Andrea Kaye and Stan Prowse Legal Eagle Radio

Military divorces are different, right from the beginning. If we're talking about a service member who's on deployment, we have to know where he or she is in order to serve the member with the petition for dissolution of marriage. In some situations, there is no way to find out, because the nature of the member's current deployment may mean that the member's whereabouts is classified information. We also have to determine if our court will have personal jurisdiction over the member, even if we can serve the member properly. Many service members maintain their legal residence in the state they lived in before they joined the service. Let's say we are talking about a female whose legal residence is in Alabama. We also know her current address, but she's not in California and she's never lived in California. Even if we can serve her, she may decide not to file a response. If she doesn't file a response, as a general rule the court doesn't have personal jurisdiction over her. We can still ask the court to enter her default, and the court can deal with custody of minor children in most circumstances, but otherwise as a general rule the court can't do anything else but dissolve the parties' marriage. For example, the court can't deal with the division of community property. If there is any of consequence, that's a problem. Another problem is delay. Under the Service Members Civil Relief Act, a service member on active duty can obtain a postponement (called a stay) of court proceedings if the member's duties do not permit leave time to go to court. The procedure the member must follow to obtain a stay is complicated, but with persistence it can be accomplished. Another problem is establishing the member's income for purposes of spousal and child support. A service member's pay stub is a Leave and Earnings Statement. It's nothing like a civilian's pay stub, and a lawyer unfamiliar with one will have a very difficult time understanding it. Dividing military retirement benefits is also considerably different than dividing civilian retirement benefits. This list of differences between military divorces and civilian divorces goes on and on. If you or your spouse is a service member, and you need a divorce, find a family law attorney that is experienced in military divorces. We have that experience.

Senior Divorce For Those Over 50 According to a recent article in The Wall Street Journal, the overall divorce rate has decreased slightly.  However, the divorce rate among people over 50 has increased substantially.  In 1990, the rate was one in ten.  In 2009, the rate was one in four.  In other words, nowadays 40% of all divorces involve spouses over 50 years old.  We’ll call them senior divorces.  For me 40% is a surprising statistic.  Although I haven’t kept track, it seems that most of the divorces I’ve handled were between spouses with small children, which would make Mom and Dad roughly 25 to 40. We’ve all heard about couples staying together ‘for the sake of the children’ and parting company only after the kids were grown up and gone.  Those may have been senior divorces, but years ago they were only noteworthy because they didn’t seem to happen very often, and friends and neighbors were shocked when they did.  You’d think surviving twenty or so years of marriage would be a pretty good indicator that ‘til death do us part’ would turn out to be true.  However, something must have been going on to increase the rate of senior divorces fourfold in 19 years. One thing that’s obvious is the increased number of households with working women.  When I was a child, none of my friends had working Moms.  They were all home in their house dresses, doing laundry and baking cookies.  Without jobs and their own incomes they were financially dependent on their husbands, and after their children left home they turned to garden clubs and charity balls.  By the time women were 50, divorce for most of them was virtually unthinkable economically, so they just didn’t think of it.  Period. No Fault Divorce and The Desire for Financial Independence It was also unthinkable socially.  It’s easy to forget that no fault divorce is a relatively recent invention.  Before no fault, a spouse who wanted a divorce had an affirmative burden to prove he or she was entitled to one, because the other spouse had done something morally reprehensible, like beating or cheating.  People hired private detectives.  It was a big deal.  Now if you want a divorce, you just check the “irreconcilable differences” box on the form.  If your spouse doesn’t want a divorce, too bad for him or her.  For better or worse, divorce is now normal.  A senior divorce is no longer embarrassing. We also live in an age that demands and celebrates happiness and self-fulfillment.  Unhappiness and self-sacrifice and are decidedly out of fashion.  A joyless and confining marriage should not be endured, especially after the children are out of the way.  Instead it should be ended, and ending the second is probably easier than ending the third, and so on.  In this climate, an increasing rate of senior divorce was probably inevitable.  Fiftieth wedding anniversaries may become highly unusual.  Even passing that milestone is no guarantee of staying together - we recently divorced a couple in their 80’s! The contrast between yesterday and today is easy to see and goes a long way towards explaining the rising rate of senior divorce.  Working women are educated and financially independent, which makes emotional independence attainable once it feels necessary.  A wife’s financial independence also reduces a husband’s guilt if he instigates the breakup. Whether you’re female or male, or 60 or 70, waking up in the morning and feeling you have to go out on your own again and “find yourself” is now Ok instead of alarmingly weird. So, all you grown children feeling smug about having parents who never divorced, watch out.  Any day now with little or no warning, Mom or Dad may well decide to take off for greener pastures and surprise the daylights out of you. Carlsbad Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.

California’s legislature has given husbands, wives, and domestic partners of any persuasion the right to dissolve their marriages or domestic partnerships on the basis of irreconcilable differences.  Fault is not an issue.  Singing,“You cheated, you lied, you said that you loved me,” in Family Court gets you nowhere.  The process is also form driven.  There is one for almost everything and you have to use them.  And if you force yourself to read them carefully they do make sense.  Better yet, if you and your attorney fill them out completely when you’re supposed to and follow the italicized instructions exactly, things will go along much more quickly and much less expensively than otherwise.  The basics are not complex.  Dissolution of a marriage or a domestic partnership involves three major issues: Property Division, Child Support and Child Custody (only if you have minor children), and Spousal Support. Property Division The first issue is identifying all of the assets and debts both of you have, characterizing each as community or separate, dividing the community items in half, and confirming which separate items belong to each of you.  Everything you earn or acquire while you were married (which for convenience in this discussion includes being in a domestic partnership) and still living together (before your date of separation) is presumed to be community, the same for debts.  Separate assets and debts are those you had before you married, gifts or inheritances you received while married, and assets and debts explicitly acquired by you as separate property while married, unless you mixed up separate with community so you can no longer identify the separate.  Do your best to accept the proposition that fifty cents of every dollar you ever earned while married belonged to the other guy.  It’s true unless you have a prenuptial agreement that says otherwise. Child Custody and Support The second issue is child custody and support.  These days you have to be a very bad person or live in Outer Mongolia not to have joint legal and physical custody, so arguments over sole legal or physical custody have largely given way to arguments over timeshare - the ratio of the time (as a percentage) each of you has responsibility for the kids.  If you can’t agree on who has the kids when, don’t start World War III over it.  The State will happy to decide what’s best for them whether you like it or not.  Before a judge can make an order on the subject you have to go to mediation with Family Court Services.  If you still can’t agree, the FCS mediator will recommend a timesharing schedule to the judge, and the judge will adopt the recommendation as the order almost every time. Now that you know the time share percentages, calculating child support is easy.  A computer program is mandatory.  Although the program is the most complicated in the country, the inputs are simple.  The first is the timeshare of each party.  The second is the average monthly income of each party over the past twelve months, which for most people is not hard to determine.  Sorry, debts don’t count in determining what you pay.  Neither do expenses, except for health insurance, child care costs, and a few other deductions.  If you can’t manage your child support and your debts at the same time, your next stop may be bankruptcy court. Spousal Support The third issue is spousal support, which is either temporary (prejudgment) or permanent (post judgment).  You can agree on this yourselves.  If you can’t the computer program for child support also spits out a number for temporary spousal support.  It’s not mandatory to use the number for temporary support, but it’s usually what’s ordered.  The judges aren’t supposed to use the program for permanent spousal support, but they do anyway - nobody really knows what to do with the specific factors set out in the Family Code for permanent support, although everybody agrees that permanent spousal support should probably be lower than temporary.  Unless you’ve been married  for only a few years, the judge will probably not order a termination date for spousal support.  If you want it recalculated or terminated you’ll have to come back later and convince the judge that something has changed to justify doing so.  Each party has an obligation to become self supporting and to contribute to the support of the kids, but it’s easier to announce that rule than enforce it.  Compelling a previously non-working spousal support payee back into full-time employment is a protracted and expensive proposition. And there you have it.  The devil is in the details. Carlsbad Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.  

Self control is an old virtue.  Lately it seems people have less of it in private and public than they used to have.  This is too bad, particularly if you are going through a divorce.  Losing it completely at home is also a good way to start one, because it will probably get you arrested and kicked out of the house. At the hearing on whether to issue a permanent domestic violence restraining order, the person from whom protection is sought (by definition the person who got arrested, aka the "perp") starts off at a tremendous disadvantage, even if wrongly accused.  What is the best way to ensure that the order is issued against you?  You guessed it: act angry and belligerent, and fail to control yourself.  Even if you were in fact the victim, by acting like a jerk you'll seal your fate. Even if the divorce doesn't start with an out of control argument and an arrest, the need for self control is still just as important, particularly if minor children are involved.  Before the judge even sees you at the hearing to decide who gets the kids, you will have to spend a morning with a Family Court Services mediator. The mediator doesn't care about you.  The mediator cares about the welfare of the kids.  If you can't control your urge to argue with your soon to be ex, and to tell the mediator that he or she is a dirtbag, you can pretty much kiss the kids and any form of child custody goodbye.  On other hand, if you control yourself and talk calmly about your concerns for the kids' welfare, fate is much more likely to smile upon you.  Controlling yourself at the actual hearing is no less important.  If you have a lawyer, your opportunities to self destruct are limited, but you can still manage it by smirking and rolling your eyes during the presentation by the opposing lawyer.  If you don't have a lawyer helping you to stay calm and impassive, you'll have to do it yourself.  If you screw up and act like a jerk again, you may wind up with supervised visitation only. In that case, a whole new minefield is waiting.  You would like to get out of supervised vistation as quickly as possible, but you can easily make it last longer than it should by losing your self control at exchanges, or by giving in to the urge to bad mouth your spouse to the kids when the supervisor is listening in. Even without kids involved, and with or without an attorney, sef control throughout the whole process is essential.  Let go of the anger when it comes to property division.  Forget any thougts of concealing some of it.  It's an accounting problem, not World War III.  Accept a reasonable compromise rather than insisting on grinding the other guy into dust.  If you have to pay spousal support, don't play games by paying it late. Chances are you are not too great on self-control if you wind up in a divorce in the first place.  In any event, self control is essential to get through the process with your sanity intact, ready to start your new life on a sound foundation.  So, if you haven't got self-control, work hard at getting it.  If you already have it, work hard to keep it.  Self control is still a great virtue.

California's Domestic Violence Prevention Act was passed in 1993, signaling a zero tolerance policy for civilian domestic violence.  Since 2001, the Department of Defense has also had a zero tolerance policy for domestic violence in the armed forces. The definition of domestic violence covers a lot of ground. Here are the basics from the California Domestic Violence Prevention statute: intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, placing a person in reasonable apprehension of immanent serious bodily injury, molesting, attacking, striking, stalking, threatening, battering, falsely impersonating, harassing, making annoying telephone calls, destroying personal property, contacting directly or indirectly by mail or otherwise, coming within a specified distance, and disturbing the peace.  The military definition is similarly broad. Who can be protected? Again the list is inclusive: spouses, people who have lived together, and people who have merely had romantic relationships. In the civilian world in California, the victim fills out forms and submits them to the clerk's office.  The forms identify the victim as the "protected person."  The perpetrator is blandly identified as the person from whom protection is sought.  The forms list the orders the protected person can request.  The usual orders are referred to generally as "stay away" orders and "no contact" orders.  The typical stay away order is 100 yards.  No contact orders typically prohibit contact of any kind, direct or indirect. The orders typically last three years.  If the parties are living together, the perpetrator is ordered to move out. The clerk takes the forms to a judge, who decides whether to issue the requested orders on a temporary basis. If the judge decides to issue them, he sets a hearing within two or three weeks. Whenever Temporary Restraining Orders ("TRO's") are issued, they include an order to turn in or sell any firearms the perpetrator owns or controls. All of the above happens without any notice to the perpetrator, who gets served afterward with a notice of the hearing along with the temporary orders themselves. The hearings are typically "he said, she said." In the vast majority of cases, a wife or girlfriend is the protected person. Although many of the alleged incidents tend to be embellished and some may be entirely fabricated, something has usually happened that falls within the draconian definition recited above, so a "permanent" order is typically issued. In the military world, the sequence of events is similar. The victim complains to the service member's command, and the command issues the orders. However, there is (as far as I can tell) no hearing where both parties are present to give their sides of the story. Given the zero tolerance policy of the military, it appears that military protective orders may be just as easy to come by as civilian protective orders, if not easier. Permanent domestic violence protective orders can be devastating for the perpetrator. In the military, they can end the prospects of promotion and perhaps lead to separation with an administrative discharge, hampering the service member's job prospects in the civilian world. In the civilian world the consequences are similar. Any position requiring an employee to carry firearms, or obtain a security clearance, is likely to be unobtainable. A permanent domestic violence protective order in the context of a married couple is likely to be the opening salvo of a divorce proceeding.  It also bears mentioning that serious domestic violence can lead to criminal charges both in the civil and military arenas. Lastly, if children are involved, either as victims or as bystanders, the perpetrator parent can look forward to losing custody and being consigned to supervised visitation only, for a lengthy period. Domestic violence is serious business. Taking behavioral cues from video games, action movies, and out of control celebrities is not smart.

Dividing a military pension is a minefield Dividing a military pension is like walking through a minefield. From the perspective of both the service member spouse and the non-service member spouse, unexpected and unwanted results are an ever present risk. Why should it be so hard? One reason is that military pensions are the creation of federal law, but federal law does not tell you how to divide them in the event of a divorce. Another reason is the complexity of the federal statutory scheme. Until 2014, for example, a dollar for dollar trade off existed between retired pay and disability pay. A service member could agree to a division of retired pay in his or her divorce, but later decide to trade retired pay for VA disability pay. VA disability pay is not subject to division in a divorce, so suddenly the former spouse could be surprised by a dramatic reduction in her or his payments from DFAS. Congress fixed this in 2005 by allowing concurrent receipt of disability pay and retired pay ("CDRP"), so that the former spouse's benefits are not reduced by a disability pay election after divorce. But not so fast. The law only applies to certain classes of retirees. The general rule is that the service member retiree must have at least 20 years of creditable service and a VA disability rating of at least 50%. If the service member retiree doesn't meet these criteria, this seemingly past minefield is still there, and pre-CDRP protective strategies used by the non-service member spouse during divorce will still be in play. And there's more. Congress has also provided Combat-Related Special Compensation ("CRSC") for service members with at least a 10% disability directly related to the award of a Purple Heart, or to combat, operations, or hazardous duty. By statute it is not retired pay, and it is not divisible as property. Neither is it compatible with CDRP, which stops upon receipt of CRSC, although any past-paid CDRP has to be given back. This means that an eligible service member retiree can once again forestall what would otherwise be an award to an ex-spouse of a share of military compensation earned during marriage. The state courts are split on whether pre-CDRP protective strategies for dealing with a disability pay election will be effective in dealing with CDRP.

Divorce and PTSD The first question for an attorney representing a service member is whether his client has PTSD. Clients don't come in the door with their psychological issues written on their foreheads, and asking someone if they've been diagnosed with PTSD is probably not the best way to start a succesful relationship.  On the other hand, there are tactful ways to approach the issue.  You can certainly ask, 'When did you last deploy?  Were you in a combat zone?'  However, that's dancing around.   In my experience, the best way to approach possible psychological issues in a military divorce is the same way they should be approached in every divorce. Part of the client's intake process in every case should be obtaining the client's medical history.  Whether you're dealing with a Fortune 500 executive who's been forced to take unwanted early retirement, or a PFC who's coming off several months in Afghanistan at a forward fire base in the middle of nowhere, you can't represent the client effectively without knowing his or her medical issues. You don't want to discover for the first time in the middle of a custody dispute that a military client's being treated for severe PTSD, any more than you want to discover that a civilian client's being treated for psychological problems caused by domestic violence or emotional abuse.  It's also worth remembering that service members diagnosed with PTSD have a broad spectrum of issues, and that none of them in any particular case may be genuine issues when the subject, for example, is successful parenting.  Here's the bottom line.  The guys on the other side will always be looking for something wrong with your client, whether it's PTSD or something else.  Your attorney should immediately know everything about you that the other guys might use against you, so that whatever it might be, it can be explained and drained of prejudicial impact on your case.  If you're a current or former service member with PTSD, and you're looking for a divorce lawyer, don't keep your PTSD a secret, and don't hire a lawyer who's afraid of helping you deal with it successfully in your divorce.

Child custody in military divorces often looks different than it does in civilian divorces.  Many young men marry their high school sweethearts before they enlist.  Their wives travel with them to wherever they are based.  Soon there are small children.  The combination of low pay, stressful parenting, and homesickness often destroys the marriage. Without local roots, and usually without jobs (or jobs worth keeping), wives tend to feel that their best option is to go back home to their families, where they will have a ready made support system for themselves and their babies, including free baby sitters, and perhaps a better opportunity to find a job through family friends.  Let's say back home is Alabama. Typically the initial separation is supposed to be only a temporary visit back home, but it turns into a permanent relocation.  This is a dangerous situation for the service member husband and dad when it comes to child custody, because the California courts will lose jurisdiction over the children to the Alabama courts once mom and the children have been in Alabama more than six months.  In other words, unless dad files for divorce here in California before his children have been gone six months, he's not likely to get them back.  Instead,  after six months mom will file for divorce back home, and the Alabama court  will decide whether the children return to California to be with dad, or whether they stay with mom.  Under those circumstances, it's highly likely that mom will get sole custody of the children, and dad will only get visitation.  Because of limited leave time, travel time, and travel expenses, dad will most likely be with his children only a couple of weeks a year while they are little kids. Military dads must be aware of this six month rule and file for divorce before their time expires.  If they do file here in California within six months, it is highly likely that the California court will order mom to return the kids to dad pending the conclusion of the divorce proceedings.  The court cannot order mom to come back with them, but almost invariably she does.  When mom comes back with the kids, the custody picture changes favorably to dad by a large margin.  The general rule is joint legal and physical custody.  A 50/50 time share may not be attainable, but the frequency and duration of the periods when dad has the kids will be far greater that they would have been if mom and the kids had remained in Alabama. 

High Conflict Divorce Cases and Mental Illness Divorce lawyers refer to some divorces as "high conflict cases."  Over the past few years we've realized that some form of mental illness drives many of them. High conflict cases usually involve child custody and visitation.  The parties cannot agree on anything and fight about everything.  The cases  go on interminably through numerous motion hearings and are resolved only by trials. I'm neither a psychologist nor a psychiatrists, so I'll keep my comments on this phenomenon in plain English. Consideration of mental illness may help answer some puzzling questions in high conflict cases.  For example, why is Mom so convinced after separation that Dad is a terrible parent who should get supervised visitation only, when prior to their separation Dad's parenting skills seemed acceptable?  Why is there such a disconnect between the available evidence and Mom's accusations of Dad's unfitness?  We could easily reverse the genders. Children And A Parents Self Worth We now understand that some parents sense of self-worth is excessively and intimately bound up with their children.  They are overly dependent upon them.  If they feel threatened with the loss of a child to the other parent, they feel threatened as well with the loss of their own identity and their reason for being.  They can't let go, and consequently tend to view the child as their exclusive personal property. This inevitably produces a battle with the other parent over the child's affection and loyalty, which in turn harms the child's own sense of self-worth, reduces the child's ability to trust others, and generally makes the child miserable.  The overly invested parent will probably try, figuratively or literally, to take the child away from the other parent. Assuming we decide that the overly dependent, overly invested parent is abnormal to the extent of mental illness, what do we do about it?  The courts can do very little to help such a parent.  He or she can only be ordered to outpatient "counseling," and for no more than a year.  The court can also order a psychological evaluation and a custody evaluation, but neither is therapeutic. High Conflict Child Custody And Visitation Disputes From a practical standpoint, introducing mental illness into the mix may do little more than provide the court with something else to lean on when it makes child custody and visitation orders in high conflict cases.  Genuine mental illness suggests the potential futility of attempting to settle high conflict child custody and visitation disputes by negotiation.  Unfortunately, it also suggests that aggressive advocacy on behalf of the mentally ill parent before and at trial will be counterproductive for both parents and for the child. In my practive I remain mindful of these consideratins at all imes in high conflict cases.  When mental illness appears to be a factor in my client's behavior, I do everything possible, with tact and discretion, to induce my cleint to recognize his or her problems and voluntarily enter long tern serious therapy. San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.

As a serving sailor or marine, you have a right to treatment of PTSD Whether you are a serving sailor, marine or retired service member, you have a right to treatment for PTSD.  Federal statutes and regulations creating the Veterans Administration and governing the care it provides guarantee the availability of multiple treatment options. If you've retired, and you think you are suffering from PTSD, the obvious place to start is a VA hospital.  However, given the scandals presently unfolding regarding timely access to care at VA facilities, you owe it to yourself to get on the Internet and find out what's out there for you, before sitting in a waiting room for hours on end. The first problem you'll encounter is an information age standard: too much information. having trolled through some of it, it seems to me that the best place to start would be the site of the National Center for PTSD.  This site does not provide clinical care or individual referrals, but it does help veterans find local mental health services and information on trauma and PTSD.  Right on the first page, you'll find phone numbers for the Veterans Crisis Line, the National Suicide Prevention Lifeline, and other emergency help. After that the going gets a little tougher.  I suspect that if you are reading this, and in fact suffering from PTSD symptoms, you will find yourself overwhelmed before long going from link to link and reading up on what PTSD is and what you can do about handling yours.  I think this may call for a slightly different approach than you might imagine.  Veterans sometimes call my office an want to know who they can sue to get help.  The answer is you can't.  That's probably a good thing.  Litigation would not be helpful.  But you can complain.  Would writing to anyone in the government help?  Past experience indicates it wouldn't.  About all that ever comes back are form letters.  However, you and everyone else has a member of Congress elected from the district where you live.  They're easy to find.  If you don't already know who yours is, try looking on the general federal government web site, USA.gov. Get the address and phone number of the local office. In the office there will be a number of staffers whose job it is to make constituents happy.  That includes you.  A living person will actually talk to you, listen to your problem, and make a conscientious effort to help you by answering your questions and directing you to the next step, in a concrete and focused fashion.  Maybe I'm dreaming, but I believe that's how it's supposed to work, and that it does.  A final thought.  Enroll everyone you know in your battle to get the help you need. And don't give up!

Separate Property in A Divorce There are many things to consider if you’re thinking about divorce.  One of the most important considerations is records.  If you have what you think is separate property, be prepared to defend it, because you have the burden of proof.  Proving that “no” community property has gone into your separate property is the problem.  If community property has paid any expenses of your separate property, the community is entitled to reimbursement, so you lose half of the amount in question. If community property has paid part of the purchase price, made a mortgage payment that partially reduced the principal, or paid for part or all of an improvement that likewise increased the value, the community acquires a proportionate interest in the property.  This has a snowball effect if we are talking about a series of properties of increasing value. Accurate Financial Records of Separate Property Avoiding a community reimbursement claim or a community interest claim requires accurate and complete financial records going back to when the property was acquired.  If the separate property we’re talking about was purchased with the proceeds of previously owned separate property, “when it was acquired” means when the first separate property in the chain was acquired.  That could easily mean going back twenty years. If you are counting on obtaining the needed records from a financial institution or an escrow company, you are in for an unpleasant surprise.  They usually don’t keep records more than six years, even on microfilm or electronically.  Also bear in mind that if you can’t account for a portion of the purchase price, that portion will be presumed to be separate property. Moreover, the records must allow you to trace all payments to their source.  You may be able to prove that the down payment came out of your separate checking account, but you also have to prove that the money was separate property when it went into your checking account.  If your Aunt Matilda sends you a $10,000 check every year, be sure the check is payable only to you as your separate property, and that you keep a copy of it. Checking, Investment and Escrow Account Records If you’ve been prudent, you will have kept all your checking account records, investment account records, and escrow records.  You will also have kept meticulous records of the income and expenses of your separate investment property.  If they show the property always carried itself, great.  If they don’t, you’d better be able to show that any shortfall was made up with your separate funds. Lastly, assuming you kept all the records you need to protect your separate property, make sure they don’t disappear.  Added to the usual risks of fire, flood, and moving is the risk that your spouse may destroy them or hide them at the first sign of serious marital discord.  Have at least one complete set of copies, and keep it in a safe place under lock and key. San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.

If a divorcing couple has minor children, child support will be one of the main issues in their divorce.  Here are five things to remember about how child support works.  To find out how much you will pay or receive, someone has to do the following five things: 1.  Determine Custody. Joint legal and joint physical Joint legal, sole physical, visitation Sole legal, sole physical, visitation “Primary residence” ? 2.  Determine a parenting plan Holiday schedule School breaks (year ‘round?) Summer 3.  Calculate time share Partial days School days More time supporting parent has, the lower the payments 4.  Determine income Employees with regular paychecks – easy Self-employed – difficult Commissions and bonuses 5.  Adjusting the computer’s figure Front end – impute income Back end – “add-ons” San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.

Why is divorce so expensive?       And why does it take so long?  Why is divorce so expensive? There are many reasons.  Let's look first at dividing the assets.  Most middle class couples have more than one checking account, savings account, and money market account.  Let's take them and cut them in half.  First we have to know the date of separation, because we're going cut them in half as they existed on the date of separation.  Perhaps the date of separation is not an issue, but we still need to have statements for all the accounts for the month in which separation occurred.  If you do online banking, it's usually quick and easy to accomplish that.  However, we're also going to need copies of all the monthly statements for all the accounts for all the months from the month in which separation occurred down to the present.  That can be a surprisingly large number of statements.  Community Debt, Separate Property And Reimbursement Claims Why do we need all those statements?  The answer is that some amount of debt existing at separation is almost always paid after separation with money earned by one of the parties after separation.  The debt is community debt, while the earnings are separate property.  A party who makes a payment on a community debt with his or her separate property is entitled to be reimbursed.  In other words, the other party owes the paying party one half of the payment.  Unless you're prepared to forego what may be substantial reimbursements, someone has to examine all those statements, and perhaps all the checks drawn on the accounts, to identify and prove all your reimbursement claims. On the other side of the coin, when community funds are used to acquire or improve one party's separate property, that party must repay the money to the community.  In other words, the party owning the separate property has to pay the other party half of the money spent during the marriage on the separate property.  These reimbursement claims can be based on payments made years ago.  That means acquiring and examining even more account statements, unless you're willing to kiss the claims goodbye.  Most people aren't, so finding and asserting reimbursement claims of both kinds requires hours and hours of work. But, you ask, why can't we just divide the accounts immediately based on the statements for the months in which separation occurred?  Sounds like a good idea, but one party may blow the money immediately, only to discover eventually that he or she owes the other party substantial reimbursements or a substantial equalizing payment.  If the money were still in the accounts, it would be available to pay to the other party, but it's not, leaving the other party high and dry.  ATRO's "Automatic Restraining Orders" and Division of Community Property Each side usually refuses to take that risk, so the accounts remain undivided until the final reslution of the case.  The Family Code attempts to minimize the risk by prohibiting either party while the case is pending from using both community and separate property for any purpose other than reasonable living expenses without the agreement of the other party or a court order.  This prohibition is one of the automatic restraining orders ("ATRO's") which become effective immediately at the beginning of the case.  The ATRO's have the unintended consequence of discouraging immediate division of monetary assets when at least partial immediate division would benefit both parties, reduce animosity, simplify matters, and help get the case over with earlier than otherwise. QDRO's "Qualified Domestic Relations Orders and Retirement Plan Division A monetary asset whose division can be similarly time consuming is a retirement plan created to make saved earnings tax exempt as long as they remained saved.  These are either "defined contribution plans" or "defined benefit plans."  Such plans "quailfy" to produce the desired tax deferral by adhering to certain arcane provisions of the Internal Revenu Code.  Because they are "qualified" plans, dividing them requires a "qualified" court order also adhering to the Code.  Such orders are called qualified domestic relations orders, or "QDRO's."  The preparation of QDRO's has become a legal sub-specialty.  Preparation of a proposed QDRO satisfying both parties and the plan administrator can take months. We could go on and on with time consuming and document intensive problems encountered in dividing community property so that the legal rights of the parties are satisfied.  Because each party is typically intent on getting all of his or her legal rights satisfied completely, and each party's attorney knows who will be blamed if that doesn't happen, family law attorneys are usually afraid of compromises, again dragging out the proceedings. Determing Spousal Support - Family Code Section 4320 Similar considerations tending to generate long delays and inordinate legal fees are at play in all of the other tasks which must be accomplished to produce a final judgment dissolving a marriage.  Custody and visitation issues can easily defy a quick resolution, and they usually do.  Rare is the case in which a preliminary pronouncement of complete agreement proves to be true.  Determing spousal support requires the application of sixteen different factors and sub-factors spelled out in section 4320 of the Family Code.  The amount of potentially relevant information is mind boggling.  Acquiring it can take months.  Analyzing it and arguing over it can take more months. Getting married is quick and easy.  Getting divorced is slow and difficult. That's the nature of the beast.

1. Withdraw half of the money you have in joint bank accounts, and put it in a new account in your name alone at a bank where nobody knows your spouse. This includes all checking, savings, and brokerage accounts. Your spouse and his or her lawyer will profess to be shocked.  Pay no attention, but be sure to do this before the petition is filed.  Stop using the old joint accounts.   2. Copy all account statements and similar financial documents and put them in a secure place where your spouse can’t find them, like a safe deposit box in your name alone.  Go back as many years as possible.   The originals may disappear. 3. Get your own credit card if you don’t have one already.   When you separate, start using it and cancel all the joint cards you had.  Also cancel the home equity line of credit if you and your spouse have one. 4.Change your will.  If you and your spouse have a family trust, revoke it and do a new one.  You don’t want your spouse to get your half of the community property if you die before the divorce is final. 5. If you’ll need temporary spousal support and you’re entitled to it on the numbers, prepare the court papers asking for it when you prepare the petition, and file both at the same time.  Don’t wait until after the petition is filed.  Ditto for child support and custody.  Don’t assume you and your spouse will be able to agree on everything. PDF Download Version San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.

The phrases contested divorce and uncontested divorce can be misleading.  Let’s take contested divorce first, because its meaning is clearer than uncontested divorce.  From the court’s viewpoint  contested means that the case ended with a trial, the judge decided the issues, and the decision is attached to the one page mandatory judgment form as the terms of the judgment.  Of course, there are trials and there are trials.  In some cases the parties can agree on all issues except one or two, and those are the only issues decided at the trial. In that event the terms of the judgement are a combination of the judge’s decision on a few issues and the parties’ agreement on the rest. Going to Trial over Divorce or Not? If there is no trial the divorce is uncontested.  All cases in which the parties reach a settlement on all issues are uncontested in this sense.  From the parties’ viewpoint the case may have looked like World War III, but it just didn’t go to trial.  Instead it settled completely, the parties signed a Marital Settlement Agreement, and the judgement (with the Agreement) was entered without a final battle between them. Default Cases and Default by DESIGN - Uncontested Divorce There is a subcategory of uncontested divorces that deserves special mention.  Those are default cases.  There are two types.  In the first, the respondent refuses to discuss the issues and doesn’t file a response to the petition.  At the petitioner’s request, after the time to respond has expired (30 days after service), the clerk enters the respondent’s default.  After that, the respondent has no right to participate in the proceedings, and the judgment is entered on the basis of evidence presented by the petitioner alone, by written declaration or orally at a “prove up” hearing. The second type of default case might be called default by design.  Here the parties have settled all issues, signed a Marital Settlement Agreement, and want to avoid paying two filing fees (one for the petition and one for the response).  The petitioner takes the respondent’s default, and the judgment is entered on the basis of their Agreement. In practice many couples separate initially on good terms and one or both of them expect an uncontested divorce without any court hearings.  Most of the time this expectation is unrealistic and not fulfilled.  However, it is the source of many calls we get from potential clients asking us what the cost would be of an uncontested divorce versus a contested divorce.  The question is impossible for us to answer, except to say that in simple cases where the parties do prove to be in agreement on everything with no arguments, the cost might be a few thousand dollars, while the cost of a contested divorce will be much more. High Conflict Contested Divorce Cases When the parties have come to hate each other, especially when they have children, high incomes, and numerous high value assets, significant fees and costs are likely to be incurred, despite our best efforts to save our clients stress, time, and money by draining the emotion out of their cases and creating a climate more condusive to agreement than argument.  We can and will deal professionally and successfully with high conflict cases, but we believe our clients’ best interests (as well as their children’s) are better served when high conflict can be reduced with the help of our experience and sensitivity.  Please call us for an appointment to discuss your case. Carlsbad Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.  

Many people ask about the difference between legal separation vs divorce.  Sometimes they ask because they are not sure their relationship with their spouse is irretrievably broken. Sometimes they ask for religious reasons, or because legal separation sounds better to them than divorce.  Sometimes they ask because they’ve heard group health insurance can still cover both spouses if they’re legally separated but not if they’re divorced, which happens to be true.  Usually they are surprised to discover they will go through exactly the same steps either way. Divorce - DISSOLUTION of Marriage We need to get our terms straight at the outset.  The word “divorce” is not in the California Family Code.  The Code instead uses the phrase “dissolution of marriage.”  (The Code also uses “spousal support” instead of “alimony.”)  At the end of a divorce case, you get a Judgment of Dissolution of Marriage.  At the end of a legal separation case, you get a Judgment of Legal Separation.  The same mandatory preprinted forms are used for both.  If you’re getting a divorce, you check the box next to Dissolution of Marriage.  If you’re getting a legal separation, you check the box next to Legal Separation. Otherwise, both proceedings look exactly alike.  All your assets and debts are identified and characterized as community property or separate property, the community assets and debts are divided in half, child support is awarded if appropriate, and spousal support is awarded if appropriate.  If your judgment is for Dissolution of Marriage, you can marry someone else the day after it becomes final.  But if your judgment is for Legal Separation, you’re still married, and you can’t marry anyone else unless and until you go back to court, file a petition for dissolution of marriage, and obtain a final judgment of Dissolution of Marriage.  If you don’t, your next marriage will be bigamous and can be annulled. (Neither judgment can become final until six months after the court has jurisdiction over both parties.  That occurs when, after the petitioner has filed the petition, the respondent is served with the petition and a summons or files a response, whichever happens first.  All the necessary paperwork may be completed and filed before six months have gone by, but the effective date of the judgment is written on the judgment form by the clerk, and the clerk will insert the date on which the six months expire.) Legal Separation Do not confuse a Legal Separation with the date of separation.  The date of separation is usually thought of as the date one spouse makes it clear to the other that their marriage is irretrievably broken and there is going to be a divorce.  Sometimes it’s difficult to decide on the date, particularly when people go through a cycle of moving out and moving back in while attempting to “work things out.” The date of separation is important, because it is the date when community property rights cease to accrue.  In other words, earnings after the date of separation are the separate property of the spouse who earned them, not community property owned by both spouses.  Likewise, assets acquired after the date of separation with those separate property earnings are separate property, and debts incurred after the date of separation are separate property debts.  Deciding to live separately without deciding to become divorced or legally separated does not trigger these changes - you’re still married for all purposes even though you may be miles apart. For purposes of dividing assets and debts, you need a snapshot of the parties’ assets and debts as of the date of separation.  Those are the assets and debts that are divided, not the assets and debts of the parties eight months later when the case settles or goes to trial.  On the other hand, for calculating spousal or child support, the court uses the income and assets of the parties when the support order is made, not those on the date of separation. Accurate and complete financial records both from before the date of separation and after are therefore essential. As we discussed above, because the same things happen in a proceeding for a judgment of legal separation as in a proceeding for a judgment of dissolution of marriage, establishing the date of separation and obtaining and keeping complete financial records is equally important in both cases.  As discussed above, the only difference between legal separation and divorce is that you can only marry again if you’re divorced. San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.

Child custody and visitation determinations are undergoing a seismic shift. Traditionally a parent's behavior was described.  Now it is diagnosed. For example, instead of Dad being self-centered, Dad is now narcissistic. Of course,  narcissism has been around for a long time.  Narcissus was the beautiful son of two Greek gods, who fell in love with his own reflection in a spring and pined away looking at himself. However, there were no psychologists in ancient Greece.  Now there are plenty of them around, and they fancy themselves scientists.  Their principal pastime is slicing human behavior into smaller and smaller slices, and giving each slice a supposedly scientific label. The psychologists' bible is the DSM, a kind of ever-expanding dictionary of the supposedly scientific labels they've thought up.  Hand in hand with the DSM is a series of standardized tests that purport to measure personality in terms of the labels, including the intensity - or variance from 'normal' - of the behaviors corresponding to the labels. The idea is to get a handle on what is or isn't abnormal about someone, label it, and if it's a highly intense abnormality, proceed to devise some sort of therapy to reduce it.  Intensely abnormal behavior thus becomes treatable mental illness. Simply Self Centered or Mentally Ill? Self-centered people are a dime a dozen.  They're not sick.  They're just irritating.  You do your best to live with them.  Label them narcissistic - intensely narcissistic - and it's another ballgame.  Now they're mentally ill and require psychotherapy. What does this have to do with child custody and visitation decisions?  A great deal.  Let's take self-centered Dad.  He's been driving Mom crazy with "me, me, me" almost from the time they married.  Their two kids are now fourteen and ten and don't like Dad's behavior any more than Mom does. Mom's had it up to here and decides to divorce Dad.  With her petition she files a request for an order granting her temporary sole physical custody and joint legal custody, with visitation for Dad every other weekend from Saturday morning till Sunday evening and Wednesday evenings after school. Dad is furious.  He wants joint physical custody and a 50/50 time share.  They go to mediation, and the Family Court Services mediator gets the message that Dad cares more about himself than the kids.  Now it's "ME! ME! ME!" The mediator interviews the kids.  The fourteen year old now has a right to be heard.  She is adamant that she wants to spend as little time with Dad as possible.  So is her little sister.  In her report, the mediator notes Dad's narcissistic personality and recommends to the court to order what Mom's asked for. FCS - Family Court Services Report The judge reads the FCS "Family Court Services" report, and gets the picture on Dad.  Dad's attorney follows Dad's instructions to 'fight for him for the kids' and only confirms the judge's picture.  Mom's attorney refers frequently to Dad's narcissistic behavior in her argument for Mom. However, the judge does not follow the FCS recommendations entirely. Dad's every other weekend will start Thursday evening and run until he takes the kids to school Monday morning.  The judge also orders Dad to take a parenting class and go to therapy while the case otherwise proceeds. Mom's upset and angry.  So are the kids.  What happened?  First, the judge is most concerned (as the Family Code dictates) with the "best interest of the child." Second, a healthy and bonded relationship between a child and both parents is in the child's best interest.  Third, Dad's extreme narcissism is a form of mental illness and stands in the way of that relationship. For the best interest of his children, therefore, we need to treat Dad's illness and make him better, so his relationship with them (and coincidentally with their mother) will normalize.  The judgment at the end of the case can't order Dad to continue in therapy, but while the case is pending, we'll do what we can to cure Dad. Wait a minute!  Aren't we divorcing these people?  Isn't it a little late to worry about fixing the problem that caused the divorce in the first place?   The  Family Court Services mediator, the judge, and the legal system represent the State of California, which in turn represents the taxpayers.  Why should they care about Dad's problems? The answer seems to be that it is worth pouring judges, mediators, psychologists, therapists, lawyers, time, and money into divorce court to help the children of divorced parents grow up to be normal adults.  The "Family" we are concerned about in the Family Code seems not to be the the pre-divorce intact family, but the post-divorce broken family. Parental Agreement On Child Custody and Visitation In A Divorce In practice the result is this.  If you are a parent with children entering a divorce, and you and your spouse cannot agree between yourselves on child custody and visitation, you are about to enter a mental hospital.  The more you fight over the kids, the more convinced the judge and everyone else will be that there is something wrong with one or both of you that needs fixing. You will eventually be diagnosed and labelled with some intensely abnormal behavior named in the DMS.  Then you have three choices.  First, deny the label and continue to fight.  This is a sure way to lose the fight and lose your kids.  Second, defiantly deny the label and in disgust give up the fight.  This is also a good way to lose the kids. Your third choice is to admit there might be something to the label and go with the flow.  This may be the most difficult choice to make, because it means acknowledging that there may be something WRONG with you. Maybe there is, maybe there isn't.  One thing is for sure - you earn many more points by agreeing with a judge than by arguing with him.  So, go to therapy, and consider the possibility that during all those years you thought you were normal, you weren't. It might be painful, but isn't it better than losing the kids? Say goodbye to, 'I'm right and you're wrong.'  Say hello to, 'Why don't you tell me how you feel about that.' San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.

High Net Worth Individuals and The Premarital Agreement Living happily ever after is a lofty goal. Unfortunately, not every couple manages to obtain it. When one or both parties are high net worth individuals, a divorce typically presents more complicated issues than otherwise. High on the list are premarital agreements. "Do you have one?" should be among the first questions an attorney asks a client. For high net worth individuals the answer is usually yes, and if the agreement holds water, the rest of the divorce may be anticlimactic. An enforceable premarital agreement can eliminate spousal support and property issues. If there are no minor children, there's little left to argue about. A technically enforceable premarital agreement is not difficult to write. However, whether it holds up in court depends primarily on three factors: active involvement of attorneys on both sides, full disclosure of assets and debts by both sides, and genuine negotiation of the terms. The last one will encourage the judge to conclude that both parties knew what they were doing and reached a fair agreement. If there is no premarital agreement, or it doesn't have mutual waivers of spousal support, high net worth individuals encounter the fact that there are no computer guidelines for spousal support when the supporting party is a high net worth individual and the supported party isn't. Spousal support is anyone's guess in this case, so a long, difficult, and expensive battle over the issue is almost guaranteed. Assets And Debts - Separate or Community Property? Then there's the identification of all the assets and debts of both parties, their characterization (separate or community?), their valuation, and their equal division. Again, a binding premarital agreement can simplify this process, but its elimination is probably impossible because of some unavoidable uncertainty about who owns what particularly horses. If there isn't an agreement, the process tends to be a nightmare. The problem here for the high net worth individual is the variety, complexity, and sheer number of such an individual's assets, not to mention the likelihood that they are scattered all over the world. Even if the process turns out to be largely an accounting problem, just gathering the required information and organizing it can be mind boggling. Child Custody, Visitation and Child Support If there are minor children, visitation, custody and child support also impose unusual difficulties in a high net worth divorce. (Again, there are no computer guidelines when the supporting party is wealthy.) More importantly, high net worth individuals with children are likely to be young entrepreneurs or business owners who are constantly on the move. This poses a problem, because unpredictable travel means that a regular time sharing schedule is impossible. In turn that means never ending arguments over who has the kids when. Furthermore, if only one party travels, the other party (Mom, more often then not), will win primary custody of the kids. High net worth individuals typically don't like losing, so here we have another high conflict situation. As someone observed, "Money isn't everything, but it sure beats the hell out of what's second best" However, it tends to be something of a draw back when happily ever after turns into incompatibility.

The DVPA Provides immediate legal protection for victims of domestic abuse  California's Domestic Violence Prevention Act (the "DVPA") was passed in 1993.  Its objective is to provide immediate legal protection for victims of domestic physical abuse and emotional abuse, in the form of temporary restraining orders and injunctions against the abuser.  Prior to the Act's passage, obtaining such assistance, if it was obtainable at all, was a complicated, lengthy, and expensive process. As its title indicates, the Act applies to married people and family members living together, people who have had children together, and to people who were or are dating each other.  The definition of "abuse" in the Act covers a lot of ground: molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, destroying personal property, contacting (either directly or indirectly, by mail or otherwise), coming within a certain distance of, or distrurbing the peace of the other party. TRO "Temporary Restraining Order" and Obtaining an Injunction  An injunction is a court order prohibiting a person from doing something.  Injunctions can't be obtained without giving the person (the "respondent") notice that the somebody (the "petitioner") is asking for one, and having a hearing where both the petitioner and the respondent can present evidence and arguments to a judge. A temporary restraining order (a "TRO") is the name for a short term injunction issued to the petitioner without notice to the respondent.  It lasts until there is a noticed hearing.  if the respondent wins, it turns into an injunction. The guts of TRO's and injunctions issued under the Act are called "no contact" and "stay away" orders against the respondent: don't talk to, don't call, don't email, and don't mail the petitioner (either yourself or somebody doing it for you); and don't come near (typically 100 yards) the petitoner or the petitioner's home, workplace, or vehicle.  The orders may apply to children as well as the petitioner, and include staying away from their schools.  When children are involved, the court may also make child custody and child support orders.  If the respondent has firearms, they must be turned over to the Sheriff.  TRO's typically last 15 days, injunctions 3 years. Filing a petition to obtain a "Temporary Restraining Order" and Injunction In keeping with the Act's objective, the legislature included a provision requiring the judges to create mandatory forms for the victim's petition, the perpetrator's response, the TRO's, and the injunctions, as well as do-it- yourself instructions for filling them out and what to do with them.  There is no filing fee for either the petiton or the response.  Attorneys are optional, but improve the odds for a party who hires one.  What the petitioner has to prove to obtain a TRO and injunction under the Act is a long story which we'll take up in another article. 

Child support must be calculated according to a complex formula set forth in the Family Code. It is complex because it is supposed to be perfectly fair, unlike the simple and arbitrary formulas used by other states. Except in rare cases, the only inputs are the average gross monthly incomes of the parties and the percentage of time each spends with the children. CALCULATING CHILD SUPPORT Child support tends to be a dirty word to the high earner spouse in a divorce. He or she is likely to come away thinking the amounts ordered by the court are grossly unfair, and much too high. They are also likely to think that they have been singled out to suffer more than their similarly situated  friends. Unless your attorney has been asleep at the switch, these perceptions are unwarranted as far as child support is concerned.  The California legislature has bent over backwards to make child support orders both fair and consistent, and in the vast majority of cases they are. Child support must be calculated according to a complex formula set forth in the Family Code.  It is complex because it is supposed to be perfectly fair, unlike the simple and arbitrary formulas used by other states.  Except in rare cases, the only inputs are the average gross monthly incomes of the parties and the percentage of time each spends with the children. Income is defined as it is in the Internal Revenue Code. Although the self-employed have more opportunities to cheat, pay stubs and tax returns are for most people dispositive of their incomes.  The percentage of time each parent spends with the children is called their “time share.”  Time share depends on the parties’ agreement, or if they can’t agree, on the court’s custody order. Family Court Services Mediator and Child Support Recomendations There needn’t be wailing and gnashing of teeth over time share. The State is happy to help you. By law the judge cannot make a custody order until the parties participate in mediation with a Family Court Services mediator, and the mediator provides recommendations in a written report to the judge.  The last page of the recommendations states the corresponding time share. The theory here is that judges are not a trained social workers, as the mediators must be, and should be guided by the mediator’s expert opinions.  The practice is that judges usually adopt the recommendations whole hog, rather than agonize over the parties’ conflicting evidence and arguments.  Voila!  We now know the time share percentages.  Into the computer they go, along with the parties’ incomes, and out comes who pays child support and how much it is. As you can see, this makes for consistency.  If you still don’t think it’s fair, remember that the perfect is the enemy of the good. Carlsbad Divorce Attorney Stanley D. Prowse is a Certified California Family Law attorney that specializes in all aspects of child custody and child support cases. We welcome your legal inquiries.

The California Family Code is Explicitly Asexual Regarding Child Custody Proposing to slice a child in half to resolve a child custody dispute between divorcing parents would certainly be frowned upon today.  On the other hand, children in the middle of a custody battle between Mom and Dad frequently tell their therapists they wish they were dead.  What’s going on here? The contrast between today’s conventional wisdom and the conventional wisdom of your grandparents is a good place to start looking for an answer.  Back when Dad wore a grey flannel suit, Mom wore a house dress, and the kids ate Wonder Bread, people weren’t supposed to get divorced in the first place.  When they did, the children were disposed of without much fuss.  Mom got sole legal and physical custody.  Dad got visitation every other weekend and every Wednesday evening for pizza.  And they were too dumb to know there was anything wrong with that! Then along came women’s liberation, sexual equality, day care, and getting in touch (if you were Dad) with your feminine side.  Perish the thought that children were naturally better off being nurtured by Mothers who stayed at home, or that Fathers were excused from the daily grind of parenthood by going off to work in the morning. The California Family Code is now explicitly asexual when it comes to who gets the kids, Dad and Mom each have the same right and the same obligation to parent, and each has the same duty to work to support themselves and their offspring.  Joint legal and physical custody is presumed, visitation crops up only when one parent is a genuine threat to the child’s life and limb, and “time share” is the thing we argue about most of the time. In order to resolve a child custody dispute, both parents will need to get over their anger. The problem in resolving a child custody dispute is that Mom and Dad are usually pretty angry with each other by the time their marriage goes down the drain, so there has to be a winner and a loser.  However, sharing the kids equally or close to it is neither winning nor losing, and proves to be emotionally unacceptable. In order to resolve a child custody dispute, both parents will need to get over their anger. Mothers tend to discover exceptionally strong proprietary feelings towards their children, as well as a burgeoning conviction that their soon to be ex-husbands have been and always will be lousy parents.  Not to be outdone, Fathers tend to entertain similar proprietary feelings, as well as a competitive mandate not to be outdone at the parenting game by their soon to be ex-wives.  Of course, it is only a coincidence that Dad’s sudden commitment to being the Best Dad in the World will, by increasing his time share, reduce his child support payments. As a result, war over the children is sooner or later declared, all too often with the willing assistance of the attorneys.  The Levis trademark comes to mind - a pair of pants harnessed to two mules pulling in opposite directions.  All the counseling, therapy, and custody evaluations in a judge’s arsenal cannot undo the damage to the children or provide, at least in most cases, a resolution sure to be in their best interests. Your grandparents’ conventional wisdom is not coming back.  Modern divorce is no fault, and winning or losing a divorce is nowhere to be found in the California Family Code.  Get used to it and get over the anger, or the only losers will be your children. San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.

Calculating Spousal Support Spousal support tends to be a dirty word to the high earner spouse in a divorce. He or she is likely to come away thinking the amount ordered by the court is outrageously high, and that they got the shaft while the low earner got the mine.  They are also likely to think that they have been singled out to suffer more than their similarly situated  friends.  For a variety of reasons, these perceptions are usually exaggerated. In a companion article called Child Support Fundamentals we discuss the formula California mandates for child support, the computer program implementing the formula, and the inputs the program requires. Happily enough for everyone’s convenience, with a different formula the computer also calculates who pays spousal support and how much it should be, with or without minor children.  While the computer’s child support number is mandatory, its spousal support number is only a suggestion, and the judge can only use it for temporary spousal support during the case, not for the spousal support ordered in the final judgment.  As one might expect, for temporary spousal support the judge adopts the computer number most of the time. Family Code Subjective Child Support Factors If there is a trial and the judge must determine spousal support for the final judgment, the primary consideration for the judge is the standard of living during the marriage, in light of fourteen subjective factors listed in the Family Code.  Here they are: The extent to which each party’s earning capacity will maintain the standard of living established during the marriage.  Family Code Section 4320(a). The extent to which the supported party contributed to the supporting party’s attainment of an education, training, a career position, or a license.  Family Code Section 4320(b). The supporting party’s ability to pay, taking into account his or her earning capacity, earned and unearned income, assets, and standard of living.  Family Code Section 4320(c). Each party’s needs, based on the standard of living established during the marriage.  Family Code Section 4320(d). Each party’s assets (including separate property) and obligations.  Family Code Section 4320(e). The duration of the marriage.  Family Code Section 4320(f). The supported party’s ability to be gainfully employed without interfering with the interests of dependent children in his or her custody.  Family Code Section 4320(g). Each party’s age and health.  Family Code Section 4320(h). Documented evidence of any history of domestic violence between the parties, including emotional distress resulting from the violence.  Family Code Section 4320(i). The immediate and specific tax consequences to each party.  Family Code Section 4320(j). The balance of hardships to each party.  Family Code Section 4320(k). The goal that the supported party be self-supporting within a reasonable period of time. Family Code Section 4320(l). The criminal conviction of an abusive spouse when the court is reducing or eliminating a spousal support award under Family Code Section 4325.  Family Code Section 4320(m). Any other factors the court deems just and equitable.  Family Code Section 4320(n). As one prominent family law judge once jokingly remarked, nobody really knows what all fourteen mean.  As a result the fourteen factors generally rate little more than lip service, and the final spousal support number generally looks much like the temporary spousal support number from the computer. Duration of Child Support and the Termination Date As far as duration is concerned, the Family Code provides only two clear rules.  First, if the marriage lasted more than 10 years, jurisdiction to award or modify spousal support continues indefinitely unless both parties agree otherwise.  Second, if the marriage lasted less than 10 years, spousal support for half the life of the marriage is reasonable. In practice, and on the principle that we can’t predict the future, most court ordered spousal support (except for very short marriages) has no termination date.  If either party wants modification, or the payor wants termination, he or she has to go back to court and ask for it.  Proof of changed circumstances is usually required. When cases are settled out of court, the parties can deal with the amount of spousal support and its duration any way they want.  (1) Fixed termination dates based on half the life of the marriage are common, as are ‘step down’ orders - so much for so many years, a reduced amount for another so many years, and so forth until termination or (2) ‘Buying out’ spousal support by a lopsided division of community property in favor of the otherwise supported spouse is another alternative. As you can see, in practice the computer generated spousal support number translates into a good deal of consistency.  If you still don’t think it’s fair, remember that the perfect is the enemy of the good. San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.

There are two kinds of custody and two ways to allocate them between parents. The first kind of custody is legal. The second is physical. The first way to allocate custody is to award it to one parent. This is called sole custody. The second way is to award it to both parents. This is called joint custody. Physical Child Custody & Legal Child Custody There are two kinds of child custody and two ways to allocate them between parents.  The first kind of child custody is legal.  The second is physical.  The first way to allocate child custody is to award it to one parent.  This is called sole custody.  The second way is to award it to both parents.  This is called joint custody.  Joint child custody is defined as joint physical custody and joint legal custody. Sole legal custody Sole legal custody means that one parent, and only one, has the right and responsibility to make the decisions relating to the health, education, and welfare of a child.  Sole legal custody is unusual. First, it is contrary to the recognized right and responsibility of each parent to parent his or her child.  The State believes your child needs you, and the State wants you involved with raising your child.  Second, most parents - happily enough - are not threats to the safety, health, and well being of their children.  For one parent to have sole legal custody, the other parent must be physically and emotionally abusive, addicted, mentally ill, thoroughly irresponsible, or in jail, to name a few examples. Sole physical custody means that a child resides with and is under the supervision of one parent. If one parent has sole physical custody, the other parent has visitation.  Ordinarily the factors that result in an award of sole legal custody to one parent result in an award of sole physical custody as well. Joint legal Custody verses Joint Physical Custody Joint legal custody means that both parents share the right and responsibility to make the decisions relating to the health, education, and welfare of the child. Joint physical custody means that each of the parents has significant periods of physical custody, and that they share physical custody in a way that assures the child frequent and continuing contact with both parents. Joint legal custody and sole physical custody are not necessarily inconsistent.  For example, divorced parents often live far away from each other, making frequent and continuing physical contact impossible for both.  In such cases the child might live with one parent eleven months of the year.  That parent would have sole physical custody, and the other parent would have visitation.  However, they will probably have joint legal custody if the factors normally resulting in sole legal custody are not present Joint custody is normally awarded.  In the order of preference set forth in the Family Code, it is in first place.  That still leaves open the question of how much time the child spends with each parent, referred to as the time share. The time share percentage is used to calculate child support, along with the parties’ incomes.  Although some parents easily reach agreement on a time share schedule without much formality, time share is usually a contentious issue.  The usual joint custody order is therefore quite detailed. Family Court Time Share Recommendations The detailed time share recommendations of Family Court Services mediators in contested matters are also useful guides for negotiating and preparing timeshare schedules in uncontested matters.  The time share schedule will be part of the court’s custody order in either case.  We can help you negotiate a time share schedule if you and your child’s other parent are agreeable.  We can go to court with you and argue for the adoption of Family Court Services recommendations that are favorable to you and rejection of those which are not. San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.