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Whose Fault Is It Anyway?
Divorce Recovery After the Cheating Avoiding Financial Landmines Divorce FAQs Your Divorce Art and Stories FREE! www.blogsondivorce.com • www.facebook.com/divorcemagazine • www.twitter.com/divorcemagazine contents... feature stories
3 Whose Fault Is It Anyway? A more successful divorce is possible if you focus on the Big Picture and less on winning battles.
5 After the Cheating Reworking and rebuilding a relationship after infidelity isn’t easy, but neither is dissolving one. tips, advice and insights for a successful divorce
8 Common Divorce Questions Local professionals answering frequently asked questions.
18 Divorce Recovery Recovering from divorce is like climbing a mountain — but the rewards at the end of the climb are worth it!
20 Steering Clear of Financial Landmines Understanding the financial and tax implications of your options is the foundation for a settlement that lasts and allows you to thrive after divorce.
23 Understanding the Divorce Process A guide to the legal process of divorce.
26 How to Work with Your Divorce Lawyer Tips for keeping your legal fees down and getting the best possible outcome.
28 Popular Myths about Shared Parenting This article will unravel some common myths about shared parenting in order to help those parents get past such objections.
30 FREE TeleSeminars/Your Divorce Community featurestory
A more successful divorce is possible if you focus on the Big Picture and less on winning battles. Whose Fault Is It Anyway?
By M. Marcy Jones, J.D.
heories on the value of having Ta fault vs. a no-fault divorce abound. It’s not my intention to weigh in on this controversy, but since I get so many questions from clients about this on a regular basis, I think it’s impor- tant to at least address the issue. Every time I meet with a new client, these are the comments I most often hear when the question of fault comes up: “He’s the one having the affair! Why • do I have to suffer?” “She just up and left me. I can’t let • her get away with that.” “I didn’t do anything wrong. Why • should I have to leave my home?” “I want to file on the grounds of • adultery and take him/her to the cleaners!”
Although many states no longer have divorces based on fault grounds, there are states in which you still can get a
www.DivorceMag.com/CA | 3 divorce on a fault ground — which usu- using marital monies inappropriately, issues of addiction, abuse, or mental ill- ally includes adultery, cruelty, desertion, and the evidence is obvious, overwhelm- ness. Once they take time to reflect on or incarceration for more than a year. ing, and flagrant. But those are not this, most clients acknowledge that this the norm. is true for them and see the reality of the I practice in an area where people “Myth of Winning.” can be divorced on a fault ground or The Norm, and What Judges Do they can get a no-fault divorce based on If a Marriage is Over, it’s Over living separately for a specified period The norm is that a marriage has bro- of time, depending on whether or not ken down, one spouse or the other has an This may sound direct and blunt, and they have minor children. In my area, affair or moves out, and then pursues a it is, but it’s also the truth. If a marriage is if you can prove adultery, then you can divorce. The norm is that if fault becomes over, it’s over. You cannot make someone get a final divorce immediately, or when- an issue, the case becomes one of “he stay in a relationship against his or her ever you can get before a judge to make said/she said,” meaning both parties will. Furthermore, if a marriage is not your case, which is seldom anything are hurling allegations of fault against working, it is seldom just one person’s but immediate. the other, to the point where the case fault.
Learning how to end your marriage in a civilized way so you and your family not only survive the process, but thrive, is vitally important. The benefit to you and your family is immeasurable.
The Myth of Winning becomes so mucked up the judge has no Learning to be accountable for your idea whom to believe. role in what happened in the marriage The real question for you is whether goes a long way toward ending the fault makes a difference in your case. What do judges do when there isn’t marriage in a more civilized way, and Does it matter to a judge whether your enough evidence to support either side’s also toward helping you to recover and spouse committed adultery, or left you, or story and they can’t figure out whom to to move forward in a healthy and bal- was cruel to you? This is what I call the believe? They punt. They dismiss all fault anced manner. “Myth of Winning.” grounds alleged by both sides and pro- ceed to decide the rest of the case. You Learning how to end your marriage in First of all, it is not easy to prove are back to square one. You have gained a civilized way so you and your family any of these grounds. If you are able to nothing, you’ve likely expended tremen- not only survive the process, but thrive, prove your spouse’s fault in court and dous financial and emotional resources, is vitally important. The benefit to you the judge does find your spouse at fault, and have done tremendous damage in and your family is immeasurable. what does that get you? Will he or she be the process. punished, and will you get a better deal The Big Picture in the end? Do you really win anything? Unless you have some documented The answer depends on your judge and evidence that could prove a fault ground, Now, the “Big Picture.” Think about your jurisdiction. it is a waste of time and money to go what’s important to you. And by this I down that road. The truth is there is mean what’s really, really, really impor- In most jurisdictions, the trend is toward almost nothing to be gained by claiming tant? As difficult as it may be for you less and less emphasis on fault. Even when fault, and a great deal to lose in terms right now, do everything within your a judge finds fault, it’s usually just one of of time, money, and stress. Instead, get power to answer these questions from ten or more factors that are considered back to the “Big Picture” of what you your highest and best self and not from when dividing the marital property, award- want your life to look like when the the place of emotional pain and present ing spousal support, or determining cus- divorce is over, and to keep your focus on fear. You can do it. It’s called getting the tody. That should give you an idea of that picture. “Big Picture” for your life. These are how much emphasis a judge gives to the challenging questions, and how you bad behavior of your spouse — about 10 The truth is that if there is a provable answer them can change the way your percent overall. Not great odds. fault ground, there was already a break- divorce goes. down in the marriage. If the marriage Of course, there are extreme cases, were stable, honest, and committed, the • What do you want your life to look where one spouse may be having an breakdown would not have occurred. like when your divorce is over? affair, or a number of affairs, and/or This is generally true unless there are .../CONTINUED ON PAGE 33
4 | www.DivorceMag.com/CA featurestory After the Cheating Reworking and rebuilding a relationship after infidelity is not easy, but neither is dissolving one.
By Sheri Meyers, Psy.D
“What am I supposed to do? I have a constant pain in my gut. I can’t even look at my husband without get- ting nauseous or crying. Do I continue to cook his meals? Sleep with him? I’m thinking I want to separate. I don’t want a divorce, but I am ambivalent about staying and opening my heart to him again. Is there hope?”
ES, there is hope! Most couples I have worked • Rather than making a hasty, reactive decision based on with who have successfully survived and thrived feelings of hurt, revenge, shock or abandonment, you are after an affair began the healing process with an each willing to let the dust settle before making major life Yovershadowing sense of ambivalence. Surviving infidelity is a decisions. profound opportunity to transform the damaged dynamics that • You both want to commit to work through the relationship led to the affair and to build a stronger, more secure and lov- and individual issues that caused the infidelity, and not call ingly conscious relationship together. it quits with each other. Can Your Relationship be Salvaged? What You Must do as a Couple to Salvage Your Relationship Let’s make sure we are on the same page: • You have a lot invested in your primary relationship; just For the two of you to work on and salvage this relationship, chucking it is not your first choice. there have to be two people willing to do that. “Mutual
www.DivorceMag.com/CA | 5
THIS IS NON-NEGOTIABLE: they are. What pre-existing problems, In order to salvage a relationship after an affair, behaviors and attitudes led to the affair happening? Without identifying why the the cheating partner has to give up the lover or affair happened, you’re greatly increasing whatever the act has been, whether it be the Internet, the risk that there will be a repeat per- the physical affair, or an emotional affair. formance in the future. To objectively identify what went wrong, you have to both stop blaming the betrayer’s action as Commitment” to the process of healing Keep saying over and over, we will get the cause of your unhappiness and each is the foundational bedrock of successful through this” to yourself and your partner. recognize the parts you played in the “Relationship Rehab” and healing. It is a affair happening in the first place. promise to continue investing in the rela- For the Betrayed Partner tionship despite the hurt, the pain, the TOGETHER, as a team, you can disappointment and yes, even the betray- This is an opportunity to rediscover FACE the weaknesses and change the al. It’s about remembering the GOOD your needs, desires and VOICE. In order temperature, intimacy, and emotional cli- of the past, the GOOD in each other, and to begin the process of healing and mate between you. Begin to take concrete holding onto the big picture and rela- rebuilding your relationship with your steps to strengthen that relationship and tionship vision of what you want to create unfaithful partner, you have to re-channel see what develops. Put your cards on the together from this moment forward. your energy and focus from what has table. Get the real issues and associated happened to you, how bad you feel, and feelings out in the open where they can For the Unfaithful Partner how betrayed you are, to spending time be addressed, analyzed, discussed, and honestly looking at: worked through. Be prepared — this will be a long • “What is it that I want?” • road. It is important for you to understand “Who am I now that this has This ar cle was adapted by Divorce the pain you’ve caused and the damage happened?” Magazine with permission from the • your affair has created. Be empathetic. “What are my needs in this relation- book Cha ng or Chea ng: How to Your partner is probably going through ship?” Detect Infidelity, Rebuild Love, and • post-traumatic stress; feeling shocked, “What kind of relationship do I want Affair-Proof Your Rela onship, © confused, angry, hurt and highly sensitive. to have?” 2012 Sheri Meyers, Psy. D. You have to be patient as your partner moves through their grief. Be ready to There is no status quo anymore about continually apologize, ask for forgiveness what kind of relationship you want. Sheri Meyers, Psy. and say, “I’m sorry I hurt you” — once is Challenge the old rules, roles, and reasons D, is a licensed Mar- not enough. for being together. This is a new begin- riage and Family Thera- ning. What are you willing to give to cre- pist in Los Angeles, In order to heal your relationship with ate the relationship you want? You have CA, and is among the your partner, you will have to stand strong to be willing to MOVE ON from the pain, national media’s most in your conviction that you want to make heal the wounds of betrayal and start the frequently quoted and your relationship work, no matter what. process of forgiveness. interviewed relationship, Are you really ready? infidelity and life transition experts. For a Are You Really Ready to Heal free chapter from Chatting or Cheating, • Have you ended your affair? and Rebuild? helpful videos and additional articles, • Have you figured out WHY you had please visit www.chattingorcheating.com. the affair(s)? Underneath all this chaos... • Do you truly take responsibility and • Do you still love your partner? deeply regret your deception and be- • Do you want to forgive your partner trayal and sincerely want to make and build a better relationship? More Related Articles: amends? • Have you explored your options (i.e. • Frequently Asked Questions about • Has your apology been given, be- staying or choosing to leave), and Infidelity lieved and accepted? how each would affect your life? www.divorcemag.com/articles/ • Are you willing to do whatever it • Have you decided to stay for the right Infidelity/infidelityfaqs.html. takes to earn your partner’s trust back reasons? • Six Types of Cheaters and rebuild your relationship? • Have you told your truth, shared your www.divorcemag.com/articles/ • Are you ready to be faithful? feelings, cleared the air yet? Infidelity/six-types-of-cheaters.html. • The Emotional Consequences of Infi- The more you hold onto the vision For Both Partners delity and its Impact on Divorce and commitment and show up with www.divorcemag.com/articles/ genuine LOVE each day, the quicker the There are reasons the affair happened, Infidelity/impact-on-divorce.html. relationship will calm down and feel safer. and NOW is the time to find out what
www.DivorceMag.com/CA | 7 Common Divorce Questions
Answers to some of the more frequently asked questions about the divorce process in California
may not be entered unless one spouse expressly made non-modifiable in LEGAL ISSUES has been a resident of California for writing signed by the parties — is also six months and of the county in which modifiable, the earnings of a new mate or “What are the grounds for divorce in the petition is filed for three months. significant other cannot be used to calcu- California and the residency require- • For the purpose of a petition for late child support except in extraordinary ments?” the dissolution of marriage, the hus- circumstances. In no event can you ever band and the wife may each have stop paying child support until the order Donald Schweitzer, a family lawyer separate residences depending upon provides — or the child becomes an adult in Pasadena, answers: proof of the fact and not upon legal or dies. The only way you can change presumptions. child support is to go to court and have In California, spouses who wish to end the court order a modification. their marriage must meet one of the two “Is it possible to change a court order legal grounds for divorce. The first ground or judgment? My ex-wife recently mar- The income of a new spouse is rele- is irreconcilable differences, and the sec- ried a very wealthy man, and I’d like to vant to a spousal support modification. ond ground is incurable insanity. If the stop making child and spousal support Further, except in very unusual circum- spouses meet these grounds, they may payments.” stances, a spouse’s remarriage terminates continue forth with the di-vorce process. the obligation to pay spousal support. Brian Saylin, a family lawyer and That should be part of the terms of the Spouses who wish to divorce must appellate lawyer in Orange County, order. Indeed, Family Code, Section make sure that they meet state-mandated answers: 4337, provides that even if not included residency requirements before they be- in the judgment, spousal support would gin the divorce process. In the state of While child support orders are always still terminate upon remarriage unless California: modifiable upon a change of circum- there is an agreement in writing providing • A judgment of dissolution of marriage stances, and spousal support — unless that it would not so terminate.
8 | www.DivorceMag.com/CA The Law Offices of Burch & Coulston, L.L.P. Dedicated to Getting You the Results You Want
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A SPECIAL A DVERTISING F EATURE www.DivorceMag.com/CA | 9 Note that property division is not mod- Notwithstanding whether a bifurcation If the personal information shared on ifiable. The only options are to attempt to of marital status has been completed in a the internet is information that wouldn’t vacate the order under specific grounds case, there are several things that a con- bother you if you read it in a Court docu- set forth in the codes, or to successfully cerned litigant may want to do to ensure ment, then you likely have nothing to wor- appeal the order. that the spouse they are divorcing will ry about. However, if you are like the not inherit any more than is necessary. majority of the users on these social net- “My spouse and I were in the process working sites, the thought of where the of a divorce and he died unexpectedly. With real estate being valued as high information you post online could end up What happens now?” as it is in California, probably one of the likely hasn’t occurred to you. most important things to consider is sev- Robin C. Huggins, a family lawyer in ering any joint tenancies to properties. As attorneys, we look to sites like Orange County, answers: Holding property as joint tenants allows Facebook as a source of information, as for the surviving spouse to receive the well as a cause for concern. I will advise I’m sorry to hear about your loss. Even decedent’s entire property interest without my clients not to post messages or during a divorce couples will still often probate. By severing the joint tenancy, photos on Facebook that could put them maintain a strong bond. So what hap- the parties will no longer hold title as in a compromising position in their disso- pens to a divorce action and property joint tenants, but rather as tenants in com- lution action. All too often situations arise if one party dies during a dissolution mon. Each party will then be permitted where one party posts pictures of them- proceeding? The answer depends upon to bequeath their ownership interest to selves engaged in illicit or illegal activity, several things: someone else of their choosing. This can or with a new boyfriend or girlfriend, and • Did the other party cause the death? be a double-edged sword, however, before they know it those pictures are • Was the marital status terminated because no one knows whether they will before the Court as evidence in their early by bifurcation? outlive their spouse. divorce. This is certainly the type of evi- dence that could be used in a divorce, For purposes of this faq, I am going Another important consideration is especially if custody is in issue. to assume that the death is a result of creating a “divorce will.” Although the accidental or natural causes, not crimi- back page of a California Family Law A 2010 survey by the American Acad- nally expedited. Summons contains automatic restraining emy of Matrimonial Lawyers found that orders (“ATROS”), the ATROS do not four out of five lawyers reported an in- During a divorce proceeding, either prevent either party from creating a new creasing number of divorce cases citing party has the right to ask the court to ter- will and a new unfunded trust. The new evidence derived from social networking minate the marital status before the other will enables a party to decide an alternate sites in the past five years, with Facebook issues are finalized. With the current inheritance plan other than their divorcing being the leader. This includes not just California budget cuts, a typical divorce spouse. I recommend that parties make evidence of infidelity, but also evidence in California is taking, on average, 1½ the effort to do such while their divorce is that could be used in determining child to 2 years to finalize. This being the case, pending, “just in case.” custody, such as in a case where a parent a party may wish to remarry before then, may deny using illicit drugs but then or may just want the emotional closure “I’ve shared a lot of personal infor- makes drug related posts on their that comes with being pronounced a sin- mation on the internet and I’m won- Facebook page. gle person again. By completing a bifur- dering if I need to do something about cation of marital status, the parties’ marital that given the fact I’m going through a The information you post online can status is dissolved early. contentious divorce?” also be used to contradict statements that you have made in Court or under oath. If a party’s death occurs after their Matthew Skarin, a family lawyer in If you post any contradictory statements marital status is dissolved, then the family Los Angeles, answers: online, you can bet that your estranged court maintains jurisdiction over the spouse will be one of the first to know assets, and the decedent’s personal repre- The internet is a virtually limitless about it. The best advice for people sentative steps into the shoes of the source of information that can be used who are going through a divorce is to decedent (figuratively speaking), and con- for either good or malicious purposes. close down their social networking sites tinues to process the property division. The immense popularity of Facebook, and refrain from posting any personal Twitter, Myspace, LinkedIn, and other information or opinions online. This is If a party’s death occurs before their social networking sites has had conse- especially true if the information posted marital status is dissolved, then the prop- quences that few people may have online is incriminating or could be used erty passes according to intestate succes- thought about when those sites originally against you in your divorce. While this sion or other governing estate plan, debuted. One of these consequences is advice may not be easy for some of those including survivorship and community the opportunities that they present for that are more entrenched in the social net- property rights. The family court loses parties in a divorce proceeding, and their working community, it is something that jurisdiction over the property which now attorneys, to gather evidence against the everyone should think about, especially must be adjudicated by the probate court. opposing party. when it is all too common for one to write
10 | www.DivorceMag.com/CA out their unadulterated thoughts, push the send button, and think about it later. Creating Successful Solutions FINANCIAL ISSUES Through Mediation Save Money • Reduce Stress • Keep Your Privacy “If your ex-spouse fails to pay for debts he/she acquired while you were mar- ried, can his/her creditors come after With 26 years of experience as an attorney, mediator, author and professor, you for payment?” Mari will guide you and your spouse to create successful, peaceful solutions to challenging issues. Your finances and confidential information will be kept outside Steve Mindel, a family lawyer in Los the public records. You’ll retain control over your life decisions instead Angeles, answers: of delegating the power to the court to decide who should “win”. A Private Safe Haven to Settle Your Divorce In general, virtually all debts acquired You’ll avoid soaring litigation costs, unnecessary stress, while married by either spouse are and embarrassing public disclosures with attorney Mari deemed community-property debts, so a Frank’s unique “solutioneering” process. Mari will creditor can seek payment from either empower you with legal knowledge and problem-solving spouse for the entire amount of the debt. skills to make informed decisions. You’ll smoothly resolve financial, custody and support issues without a People find themselves in this frus- battle. She’ll facilitate your private discussions to attain a trating predicament all the time when fair, economical, and mutually satisfying settlement to they receive letters or phone calls from achieve security and peace of mind. creditors after their ex-spouses fail to pay debts. The innocent and non-suspecting (949) 364-1511 spouses’ credit becomes severely dam- 28202 Cabot Road, Suite 300 aged, and they find themselves awash in Laguna Niguel, CA 92677 • • an endless sea of paperwork. They try to Attorney Mediator Professor [email protected] Privacy Expert • Radio Host www.MariFrank.com, www.ConflictHealing.com settle the dispute but generally end up paying a large amount of money to the creditor with no hope of recovery from the deadbeat ex-spouses.
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There are a number of issues that affect your rights in this situation, such as your A Unique Combination of Skills You Need date of separation, the final allocation of Certified Divorce Financial Analyst (CDFA™) assets and debts, reimbursement for Collaborative Divorce, Mediation, Litigation amounts paid, what constitutes community Business Valuation and Taxation Services property debt vs. separate property debt, and many more. If you are concerned Affordable Fees and Quality Results about these issues, you should review the Cathleen Collinsworth governing provisions found in California Authentic Communication and Personal Service CDFA™, BVAL Family Code, Section 900 et seq. and con- Setting the Standard for Integrity tact a certified family law specialist to 1-888-679-8940 help guide you through the process. [email protected] Primary Office: Satellite Office: www.cccdfa.com “I’m not certain my lawyer has a good 4000 Barranca Parkway 1180 Olympic Drive handle on the financial aspects of my Suite 250 Suite 108 10% discount for divorce. My spouse owns a business Irvine, CA 92604 Corona, CA 92881 Divorce Magazine and has property; I’m not convinced (949) 262-3692 (951) 679-8940 readers I’m getting my fair share. What should I do?” A Non CPA Firm
www.DivorceMag.com/CA | 11 Mari Frank, a family and collaborative membership, meals, etc.) which need to time that any report will serve as an advi- lawyer and mediator in Orange County, be added to the actual salary taken. sory opinion. This gives you a little lee- answers: way to negotiate, and if you fail to agree, In order to minimize the costs and it provides a strong leverage for the court Since your spouse owns a business stress of using experts in a divorce, you to make a determination. Using a neutral and has property, it is critical to employ would save marital assets and decrease professional could save you thousands a forensic accountant (CPA) who has the conflict if you and your spouse used of dollars and hundreds of hours of stress extensive family law experience for the neutral experts in mediation, or if your and court time. business, as well as a certified real estate attorneys can help both spouses to agree appraiser since there is real property to use one neutral expert for each valuation “Can I make my spouse sign a joint involved. Your attorney should be able (one certified appraiser or forensic tax return if we divorce?” to recommend qualified experts. If you accountant). You will need to make it clear and your spouse each hire your own to the agreed-upon evaluator that he/she is Tom Kendall, a family lawyer in experts, there will be great expense and not representing either side, but is to meet Claremont, answers: time used up. with both of you at once, hear your issues and concerns, and make a fair analysis This is a tricky question, because the Even if your attorney has dealt with based on objective standards which are answer will mislead you. The answer is business valuations before, and you are approved by the court in your jurisdiction. that as to a Federal Return, absolute- concerned about spending money, you Both of you should feel comfortable with ly not and as to a California State Re-turn, need to have an expert in the field to ana- your expert. If one or the other party pays probably not. So the answer is no, neither lyze your marital portion of the business for the expert’s services, it should be clear you nor the judge can make them do that. including good will. He/she must deter- in writing to all experts that the report is But you are asking the wrong question. mine a cash flow analysis to help you to give a non-biased evaluation. The question should be what is the way we find out your spouse’s true monthly can send the least amount of tax to the income in case child and/or spousal You are always advised to get inde- government. Once you, your CPA and your support are at issue. When a person pendent advice with the accountant of attorneys know that, you need to try to file owns his/her own business, there are your choice to review any report. You the return(s) in the way that is most advan- many perks (car payments, country club and your spouse should agree ahead of tageous to both of you. Usually, whatever
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12 | www.DivorceMag.com/CA tax is saved, is split equally in some man- ner. In most cases the parties agree through the attorneys to just split the return.
If the other side wants to cut off their nose to spite their face (or cut your nose off to spite your face) then try to get that to the court’s attention and hope that the court will at least rule in your favor on other issues.
“I am concerned that my income may be reduced significantly in a few months, and I am about to sign my divorce settlement. What can I do? I don’t want to lock into a support pay- ment that I cannot afford?”
John Gilligan, a family lawyer in Long Beach, answers:
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www.DivorceMag.com/CA | 13 Family Lawyers for your Family
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A SPECIAL A DVERTISING F EATURE
14 | www.DivorceMag.com/CA .../CONTINUED FROM PAGE 13 a written Letter of Authorization or Substitute Form from you, directing them YOUR DISTINCT ADVANTAGE to transfer the percentage or dollar amount specified to your spouse’s IRA. If your ex At The Law Offices of Saylin & doesn’t have a suitable account available Swisher, Divorce Aorneys to receive the funds, a new account will Brian Saylin and Lindsay have to be opened. Swisher offer you unequalled experience and personal at- Third, a copy of the Settlement ten on that gives you a dis- Agreement will be required for the custo- nct advantage inside and dian to verify the legal intent. Once they outside the courtroom. receive all of the necessary documenta- tion, the current custodian will transfer Focused Exclusively on Family Law and Family Law Appeals the applicable portion of your account to We’re well-known and respected in the legal community for our your former spouse’s IRA without any legacy of success. We have mastery of all applicable law, and tax consequences to you. have an in mate knowledge of all cases that come down from Beyond these basics, there may be the Appellate and Supreme Courts in the area of Family Law. other, more technical aspects worth think- ing about. For instance, many people use For a distinct advantage from a renowned Firm that is focused the term “IRA” to refer to different types exclusively on Family Law and Family Law Appeals, contact: of retirement plans and accounts. The example mentioned above refers to a (714) 937-1979 [email protected] “true” IRA account, but what if you have One City Boulevard West, Ste. 1400 a 401(k) account, or pension plan with Orange, CA 92868 an employer? If this is the case, a www.saylin-law.com Qualified Domestic Relations Order (or QDR) may be required to split your account and have a portion transferred to your ex-spouse. How a payment or trans- fer is made is important as well. Checks may need to be made payable to a certain name and reference an account number or other detail in order to be processed cor- rectly and avoid complications.
As you can see, there can be many important considerations to keep in mind when splitting a retirement account in your divorce settlement. To ensure that you avoid the potential pitfalls, it is highly recommended that you consult with a certified divorce financial analyst or other similarly-trained professional before com- pleting the process. FOLLOW DIVORCE MAGAZINE CHILDREN ISSUES on Facebook, Twitter and read our Blog Get the latest news, articles and commentary on divorce. “I have been the sole provider for my child. The father’s name is not on www.facebook.com/divorcemagazine the birth certificate, and he has not been in our lives since before the birth. www.twitter.com/divorcemagazine I filed a paternity case, and the judge www.blogsondivorce.com ordered him to pay support. Does this divorceblog.divorcemag.com automatically give me full custody?” Read, research, share and interact.
www.DivorceMag.com/CA | 15 Left to Right: Michael Sarris, Kimberly Davidson, John Gilligan, Wendy Tse, Brian Brandmeyer, Janet Dockstader, Janine Frisco, Barbara McNamara, John Bachmayer
As the largest Family Law firm in the greater Long Beach/South Bay area, BRANDMEYER PRACTICE AREAS: GILLIGAN DOCKSTADER & DAVIDSON, LLP (BGDD) has the dedication and experience required to handle every type of family matter from highly contested litigation, to • Dissolution of Marriage alternatives such as collaborative divorce and mediation. Specializing in complex • Legal Separation family law matters, BGDD has a proven track record of favorably resolving client cases • Child Custody and Visitation through skilled negotiation and strong advocacy. It is the goal of BGDD to provide • Move-Away personal attention to each client while providing the best family law legal representation • Child Support whether the client chooses to pursue litigation, mediation or collaborative divorce. • Spousal Support We are able to offer an exceptional level of availability and personal service to each • Property Division of our clients and place great importance on communicating with and guiding our • Complex Property Issues clients through the entire process. • Domestic Violence • Pre/Post-Nuptial Agreements Combining top-notch litigators with experts in non-litigation alternatives, BGDD emerges • Post-Judgment Enforcement as one of the most well-rounded firms in the family law practice area in Southern • Post-Judgment Modifications California. For clients who prefer to resolve their matters outside of court, we have attor- • Paternity neys who specialize in non-litigation alternatives, such as mediation and collaborative • Domestic Partnerships practice. For cases that can only be handled in court, our litigation attorneys are highly skilled at negotiating settlements and producing positive trial outcomes, particularly in high-conflict cases.
With convenient offices located in Long Beach, Manhattan Beach, and Irvine, California, BGDD is ready to assist you with your family law needs including marital dissolution and separation, child custody and visitation disputes, division of property/business valuation, child and spousal support, paternity disputes, pre-and post-nuptial agreements, domestic partnerships and domestic violence.
LITIGATION COLLABORATION MEDIATION
Contact BGDD today at (562) 431-2000 or [email protected] One World Trade Center, Suite 2150, Long Beach, CA 90831 1500 Rosecrans Avenue, Suite 500, Manhattan Beach, CA 90266 Website: www.BGDDLaw.com
A SPECIAL A DVERTISING F EATURE 16 | www.DivorceMag.com/CA Marshall Waller, a family lawyer in “collaboratively” with your spouse’s attor- data to protect the privacy and confiden- Calabasas, answers: ney, without the risks and rewards of the tiality of the proceedings. All agreements Collaborative Participation contract, it is are enforceable in court. You do not “automatically” receive not truly a collaborative matter. Such a custody of your child in any contested lawyer may be more concerned with pre- Because mediation is a voluntary environment. Obviously, you are your serving his or her opportunity to earn fees process in which the parties arrive at child’s mother, and as such, you maintain in litigation, and this may be an impedi- agreements, there is no reason to argue custodial control over your child un- ment to the success of the process. anything in court, so the mediator less a court order states otherwise. In your usually files all without the parties having case, the child was born to you, you took Collaborative law may be less expen- to appear in court. The necessary papers the child home with you and are raising sive than a court trial, but it is usually not omitting the sensitive information is filed it, and most importantly, no one is chal- inexpensive. Each spouse must hire his with the court in order to enter a judg- lenging this arrangement. As such, you or her own collaborative lawyer who will ment. Of course, the parties have the have “de facto” full custody. attend meetings with the other spouse and opportunity and are encouraged to review his/her attorney. The parties may each hire any final settlements before filing with At some point, the father may show up forensic accountants, appraisers, child- independent counsel, to make sure they and want involvement in the child’s life, custody evaluators, vocational evaluators, get legal advice as to their informed deci- and he may at that time challenge the exist- or whatever else is needed to address sions and to assure that the mediator has ing arrangement. In the midst of any con- the issues. Although this process is meant facilitated a fair agreement. troversy between you and the child’s father, to promote settlement, with all of the a court will have to determine the custody meetings and the stream of experts, it arrangement. Were you to die, as a general can become very expensive. The advan- MEDIATION ISSUES rule, your child would automatically go tage to this process as compared with to the other biological (or adoptive) parent. litigation is that the discussions are held “My wife wants to mediate our case On the off-chance that the child’s father in private, but discovery takes place and because she says we will save money disappears and no one can locate him, I information may come out that would by not having to hire lawyers. My would strongly recommend that you con- make the process less private and confi- friends say we will still need to have a sult an estate-planning attorney and prepare dential than mediation. lawyer involved. Who’s right?” a Nomination of Guardian, so that you can at least let the court know what your wish- Mediation, however, usually involves John C. Juarez, a mediator in Pas- es were in this regard, should you die while one attorney/mediator who facilitates the adena, answers: your child is a minor. proceedings, educating the parties as to their rights and obligations, deflecting the Our goal is for the couple to reach a conflict, and preparing the documentation. mutually acceptable agreement related to COLLABORATIVE LAW There is only one attorney/mediator who the issues relevant to a separation or does not represent either party, but acts divorce that both consider fair and in the ISSUES as a neutral to help the parties arrive at a best interests of any minor children. fair agreement under the law. Clients may choose to obtain legal, as “My husband says we’ll save a lot of well as any other professional advice, at money using the collaborative approach It is true that mediation is also a col- any time during the mediation process. because we will share a lawyer. Is that laborative process — but collaborative We find that attorneys are very supportive really how collaborative law works?” law is not mediation. Mediation is nor- of the mediation process, and recognize its mally less expensive than collaborative value in producing clients who are com- Mari Frank, a family and collaborative law; there usually are not so many attor- fortable with their agreements. We require lawyer and mediator in Orange County, neys and experts involved in the meetings. each party to take any agreement they answers: The parties may attend mediation with have reached in mediation to an attorney their divorce attorney/mediator without for at least a one-time consultation prior The intention of collaborative law, as independent counsel present if they wish to signing, so that they have the benefit of with mediation, is to provide an alternative to save funds. Normally, if forensic advice from someone who represents their to an adversarial court battle, but the par- accountants, appraisers, or other experts interests, which we do not. ties cannot share a lawyer in collaborate are needed, the parties agree to use a neu- law. If you wish to engage in a collabora- tral expert to give them a range of values tive divorce, you must each find a col- to negotiate in mediation. The mediator Join the discussions of our laboratively trained divorce attorney who prepares the court documents and a public divorce community: • is willing to sign an agreement that if the marital settlement agreement for the court Visit our online Forum: www. case does not settle, he or she will not — leaving out many of the financial and divorcemag.com/forums • represent you in a court battle. There must sensitive data. Often an experienced Read our blog: http://divorce be a signed Collaborative Agreement. If mediator prepares a detailed private mar- blog.divorcemag.com a lawyer tells you he or she can work ital agreement with the more sensitive
www.DivorceMag.com/CA | 17 divorcerecovery Divorce Recovery
Recovering from divorce is like climbing a mountain — but the rewards at the end of the climb are worth it!
here’s an adjustment process after a divorce — with a beginning, an end, and specific Tsteps of learning along the way. These steps can be arranged into a pyramid of “Rebuild- ing Blocks” to symbolize a mountain. Finishing this climb is what counts, not how long it takes. Denial: “I Can’t Believe this is Happening to Me”
We humans have a wonderful mechanism that allows us to feel only as much pain as we can handle without becoming overwhelmed. Pain that is too great is put into our “denial bag” and held until we are strong enough to experience and learn from it. Some of us experience so much denial that we are reluctant to attempt recovery — to climb the mountain. Fear: “I Have Lots of It!”
The fears you feel when you first separate are like being in a blizzard. Where do you hide? How do you find your way? Each fear you overcome gives you strength and courage to con- tinue your journey through life. Adaptation: “But it Worked When I was a Kid!”
A person who is not able to meet his or her needs for nurturing, attention, and love will find ways to adapt (e.g. behaviors learned as a child), but not all adaptive By Dr. Bruce Fisher and Dr. Robert Alberti, behaviors are healthy; examples include being over-respon- edited and condensed by John Matias sible for others, or becoming a perfectionist. Unhealthy adaptive behaviors that are too well-developed leave you out of balance. Loneliness: “I’ve Never Felt so Alone”
When a love relationship ends, the feeling is probably the greatest loneliness you have ever known. It seems you’re never going to know the companionship of a love relationship again. Will this empty feeling ever go away? Can you ever feel okay about being alone? Friendship: “Where has Everybody Gone?”
You have a great need for friends to help you face and overcome the emotional pain. Unfortunately, divorce is threatening to many friends and causes them to feel uncomfortable around the dividing partners. Social relationships may need to be rebuilt around friends who understand your emotional pain without rejecting you. Guilt/Rejection: Dumpers 1, Dumpees 0
Most dumpers feel guilty for hurting the former loved one. Dumpees find it tough to acknowledge being rejected. The adjustment process is different for the dumper and the dumpee, since the dumper’s behavior is largely governed by feelings of guilt, and the dumpee’s by rejection.
18 | www.DivorceMag.com/CA Grief: “There’s This Terrible others won’t like the real person under- ing of a love relationship will allow you Feeling of Loss” neath. But when we do take off the to really let go of the past, to learn to be mask, we often experience more close- whole and complete, and to invest in Grieving is an important part of the ness and intimacy with friends and yourself. recovery process. Grief combines over- loved ones than we believed was whelming sadness with a feeling of possible. Purpose: “I Have Goals for the despair. It drains us of energy by leading Future Now” us to believe we are helpless, powerless Love: “Could Somebody Really to change our lives. Care for Me?” Do you have a sense of how long you are going to live? If you have many years Anger: “Damn the S.O.B.!” Ending a love relationship should yet to live, what are your goals? It’s help- encourage one to re-examine what love ful to make a “lifeline” and take a look at Most divorced people were not aware is. A feeling of being unlovable may be the patterns in your life, and at the poten- that they would be capable of such rage present at this stage. An important ele- tial things you might accomplish for the because they had never been this angry ment in the rebuilding process is to learn rest of your time. before. This special kind of rage is specif- to love yourself. If you don’t love and ically aimed towards the ex-love partner accept yourself, how can you expect any- Freedom: “From Chrysalis to and — handled properly — can be helpful body else to love you? Butterfly” to your recovery, since it helps you gain some emotional distance from your ex. Trust: “My Love Wound is The final stage has two dimensions. Beginning to Heal” The first is freedom of choice. You’re Letting Go: “Disentangling is free and ready to enter into another rela- Hard to Do” Divorced people frequently point tionship. You can make it more produc- their fingers and say they cannot trust tive and meaningful than your past It’s tough to let go of the strong emo- anyone of the opposite sex. It takes a love relationships. The other dimension tional ties that remain from the dissolved good deal of time to be able to risk is the freedom to be yourself. Many of us love union. Nevertheless, it’s important being hurt and to become emotionally carry around a burden of unmet needs to stop investing emotionally in the dead close again. that keep us from being the people we relationship. want to be. As we unload this burden Relatedness: “Growing and learn to satisfy these needs, we Self-Worth: “Maybe I’m Not so Relationships Help me Rebuild” become free to be ourselves. Bad After All!” Often after a love relationship has ended, you find another relationship: one This article is Feelings of self-worth and self-esteem that appears to have everything the pre- excerpted and edit- greatly influence behavior. Low self- vious union lacked. You need to realize ed from Re-building: esteem and a search for stronger identity that what feels so good is that you are When Your Relation- are major causes of divorce. Divorce, in becoming who you would like to be. You ship Ends (3rd Ed- turn, causes lowered self-esteem and loss need to take back your own power and ition) by Dr. Bruce of identity. As you improve your feelings take responsibility for the good things Fisher and Dr. Robert of self-worth, you’re able to step out of you’re feeling. Alberti. Reproduced the divorce pits and start feeling better by permission of Impact Publishers, about yourself. Sexuality: “I’m Interested, but www.impactpublishers.com. Further I’m Scared” Reproduction Prohibited. Transition: “I’m Putting out the Trash” Even though the partner is gone, sex- To read the full version of this ar cle, ual needs go on. Yet most people are please go to www.divorcemag.com/ You want to understand why your more or less terrified by the thought of ar cles/Divorce_Recovery/divorce_ relationship ended. Maybe you need to dating, especially when they sense recovery.html. perform an “autopsy” on your dead rela- that somebody has changed the rules tionship. If you can figure out why it since they dated earlier. Many feel old, More Related Articles: ended, you can work on changes that unattractive, unsure of themselves, and • Divorce Isn’t Easy, But It’s Doable will allow you to create and build dif- fearful of awkwardness. www.divorcemag.com/articles/ ferent relationships in the future. Singleness: “You Mean it’s Divorce_Recovery/divorce_ Openness: “I’ve Been Hiding Okay?” not_easy.html. Behind a Mask” • Embrace Change www.divorcemag.com/articles/ A period of singleness — growth as Divorce_Recovery/embrace-change- Many of us are afraid to take off an independent person — will be valu- after-divorce.html. our masks because we believe that able now. Such an adjustment to the end-
www.DivorceMag.com/CA | 19 divorceandfinance
By Andrew K. Hoffman, FCA, CFP®, CDFA™
Steering Clear of Financial Landmines Understanding the financial and tax implications of your options — and avoiding financial landmines — is the foundation for a settlement that lasts and allows you to thrive after divorce.
20 | www.DivorceMag.com/CA hen negotiating your financial settlement, you • Defined Benefit Pension Plans: Understanding whether need to know and understand the facts and your there will be a lump-sum or a future stream of income Woptions before finalizing your settlement. In my available from the plan helps couples negotiate better divorce practice, I have found some crucial items are often settlements. It might be better to value the pension and overlooked; this article outlines some of those items for your offset the value with other assets, divide the future in- consideration. Make sure to work with your lawyer and a come, or combine these two approaches. divorce financial professional to cover the bases. • Survivor Benefits: Understanding the importance of Take Taxes into Account survivor benefits and making sure they are included in the pension division document ensures that the spouse Failing to understand the tax basis of property can generate who is not directly participating in the plan doesn’t lose unexpected taxes for the spouse receiving property, which their pension rights if their ex-spouse dies before them. reduces the value of the settlement. Carefully reviewing the tax basis of all property, and planning whether to keep or sell Short-Sales may Result in Taxable Income the property post-divorce, can avoid the problem of unantic- ipated taxes on unrealized gains. In depressed housing markets, where many homes are worth less than the mortgage balance, some homeowners Dividing marital property into tax assets of similar tax are negotiating with their banks to make a short-sale. basis, and then dividing these classes equitably, helps to Understanding whether a short-sale could result in a taxable avoid the complexities or omission of offsetting assets with gain and whether any taxes would be payable on the sale is different basis. another important minefield that has to be navigated. Review Tax Returns Structure Spousal Support Carefully
Personal tax returns are a financial road map to the Spousal support can be used to shift income from the finances of the family and vital to arriving at a financial set- spouse in a higher tax bracket to the spouse in a lower tax tlement. With the current downturn in the economy, loss car- bracket (it reduces income to the payor and increases income ryforwards are appearing on more tax returns. Carryforwards to the recipient). have a value as a potential tax benefit; some can be deducted from future income, and others affect the basis of the trans- Be sure to structure your spousal support properly so you ferred property. do not trigger unanticipated taxes. Avoid:
Be sure to negotiate how unused capital losses, net oper- 1. Front-end loading of spousal support in the first three ating losses, passive activity losses, charitable contribution years after a divorce. carryforwards, and unused investment interest expenses will 2. Reducing spousal support based on a contingency related be divided in your settlement. to your children.
Understand Retirement Plans A mistake in either of these areas may cause the payor spouse to lose all or a part of the spousal support deducted Not all retirement plans are the same. It’s crucial to find on his or her tax return and be charged not only unexpected out what options are available to you, and to make sure taxes but also penalties and interest. This is an extremely your divorce agreement only includes payments that your complicated area; ask your divorce financial professional — or your spouse’s — plan allows. Here are three points to explain it to you to avoid an expensive surprise from the to consider: taxman down the road.
• Defined Contribution Plans: Find out whether your par- Check your Health Coverage ticular plan will allow distributions. This is an important consideration if some of the retirement funds will be used In the USA, the Consolidated Omnibus Budget Reconcil- to generate liquidity, or rolled over to another retirement iation Act (COBRA) contains provisions giving certain for- plan. Some plans do not allow distributions on certain mer spouses the right to temporary continuation of health investment choices, while other plans have temporarily coverage at 102% of the actual employer’s premium. In frozen funds in certain investment choices. Because order to be eligible for continued coverage, you must inform of the downturn in the economy, the timing of the distri- the ex-spouse’s employer of the divorce within 60 days of the bution also matters; choosing the right timing of a distri- divorce. Trying to cover an ex-spouse by not informing the bution can help one or both spouses reduce or avoid unanticipated taxes. .../CONTINUED ON PAGE 32
www.DivorceMag.com/CA | 21 separationanddivorceprocess Understanding the DIVORCE PROCESS A guide to the legal process of divorce. By Jeffrey Cottrill, edited by Josh D. Simon
o two divorces are exactly alike. to speak to a family lawyer to discover accounts, and other issues that may be Every marital breakup has its how the options vary in your state or important between the separation and the Nown unique legal, financial, province, as well as how the details and final outcome. For example, if one and/or parenting issues, which require circumstances of your situation may af- spouse moves out of the home and the their own resolution strategies. However, fect the process. other has no income, how will the latter every divorce undergoes the same gen- feed the kids and pay the bills? For more eral journey from initiation to closure. Temporary Orders and Filing information about temporary orders, visit Whether you and your spouse make this Divorce Papers www.divorcemag.com/articles/ journey slowly or quickly, expensively Financial_Planning/getting_prepared_ or inexpensively, stressfully or peace- One of the first things you and your temp_orders.html. fully is up to you, but the destination is spouse have to do after you separate is to always the same: from shared to sepa- get a “temporary order” or agreement. You should hire a divorce lawyer rate lives. This is extremely important, because and/or mediator, and financial advisor, as it could set the precedent for your final soon as possible. You’ll set your tempo- Here’s a basic primer of how the di- divorce settlement. A temporary order/ rary order/agreement in a brief, relatively vorce process works in the United States agreement establishes quick decisions informal hearing before a judge — so and Canada. Bear in mind that you need about the children, property, bank prepare a complete list of what you want
www.DivorceMag.com/CA | 23
If your divorce is contested, you and your spouse must decide how to “ “ resolve your divorce. Will you fight it out through adversarial litigation, or can you set aside personal feelings long enough to negotiate outside of court?
to request. The items you can request in- • All available financial data, includ- make it that way, and the majority of clude: temporary custody and visitation ing: income-tax returns from the past cases do settle. arrangements; a restraining order so your several years; a recent pay slip; the spouse won’t contact you; child or major assets and liabilities of both If you’re in the United States, ask spousal support; and/or who gets the car you and your spouse; budget work- your lawyer if you’re eligible for a “sum- and house. sheets; insurance policies; credit-card mary” divorce. This is a simpler and statements; wills; and any credit or faster divorce process which involves Next, you or your spouse will file a mortgage applications. less paperwork, fewer court appearances, petition, application, or complaint for di- and less time in negotiation. However, vorce with your local family court. The Unless you create a separation agree- this will only work if your marriage was person who files (“the plaintiff”) serves ment, your lawyer will use this as a relatively short and if you have no chil- a summons upon the other spouse, stat- starting point for the discovery process. dren, little property, and no intention to ing that they want a divorce and what Your lawyer needs as much specific in- seek spousal support. In Canada, the they are seeking in terms of property, formation about the marriage as possible closest would be an uncontested divorce child custody, support, etc. The other in order to work out the financial and or a joint application. spouse (“the defendant”) must answer children’s issues fairly. Most of discov- the summons and, if they wish, can make ery involves financial matters, for which Motions their own claim. your lawyer needs specific, accurate de- tails. From the value of items you bought If you need to readjust certain Check DivorceMagazine.com for in- during the marriage to stocks, pensions, arrangements during the divorce process formation on the grounds for divorce in and revenue from a business, you and — such as custody, visitation, or support your state or province. Most states and your divorce professionals (e.g. lawyers, — you can initiate this by filing a motion all Canadian provinces are “no fault” ju- mediators, financial planners, account- with the court. Next, a short hearing risdictions, so you don’t have to justify ants, appraisers, etc.) have to retrieve takes place in which the lawyers repre- filing for divorce by accusing your documentation of every dollar value — senting you and your spouse present spouse of wrongdoing. including that of premarital assets. For their cases before the judge. In most articles on preparing for a deposi- cases, only the lawyers are permitted to Collecting Information and tion and separation agreement, visit speak. However, if you are going the Do- Discovery www.divorcemag.com/articles/ It-Yourself route in your divorce (a path Divorce_Settlement_Preparation. that’s only recommended for very simple Once you have hired your divorce divorce cases), you will be able to repre- lawyer, you must gather all relevant in- Contested vs. Uncontested sent yourself in this hearing. Once the formation for your lawyer’s perusal: Divorce judge makes a decision on the matter, the regular process continues as before. • Full names, addresses, phone num- There are two general types of di- bers, and Social Security or Social vorce. If you and your spouse can’t Litigation or Negotiation? Insurance numbers for you, your agree on the divorce terms — or if one spouse, and your children of you doesn’t want the divorce — it’s If your divorce is contested, you and • The date of marriage, date of cohabi- a contested divorce, and a judge will your spouse must decide how to resolve tation, county or region where the decide the outcome if you can’t come your divorce. Will you fight it out wedding occurred, the wife’s maiden to agreement on your own. In an un- through adversarial litigation, or can you name, and any information about contested divorce, both of you agree on set aside personal feelings long enough prior marriages of either spouse (in- how to divide your assets and debts, to negotiate outside of court? If you want cluding the names and prior names of who gets custody and pays child sup- to avoid the “divorce from hell”, Alter- ex-spouses) port, and whether one spouse needs to native Dispute Resolution (ADR) meth- • A copy of your premarital agreement pay spousal support to the other. Obvi- ods, such as arbitration, mediation, and (or other domestic contract) and ously, an uncontested divorce will be Collaborative Divorce, have become information about any prior legal faster and simpler. But even a divorce popular means of settling divorce in a proceedings, separations, or marital that starts with major disagreements cooperative environment with reduced counseling during the marriage can be worked out if you choose to stress and expense. Some states have
24 | www.DivorceMag.com/CA made mediation compulsory in the di- to you and which ones you would be The Waiting Period vorce process. willing to let go. There is usually a set minimum wait- Talk to your lawyer (and to your The more financially complicated ing period between the divorce petition spouse) about the different options. your divorce, the longer this will take, and the final decree. Even if your pro- For more information on divorce media- and you’ll likely need an accountant, cess is very quick, the waiting period tion, please go to www.divorcemag.com/ a business valuator, a Certified Di- must elapse before the judge officially articles/Mediation. For information on vorce Financial Analyst, a Financial grants the divorce. Lengths vary between Collaborative Divorce, please go to Divorce Specialist, or a financial states, but the average waiting period is www.divorcemag.com/articles/ planner to make sense of all the assets about six months. Collaborative_Law. involved. For more helpful articles, go to www.divorcemag.com/articles The Divorce Judgment Trial /Financial_Planning. After all the issues have been decided If you and your spouse just can’t • Child and spousal support: (either by you and your spouse or by a agree, then your case goes to trial. Di- Often referred to as “alimony” or judge), a court clerk reviews all the pa- vorce trials can take many months or “maintenance,” spousal support is a pers and sends them to the judge. When even years, and they’re never pleasant. monthly amount of money that a fi- the judge signs a document that officially nancially advantaged divorcee can ends the marriage (a Divorce Judgment Generally, you and your spouse each be ordered (or agree) to pay their ex- Order or a Divorce Decree), you are tell your respective side of the story be- spouse, to help maintain a lifestyle legally divorced — and free to remarry if fore the judge (and the public). You take to which the latter has become ac- you choose. the stand, and your own lawyer asks you customed. Ask your lawyer whether questions that prompt you to explain you’re eligible for spousal support The divorce process is complicated, your side — and then your spouse’s — and if so, don’t be afraid to take and this brief summary doesn’t touch on lawyer has the option of cross-examining it. The purpose of spousal support is what an emotional rollercoaster ride a di- you or challenging the validity of your not to punish your ex but to maintain vorce is. It’s a wrenching experience that perspective. The same goes for both your lifestyle. can cost a lot of money and upset your sides’ witnesses (both personal and pro- lifestyle in profound ways; it can also fessional): each of you dukes it out Child support is what a non-custodial damage your children’s psychological through conflicting testimony and at- parent regularly pays to the custodial growth if you and your spouse don’t con- tempts to make your respective case look parent in order to support the children sider their well being and act in a way more believable. Finally, the judge — a from the marriage. This way, both that supports an amicable divorce. But stranger who only knows you through parents can financially contribute once it’s done, you’re free to start over what he or she has seen in court — to bringing up the children, even if — so the sooner you get to the end, the weighs all the evidence and makes all the one isn’t present on a regular basis. better for all involved. Consult the neces- final decisions. For more helpful articles, go to sary divorce professionals (family www.divorcemag.com/articles/ lawyers, divorce mediators, Certified Di- The Issues Child_Support. vorce Financial Analysts, accountants, therapists, etc.) to find out how to make Money and property: • Child custody and visitation: your divorce process as quick and pain- Who gets what? What items and ac- One of the most important decisions less as possible. counts legitimately belong to you? is where and with whom the children Who should keep the marital home? will live. Is joint custody in their best Jeffrey Cottrill is the former Manag- Who gets which car? How about the interests, or should they live with one ing Editor of Divorce Magazine. Josh D. cottage? The family business? The parent full-time with regular visits Simon is a writer for Divorce Magazine. pets? with the other? Unless your spouse is abusive, both of you should work Many states classify property owned together to create an agreement in For more articles, and a more by the spouses as “marital” or “sep- which you both get a fair share in in-depth explanation of each of the arate” — the latter meaning that the raising your children. subjects covered in the divorce pro- property belonged to one spouse be- cess, visit www.divorcemag.com fore marriage or was a gift to one Custody battles in court are usually /articles/Separation_Divorce_Process. spouse. The goal of property division full of character slurs and accusa- is “equitable distribution” — mean- tions that are emotionally traumatic ing an even division of assets and for you — and more so for the debts. If you negotiate asset division children. For more articles, go to with your spouse directly, be clear www.divorcemag.com/articles/ about which items are high priorities Child_Custody.
www.DivorceMag.com/CA | 25 professionaltips How to Work with Your Divorce Lawyer Tips for keeping your legal fees down By Diana Shepherd, and getting the best possible outcome. with notes from Josh D. Simon
ou and your lawyer will become or “no.” The following checklist will • Facts about your marriage. When and partners, for better or for worse, give you an idea of what you may need where did you get married? Did you Yduring and perhaps for years to disclose: sign a prenuptial agreement? If so, after the divorce process. How well your bring a copy. Have either of you been partnership works can have an enormous • Why are you seeking a divorce? married before? Will there be issues effect on your divorce and how much • What caused your breakup? If you’re involving your children, such as cus- you’ll have to spend in legal fees. Here secretly hoping for reconciliation, tody or access? are some tips on how to work with your then you and your lawyer are working • Financial information. What assets divorce lawyer. towards different goals. and debts did each of you bring into • Personal data about you, your spouse, the marriage? What are your incomes What Your Lawyer Needs to and your children (if any). Write and what are your expenses, jointly Know down your names; your home and and individually? What are the names work addresses and telephone num- and addresses of your employers? Once you’ve chosen a lawyer, you’ll bers; your ages and places of birth; How much money do both of you need to provide information. When your your Social Security or Social Insur- have invested: in the bank, the stock lawyer requests information, respond as ance Numbers; your states of health, market, etc.? Has either of you in- quickly, completely, and concisely as both mental and physical; your Green vested in insurance or a pension plan? you can; don’t write a 24-page document Card(s) and immigration papers (if What property do you own? Was the when all that was required was a “yes” applicable). property purchased before or after the
26 | www.DivorceMag.com/CA marriage? Do you have a mortgage? Even a good divorce What You Should Expect from Prior to seeing your lawyer, create a lawyer will sometimes Your Lawyer budget detailing how much you spend every month on items such as hous- have bad news for you: From the day you hire your lawyer, ing, food, clothing, personal groom- that your spouse won’t you both should have a clear understand- ing, gifts, vacations, etc. If you have budge on an important ing of what you need and expect from children, make sure you include their each other. Ask for a written agreement expenses. issue; that you’ll have to that details the terms of your lawyer- • Legal documents. Bring copies of give him or her money or client relationship. If he or she won’t prior or pending lawsuits, bankruptcy other assets; or simply provide one, find another lawyer. suits, judgments, and garnishments. Your divorce goals. Be very specific that your expectations are After learning about your case, your about your goals in terms of realizing unrealistic, illegal, or not lawyer should create a strategy. Be aware your future; make sure your short- financially feasible. that this plan may change along the way, term goals for property, other assets, depending on what your ex and his or her custody, visitation, and support are lawyer does. consistent with that future. If you don’t abide by these tips, your Your lawyer should clearly explain What Your Lawyer Expects lawyer may want to quit your case. This all your options, and offer advice regarding from You may also happen if you don’t communi- the best paths to follow, but respect your cate properly, if you continually don’t wishes if you strongly disagree with a sug- Your lawyer hopes you’ll be calm, follow the lawyer’s advice, or if you gested course of action. If you find yourself businesslike, and well prepared. Ideal don’t pay your legal bills. But if you’re in constant disagreement with your lawyer, clients can control their emotions, are or- cooperative and reasonable, it’s more either you’ve chosen the wrong person or ganized, willing to work with the lawyer, likely that your lawyer will trust you and you’re being unreasonable. Consider your and listen to their lawyer’s advice. work hard on your behalf. motivations and actions to see if you’re refusing your lawyer’s advice for purely Your lawyer will expect to be paid However, your lawyer may keep rep- emotional reasons. on time and in full. If your financial resenting you even if you inadvertently situation is bad, your lawyer may be annoy him or her — if only because Even a good divorce lawyer will able to create some kind of payment you’re still paying him or her to work for sometimes have bad news for you: that plan. If you’re broke because your ex you. Or maybe your lawyer is just too your spouse won’t budge on an impor- cleaned out the bank account, your polite. If you detect impatience or weari- tant issue; that you’ll have to give him or lawyer can file motions asking the ness in your lawyer’s tone or body her money or other assets; or simply that court to grant temporary orders for language, consider whether you’re bur- your expectations are unrealistic, illegal, child or spousal support, custody, pay- dening him or her with too many com- or not financially feasible. Expect to feel ment of your lawyer’s fees, etc. And if plaints about your spouse, or whether frustrated or disappointed from time to you suspect your divorce might get you’re wasting time by asking a lot of time as your divorce progresses, but nasty, ask your lawyer about filing or- obvious questions or by venting your don’t take it out on your lawyer! He or ders to protect you and/or your kids — frustrations. It’s also possible that you she can’t always pull a great solution out financially and physically. did something to hurt your case strategy, of his or her metaphorical hat. such as mentioning something to your To get the best service from your spouse (or your spouse’s lawyer) that You should expect your lawyer to re- lawyer, it’s essential to be a good client. should have been kept secret. Perhaps turn phone calls reasonably promptly (24 Here’s how to gain your lawyer’s respect: your last check to the lawyer bounced, hours is reasonable if he or she isn’t on or maybe you were rude or unprofes- vacation), and to consult you before tak- • Don’t call your lawyer outside of sional to one of the firm’s paralegals ing any major actions. work hours unless it’s an emergency. or secretaries. • Don’t burden your lawyer with your Finally, if you want to ensure that emotional issues; hire a therapist for If you think you may have annoyed your divorce agreement reflects your that. or angered your lawyer, ask if this is the goals — and doesn’t cost you an arm and • Always tell your lawyer the truth, case. If you have done something wrong, a leg — then stay involved with the even when it’s unpleasant or unflat- apologize for it; if there has been a mis- process, and answer your lawyer’s re- tering to you. understanding, clear it up immediately. quests promptly and honestly. • Be realistic. Don’t expect your lawyer It’s important that you and your lawyer to behave like the heroic lawyers on maintain a strong, trusting relationship in TV or in John Grisham novels. order for you to get the best possible rep- Diana Shepherd is the former Editorial • Don’t blame your lawyer for the sys- resentation — and to achieve the best Director of Divorce Magazine. Josh D. tem or expect him or her to change it. possible outcome. Simon is a writer for Divorce Magazine.
www.DivorceMag.com/CA | 27 parentingandstep-family Popular myths about shared parenting Sometimes separated or divorced parents are by Jill Burrett and Michael Green keen to work out a good shared parenting arrangement but are discouraged by the prejudices of friends or professionals. We will unravel some common myths about shared parenting in order to help those parents get past such objections.
MYTH: Kids need to spend most of their time in one home
Reality: This is an understandable leftover from hopes that our marriage would thrive and our kids would be in one happy home and an unquestioned pre- sumption of many lawyers and counselors. It’s a view that seriously underestimates the adaptability of children and fails to ap- preciate what is really important for them. The stability that children need is more than geographical. It is emotional stability, the stability of meaningful, continuing relationships. The emotional stability that’s critical for a child’s healthy development comes not only from ongoing relationships with parents, but also from their community. The child’s world is those relationships that arise from associations and the sense of belonging that these important connections bring.
MYTH: Kids need to know where they live and not be going back and forth
Reality: A clear, simple parenting plan plus goodwill from both par- ents will quickly get children into a routine. Breaking up a week into smaller chunks may mean that parents don’t go long without seeing their children, but it may also mean children are constantly changing over. Changeovers are often the hardest time, so lean toward a pattern that has the fewest changeovers, except for very small children.
Q: No sooner are my children settled with me than they have to gear up to change again. Is it better if the children stay in one place and the parents rotate?
28 | www.DivorceMag.com/CA A: It needs a dependable communi- Reality: Not necessarily, though this and children, or to have supervised pick- cation system to assist with smooth parent will have confidence and experi- ups and drop-offs. This is inconsistent changeovers and a high degree of dedi- ence. Emotional bonds are created and with research, which shows that good cation and positive spirit. If they are stay- strengthened by parents being available contact results in reduced conflict be- ing in the family home where they have and doing things with and for children, tween parents. Rather than seeing hostil- been living, this may only be possible for but it’s not just this. It’s listening and ity as a disincentive to shared parenting, a time as the home may have to be sold talking empathically with your children, it’s better to view it as an indicator of for your financial settlement. Maybe you hanging out together, sharing parts of needing a better parenting plan. should initially consider two- or three- your life with them, and helping them week blocks of time to allow for a proper learn to discover independently that cre- In the face of parental tensions, chil- settling-in before the children have to up- ates bonds. dren tend to align themselves with one root themselves again. parent, implying that the other parent is at Q: It can’t be right for our twelve- fault. This is a potentially misguided as- MYTH: Infants under three month-old to be away from me for long sumption as to what the child’s behavior shouldn’t spend nights away periods even though he knows his dad? means: it confuses the picture for parents from Mom and their advisers, and should not be the A: If he has had time with Dad, then basis for alterations in the arrangement. Reality: This view was based on out- he will have an attachment, meaning he’s dated theory and is contrary to recent re- okay for increasingly long periods with- KEY MESSAGES search. Attachment theory tended to out you in Dad’s care. Keep Dad in- emphasize the exclusivity of the mater- formed about established routines so he • Myths need challenging and realities nal bond and its continuity as being cru- can have a settled baby to bring back to need facing. cial to healthy development. There is no you, which will enhance your confidence • Children need two homes when they consistent evidence that a night with in his care. Some dads aren’t that good have two separated parents. their father is going to cause harm. If with babies on their own — let his rela- • Organize the program to suit your cir- children are well attached to the other tives help if they’re local. cumstances, not vice versa. caretaker (Dad), they should soon be- • Infants require special consideration come used to him coming at night if A silver lining to the disappointment when part of a shared parenting needed, for example. There is growing of separating is children get the chance arrangement. evidence that overnight stays in infancy to develop a closer relationship with par- • Shared parenting allows both parents form a meaningful basis for parent child ents who are committed to shared parent- to be hands on. relations. ing but who weren’t very available • Both quality and quantity are impor- before, and who can therefore develop tant in parenting. At times, Mom’s own attachment to their parenting skills more effectively. A her child interferes with developing a parent who appeared to contribute little This article has been edited and ex- suitable parenting arrangement. Mater- to family life deserves the chance to be- cerpted with permission from Shared nal anxiety is a very powerful protector come a more involved parent. Parenting: Raising Your Children Coop- of young infants and therefore deserves eratively After Separation. Copyright © respect. Overnight contact with babies MYTH: Where there’s conflict 2009 by Jill Burrett and Michael Green, and infants (approximately up to eight- between parents, there should Celestial Arts, an imprint of Ten Speed een months) is not crucial for cementing be little or no contact Press, a division of the Crown Publish- parent–child bonds; daytime contact pe- ing Group, Berkeley, CA riods are the building blocks. Reality: Lawyers and counselors For more articles on divorce sometimes suggest that the only solu- and shared parenting, visit www. MYTH: The more homey, hands- tions to conflict between separated par- divorcemag.com/articles/Parenting_ on parent is better equipped for ents are: to reduce or eliminate contact and_Step-Families. childcare between the parents or between father
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30 | www.DivorceMag.com/CA DIVORCE MAGAZINE’S NORTH AMERICAN Advisory Board CEO/Publisher Dan Couvrette, (888) 217-9538 Ext. 124 Divorce Magazine would like to thank the following members of our Advisory Board for their help in [email protected] making Divorce Magazine and www.DivorceMagazine.com such valuable resources for our readers. Advertising Sales Visit www.divorcemag.com/XX/advisoryboard.shtml. Divorce Magazine & DivorceMagazine.com Dan Couvrette, Ext. 124 Patricia M. Barbarito is a certified Gary S. Joseph is a certified spe- Brigitte Habel, Ext. 126 [email protected] matrimonial lawyer. 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www.DivorceMag.com/CA | 31 LANDMINES / CONTINUED FROM PAGE 21 employer of the divorce can result in health coverage being denied or a fraud lawsuit by an insurance company attempt- ing to collect medical benefits paid.
Editor note: In Canada, extended health- care plans will not cover an ex-spouse post-divorce; once divorced, a spouse no longer qualifies as a dependent. If you are the non-member spouse, and if you have documented medical issues, you need to investigate plans that allow for pre-existing conditions ASAP; most plans of this type need to be placed within 30 days of the divorce, so time is of the essence here.
With offices in Arizona and Lou- isiana, Andrew K. Hoffman has prac- ticed as a CDFA™ since 1999. He is chairman of the Institute for Divorce Financial Analysts’ (IDFA) Editorial Committee and a member of the IDFA Advisory Steering Committee. His firm’s website is www.lacdfa.com. For more information about how a CDFA™ can help you address the financial issues of divorce, go to www.InstituteDFA.com.
More Related Articles • Taking Control Understanding your expenses and income will help you gain control of your finances — and life — during divorce. www.divorcemag.com/articles/ Financial_Planning/taking_control.html. • Individual Retirement Arrangement and Divorce If you're transferring your interest in an IRA to your (former) spouse, you could get hit with extra tax and penalties if the transfer is not made correctly. www.divorcemag.com/articles/ Accounting/iras.html. • 7 Important Factors to Remember when Negotiating Your Financial Divorce Settlement Permanent, life-altering financial de- cisions must be made during your divorce. You may be experiencing fear of the unknown. Fortunately, education helps alleviate that fear. WomansDivorce.com www.divorcemag.com/articles/ Divorce_Settlement_Preparation/your Helping Women Survive Divorce and Rebuild Their Lives -divorce-settlement.html.
32 | www.DivorceMag.com/CA WHO'S FAULT / CONTINUED FROM PAGE 4 about your post-divorce life, you will ease your way through the process with More Related Articles: • What kind of relationship do you integrity, dignity, and grace. It may not want with your spouse when it’s look or feel like this at the time, but if • Your Divorce: Mistakes are Life over? you hold fast to your intentions and your Lessons • If you have children, what kind of re- plan, this will be the end result. It starts It takes a crisis, a good smack on lationship do you want them to have with you. the head, to awaken us. with each of you when it’s over? www.divorcemag.com/articles/ • What kind of experience do you want This ar cle was adapted by Divorce Divorce_Recovery/mistakes-are- this to be for you? How do you Magazine with permission from the life-lessons.html. want to feel as you go through your book Graceful Divorce Solu ons: A Choosing an Effective Dissolution • divorce? Comprehensive and Proac ve Guide Process to Transform Grief • How do you want your children to to Saving You Time, Money, and Your Advice on how to stay conscious, remember the experience of your Sanity © 2010 by M. Marcy Jones, focus on positive and affirming divorce? LLC. thoughts, and choose a construc- tive legal process for your divorce. Unfortunately most people do not ask M. Marcy Jones is www.divorcemag.com/articles/ themselves these questions and enter the an author, speaker, Mediation/collaborative-divorce- divorce process without considering the and lawyer. She has mediation-legal-process.html. • outcome of their actions. practiced family law Collaborative Law: The Kinder, since 1995. Marcy is Gentler Divorce Getting the “Big Picture” first gives a settlement expert Learn how collaborative law dif- you a goal to work toward and keeps you and conflict resolu- fers from mediation, and how to on track so you can act with integrity tion advocate, spe- choose and use a collaborative throughout the process and can more cializing in collaborative practice. She lawyer. readily reach a fair and acceptable settle- is also a trained mediator and certified www.divorcemag.com/articles/ ment. Again, this does not mean it will be personal coach. She lives in Lynchburg, Collaborative_Law/kinder_ easy for you. What it means is that by Virginia. For more information, visit gentler_ divorce.html making a conscious and thoughtful plan www.GracefulDivorceSolutions.com.
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