Avoiding Mistakes

Top suggestions to help you avoid common mistakes in family law matters:

1. Do not delay in retaining an attorney when you have been accused of domestic violence or when you are the victim of domestic violence.

You should retain an attorney to help you with any domestic violence claim as soon as possible because if a restraining order is issued against you, it can have long-term impacts on you, including your right to have contact with your children and your access to your home.  If a judge finds your have perpetrated domestic violence, the judge can issue a restraining order against you to protect your spouse and children for up to five years and a legal presumption is triggered that you should not share “joint legal” or “joint physical” custody of your children. Also, there are short timeframes and deadlines for your attorney to prepare your defense, so you should retain an attorney as soon as possible.

The same applies if you are the victim of domestic violence:  Do not delay in applying for a restraining order if you need protection.  If you wait too long, the court could decide your claims are “stale,” meaning it may appear there is not an “emergency” warranting a restraining order and/or that you are not in fear of your abuser.

2. If possible, don't move out of the home until you have a temporary child custody and support agreement.

If at all possible, try to get a written agreement that is in a proper format that can be signed by a judge in place before you move out of the family home specifying the days and times you will have your children in your care, where and when you will exchange the children, and how much one party will pay the other for temporary support.  If one party moves out without an agreement in place, the party who remains in the home has a greater opportunity to “dictate” how much contact they will allow the other parent to have with the children.  If you move out  and later find that you cannot get along with the other parent and that you will need to go to court, it can take several months to get a court date and in the meantime, you are forced to continue to try to deal with an unreasonable, uncooperative person potentially for months before your court date.  Also, by the time you get to court the other parent may claim that since the children have lived primarily with them, a “status quo” has been established that they have the majority of the custodial time with the children, which can also have a significant impact on the amount of child support.

Also, if possible, try to reach an agreement before you move out on how you will deal with your expenses.  Both parties should prepare a draft budget of what they believe their monthly living expenses will be living on their own and review their income to determine if they have a need for support.

Jackie can help you negotiate and draft a Stipulation and Order for child custody and child and spousal support, which can help you avoid misunderstandings later.  She can run a support calculation for you and advise you on what a judge would likely order.

It is of course not always possible to work out an agreement when the household is volatile and the tension and fighting are too out of control.  In that event, the parties should live separately as soon as possible for the best interests of the children and an attorney should be consulted to seek appropriate custody and support orders.

3. Don't go to court-ordered mediation at Family Court Services without consulting with an attorney first.

When a court hearing is scheduled on child custody issues, you and the other parent will usually be required to go to mediation at Family Court Services before the hearing.  If you have a mediation date set, contact an attorney without delay to help you prepare for the mediation, including preparing and filing declarations that explain your position regarding child sharing issues, if needed.  In some counties, including Sonoma County, the mediator can make recommendations to the judge regarding custody which are given substantial weight, so it is important that you understand the process and are prepared for the mediation, including preparing a specific proposal for days and times the children will be with each parent.

4. Don't make negative remarks about the other parent to your children.

Comments such as, “This divorce is your mother’s/father’s fault,” “your mother/father is taking all my money,” “your mother/father is not letting me see you,” etc. are examples of statements that can cause your children to feel upset, and potentially angry and resentful, and can hurt your chances of obtaining the child custody orders you want.  Judges are mindful of the emotional impact divorce and custody disputes have on children and can make changes in custody orders if a parent persists in doing or saying things to the children designed to turn the children against the other parent.

Make sure your communications with your ex are civil and neutral in tone, and that they focus on the mechanics of picking up/dropping off the children and/or describing/explaining the children’s activities.

Don’t write rude texts or emails to the other parent of your children.  They could be used as “evidence” against you later.

Use alternative ways to deal with a difficult former spouse or partner and addressing child sharing and parenting issues, including co-parent counseling, parenting classes, individual counseling for parents and children, appointing minor’s counsel for a child, and child custody evaluations.

5. Don't pay "voluntary" spousal support. Instead, get a written court order stating the amount of spousal support.

Spousal support is taxable to the recipient of the support and tax deductible by the payor when the parties are filing separate tax returns, but only if you have a written support order in place.  It is relatively common for parties to be separated for a long period of time (sometimes even years) before the divorce is finalized, during which time one party may pay the other “voluntary support” only to find out they are not able to deduct it from their tax return because it is not written in a support order.

6. Get advice from accountants and other experts on complex financial, tax, and valuation issues.

Your attorney will help you complete an inventory of all of your assets and debts.  To make this process easier, provide your attorney with statements as of the date of separation and the most recent statements in your possession for each asset and debt.

You may have a very different opinion about the value of real property, businesses, automobiles or other assets than your spouse or partner, which can make negotiating an agreement regarding dividing those assets difficult.  It can be helpful to agree in advance to a single appraiser to appraise homes and businesses, with each party paying a portion of the fees.  There may also be assets that have both a “separate property” a “community property” component, such as retirement plans, stock options awarded to one spouse through their employment as part of their compensation package, or real property acquired by one spouse before marriage and transferred into both parties’ names and refinanced by both parties during marriage.  A forensic accountant is better qualified than an attorney to calculate these interests.

Consult with your accountant concerning possible tax impacts in connection with division of assets, such as division and distribution of retirement accounts, life insurance policies, annuities, real estate, and refunds, as well as with respect to whether you and your soon-to-be ex-spouse or domestic partner should file joint or separate returns.  For the most part, attorneys are not qualified to advise you fully on these issues.

Also, if you are going to file separate returns, consult with your spouse ahead of time, and consider meeting jointly with your spouse at your CPA’s office, about which parent will be allowed to claim the children as dependents on the tax returns and whether you will each claim one-half of the mortgage interest and related deductions.  By agreeing on these issues ahead of time, you can avoid the problem of one spouse trying to take the children as dependents and taking 100% mortgage interest deduction on their return without your knowledge, or doing this yourself, only to have to later amend the return to correct the problem and share the tax benefits.

If you are covered under your spouse’s health insurance plan, research your options for your own health coverage once the divorce becomes final, including using an insurance broker if you need assistance.  Knowing the amount you will have to pay for your own health insurance can help you negotiate the amount needed to “permanent support.”  Once the divorce is entered neither party can stay the other party’s health insurance plan (since they are no longer a spouse), and your spouse is not responsible for continuing to pay your health insurance after the divorce becomes final, but the cost of your future health insurance premium is relevant to how much spousal support you need.

By consulting with appropriate professionals and experts prior to settlement conferences, mediations or four-way meetings can help you to be productive with the negotiations and settle your case.

7. Accept the fact that your spouse will not change. Set aside feelings of guilt for making decisions that are necessary for the protection of your financial and emotional future.

Most divorcing couples feel that if their spouse “would only” fix a specific problem, be it substance abuse, hoarding, overspending, refusal to help with the children, etc., everything would be o.k.  “If only he/she would ….” becomes the common swansong in many divorces.

After divorce proceedings have been commenced, you may continue to hope that your spouse will act responsibly and reasonably to do the things that are necessary to reach agreements, resolve issues, and co-parent your children.  When they fail to do so even though you are taking reasonable positions, you might even find yourself feeling guilty or that you are hurting them by moving on with your life.

It is important to acknowledge to yourself that your spouse will not change and that is not your fault.  If they were unresponsive and uncaring about the issues that were important to you during the marriage and insisted on having things their own way, that attitude will continue during and after the divorce.  Although much easier said than done, take steps to change your response to your spouse rather than continuing to hope they will change.  Follow your attorney’s advice and treat the decisions you make while going through your divorce as necessary business decisions for the protection of your financial and emotional health.  You can respect your spouse’s feelings, but you count, too.  Your emotional, physical and financial health is equally as important as your spouse’s and you have the right to move forward with your life whether or not they want to cooperate with the process.  Be prepared to take on some of the responsibilities you had hoped your spouse would take care of, including gathering documents, being the one to communicate with real estate agents, accountants, and others to move the divorce process forward.

Your attorney will give your spouse an opportunity to participate in the process.  If/when they don’t, your attorney can obtain court orders for you, including deadlines for your spouse to complete certain required tasks, exchange of information and documents, and if your spouse violates the order, contempt proceedings can be filed.

8. Pick your battles and use your attorney's time wisely to minimize fees.

Use your attorney to concentrate on the most important issues:  Your children and your valuable assets.  If possible, try to divide your household furniture, small bank accounts, and pets on your own with your spouse or partner rather than using your attorney for those issues because you can easily spend more in attorney fees than the items are worth.  You will be charged for all of the time your attorney spends on your case, including emails and phone calls so if you email or call several times a day, the fees can add up.

9. Take good care of yourself.

If you need help dealing with the stress of the divorce, consider talking with a counselor or participating in a support group to help you through it.  Maintain healthy habits.  Be gentle with yourself.