Tag: <span>Family Law</span>

Proper Service

March 1, 2022March 29, 2022
by Briana White

Marriage involves a shared legal interest in things like property, debt, and child custody, which is why when you file for divorce, you can’t just cross your fingers and hope your spouse gets the memo about when and where to show up.

Instead, California courts will require you to notify your spouse of your actions through a specific set of steps known as “proper service.” This ensures both sides have ample time to prepare for divorce, and are given the opportunity to be fully involved.

Here’s what you need to know about executing proper service in California, and what our team at Maples Family Law does to help you with this important step.

What is “Proper Service”?

You might have already heard, but in the U.S. legal system, due process is kind of a big deal. This important personal right ensures your interests are properly represented, and that you have a chance to defend yourself in front of a judge, when someone takes legal action against you.

That’s why when you file for divorce, you have to notify your spouse—and not just any old text message will do. Instead, you have to execute this notification properly.

“Proper service” (or “service of process,” as it’s sometimes called), is the formal notification method for telling your spouse that you’ve filed for divorce. This info alert is a required part of filing for divorce in California, and is typically accomplished by hand delivering copies of divorce paperwork to the other party.

Proper service is mandatory. Failure to follow the correct process puts your case at risk of being thrown out, and can cause frustrating delays. Which is why it’s best to make sure it’s done right the first time.

How to Execute Proper Service in California

In California, executing proper service involves delivering copies of divorce paperwork to your spouse. However, in order to be valid, things have to be done “properly,” including:

Proper paperwork
Proper server
Proper process
Proper proof

Here’s a look at each of these, and how to make sure they’re done… well… properly.

1. Proper Documents

First, you’ll need to make sure you’re delivering the right documents. In California, this usually means copies of all your divorce paperwork, such as your:

Petition for Divorce
Summons
Property Declaration
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act
Child Custody and Visitation (Parenting Time) Application

You’ll also want to throw in a few blank divorce forms, including:

Response—Marriage/Domestic Partnership
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act

With these documents collected, you can then move on to the next step: choosing your courier.

2. Proper Server

Naturally, proper service can’t be carried out by just anyone—you need the right one.

Luckily, the qualifications aren’t very strict, so you’ll have a lot of options to choose from; however, there’s one very important person who cannot serve papers: you. That’s right. In California, you cannot be the bearer of your own bad news.

Instead, the notification must be carried out by someone who is:

Over eighteen;
Not a party to the case; and,
Is identified by name and address on the return of service form.

Servers in California do not need to be licensed. Hence, you can choose just about any adult friend or family member to deliver paperwork for you. (Just make sure they’re responsible enough to complete and return proof of service.)

3. Proper Process

California has several delivery options to choose from; however, the most common—by far—is hand delivering documents to your spouse.

To do this, your courier simply needs to:

Meet with your spouse at any location;
Identify their purpose (to deliver divorce papers);
Leave paperwork with them; and,
Return proof of service to the clerk.

If a spouse refuses to accept paperwork, servers are permitted to leave documents on the ground in front of the person.

Other methods of executing delivery include:

Mail—must be done via certified mail, and include two blank copies of Notice and Acknowledgement of Receipt.

Substituted Service—occurs when a process server leaves papers at the person’s residence or workplace.

Publication—carried out by printing a notice of the divorce in a major newspaper in the responding spouse’s last known location for four weeks.

Posting—when notice of the divorce is posted at the courthouse.

Generally speaking, hand-delivering divorce papers is the best and most widely used method of delivery. Alternative methods shouldn’t be used unless you have no other option.

4. Proper Proof

Finally, don’t forget to have your server return proof of delivery to the court.

In California, this proof comes in the form of a completed Proof of Service form. This written affidavit tells the court how, where, and when divorce documents were delivered, and must be signed and returned by your server, in order to conclude proper service.

After Proper Service

Your spouse will have thirty days to respond to your divorce paperwork. However, even if they don’t, your hearing will still go forward as planned. (Since, you know, California isn’t going to make you stay married, just because your spouse refuses to engage.)

Instead, your judge will simply enter a default judgment in your favor.

A default divorce grants a petitioner everything they asked for in their original complaint, and essentially operates as though the other party had agreed to everything.

Obviously, this is not a great situation to be in. Hence, if you’ve been properly served with divorce paperwork, it’s best to simply speak to a family law attorney about what your options are, moving forward.

Do You Need Help with Proper Service in California?

Improper service can cause expensive time delays in your divorce process that no one wants; which is why it’s so important to get it right the first time. Luckily, an experienced family law attorney can help you do just that

If you have more questions about how to execute proper service in California, and what that might look like in your situation, we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and let us worry about the filing logistics so you don’t have to.

family-law

Who Gets the House?

September 17, 2021
by Briana White

Your house is more than just a roof over your head… Not only does this structure act as the sacred keeper of your family’s memories, but it’s also often the most significant investment a married couple will make.

Hence, if you find yourself worried, wondering: Who gets the house? in your divorce, don’t fret. You aren’t alone.

Here’s what you need to know about who gets the house in a California divorce, and how the Maples Family Law team can help you navigate these important issues.

Who Gets the House: It Starts with Community Property

In California, a house is considered property. Hence, just like your car, bank accounts, debt, and that heirloom silverware your grandmother left you, this structure is subject to the same rules of community property, if you ever get divorced.

Community property is one of two systems that US courts use to divide marital property, which focuses on ensuring each partner gets an equal share of marital assets. Here, the timing of when you got married (as well as when you acquired the property) will be important to determining how much of your joint assets you’ll ultimately walk away with.

To make these decisions, California courts will follow these four steps:

Identify all of the couple’s property.
Classify all property as either separate or marital.
Value all marital property.
Divide all marital property between spouses.

Here’s a closer look at each of these steps, and how they specifically apply to our question: Who gets the family house?

Step 1: Identify

First thing’s first: identify all of your property.

This ‘role call’ might sound silly (after all, how hard is it to identify a house?); however, it’s not just the house you’ll need to identify. During this step, you’ll need to produce documentation on everything you own, including all assets, real property, retirement accounts, debt, loans, credit cards, and investments.

While these assets might not directly relate to your house, knowing exactly what you have will be important during the valuing and division phases. (After all, the court can’t divide a home’s value fairly, without knowing what else the couple owns.)

Identifying property also acts as an important accounting step, to ensure that neither spouse is trying to hide assets from divorce court.

Step 2: Classify

Once property has been identified, the court will need to classify everything as either separate property (a.k.a. “individually owned” property), or marital property (a.k.a. “it belongs to both of you” property).

In a community property jurisdiction, anything acquired before or after marriage is considered the separate property of whoever brought it into the marriage. In addition, gifts, inheritances, and awards of personal injury are also considered separate—regardless of when they were received.

On the other hand, anything acquired while married—be it a paycheck, loan, credit card, or winning lottery ticket—belongs to both, equally, regardless of whose name it’s in. (Which, of course, is why your date of separation is so important, and why it’s a good idea to formalize it with a legal separation.)

Hence, in an extremely general, very sanitized scenario, a house purchased prior to marriage would possibly be considered separate property, and one purchased during marriage, marital property.

However, life is never that simple, and there’s a really good chance that at least some of the home’s value belongs to the marriage—even if it was purchased prior to tying the knot. (More on that to come…)

Step 3: Value

Next, the court will assign a price tag to all of your marital property, including debt, investments, retirement accounts, and even bitcoin, too.

Pricing everything out is important to our house question, because a physical structure can’t be cut in half (sorry, Solomon!). Hence, only one spouse will be able to actually keep the house. The other will need to be compensated with a greater share of marital property, to make up the difference in value.

Step 4: Divide

Finally, it will be time to divide the house and your marital property. To this end, couples can either:

Sell the house and split the value.
Spouse A keeps the house, and refinances the mortgage to remove Spouse B from the loan.
Spouse A and Spouse B agree to temporarily keep the house together.

Typically, the simplest option is to simply sell and split the value. In California, courts can’t force lenders to remove someone from a valid contract. Hence, sometimes complications can arise with refinancing.

Then again, if kids are involved, it might be better for the custodial parent to keep the house for their emotional stability.

In the end, there are pros and cons to each option, and it will be up to the couple and the court to determine which is best for their situation.

Who Gets the House: Complications

So far, we’ve made the house dividing process sound very neat and clean, but the truth is, it’s usually anything but.

For example, let’s say Spouse B purchased a house before getting married. This structure might have started out as separate property, however, once married, it was almost certainly paid for, maintained, or upgraded using marital funds at some point. Hence, there’s a good chance Spouse A shares at least some of the value in Spouse B’s home.

On the other hand, consider the possibility that Spouse A used separate money (like… say… funds from an inheritance) to finance a major upgrade on a house purchased after marriage. In this scenario, it’s possible Spouse A owns a share of the home’s value as separate property, even if it was purchased while married.

Bottom line? Short of a valid prenuptial agreement, the question of who gets the house is not an easy one to answer. That’s why it’s so important to have an experienced attorney looking out for your interests during this process.

Divorce Attorneys in California

Your house might just be the biggest investment you made as a couple, so it’s pretty important to make sure its division is done right. That’s why we hope you’ll trust our experienced team to lend a hand in your divorce.

If you have more questions about who gets the house in a California divorce, and how these rules might affect your situation, we want to hear from you. Call Maples Family Law at (209) 989-4425, or get in touch online, and let us help fight for your best interests.

Child Custody

Virtual Visitation

May 18, 2021
by Briana White

As a parent, one of the most difficult aspects of divorce is suddenly having to share time with your child. This can be particularly excruciating, if you are a non-custodial parent, who no longer gets to live under the same roof as your child.

As a non-custodial parent, daily communication used to be something you didn’t think about. Nowadays, building a relationship with your child is contingent on being able to maintain a meaningful visitation schedule, which can be difficult, even in the best of circumstances. (Impossible, under the worst—thanks for that, COVID.) And this is before you even consider the unique challenges that families with international custody, traveling careers, and military obligations face.

Lucky for us, we live a time of unprecedented technology, where communication is no longer limited to in-person contact. In certain situations, these virtual tools can be incorporated into your custody agreement, to help supplement your parenting time.

What is Virtual Visitation?

In order to understand exactly what virtual visitation is, it’s important to first have at least a basic understanding of how California courts handle custody.

Custody refers to the broad range of parental rights and responsibilities that have to be divided when parents get a divorce. To this end, the court can divide custody by either giving all the power to one parent (sole custody), or making them share (joint custody). Since it’s nearly impossible to split a child’s time exactly fifty-fifty, the court will then typically make one spouse the child’s primary residence, while the other is awarded ample visitation.

Visitation, then, is essentially all that time a non-custodial parent gets to spend with their child. And for a really long time, that’s all it was: in person contact. Visitation either happened physically, or it didn’t happen at all.

Luckily, the past decades have moved us well beyond our Neanderthal ways, and when it comes to visitation, non-custodial parents are no longer quite so constrained by physical limitations. With a huge variety of technological advances at our fingertips, the parent/child relationship can be strengthened virtually, as well.

Hence, virtual visitation is defined as any parent/child contact that is facilitated through the use of technology.

Examples of Virtual Visitation

Virtual visitation’s broad definition encompasses a wide range of platforms and tools, and isn’t limited to just phone calls. Instead, parents have a wide variety of options, including:

Phone calls and text messaging;
Data plan facetime;
Webcams and online video chats;
Email and instant messaging;
Online gaming;
Private document sharing sites, such as Dropbox and Google Drive;
Photo sharing sites, such as Shutterfly, Flickr, and Picasa; and,
Social media posts, personal messaging, and sharing, through platforms like Facebook, Twitter, Snapchat, and TikTok.

With virtual visitation, a parent can help with homework, read a bedtime story, share the excitement of a special achievement, “attend” a performance, and offer emotional support, even if they can’t be there in person.

Virtual Visitation Laws in California

Virtual visitation is still a relatively new concept, and there are currently only a few states with official legislation that address it, including Utah, Texas, Wisconsin, Illinois, North Carolina, and Florida. As you can see, California isn’t one of them, but in our ever-expanding world of global interaction, it may be only a matter of time.

That being said, whatever your judge includes in your custody order is enforceable by law—including any kind of electronic communication. California courts routinely include virtual visitation as a part of custody orders, and the failure of either party to uphold these important terms can result in fines, a loss of custody, and in some situations, contempt of court.

During divorce or custody modification, parents can either mutually agree to include virtual visitation in their parenting plan, or else request that the court include it in the final order. In these situations, your judge would assess your circumstances to see if electronic communication is a viable option for your family.

When Does the Court Allow Virtual Visitation?

The 2020 COVID pandemic threw the world into the kind of crisis most people probably never even thought to consider, let alone worry about. As lockdowns, travel bans and mandatory quarantines forced global markets to a halt, California legislators were forced to weigh the risk of spreading the disease against the need for visitation.

This crisis resulted in a sudden, unexpected reliance on virtual visitation, which most divorced families took part of in some way. However, long before COVID became a household word, electronic communication was already being used by California courts to supplement in-person visits.

Virtual visitation is particularly useful for cases involving international custody, military custody, move away requests, and even extended business trips, for parents whose careers require frequent travel.

Guidelines for Virtual Visitation

Since electronic communication isn’t officially part of California family law, judges don’t have a specific set of criteria or formula they can apply to these situations.

Instead, the court analyzes what would be in the child’s best interest, and loosely considers whether parents:

Will permit and encourage their child to engage in virtual visits;
Have the tools to facilitate their child’s visits;
Are capable of carving out the necessary time; and, of course,
Whether each has the emotional bandwidth to allow their child to have uncensored communication with the other.

The court is unlikely to grant e-communication in situations of abuse or domestic violence, or when supervised visitation is required. And, as a whole, virtual visitation is most successful for parents who can set aside differences and work harmoniously with one another.

All that aside, if the COVID pandemic has taught us anything, it’s that while virtual visitation can be a vital tool in certain situations, it’s certainly no replacement for in-person contact.

The Drawbacks of Virtual Visitation

For parents who are limited by time, distance, or obligation, virtual visitation opens up an array of opportunities for them to maintain contact with their child. However, this technology has also drawn criticism from those who argue that e-communication is a poor substitute for in person face time.

Some of the arguments against virtual visitation include:

The negative impact of too much screen time on a child;
The burden it could place on a child’s already busy schedule;
The burden it places on a parent’s time and resource; and,
The ineffective, two-dimensional nature of e-communication (for instance, how easy it is to misread context and tone).

As California legislators consider whether or not to standardize virtual visitation in family law, they’ll need to examine some of these legitimate drawbacks, and analyze whether these technologies hinder—rather than actually help—parents and children foster deep, meaningful relationships.

They are also drawbacks that you should discuss with your family law attorney, if you and your spouse are considering making virtual visitation a part of your parenting plan.

Virtual Visitation Attorneys in California

If you have more questions about virtual visitation, and whether it’s appropriate for your situation, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help you figure out the visitation arrangement that will work best for your family.

family-law

San Joaquin Criminal Defense Lawyer

February 23, 2021February 2, 2021
by Briana White

Unfortunately, it seems as though the people we love most are usually the ones who end up hurting us the worst. In a family setting, emotional hurt generally makes up the bulk of this pain. However, in the wrong circumstances, the vulnerability of family relationships can easily be twisted, leading to things like domestic violence, abuse, and other serious crimes.

Because of this, family law often shares real estate with criminal law—despite the fact that they technically fall under different court systems. Here, we will discuss some of those crossover situations, and when you might want to include a San Joaquin criminal defense lawyer in your family law case.

Civil and Criminal Crossover Cases

Most of the time, family law matters fall under the civil court system. In civil court, individuals bring suits against each other, and usually arise over things like divorce, property disputes, torts, and contractual obligations. This is different from criminal court, where the government (either state or federal) brings a case against a citizen, directly.

For example, take domestic violence. While it is a family law issue (and thus, subject to civil court), as a crime protected by California’s domestic violence laws, these actions are also subject to criminal ramifications. Here, the government would not need your permission to press its own charges. Once a case has been filed, the government—as an entity—can choose whether or not it wants to pursue other penalties—regardless of how you feel about the matter. Thus, in these situations, a perpetrator could end up facing consequences in both civil and criminal courts.

As family law attorneys, here are some of the most common crossover cases we see between family and criminal law.

Domestic Violence

Domestic violence is defined by harm caused inside of an intimate relationship, and it is one of the most frequent crossovers to come up family court. While most people think of harm as hitting, bruising, and breaking bones, domestic violence actually extends beyond that. Harassing, stalking, threatening, destroying property, making threats—even if they are against another person, and not to you, personally—are all behaviors that fall under the domestic violence umbrella.

In addition to whatever civil court consequences can be earned here (such as divorce orders, damages, and possible alterations to child custody and visitation), the state might also choose to press charges. Depending on the facts, domestic violence can either be classified as a misdemeanor or a felony. Perpetrators could be fined, charged with probation, earn jail time, and even end up in a state prison.

Sexual Abuse

In addition to general provisions regarding sexual assault and rape, California’s penal code specifically mentions spousal rape—because being married doesn’t mean you get to have sex whenever you want. Consent is still critical. Thus, individuals convicted of spousal rape could face the better part of a decade behind bars, pay steep fines, and end up as a registered sex offender for life. Other types of sexual abuse (such as nonconsensual groping, oral, or other touching using threats, force, or harm) can also trigger a crossover cases between family and criminal courts.

The penal code further clarifies that community property cannot be used to assuage liability under these charges. So basically, even if your ex tries to bribe you, by offering a favorable property split in your divorce if you drop the charges, this wouldn’t eliminate whatever penalties are coming from the state in criminal court.

Child Abuse

Other common crossover cases involve children, where abuse, endangerment, neglect, and abandonment are most likely to surface. Typically, California courts do not look kindly on individuals who have committed these crimes, and can levy a sentence of up to six years in state prison, if convicted.

A person who has:

Intentionally hurt a child;
Leaving visible injury; whose actions were,
Outside normal disciplinary actions,

Would likely be guilty of child abuse. In California, spanking your child is legal, however since there’s a lot of interpretation involved in this, if your discipline has been called into question, it’s best to discuss options with your San Joaquin criminal defense lawyer as soon as possible.

Juvenile Criminal Cases

Because children haven’t yet reached the age of majority, most juvenile cases are handled outside the general criminal system reserved for adults. Baring unusual circumstances, juvenile crimes are treated more like civil offenses, or rather “family,” matters, and are exempt from the full force of California’s criminal code. In a juvenile criminal case, the parents are expected to appear in court with their child, and can even be fined on behalf of their child’s behavior.

For these reasons, many family law attorneys also cover a range of juvenile criminal cases.

False Allegations of Abuse

On the other hand, it’s possible you are on the receiving end of abuse allegations. California is a no-fault divorce state, meaning that fault (including abuse) cannot be factored into things like property division. However, that doesn’t mean it wouldn’t affect your divorce at all. Especially if children are involved.

In California, every decision involving a child is analyzed based on the best interest of the child. Naturally, placing a child with an abusive parent would not be in their best interest, and so, abuse allegations—even false ones—could certainly damage a potential custody and visitation schedule in your divorce.

Because the state takes child abuse so seriously, if your spouse has falsely accused you of abuse in order to influence a custody order, it’s critical you notify your San Joaquin criminal defense lawyer as soon as possible.

San Joaquin Criminal Defense Lawyers

While family and criminal law operate under two different systems, because of the emotionally charged nature of families, the two often go hand in hand. If your family law issue has turned ugly, and you believe you need the assistance of a San Joaquin criminal defense lawyer, we can help. Call us at (209) 989-4425, or get in touch online to schedule your consultation today. Most of the time, your situation can be handled in house by our competent team of experienced family law attorneys. However, if needed, we can refer your case to other, highly qualified criminal defense lawyers.

Child Support

California Child Support

February 3, 2021February 1, 2021
by Briana White

Divorce is complicated. Splitting a life into two parts is daunting enough all on its own, but—just like everything else in life—with children involved, things gets trickier. Between custody, and visitation schedules, there’s a lot to figure out when it comes to kids, and child support certainly isn’t cheap. If you’re a parent contemplating divorce, and you’re fairly sure that your kids won’t live with you most of the time, you’re not alone in wondering when child support ends in California.

Here’s what you need to know about California child support, including how to estimate the amount of your payments, and how long these obligations will last.

What is Child Support?

If your divorce goes a lot like most we see, your child custody arrangement won’t result in a 50/50 physical custody split. Instead, the division will be unequal, with the primary custodial parent spending a lot more on child-related expenses than the other. In these situations, child support is meant to help offset the incredible costs of raising a child, and is usually made by the non-custodial parent in a divorce.

What is Child Support For?

Child support is money intended to help pay for a child’s expenses. While this naturally means food and clothes, these funds aren’t just about essential survival. Child support payments can be used to pay rent, compensate for transportation costs, buy groceries—even if they feed other people in the house—and can even cover things like extracurricular activities and entertainment for the child. These funds are a contribution to the family’s community money that helps keep the child’s standard of living intact.

In general, courts do not micromanage how child support funds are spent, and short of obvious neglect or abuse, a parent isn’t going to be required to make an accounting of them. Not only would such a thing not be feasible (since children are so integrated into our lives and expenses), but it would also place a huge, unnecessary strain on an already-overloaded court system.

Child Support Obligations: More Than Just Money

Child support isn’t only a financial payment each month, it also includes things like healthcare coverage (such as medical, vision and dental). Parents who already have insurance will likely be ordered to continue this coverage, so long as the costs are reasonable. If health insurance payments are made out of pocket, these obligations can be used to offset the total owed in child support. In the event that neither you or your spouse has health insurance when you divorce, don’t be surprised if a judge orders you to start paying for it, as it’s pretty standard procedure for courts to require healthcare in child support and parenting orders.

In addition to healthcare insurance, your divorce order will likely include a separate provision addressing expenses accrued out of pocket (such as a deductible or any uninsured medical costs). Since both parents are responsible for financially providing for their children, if you end up shouldering these kinds of expenses while caring for your child, you should be entitled to a fifty percent reimbursement from your former spouse.

Do You Have to Agree on a Child Support Amount?

Under California law, parents don’t have a lot of say in the amount of child support. The state has specific guidelines on how much money a non-custodial parent has to pay for the care of his or her child, and unless you have special circumstances, the court isn’t going to deviate from these guidelines.

The only exception, is if the non-custodial parent wants to pay more than the court orders. If both parents agree to payments that are greater than what California’s guidelines require, the court will likely honor this arrangement.

If you are curious what your payments might look like, try using this child support calculator. Keep in mind, however, that this amount can be adjusted to fit what’s “fair and reasonable,” and the final amount will ultimately be up to your judge.

When Does Child Support End in California?

Many individuals assume that child support payments end when the child turns eighteen, and this isn’t the case. In California, a non-custodial parent is typically required to pay child support until the child turns nineteen, or until high school graduation, whichever comes first. The only circumstances a parent can stop paying child support early, is if the child:

Gets married;
Joins the military;
Becomes emancipated; or
Passes away.

Do Child Support Payments Have to End When a Child is Old Enough?

Parents can agree to pay child support for as long as they want. Usually, extending payments beyond the child’s age of majority happens when parents want to pay for college. If you or your spouse are willing to continue paying child support during the time your child is in college, this can be written into your divorce agreement. The key is that you must both agree.

California Child Support Attorneys

If you have questions about child support in California—including queries about calculating payments, and when this support will end—we can help. Call us right away at (209) 546-6870 or get in touch with a Stockton divorce attorney online, and let our team help make sure your child support needs are being met.

family-law

Divorce Mediation and Child Custody Tips

December 7, 2020December 7, 2020
by Anna Maples

Mediation can be a time and cost-saving method of resolving divorce disputes, but it can also be tricky, especially when children are involved. If you and your partner have children and are considering divorce mediation, here are ten tips for making your child custody mediation be as successful as possible.

1. Bring Your Schedules

First thing’s first, come to mediation prepared. This means having a handle on not only your schedule, but your child’s as well, including school dates, extracurricular activities, holidays, and any other information that might go into scheduling decisions. Knowing these dates in advance will make your time in mediation more productive, helping you arrive at a conclusion more swiftly and efficiently.

2. Have a Proposed Time-Share

As far as schedules are concerned, it’s not just your current calendar that’s important, but your future endeavors as well. That being said, it’s a good idea to come prepared with a proposed custody plan and visitation schedule already organized. It’s highly unlikely your plan will automatically be approved by your spouse, so be prepared to make changes. Even still, having at least a basic outline will give the mediator a good starting place from which to work.

There are many online tools and apps available to help you with this process, and with the combined aid of these resources—along with your trusty family law attorney—coming up with a plausible solution does not have to be overwhelming as it might sound.

3. Know Your Alternatives

A good plan always has a good backup. When constructing your timeshare schedule, think carefully about all the elements involved, and prioritize your requests accordingly. Know what you’re willing to give up, and what you’re not. Don’t budge on something if you’re truly not comfortable with it, but also be ready with alternative scenarios, in the event your first option gets shot down. Successful negotiations favor the prepared, and having a thoroughly vetted list of preferred alternates at the ready can go a long way toward helping you be happy with the eventual outcome.

4. Listen to Your Mediator’s Suggestions

Despite all your careful planning, the fact is, your mediator will have much more experience than you in dealing with these types of situations, and throughout the day, they will likely bring up ideas for you to consider. Ultimately, some of these suggestions might not end up working out for you. However, listening to them with an open mind can not only help broaden your perspective but also help you avoid common pitfalls of other couples who have come before you.

5. Communicate Firmly, but Respectfully

During mediation, it’s important to be clear about what you want, but try to keep your emotions in check, and to communicate respectfully. Some people find it helpful to view mediation as a business meeting. As most of us already know, in work situations, it doesn’t usually pay to treat people—even the rude ones—with disrespect. The same mentality applies here. Communicate your desires and concerns firmly, but with respect, even if you are being treated poorly. Experienced mediators can usually see through the antics, and know when a request is being made in good faith.

6. Be Willing to Compromise

All that about being firm aside, it’s important to recognize that the mark of a good compromise is when neither party leaves completely satisfied. In “mediation speak,” that means it’s pretty much guaranteed that you won’t leave with everything you want. And that’s okay. You’re in co-parenting territory now, where sharing is even more critical to success than it was during your marriage. Be honest about your own shortcomings, and enter the proceedings mentally prepared to make realistic compromises.

7. It’s About Them, Not You

During the divorce process, pride can often cloud good judgment, making it easy for parents to confuse their own desires with what’s best for their child. Try to leave your ego and personal needs at the door as much as possible. Instead, be honest about what your child needs, and focus on making every decision in their best interest—even if it means not getting what you want, personally. In the end, you and your spouse know your child better than anyone, and whatever agreement you can reach as loving parents is far more likely to meet your child’s individual needs than if a stranger has to make those decisions for you.

8. “Ours,” Not “Mine”

Listen. We know it’s hard not to take cheap shots at your spouse whenever possible, especially when you’re hurting. But it’s important to remember that your child is not just yours. That child belongs to both of you. And chances are, if your spouse is fighting you on custody, then they probably love that child as much as you do. During mediation, try not to be petty. Avoid referring to your child as “mine,” but rather “ours,” and do your best to empathize with your spouse. Doing so can help make it easier to accept decisions that will be mutually beneficial to the whole family, even if they wouldn’t be your first choice.

9. You Don’t Have to Agree

Sometimes, despite everyone’s best efforts, an agreement can’t be reached through mediation. And you know what? That’s okay. Take the pressure off yourself to agree. If you’re not comfortable with the proposed solution, it’s okay to let the court handle things. Even though a judge might not know your child as well as you, they do have the benefit of looking into the relationships with an unbiased perspective, and sometimes that might be exactly what your situation needs.

10. Avoid Social Media

Regardless of whether or not you come to an agreement during divorce mediation, resist the urge to talk about what happened on social media at all costs. Actually, this wisdom can be applied to the entire divorce process. Despite how secure you think your profiles are, they’re never ironclad. And the things people post on social media can—and often do—get used against them when courts make custody decisions. Err on the side of caution. Be classy. Take the high road. And avoid spilling these details into the internet void. In the end, you’ll be glad you did.

Divorce Mediation Attorneys in California

Even if your divorce is amicable, the process of splitting a joint life can be incredibly complicated. Especially when children are involved. If you or a loved one have questions about divorce mediation, and how to prepare for a child custody dispute, our California family law attorneys can help. Call us at (209) 989-4425, or get in touch online to schedule your consultation today. Together, we can help your divorce mediation run more smoothly, and ensure the best possible custody arrangement for your child.

Divorce

What Are My Financial Obligations to My Spouse?

March 29, 2019June 1, 2020
by tobyrosen

California views marriage as a partnership, specifically as it relates to management and control of community assets; this partnership carries rights and obligations which are similar to those in a standard business partnership. So, what are your financial obligations to your spouse? Chief among these obligations is what is known as the “fiduciary duty”, which requires the highest degree of good faith and fair dealing between the parties.

As such, a spouse is obligated to disclose all relevant information, and refrain from damaging the marital partnership’s financial well-being. These disclosure requirements continue until the fiduciary duty has ceased to exist, which is either when a community asset is distributed, or in the case of assets affecting support, when a binding Court order is entered. In short, if one spouse is taking advantage of community assets for their own benefit, they have likely violated their obligations to their spouse.

Beginning in the mid-1970s, California’s concept of a spouse’s duties and obligations in relation to “management and control of community property” has shifted from the concept of “good faith”, to “confidential duty”, to the now controlling “fiduciary duty” standard; today, California uniformly utilizes the “fiduciary duty.” See IRMO Duffy (2001) 91 CA4th 923, 935-939 (providing a comprehensive discussion of the evolution on California’s law regarding management and control of community property). This standard, as applied to management and control of community property, requires the highest duties of good faith and fair dealing; it prohibits one spouse from taking unfair advantage of the other regarding the use of community assets. In short, the fiduciary duty between spouses is identical to the fiduciary duties between non-married business partners; this is because California views marriage as an economic partnership when it comes to their joint assets (which is analogous to a business account). Marriage of Georgiou & Leslie (2013) 218 CA4th 561. It is important to note that while this article focuses on a spouse’s fiduciary duties relating to management and control of community property, that fiduciary duty also applies to one spouse’s separate property. Marriage of Walker (2006) 138 CA4th 1408, 1419 (dictum).

Family Code §721(b)(1) –(3) sets forth a non-exhaustive list of the rights and duties of spouses’ as it relates to community property, and ostensibly separate property, which includes:

Allowing each spouse to access any books which are kept for the purpose of recording transactions, and further allowing that spouse to inspect and copy those records; this right can be exercised at any time;
On the request of one spouse, the other spouse is obligated to provide full and accurate information regarding any transactions concerning community property;
- NOTE: This does not mean that spouses must keep a detailed record of transactions. However, if records are being kept, then either spouse has unfettered right to inspect, copy, and receive full and accurate information about those records.
If one spouse suspects that the other spouse has utilized community property for their sole benefit, without the first spouse’s consent, that spouse has a right to an accounting; any profits or benefits derived from the unapproved community property transaction will be held in trust for the benefit of the community (in most cases); and
A spouse has an obligation to preserve the value of community property real estate in anticipation of divorce. IRMO Hixson (2003) 111 CA4th 1116, 1125.

These fiduciary duties exist from the start of marriage, through separation prior to divorce, and ceases to exist on the date the community asset, or liability, at issue is distributed. IRMO Kochan (2011) 193 CA4th 420, 431-433. However, the fiduciary duty runs longer where the particular asset has a bearing on spousal support, child support, or attorney’s fees; in this situation, the fiduciary duty ceases to exist the moment there is a final binding resolution regarding those assets. IRMO Sorge (2012) 202 CA4th 626, 654-655.

While the fiduciary duty requires disclosures in anticipation of dissolution, those same duties have a profound impact on the management and control of community property during marriage. Family Code 1100, et seq., provides the general fiduciary duties of spouses to each other during marriage, in relation to management and control of community property.

As a general rule, both spouses are presumed to share equal management and control of community property, “with like absolute power of disposition, other than testamentary,” as if they were exercising control over their own separate property. Barnett v. First Nat’l Ins. Co. of America (2010) 184 CA4th 1454, 1460. Keeping in line with this default position that spouses share equal management and control of community property, California has developed numerous specific obligations.

Acting in concert with the general rule that both spouses share equal management and control over community property, California requires that each spouse “shall act with respect to the other spouse” in accordance with the general fiduciary relationship standards specified in Family Code 721. IRMO Feldman (2007) 153 CA4th 1470, 1475-1476. As noted above, California views a marriage as a partnership, and therefore applies the same obligations to management and control of community assets as is applied to non-married business partners under Corporations Code §§ 16403, 16404, and 16503. The duty of loyalty and care, as set forth in Corporations Code §16404 is an area where many spouses breach their fiduciary duties. In short, whichever spouse is exercising management and control over community assets is prohibited from “engaging in grossly negligent or reckless conduct, intentional misconduct or a knowing violation of the law.” Id. While spouses are not bound by the “Prudent Investor Rule”, poor community property investments may constitute a breach of fiduciary duty if that investment amounts to “grossly negligent or reckless conduct, intentional misconduct or a knowing violation of the law.” IRMO Kamgar (2017) 18 CA5th 136, 149. However, one spouse exercising “bad business judgement” alone, without more, represents negligence; ordinary negligence is insufficient to constitute a breach of fiduciary duty. In a “bad business judgement” situation, the acting spouse cannot be held accountable for an investment that went sour.

Another aspect of fiduciary duty, that is frequently litigated, is a spouse’s obligation to disclose relevant information concerning transactions utilizing community property; the Courts have determined that this disclosure requirement is an “affirmative and broad obligation.” IRMO Margulis (2011) 198 CA4th 1252, 1269. These disclosure obligations were briefly discussed above and must make those disclosures to their spouses even when no formal request for that information is made. IRMO Walker (2006) 138 CA4th 1408, 1422-1423.

Like most general rules, the equal management and control default position has exceptions; particularly as it relates to a business that is properly classified as community property. When one spouse is operating a community property business, which is entirely or mostly community property, the operating spouse has “primary” management and control over that specific community asset (rather than “primary” management and control of all community assets). Family Code §1100(d). “Primary” management and control, in the context of operating a community property business, means “the managing spouse may act alone in all transactions but shall give prior written notice to the other spouse of any sale, lease, exchange, encumbrance, or other disposition of all or substantially all of the personal property used in the operation of the business … whether or not title to that property is held in the name of only one spouse.” Id. The notice requirement is diametrically opposed to the general consent requirement for the transfer of community personal property used as clothing, furniture, furnishings, or family dwellings as set forth in Family Code §1100(b) & (c). Similarly, “primary” management and control of the business does not obviate the need to comply with the requirements of Family Code §1102, as it relates to the transfer of real property, which requires both spouses join in the execution of any instrument designed to transfer real property.

As noted above, during marriage, spouses have a duty to provide the other spouse with full and accurate information regarding community property transactions; when the spouses separate in anticipation of dissolution (e.g., prior to the end of the spouses’ fiduciary duties to each other), additional fiduciary duties are triggered. These duties “arise without reference to any wrongdoing” and require the spouses to disclose all assets and liabilities regardless of their nature as community property or separate property, which either party may have an interest or obligation in; this includes earnings, expenses, and accumulations. IRMO Brewer & Federici (2001) 93 CA4th 1470, 1475-1476. The duration of fiduciary duties has a direct impact on the disclosure requirements for divorce; as long as the fiduciary duty continues, both spouses have an obligation to supplement the disclosures discussed above.

As long as the spouses have a fiduciary duty to each other (e.g., until an asset is distributed, if it has no impact on support or attorney’s fees, or until there is a binding Court order if the asset does impact support or attorney’s fees), they have an obligation to “immediately, fully, and accurately update and augment” their disclosures to the extent that there is a material change in the nature of the asset previously disclosed. Id.

EXAMPLE: Harry, in anticipation of dissolution, disclosed the existence of numerous securities to Wendy. During the pendency of dissolution, but prior to the end of Harry’s fiduciary duties, Harry did not update his disclosures to reflect the changing values of those securities. The Court held that these changes were not a material change in the nature of the disclosed asset, and that Wendy was fully capable of tracking the value of those previously disclosed securities through publicly available information; therefore, Harry did not breach his fiduciary duty to supplement his disclosures to Wendy. IRMO Heggie (2002) 99 CA4th 28, 35.

Ultimately, family law is a set of laws designed to promote equity. If you or a loved one believes their spouse has misappropriated community assets for their own personal gain, it is imperative that you contact a competent attorney immediately. The attorneys at Maple’s Family Law have extensive experience litigating complex family law issues and will vigorously advocate on your behalf.

Divorce

Divorce Advice for Men: What Not to Do During…

August 26, 2018August 13, 2020
by Angie

If you’re thinking about divorce, there are some things you definitely shouldn’t do. Here’s a quick run-down (but not a complete list).

Divorce Advice for Men: What Not to Do During Divorce

Going through a divorce is tough, and you don’t want to make it any harder on yourself. Follow this divorce advice for men about what not to do during divorce to help keep things simple.

What Not to Do During Divorce: Start a New Relationship

Starting a new relationship during your divorce can cause more problems than it’s worth. While it might seem like a good idea – especially if it helps you get your mind off the divorce and makes you feel better about yourself – but the consequences can be pretty serious.

Aside from the fact that your soon-to-be ex-spouse will lose some of her motivation to work with you, she might also want to modify your parenting time agreement so you’re able to spend alone time with the kids – not time with your new flame and the kids.

But there’s still more to it. Your kids really need you right now, too, and they’re trying to figure out their new family dynamics. Adding another person to the mix will make things harder on your children.

Finally, if you’re dating someone new, you won’t have time to process your own emotions. While it might not seem like a big deal right now, it is – and you could end up in an even worse emotional state.

What Not to Do During Divorce: Give Money Without Getting a Receipt

Many couples still share money during divorce, which is fine. However, if you and your spouse have split up your savings and she needs money from you, whether it’s for your children or something else, make sure you leave a paper trail. It’s always best to write a check to prove where the money went if it needs to be discussed in court.

If you and your spouse have reached an agreement about sharing money, put it in writing. Your Stockton divorce attorney can help.

What Not to Do During Divorce: Decide You Don’t Need a Lawyer

Even if you and your soon-to-be ex are getting along and working your way toward an amicable divorce, it’s probably still in your best interest to retain an attorney. Your lawyer will help preserve your rights throughout your divorce, answer all your questions, file all the appropriate paperwork and ensure that you get the best possible outcome.

Do You Need to Talk to an Attorney About Divorce?

You know what not to do during divorce, but if you’re like most people, you still need to work with a lawyer.

We can answer your questions about whether you’ll be required to pay or entitled to receive spousal support, how to figure out child custody and the division of property, as well as any other questions you may have or refer you to a therapist focusing on divorce issues.

Call us at (209) 546-6246 or contact us online to schedule an appointment with an attorney. We may be able to help you.

Divorce

What is Family Law Mediation, and How Does it…

August 21, 2018January 17, 2019
by Angie

If you’re like most people going through a divorce, you’ve heard of mediation – but what is family law mediation, and how does it work?

What is Family Law Mediation?

Family law (divorce) mediation is a process that involves the two parties to a divorce and a qualified, trained mediator. It’s voluntary, and the whole premise is that it’s non-adversarial. That means you and your spouse aren’t pitted against each other in a battle; you’re working together through another person to reach fair and equitable agreements that are best for your whole family in the long run.

Benefits of Family Law Mediation

As a form of alternative dispute resolution, family law mediation has several benefits to the parties involved. First, and sometimes most importantly, it saves time and money. The hours you spend mediating can help eliminate litigation in court – which costs you on both ends. Because mediation works quickly to cut to the heart of the matters you’re most interested in settling, and because it’s confidential and private, you and your soon-to-be ex-spouse are free to work out your disagreements without dragging everything into the courtroom. It can alleviate a lot of stress, too, which will enable you to make better choices for yourself and your children.

How Does Family Law Mediation Work?

Mediation sessions are held in a neutral place, like the mediator’s office or another private spot. Both parties to the divorce and the mediator attend. In some cases, everyone’s in the same room, but in others – particularly when tensions are running high – each party is in a separate room.

The mediator will explain the ground rules and let you know that everything that you say is confidential. If you’re together in the same room, the mediator will dive right in; if not, he or she will also provide the same information to your spouse.

Then, the mediator will guide the discussion toward the first issue. You’ll each account your side of the story and explain your proposed solution, which the mediator will begin negotiating. The mediator will go back and forth between rooms if necessary.

When you agree on the issues you need to agree on, you’ll get it all on paper.

What Issues Can You Address in Family Law Mediation?

You can address anything related to your court case in family law mediation. Many people use mediation as an opportunity to solve issues regarding child custody and property division.

Are You Thinking About Divorce?

Call us at (209) 546-6246 or contact us online to schedule an appointment with an attorney. We may be able to help you.