Bay Area Family Law

Nora Ephron, The D Word - Insights into the divorce process from a preeminent social critic.

2010-11-09T13:23:00.000-08:00

Filmmaker/Social Commentator Nora Ephron has recently released a book "I REMEMBER NOTHING: And other reflections" (Random House, 2010) in which she offers a look into her own experience of divorce - the hidden tolls, the unexpected revelations - which is very insightful. A valuable read for anyone considering divorce, or going through the divorce process.

http://www.huffingtonpost.com/nora-ephron/the-d-word_1_b_779626.html

Yet Another Reason to Think Twice Before you Post Something on Facebook

2010-06-27T14:33:00.000-07:00

A recent article in the Las Vegas Sun describes the treasure trove of evidence that can be gleaned from social networking sites, such as Facebook and MySpace. As the article illustrates, matrimonial attorneys are combing social network sites for evidence to bolster their cases. In our practice, we have also seen vengeful spouses use Facebook as a weapon - disparaging their spouses on Facebook in an attempt to alienate them from mutual friends and family. Be forewarned, judges do not take kindly to this practice and will shut it down quickly.

http://www.lasvegassun.com/news/2010/apr/30/surprise-witness-facebook/

Understanding Child Custody

2010-03-04T15:51:00.000-08:00

In this blog posting, we will explain child custody terminology to our readers:

There are two types of child custody in California: legal custody and physical custody. Either type of custody may be awarded to one parent (“sole custody”) or both parents (“joint custody”). See Fam C §§3003-3007. One of the most challenging and potentially confusing aspects of custody law is that joint legal and joint physical custody are not always linked. Many divorced parents share legal custody but do not share physical custody. In other words, both parents have the right to make important decisions on behalf of their child (legal custody), but the child lives primarily with one parent (physical custody). In the following paragraphs we elaborate on the concepts of "sole" and "joint" legal and physical custody.

Legal custody gives the parent who has it the right and responsibility to make decisions about their child’s health, education, and welfare. Fam C §3006. Legal custody is typically awarded to both parents (i.e, “joint legal custody"), and its terms are described in what is called a "custody order" that is issued by the court. Joint legal custody gives parents the freedom to raise their child as they see fit, provided that both parents confer in good faith, and keep each other informed about major decisions. Either parent acting alone may make major decisions about their child, such as what schools, daycares, or churches they attend; the medical treatment or mental health counseling they receive; the extracurricular activities they participate in; and their travel; unless the custody order provides that decisions like these must be made by mutual consent. The concept of "conferring in good faith" is key. The court does not look favorably upon parents who make major decisions on behalf of their children unilaterally and inform the other parent after the fact. Moreover, this kind of behavior is not generally in the best interests of their children, who, in the long run, benefit from the guidance of both parents. If the parents do not know how to communicate with one another, the court (or their attorneys) may recommend co-parenting counseling or mediation.

By contrast, a parent who has been awarded physical custody of their child lives with that child and has the day-to-day responsibility of looking after him or her. Joint physical custody refers to a parenting arrangement whereby the child lives with both parents, usually in their respective residences, for significant periods of time, but not necessarily equal periods of time. Parents, usually with the help of an attorney or mediator, will make a parenting or time-share plan which describes how they will divide their responsibilities for taking care of their child. This plan will usually be approved by the court and turned into an order, provided the judge determines that the plan is in the best interests of the child. See http://www.courtinfo.ca.gov/forms/documents/fl314info.pdf. The court order may also contain terms such as “primary physical custody” or “primary residence.” As we explain next, parents must be wary of these terms because they are ambiguous and may lead to enforcement problems down the road.

There is a trend in California law to award parents both joint physical and joint legal custody. This trend is based on the Legislature’s declared policy to ensure children frequent and continuing contact with both parents and to encourage both parents to continue to raise their children following separation, unless it is not in the children's best interests. See Fam C §3020(b). One problem with this trend is that the joint physical custody designation does not always reflect the actual parenting arrangement. For instance, a child may spend 70% of his or her time with one parent (the order may refer to this parent's residence as the child's "primary residence"), yet the court may label the parenting arrangement "joint physical custody" instead of "sole physical custody.” The court does this so that the other parent feels good about - and is more inclined to agree - to the parenting arrangement. The problem with the “joint physical custody” designation in this situation is that the parent with what is in actual fact sole physical custody may lose their right to move to a different county or state. (We will discuss “move-away” cases in a subsequent post.) Accordingly, you should always have a proposed custody order reviewed by a family law attorney before consenting to it.

Thought-Provoking Article on the Legal Implications of DNA Paternity Tests

2010-02-16T13:38:00.000-08:00

A November 2009 New York Times Sunday Magazine cover story discusses how DNA paternity tests have led to new questions about what constitutes "fatherhood" and "family" in family law courts. The article, "Who Knew I Was Not the Father," is a compelling read:

http://www.nytimes.com/indexes/2009/11/22/magazine/index.html

Web-Based Calendaring Systems for Divorcing Parents

2010-01-18T12:38:00.000-08:00

Here are a couple of great tools designed to help divorcing (or divorced) parents create and/ or monitor custody agreements and parenting plans:

http://ourfamilywizard.com/ofw/index.cfm

http://www.custodyxchange.com/

A Good Way to Protect Yourself When Dividing Property During Divorce

2009-12-30T13:18:00.000-08:00

Do an Inventory of Your Home and Possessions. Avoid spending thousands on legal fees by getting a handle on your personal property ahead of time. It is much easier to photograph and do a written inventory of all of the furniture, clothing, jewelry, art, and other personal belongings in your home while you are still living there. That way, if something goes missing or is damaged, you will have a clear record of it.

Considering Divorce? Be Sure to Copy All of Your Financial Records.

2009-12-04T11:30:00.000-08:00

Copy all the financial records before you separate. It is not unusual for one spouse to take on the role of bookkeeper during marriage. While this system may work well for the couple during the marriage, it puts the uninformed spouse at a disadvantage when the couple separates. If you are the uninformed spouse, be sure to copy all of the financial records – such as tax returns; pay stubs; bank, credit card, and brokerage statements; and insurance policies – before you separate from your spouse. Otherwise, your attorney will have to obtain these documents from your spouse using formal discovery procedures, which can be expensive and time-consuming.

What Are "ATROs," and How Can They Affect My Divorce?

2009-11-16T18:32:00.000-08:00

Anticipate the Automatic Temporary Restraining Orders (“ATROs”). Once a Petition for marital dissolution (i.e., divorce) is filed and served on the other spouse, certain restraining orders take effect automatically in California which prevent the spouses from changing the beneficiaries of their insurance plans, borrowing against or selling assets, and making major expenditures, among other things, without a court order or the consent of the other spouse. (To review all of the ATROs, please refer to page 2 of Judicial Council Form FL-110, the Summons (Family Law): http://www.courtinfo.ca.gov/forms/documents/fl110.pdf

The ATROs are designed to protect the interests of both spouses while their divorce is pending, and penalties for their violation may include contempt or restitution. Accordingly, there are certain steps you may wish to take to protect yourself financially before the ATROs take effect. For example, if you are concerned that your spouse may empty your joint bank account, you may wish to consider withdrawing half of the funds and opening a separate bank account for your share of the funds.

However, if you choose to take this step (or any other unilateral actions), you should document what you did with the funds because, while the ATROs have not taken effect, you owe your spouse a fiduciary duty, and must act honestly, fairly, and in good faith at all times, in furtherance of this duty. A breach of fiduciary duties can lead to civil penalties. In addition, you should be wary of the potential that the withdrawal of funds from a joint bank account has to escalate the conflict between you and your spouse and consequently drive up your legal fees. Accordingly, before you take this or any other unilateral action against your spouse, you should balance your need for financial protection with the goal of minimizing the level of conflict in your divorce.

When in doubt about how to proceed, consult a family law attorney.

Are You Separated/Divorcing and Do You Own Property? Is Your Name on the Title?

2009-10-28T14:29:00.000-07:00

You May Need to Change the Title of Real Property. When characterizing the family home or other real property as community or separate property, the court will look at the form of title on the deed. For example, problems can arise when couples decide to purchase a home in the sole name of one spouse, or if they remove the name of one of the spouses from the title of the family home when refinancing in order to obtain a better rate on a mortgage. If you determine that title to the family home is held solely by your spouse, seek advice from a family law attorney about restoring your name to the title before you file for divorce. Otherwise, the court may rule that your home is your spouse's separate property.