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Collaborative Divorce Solutions of Orange County

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Spousal Support

How Does a Legal Separation Differ from a Dissolution of Marriage?

February 9, 2022 By Leslee Newman

If you are unhappy in your marriage what can you do about it? You could seek a divorce, a legal separation, or a nullity. The process of filing a case with the court is almost identical, but the procedure and the ramifications of filing a legal separation or a nullity instead of a divorce are different.

In California since 1970, we have a “no-fault” system in which there are only two grounds for divorce — “irreconcilable differences” and “incurable insanity.” Irreconcilable differences can encompass a wide variety of reasons, but often means that the spouse applying for the divorce is in a new or better relationship, is being harassed or abused by the other spouse, or wants a different life in another state or country but their spouse does not want to move away. Any of these reasons can create a breakdown of the marital relationship, with required testimony to the court by the petitioning spouse, that the couple can no longer live together.

Why file for a legal separation instead of a divorce? The court forms and the court process of filing for either a divorce or a legal separation are almost identical. In every legal separation or divorce process there are three areas in which choices by the spouses must be made. If any child is under the age of 18, a parenting agreement must be drafted as well as the allocation of child support determined, especially for a child with special needs. Also, spousal support could be an issue if the earnings of each spouse are substantially different. Finally, the personal or real property owned by Husband and/or Wife which is community property must be divided.

However, if you select the legal separation route, you do not terminate the marital relationship. What are the reasons for doing this? They might include the following:

  1. Either husband or wife feels compelled by religious beliefs to remain married even if husband and wife are no longer living together.
  2. A Judgment of Legal Separation enables one of the spouses who may not qualify for health insurance because of a pre-existing condition, or cannot afford to obtain their own health insurance policy, to remain on the health insurance of the other spouse for as long as they are still married.
  3. The Judgment of Legal Separation can divide marital property, provide spousal and/or child support for a minor child or children, divide marital debts, terminate the responsibility of each party to pay for the new debts or expenses of the other party after date of separation, and terminates the liability of one spouse for the other without fulfilling the requirement that at least the Petitioner resides for at least 3 months in the county of the Court’s location and for at least 6 months in the State of California. (However, to terminate the marital status of husband and wife, a divorce/dissolution of marriage must be filed by at least one of the parties who has resided for at least 3 months in the county of the Court’s location and at least 6 months in the State of California.)

Because legal separation or divorce in California is complicated, it is best to seek consultation and/or representation from licensed, experienced, and skilled family law attorneys as well as other licensed mental health and financial collaborative practice professionals.

Filed Under: Child Support, Creative Divorce Solutions, Divorce Options, Spousal Support Tagged With: Agreement, Dissolution of Marriage, Property Division, Separation

What Women Should Know About Divorce

November 22, 2021 By Leslee Newman

If asking for spousal or child support, you will always receive more money if you are already employed or have a source of income, your husband is earning more than you, and you can show a need for his financial assistance through a request for child and/or spousal support. Thus, it is detrimental to purposefully limit your stream of income, quit your job if not necessary, or downplay your ability to earn because you think you will receive more from your husband.

If you are in a domestic violence situation, and periodically experiencing threats, intimidation, and even physical assault, you should separate from your husband as soon as you are able to do so. You must educate yourself about the domestic violence cycle and know that each incident could become worse physically and psychologically than the last one you experienced. Without assistance, education, and separation, each incident could become more harmful, not only to you, but also to any children living with you. There are domestic violence assistance centers at courthouses in California where family law cases are processed and heard.

Unless you need the protection of domestic violence restraining orders, try not to speak badly about the children’s father. Demonstrate to your children that you still respect and communicate with their father to psychologically and financially support your children, and to let them know that they are most important to both mother and father. In other words, that the children come first.

Be careful about what you say to your children even if your children are teenagers or adults. Try not to align your children against their father and/or other siblings.

If there is no domestic violence, or the need for restraining orders, consider an alternative to divorce litigation, such as mediation or a collaborative divorce. Both you and your husband can meet for a free or reduced fee consultation with a family law attorney/mediator and/or family law collaborative attorney. Together you can consult about the process, the fees of the attorney/mediator and/or collaborator, and make a joint decision as to how you will both proceed. This can help husband and wife to move more quickly through the divorce process, with less emotional, psychological, and financial detriment, and help both parents to reassure the children jointly that you are working together to provide two homes for them in which they can continue to be parented and nurtured by both mom and dad.

Once the divorce or legal separation begins, don’t play games with your spouse. Try to cooperate to gather and prepare the information that is necessary to describe, assess, value, and divide your assets intelligently, amicably, and speedily.

Don’t hesitate to obtain assistance from a licensed mental health professional that you have previously worked with and respect, or find a competent licensed professional to assist you through the emotional and psychological aspects of the divorce process.

Don’t let family members or friends force you into a divorce process that is uncomfortable for you.

One of the biggest compliments I have received from couples who I have mediated or collaborated is that when they go to their child’s school for a meeting with the teacher, the teacher doesn’t even know that the children’s parents are divorced.

Filed Under: Child Support, Divorce and The Law, Spousal Support Tagged With: Gender Differences, Things to Know

“I Just Need to Win”… How Collaborative Professionals Can Help Shift the Paradigm

February 24, 2020 By CDSOC

By Paula J. Swensen, Esq.

Those of us of a certain age remember the immortal words of a successful football coach after whom the Super Bowl trophy was long ago named.

Vince Lombardi famously opined, “Winning isn’t everything… it’s the only thing.”  That’s a pithy and fitting philosophy for a coach to use to inspire his or her team to attain greater and greater success on the football field, but we collaborative divorce professionals know that it is not so useful when it is applied in the context of a divorcing couple.

It goes without saying that everybody wants to win.  No one wants to lose, regardless of the undertaking or the endeavor in which one is engaged.  We know intuitively from a very young age that winning is “good,” and that losing is “bad”.  We all want our team to win, and we become frustrated and sometimes angry, when our team loses.  We all know from following sports that when there is a winner, there is also a corresponding loser.

This concept of “winning” is ingrained in our being from an early age, and it has now saturated our culture.  We want winners, not losers when we choose employees, spouses, friends and professionals such as doctors and lawyers.

As a certified family law specialist who has litigated, and also mediated many divorces, it never ceases to amaze me when a spouse will say, “I just need to win.  You have to help me WIN!”

At such times I am compelled to ask, “What do you mean by “win” your divorce?” “What is a win?” “What does a win look like to you?”

Those of us who have dedicated our practice to helping couples finalize their divorces in a more peaceful manner, know that we can bring a much-needed paradigm shift at the beginning of their divorce process to better assist a family transitioning from one household into two separate households.

Our first challenge is often to help spouses understand at the outset that a divorce is not a zero-sum game in which there is one “winner” and one “loser”.  Given the near-automatic reflex to think in those terms, it can take some work to dispel that ill-fitting notion.  Yet, helping to shift the focus from that initial mindset of needing to “win” to one where a spouse can appreciate the benefit of achieving an outcome that is, instead, in the best interest of the family as a whole, cannot be overstated.

As we are well-trained to do, focusing on concerns that each may have rather than focusing on positions is likely to obtain a better outcome for the divorcing couple and their family.  We, as collaborative professionals can assist spouses to think slightly differently about this whole concept of “winning,” and to broaden their outlook to include the well-being of their entire family.

How do we help a couple create a “win/win” mindset based on a balanced outcome?

What if a “win” meant using the funds that would have been spent on contentious litigation to instead put toward the children’s education?

What if a “win” meant the ability to stay in the marital home for a period of time so that the children would not be displaced from their school and their friends?

What if a “win” meant that both parents could attend a child’s milestone events: recital, birthday, holidays, special occasion party, graduation or wedding without the child being forced to choose one parent’s attendance over the other?

What if a “win” meant that each spouse was able to move beyond the divorce with a positive outlook for his or her future?

The collaborative professionals have a unique opportunity to assist the transitioning couple to discard the mindset of divorce as a zero-sum game, and to embrace the concept of finding resolutions that are in the best interest of the whole family.

Mr. Lombardi’s familiar adage should rightfully be relegated to the football field, as it serves no useful purpose in helping couples to achieve a peaceful divorce that best meets the needs of their family.

Filed Under: Child Support, Children's Mental Health, Collaborative Practice, Divorce and Emotions, Divorce and Money, Family Issues, Financial, Mental Health, Spousal Support Tagged With: Divorce Philosophy

Horror Stories of the Delayed Divorce

October 24, 2019 By CDSOC

A recommended article written by Diana L. Martinez, Collaborative Attorney, Mediator, Lecturer & Trainer

“As we enter the holidays, many divorcing couples choose to put their divorce on hold, preferring to focus on more enjoyable aspects of the season.  Unfortunately, this can make for a horror movie later on.  Before you slow things down, understand the potential nightmare lurking behind delays in your divorce, and how you can create a safer way to give yourself a much needed respite this holiday season.”

Click the link below to read more:

https://www.hbplaw.com/blog/2019/10/horror-stories-of-the-delayed-divorce/

Filed Under: Child Support, Collaborative Practice, Delayed Divorce, Divorce and Money, Divorce Horror Stories, Family Issues, Financial, Legal, Spousal Support

When 50/50 Isn’t Always Equal in a California Divorce

June 6, 2016 By CDSOC

by Diana L. Martinez Collaborative Lawyer and Mediator, Law and Mediation Office of Diana L. Martinez

California is one of nine “community property” states as it relates to divorce. This means that assets and debts acquired and incurred during your marriage will be divided equally upon divorce. Exceptions exist for specific items received during marriage that are deemed “separate property” under the law. This includes gifts and inheritance.

This is one of the most misunderstood concepts in divorce law. Spouses often believe their divorce will be easy if they just split all of their property in half, or “50/50.” While strong emotions present a barrier to resolving issues during a divorce, not far behind is the misunderstandings by couples about the concept of what is “fair” when it comes to dividing up assets and liabilities.

From extensive experience as a mediator, consultant, and Collaborative Divorce lawyer, I am a strong advocate for giving spouses a greater voice in the outcome of their divorce. I am also a strong proponent of ensuring divorcing spouses have as much information as possible to make the best decisions moving forward.

Although the courts are required to enforce the laws, spouses in a divorce, with few exceptions (typically related to minor children) are not limited by the law; they can create their own, unique, agreements, based on their goals and values. Laws controlling the division of assets and debts, the amount you receive or pay in support, and the amount of time granted with your children exist to guide you IF you and your spouse are not able to resolve these items together. If you can’t resolve your differences, a judge will make the decisions for you. He or she is required to enforce the law, regardless of your personal goals and values.

You and your spouse may have some understanding of the law. But in negotiating your agreement, you may be better served by accepting less than the law allows in return for a greater benefit elsewhere. The benefit could be a better co-parenting relationship, or the opportunity to reduce or eliminate spousal support. It may even be the creation of balance where the laws aren’t able to provide it.

Annette and John Peterson provide a case study worth discussing as an example. The Petersons were able to resolve all disputes in their divorce except one: Annette’s pension benefits of approximately $100,000. This roadblock stalled the Petersons’ divorce for six years, from February 2010 until the California Supreme Court rendered its decision in January 2016.

In retrospect, after nearly six years of legal fees, lost time from work, and stress, Annette and John might have preferred finding a compromise outside of the contested court process. State laws governing pensions and federal laws governing Social Security created the sense of imbalance that Mr. and Mrs. Peterson fought so hard to correct, as each, individually, deemed most “fair”.

In California, pension benefits are community property when earned during marriage. Pension benefits are a form of deferred compensation for services rendered. Non-financial contributions to pension benefits, or “service credits,” are also considered “a form of deferred compensation for services rendered” and, therefore, community property.

But Social Security benefits are separate property under federal law. Federal law preempts state law. Social Security is not transferable, nor can it be assigned by the wage earner. There are, however, derivative rights upon divorce if:

  • you and your spouse are entitled to receive Social Security;
  • your marriage lasted 10 years or longer;
  • the ex-spouse did not remarry;
  • the ex-spouse is age 62 or older; and
  • the benefit the ex-spouse is entitled to received based on his/her own work is less than the benefit he or she would receive based on his/her former spouse’s work.

If each requirement is met, an ex-spouse could elect to receive either all of his/her own Social Security, or one-half of his/her former spouse’s Social Security, but not both.

As an employee of the County of Los Angeles, Annette did not contribute to Social Security. Instead, the County contributed to a defined pension plan for Annette through the Los Angeles County Employees Retirement Association (LACERA). As an attorney in private practice, John contributed to Social Security through mandatory payroll deductions.

Annette’s LACERA benefits totaled between $200,000 and $216,000. Based on Social Security calculations, John’s Social Security benefits totaled $228,000. Annette attempted to argue that the laws governing LACERA pensions and the laws governing Social Security created unequal benefits. Annette and John would split her LACERA benefits in their divorce (approximately $100,000 to each). But John would keep all of his Social Security benefits.

The trial court ruled in John’s favor, creating an actual 150% windfall for John ($328,000 from 50% of Annette’s LACERA and 100% of his Social Security). Annette asked the California Supreme Court to correct this unfair situation, suggesting the court give John less than half of her LACERA pension benefits.

The Supreme Court let the trial court’s ruling stand, citing the requirement under California law that community assets be divided equally in a divorce. Since Social Security is not a “community asset,” the court correctly divided the community assets and could not deviate from that equal division, even when it creates an unequal division overall.

But the Supreme Court pointed out that it was completely within Annette and John’s power to create their own, more equal solution, even though the court under the law could not.

So let’s go back to Annette and John’s original circumstances. What was the value to John if he had agreed to give Annette all of her LACERA benefits, instead of insist on following the state law giving him a far greater share? What would have been the value to Annette to propose an alternate payout to John to resolve this issue?

As of 2010 in California, the average cost of a divorce where the parties were represented by lawyers was approximately $50,000 each. This amount is on the low end for a contested divorce in Orange County, and it does not include the legal fees for an appeal. Over the period of six years, based on 2010 estimates, Annette and John would have spent more than $100,000 each. Resolving your divorce early and collaboratively can save on legal fees, lost work time, and other intangible and emotional costs.

Managing emotional trauma and stress for yourself and your family offers priceless benefits, far beyond feeling a sense of entitlement or unfairness. Attorneys frequently fail to focus on these practical impacts because they are hired as legal advisors and guides, not as therapists. Attorneys are not equipped to help people through their fears; they are not trained mental health professionals.

Alternative (also known as “consensual”) dispute resolution models often incorporate legal and non-legal professionals to help educate and guide couples through unexpected emotional landmines, often resulting in less, or better managed, conflict, and better informed and well reasoned results.

For example, the Collaborative Divorce model incorporates guidance from a “divorce coach” to help manage the emotions of divorcing spouses, often saving the spouses tens, if not hundreds of thousands of dollars, as well as years of stress embroiled in a contested divorce, and the subsequent modifications to orders after trial. The outcomes tend to be far more satisfying to both spouses, and result in fewer or no additional hearings after judgment to modify those orders.

Making decisions based on accurate legal and financial information, as well as balancing the practical impact on your family and finances often results in far greater and lasting benefit for you and your family. Sometimes, there is too high a price for the short-term gain of getting everything you can under the law.

Filed Under: Child Support, Collaborative Practice, Divorce and Emotions, Divorce and Money, Financial, Spousal Support Tagged With: Assets, CDSOC, Community Property, Diana Martinez, Divorce and Real Estate, Divorce and Retirement, Divorce and Trauma, Employee Benefits, Equal Division, Financial Settlement, Legal Fees, Orange County, Property Settlement, Retirement Benefits, Separate Property, Social Security

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