Coming to an agreement on a child custody and visitation order can be extremely difficult. It can be hard to weigh out the benefits of our children spending time with the other parent compared to spending time with you. No matter how wonderful the other parent is, it is only natural that someone would believe they are the better parent, and it can be difficult to asses the situation from an unbiased point of view.
This often manifests itself in nitpicking about how the other parent spends their time with the children. Specifically, many parents have trouble knowing that their children have been left in the care of an extended family member or a babysitter, when the children could have been spending time with them instead. A solution for this is to include a right of first option for childcare, also known as a right of first refusal, in your custody and visitation order.
If you have a right of first refusal in your custody and visitation order, then when the other party requires childcare for an extended period of time, they are required to ask you first. The length of time is typically around 4 hours, but the parties can agree to any length of time. So, this wouldn't apply to trips to the grocery store, but it could apply to picking up an extra shift at work. When stepparents are involved, this could also mean that the parent would have to ask the other parent before allowing their spouse to watch the children. This type of arrangement prevents the children from being forced to spend time away from both parents when one is fully available, and can be a good option if you are concerned about these types of long absences of the other parent.
Divorce Petition and Response have been filed, but what comes next?Explaining Preliminary Declaration of Disclosures
During a divorce, once the Petition and the Response have been filed, the natural next question is "What next?" Unless a Request for Order has been filed, there are no court dates set based on a Petition and Response, so without some legal guidance, couples seeking a divorce may not know what to do.
The most common next step is for each party to file their Preliminary Declaration of Disclosures. The purpose of this is to disclose all of your financial information to the other party. While you are married, you have a fiduciary duty to your spouse, so you cannot hide any assets or debts from them. These disclosures typically consist of six parts, as outlined below.
1. Complete a Schedule of Assets and Debts (form FL-142) OR a Property Declaration (form FL-160).
The Schedule of Assets and Debts is the most commonly used form. This essentially lists all of the assets and debts in your possession or in your spouse's possession that you have knowledge of. On the form, you disclose the current value and the debt owed on the asset or debt, as well as the date that the asset or debt was acquired. The date is important, as that can help determine if the asset is community property or separate property. You only have to list the current values on the form, so you don't need to go back and figure out what the value was on the date of separation. That can be determined later. You will also need to attach bank statements, vehicle titles, mortgage statements, and other documents that evidence the numbers listed on your form. You could instead fill out a Property Declaration form, but for this you will need to separate what is community property and what is separate property. This form can be more difficult to fill out.
2. Complete an Income and Expense Declaration (form FL-150)
The Income and Expense Declaration is a form where you can list your average monthly income, your last month's income, and any deductions from your income. You also must disclose your employer's information, your education level, any attorney fees that you may be requesting, and your estimated monthly expenses. You will also need to attach your pay stubs from the last two months of employment. If you are self-employed, you will need to attach either a Schedule C or a Profit and Loss Statement evidencing your income. This form is useful for calculating any required child or spousal support payments that may be ordered.
3. Disclose your tax returns filed during the last two years
Not everyone has equal access to your tax returns, so you need to disclose them on the other party, whether you filed jointly or separately. This provides further access to records of income claimed by both parties.
4. Disclose a statement of all material facts and information regarding valuation of all assets that are community property or in which the community has an interest
Most of these assets will already have been disclosed in the Schedule of Assets and Debts, but you must state to your spouse that the list on the Schedule of Assets and Debts is all of the community assets. If there are additional assets, you would disclose them in this statement.
5. Disclose a statement of all material facts and information regarding obligations for which the community is liable
Similarly to #4, most of these obligations will have been disclosed in the Schedule of Assets and Debts, but you must state that the list on the Schedule of Assets and Debts is complete. If there are additional debts, you must disclose them here.
6. Disclose an accurate and complete written disclosure of any investment opportunity, business opportunity, or other income-producing opportunity presented since the date of separation that results from any investment, significant business, or other income-producing opportunity from the date of marriage to the date of separation.
Typically, there are no such investment opportunities, but you still must disclose a statement informing your spouse that there are no investment or business opportunities. However, if you have been approached with an opportunity that is based on any work or investments from during the marriage, you must disclose them here, even if you declined them.
If you filed the Petition, you have 60 days from when you served your spouse with the Petition to complete these disclosures. If you filed the Response, you have 60 days from when you file your Response to complete the disclosures. The parties can mutually agree to extend these deadlines. Now, this all sounds like a lot of work to do just to get divorced, but it is a lot simpler than this post makes it sound. In essence, you just need to make a list of everything you have and disclose it to the other person. This makes sense, because how can you even begin to settle all the issues when you don't have all of the information. Once these are complete, you should have enough information to determine a fair division of assets and debts, determine child support, and determine spousal support. And if you can agree to child custody and visitation, then you are well on your way to an easy divorce that both sides can agree on.
When you are ready for a divorce, you might be ready to have it completed as soon as possible. Unfortunately, California requires a six-month waiting period before a divorce is finalized. So, while you might both agree things are over, you will still have to wait.
Most divorce proceedings take longer than six months, but if you are able to agree on the legal matters, you could come to an agreement much sooner than that. Still, you will have to wait six months from the date that the responding party is served with the divorce petition until it can be official. You can submit your judgment and get it signed by the court, but the date of termination will be set in the future, likely at the six-month date. California does this to prevent couples who change their mind from having to get re-married. Essentially, the state thinks that a cooling-off period of six months is enough time for both parties to confirm that they want the marriage to end.
Child support and spousal support are two big pieces of many family law cases. Child support helps to balance the spending power of each parent towards the children, while spousal support helps to balance the income the parties were accustomed to during marriage. In both of these calculations, the income of each party is one of the most important factors in determining the amount of support.
So, one might think it would be a great idea to temporarily lower their income to pay less money in support. If you are self-employed, you might take less jobs during the months leading up to the support calculations. If you typically work a lot of overtime, you might hold back until support has been ordered. You might also consider quitting your job or not looking for work until support is in place. While these sound like good strategies, the Court has a way to work around these tactics. The Court may impute an income to you that is different than your actual income. So, by looking at your ability to work and the opportunities available for you to work, the Court may assign you a higher income for the purposes of calculating support. Your work experience, education, and job availability will steer the Court to create your imputed income, which could end up being higher than what your actual income would be. So, it may not actually be wise to try to hide and disguise your income, as the outcome may be worse for you.
Maria E. Crabtree, CFLS