Chula Vista Family Law

How To Avoid the Most Common Divorce Mistakes?

How To Avoid the Most Common Divorce Mistakes in California?

The good news is that California divorce rates are less than the national average; however, if you are reading this article, you are thinking about a divorce, or are going through a divorce.  Most people separate from their spouse for a variety of reasons, including but not limited to, lack of commitment, infidelity, distance in the relationship/lack of physical intimacy, communication problems, domestic violence, verbal/physical/emotional abuse, realization that one’s spouse has different values/morals, substance abuse/alcohol addiction, absence of romantic intimacy/love, one partner not carrying their weight in the marriage, financial problems/debt, marrying too young, lack of shared interests/incompatibility between partners.  Additionally, causes of divorce for married couples in their 50, 60s, and 70s are unique because of major life transitions that occur during this time.  According to a U.S. Census Bureau survey, the top three reasons for divorces are incompatibility (43%), infidelity (28%), and money issues (22%).

The process of obtaining a divorce can seem complex and may be associated with many challenges, depending on your particular circumstances.  While some spouses may be able to cooperate and reach an amicable solution very quickly, others divorce involve complicated financial and legal issues, an uncooperative spouse, continuous disputes – the outcome of which may affect the rest of their lives. Thus, preparing yourself to avoid some common mistakes is essential.

Here, we will discuss how spouses can avoid some common divorce mistakes in California. The article will apply some basic divorce and separation laws used in California. The structure of the article is as follows:  a) the meaning of divorce, some of the most common causes, and introduce the laws that govern marriage and divorce; b) common mistakes and how to avoid them; and c) concluding comments.

Meaning of Divorce

Divorce, also known as “dissolution”, is the process through which the court ends (“dissolves”) a valid marriage, returning the parties to the status of “unmarried” and freeing them to remarry (Encyclopedia Britannica, n.d. para 1).  It applies, in California, to marriages, domestic partnerships, and to civil unions performed in other states.  Typically, the result of the dissolution is to release each party’s legal responsibilities and duties to the other, thus terminating the legal bond between couples. In California, there are many causes of divorce:  infidelity, lack of commitment, communication problems and domestic violence, early and arranged marriages, financial factors, conflicts, alcohol, and substance abuse (Lowenstein, 2005, p. 155).

In the U.S., divorce laws differ according to states, which means that what is done or applicable in California may not be applicable in New Jersey and New York.  In California, all legal issues surrounding divorce and separation are governed by the “California Family Code” (Crowley, 2021., par 1). Under California Family Code, there are three main ways to end a registered domestic partnership or marriage: legal separation, annulment, and divorce (Crowley, 2021., par 2: California Courts, n.d., par 1). Typically, legal separation under California Family Code does not dissolve a marriage like a divorce does but allows the court of law to decide vital issues such as child support, child custody, and property division.  Family courts are also authorized to issue restraining orders for people who have been in family living environments.

In California, both spouses are not required to agree to a legal separation or dissolution. One partner can choose to end the marriage, even when the other partner is not willing to get the divorce. If one of the partners is not ready to take part in the divorce, the other partner will be able to get a “default” (failure to respond) and still finalize the case through a judgment. California, unlike other states, is a “no-fault” state, meaning that any of the spouses asking for a divorce does not need to prove that their partner did something wrong.  (California Courts, n.d., par 2).

 

Why do Common Divorce Mistakes Occur?

In general, going through a divorce or separation is one of the most trying times in an individual’s life.  Though separation may eventually lead to a promising future for the partners, the road leading to divorce is usually characterized by stress, emotional trauma, and devastation. Therefore, individuals seeking a divorce may unintentionally commit many mistakes. Thus, to reduce the troubles and reduce the possibility of unfavorable outcomes, one needs to be careful and find help from the experts. This section will discuss some of the most common mistakes that people going through a divorce can commit and how they can be avoided.

 

Most Common Mistake:  Emotions prevailing over rational thinking

More often than not, people going through a divorce are prone to making decisions based on their emotions. Typically, divorce is a serious issue, and it tends to bring up complex issues close to one’s heart, including disputes about children, home, money, and sentimental assets. However, people going through a divorce are usually advised against giving in too much of their emotions.  It is common for partners to have strong feelings; however, giving in to all your feelings may easily cause an individual going through a divorce to fight for things that they did not want, or when the money and emotions invested in the litigation is not worth the outcome. Intense emotions may make the divorce process longer and more expensive than expected, increasing the overall cost in terms of time, money, and emotional exhaustion.

In some cases, when people going through a divorce allow emotions to cloud their judgment, the court may allow the pace of the case to slow down so that the parties can let more objectivity prevail over emotions. Emotions in a divorce are often exacerbated when a party uses unhealthy stress relievers such as abusing alcohol and illegal substances.  These unhealthy behaviors and intense feelings such as fear and uncertainty often derail individual rational thinking.

It is very important for individuals contemplating, or going through, a divorce to build their support system.  This system can involve friends, supportive family, medical intervention, and other healthy stress management practices like yoga, meditation, and regular exercise.

Individuals going through a divorce are usually expected to be in their sober state of mind while making decisions because such choices can impact the rest of their lives and that of their children.  Children are more likely to be affected by the emotion associated with divorce. (Shimkowski and Ledbetter, 2018, p. 186). Marriage and divorce courts in California require that parents cooperate and put their children’s needs first, rather than ahead of their own. In most cases, decisions that negatively affect your child or children or which make the dissolution process harder on them and maybe used against you by your spouse and the court. Thus, parents must find ways to handle their emotions during the process, outside of the presence of the children.  This expectation is very difficult for many parents; but, nonetheless, is the court’s expectation.

 

The age of social media and immediate responses

One of the best rules for divorcing people is to adopt positive strategies to deal with the stressors of divorce.  Another common mistake is to let emotions rule one’s responses to a spouse’s communications, which are often very upsetting.  It is critical that one should think before acting, and this is an essential strategy for responding to one’s spouse or an attorney.  For example:

  • avoid immediately responding to emotional text messages and emails;
  • avoid confronting your spouse when you are upset (particularly in writing);
  • avoid expressing pain or frustration in a way that involves the children, or within their hearing or presence;
  • responding before gathering all important information; and,
  • above all, remember that every text and written word, and phone call, may well end up being read (or heard) by a judge.

 

Other Common Divorce Mistakes

 

Being Violent and Abusive 

People going through a divorce should avoid being violent and abusive to their partners.  “Domestic Violence” in California including “disturbing the peace” and “free will” of a partner or spouse by sending threatening or abusive text messages or emails. They should avoid making negative comments in their children’s presence.  In California, if one engages in these behaviors, the abusive person may end up with restraining orders issued against them, which may limit or prevent time with children.  By definition, a restraining order is a court order that restrains a person from doing some activities to protect others.  In California, if a person gets a restraining order due to violence, the order may include an award of temporary custody of the children to the other spouse; and, if proven at trial, can result in a legal presumption against custody of children by the abusive party.

The court assumes that it is in the child’s best interest to be in a situation where there is no violence. To protect the children, the Court may prevent the abused person from knowing the location of the children.  Specifically, “[t]he court shall order that any party enjoined according to an order issued under this part be prohibited from taking any action to obtain the address or location of a protected party or a protected party’s family members, caretakers, or guardian unless there is good cause not to make that order” (Snape, 2017, P. 259).

People going through a divorce can avoid the possibility of a restraining order in the following ways:

  • avoid engaging in any form of violence and verbal/emotional abuse whatsoever – think before writing or speaking!
  • avoid posting sensitive information on social media platforms – remember, your common friends have access to these posts.
  • Know that social media posts and text messages are the most common forms of evidence in divorce and restraining order hearings.

 

Failing to identify and document your community (marital/joint) and separate (individual) property before leaving the common residence

Being unaware of assets, debts, and finances can be a major problem in a divorce. It is easy for your spouse to take advantage of you while settling the financial issues if they oversaw all the financial decisions in the household.  California is a “community property state,”; meaning that everything that spouses and domestic partners and registered domestic partners purchased or earned while in the marriage belongs to both parties (Wang, 2018: California Courts, n.d.). Thus, all assets acquired during a marriage are known as “community assets”, which are all subject to distribution between partners through the divorce.  In other words, both spouses own half of what they acquired together (Goldberg, 2006, p. 486). In addition, the idea of equal ownership as stated under community properties also apply to debt acquired by the partners.  This means that through the divorce, both partners will be assigned accumulated community debt equally, even if one person borrowed it.  These debts include all the unpaid balances, home mortgages, and car loans.

On the other hand, all assets acquired before marriage, and after separation, are considered separate property and they are not subjected to equal division. (California Courts, n.d.). In California, gifts and inheritance to domestic partners or spouses during domestic partnership or marriage are also categorized under separate property (California Courts, n.d.). Profits, rents, and other money that a person earned before marrying, or after separation, are considered separate property.

Failing to identify and document your community and separate property may disadvantage that party during the divorce. To avoid this problem, people going through a divorce and those in marriage must ensure that they are well informed about the financial matters of the household. Those seeking a divorce should also document all their separate assets to avoid future misunderstandings. These separate assets and cash are yours to keep, and thus failing to identify the individual or separate assets can lead to severe problems during the divorce process. If you suspect that your partner may be seeking a divorce, it is essential to get all the information concerning the family assets and cash as soon as possible. Make copies of vital financial information, including account statements (such as retirement, savings, and brokerage) and other essential data relating to your marital status. If you suspect that your partner may liquidate or transfer or sell the assets without your consent, you should notify the financial institution in charge, or file for divorce and serve the institution with notice.  Additionally, the service of a divorce Petition puts into effect certain restrains each party’s freedom to dispose of assets, change insurance policies, or to take other actions to cause harm to the other spouse.

The issue of commingling (mixing) separate and marital assets is also very common. Usually, commingling occurs when spouses or domestic partners use separate assets to buy joint/marital property. The most common example is when one spouse uses pre-marriage income to pay for an asset (like a car) purchased during the marriage.  In these circumstances, it can be tough to determine the original owner, particularly when the transaction took place several years prior to separation.  Thus, having all the documents and information in place can help to prevent misunderstanding before dissolution, or to help resolve disputes during a dissolution.

 

Failing to Obtain a Valid Marriage Certificate 

This is another common mistake that most young people are committing. Though most states in the U.S. recognize common law marriage, California does not. (Goldberg, 2006, p. 485). This means that unmarried, but cohabitating, couples are not entitled to the same benefits as married couples, or registered domestic partners. Though this may seem strange, it only simplifies that process of divorce for California citizens. Since common law marriage does not apply in California, people living together don’t qualify for a divorce, and they can separate without any legal actions. Laws of equal division and community properties also do not apply to this group of people since no divorce or legal action occurs.

To avoid this problem, people should consider getting married and obtaining a valid marriage certificate. This is important to clarify rights to assets, responsibilities for debts, and rights to custody of children.

 

Rushing the Divorce Process To Get Over It and Save Money

The divorce process is a difficult transition, and in many cases, the individuals involved are eager to get through the process and end their marriage. Often, this causes couples to enter into a marital settlement agreement without thinking things through. While it is understandable that people may rush the divorce process to quickly end the marriage and save money, this may not be the right thing to do because understanding the entire marital estate, one’s rights, negotiating terms under the law, and finalizing paperwork takes a lot of time. Thus, couples going through a divorce must understand that it is a process that cannot be properly done in a single day—rushing the process may lead to problems that may result in an unfair settlement, or cause unforeseen impacts on either the parties or the children.

Spouses and domestic partners going through a divorce are usually required by the court to work out a settlement that is fair under the law to both spouses/partners.  Understanding, and following, the law is essential because some details in a Judgment are hard to change once the divorce is over, especially those concerning properties or assets. Reviewing the terms and conditions of your proposed Judgment with an experienced attorney is essential to your understanding of the law and the terms of your Judgment before it is submitted to the court.

 

Not Following or Ignoring The Court Orders

People going through a divorce are expected to respect the orders given by the court. One needs to understand that the power assigned to the court to make orders is the same power assigned to the court to enforce orders.  Stated another way – judges do not appreciate a party who disrespects the court’s orders.  This is particularly true for orders affecting support of the family (child and spousal support) or the children, such as interfering with the other parent’s custodial time.

Failing to comply with the court order is punishable in several ways. First, the court may hold the violator in “contempt”, which can result in civil or criminal penalties, including time in jail, and/or penalties (called “sanctions”) payable to the court, the other party, or his/her attorney. When the court makes rulings concerning child support, spousal support, division of debts and assets, and custody, all the individuals involved are expected to follow and obey the orders. If you feel that the existing orders are unfair, or you cannot comply for various reasons, it is essential to use the right channel to address the problem.

 

Not Understanding Your Current Financial Position and Post-separation Budget

Divorcing couples often underestimate the cost of operating two households on the same resources as the prior household. “Men are often seen as economic winners in a separation scenario in which material resources and financial obligations are unequally distributed between the two ex-partners.” (McManus and DiPrete, 2001, p. 247).

This means that the lower wage-earner is more likely to suffer financial stressors following a separation, especially when that parent is likely to have responsibility for taking care of minor children. Thus, it is particularly important for women to understand the family’s financial position throughout the marriage, as well as the post-separation budget.  Whenever possible, it is best to understand the value of current assets and financial resources so that both parties can create a financial budget and plan before moving forward with a divorce. Financial planning and budgeting assistance from professionals, and legal advice from an attorney about issues like liquid assets and available income, are essential in assisting individuals transition out of married life.

 

To Sum It Up

Ending a legal relationship is one of the major life decisions one can make, often changes the course of an individual’s life.  Most people believe that divorce is a choice made by two people. However, it is not a requirement for both spouses to agree to end the union in California. One partner can choose to end the marriage, even when the other partner is not willing to get the divorce.  If one of the partners is not ready to take part in the divorce, the proceeding will be finalized anyway, perhaps to the defaulting party’s detriment. This is particularly true since California is a “no-fault” state which means that neither party needs to prove to the court the reason for the divorce, or that the other spouse/partner engaged in misconduct.

The divorce process often involves uncertainty, stress, and intense emotions, as the parties transition to a new way of life.  As a result of these issues, individuals going through a divorce may easily make mistakes, particularly not understanding the gravity of consequences associated with some mistakes. To reduce the potential of unfavorable outcomes, one needs to be careful and make the required preparation by seeking out the support of loved ones, medical intervention through therapy, and by utilizing healthy methods of stress management.

The risks for these mistakes usually exist in every stage of the marriage and separation process, affecting all significant aspects of individual life.  Parents need to be prepared to put their children’s needs first; or, instead of their own interests, because this perspective is expected by the courts.

It is also essential to note that the divorce case often requires the presence and guidance of an experienced and well-trained divorce attorney, who is aligned with the client’s focus on the outcome.  Be sure to interview more than one attorney to ensure that the attorney’s approach is aligned with your budget and desired approach.

 

References

Berger, Moriel, 2021.  “Causes for Divorce:  13 of the Most Common Reasons”.  Retrieved from isovereasy.com on September 1, 2021.

California Family Code section 6320.

California Family Code section 3044.

California Courts., n.d. Property and debt in a divorce or legal separation. Retrieved August 29, 2021, from https://www.courts.ca.gov/1039.htm

California Courts., n.d. Divorce or Separation. California Courts: Judicial Branch of California.

https://www.courts.ca.gov/selfhelp-divorce.htm?rdeLocaleAttr=en

Crowley, J., 2021. Divorce laws in California. Survive Divorce. Retrieved August on 28, 2021, from https://www.survivedivorce.com/divorce-laws-in-california

Encyclopedia Britannica., n.d. Divorcehttps://www.britannica.com/topic/divorce

Goldberg, C.K., 2006. The Schemes of Adventuresses: The Abolition and Revival of Common-Law Marriage. Wm. & Mary J. Women & L.13, p.483.

Lowenstein, L.F., 2005. Causes and associated features of divorce as seen by recent research. Journal of Divorce & Remarriage42(3-4), pp.153-171.

McManus, P.A., and DiPrete, T.A., 2001. Losers and winners: The financial consequences of separation and divorce for men. American sociological review, pp.246-268.

Shaw, Gabi., 2019.  11 Most Common Reasons for Divorce (Ranked).  Retrieved from insider.com on September 1, 2011.

Shimkowski, J.R. and Ledbetter, A.M., 2018. Parental divorce disclosures, young adults’ emotion regulation strategies, and feeling caught. Journal of Family Communication18(3), pp.185-201.

Snape, J., 2017. California Labor Code 2017. Lulu. com.

Wang, J., 2018. California family code section 760 — blog | Los Angeles estate planning lawyershttps://joshwanglaw.com/blog/tag/California+Family+Code+Section+760

 

Woman Finalizing Divorce by Taking Ring Off

What to do After Your Divorce is Finalized

What to do After Your Divorce is Finalized

Your divorce decree (“Judgment”) was finally signed by a judge.  Now what?  There are several steps you should take:

  1. Estate Plans and Health Care Decisions. The Judgment and the end of your marriage will not automatically revoke a trust, omit your former spouse as a beneficiary of your estate, or prevent him from being your designated representative for medical decisions.  You should re-execute any existing Living Will/Health Care Directive, or execute a new one now that you do not have a spouse to communicate your wishes.
  2. Insurance beneficiary designations. Here again, the dissolution of your relationship will not automatically revoke prior designation, even if your Judgment contains specific words about insurance beneficiaries.  Check small term life insurance plans through your bank, credit union and employers to execute new beneficiary designations.
  3. Credit cards, department, and big box store credit accounts. Obtain a free copy of your credit report.  Contact all open charge accounts to be sure that you alone have charge privileges.
  4. Your last name. Through your divorce, you may have changed your last name.  If so, be sure to contact your employer, the Social Security Administration, the US Dept. of State (passports), and the DMV so that all records have your correct name.
  5. Change titles. Review all of your accounts and vehicle registrations (including boats, ATVs, RVs, etc.) to ensure that all of your vehicles are registered in your name alone; and, that you are not on registrations for vehicles assigned to your spouse.
  6. Make sure all financial accounts have been divided. A Judgment does not automatically divide financial and retirement accounts.  First, compare all the accounts you know about to the Judgment to create a list of all accounts which need to be divided.  If either you or your former spouse had a retirement account which was divided through the Judgment, be sure to contact the retirement plan administrator to have each spouse’s share of that account properly transferred to each spouse.  Also, contact all bank, investment, and financial account holders to divide the balances as stated in the Judgment.
  7. Keep your divorce file! Obtaining copies of your Judgment and other pleadings from the court take a lot of time and can be expensive.  Keep your Judgment until you are sure that both you and your former spouse have fulfilled all your responsibilities under the Judgment.

Choosing A Good Divorce Attorney

How To Choose A Good Divorce Attorney

Going through a divorce is much more than paperwork, finances, and dividing assets and debts.  Divorce is a life event…you are transitioning from one chapter to the next.  Choosing a “good” attorney to assist you with the divorce process and this life transition is a highly personal decision.  Certainly, you should start with friends or family who has worked with an attorney; however, you should still interview at least two attorneys to find a “good” attorney for you.

A good attorney for you will be one who listens to you, understands your goals and preferences, and has the professional skills and knowledge to manage your divorce as you prefer. Here are several tips to help you choose a good attorney for you:

  1. Know what you want from the attorney. Attorneys can be retained to assist in a limited number of tasks (“limited scope”), or for full representation.  In a limited scope arrangement, the attorney represents you for only specifically-identified tasks.  For example, you may retain an attorney for representation for a child support request, but not for division of assets and debts.  Limited scope representation is most appropriate when there is only one area in dispute.  Most clients, however, retain an attorney for full representation – all issues in a case.  Full representation makes sense for most clients when there is an overlap of facts and information between issues when the client is unfamiliar with the law, and/or when the client would not be comfortable speaking in front of his/her spouse or the judge.
  2. How much communication do you want/need directly with the attorney?  During your initial conversation with the attorney, ask the attorney about the process for having direct contact with the attorney…will you have to go through the secretary, then the paralegal, and then the attorney?  And, do you have to pay for each person’s time, only to repeat yourself again when you are in direct contact with the attorney?  In other words, it is reasonable to expect that you will be immediately directed to the most appropriate person who has the knowledge and expertise to address your questions and concerns.  You should also feel free to ask about response time… how soon will the attorney respond to your questions or emails?
  3. What is the attorney’s personality? Even though the attorney-client relationship is a professional relationship, you must be comfortable when working with the attorney and/or his or her staff.  Does the attorney patiently listen to your questions and concerns?  Is the attorney flexible in his or her approach to your case?  If you would like to have easier and more direct contact with the attorney, versus staff, be sure to interview attorneys in smaller firms.
  4. “Pit Bull” or Strategist? It is rare that a case requires the same approach throughout a case.  There are many variables which an attorney should be considered before determining the approach – pit bull, strategist or a bit of both.  Pitbull approaches are effective when there are strong facts and law behind that approach.  If not, this approach often results in a high attorney’s fees and weaker results.  A good attorney will honestly discuss various approaches with you which will most closely match your preferences and available funds for attorney’s fees.
  5. Does the attorney have a record of discipline with the State Bar of California (or any other state)? Before retaining the attorney, check the State Bar’s website to ensure that he or she does not have a record of discipline.  You should also feel free to ask the attorney if he or she has been successfully sued for malpractice or misconduct.

The bottom line is that you should definitely use personal referrals as the starting point in your search for a good attorney for you and your situation.  Using these tips during your interview process will help you make a good decision.

Caring mother helping little daughter dressing for walk with dad, family talking getting ready to go out standing in house hall, divorced young couple shared parenting and joint custody concept

Essential Tips for Making a Parenting Plan Work

Essential Tips for Making a Parenting Plan Work

Parenting Plans That Work. (or How to Minimize the Need for Court and Attorneys)

Parents can minimize, if not eliminate, the need for attorneys and the court system by creating a good parenting plan.  Parenting plans created by parents also address the specific needs of the family.  To create a parenting plan that works for your family, including the following:

  1. Details! Details!  Details!
    • Parenting days and times. Certainly, as the schedules of you, your child and your ex-spouse become more complicated, there will be disagreements, time conflicts and other issues affecting parenting times.  Because of this reality, many parents are tempted to not use a parenting schedule or to create a vague schedule.  These parents often end up needing an attorney and/or the court’s assistance to later create a working parenting schedule.  If your family feels too restricted by a set schedule, feel free to include language like “if we cannot agree, then our schedule will be _______”.  Parents should also keep in mind that children adjusting to two homes greatly benefit from certain and regular parenting time.  This certainty provides the children with security when they are going through a lot of adjustments.
    • Where will exchanges occur? While most parents choose exchanges at each parent’s residence, feel free to get creative.  Consider exchanges at school or daycare, or at a midway point.  Also, be sure to consider issues such as traffic flow, each parent’s work schedule and distance from home, and the child’s extra-curricular activities.
    • How will decisions be made about your child’s school location, medical care providers and treatment? As all parents know, there is a myriad of on-going decisions which must be made about their child’s education, medical care, and extra-curricular activities.  In California, decision-making is referred to as “legal custody”, which the parents share unless they, or the courts, decide otherwise.
    • Vacations, holidays and traveling outside of the country. Discuss with your co-parent the length and frequency of vacation time for each of you (including “staycations”) and how you will share holidays.  You should also work out agreements about advance notice and any concerns either parent has about travel outside of the US.
    • Religious practices. Each parent has a right to involve a child in that parent’s religious life.  Each parent also has a right to not involve a child in religious practices.  Either way, an effective Parenting Plan will accommodate each parent’s preferred practices, or the choice to not have religious practices.
  2. Co-parenting Practices. While not essential, co-parents often benefit from agreements about how they will work with each other.  Consider including in your Parenting Plan communication practices both parents can live with.  Examples include the preferred means of communication (email versus texting) and how soon each parent will respond to the other’s communication, considering the topic, work schedules, and other commitments.  Most parents find agreements to use one form of communication and for responses “within ___ hours” reduces uncertainty and simplifies communication.

If you and your co-parent cannot work out basic agreements for the parenting plan, an attorney will be able to guide you through the court’s process to set a parenting plan through orders.  If your co-parent is inflexible, unreasonable or communication is just too difficult, contact an attorney as soon as possible.

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