My favorite holiday song is Andy Williams’ version of “The Most Wonderful Time of the Year.” Something about that song encapsulates everything that is special about the winter holiday season. There are the lights, the food, the family, and the nostalgia of being a kid at Christmas. Now that I have a family of my own, seeing this special season through the eyes of my own children makes it all feel that much more real and special. However, for many divorced or divorcing parents the winter break is a difficult time. In this blog I want to address a couple common issues that divorcing parents face and with them provide some advice for enjoying the holidays in spite of the difficulties of a divorce. Continue reading
Change is a big part of any divorce. When you have children, dealing with change can be one of the most difficult parts of the divorce. No matter how many times people tell you that “kids are resilient and everything will be okay” it doesn’t make it any easier. The truth is, most kids handle divorce well especially when their parents are able to successfully co-parent. Nonetheless, there is one change that no amount of co-parenting can make easier. That is changing schools. Most families only have one residence which means that at least one parent will need to find a new home. If that new home happens to be in the same neighborhood as the former family residence, then changing schools should not be an issue. More often than not however, one parent moves to a residence that is zoned for a different school than the children currently attend.
So what do you do? Continue reading
This having likely been one of the most divisive political campaigns and presidential nominations in history, it may not be surprising that the widespread political divide and contempt has spilled over into many households and left countless numbers of people questioning relationships with their significant others. For several months, we suspected that this would be true, but a recent Google search led way to an astonishing amount of op-ed articles and message board discussions regarding women (at least mostly women from what we could tell), detailing the rift that differing opinions regarding President Elect Donald Trump had caused in their marriages.Some even took to message boards or wrote into advice columns to seek guidance as to whether the difference in opinion was a legitimate reason to end the marriage or relationship at issue. Continue reading
Many parties choose to have their divorce cases mediated by a professional mediator. This can have many valuable benefits. It can be cheaper, less stressful, and much quicker than your typical adversarial divorce. All other things being equal, working together is preferred to working against one another.
Any party who chooses to use mediation should be aware of the mediation privilege. The mediation privilege makes it impossible (absent certain limited exceptions) for one party to compel the production of documents or testimony of the other party or the mediator as long as that other party and the mediator invoke the mediation privilege. If one party is trying to set aside a judgment because of false or fraudulent statements made by the other party, the mediation privilege can be a significant impediment to that goal.
The title of this blog – for our younger readers – comes from the Kenny Roger’s song, “The Gambler” which feels appropriate when discussing a family law case. Parties gamble on the strength of their position, the strength of their legal theories and evidence, and the likelihood they can convince a judge to accept their story. There is always the other side to that gamble; namely the other party. They are also gambling. Family law is not always a zero-sum game, but there are many issues that are either a “yes” or a “no.” So when you litigate a case, you may spend a great deal of time and money only to come out on the other end empty handed.
Good gamblers know to always hedge their bet. Hedging is the act of protecting yourself from loss by reducing the risk. Hedging a bet comes at a cost though. You may reduce your risk of loss, but you also reduce your recovery. In family law, you reduce risk by negotiating a settlement. There are many ways parties can reach a settlement of their case, but the following three scenarios represent the most common avenues. Continue reading
Consanguinity comes from a Latin word “consanguinitas” and meaning “blood relation.” In English is just means your blood relatives. That would be your mother or father or your children. There is also what is referred to as “affinity” which in layman’s terms it is the property of being from the same kinship as another person. That is your relatives that are not a blood relation. Your spouse, your in-laws, your aunt or uncle by marriage are all examples of non-blood relations. In even simpler terms, they both refer to your relatives.
In family law consanguinity and affinity are very important terms when it comes to Domestic Violence Restraining Orders (“DVRO”). Under California law, in order to obtain a domestic violence the party seeking protection and the party to be restrained must 1) be married or formerly married, 2) in a current or past dating relationship, 3) be current or former cohabitants, 4) be the parents of a child or the child themselves, or 5) be any “other person related by consanguinity or affinity within the second degree.” Family Code §6211.
As a cast member of the Real Housewives of New York, Jules Wainstein is no stranger to drama. Surprisingly though, Jules’ impending divorce from husband Michael Wainstein filed in June has already been deemed the most dramatic divorce in Housewives history. And while it may be the most dramatic divorce the show and its cast have ever seen, Jules’ situation is actually not all that uncommon out here in the REAL, real world.
According to all of the press that the couple has received as of late, it would seem that Jules caught Michael cheating on her with one of her close friends. At that point Michael was prompted to file a petition for divorce after their eight year marriage. Since then, numerous accusations of domestic violence have surfaced, along with recent pictures of police outside the couples’ apartment. Continue reading
So imagine this scenario. You’ve spent all day in mediation with the other side. You have been going back and forth all day trying to reach an agreement that will resolve all the issues of your case. It is past 5:00pm and the cleaning crew is the newest spectator to this battle. You’re tired and ready to be done. Just as you are about to give up hope, an agreement is reached. After several handshakes, everyone goes home exhausted, but pleased that the case is resolved. So you’re done, right?
The focus of this blog is parents involved in contested custody cases and required custody mediation. Contested custody cases come in all shapes and sizes. On one end of the spectrum you have the high-conflict custody cases (the knockdown, drag out fights) and on the other end you have the “we agree on most things, but there are some details that we still need to iron out.”
No matter where on the spectrum your case falls, if you and the other parent cannot reach a full agreement on custody issues, you will be required to attend child custody mediation. Under California law [Family Code §3170], any contested issue related to custody and visitation must be set for mediation.
Although divorce is typically filled with heavy emotions, the end result of the divorce process should be for couples to move forward to a happier life. Unfortunately, in today’s legal system, many couples come out of a divorce feeling more embittered after litigating a divorce. Choosing to mediate your divorce case, rather than litigate it, provides a much less adversarial means of getting a divorce.
Mediation is very different from hiring an attorney and appearing before a Judge in court. Mediation is also different than both parties and their individual attorneys working together to settle a divorce case. Rather, mediation (as discussed below) simply involves two parties and a credentialed mediator. The mediator is a neutral person and does not represent either party. There are no attorneys or specialist present in this type of mediation.
Once you and your spouse jointly select and retain a mediator, the three of you will meet and work through the issues you need to resolve in order to end your marriage as amicably and cost effective as possible. The process is done in a controlled and non-confrontation process so that you and your spouse will ultimately be able to decide your own divorce terms based on what is best for the both of you and your children, if any. You do not have to follow the traditional rules of dividing assets and calculating support, but your settlement must still be fair and not against public policy.
Sometimes agreements between spouses come easy but when these agreements are harder to reach the mediator will intervene. The mediator’s purpose is to help brainstorm ideas, keep the communication between the parties open and assist the couple with their decision making process by keeping them focused on the issues at hand. The mediator, unlike a judge, will not make any judgments or decisions. Rather, the mediator will facilitate the process and make sure that both parties’ interests are met and that any decisions made by the parties are mutually satisfactory to both parties.
Once the parties come to a full and final agreement, the terms of the agreement will be drafted into a Marital Settlement Agreement. Each party will have an opportunity to review the Marital Settlement Agreement before signing. The Marital Settlement Agreement will then be filed with the San Diego Family Court with the required court documents and will then become an enforceable court order.
Mediation is an ideal choice for many divorcing couples. Not only is the process much quicker and less expensive than hiring an attorney to litigate, but it also gives both parties the power to create a unique solution to their divorce that best fits the needs of the parties. As a result, the parties have much more control over the potential outcome of their divorce.