LegalMatch: Family Law

A Brief Guide to Divorce in California

One of the most common questions about divorce, or any legal procedure, is “how does this work?” That is, what is the divorce process? In California, divorce follows a streamlined process similar to most civil lawsuits, though it has some differences.

1) Filing the Petition

One of the spouses must file a petition for divorce. The parties may or may not be legally separated, but they must reside in the state for at least 6 months and in the county they are filling in for at least 3 months. The petition should cover all major issues of a divorce, which are: child custody, child support, spousal support, and property division. Child custody and support are not relevant in all cases since not all couples have minor children,

2) Financial Disclosures

Spouses must disclosure their finances to their spouse. The rationale is that for the divorce to be “fair,” both spouses must know what the other spouse has or owns. Once all the disclosures have been made, spouses can divide community property in a fair manner. Disclosures must include, but are not limited to:

1. Last three paycheck stubs
2. Tax returns from last two years
3. An income and expense declaration
4. A schedule of assets and debts\

3) Discovery

As finances are being disclosed, parties are allowed to make discovery requests towards one another. Questions and demands for bank account statements, mortgages, and other evidence of finances may be forthcoming. The biggest issues will likely be whether a property is separate or community property.

4) Judicial Settlement/Child Custody Settlement Conference

Like all legal matters, the endpoint of a divorce petition is a trial on disagreements. Just like all legal matters, most divorces end in settlement. In California, divorce settlements are divided into two parts: child custody settlements, where child custody is agreed upon; and judicial settlement conferences, where property and support disputes are settled.

5) MSA or Judgment

As discussed above, divorces end at settlement, or the parties settle most issues and the remaining one or two issues are decided by a judge during trial. Parties should sign a Marital Settlement Agreement (MSA) with the court retaining jurisdiction so that the court can enforce the agreement, if necessary.  The divorce decree is typically granted after the MSA has been signed, but parties can agree or ask the court to separate granting the decree from the other issues.

If the spouses have minor children, the case will not end. Child support and custody issues remain until the minors become an adult (turn 18, join the military, or become married). Parties can ask the court to modify support or custody arrangements at any time, provided that good cause exists.

Authored by Jason Cheung, LegalMatch Legal Writer and Attorney at Law

Who’s in Charge of Paying Your Child’s Car Insurance After a Divorce?

Navigating through the ins-and-outs of a divorce can be tough. There are often expenses that arise that you may not have initially thought of—your child’s car insurance payment is one of them. Child support laws vary greatly by each state, so it’s important to check your own state’s guidelines when trying to determine which parent is in charge of covering a child’s car insurance. Some guidelines cover just the basic necessities, while others are a bit more detailed.

A basic child support payment does not typically cover things like extracurricular activities, college expenses, medical insurance and/or uninsured medical expenses, which are generally agreed upon within a settlement agreement. This includes car insurance.

Who Covers the Child’s Car Insurance Coverage?

Car insurance companies will generally require a parent to list their child on their insurance policy if that child is a licensed driver living in their home. In that case, the burden can often fall on the custodial parent (the parent with the most custody time). If the parents share joint custody, it’s typically whichever parent has the most custody time, or the parent that has the child the most during the school year. Usually, but not always, this is the parent receiving the child support. Some companies even require parents sharing joint custody to cover the child on both policies.

The parent required to list the child on their insurance may not always be the same parent in charge of paying for the car insurance. Again, states vary greatly, but car insurance is not typically covered within a basic child support order, which means you must negotiate it as part of a settlement agreement during the divorce.

Many Take the Mentality That Child Support Should Cover Everything

There’s a misconception that once the non-custodial parent pays the custodial parent child support, then the non-custodial parent no longer has to pay anything else for the child. Child support is not a one-time payment and you’re done.  It’s meant to cover basic necessities, such as food, shelter, clothing and other basic living expenses while the child is with the custodial parent. Unplanned or un-thought of expenses inevitably always come up.

Let’s be reasonable though. Parents can come to an agreement before the divorce is finalized. It doesn’t make sense to require the custodial parent receiving child support to carry the burden entirely by himself or herself. Think of all the other costs the parent has to use the money for: groceries, food, clothing, uninsured medical expenses, small incidentals, and many others.

Remember, child support is for the child, but that money can go towards providing a roof over your child’s head. So often times, a basic child support payment is not enough money to cover all the expenses of a child. This is why divorce is expensive!

Who Gets to Make the Decision About Driving?

Coming up with the money is typically the bigger issue, but at some point the parents have to decide whether their child should begin driving. What happens when one parent wants the child to drive and the other doesn’t?

Just as it is with adults, driving is considered a privilege and no child is “entitled” to drive. The decision will be entirely up to the parents.  Which means a judge typically won’t force a parent to pay for a child’s car insurance.

If an agreement truly can’t be reached, the parents can always request the court to intervene and settle the disagreement for them. Most courts don’t like being involved in small issues like this, so it’s best to come to an agreement between yourselves or with the help of your family law attorneys. If the issue is brought before the judge, it’s going to be on a case-by-case basis. 

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

The Mediation Alternative to the Adversarial Court System.

THE PROCESS OF MEDIATION

Mediation is initially a unilateral choice made by the parties to mutually agree to weave together their different perspectives to create a lasting solution. Mediators must set the tone for the process- a fair process that includes sharing information and empowering participants. Often the environment of equality found in the mediation process is enough to loosen an individual’s position, if they feel they are finally being “heard” for the first time. Then the individual may make a new choice to either suspend their belief or give up the right to blame the other party. In mediation we do not attempt to find out who is right or wrong in the relationship; only answer the question of how we can proceed with the situation as is and what decisions can be rendered now and which will be left for later. For some, mediation also serves the purpose of giving “completion” to the relationship and allowing a respectful reflection of their personal process during the marriage. The power of resolving the conflicts mutually and creating a new relationship is always beneficial, even when painful. The court need actively be involved only where the problem cannot be resolved by such less formal process.

FOCUS OF MEDIATION

The nature of each mediation will dictate the need for individualized care requiring a personalized approach. First and foremost, flexibility and pacing are vital to finding the way. Generally, the mediators encourage interaction between the spouses, assist in the identification of areas of disagreement, as well as agreement, and then work to bring the parties to a resolution; a resolution reached and defined by the parties themselves. The art of mediation is gentleness sprinkled with lots of flexibility and care. We have found that often one or both parties may garner essential emotional support from a concurrent association with a psychotherapist, as that connection tends to diminish the trauma of divorce.

THE WIN OR LOSE COMPETITION

Ultimately, the adversarial system pits parents against parents, as children are placed in the middle of a battle between parents, as if children were a piece of furniture their owners are fighting over. This is obviously antithetical to the best interests of a child. The adversary process is essentially a win or lose competition. Each party attempts to prove to the court why he or she should be the winner and/or the other, the loser. If the winning prize is money or property, the concerns of the sought-after object need not be considered. However, where the sought-after object is a child the dispute is of a totally different nature. While this difference is widely recognized, the conflicts over the best interest of the child continue to take place in a win or lose framework. The adversarial framework dominates because attorneys, no matter how sophisticated their understanding of total family dynamics, can represent only one of two opposing points of view. To achieve victory in the family custody situation, parents sometimes make extreme allegations about their spouses, such as charging the other with sexual abuse of the child. Adversary proceedings sharpen and deepen the parents' differences, and once litigation is initiated; compromise, flexibility, and cooperation are often devalued or impossible to recapture. Thus, the child may be treated like property while parents clog the courts with bitter fights over money, assets, and support. The combative atmosphere makes it more difficult for divorcing couples to reach a settlement and develop a cooperative relationship once the divorce is final.

By Richard Paris, Esq., family law attorney and mediator
[email protected]
415-209-6152

The Importance of the Parenting Plan Process.

Many states now require parents to go through a process called Mediation.  Mediation offers parents a controlled environment in which to discuss and establish child custody and visitation arrangements that are in the “best interest of the child.”  The mediators, or “ringleaders” of this whole process, are to be neutral, listen to both parents, help you decide important decisions regarding your child/children, and ultimately make suggestions to the judge.

During a divorce, there often is so much resentment and anger that parents don’t realize that every comment and action is picked up by the child/children involved and ultimately have a negative effect on their lives.  Despite your anger you need to start thinking about the feelings of your child/children.  Right now you absolutely HATE your soon to be ex-spouse but your child/children don’t feel the same way.  To them your ex is their best friend, confidant, and biggest fan.  Do you really want to be the one to try and convince them otherwise?

Prior to entering Mediation think about the type of arrangement you would like to establish.  Who will have Physical Custody?  Will you both share Legal Custody?  Think about where your children will go to school, church or daycare.  Will you and your ex-spouse be living in the same town?  What are your work schedules like?  How will you split transportation expenses from one parent to the other?  How will holidays be divided?  These are all questions that you will want to have answered during the Mediation process.  Your parenting plan should be detailed enough so it is understood and enforceable.  If you have your sights set on making this process work you may even want to read a great book that I recently came across.  It is called The Co-Parenting Survival Guide.  You can read an excerpt here.  This book spells out a dozen golden parent agreement rules that I think all parents should agree to and sign.

What should you bring with you to mediation?  You should without a doubt have a calendar for the current year and maybe even the following year.  This way there will be no question regarding specific days for visits, holidays, etc.  You and your ex-spouse should also bring any and all information you have about your child/children including medical and school records.  I guess the most important thing to bring with you to Mediation is a positive attitude.  Remember you are establishing a Parenting Plan for your children to adjust properly and become productive members of society.  It is hard enough for them to realize that mommy and daddy are no longer going to be in the same house.

I believe that Whitney Houston sums up the importance of our children in her song “Greatest Love of All.”  I will leave you with the following lyrics:  “I believe the children are our are future.  Teach them well and let them lead the way.  Show them all the beauty they possess inside.  Give them a sense of pride to make it easier.  Let the children's laughter remind us how we used to be.”

By Lisa Zanassi