FAQ's - Frequently Asked Family Law Questions:
A Grounded and Creative Approach to Relationship Breakup
Index to Articles
Selecting Your Family Law Attorney
How lawyers set their fees is a mystery to many potential clients, who are often afraid or embarrassed to ask. Here are some of the factors attorneys consider in setting their hourly rates and the amount of the initial retainer in family law matters, and some rules governing attorney fee billing and refunds.
Hiring an overly
aggressive divorce attorney may increase the adversarial tone of your case, making it more expensive and conflicted by causing unnecessary litigation. In contrast, a seasoned and balanced attorney can serve as a guide to maximize outcomes without sacrificing property rights, support rights, or custody rights. Out of court settlement should always be attempted first, and then again, although in some cases it may seem unlikely or be impossible. Here are some concerns and questions you might ask an attorney about their practice philosophy before you retain him or her.
Don't hesitate to seek a second opinion of what a lawyer tells you can be accomplished in a family law case, or why a family court judge ruled against you, and particularly if your case seems to be dragging on without resolution. Investigate your rights and gain realistic expectations and avoid unnecessary expense and distress.
People in the midst of divorce are suffering one of the most personally devastating and yet common types of loss. The breakup of relationship can be more difficult than the death of a loved one. Most attorneys have no formal training in
crisis intervention. Good ones respond intuitively, but trained peacemaking attorneys respond purposefully. Find a lawyer who can understand your needs and focus your attention on problem solving.
Attitudes for De-Escalating Conflict
If we can be aware of why we become angry and how anger and rage wears grooves into the cellular and neural architecture of our brains, a freedom from the 'tyranny of the mind' becomes a real possibility. Especially in divorce and relationship transitions.
Mindfulness in divorce can be a simple as not being triggered into reactivity by hurts and resentments - yours and your former partner's. Resentment guarantees high conflict divorce, which is devastating to you, children of divorce and partnership dissolution, and even to the person you once loved.
In these
economic times there is good reason to consider mindfulness in divorce. Who can afford not to?
Mindfulness ends the
suffering of divorce for everyone you know, and the most important people - your children, family and loved ones.
Why does
forgiveness in divorce matter? Because it may save your life.
Over 50% of first marriages end in divorce, and over 61% of second marriages. People come and go, and families become extended and blended over time. Recognizing this fact may help you to see things less personally, and so to avoid
the "cut-offs " that often occur as family structure and members are redefined.
Meditating is a powerful tool for overcoming stress and the addictive thinking of the 'monkey mind' of divorce. Here is a short and excellent description on how to unfocus and allow everything to be as it is (which it will be anyway, right?)
Equanimity is an essential tool in dealing with the family stress and strife. This is a technical article about
equanimity in the Buddhist tradition, which may provide a valuable insight or two for people in divorce or relationship conflict whatever their spiritual preferences.
Debts of Spouses
In California
community property is liable for debts of either spouse incurred before and during marriage. Earnings during marriage cannot be tapped to pay separate property debts of the other spouse, as long as these earnings are segregated. Separate property is generally not liable for these debts, but there are important exceptions relating to necessaries of life. Debts may be distributed in a Family Law Judgment according to a marital settlement agreement.
Child and Spousal Support
Parents owe child support, and in certain cases
grandparents who are the legal parents of children may also owe it. The community property of a new spouse may also be liable for child support, although limited reimbursement rights also exist. A court order must exist for the child support obligation to be enforced.
A non-working spouse is entitled to derivative
Social Security benefits equal to 50% of what the working spouse receives based upon his or her earnings' record, so long as the marriage lasts for at least 10 years and they don't remarry. Social Security benefits are not assets that can be divided in divorce as between the parties or by a court.
There are many ways to enforce child support orders whether issued in California or another state. California has some of the toughest laws for ensuring support gets paid. Private enforcement methods include
wage assignments and
earnings withholding orders,
writs of execution and receiverships,
contempt of court (and the threat of jail time), security funds, and other choices. Public agencies can suspend driver's licenses and professional licenses, and intercept tax refunds.
Temporary spousal support in California can be a complicated matter. It is determined in the same was as child support is set.
Child Custody Rights and Visitation
Joint custody includes two separate concepts of
legal and physical custody. Generally in cases where there is no history of domestic violence by one parent, or issues of substance abuse, California courts award parents joint legal and joint physical custody. These labels may have important consequences. Ultimately what really matters is the physical timeshare which each parent shares.
Contrary to what many people have heard, there is no fixed age at which a child's preference for living with one parent or another matters or controls. Generally, however, as children become adolescents their wishes and preferences become more important [Please note: Given 2011 changes in the Family Code, please use the search engine at the upper right to find our most recent articles because these
rules regarding kid's preferences have changed].
Domestic Violence and Intimate Partner Abuse
This is an article which has some important statistics about domestic violence in the United States, and that discusses the fact that many
women who are victims of intimate partner abuse suffer from drug and alcohol dependency, which sometimes leads to arrest and incarceration, and post traumatic stress disorder (PTSD).
Why Physical Separation Matters
Legal separation can be identical to divorce, except that the parties remain married. It is a way to manage liability for debts, to avoid creating community property, and to allow social security rights to continue to accrue or to protect against the cancellation of health insurance. The court can divide property, fix alimony or child support rights, and issue custody orders.
Physical separation is a critical concept in California family law with
dramatic consequences for what is or is not community property and how long a support obligation may continue. Once parties separate, their earnings cease to be joint. Property acquired after a separation is presumed to belong to the party who acquires it. What constitutes a physical separation, however, depends upon the objective facts (do the parties live under the same roof?) and their subjective intent (has one partner decided the marriage or domestic partnership has ended?).
Community Property Characterization and Division
Property owned by a spouse before marriage begins as their separate property. However, it can be t
ransmuted into community property by way of a
deed, or if there is a mortgage that is paid with earnings during marriage the community develops a reimbursement right which is usually calculated using the
Moore Marsden formula.
Refinances are extremely common and yet married couples or
domestic partners are clueless about the effects. This information is useful whether you are considering a dissolution or just want to know what to be careful about.
Marital Fiduciary Duties
Fiduciary duties between spouses can have a completely unforeseen and unexpected affect on the division of property in California divorce or dissolution of domestic partnerships. Presumptions of undue influence can arise that cause self-dealing transactions favoring one spouse over the other to be set aside. They include an obligation to be truthful and disclose all material information to the other spouse or partner, and limit one spouse's rights to control assets.
A
full disclosure of assets and debts must be made early on in a divorce or domestic partnership dissolution.
Our Top California Family Law Blog and All the Rest
Consider a Mindful Divorce - Your Children Depend Upon You.