When you and your ex are no longer together, typically an arrangement for child custody and visitation is put into place, whether by agreement or court order. Often, these agreements leave children with one parent primarily, with visitation with the other parent on alternating weekends, in the summer, or on particular days of the week. When things are going smoothly, this is no problem, but more often than not, life is rocky, and visitation arrangements might not make your child happy. The question is, when does the court care?
Well, it depends on what the problem is. The rule of thumb is that the court is open to hearing a child's opinion on their living situation when they are 14 years or older. However, even with these children, the court does not just grant their desires. The court understands that teenagers are emotionally vulnerable and attempts to understand the motivation behind their desires. If they don't want to live with one parent simply because they are too strict, the court might not care as much as compared to if the child expresses that the parent doesn't take care of them adequately.
Even for children younger than 14, the court might care about what they want, but the courts typically want to make parents aware that visitation is not an option. Some parents come to court and say their young child did not want to go to the other parent's house, so they didn't force them to. Well, unfortunately, you have to lay down some parental discipline and force your children to go. Obviously, don't drag them kicking and screaming, but simply caving to your children's desires is not fulfilling the visitation arrangement and teaches your children that time with the other parent is not important.
So, in general, the court does care what your child thinks about visitation arrangements, but only if they are old enough, and only if they have a legitimate reason. In addition, you should make sure your children understand that visitation arrangements are mandatory, not negotiable.
Mediation in Family Law: Understanding California's Requirement for Custody Disputes
If you have children and are headed towards a breakup or divorce, you're probably wondering how the courts decide custody arrangements. While the default arrangement is joint legal and joint physical custody, joint physical custody does not mean "50-50" custody. The courts don't like dictating your children's schedules, and hope that you can come to an agreement. In fact, they want you to agree so much that they force you to meet with a Child Custody Recommending Counselor, also known as a Mediator.You might think that mediation sounds like a good idea, and that there's no harm in trying, but there are a few extra layers to unpack about mediation.
First, if you have a lawyer, they cannot come with you. For some reason, courts think that attorneys will get in the way and prevent people from agreeing to anything. In my experience in family law, that's typically the opposite, as ex-spouses and ex-partners are more likely to bicker about irrelevant issues when their attorney's are not present. This also means that you might be pressured to sign an agreement that you don't understand, so be careful when entering mediation, as you might not like what you agree to.
Second, even if you don't agree on anything, the Mediator will write their recommendation to the judge. Since judges don't like to make decisions about the particulars of custody schedules, they often adopt the Mediator's recommendations. So, while you might not enjoy talking with your ex, it's important to put on a good show for the Mediator, in order to get a more desirable recommendation from them. In this sense, the Mediators serve less like a Mediator and more like a quasi-judge, so it is important to take Mediation very seriously.
There are many flaws with California's system of forced Mediation for custody disputes, but it doesn't seem like the system is changing anytime soon. Thus, it is important to consult with an attorney before you go into mediation, so that you are fully prepared for what is actually going to happen.
The Ten Year Rule: How to determine if your spousal support will have an end date or not.
The concept of spousal support is a controversial one. Many people think that once a marriage is over, both parties should move on with their lives and should not need spousal support. However, that ignores the realities of marital relationships, where oftentimes one spouse gives up a promising career path in order to support the family's needs. There is, however, one big factor that will determine the total amount of spousal support paid, and that is the length of the marriage.
It may seem arbitrary, but California courts have set a length that defines what they call a "marriage of long duration." California Family Code Section 4336 outlines that the court retains indefinite jurisdiction over spousal support for a marriage of long duration unless the parties agree or the court orders that support is terminated. There is also a rebuttable presumption that a marriage lasting ten years is a marriage of long duration.
In practice, this means that if your marriage lasts ten years, the court will typically retain jurisdiction over spousal support indefinitely, and unless you show the court that the parties are self-sufficient and not in need of support, your spouse could receive support from you for the rest of your lives. However, if you marriage lasts less than ten years, the court will typically only award spousal support for a duration that is half the length of the marriage. So, an eight year marriage would likely result in four years of spousal support, whereas a ten year marriage can create indefinite spousal support. Thus, this small difference in the length of your marriage can have a huge effect on your wallet.
Why your custody battle is not the Super Bowl: nobody walks away feeling like a winner
Many people equate a courtroom battle to a sporting event like the Super Bowl. Two sides enter and one side triumphs over the other. While that may be true in criminal cases or personal injury lawsuits, it is rarely true in family law - especially when child custody is involved.
Nobody wins a child custody battle. Unless both sides agree on how to split time with the children, it is unlikely that either side will have truly gotten what they wanted. And if that is the case, you shouldn't be in court. In the rare cases where one side gets everything they asked the court for, they still don't feel like a winner. If they fought to decrease the other parent's visitation, I'm sure they would prefer that the other parent was a better parent who deserved more visitation. If they fought to increase their own visitation, it's likely that they still feel like they should have more visitation. In most cases though, neither side ends up getting what they want. The two sides might come up with a compromise and make an agreement. Or, the court might make the compromise for them. Either way, oftentimes both sides walk away from a custody battle feeling like they lost - because they both didn't get everything they asked for.
Because of this, it is important to keep perspective on what parts of your requests are most important to you. Since you know you're going to likely walk away as a loser, it makes sense to focus on trying to win the most important battles.
The basics of community property teach you that all income earned in marriage belongs to the community unless it is an inheritance or a gift. These gifts and inheritances are considered your separate property, even if they are received during the marriage. But, some gifts might not actually count as your separate property.
California also has rules about "transmutations," which are contracts between spouses to change the character of some property. In order to change community property into one spouse's separate property, there needs to be a signed writing clearly evidencing the intent to change the character of the property. So, when your spouse buys you a car as gift for your birthday, writes you a note saying "I gift you a car. Happy Birthday," and signs the note, the car is still community property, because there was not clear intent to change the character of the property.
So, unless you meet the qualifications for a transmutation, a gift between spouses during marriage is unfortunately, not considered a gift for the purposes of characterizing property.
If preponderance of the evidence is good enough for a Domestic Violence Restraining Order, it should be enough for the court of public opinion too: Understanding legal standards following the #metoo movement
As the #metoo movement continues to make headlines and survivors throughout the country continue to speak up, many people are expressing concerns over taking allegations as fact. In addition to expressing these concerns, many people are claiming that no crimes have been committed and that the alleged perpetrators - Harvey Weinstein, Kevin Spacey, Adam Venit, and many others - are still "innocent until proven guilty" and that they have not been shown to be "guilty beyond a reasonable doubt."
While those statements are true, they confuse the issue. Guilt beyond a reasonable doubt is the standard used in criminal courts in the United States. However, when it comes to civil liability, the standard is often "by a preponderance of the evidence," essentially meaning "more likely than not." In fact, this standard is applied to the issuance of Domestic Violence Restraining Orders (DVRO). Much of the accused behavior would be grounds for a survivor to obtain a DVRO, but that remedy was not pursued (likely for the same reasons that the survivors remained silent for all these years). So, to infer that the behavior of these men would not subject them to any court liability is inaccurate and does a disservice to survivors who may now be further silenced for not thinking they can do anything.
If the standard to obtain a DVRO is essentially "more likely than not," then there shouldn't be any problem with employers or the general public making their decisions based on a "more likely than not" standard - essentially using their own judgment. In addition, if you are a survivor of sexual harassment or any other abusive behavior and are in fear of your safety, don't be discouraged by others, and consider seeking a Domestic Violence Restraining Order.
When going through the divorce process, many people dream about airing their spouse's dirty laundry in court. Similarly, some people worry they cannot get a divorce because they don't have "proof" of their spouse's poor behavior. In the end, however, it doesn't matter at all, as California is a "no fault" state when it comes to divorce. California was actually the first state to become a no-fault state back in 1970.
Essentially, in California and many other states, if you want a divorce, you should be able to get one. Thus, any discussion about a spouse's bad behavior is likely irrelevant. While it could become relevant when children are involved or when their bad behavior affected the community finances, activities that simply harmed the relationship would not really have a place in a California court during a divorce proceeding.
So, if you were worried about your lack of "proof" for a divorce, there's no need to worry. But unfortunately, if you were dreaming about proving that your spouse is a rotten person, you'll likely have to rely on the court of public approval instead.
The Basics of California Community Property: What Marriage Means for Your Finances
While lawyers often get bogged down in the details of family law, it is easy to forget that the concept of community property is foreign to many people. A lot of people see a marriage as a symbol of their love and commitment that might come with a few tax benefits, but in reality, it is a much bigger financial commitment than many people are aware of.
When you get married in California, you have created a "community" and both members of the community own everything equally. All property received by members of that community belong to the community and all debts incurred by members of that community are owed by the community. The only things that stay separate are 1) what you had before you joined the "community", 2) what you receive after you leave the "community", and 3) what you receive as a gift, inheritance, or bequest.
So, while you might think that because you have operated separate bank accounts and separated your billing, it doesn't matter when you get divorced. Every asset and debt incurred by the community is equally yours and equally theirs, unless you have a valid prenuptial or postnuptial agreement saying otherwise.
Thus, when you get married in California, don't take the financial aspect of the marriage lightly. Get your ducks in a row and educate yourself about what is in store for you, so that you can enter your marriage in a positive, informed mindset. Maybe even consider getting a prenup to better delineate whose property belongs to who.
With the holidays behind us, engagement season has come to a close. Many happy couples are enjoying their newly-engaged life and planning for weddings in the near or distant future. And while it might not be the most romantic thing to do, it might be a good time to start working on a prenup.
Prenups have a lot of negative misconceptions, as newly engaged couples don't want to be thinking about divorce. But the reality is that many of these happy marriages end in divorce and outlining your assets and wishes before you get married can make things a lot easier in the future. Further, it can have benefits beyond a potential divorce, as it can help you have a clearer picture of your joint finances as you enter into a partnership with your soon-to-be spouse.
Despite what you might think, a prenup isn't really a "divorce plan." Instead, a prenup outlines who owns what heading into the marriage, and how future assets will be classified. If you have a car, a house, a large sum of money, or any other valuable assets, it would be worthwhile to make those lines clear on your prenup, so that when you get married, you don't have to worry so much about keeping things separate.
In addition, ironing out details regarding finances before you get married will give you a resolution that is fair for all. Since you're about to get married, you probably like each other, and aren't looking to screw each other over. Thus, both of you will be more reasonable in deciding how to split things later.
To add to all of that, you are about to get married, so learning about each other's finances and figuring out your life plan is beneficial for your future as a couple. You should be able to have open and honest conversations about finances in order to make your marriage work, and starting before you get married can help set you on the right path. After all. financial strain is one of the leading causes of divorce, so being open and honest from the beginning is crucial.
Finally, it is true, having a prenup will help make a potential divorce easier. Some people say that's a reason not to do it, but if you think practically, this could save you a lot of stress. Simply having a prenup isn't going to make you want a divorce, but it could help you avoid a long, drawn-out divorce that could have negative consequences for any children you might have or on your emotional well-being. So, while you are happy and in love, get a prenup and make the future easier on yourself.
While in typical lawsuits, you need to be able to locate and serve the other party in order to initiate proceedings, there is another way to satisfy service for a divorce in California. If your spouse abandoned you and you cannot reasonably locate them, you can request for the court to complete service by publication in a newspaper in the area you believe your spouse is located. In order to do so, you must convince the court that you took considerable steps to locate your spouse. This could include hiring a process server, calling your spouse's family and friends, and running internet searches. Once the court approves your request, you must publish the petition and summons in a newspaper in the area you believe your spouse is located for four weeks. After 28 days, the 30-day clock for your spouse to respond begins, and if they don't respond within those 30 days, you can request a default divorce with the court. So, if your spouse has abandoned you and you are worried about the difficulty of getting a divorce, take some comfort in knowing it might be easier than you think!
Maria E. Crabtree, CFLS