Firm News & Updates

Divorce Apps to Make Your Life Easier

Have you noticed that whatever your needs are these days – there is an app for that!? The world of divorce, custody and co-parenting is no different. These terrific divorce apps will help save you time, lessen your anxiety and possibly curtail your need to incur the expense of a family law lawyer. All in the palm of your hand! For those ready to embrace technology, check out my recommended apps below.

divorce apps that will make your life easier

SupportPay

Hallelujah! An App to keep track of the dirty business of reimbursement requests and payments between you and your co-parent. Over the years, I have seen no end to the consternation (and sometimes litigation) over one parent chasing the other for half the cost of Little League uniforms, summer camp deposits, prescription allergy medication or birthday party gifts. SupportPay is an app that helps parents simplify child support and expense payment with easy tracking, recordkeeping, offsetting and even allows for secure payment for reimbursements within the app! SupportPay also stores a certified record which can be used for court and tax purposes. SupportPay will not take the place of a clear and detailed court order establishing the rights to reimbursement for certain designated expenses. However, SupportPay will implement the order and curtail on-going communication between co-parents and time consuming math. For $14.99 per month (shared), it can save you the frustration of sorting out a pooled bank account or the delay in waiting for reimbursement which may never come. Some of the app features are free. At this time, a 25% discount applies to new customers.

2Houses

2Houses. The name says it all! What a fabulous co-parenting app. 2Houses is a divorce app that helps facilitate communication between separated parents about custody schedules (“household calendar”) which can be helpful if you have a more flexible custody plan which is tinkered with each week or month based upon your or your children’s schedules. The app has an advanced management calendar to help coordinate and keep track of shifts so that everyone is on the same page. It also has a messaging tool so that you can keep your child-related communications with your Ex all in one spot. As an added bonus, 2Houses helps track expense sharing, and includes a journal feature which makes it easy for separated parents to communicate and share pictures and notes. I especially love the “Info Bank” section of the app which helps co-parents use one repository of information about their children such as teacher’s names, current shoe sizes, social security numbers, and the like. For $12.50 monthly (shared), and a 14-day trial membership available, if used to its full potential, this app could be a life-saver.

Divorceify

Divorceify is a divorce app that connects you with professional resources in your area. The service helps people locate professionals all “vetted” by the Divorceify platform such as financial advisers, mediators, support groups, and other services that will ease the divorce process. The app cleverly describes its services as a “divorce GPS” that builds a roadmap to hopefully help point you in the right direction.

Dtour.Life

If you are opting into Collaborative Divorce, this is the app for you. The service makes it simple for divorce attorneys and the people they represent to collaborate online. Dtour.Life creates an online platform for the collection of financial data about the marital estate (Income, Expenses. Assets and Debts), allowing you, your attorney and (most importantly) your forensic neutral involved in the divorce to download and share case data and documents. The app can also sync to bank and credit card accounts to create handy asset and expense reports. Great tool for a simple and amicable divorce.

Our Family Wizard

Our Family Wizard is the gold standard family law app. A pioneer in the industry, this was the first app in widespread use allowing high-conflict parents to communicate regarding child custody issues in a safe and respectful way that creates a permanent record and allows third parties (such as attorneys or even judges) viewing status to those communications. I have seen this app appear in domestic violence restraining orders for mandatory use between co-parents. For somewhat less contentious families, Our Family Wizard still makes shared custody less stressful. Like other similar apps, this one allows shared access to parenting schedules along with expense and payment logs. One unique feature of Our Family Wizard in the “ToneMeter” function. This function lets you identify and flag emotionally charged messages so you can keep communication civil and productive.

It is important to find ways to make the divorce process as cost-effective and stress-free as possible, and these divorce apps can definitely help you do just that. I look forward to feedback on these apps, as well as recommendations from all of the app purveyors about new divorce apps on the horizon.

Frequently Asked Questions about COVID-19 and Divorce

Since the start of this bewildering pandemic, much of “life as we know it” has changed. Our daily routines are very different from what they were just weeks ago, and for many, plans for your personal life and family, including divorce, have been upended. Grappling with the massive upheaval of home quarantine orders, school closures, the new “work from home” paradigm or the unemployment line, has compounded the existing challenges of an ongoing divorce. To further complicate matters, the already burdened court system has stemmed access to emergency proceedings only, and will slowly start to reopen in the coming months – certainly not without a large backlog. The fallout of the Coronavirus on family law matters is impossible to estimate. To address some of the “Frequently Asked Questions” I have been receiving about the impact of COVID-19 on divorce, I have assembled relevant information to help you in these ever changing times.

FAQs about Divorce during COVID-19

Impact of COVID-19 on Divorce

I want to file for a divorce. Do I need an attorney? What about during Covid-19?
Awareness of the Coronavirus pandemic came on abruptly for many of us. The rapid escalation of public health advisories also impacted our court system in California, including in mid-March the indefinite closing of many courthouses to slow the spread of the virus. Traditionally, the vast majority of divorce or “dissolution” filings statewide were done by self-represented litigants for many reasons, including cost and the perception that attorneys will make the case more contentious. To service these divorce filings, self-help centers on site at the courthouses have been a vital part of the access to justice our California court system has provided. During a time when court staff are not available to the public and these self-help centers are temporarily closed, it may be difficult if not impossible to navigate the court system as a “pro per” litigant. Information is not necessarily available online, given how quickly things are changing with the social distancing measures put in place by state and local governments and the unfolding of the proliferation of the virus. If delaying a divorce filing is not possible, the better bet is to retain counsel on a full or limited scope basis. Many family law attorneys offer this service, as well as offer legal advice on a consulting basis.

What do I need to think about before filing for a divorce? Is there a benefit in waiting to file for divorce until things are “back to normal?”
You are well-advised to consult with legal counsel before undertaking a divorce filing, as the filing itself can have many ramifications you should be aware of before the initial Petition is filed and served. Another accessible way to prepare yourself is to review and consider the Automatic Temporary Restraining Orders which are printed on the Family Law Summons (FL-110). These “Standard Family Law Restraining Orders” apply to everyone in California seeking a divorce from a spouse. It is good practice to fully review the paperwork necessary to file for dissolution to make sure you understand what is required – far in advance of actually filing – as you will be bound by certain restrictions which go into effect immediately. Although the words “restraining orders” appear at first blush to involve domestic violence, these do not. They are for the most part financial restraining orders. They will stay in place for the pendency of the divorce case.

The appropriate timing of when to file a divorce Petition is dictated by the individual circumstances of your case. These individual circumstances may be heighted by the situation we are all laboring under – that of the Covid-19 pandemic and the fact that commerce has slowed to a screeching halt as social distancing measures have been implemented. Many people are considering a decline in stock portfolios or the diminished value of real property as one factor to timing. However, in many instances, community assets are divided closest to the time of trial or resolution of the case – meaning, a future date when the valuation of these assets may have greatly changed from today’s value.

Can I make progress on my divorce during the Shelter At Home period? If so how?
The short answer is – yes, in many instances, you can make excellent progress in an on-going matter. In fact, it may be a great time to tackle much of the “administrative” work necessary to complete required financial disclosure forms, as many of the documents you will need are in existing electronic files or available online at the “touch of button” — such as mortgage statements, bank and brokerage statements, and paystubs. Or it may be the time to go through old files in the garage or attic to locate and organize historical records you need to support the claims you are making in the divorce. What better time to document and catalog community property furniture, furnishings, art, and the like than when you are stuck at home day in and day out? At some point, the family photo albums and video collection will need to be duplicated and shared with your co-parent. Why not start now? So many of the tasks that need to be accomplished during the divorce can be while socially distancing.

But what about your family law attorney? Can he or she continue to advance your case while law offices are shuttered to slow the spread? Despite the upheaval and displacement created by the Coronavirus pandemic and the ensuing orders to “Shelter at Home,” many of the family law attorneys I know are continuing to work (at home) during this crisis and to be available for clients via telephone, email and web-based meetings such as FaceTime or Zoom. Your lawyer may be more available to you than ever! Although the transition to 100% home-based work has not been seamless, it has been swift for the legal community. The efficiency of making this transition has been bolstered by the already pervasive use of cloud storage and other supporting technology. Everyone is doing their best to adjust to a new reality, and this includes family law mediators and co-parenting therapists, who are playing a vital role in resolving family law conflicts which have arisen during this uncertain period.

Finances during COVID-19

What if I lost my job and cannot afford to pay support due to Covid-19? Can I stop paying?
A court order is fully enforceable by the court until it is modified by another court order which supersedes the prior court order. The court will not countenance simply ignoring an operative court order (“self-help” is a “no no”) which is why remedies such as contempt are available to the court. Furthermore, unpaid support accrues interest until paid in full.
However, the modification of a child or spousal support order can occur during a divorce or post-divorce (“post Judgment”) based on a “change of circumstance” – meaning the financial circumstances of the parties have changed in a material way since the original order was made. I cannot think of a bigger change in circumstances than a job loss associated with a global virus pandemic which is Covid-19 and the “safer at home” paradigm. So many industries which cannot be conducted by “working from home” have screeched to a halt. Millions upon millions of Americans have lost their jobs as can be seen from the escalation in unparalleled unemployment claims each week. Declining income, in cases were layoffs were delayed in exchange for painful “pay cuts” also rises to the level of a change in circumstance allowing the court to revise the support current order.
The key here, however, is that you must apply to the court for the modification. The application to the court gives the court authority (“jurisdiction”) to modify the support order from the date of filing. Consult with a family law attorney available to help you with the filing if at all possible because it has technical aspects you will not want to overlook. Moreover, local court rules are changing on a weekly basis to provide relief to people by adapting the court process to the courthouse closures associated with Covid-19 which involve relaxing some of the technical requirements to filing and service during this challenging period. Understand that you are in the “same boat” as many other people struggling with joblessness at this time, and I would expect the courts to take into account this unique set of circumstances.

Will I have to pay back any support payments?
If you cannot afford to pay support (or pay it at the same rate) due to Covid-19 job loss, lack of savings or declining income, if you pursue the requisite modification application to the court, the court will have the ability to reach back in time (“retroactively”) and relieve you of support obligations — if such relief is justified based upon your circumstances. The retroactivity issue is key because many courthouses are closed until May or June (likely to be extended), and depending on your circumstances, your application may not get a court date until months after the re-opening (depending on the necessity of your application). Everyone will be fighting to have their matter heard in an already overly congested court system.
Another consideration is that your circumstances may change again before the court hearing and perhaps you have found alternate work by that date. It is your income which the court will review, not necessarily that you have changed jobs into an industry which is operational during the pandemic. The degree to which your overall income has declined from the original order is the key factor. It will be the job of the judge to make these determinations, average certain periods of unemployment (balanced against employment or other government benefits received), were those unemployed periods justified, etc. and set the “arrearages” or amount of past due support owed. From that point, interest will be calculated and a payment plan ordered.

Custody during COVID-19

Do I need to comply with custody orders for exchanges with my child during Covid-19?
The challenge of exchanging children between households for custodial visits during the Coronavirus pandemic when hygiene and health safety protocols may differ between parents and risk of contracting this virus may also differ, may be the MOST frequently asked question addressed by family lawyers during this unprecedented time. The short answer is – yes, you need to comply with court orders because they are court orders. If you believe there is an overriding reason to change or discontinue the custodial exchange and your co-parent does not agree, consult with legal counsel with expertise in family law before resorting to “self-help.” Court orders remain court orders until modified by a superseding court order. Custodial court orders are made (and modified) by a judge based upon a determination of the best interest of the child. Although the courthouses remain “open” to hear matters which involve true “life and death” emergencies, the fact that we are all facing an uncertain and anxiety-producing time in attempting to protect ourselves and our families from contracting the virus is not – by itself – an “emergency” requiring a change in custody. You are strongly advised to review your particular circumstances with an attorney and obtain legal advice about making an application to the court and to determine if there are any mitigation strategies to employ during a time when access to the courts is limited (e.g. Facetime, co-parent mediation, agreements on “make-up” time, etc.). You may consider working virtually with your co-parent and a co-parent therapist/coordinator, as good communication can prove a “lifesaver” in a time like this. You are also advised to act reasonably because it is highly probable that the parents involved in high-conflict co-parenting will be judged down the line for the unreasonable positions asserted with respect to custodial access. As always, put the well-being and safety (emotionally and physically) of your children first.

What changes can I suggest to my co-parent to keep our kids safe with custody exchanges?
Clearly, all of the hygienic measures we are all asked to observe (e.g. routine hand washing, mask wearing outside the home, spraying down of surfaces of food and supplies and social distancing from strangers) become paramount when the children are transitioning between households. You may consider a “closed circle” approach where household members are not socially distanced from each other, but pledge to socially distance from all other people, as well as maintain the hygienic measures noted. If custodial exchanges were conducted at schools (now closed) or in other very public places (i.e. McDonald’s, Starbucks – also now closed) or playgrounds, police stations, and the like, it is critical to select another location that will be safe and hold a positive association for your children (outdoors spaces may be best as sunlight is a natural germicide). The free and easy transition back and forth of cleaning and household supplies, hand sanitizer, etc. will benefit your children. To the extent you elect to make temporary changes in the custodial schedule to assist your children with online “distance learning” (e.g. a “home base” household for Monday – Friday) or “week on, week off” approach, these changes could present benefits for the household with less transitions for the children. Make sure to put those changes in writing (such as email or text) and confirm the changes are temporary on a week by week or month by month basis with an end date. If make-up time for one parent is due as a result of a custodial shift, be reasonable with allowing that parent to select his or her make-up time (“first dibbs”). Supplement custodial contact where possible with online Facetime and Zoom “visits”.

How to Handle Custody and Visitation During Quarantine

Separated and divorced co-parents are finding themselves in unchartered territory during this pandemic. Due to the Coronavirus and quarantines, many find it challenging (or impossible) to follow the agreed-upon or ordered visitation schedule. Safer at Home – but whose home? What do you mean the courts are closed? Nary a family lawyer has not faced hotbed custody issues and panicked clients struggling with custodial transitions in the age of CoVid-19. My hope is that parents will emerge after the precautions have been lifted with a more fortified and resillient co-parenting relationship. To get through the rough patches, I hope my suggestions will generate solutions during this unprecedented time. 

Child custody and visitation during COVID

Communicate

We all know that communication is KEY in any relationship. The first thing to do is communicate with the other parent to discuss possible strategies and adjustments. Online teleconferencing options are a good way for you to talk “face to face”  – and be open about your fears and concerns. Coping with changes to the weekly schedule or adapting to homeschooling will proceed much more smoothly if you both feel supported by each other. I have seen recent trends where parents who could not see “eye to eye” when it comes to the children, band together and face this crisis as a reinforced family unit. For the higher conflict parents among us, separate or joint consultation with the children’s pediatrician or a co-parent therapist can be extremely helpful. Share that information with the other parent as you work toward developing acceptable strategies to problem-solve. I predict that “sweating the small stuff” is for the bygone pre-CoVid era! 

Communicate honestly with your child about why the visitation schedule is changing. Kids have a lot of questions and anxiety about what is happening right now. Explain honestly and factually why it may not be safe to travel right now, as well as what changes are to be made for the time being. The changes are temporary. Children process the concept of time much differently than adults. Reassure your children that their co-parent is a phone or Zoom call away and that things will return to “normal” one day. 

Be Flexible

Both parents will need to be flexible with visits during this time. If required travel is impossible, agree upon adding “make-up” time later this year, perhaps around the holidays, so the other parent can still have their custodial time and will have something to look forward to, which we all desperately need right now. Look at virtual opportunities for the non-custodial parent and child to play games together, chat, video conference, and spend time together while being apart. Maintaining the connection and parent-child bond in innovative ways is your homework. 

If travel is permissible, you may want to have fewer visits, but extend the length. Cutting down on transitions could minimize germ transmission. Rather than spending every weekend with a parent, consider a 1 or 2 week “on” and week “off” approach. Put all temporary changes in writing to ward off miscommunications and an “expiration date” in case the schedule changes need to be revisited. Geography will largely dictate whether visitation is possible or not. Be flexible as you work with the home sheltering guidelines issued by your city or state. Update your co-parent as new directives are issued on a week by week basis. 

Put Your Child First

Let your child share his/her questions and fears as you communicate with the other parent. Does the idea of travel or switching homes make the child anxious? Will the child struggle with keeping up with online classes or schoolwork when they switch homes? If so, what built in safety nets can you and your co-parent implement to curtail academic drift and reassure your child? Is your child concerned about an elderly grandparent that shares the home? Perhaps your child is looking forward to a change of scenery, and visiting the other parent will provide a needed distraction or sense of fun and spontaneity. Proactively take your child’s emotional needs into consideration as you discuss how to handle custody and visitation during quarantine. Having an age-appropriate “say” is very empowering for children.

How to Resolve Disagreements

If you have a written parenting plan or agreement, try your best to stick with it. If you have a court order, know that court orders are fully operational during the quarantine. Document when and why you feel you cannot follow the plan, and conversely, document why you believe the plan can and should be followed and what accommodations or concessions you are willing to make or “trade.” If you need to amend the agreement for the time being and cannot agree to a solution, know that the courts are open for “emergency” proceedings only; therefore – consider bringing the impasse to a third party mediator or private judge who can be empowered to legally modify the parenting plan. A trusted coach, family member, or spiritual leader may also be successful in mediating differences. For legal advice, consult your family law attorney for guidance and direction. 

These are uncertain times. You cannot control how the other parent will respond to a crisis. You can control yourself and your own reaction to others. Understand that this creates a domino effect; therefore, carefully and with compassion manage your own stress. Do your best to confront issues of custody with a calm and level-headed approach. No two ways about it, your co-parenting skills are being put to the test these days. In retrospect, we will all be regarded as the person we showed up as during this pandemic. And that is even more true in the context of the co-parent we chose to be.  

Kickstart Guide to Property Division During a Divorce

During this unprecedented time, the effects of Covid-19 and the home isolation most of us are weathering will put many marriages to the test. Research tells us that the kind of stressors involved in 24/7 togetherness amplify existing cracks or highlight the strengths of our intimate relationships. For those considering separation, becoming acquainted with the framework of property division can only be an asset in the long run. Knowledge is power. 

In the course of a marriage we accumulate many things, ranging from memories to real property to investment accounts. When you get divorced you will take inventory of all this “stuff” and decide how to divide it. While property division during a divorce can be acrimonious, it does not have to be. If divorce may be on your horizon, it is never too early to familiarize yourself with the lay of the land and get organized.

How to divide Property when Divorcing

Become Familiar with the Basics

In California, the community property system dictates how marital property will ultimately be divided at the time of divorce. All property acquired during the marriage is presumed property within the community estate, with few exceptions. Community property can be wide ranging and includes the marital residence, the pension plan(s), the timeshare, the family home movie collection, the royalty stream, both spouse’s vacation pay, and the cherished family boat. I have seen each one of these be a “hot button issue” for couples going through a divorce. If an asset is in the name of one spouse, this will not necessarily preclude the asset from being considered community in nature, even though it is not “jointly owned.”  Because marriage is seen as a partnership, everything acquired by either party during the partnership, including debt, is considered jointly owned and divisible 50/50. California is one of the seven states that have some form of this system of property ownership. The other states are Arizona, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington, and Wisconsin.

Understand the Difference Between Separate and Community Property

If you find yourself with time on your hands and you want to do additional preparation, a great first step is simply to list everything you or your spouse owns of value. As you inventory everything you own, create different lists for separate and community (or joint) property. The legal system in California categorizes your assets into these two categories before division can begin: 

Separate Property

There are a few different ways to accumulate separate property which is not subject to the 50/50 division rule.  Assets owned before marriage are, with few exceptions, separate property. Assets acquired after the date of separation are also separate property. Consult with legal counsel regarding what defines the date of separation in your individual case. Lastly, during the marriage itself, assets can be acquired from non-marital sources which are considered separate property such as bequests, inheritances and gifts.  

Community or Marital Property

As referenced, property that was acquired during the marriage (which could mean earned, bought or even gifted to both of you by a third party) is considered community property. Note that some property could be “mixed” in nature such as a business started before the marriage that one spouses continues to work at during the marriage. Do not forget, labor and efforts by either spouse during a marriage are considered community property. 

Be Honest as You Inventory

It can be a tedious process to gather documentation for every asset (and debt) that needs to be divided. If you chafe at gathering documents for your taxes each year, the process of disclosure during a divorce will be equally, if not more, punishing. We call it “divorce homework” for a good reason. Nobody likes homework, but it is necessary.  The process of dividing property starts with an inventory of everything you own as a couple and as an individual. Accuracy from both spouses will ensure that discussions are made in good faith and statutory disclosure obligations are fulfilled. Willful failure to list community assets can result in surprisingly severe “penalties” including losing 100% of the interest in that asset. The best way to ensure partnership “trust” with your soon-to-be-ex-spouse is to be accurate and complete in your inventory. 

Keep it Civil

Separating marital assets can be emotionally trying. It is not easy to take stock and reduce to a list what may feel like a lifetime of valuables built together. And then let half go. This is a lot to digest  — financially or psychologically. Experienced legal counsel can help you through the process, mediate, provide guidance, and ensure that a fair agreement is reached. Consulting with counsel early in the process will be a benefit. 

Preparing for Child Custody Mediation

Child custody mediation is a process by which you can work together with your co-parent and a neutral mental health professional to develop a parenting plan that is right for your children. Just like Alexander Graham Bell taught us, preparation is the key to success. And success in the context of child custody mediation means you have achieved an outcome that allowed you to avoid court, along with the cost, division and loss of control court can bring. Read on for my top tips to ensure your success in your mediation.

Preparing for Child Custody Mediation

Consult with a Professional before the Mediation

You know your children. You probably have a pretty good idea of the kind of physical custody schedule (sometimes called “timeshare”) you would like to see implemented. However, there are numerous factors you will want to consider, such as developmental stages or the demands of weekday academics or extracurriculars on your children. I would suggest doing your homework and then consulting separately with a therapist who specializes in co-parenting before attending mediation with your Ex. Workshopping your ideas ahead of time with an expert can produce invaluable feedback. People who struggle the most in mediation are the ones who walk in a bit too rigid and uncompromising. Knowing your blindspots ahead of time can help to keep you flexible in achieving the best schedule for your children.

Track the Status Quo

If you and your co-parent are already living separately and sharing custody in some form or fashion, keep track of your current arrangements. A custody journal will help you document dates and events that you wish to include in the discussion, and lend credibility to your position. Plus, memories fade. Keeping contemporaneous notes will serve you well in addressing concerns you may have with timeshare stability, promptness at exchange times, make-up time, etc.

Anticipate Future Areas of Decision-Making

Depending on your circumstances, it could be important to look ahead and develop a plan for how to address potential areas of disagreements, even if you are not having conflict presently. Consider including in your discussion:

  • School and extracurricular activities – how will you handle enrollment in an activity on your custodial time that you did not select?
  • Custody exchanges – should these be at school or another neutral place or curbside?
  • Parent communication – do you need rules and limits on how and when to communicate?
  • Travel and vacations – how will you determine who gets “dibs” on the selection of summer travel dates?
  • Moving – what happens to the custody schedule if one of you needs to move?

Best Practices

Get plenty of rest the night before the mediation. Be well-fed, too. Bring your work schedule and your child’s school and sports calendar. Go into mediation lacking in defensiveness. Present more than one option. Allow the mediator to do her or his magic. Be willing to listen. Know that compromises will be made. Set aside conflicts with your Ex (this is not about you) and focus on making decisions that serve only the best interests of your children. Consult with a family law attorney to know your legal options before and after mediation. Know that achieving a mediated resolution can be painful and protracted, but that it can be well worth the effort in the long run if it keeps you out of court.

Three Unique Facts About Divorce in California

If you are planning to get divorced in California, but know nothing about it — there are a few key facts you will want to consider at the outset. To begin the proceedings, you must meet the mandatory minimum residency requirement. At least one spouse must reside in the state for six or more months and the particular county for three or more months before you can file for divorce. If you qualify and plan to proceed, there are three unique facts about a California divorce that you will want to know.

Three Unique Facts About Divorce in California

Community Property State

California, along with a handful of other Western states, is a Community Property state. This means your marital property is shared on an equal basis, rather than divided in an “equitable” way. Regardless of which spouse earned the money (yes, earnings are marital property, too!), the property will be split 50/50 if no exceptions or carve-outs apply.

This clearcut guideline brings a lot of comfort to the non-earning or lesser-earning spouse. What about the “saving” spouse and the “spendthrift” spouse? Debts, right alongside assets, which are acquired during the marriage also belong to both of you equally — regardless of who incurred them or whose name they are in. If one of you spent earnings on lifestyle and the other pooled resources in a 401K, an equal division is a hard pill to swallow. Yet, the benefits and the responsibilities are shared, as equal management and control of assets is assumed during the marriage.

There are exceptions to nearly every rule, but generally speaking, you can expect to divide most assets in half or trade-off assets (or debts) of equal value with your spouse. Assets that were obtained before you married or after the separation date are considered separate property, and as such will not be divided.

No-Fault State

California is the oldest “no-fault” state when it comes to grounds for divorce, marking its 50 year anniversary this year. Yes, since the 1970s, you have not had to provide the court with a specific reason why you are filing for divorce (beyond “irreconcilable differences”) and you do not need “proof” of wrongdoing to qualify for a divorce, like in some other states. If you can assure the Court that there is no chance of reconciliation, after a six-month mandatory “cooling off” period, you can terminate marital status and return to that of a single person. The no-fault divorce concept applies even if one person wants the divorce and the other one does not. No mutual agreement is required.

Common-Law Marriages

California law does not provide for a Common-Law marriage, like several other states and countries, such as parts of Canada. Common-Law marriages are marriages by appearance and are typically based on the duration of the relationship or cohabitation period. In places that honor Common-Law marriages, the thought is to treat cohabitants as spouses for all intents and purposes so that rights can accrue to benefit both people in an equitable way. In contrast, California requires a ceremonial marriage with a license to prevent what could become an accidental or unwitting marital union and the corresponding rights of property division and spousal support. Because California does not recognize common-law marriages, couples who have been living together for a lengthy period can separate without legal divorce.

Consult with a good family law attorney before proceeding with your divorce and make sure you are well represented to confirm the process will go as smoothly as possible.

Grandparents Rights: Do You Have Rights to Visitation?

As a grandparent, do you have the legal right to visit with your grandchildren? With growing frequency, we are seeing heart-wrenching custody contests between grandparents and parents depicted in movies and television dramas. But what does the law provide? Do different states apply different legal standards? What if one or both parents oppose visitation? While it is best to consult with a family attorney about your specific concerns, there are some general guidelines that may help as you decide whether to pursue visitation as a grandparent.

Grandparents Rights: Do You Have Rights to Visitation?

Do Grandparents Have Visitation Rights?

Yes. But these rights are not absolute. By statute, the court “may” grant reasonable visitation rights to a grandparent. As with any custody case in California, the Court will decide based upon the child’s “best interest” such that each case is very fact-specific. However, if the child’s parents agree that grandparents should not be granted visitation rights, the legal presumption shifts automatically against grandparents.

At that point, they have an extra legal hoop to jump through which is far higher than the “best interest” standard. While it is true that grandparents’ right of visitation is codified into state law, it is a secondary right where the court weighs heavily a parent’s belief about what is best for his or her child.

How Do Grandparents Get Visitation?

Every family and situation is different. Ideally, the grandparents would be able to avoid the courtroom and talk to the parent or parents and arrange visitation on a voluntary basis. If this cannot be achieved, there are two options. In either instance, the court will also apply the “best interest” standard at the outset, which grants the court ultimate discretion to determine what is best for the minor child.

The first route involves the grandparents petitioning the court during an existing family court case involving custody of the children filed by either parent. Or, secondly, the grandparents can file an independent action for visitation, understanding that if the parents are currently married and cohabiting, the case becomes more difficult and the court has very narrow authority to grant visitation – unless one parent formally joins in the petition.

What if a Parent is Deceased?

Grandparents, as well as siblings, have reasonable visitation rights with the children of a deceased parent under a third separate legal framework. Again, the court will consider the “best interest” of the grandchildren in this regard. Additionally, you will want to keep in mind that the amount of time spent with the grandchild prior to the application will be strongly considered by the court.

If the surviving parent is shown to be unfit and a dependency court action is initiated, grandparents may also request custody as well as visitation. However, “unfit” is a very high bar. I am seeing this type of legal challenge dramatized more frequently than ever in such movies as 2017’s “Gifted”, the latest season of “Big Little Lies” or 2019’s “The Art of Racing in the Rain” all of which resulted in custody being ultimately settled with the natural parent.

Laws Vary by State

States vary in setting laws around grandparents’ rights to visitation. Here is a partial list of some of the grandparent visitation laws by state:

The law in this area changes as new case law is made which interprets the statutory framework. As always, consult with a professional family law attorney in your area for the most applicable legal advice germane to your specific concerns.

When a Child Refuses Visitation with a Non-Custodial Parent

Whether by agreement or court order, a visitation schedule alternating the physical timeshare between parents will exist at some point in a divorce. This so-called timeshare calendar is presumed to be in the “best interests” of the children involved. But what happens if a child refuses to cooperate with the schedule the grown-ups have deemed the “best”? Can or should Mom or Dad insist the schedule be followed? How are a child’s “danger signs” flagged in the world of child custody — as opposed to normal adjustment and “growing pains” to having two homes? What can you do to protect yourself and your child?

When a Child Refuses Visitation with a Non-Custodial Parent

Get to the Bottom of the Reasons for Timeshare Resistance

Resistance to the schedule could be caused by any number of reasons. It is key to determine as accurately as possible the underlying (and unstated) reasons the child is struggling against the weekly schedule and wants to spend less time with one parent and more time with the other. In California, the stated policy for timeshare between custodial parents is “frequent” and “continuing,” so that children get the benefit of time spent with both of their parents.

Custody orders are court orders and must be followed by both parents. But these can be changed by the Court if a change is warranted. Therefore, it is critical to assess the resistance and determine the cause.

  • Is a child overly identifying with the custodial parent and afraid of hurting that parent by spending time with the other parent?
  • Has the child grown weary of a stricter, more disciplined household at the other parent’s home?
  • Is the child being left alone in an inappropriate way for the child’s age?
  • Is there a conflict between the parents that is being absorbed by the child such as at the custodial exchange?
  • Is a stressed-out child clinging to the familiar (such as a nanny, a family pet, step-siblings or a stay-at-home parent)?

The physical structure of the “former family home” itself offers great appeal to children of all ages. It often does matter which parent remains in the house after the family separates. Getting to the crux of why the child is resistant will inform parents as to whether a change to the schedule needs to be made. Or whether skilled communication and slight adjustments can sooth the resistant child.

Consider the Age of the Child

A key point of the analysis is the age of the child. In theory, a younger child is easier to cajole into compliance with the timeshare calendar, once the reasons for refusal are known and addressed. Be aware that younger children struggle with more frequent illness and “sick days” or health issues which could be masquerading as timeshare resistance or could, in fact, be somatization (the experience of a health malady which is psychological in nature).

Older children, especially teens, are seen as forming their own identity, which may include a preference to spend more or less time (or fewer overnight stays) with a noncustodial parent — depending on for example the nexus between geographical proximity of Mom’s house/Dad’s house and availability of transportation to key events. Teens have busy schedules!

In California, 14 years old is the magic age to address the Court and express a preference. Older children, depending on their age, maturity and ability to reason are seen as having more autonomy and input on custodial preference, depending on the demands of their own peer circles and extracurricular activities. At some point, children between the ages of 16 – 18 can drive, rendering it impractical to require compliance with a timeshare that does not “work for” them.

Evaluate Safety Concerns

Certainly, if a noncustodial parent’s household is unsafe or unsupervised, or basic necessities are not being provided, immediate attention needs to be paid by the custodial parent. There are times where a child’s refusal to go is directly related to these paramount concerns. Circumstances which pose emotional or physical danger require a custodial parent to step in. Pay attention to the refusing child’s overall well being such as changes in diet, refusal to eat, diminishing performance at school, unwillingness to socialize with friends, changes to his or her demeanor, and nightmares and/or regression (i.e. bedwetting, babytalk). These red flags should be promptly addressed with teachers, pediatricians or a good child psychologist.

Strategies for Addressing the Situation

It can be stressful, both personally and legally, to deal with a non-compliant child. Do your best to be calmly evaluative. Keep a visitation log and document each instance when your child avoids a visit and the reasons why. Include detailed notes about the circumstances surrounding the refusal. Keep an eye on the child’s disposition in multiple environments and times of the day. Barring any safety concerns, communicate with the non-custodial parent as quickly as possible. You owe them the opportunity to speak with the child and collaborate to find solutions.

While you may want to protect your child’s stated feelings and expressed preferences at all costs, keep in mind that custodial orders are legal in nature and must be followed like all other court orders and that contempt of those orders does apply. When in doubt, it is best to contact an attorney or child counselor for advice.

Your Guide to Pet Custody in Divorce

When a marriage ends, everything is divided. But what about the family pets that both spouses want? For most pet owners I know, pets are family. The thought of losing them on top of the other setbacks in a divorce is a heartbreaker. But what if your soon-to-be-ex-spouse feels the same way? Is pet custody something you should consider in your divorce?

Pet Custody in Divorce

Pet Custody and the Law

As shocking as it might seem to animal lovers and families with companion animals, most states consider family pets to be property in a divorce. Your beloved Lucky, Roxy, or Bubbles has the same legal status as your couch, checking account, or 401(k) plan.

In most states, there are no laws governing pet custody and, consequently, decisions are not made based upon the family pet’s best interest. This can create some aggressive tactics between warring spouses that do not ultimately contribute to the cat’s or dog’s welfare. When separating spouses cannot decide who receives the family pet, a judge can order the animal sold and proceeds divided evenly. Fortunately for many pet owners, the law is changing in several states.

New Laws Regarding Pet Custody

Alaska became the first state in the US to recognize pet custody. Effective in January 2017, HB147 expressly requires Courts to address the interests of pets when deciding how to assign ownership. The law explicitly allows for joint ownership of a pet as well. In January 2018, Illinois became the second state to require the Court to take into consideration the well being of a pet when determining custody. Effective January 1, 2019, California amended the Family Code to differentiate companion pets from other tangible assets. This distinction empowers Courts to consider the custody and care of pets in both the short-term and long-term phases of divorce proceedings.

California Family Code Section 2605 allows Courts to provide for the “care” of a companion animal (e.g. food, water, shelter, and veterinary care – treats, long walks and belly rubs are optional) during the divorce, as well as assign the ultimate “sole or joint ownership” between spouses, taking into account the care provided.

What’s in the Pet’s Best Interest?

If you live in a state where pets are viewed as property, you will most likely need to work out a custody arrangement on your own. As hard as it is for either spouse to consider relinquishing time with a pet, both should consider the pet’s best interests first. Which spouse has the time and finances to best care for the animal, assuming “visitations” are allowed with the other spouse? If the pet is older or in poor health, can it weather the challenges of alternating homes on a regular basis?

What is best for you might not be best for your pet in the wake of families who no longer live in the same home. If children are involved who transition between homes, it is worth considering including the family pets when custody exchanges happen so that the children and pets can maintain the consistent relationship to which they are accustomed and maintain the loving support system offered by this arrangement.

How to Prove You Should Have Custody

If you have determined that you should have full custody of your pet, there are things you can do to persuade the judge that the animal should stay with you. Some examples of evidence you can use to make your case include:

  • Ownership or adoption papers that show you are the registered owner.
  • Store receipts to show you bought the pet food, toys, and other items.
  • Vet receipts that prove you took care of the animal’s health and attended appointments.
  • Photos or certificates showing that you took the pet to training classes.
  • Proof that you will be able to house the pet after the divorce in a space that is conducive to what the pet needs.
  • Consistent care for the pet post-separation, including payment of vet care, grooming and day camp.
  • Primary custody of human children (especially those with special needs who are deeply bonded to the family pets) where custody of fur children would be an aid.

Divorce can be hard on everyone, even our companion animals. Although a Hobson’s choice, I have seen many spouses relinquish custody of a family pet to the spouse who ultimately kept the family home in order to avoid the “fight”. In those cases, they will consider bringing a new pet into the family, especially if there are minor children involved.

Until more states change their laws and provide a clear framework to deviate from treating pets as property, you and your former spouse may have to decide between you the best plan for your family pets.

Distinguishing Between Legal Separation & Divorce

Is divorce the only option when a marriage breaks down? Are you leaning toward divorce but want to know if there is a middle ground? Depending on your circumstances, a legal separation may be worth exploring. While offering nearly identical financial protections, a legal separation may provide a few benefits. Let’s take a look at the features of each option so you can consider what path is right for you.

Distinguishing Between Legal Separation & Divorce

Legal Separation

Legal separation keeps the marriage itself intact while dividing property and implementing support orders and custodial orders if you have children. You and your spouse will retain your marital status, but can move to separate homes, maintain separate finances and officially live your own separate lives. With a legal separation, you will still need to go through the traditional legal channels to file the necessary paperwork, complete the financial disclosures and obtain court approval of your legal separation agreement (stipulated judgment). When the process is complete, your financial connections will be severed, but you will remain legally married to your spouse for an indefinite period of time. It should be noted that at any time after the legal separation judgment is entered, either party may file a separate divorce action to terminate the marriage, understanding that the prior orders made in the legal separation judgment cannot be reopened. The key to a legal separation is that both spouses must agree to the arrangement at each phase (pre and post-Judgment).

Divorce

Divorce (or “dissolution” meaning the marital status is dissolved) is the more traditional route where, after a waiting period of six (6) months, property and support orders are entered by the court and returning both spouses to their single status is accomplished simultaneously. The legal and court costs for divorce and legal separation are similar because the processes are nearly identical.

Benefits of Legal Separation

There are personal and financial reasons for a couple to consider a legal separation. For example, if both of you are unsure that you want to officially end your marriage, a legal separation can give you the time needed for counseling or time apart while protecting both of you financially. Also, if your religion prohibits divorce, legal separation can be a good option. If you do not meet the minimum residency requirement for a divorce in California, filing for legal separation allows you to obtain temporary orders until the requirement is met for a divorce filing. For more info on residency requirements, check out May’s blog on commonly asked questions.

A few specific financial benefits are afforded with a legal separation. Health insurance coverage from a spouse’s job with eligibility for legal dependents might be maintained with a legal separation, whereas coverage would be eliminated when the marital status is terminated in a divorce. This was especially important when preexisting conditions prohibited individuals from obtaining health insurance on their own in the past.

You and your spouse can also continue to file taxes jointly, which may offer tax benefits. You also may qualify for retirement-related benefits through your spouse such as a military pension or Social Security derivative benefits which require a marriage of ten (10) years in length. If you have not reached this requirement, a legal separation might help you stay legally married so you can achieve this eligibility.

Benefits of Divorce

If you are certain that you want to end your marriage, and if there are no personal or financial reasons to stay married, then a divorce is the cleanest option. Also, if you plan to remarry in the future, you can only do so after your previous marriage has been terminated. For most couples who separate, they want to sever all ties and effectively “start fresh” such that remaining legally married to their spouse is not so appealing. For most people, ending the relationship means ending the marriage. The majority of people divorcing for the first time will enter into another long term partnership following their divorce so that leaving the pathway clear to a subsequent marriage is desirable and will be favored by the new partner. When you know the marriage is over, saving time and money with a straightforward divorce is likely the best option.

Not all states offer legal separations and the benefits of the process vary by state. For the most current information, contact a lawyer specializing in family law in your state for guidance.