Agreements Regarding Payment of College Expenses in Divorce Judgments

July 9, 2014

college-expenses.jpgIn a divorce where the parties are fortunate enough to have the funds to pay for their children's college expenses, paying for college can be a major issue of discussion throughout the case. One parent may even give in on other issues to secure an agreement from the other side to pay for tuition for college for the parties' children. However, San Diego family law attorneys have struggled with the enforceability of provisions in Divorce Judgments reached by agreement of the parties. In a recent California Court of Appeal case, the Court clarified the limits of agreements for one or both parties to pay for college expenses.

In Drescher v. Gross, the parties entered into a Marital Settlement Agreement ("MSA") in which they agreed to equally share their three children's future college expenses. The college provision contained limitations on what schools the parties would pay for and which expenses were covered by the agreement. At the time the parties executed the MSA they were both employed as attorneys and earning six-figure incomes. Ten years later, the parties both requested modification of various support provisions, including the college expenses provision. At the time of the post-judgment requests, Husband earned more than $400,000 per year and Wife had become permanently disabled and was unable to work.

college-expenses-dollars.jpgAt the trial court level, the judge enforced the college expense provision of the parties' agreement and agreed with Husband that the parties should share equally the college expenses regardless of their current respective incomes. The trial court determined that it did not have jurisdiction to modify a contractual obligation entered into freely by both parties. On appeal, the Court of Appeal disagreed. The Court of Appeal granted Wife's request to modify the college expense provision based on a material change in the parties' financial circumstances. The Court of Appeal analogized the college expense provision to general support provisions which are modifiable unless the parties state otherwise.

Based on the outcome of this recent case, moving forward in divorce cases, the parties' MSA must specifically state that a college expenses provision is non-modifiable if they intend to restrict the court's ability to modify such a provision. Although family law attorneys dispute the wisdom of this decision, everyone can agree that clarity is always a plus when it comes to drafting and enforcing agreements in the family law arena.

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Should I Stay Friends with my Ex's Family After Divorce?

July 8, 2014

staying-friends-couple.jpgEnding a marriage, doesn't necessarily mean that you have to cut all ties with your ex spouse's family. Or does it? When your spouse brought you into that family, they were expected to welcome you with open arms and treat you like part of the family. Then when you actually got married, you not only gained a husband/wife but also a whole new family. So now that you are no longer the husband/wife of your ex-spouse, does this mean that you can no longer have a relationship with his family too?

When considering whether or not to stay close with your ex's family post-divorce, it's important to first think about the underlying cause of your divorce. Sure your divorce papers might have said the cause was "irreconcilable differences". But what was the root of those "irreconcilable differences?" Was it bad behavior, such as abuse, addiction or infidelity on your ex's behalf? If so, perhaps staying close with your ex's family might cause you to re-live the pain that you went through with your ex-spouse. On the other hand, your ex-spouse's family might be more willing to offer you the support that you need and that you didn't receive from your spouse. It's important to keep in mind though that your ex's family will inevitable stay loyal to your ex so you need to be sure to know where your boundaries are and exercise caution.

Another consideration is what message it will send to your children if you stay close friends with your ex's family. In many cases, this will be helpful for your children because your continued relations with your kids' extended family will help ensure that they don't suffer more loss of relationships as a result of your divorce. If the kids see that you are staying friends with your ex's family then the whole divorce might appear to be a bit less dysfunctional for them. And maintaining a pleasant family environment for your children is likely to help them through this transition in their life.

staying-friends.jpgLastly, before rushing to hang out with your ex sister-in-law on a daily basis or having your ex mother-in-law over for dinner every night, think about how your continued relationship will affect your ability to rebuild your life and move on from your ex. Can you really begin to focus on yourself if you haven't given yourself the opportunity to let go of the past? Perhaps maintaining such close ties with your ex's family will prevent you from accepting that the marriage is really over. On the other hand, maybe your ex-family is all that you really have and their support and friendship will help you get through this difficult transition in your life.

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Making Threats in Family Law Cases to Get What you Want

July 7, 2014

threats-chess.jpgConsidering the intimate nature of family law cases, especially divorces, both parties often know incriminating information about each other. For example, if one party has not been completely truthful on his or her tax returns filed with the IRS the other spouse likely knows about it. In some cases, one party may have the grounds for a domestic violence restraining order against the other or be a victim of illegal wiretapping, which was committed by his or her spouse. In a contentious divorce, spouses are often tempted to use sensitive information as leverage in negotiations.

Divorce lawyers have a reputation for being ferocious litigators who have no ethical boundaries when it comes to "taking down" the opposing party. Clients are often surprised when their divorce attorneys actually refuse to threaten civil, criminal or federal prosecution in the negotiation process. Clients imagine that they can tell the other side "Agree to pay me 'X' amount of spousal support for ten years or I will file a restraining order against you" or "If you don't agree to give me full legal and physical custody of the children I will report your real income to the IRS". They often become frustrated that their lawyer will not "fight" for them by using all of the tools in their arsenal.

threats-family-law.jpgContrary to how the lawyer's behavior will seem to the client, a lawyer is actually acting in the client's best interest by refusing to threaten the other side to gain an advantage in litigation. The California Rules of Professional Conduct prohibit all attorneys from threatening "criminal, procedural, administrative, or disciplinary charges to obtain an advantage in a civil dispute". Therefore, a lawyer's hands are tied by his or her ethical obligations. A lawyer would put his or her reputation and career in jeopardy if he or she were to threaten to use misconduct against the other side in a divorce negotiation. In addition to putting the lawyer in a position where he or she may be disciplined by the California state bar, the client risks extortion charges.

A family law litigant that threatens the other side in order to get what they want in a divorce case is also at risk of being sanctioned. In family court, one of the most powerful tools at the judge's discretion is a monetary sanction. If one party frustrates California's policy of settlement between litigants in a divorce action, he or she may be ordered to pay attorney fees and costs to the other side. Depending on the assets of the parties and the egregiousness of the misconduct, significant sanctions can be ordered for tens of thousands of dollars. Overall, threats of criminal, civil or federal prosecution may get you more than you bargained for in a family law case.

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How Changing Attorneys Can Impact your Family Law Case

July 3, 2014

changing-attorneys.jpgThere are so many experienced family law attorneys in San Diego that it might be difficult to decide which one you trust to handle your family law matter. In addition, your idea of how your family law matter should be handled can evolve as your case progresses. Especially in complicated divorce cases, litigation can drag out for months or even years. Due to the nature of family law, family law litigants work very closely with their attorneys during the pendency of their actions.

Over time, the attorney and client may reach disagreements about how the case is handled and either party may wish to end the professional relationship. In addition to strategy disagreements, litigants may also change counsel as a result of personality conflicts or other practical impediments to communication. Both the client and attorney may agree to terminate the attorney-client relationship in order to further the client's interest. For instance, the attorney may not have an efficient working relationship with opposing counsel. If the relationship between attorneys becomes too adversarial during the pendency of a case, the entire case could lose focus and become more expensive for both parties. In this type of situation, a change of counsel can give a family law case new direction and focus.

changing-attorneys-butterfly.jpgIf you are a family law litigant and are considering making a change of counsel, it is important to consider how this change may affect your case. First, hiring a new attorney will undoubtedly result in additional attorney fees and delay in your matter. Although your first attorney should not continue to charge you following formal withdraw as your attorney of record, your second attorney will need to "catch up" on your case. The time required for a new attorney to get up to speed on your case will depend on the size of your file, the level of litigation and how long your case has progressed for. The time spent by your new attorney getting up to speed will have a direct impact on the cost of your change of counsel. The longer the new attorney spends reviewing the case file prepared by your former attorney, the more expensive the transition will be.

Family law litigants should not change attorneys as a tactic to delay litigation. If an attorney feels the other side has changed counsel in order to stall the proceedings, he or she can file a motion for sanctions. If the judge determines that the litigant has interfered with the policy of fair dealing and settlement in family law proceedings, he or she will sanction (fine) the offending party.

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Changing Your Mind from Legal Separation to Divorce

July 2, 2014

legal-separation-roads.jpgThe term "Legal Separation" and "Dissolution" are distinctly different in that a legal separation does not result in dissolving the marriage itself, while a dissolution of marriage does indeed dissolve the marriage and will return the parties to their single status. There are several reasons why a spouse may want to file a petition for legal separation rather than a petition for dissolution of marriage. Some common reasons are because of the person's religious background, an interest to maintain certain healthcare benefits, or perhaps because the parties do not qualify to file for divorce because they have not met the residency requirement (there is no residency requirement to file a petition for legal separation in California).

If you initially filed for a legal separation for one of the reasons listed above or for any other reason, but you decide that would prefer a divorce, then you will need to convert your case into one for divorce. In California, you are able to convert your legal separation to a divorce at any point during the legal process, even after your legal separation is final. Either spouse can be the one to request that the legal separation be converted into a dissolution of marriage.

If a judgment of legal separation has not yet been obtained (meaning that you have filed your petition for legal separation but the proceedings are still pending) and your spouse has not yet responded to your petition, then so long as the residency requirement is met, you (the Petitioner) can simply file an amended petition and check the box for "Dissolution of Marriage". Your spouse will need to be served again with the amended Petition. However, if a judgment of legal separation has not yet been obtained but your spouse has already filed his or her Response to your original Petition for Legal Separation, then you may need to request approval from the Court.

legal-separation.jpgIf a judgment of legal separation has already been obtained from the court and you later decide that you would prefer a divorce, then you cannot just file an amended petition. Instead, you will need to start over with a new case by filing a petition for dissolution of marriage and pay the filing fee again.

Regardless of the status of the petition for legal separation, either spouse can petition the Court for dissolution of marriage. Because of this, it is typically better to simply petition for dissolution of marriage from the get-go unless both parties agree to the legal separation or a legal separation would benefit one or both parties. Also, it is important to keep in mind that the six month waiting period to be returned to single status does not start ticking until the Petition for Dissolution of Marriage has been served on the Respondent, despite the status of the petition for legal separation.

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Reluctant to Visit - Parental Alienation

July 1, 2014

Parent-visitation-mom.jpgOne of the most heart wrenching parts of divorce is its effect on the parties' children. Even the most amicable divorce will have a great impact on a child's life; however, the more tension that grows between the parents, the more trauma the child will experience. Unfortunately, it is not uncommon for parents to (intentionally and unintentionally) involve children in adult issues including their divorce. One common result of a child's over involvement in divorce litigation is parental alienation. If one parent is unable to protect the child from his or her own negative views the child may become alienated from the other parent.

Definitionally, parental alienation is a disturbance in the relationship between a parent and a child. The child may express feelings of distrust or even hatred for one parent while being inexplicably aligned with the other. A common indicator of parental alienation is the strong reluctance of the child to visit with the alienated parent. In family law cases, by court order or agreement of the parties, a parenting plan will be put in place. As part of the parenting plan, both physical and legal custody will be allocated between the parents. Legal custody is the right of a parent to make decisions regarding the health, safety, and welfare of the child. Physical custody is timeshare of the child between the parents. One parent may have primary physical custody of the child meaning that the child will live a majority of the time with that parent. If one parent has primary physical custody, the other parent will likely have visitation with the child.

Parent-visitation.jpgWith a court order for visitation, a parent is legally entitled to spend the specified times with his or her child. However, what is the parent supposed to do when the child absolutely refuses to go with him or her for visits? In parental alienation cases, when an exchange is scheduled to take place, a child may cry, kick, scream or even make a public scene in order to avoid visiting with the alienated parent. In these situations it becomes the responsibility of the non-alienated parent to encourage visitations. Refusing to follow the custody and visitation orders (despite the wishes of a child) can result in sanctions or even a loss of custody for the primary care parent. Although both parents may carry guilt regarding the divorce, it is important for them to foster a healthy relationship between the child and the other parent.

If you believe parental alienation may be occurring with your child, it is important to immediately consult with an experienced family law attorney. A family law attorney can seek court intervention in order to initiate an investigation into your case. Further, family courts can make appropriate orders to get your child the help he or she needs.

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What does the Court Consider an Emergency?

June 30, 2014

ex-parte-attorney-001.jpgGoing through a divorce (or any family law case) can create anxiety and become consuming for the parties involved. It is easy for family court judges and attorneys to become jaded by the volume of domestic issues they deal with on a daily basis. However, the average family law litigant has little to no experience with the court system. Considering the sensitive nature of family law cases, it is not surprising that litigants become frantic as each new problem or issue arises. Despite the sensitive nature of family law requests, it can be months for a litigant to obtain relief from the court.

In the case of true emergencies, the court offers ex parte hearings, which will be conducted with notice of twenty-four hours or less. However, ex parte relief will only be granted in a limited number of circumstances. Pursuant to the California Rules of Court, the Court will grant relief on an emergency basis in the following cases:

  1. Make orders to prevent an immediate danger or irreparable harm to a party or to the children involved in the matter;
  2. Make orders to help prevent immediate loss or damage to property subject to disposition in the case; or
  3. Make orders about procedural matters, including the following:
  4. a.) Setting a date for a hearing on the matter that is sooner than that of a regular hearing (granting an order shortening time for a hearing) b.) Shortening or extending the time required for a moving party to serve the other party with the notice of the hearing and supporting papers (grant an order shortening time for service) and c.) Continuing a hearing or trial.

ex-parte-gavel.jpgFamily law litigants will often run into court (or insist their attorneys run into court) requesting relief on an ex parte basis. However, as stated above, the requesting party must justify the lack of notice for his or her request with immediate danger, irreparable harm, to prevent immediate loss or damage to property, or for procedural issues. It is important for parties to carefully consider their decision to request emergency relief before filing a motion with the court. Too many unfounded ex parte requests will begin to create a "boy who cried wolf" reputation for the litigant. This means that if emergency relief is really necessary in the case, the court may not take the request seriously.

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Your Divorce Benefits - What Happens When You Re-Marry?

June 26, 2014

divorce-heart-001.jpgTMZ reports that actor Jeremy London managed to finalize his divorce from Melissa Cunningham, get married to Juliet Reeves and become a new father to son Wyatt all in the span of one week! That sure is a lot of change for one person. With all that change, I wonder if he contemplated how his new marriage might affect the terms of his recent divorce.

It is very common for people to get remarried after a divorce. Usually the new marriage doesn't happen quite as quickly as London's did. Nonetheless, before getting remarried, it is important to seriously consider how your remarriage can affect many of the benefits that you may still be receiving as the result of a previous divorce. One specific consideration is the possibility of discontinuation of spousal support.

Spousal support, for instance, will cease when the partner who is receiving the support remarries, unless the parties have agreed in writing otherwise (California Family Code Section 4337). If you settled your divorce, your agreement should include a provision to this effect. However, some agreements may specifically state that spousal support will continue to be paid regardless of whether the supported spouse gets remarried. Or an agreement may provide for a lump sum support payment or transfer of property in lieu of support, in which case the supported spouse's remarriage will not affect the spousal support agreement. If you are contemplating remarriage, it is important to review the terms of your divorce agreement and to be aware of the fact that there is a good chance that as soon as you get remarried, you will stop getting that monthly support check in the mail from your previous spouse.

divorce-remarriage-001.jpgIf you are the payor of spousal support and you are the one who remarries, then your obligation to pay spousal support to your first spouse will not cease. However, re-marriage after a divorce will still have a significant impact on the person who was the bread-winner in the first marriage (i.e. typically the one paying support). Not only is that person contributing to the finances of the former household, but he/she is now also financially contributing to the new household. This may pose some issues with your new spouse who might resent the fact that a portion of your money is going to your ex-spouse instead of your new family.

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How Long Can My Family Law Deposition Last?

June 25, 2014

depotition-butterfly.jpgHaving your deposition taken can be one of the most nerve-racking experiences for any family law litigant. One of the best ways to dispel your nerves about your upcoming deposition is to gather as much information about the process as possible. You will always have advance notice of your deposition before it occurs so you will have plenty of time to prepare with your attorney. The deposition notice must contain information regarding the date, time and location for the deposition. However, the deposition notice often does not contain an end time because it is hard to predict how long the question and answer session will last.

According to the California Code of Civil Procedure section 2025.290(a), a family law deposition shall not exceed seven hours. Although this general rule seems simple, there are a few exceptions and other factors to consider. For example, the deposition of an expert witness may exceed seven hours. Depositions of parties in family law cases that have been designated as "complex" may also exceed seven hours. If your case does not fall within any of the general exceptions, you may also ask the court for an order extending the permitted length of a deposition. In order to be granted an extension of the permitted deposition length, it is important to show the judge that your case falls outside the norm.

deposition-clock-001.jpgA seven-hour deposition can also take place over the period of one or several days. At the beginning of the case, the attorney may need some preliminary questions answered to determine what the major points of disagreement are. Later in the case, the attorney might finish the deposition by delving into the major remaining issues. In addition, the parties and attorneys cannot ride out the seven-hour time limit by taking several breaks and interrupting the process. At the outset of the deposition, the examining attorney may instruct the court reporter to make notations of all breaks and interruptions in order to get an accurate figure for the true length of questioning. Therefore, although the entire deposition process will likely exceed seven hours, the examiner is entitled to seven hours of pure questioning and answers.

If you and your attorney are conducting the deposition of the other party, it will be crucial to meet and confer regarding the most crucial aspects of the case. Your attorney must decide what questions will be the top priority to ensure those questions are asked prior to the expiration of the seven-hour time limit. In addition, if the question and answer portion of the deposition does exceed seven hours and the other side does not object, the testimony taken after seven hours will not be excluded. A failure to object to the length of a deposition will be viewed as a waiver of the seven-hour time limit.

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Joint Custody but Different School Districts

June 24, 2014

custody-school-choice-001.jpgOnce parents have split and begin residing in separate homes, a common issue in divorces involving children is the decision of where the child will go to school. This is particularly of concern when the parents begin residing in different school districts and don't see eye to eye on where the child should be getting their education. It wouldn't be fair to make the child switch schools each week when he/she switches households. So, who decides where the child will go to school in this situation?

Determining where your child will go to school depends on the parties' custody agreement that has been made an order of the court. There are two types of custody in a divorce case, physical custody and legal custody. Physical custody refers to where the child will live after separation or divorce. Legal custody, on the other hand, refers to who will have the right to make major decisions about the child's health, welfare and education.

If one parent is awarded sole legal and physical custody of the child then the decision of where that child will go to school is left solely up to that parent and typically based on that parent's residence. The other parent won't have any legal rights to chirp in regarding where to enroll the child. However, in many California divorces, the parents are awarded joint physical and legal custody of their children. This means that both parents will have significant periods of physical custody such that the child has frequent and continuing contact with both parents. Additionally, both parents will have equal rights to make decisions about the child's education. This often becomes a problem when the parents reside in different school districts and their preferences don't align regarding where the child should attend school.

custody-school-calendar-001.jpgUnless the custody agreement provides otherwise, the child will typically be able to attend school in either the school district in which mom resides or the school district in which dad resides. One parent may prefer his/her school district because it will be easier for transportation purposes. Or maybe the other parent thinks that his/her school district has a better sports team for the child. Whatever the parent's reasoning may be, the issue needs to be resolved before the school year begins. If the parents are unable to reach a mutual agreement on which school their child will attend, then the issue will need to be litigated.

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Dating for Men after Divorce - A Woman's Point of View

June 23, 2014

dating-divorce-003.jpgIf you have not started dating during the divorce process, it is a good idea to remain single through the final stages of divorce (within reason). A lot of the major kinks get worked out and all of your paperwork gets finalized at the end of the divorce process. Depending on the amicability of your divorce, if your soon-to-be ex-wife finds out that you are dating someone new, it may derail the entire settlement/closure of your case. On the other hand, if your divorce is extremely contentious and has been dragged out for years, it may be more reasonable for you to begin dating prior to the end of the case. The most important thing is to gauge the situation and to take into consideration how your new love life could impact you financially and emotionally in your divorce.

Once you are officially single, it is important to have clear boundaries with your ex-wife. Are you calling her weekly "just to catch up"? Do you still have personal belongings in her home? Although it is nice to remain friendly with your former spouse (especially if you have children together), it's probably not a good idea to stay so close. Frequent communication with your ex-wife and trips to her house might create confusion for the both of you during a difficult time. Men should definitely not rush into new relationships just because they are divorced, but it is also healthy to fully separate from a former spouse. Try to avoid pressure from friends and family to "get back out there" if you are not ready. A stereotype persists that men are less emotionally damaged from divorce and that all divorced men are excited to start dating groups of new women. However, if you are not ready for that it could backfire for you creating even more unnecessary drama in your life.

dating-divorce-gym-001.jpgWhen you decide it is a good time to start dating again, it may be a good idea to make some changes to your physical appearance. If you have a gym membership, start going more often. If not, get a membership and start working out on a regular basis. Take better care of your body by eating healthier foods. Show off your new physique with some new clothes. These physical changes will boost your confidence (especially around women) and help improve your overall attitude and mood. When you feel better about your appearance then you can start building a more positive self-image. Overall divorce can be a stressful, exhausting, and devastating process. However, the best way to get past your divorce is to learn from your mistakes, focus on the good memories, and start a new future.

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Keeping Kids a Top Priority During a Custody Fight

June 20, 2014

custody-dispute-001.jpgA custody battle is all about your children so your actions and behavior during the custody battle should also be all about the children and making sure that they are the top priority. Below are some tips for things to do or not do if you are fighting for custody of your child or children:

1) Do not discuss legal matters around your child. No matter how angry or upset you are with your spouse, your child is not the person you should be venting to about the divorce. Consider meeting with a therapist or at least save the divorce discussions for your adult friends.

2) Despite the anger and resentment you may have towards your soon to be ex-spouse, do your best to encourage your child to have a relationship with your soon to be ex-spouse. It's important for a child to have both a mother and father role model in his/her life.

3) Avoid separating your child from your soon to be ex-spouse's family members (i.e. grandparents, aunts, uncles, etc.). Remember that just because you and your spouse have chosen to call it quits doesn't necessarily mean your child should have to forfeit his/her relationships with extended family members. Also, when you feel the urge to say something bad about your ex's family members, remember that even after the divorce your child will still be related to them even though you will not.

4) If you have been ordered to pay child support, do not withhold that support just to punish the other parent. By doing so, you will ultimately be punishing and deprived your child as child support is meant to help out with expenses related to the child.

5) Respect your spouse's privacy rights when your child is in his/her care. As much as you may want to snoop on your spouse and make sure that your kids are being taken care of, the more respect you show your spouse then more you will likely receive in return. Additionally, so long as your child is not in danger, avoid trying to control every move of what your child does while in the custody of your spouse.

6) Be open to the possibility that a 50/50 shared custody arrangement may not be in the best interest of your child. Keep your child's unique needs in mind. This is especially true if you have a special needs child who may not react well to change and different environments.

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My Spouse is Hiding Assets - How can I Protect my Interests?

June 19, 2014

hiding-gold.jpgIt is not uncommon in San Diego divorce cases for spouses to accuse each other of improperly hiding or failing to disclose community assets. However, before pursuing any legal course of action for relief in court, it is advisable to collect substantial evidence of misconduct. Often times what seems like wrongdoing at first can simply be explained by clarification of a misunderstanding or the production of supplemental information. In the instance where a spouse is failing to disclose property or making substantial efforts to conceal assets, it may be necessary to seek court intervention. One common thread to accusations of concealment of property is the involvement of a third party.

Obtaining relief from a third party is much more difficult in the family law arena than it is in general civil litigation. In a general civil case or criminal prosecution, any party involved in a conspiracy can be joined in the action and held directly accountable for their involvement. Family law judges hear much more personal types of cases and therefore are hesitant to drag third parties or businesses into divorce or custody disputes.

There are two categories of joinder, mandatory joinder and permissive joinder. Mandatory joinder is used in a limited set of circumstances which are largely procedural. Permissive joinder is a much more arguable area of these laws because the exercise of the court's discretion in making a decision regarding permissive joinder is the "reasonableness" standard. Whether joinder is considered "reasonable" is highly fact driven and the "reasonableness" of joinder may vary greatly from judge to judge. With such broad discretion and open-ended guidelines, it is impossible to predict with any certainty the outcome of a motion for joinder.

hiding-assets.jpgA request to join a third party you believe has been conspiring with your spouse to hide property is within the court's broad permissive joinder criteria. Pursuant to California case law, the court may order joinder of a third party to which one spouse purportedly made an unauthorized gift of community property. For example, if you have evidence to suggest that your spouse is "selling" off community assets to a friend for little to no consideration, you may be able to join the third party who has "bought" community property. Many times, the friend will be holding the property for the spouse until the divorce has concluded and then will return the property to the spouse. These types of cases are difficult to prosecute without substantial evidence of misconduct. However, if you can prove your spouse gifted community property to a third party you may be able to join the third party in your divorce action.

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What to Do if Worried about Child Abduction During or After a Divorce

June 18, 2014

abduction-beach.jpgAccording to CNN, Cara Cox was reunited with her mother, Jodie Borchert, 4 years after vanishing from Florida with her father, Aaron Cox, against child custody orders. Cara Cox was just 8 years old at the time when she was taken by her father following a weekend visit. For nearly 4 years there were no leads on Cara's whereabouts. However, a break in the case came on May 12, 2014 when a tip led authorities to a remote area in Mexico, 1,700 miles away, where both Cara and her father were living under aliases. Authorities arrested Aaron Cox and recovered Cara. For Cara's mother, the wait was finally over.

For some divorcing couples, the fear of your spouse abducting your child in violation of your child custody orders is a serious concern. If you are going through a divorce or have recently divorced, there are some precautions that you can take. First, it is important to keep a record of important information about your ex-spouse including his/her social security number, driver's license number, vehicle description and license plate number, physical description, etc. Second, it is important to keep a record of important information about your child including his/her height, weight, hair color, eye color, fingerprints, and any unique physical characteristics. Third, it is recommended that you keep an updated list of addresses and telephone numbers of your ex-spouse's relatives and friends both here and abroad. Lastly, you should take photographs of your child every six months because a recent photo may prove very helpful if your child is abducted by your ex-spouse. Also, as much as you may not want to keep any pictures of your ex-spouse around, keep a recent photo of him/her on hand as well for the same reason.

There are many great smart phone apps to help you keep your child's information handy, such as The FBI Child ID. Created by the Federal Bureau of Investigation, this app lets parents store their children's photos plus other identification (height, weight, hair and eye color, age) for quick access if a child ever goes missing. The information is stored on the iPhone only until parents need to send it to authorities. Notable features include safety tips, checklists for what to do if something happens to your child, and shortcuts to dial 911 or the National Center for Missing and Exploited Children. Parents also have the ability to email info immediately to law enforcement agencies if the unthinkable occurs. (Free; iPhone, iPad)

abduction-kid-find-app.jpgAnother great smart phone app is Find My Kids. Using GPS in real time, this app helps you keep track of and automatically locate where your child goes with his phone. If he's traveling alone, you can confirm that he arrived at a specific destination, or if he's meeting up with friends, they can confirm each other's locations. Location info is never shared with anyone else beyond those who have permission to see it, and data is saved for later review. Even though the app is free, parents will need to purchase a subscription for the tracking feature. (Free to download, service requires a monthly fee; iPhone, iPad)

If your child has been abducted you will likely experience a tremendous amount of shock and emotions and won't be able to think clearly. Thus, it is important that you take the above precautions so that you are prepared for this awful situation.

If you think that your child is at risk of being abducted by your ex-spouse then is it vital that you have a very clear child custody order that outlines the extent to which your ex-spouse has authority to travel with your child. You should keep a copy of the current order in a safe and easily accessible place. Although court orders are not typically recognized in foreign countries, the Hague Convention is an international treaty that provides a method of returning a child who has been abducted by a parent (in violation of custody and visitation orders) from one country that is a member of the Hague Convention to another country that is a member of the Hague Convention.

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Divorce Considerations When You Have a Child with a Special Needs Disability

June 10, 2014

Divorce-kid-special-needs-001.jpgNot all divorces are alike. Particularly, divorces involving spouses who have a special needs child will have specific considerations that should be addressed during the divorce process. Some key issues that need to be considered during a divorce proceeding in regard to a special needs child include the following:

1. Physical Custody
In California, the courts award custody based on what is in the best interest of the child. However, one consideration is that the "cookie cutter" parenting plan for a typical child will likely not work for a child with special needs. Special needs children, such as children with autism, often have difficulty with transitions because they are not comfortable with changes in environment. In addition, a special needs child may not understand the concept of time like a typical child would. The goal should be to design a parenting schedule that prioritizes the child's unique medical, physical and mental needs.

2. Legal Custody
Legal custody is about which parent will make the decisions with regard to the child's health, education and welfare. In the case of a special needs child, it is very important that the parents advocate in unison with regard to matters involving the child's placement, services and therapies. Special needs children typically have a team consisting of doctors, therapists, school personnel and childcare providers. If the parents are unable to work together with the team to make these decisions, then the court should be requested to decide which parent should be the one to have such decision making authority.

divorce-special-needs-001.jpg3. Child Support
When litigating your divorce case, it is important to educate the judge as to the unique requirements of a special needs child. You may want to request that the court consider unique un-reimbursed expenses that relate to caring for a special needs child. Although the Court uses a formula to calculate child support, that amount may be adjusted for cases in which the children have special medical or other needs that require child support to be greater than the formula amount. The Court may consider a wide range of add-on expenses such as various therapies, special schools, medication, which the special needs child require to facilitate his or her progression. Another consideration to keep in mind is that child support may even extend beyond age 18 in certain circumstances.

4. Medical Insurance/Life Insurance
Families with a special needs child typically spend thousands of dollars each year in uninsured medical expenses. Consequently, it is important that divorcing parents address the topic of medical expenses (including health insurance premiums and uninsured medical expenses). Also, in some states, such as California, the court may order a parent to secure his/her child support obligation through a life insurance policy.

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