Monthly Archives: November 2013

Divorce – the law and your lawyer cannot solve everything

November 22nd, 2013

As a family law attorney, I like to help my clients solve their family law problems.  You lost your job, we can file a Request for Order to modify support.  You want to see you child more, we can file a Request for Order to modify timeshare.

But what if you have been divorced for several years, your child is graduating from high school, and you want to bring your new significant other to the graduation ceremony and celebration?  Bringing a Request for Order and asking for the Court’s assistance will not likely get you what you want.  Though you are divorced, you are still co-parenting and still connected to your former spouse through your children.

Open lines of communication are key.  Carolyn Hax, an advice columnist from the Washington Post, provides some good ideas on how to deal with the question above.

A good family law attorney understands when the questions posed by a client require more than a legal answer or response.  A good family law attorney may refer a client to a therapist or a co-parent counselor.

If you have questions about your dissolution matter, be sure to speak to a qualified family law attorney – someone who can not only answer your legal questions but also feel comfortable enough to refer you to another specialist who may be better able to assist you with a non-legal component of your divorce.

Post-Judgment: do’s and don’t’s

November 19th, 2013

After parties reach a Judgment in their dissolution (divorce) either by trial or settlement agreement, they may not necessarily be done dealing with each other.

DO’s

Modification:  Parties may return to Court if circumstances change.  If a party’s salary changes and the parties cannot reach agreement on a new support amount, one party can file a post-Judgment Request for Order to modify support.  One party may want to move from the area and will file a Request for Order to modify the visitation schedule and/or custody.

Appeal:  A party that is unhappy with the Judgment can also appeal a decision if the party feels the Court erred in deciding the facts or applying the appropriate law.

Enforcement/Contempt:  If one party will not comply with the Court’s order, the other party can file a Request for Order to enforce the terms of the judgment (i.e. have the Court sign a legal document as an elisor) or ask for the party to be found in contempt (i.e. for failing to pay court ordered support).

Co-parenting or Support or Follow-up:  The parties need not return to Court.

  • Parties may have minor children that they will continue to co-parent.
  • One party may be ordered to pay the other child support or spousal support on a monthly basis.
  • Parties may need to sign subsequent legal documents (i.e. inter-spousal transfer deed) to comply with the Judgment and the division of the community property.

Be sure to talk to a qualified family law attorney if you have questions or concerns related to a post-judgment matter.

Don’t

Giving your ex- “the finger”:  The ex-husband in this story from Michigan likely did not speak to his attorney.  In California, he may not be violating the terms of his divorce judgment.  However, he may be violating California law against spite fences.  Whether legal or not, permanently giving your ex- “the finger” may not be the best way to fully extricate yourself from your ex-spouse’s life and allow you to get on with your own life.

Getting your holiday schedule in order

November 18th, 2013

November is well underway, and with Thanksgiving approaching, it is time to take a proactive look forward to the upcoming holiday season. Many families have custody and visitation Orders that include designations regarding where children will spend each of the coming holidays. It is a good idea to take out your final Judgment of Dissolution or current custody and visitation Order, if it is not part of a Judgment or has been revised since your Judgment was entered, and review it to re-familiarize yourself with the holiday schedule for the next four months. This will allow you to properly plan for the holidays and to deal with any anticipated issues before they arise. Taking care of this well ahead of time will reduce stress and conflict and if necessary, allow enough time to bring a specific issue before the Court if necessary.

When re-familiarizing yourself with your holiday schedule, you should look at the following:

1. Note all of the upcoming holidays that your family celebrates and make sure that each holiday is addressed in your Judgment or Order.

2. What, if any, travel plans does your family have? If so, what type of travel information do you need to provide the other parent regarding your travels and by when?

3. Do any of the plans that your family has for the holiday season conflict with the Judgment or Order?

4. Are there any holidays for which there are no Orders or pursuant to which your Judgment or Order designates that you and the other parent will work out an Order?

5. What information do you need to communicate to the other parent in order to finalize the holiday schedule and/or work out any issues that you see now?

After reviewing your Judgment or current custody and visitation Orders, you should make a list of all issues that need to be addressed. If you are represented by counsel or wish to contact an attorney regarding any issues, you should have your list ready when you speak to them along with any proposed communication to the other parent suggesting solutions for dealing with scheduling issues.

All communication with the other parent on any issue, including custody and visitation, should be succinct, professional, and non-provocative. It should address only the issues at hand and should avoid touching on any other unrelated subject, issue, or idea. Finally, it should always be devoid of accusation, name-calling, recollection of past wrongs, arguments, difficulties and the like.

Families with children already have a lot going on during the holidays. Taking the time to deal with your holiday schedule now will save you stress, helping you to avoid the possibility of trying to get into court at the last minute in the middle of an already stressful holiday season.

You’re (Not) Going to Hollywood with my Child

November 15th, 2013

Simon Cowell’s (of American Idol fame) girlfriend and the mother of his child-to-be, Lauren Silverman, recently finalized her divorce in New York.  Click here for details.

According to news outlets, the terms of the divorce require that neither parent “talk trash” about the other parent in front of their child (they are sharing joint custody).  While the article makes it sound salacious, this kind of language is common in California divorce agreements and is often referred to as a “non-disparagement clause”.  In short, both parents agree that they will not talk poorly about the other parent nor allow others within earshot of the children to do so.  If Mr. Cowell’s people put out a press release disparaging Ms. Silverman’s ex, Ms. Silverman will likely get a call from her ex-husband’s lawyers.

According to reports, the agreement goes so far as to state that Mr. Cowell cannot even spend time with Ms. Silverman’s child.  If he does, she will have to pay $50,000 to Mr. Silverman.  This might make future Cowell family gatherings difficult as Mr. Cowell and Ms. Silverman are expecting a child in February 2014.  The half-siblings will not be able to be in the same room if Mr. Cowell is present.

Reports also suggest that the reason for the divorce is being changed to “the marriage had ‘broken down irretrievably'” from the more specific announcement of adultery.  This would not be an issue if the divorce occurred in California.  California is a no-fault state and the inclusion of specific bad acts, or misconduct, are improper and inadmissible in pleadings.  See Family Code Section 2335. Separating couples in California (if not a void or voidable marriage) can choose from “irreconcilable differences” or “incurable insanity”.  Adultery is not an option.

If you have questions about specific terms to include in your custody/visitation agreement, be sure you speak with a qualified family law attorney.

Custody and Breastfeeding

November 14th, 2013

In Pennsylvania, a judge recently ordered a mother to stop breastfeeding so that the father could have overnights with their 10-month old child.  Click here for the link to the story at sfgate.com.

Could this happen in California?  If the parents cannot agree to a custody and visitation (or timeshare) schedule, the Court will make a decision.

In making custody and visitation decisions, the Court is required to look at the “best interest of the child” (Family Code Section 3011) and to “assure that children have frequent and continuing contact with both parents…”  (Family Code Section 3020).  In reviewing a child’s best interest, the Court must consider the “health, safety, and welfare of the child.” Family Code Section 3011(a).  Though breastfeeding is not explicitly listed in the statute, it certainly falls within broader reach of the 3011(a) considerations.

If you have legal questions about the appropriate timeshare for a breastfeeding child (or any child), you should speak to a qualified family law attorney.

Donor Parental Rights – Florida

November 8th, 2013

The Florida Supreme Court recently ruled that an egg donor has parental rights not because she was biologically related to the child but because:

“The couple’s actions before and after the child’s birth — including their use of funds from their joint bank account, their statements to the reproductive doctor that they intended to raise the child as a couple, the counseling they underwent to prepare themselves for parenthood, the use of a hyphenated last name for the child, and the joint birth announcement — reveal that the couple’s agreement in actuality was to both parent the child.” 

The decision does not affect anonymous egg or sperm donors, but does strengthen the claim of parties who hold the child out as his or her own.

This issue is not limited to Florida.  If you are in a committed, though non-married, relationship and considering raising children together you and your partner should consider speaking to a qualified family law attorney who can explain each person’s rights and help you draft agreements to effectuate you and your partner’s understandings.