Articles Posted in Divorce

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Kansas is considering a bill which would arguably eliminate “no-fault” divorce throughout the state. Currently in Kansas, “incompatibility” is a ground for divorce similar to California’s “irreconcilable differences”. “Incompatibility” and “irreconcilable differences” are both general catch-all no-fault grounds for divorce. The new Kansas bill would replace “incompatibility” with eight reasons the couple is seeking a divorce.

Keith Esau, a member of the House Judiciary Committee, introduced the new “fault divorce” bill. He supports the intent behind the bill (which was authored by an anonymous legislator) because he says “No-fault divorce gives people an easy out instead of working at it.” Other members of the Judiciary have spoken out about the bill noting that the government may be overreaching by limiting a couple’s decision to end their relationship. In response, the bill’s supporters argue that married couples receive significant benefits from the state and therefore the state should be able to limit people from entering into marriages temporarily, reaping the benefits from the state, and then getting out.

Kansas divorce attorneys argue that the new bill will only complicate and prolong the divorce process. Such an adversarial requirement – choosing from a list of fault-based grounds as a reason for the divorce – can make a family matter extremely contentious. Divorce attorneys in Kansas question whether the new bill would deter many couples from petitioning for divorce. Whether the divorce process is “easy” or “difficult” for the parties will likely not be the deciding factor when determining whether to file for divorce. Further, many couples are unfamiliar with divorce laws and the process and therefore do not take them into consideration before filing for divorce.

At Bickford Blado & Botros, we strive to make the divorce process as smooth as possible for all of our clients. This includes a strong effort to resolve all issues without court intervention. If California were to consider a bill eliminating “no-fault” divorce, our firm would be concerned about the effect such a law would have on children caught up in the divorce process. Our attorneys encourage clients to resolve all custody and visitation disputes amicably outside of court. By eliminating “no-fault” divorce thereby increasing the tension and conflict in divorce cases, litigants may be less likely to resolve custody disputes quickly and cooperatively. Court intervention and contentious custody battles are rarely in the best interest of the children and will likely make the divorce transition more difficult for them.
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Divorce lawyers are notoriously busy bouncing from hearing to hearing while juggling constant client phone calls and e-mails. Family law is one of the most “client intensive” areas of law, meaning the client plays a much larger role in a divorce action than he or she would in other civil matters. Effective and prompt communication is the top factor for clients in determining their satisfaction with their divorce attorneys. Urgent issues can arise on a daily basis in divorces cases if the parties have a dispute over finances, child custody/visitation, or property. Unfortunately, clients generally do not know how responsive their attorneys will be to these issues until an emergency arises.

Family law firms also tend to be much smaller in size in comparison to other civil litigation practices. If a family law firm only has a couple of employees including the lawyer, it may be difficult for the client to get in contact with his or her attorney. With divorce lawyers out of the office frequently for hearings, meetings, depositions, and settlement conferences, office staff is generally left to handle paperwork, client calls, and a multitude of e-mails. Although it is not impossible for small law firms to efficiently communicate with all of their clients in a reasonable manner, many clients are not satisfied with the attention their case receives.

Once a breakdown in communication has occurred between lawyer and client, both parties tend to be angry and frustrated with the situation. Further, switching attorneys or remedying any consequences of inadequate attention to a case could cost the client additional attorney fees and further delay his or her divorce. Considering it is not uncommon for the divorce process to last one to two years, unnecessary delays can be particularly frustrating for clients.

At Bickford Blado & Botros we work as a team to ensure that each client gets the prompt and careful attention he or she deserves. When a client retains our firm to represent him or her in a divorce matter, a lead attorney, supporting attorney and paralegal are all assigned to the case. This means that if the client needs any information at least one team member will likely be available to assist them. Further, if both attorneys assigned to the case happen to be out of the office when an urgent matter arises, any other attorney currently in the office will be available to handle emergencies. The variety of staff assigned to a case also allows the lead attorney to delegate work to attorneys or paralegals with a much lower billing rate thereby reducing the overall cost for the client.
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On March 1, 2014, the San Diego Superior Court began offering a “One Day Divorce” option at the San Diego’s Downtown Family Court. This pilot program provides the option for eligible parties to complete their entire divorce is just one short day. Sounds pretty amazing, right?!

The goal of the program is for parties to walk out of the courthouse with their judgment papers in hand. Parties first meet with a family law expert to go over the terms of their proposed divorce settlement or the process for a default judgment. Then the parties will receive hands on assistance with completing any forms necessary to finalize their divorce. If all of the forms are completed, the parties may appear in court that same day to receive their final judgment.

Offering an extremely fast and affordable resolution to the otherwise typically lengthy divorce process is what the “One Day Divorce” program aims to do. This seems like quite the innovative option. But it inevitably comes with some pitfalls. For starters, those impacted by the new program won’t be as widespread as one would think. Rather, eligible parties are limited only to those who have already filed a petition for divorce or separation in San Diego County at least six months ago, are self-represented, have served the summons and petition on the other party, a proof of service of summons or a response has been filed with the Court, and there are no contested issues. In addition, if either spouse has retirement benefits that were earned during marriage, such benefits must be listed on the petition or response in order to be able to complete the judgment. These limitations narrow down the pool of eligible couples dramatically.

On the other hand, the “One Day Divorce” program doesn’t appear to be as limited as the eligibility requirement for a summary dissolution. Unlike summary dissolutions, the “One Day Divorce” program’s parameters are not limited to couples who have been married less than five years, have no children of the marriage, do not have any interest in real estate, do not have debts over a specified amount, do not have community assets over a specified amount, agree to waive spousal support, etc. This means that cases involving long-term marriages, spousal support, custody, high assets, etc. may take part in the program. However, such cases may be quite complex and perhaps a “one day divorce” approach wouldn’t serve the best interests of the parties. Rather, they might be better off with legal representation to ensure equal bargaining power and knowledge between the parties. Also, the appropriate amount of time and expertise to review all aspects of their divorce might be necessary to ensure that the parties fully understand their situation and have sufficient time to received legal advice before settling.

In any event, the success of the “One Day Divorce” program will heavily depend on its execution. For instance, the “family law expert” that will meet with the parties during the One Day Divorce process poses potential concerns. What will this person’s limitations be? Will he/she act as a mediator or give legal advice? Is he/she a licensed and experienced divorce attorney? If the program’s intent is to solely help parties who have reached agreement on every single aspect of their divorce and either don’t have any further questions or are not able to get legal advice at or during the one day process then perhaps the program will indeed have potential for those truly uncontested cases. But, if the family law expert’s role is to give legal advice then that would likely be another story.
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One of the top concerns for the majority of family law litigants is protecting their financial well-being during the divorce process and beyond. Typically, all divorcing parties must make changes to their lifestyle in order to stretch their family budget enough to support two separate households. The reality in most divorces is that both parties will need to make financial sacrifices and cannot afford to maintain their previous standard of living. However, beyond lifestyle adjustments, most parties also have a real fear that their assets and potential income are in jeopardy as a result of the divorce. If you are worried about protecting your finances in divorce, below are a few tips to consider which prevent future loss.

Create Financial Separation after the Date of Separation

The marital estate exists from the date of marriage through the date of separation of the parties. All earnings and accumulations of the parties (except through gift, devise or bequest) during that time is community property and are shared equally between the parties. After the date of separation, the income of both parties becomes their separate property. Thus, if the primary earner contributes to the support and maintenance of an unemployed spouse over and above the amount required by a support order, the supporting party may request reimbursement. In cases where the parties continue to commingle their spending it can be difficult to later asses how much support has been paid post-separation. It is a good idea to consult with a family law attorney regarding whether you should establish your own checking, savings, and/or credit card accounts.

Learn What you Don’t Know

In a typical divorce case, the parties have the most knowledge regarding the particular assets and debts in their own names. While you and your spouse are still amicable and living under the same roof, it is highly advisable to gather information and documents regarding the assets and debts you are not as familiar with. In addition, it will also be helpful to discover as much information as possible regarding the family expenses paid by your spouse and his or her income. Learning what you do not know prior to a nasty divorce can save thousands of dollars in attorney fees and costs and can also prevent significant delays.

Focus on the Facts of the Case – Not Revenge

Vengeful-minded litigants spend significantly more money in attorney fees and costs than they will likely ever recover from their spouses. Further, vengeful tactics tend to prolong the divorce process making it harder for the parties to move on with their lives and establish emotional stability. In addition, California is a “no fault” state which means that marital wrongdoing is completely irrelevant in family law proceedings.
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During this time of year many people get motivated to clean out their closets and clean up their finances. If you are considering pursuing a divorce this year, you will also want to consider using some of that “spring cleaning” energy to prepare for the changes to come. There are a lot of small steps potential family law litigants can take in order to make the divorce process run more smoothly and affordably.

Get your financial documents in order

With tax season in full swing, there is no better time to collect and organize all of your financial documents. Sit down with your spouse and figure out what each of you earns and how much the family spends each month on living expenses. In addition, discuss all of your joint and separate assets and debts. Collecting documentation on these topics such as income, expenses, assets and debts will save you substantial time and money in the divorce process. At the outset of every divorce case, both parties are required to set forth all material facts and information regarding their finances. Gathering these documents and information ahead of time will jump start your case.

Check into your credit score

In order to start a separate financial life from your spouse you may need to obtain your own loans and credit cards. If there is an error in your credit report, it is better to address it before your potential new creditors discover it. Typically repairing your credit can take a significant amount of time. If you are newly divorced, you will likely need credit immediately for a potential refinance, purchasing your own vehicle, or starting a line of credit. Therefore, it is always a good idea to check your credit sooner rather than later.

Get credit cards and bank accounts set up in your name

One of the most expensive and fruitless endeavors in a family law case is the issue of credits/reimbursements for post-separation expenditures. Once you and your spouse have separated, it is much cleaner for the both of you to begin using separate bank accounts and credit cards. If you untangle your finances at the beginning of the case, you can avoid analyzing mountains of paperwork attempting to decipher who spent what post-separation. If your spouse is not aware that you will be filing for divorce, it is advisable to open new accounts with different entities than the ones which hold your current joint accounts.

Begin to process your emotions

Divorce is an extremely emotional process for a majority of parties. However the process of divorce should be logical and analyzed from a financial standpoint. In order to separate your emotions from your financial decisions, you might want to begin processing the idea of divorce early. If helpful, begin speaking with a licensed mental health professional to deal with your emotional needs. Venting to your divorce attorney about marital discord is less useful and much more expensive than a weekly therapy session.
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If you are recently divorced or nearing the end of your divorce process, you might want to start by checking off everything on your post-divorce to do list so that you can finally move on and focus on yourself.

Once the divorce is nearing the end, you probably want nothing more than to move on from it and think about anything else. The fact of the matter is that even once the divorce is over you will still have a long list of financial housekeeping items related to the divorce. Below is a list to help you remember some of these items to take of (to the extent they are applicable to your situation) so that you can work towards turning the page and beginning a fresh new start.

1. Remove your husband’s name and UPDATE all of your financial documents, credit cards, utility bills, medical records, employment records, passport, driver’s license, auto, health and homeowners insurance policies, IRS records, Social Security Card, Title to real property and any professional licenses to reflect the following changes in your basic information, to the extent applicable:
a. Name change b. Address change c. “Single” status instead of “Married”
d. New trustee
2. Update your beneficiary designation on all life insurance plans, IRAs, 401(k), mutual fund accounts, bank accounts, brokerage accounts, etc. (if your ex-spouse is your current primary beneficiary and you want someone else to be designated as the beneficiary upon your death).

3. Revise your will: you will likely want to revise your will to take your ex-spouse off and designate others to inherit from you. If you are removing your ex-spouse, who was also designated as your Executor then you will also need to choose a new Executor of your estate.

4. Research health insurance options.

5. Think about changing your “Emergency Contact” where applicable if your ex-spouse is currently listed as your only person to contact in case of an emergency.

6. Obtain a certified copy of your divorce decree: to make many of the changes listed above you might be required to produce a certified copy of your divorce decree. Try to obtain extra copies early on so that you don’t have to delay the process of checking off items on your to do list.

7. Close joint credit cards and open new bank accounts and credit cards in your name so you can start establishing your own credit history.

8. Talk to a Financial Adviser to start planning for your financial future.

The list of things to change and update post-divorce can be overwhelming. The best way to approach your to do list is to take a look at all the documents you were required to produce during your divorce proceeding and then attack it one at a time. Your Schedule of Assets and Debts that was prepared during your divorce should have a comprehensive list of the accounts that you should think about updating.
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The moment a divorce commences, automatic temporary restraining orders (“ATROS”) take effect and they remain in effect until entry of the final judgment. Specifically, the Petitioner is bound by the ATROS once he or she files the Petition and Summons and the Respondent is bound by them after he or she is served with the Petition and Summons. The ATROS can actually be found on the second page of the Summons.

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

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

Violation of the ATROS can result in some pretty hefty fines and even time behind bars. (See Family Code Section 233). Specifically, Penal Code Section 278.5 provides that “every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment…” Willful and knowing violators of any of the other orders may also be subject to a $1,000 fine, imprisonment or both pursuant to Penal Code Section 273.6.
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One of the first things that most people do when they decide to get a divorce is to find, interview and hire a divorce attorney to help them through the divorce process. The relationship that you develop with your divorce attorney is an important one as it will likely continue throughout the entire divorce process and even possibly years down the line. Depending on how well you work with your divorce attorney can have quite a significant impact on the pace of your divorce proceeding and the amount of legal fees you will incur. The best way to ensure that you work well with your divorce attorney is to outline your expectations and understand what your attorney expects from you in return.

What You Should Expect From Your Attorney

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

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

Understanding What Your Attorney Expects from You

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

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

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

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

Who You Can Expect to See In Court

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

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

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

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

Typical Order of Events in Court

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

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

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

Determine Resolved and Unresolved Issues:

Before the actual hearing begins, the judge will want to determine which issues, if any, have been settled by agreement and which ones still remain unresolved. The judge will review any written agreements or listen to statements regarding settled issues. The judge will then ask the parties if they understand the agreement and then he/she will typically make a statement accepting the stipulation and confirming that the agreement is a court order. Once this is completed the actual hearing will begin.
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During a dissolution case, also known as a divorce, you will likely be required to attend a court hearing at some point during the process. Regardless of what type of hearing it is, getting oriented with the family law court and properly preparing yourself for your day in court is half the battle.

Mental Preparation

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

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

What to Bring and What Not to Bring With You

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

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

What to Do When You Arrive

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

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