard Gardner. Nonetheless, there is even scholarly consensus that parental alienation (which leads to Parental Alienation Syndrome) is a form of abuse to children.


Parental Alienation's Effect on the Parents

The impact of parental alienation is not only detrimental to children involved but also to the alienated parent, who involuntarily loses contact with the child, which in turn impairs his/her relationship with the child. In severe cases of parental alienation, the love and bond that the alienated parent once had with the child may be completely destroyed beyond what seems possible to repair.

In Understanding Parental Alienation in California Part 2 we will explore ways that courts deal with claims of parental alienation and tips for reuniting the alienated parents with their children.

Continue reading "Understanding Parental Alienation in California - Part 1" »

What Does it Take to Finalize a Divorce in San Diego?

September 20, 2013

California Family Law Judgment FL-180Another one bites the dust. TMZ reports that singer, Ben Harper, and actress, Laura Dern, are officially divorced. In 2010, after five years of marriage and two children later, Harper filed for divorce to Dern's surprise. The couple reportedly tried to reconcile back in 2012, which turned out to be an utter failure. Now a year later, a Judge has signed off so they are officially divorced and will now be restored to their "single person" status.

Read more about the divorce from TMZ.com

So how exactly do divorcing couples, like Harper and Dern, know when their divorce is officially finalized? In other words, when can they truly move on with their lives and know that their marital status has been restored to "single" person status? In California, a divorce cannot be absolutely finalized until: all of the issues are resolved, a judgment has been signed by a judge and processed by the court, and the six month waiting period has lapsed.

Resolution of All Issues

Issues related to divorce (division of property, custody, child and spousal support, etc.) can be resolved by default, agreement by the parties, through court proceedings where the judge makes an order, or a combination thereof.

The California Divorce 6 Month Waiting Period

Many of our San Diego clients are familiar with the "six month rule". This rule is codified in California Family Code Section 2339(a), which states that marital status cannot be terminated any sooner than six months from the date that the Respondent was served with the petition for dissolution of marriage or the date of appearance of the Respondent, whichever occurs first. One purpose of this six-month waiting period in California is to give the parties a chance to reconcile or reconsider pursuing the dissolution. Many divorcing couples will often times give the marriage one last shot. However, if the parties fail at reconciling, like Harper and Dern did, or have simply have no intention at all to reconcile, then they still cannot get a divorce until the six month waiting period has been met. The parties may prepare and even finalize their divorce judgment prior to the end of the six month date, however, they will not become "officially" divorced until the six months has lapsed. However, if the parties do not resolve all of the issues prior to the six month date, then they will not be automatically divorced on that date.

Final Divorce Judgment

Once all issues have been resolved, then all of the necessary paperwork must be filed with the court. Thus, even if all issues have been resolved and the six month rule is met, a divorce is not truly final until there is actually a judgment signed by a judge and processed by the Court. The parties will receive a Notice of Entry of Judgment, which means the Judgment is or has been processed but they need to wait for the rest of the Judgment documents, which will be returned to the person who filed them once the Court is done processing them and it will note the date upon which the parties will be restored to the status of single persons.

If you are interested in properly finalizing a divorce from your spouse we can provide you with information and guide you through the process. Our team of experienced attorneys is prepared to litigate on your behalf. If you wish you schedule a consultation with Nancy J. Bickford, please call us at (858) 793-8884.

Continue reading "What Does it Take to Finalize a Divorce in San Diego?" »

Do San Diego Courts Favor Mothers in Child Custody Decisions?

September 16, 2013

California child custody lawsCalifornia child custody laws have most certainly evolved during our history as a state. Historically, it appeared that mothers were favored in court to get custody of the parties' children just because they were female. Mothers were pretty much guaranteed to get custody of the children, while even the best fathers were only given a limited visitation schedule while the children. Perhaps this was because traditionally mothers were viewed to be the more nurturing of the two parents; they were viewed as the parent who does everything in their power to make sure the children are taken care of properly and grow up right.

Despite popular belief, such favoring of mothers in child custody arrangements is not the case today. In this modern day in age, most states' laws actually prevent the courts from considering a party's gender when making a ruling on child custody. In San Diego, courts grant equal rights to both mothers and fathers in child custody cases. California Family Code Section 3040 specifically states that "custody should be granted... according to the best interest of the child...and shall not prefer a parent as custodian because of that parent's sex." Moreover, it is the public policy of California to ensure that children have frequent and continuing contact with both the mother and father.

Read more about child custody and visitation modification

The legal standard of "the best interests of the children" requires a court to take various factors into consideration, not including gender, when making a decision regarding the care and custody of the parties' children. The Family Code sets forth various factors that a court will consider, including but not limited to, the following:

  • Any history of abuse or neglect by either parent;
  • The habitual or continual illegal use of controlled substances;
  • The habitual or continual abuse of alcohol or prescribed controlled substances by either parent;
  • The overall health, safety and welfare of the child;
  • The requests of the parents;
  • The requests of the child if the child is of sufficient age and capacity to form an intelligent preference as to custody or visitation (Family Code 3042);

Thus, the main concern of any San Diego family law court is what custody and visitation arrangement is going to be consistent with the children's best interests. A parties' sex, therefore, will not determine who gets priority for being awarded the care and custody of the children involved.

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Who Decides Which School the Kids Will Go to After a Divorce?

September 13, 2013

Crayons - Kids in school after divorceA divorce can be quite devastating for all parties involved, especially the children of divorcing couples whose lives are often affected in a variety of ways. One issue that frequently arises during a divorce is a dispute over where the children will attend school after the parents have moved their separate directions. Children with parents involved in an active divorce case at family court often worry that they will be uprooted from the friends and teachers that they have come to know, or that they will bounce around between different schools each year.

So who exactly gets to decide where the minor children will go to school after a divorce? Divorce lawyers will advise their clients that the answer depends on the custody order. When one parent has sole legal custody, then that parent has the right to choose which school the children will attend without the input of the other parent. On the other hand, when parents share joint legal custody, they have to agree on various important decisions related to the children, including which school to send their children to.

Playing - Kids in school after divorceThus, one parent cannot enroll the parties' minor children into a school without the consent of the other parent. If the joint custody/parenting plan doesn't already address the issue of which school the children will attend, then the parents either have to come to an agreement on their own, agree in mediation, or direct their family law attorney to file a motion and take it to court for the Judge to decide. If the Judge is left to decide which school the minor children will attend, the Judge will typically look at what is in the best interests of the children. Some factors include, but are not limited to, desires of the children/parents, previous school selection by the parents, academic standard, proximity to custodial parent, children's educational needs, commuting time from each parent's home, tuition cost, etc. In situations where the children are already attending a certain school, then the likelihood of them continuing to attend that school is quite high, unless a compelling case is made that continuing attendance at that particular school is not in line with the children's best interests. However, when the children are about to start kindergarten or are transitioning into a middle school, junior high school, or high school, then the decision might be a bit more complicated and the Judge will have to take various factors into consideration.

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Custody of Pets - Who Gets the Pets in a Divorce?

September 12, 2013

Dog - custody of pets in divorceA common issue that comes up during the divorce process with our San Diego family law clients is how to divide the beloved family pets. It's not uncommon for pet owners to view their dogs, cats, birds, horses, etc. to be part of the family, much like a child. However, unlike children, California courts cannot divide a pet by way of a custody and visitation arrangement. Instead, pets are considered to be a piece of the marital property and can be given to only one of the pet owners in the divorce, not both of them.

Dividing Pets in Court

There really is no way to predict what a Judge will decide if you take your claim regarding the family pet to court. Judges will often consider some of the following factors of the divorce:

  • When the pet joined the family and whether one party had the pet before marriage;
  • Who the primary caretaker is (which spouse is typically responsible for grooming, feeding, walking and day-to-day care);
  • Who has more space for the pet to play and exercise;
  • Who has more time to be able to spend with the pet;
  • Whether either party has abused the pet and is therefore unfit to be awarded the pet; and
  • Which party has the greatest emotional bond with the pet.
Cat - Pet custody in divorce

Dividing Pets Outside of Court

Although courts will not consider options for sharing a pet, spouses do have the option to come to an agreement outside of court regarding sharing custody of the pet or giving the other spouse visitation rights of the pet after a divorce.

If keeping custody of your pet after a divorce is very important to you, it might be best to keep the issue out of court and instead try to negotiate a shared custody arrangement with your soon to be former spouse or compromise regarding giving up other marital assets in order to keep the pet. However, you have to prepare yourself to be willing to give up some pieces of marital property that your soon to be former spouse wants, so that in exchange you can keep your beloved pet. Although difficult, you have to weigh what is more important to you.

It is also important to keep the best interest of the pet in mind. For instance, if you have minor children too, it might be best for the parent who has custody of the children to also have "custody" of the pet. Also, you should consider whether you will truly be able to give the pet the love, care and attention that it requires. If you know that you have a busy schedule, your finances are going to be extremely tight following divorce, or if perhaps you are moving into a new place without adequate space for the pet, then maybe it would actually be in the pet's best interest to be given to your soon to be former spouse.

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