Do You Need Emergency Estate Planning During COVID-19?

False Allegations in Child Custody and Divorce Cases 

Divorces where there are children involved are always complicated. Unfortunately, one of the most common issues in all divorces is custody or parenting plans. Both parents want what is best for their child, but oftentimes, the acrimony between them does not provide a sound basis for good decision making.

Sadly, all too often, one partner or the other resorts to filing reports which are untrue, and this can often leave the other parent fighting back about issues which they never thought they would have to deal with. Some of the most common allegations which are common in these situations include:

  • Accusing the other party of domestic violence
  • Accusing one partner or neglecting or abusing the children involved
  • Claiming one parent has a drug or alcohol problem
  • Filing reports which state the parent is not abiding by the custody agreement
  • Filing false legal reports with the court
  • Accusing one partner of having a criminal complaint against them

Unfortunately, these types of allegations often leave you not only angry and confused, but also aggressively fighting against them to maintain your rights. Remember, since California is a community property state, some of these charges may also impact your settlement agreement.

Defending Against Unfounded Allegations

When someone makes an allegation against you in the midst of a child custody battle, or when a divorce proceeding is underway, you will have to mount a defense. Fortunately, in many cases, there are simple ways to do this. In many cases, these allegations will arise if an issue occurs which the other party is not comfortable with — for example, the judge has ruled that both parents must share custody and the other parent is unhappy about the terms.

Some of the potential defenses you can use depend heavily on what the allegations include — here are some examples:

  • Drug and alcohol abuse — typically this is fairly simple to prove in a combination of manners. First, you can submit to a drug test to show you have no drugs in your system. Character witnesses such as friends and co-workers may also provide information which can be invaluable to help fight back against these allegations.
  • Child abuse or neglect — these are the charges every parent dreads. However, in many cases, they are also the easiest to defend against. Neighbors, sitters, teachers, and friends can attest to the care you are providing a child. When a child is old enough to speak for themselves, they may also provide information to a social worker, but in some instances, the child may have been coached by the other parent, so this must be done with someone who has experience handling these types of claims.
  • Domestic violence or abuse — one of the more serious allegations you may face is one of domestic violence. Since this does not always require a physical altercation, it may be more challenging to fight back. However, there are ways you can do this including forcing the accuser to provide concrete dates and locations where the reported violence or abuse took place. In some cases, they will contradict themselves, or provide specific dates or locations. If they happen to provide specific dates and locations, it is generally easy to disprove an unfounded allegation because you were in a different location.

The first thing you should do whenever there are allegations made against you during a custody dispute or a divorce proceeding is to notify your family law attorney. This is important because they will be able to advise you on how to proceed, and whether or not you may need to take additional steps to protect yourself from further allegations.

Words of Caution When Facing False Allegations

There are some things you should be aware of should someone make an accusation during your custody or divorce proceeding. Remember, it is always important to protect yourself legally. Here are some things you should keep in mind:

  • Keep your emotions in check – losing your temper because you are angry or upset can jeopardize your case and your response. Avoid discussing the accusations with friends, family or others who may be called as witnesses later.
  • Keep a record of activity – whenever you have reason to be in contact with the person making the accusation, keep a record of what the interaction is like. Also, make sure if someone tells you anything about the accusation you make note of what they told you, and when they provided the information. It may be worthwhile to capture any online activity which refers to the incident. Remember, anything which can help you can be useful, regardless of how minor it may seem.
  • Keep your lawyer informed — you should keep your family lawyer informed of anything which may have an impact on your divorce or custody proceeding. Remember, in some cases, a person who has unfounded allegations placed against them may require a criminal defense attorney, which means they will have two attorneys to keep updated.

The last thing you want to do is place yourself in further legal jeopardy. If you have a shared custody plan, or when you are picking up your children for a planned visit, you may wish to be accompanied by a trusted family member who can bear witness to the interactions between you and your partner — this could also prevent them from making further false accusations.

Divorce is Never Easy and False Allegations Complicate Matters

Keep in mind, emotions always run high during a divorce proceeding, even when both parties can agree their marriage is no longer working. Unfortunately, when a partner lashes out in anger and levels allegations which are untrue against you, you must be prepared to defend yourself while avoiding any emotional outbursts which could complicate a divorce or custody proceeding even further.

If you are facing an issue because your partner has filed false allegations and you are concerned about how they may impact your child custody or divorce case, contact The Law Offices of Steven M. Bishop, Attorney at Law at (619) 299-9780 and find out your options.

 

Coping with Emotional Well-Being

Divorce is always complicated — not only is the process complicated, but chances are, the emotions you are feeling are equally as complicated. Regardless of what the circumstances are, it is common for those who are going through the process of divorce to be forced to deal with a range of emotions. Anger, sadness, confusion, worry are all normal feelings, and you may be feeling other emotions too, which you may not understand.

While you are naturally concerned about your children, your own emotional well-being is also a factor which must be considered during this stressful time. You are not the only person who has ever had to fight back against the mixed feelings you have — regardless of how rocky or stable you believed your marriage was, divorce is a closing of one chapter of your life and a movement into an unknown chapter. There are some ways which could help you deal with your own emotional well-being which may help you see the broader picture and help you move into the future with the confidence you need to succeed.

Accept Your Emotions as Normal

The first step in dealing with your emotional well-being is understanding the wide range of emotions you are experiencing are perfectly normal. No matter how challenging a relationship is, the ending of that relationship is also tied to several emotions. Divorce is no different. Be kind to yourself, your emotions will settle down over time. Until they do, pay attention to each emotion and work your way through them to help your emotional well-being.

Find a Trusted Sounding Board

There is probably one or two people in your life who you feel are quietly berating you and that can complicate your emotions as well as your relationships with others. Find a trusted confidant: It may be a friend, sibling, or parent who allows you to talk about your feelings, and the range of emotions you are going through. If there is no such person in your life you trust enough to listen without judging, you may wish to consider seeking a professional who can help you work through the often-competing emotions you are trying to deal with.

Make Use of a Support Team

Your legal team, your medical team, trusted friends, and family — each of these groups will have a role to play in helping you through the complicated divorce process. It is important to remember your life going forward is going to change — you may lose some friends in the aftermath of a divorce, your financial picture will be different, and you may be living someplace else. Do not be afraid to reach out to members of your support team when you are feeling frustrated, angry, or attempting to deal with what feels like constant roadblocks. That is what they are there for.

Create and Allow Yourself “ME” Time

Many times, when a person is going through a divorce, they bury themselves in their children’s activities, work, or other distractions. While this may be effective for a short period of time, you need to make some time you can call your own. Find some activity which helps you relax and refresh yourself — whether it is exercising, shopping, a hobby, or time out with your friends — create that period of time on a regular basis so you can find your own footing. You need this time for yourself because you want to make sure you are able to move on with your life without feeling resentment over your circumstances. One way to do this is to make sure you have carved out that time for yourself regularly.

Do Not Be Afraid of Self-Reflection

Some people will tell you that your best option is to walk away from your former spouse and move forward — that you will get over the situation faster if you simply do not think about it. This is not the best advice you will ever receive — you should take time to reflect on your relationship with your spouse and allow yourself to work through the emotions which are involved in that relationship.

You may find you feel sad because of what has been lost — couples have high hopes for the future when they are first married, and it is common to feel a sense of loss when your divorce is in the process or finished. Other people feel excitement, fondness, anger, hurt, resentment — all perfectly normal emotions.  Work through them, try to understand why you are feeling the way you are and, above all else, allow yourself to feel them — these emotions are all part of the healing process and ignoring them will not make them go away.

Think About Preparing for Your Future

As challenging as your emotions might be at the moment, there is one way to motivate yourself and that is to create a plan for your future — yes, it is going to be different than what you may have thought a year ago, but that does not mean you should not be excited about what is to come. Whether you have children or not, you may have to consider whether you need to move, whether this is a good time to consider a career change, or whether you just need to create a path to move forward. There are few things which can improve your outlook than creating a positive path forward and taking a look into a bright future — which although different than what you may have planned, does not have to be bleak.

Divorces are never easy — they are difficult on the adults involved, regardless of how many challenges they have faced in their relationship, and they are difficult for your children as well. Maintaining a healthy outlook can feel like it is an overwhelming task, but if you take the time to cope with the emotions you are dealing with as you face this new reality, things will gradually improve over time, and you can look to your future with more enthusiasm and excitement.

When you are going through a divorce, working with a smart, savvy, and compassionate divorce attorney can make a difference to how you feel about your prospects. Talk to a family law specialist at Stephen M. Bishop Law today by calling our San Diego office at 619-404-2619. You may also send us an email to schedule a free consultation.

 

Can I Be Forced to Pay My Spouses’ Attorney Fees in Our Divorce?

Divorce is time consuming and can be expensive. In some cases, you could be required to pay your spouse’s attorney fees to represent them in your divorce case. There are a limited number of instances when this can occur, but it is something every divorce client should be aware of before they decide to stall or otherwise create problems during ongoing divorce proceedings.

Unacceptable Behavior May Lead to Double Divorce Fees

Divorces are messy. While two people may mutually determine it is no longer in their best interest to continue with their marriage, there are a significant number of cases where one spouse is blindsided by the decision to divorce. When the news comes as a shock to someone, they may act out. These action could cost them more than loss of credibility in court, it could also mean they wind up paying for a spouse’s attorney’s fees.

Some of the behavior California courts consider when determining whether a spouse may be required to pay for the other’s attorney include:

Domestic Violence During Proceedings

One thing to be aware of is California’s broader determination of what constitutes a domestic violence incident. These are not just incidents where the victim is struck, although this is domestic violence. A domestic violence charge can also be:

  • Threatening to harm the other party
  • Harassment of an individual
  • Stalking an individual
  • Disturbing the other party’s peace
  • Destroying someone’s property

In addition to facing potential criminal charges, potentially losing your ability to see your child, and losing your rights to possess a firearm for the remainder of your life, you could also be forced to pay your spouse’s legal fees in a divorce. This type of behavior is unwarranted and unwise.

Causing Unwarranted Delays in Divorce Proceedings

California is a community property state, which means any assets a couple accumulates during their lives together will be divided equally in a divorce. However, one party or the other may have come into the relationship with assets (or debts) which would be considered sole property. Claiming assets as sole property which are supposed to be community assets can cause unwarranted delays, and additional lawyer fees for the other spouse. This type of behavior is not acceptable to the courts and could be penalized by forcing them to pay the other’s legal fees.

Delays in reaching an agreement regarding parenting plans, the sale of assets, or other types of delays which are meant to frustrate your soon-to-be ex-spouse versus accomplishing anything concrete can also be penalized by forcing you to pay fees for the other spouse’s legal representative.

The last thing you want is to find out that something you have done in anger is going to result in you paying additional legal costs. When you are working with an experienced family law attorney they will advise you of what is acceptable and unacceptable and help you make better decisions. When you are going through a divorce, anger and frustration are common, but do not allow your emotions to overtake your common sense or it could cost more than time. Let your attorney handle matters as much as possible with your spouse’s attorney, it could help save you hundreds of dollars in additional legal fees.

Financial Standing of Spouses and Legal Fees

California statutes also allow for cases where the courts may order one spouse to pay the other’s attorney fees where there is a proven financial necessity. Remember, one spouse may have more sole debt than the other, one may be unable to work, or one spouse may own a business. In these cases, when one spouse has a better financial standing, it would be considered usual to request the court grant such a request.

The specific statutes which pertain to financial standing are found in California Family Code Chapter 3.5 § 2030Attorney’s Fees and Costs. The court may order this at any time prior to the commencement of proceedings, during proceedings, or at the conclusion of proceedings. This type of order would only be granted where the court found there was a financial need.

Some of the situations where you may be ordered to pay your spouse’s attorney’s fees include:

  • You gained financially during the marriage, your spouse remained at home and raised your family
  • Your spouse is disabled, suffers an illness, or is otherwise unable to secure meaningful employment
  • The sole assets of each spouse are significantly different
  • One spouse could suffer a financial hardship due to legal fees

As you can see, there are various reasons why the court may order one spouse to pay the legal fees of the other. Your family law attorney can explain other situations which may apply in these cases.

Divorce is Complicated — Work with an Experienced Divorce Attorney

When you have been notified your spouse is filing for divorce, you are facing a range of emotions. This is perfectly natural — unfortunately, when we are facing times of crisis, we do not always make the best decisions. While there is little you can do to control the court’s decision to mandate you pay for a spouse’s attorney fees due to financial issues, you alone have control over bad decisions which could result in your paying them unnecessarily.

Law Offices of Steven M. Bishop — A board certified specialist in Family Law 

When you need an attorney to represent your interests during a divorce, you should seek the guidance of an attorney who has a solid understanding of the processes in California. At the Law Offices of Steven M. Bishop, Attorney at Law, you will be working with an attorney with more than four decades of experience working to help resolve divorces while protecting the interests of our clients.

Whether you are considering filing for divorce, or you have been informed your spouse has filed for divorce, contact Attorney Bishop to schedule a consultation. Call our office at (619) 724-4148 or complete our online Contact Form.

 

5 Tips to Finding the Right San Diego Divorce Lawyer

California marriages end in divorce too frequently. While California ranks among the lower across many states, the rates are still rather high. According to Statista, the state overall has approximately a 5.7 per 1,000 rate of marriages. Recent reports issued by U. S. News indicate approximately 6.5 percent of all California marriages will end in divorce. One of the most important things you can do when you learn your partner wishes to end your marriage is make sure you have a qualified divorce attorney. Here are some of the best steps you can take to find the attorney who is right for your needs. 

Step One: Talk to Family and Friends 

Nearly all of us know someone who has been through the divorce process. Each of us may turn to family and friends when we are looking for recommendations for other services and divorce attorneys are no exception. 

When discussing recommendations with friends or family, find someone who has a situation like your own. This can help you make a better-informed decision. If you have children and you are talking to only those who are childless, the attorney may not be the right person for your needs. 

The more similar someone else’s situation is to your own, the more likely you are to find the right attorney to meet your needs. This is just one way to determine if the attorney is the right one to help you move forward and resolve your problems. 

Step Two: Check Your Local Bar Association 

The State Bar of California has a listing of all family law attorneys in the state. Once you have decided which attorney may be able to best help you, review their credentials on this website and learn how long they have been in practice. You can also reference the San Diego County Bar Association and learn more about the attorney you are researching. 

Step Three: Evaluate Your Needs 

Before you begin contacting an attorney, it is a good idea to understand your specific needs. Some examples of how people’s needs may vary include: 

  • No Material Differences on Property Division — while California is a community property state, either partner may have had property coming into the marriage, one partner may be shielding assets, or other situations may develop which would result in your needing a more aggressive attorney. However, if you and your spouse agree on most issues pertaining to property division, you may merely need an attorney who will help you draft a proper agreement. 
  • No Dispute on Child Custody Matters — if you and your spouse agree on who will have physical custody of your child or children, your attorney can help you draft a proper parenting plan. However, if you and your spouse are disputing child custody, you need an attorney who is willing to advocate on your behalf. 
  • Other Determining Factors — if you have a high-value marital estate, your spouse is in the military, or either you or your spouse own a business, your needs are very different than someone who merely needs an attorney to help them draft a separation agreement and custody agreement. Make sure you are looking at your divorce situation as a whole and not as different parts, because it will make a difference when hiring a divorce lawyer

These are only a couple of situations where the family law attorney you select to handle your divorce could have an impact on your future. Choose the lawyer who will represent you carefully based on your specific needs. 

Step Four: Do Your Own Research 

Regardless of how stellar the information you receive from families and friends, it is imperative you do your own research into an attorney. There are several options for doing this including reviewing the attorney’s website, checking professional reviews, and searching professional referral sites. These sites often provide information which you will not find anyplace else and can help narrow your search for the right divorce attorney down to a small number of options. 

Step Five: Contact Local Resources 

Oftentimes, you can find information through local support groups for newly divorced parents or other groups which can help you determine a lawyer’s local reputation. Do not hesitate to take advantage of these resources as they will help you make a better decision. Remember, if you are in the midst of a contentious divorce, you want to make sure the lawyer you hire is going to be the best person to represent your needs and help you overcome the challenges you will be facing. 

Once you have completed these five steps and narrowed your choices down to a few names, you will then have the information you need to make an informed decision. However, your search should not end there.  

One of the most important things to remember is you need to be able to talk to your lawyer about all aspects of your pending divorce, which means you need to feel comfortable sharing potentially uncomfortable information. The best way to accomplish this is to have a face-to-face meeting with the lawyer before you hire them.  

Nearly all attorneys will offer potential clients a free consultation. By scheduling a free consultation, you can either discuss your case by telephone or in person with an attorney and determine your level of comfort. Remember, every person’s needs are different — you may need an attorney who will be available by phone when you have questions, others may wish to have an attorney who will just take charge of their case and let them know what they have to do.  

If you are considering filing for divorce, or your spouse has recently informed you they plan to file for divorce, you need someone who will serve as a strong advocate for your interests. At The Law Offices of Steven M. Bishop, Attorney at Law, we have had more than four decades of experience handling a range of divorce cases including military cases, high net worth cases, and cases where there are broad disputes between spouses. As a specialist in family law, as certified by the California Board of Legal Specialization we are committed to helping each client resolve their family law matters. Contact The Law Offices of Steven M. Bishop today at (619) 299-9780 or fill out our online contact form to schedule your free consultation. 

Will I Need A QDRO For My California Divorce?

Divorces can be messy. The process can be challenging for couples to navigate, even when most issues can be resolved amicably. This is one reason why couples often turn to an experienced family law attorney to help them draw up agreements, resolve unsettled issues, and review the issues which a couple has resolved between them.

One type of asset which is challenging to navigate during the property division phase of a divorce is retirement accounts. One partner or both may have these types of accounts, and in some cases, some of these assets were in the account prior to the marriage. Since California is a community property state, the state holds the belief that any assets accumulated during the marriage are to be divided evenly between the two parties. In the event one or both spouses have retirement accounts to be divided, a qualified domestic relations order (QDRO) is required.

What is a QDRO?

Qualified domestic relations orders are used to divide assets in specific retirement plans. There are some plans, such as individual retirement accounts (IRA), deferred annuities, and some government pension plans which do not require these types of court orders.

QDROs provide specific directions to the custodian of the accounts on what amount is to be sent to the receiving spouse, as well as information on how they are to be transmitted. These orders are used for the following types of accounts:

  • Corporate Profit-Sharing and Stock Ownership Plans
  • Corporate and Business Defined Pension Plans (DPP)
  • Money Purchase Plans

Some of these plans are more complicated to divide up than others — for example, DPPs are more challenging to value than others. However, when you are working with an attorney, they can help you navigate this process and make sure the court has complete information on each of these retirement plans.

Is a QDRO the Only Way to Divide Retirement Assets?

In a word — no. You do have other options to deal with assets which your spouse is entitled to following your divorce. One option is to offer to provide non-retirement assets to your spouse in the amount of their interest in the retirement plan. This is commonly called a buy-out. To complete the buy-out however, you will have to reach an agreement with your spouse regarding the value of your plans, and the court will have to approve the agreement and include the terms of the agreement in your Dissolution Judgment.

Anyone who is going through the divorce process and has certain retirement accounts should also determine ahead of time whether the receiving spouse may need to join the plan in order to receive any portion of that plan. Your family law attorney can help you understand the differences and which accounts may require the spouse to join the plan.

How is The Amount of the Retirement Account My Spouse is Entitled to Established?

Typically, the assets of a couple are divided equally in California. When there are retirement accounts, there are complicated formulas which must be taken into consideration. For example, any funds which were part of your plan prior to your marriage are considered sole property. For most plans, the value of the plan on a specific date is used to determine how much your spouse is entitled to as part of the divorce. Other plans, such as defined benefit plans and annuities are more complicated. That is because they are based on a specific value, versus a specific investment amount to arrive at a value. Speak with your attorney about finding out how these plans are to be used.

What Steps are Taken After a QDRO is Issued?

The first thing you must understand is most retirement plan administrators have certain requirements for QDROs. Your attorney can help draft the QDRO to ensure it meets the needs of the plan. Once there is certainty the document meets the needs of the plan administrator, the court will have to approve the document and give their approval to the plan which has been agreed upon for the division of retirement assets.

Once the court approval has been received, the plan administrator is provided with the court-certified copy of the QDRO. The plan administrator will then take the necessary steps to transfer the portion of the retirement accounts which are being divided. Keep in mind, withdrawing these funds rather than leaving them invested in a retirement account will likely mean paying a tax penalty so it is important you understand the tax implications of any withdrawals from funds received under the QDRO.

How Would a Buyout Work Versus a QDRO?

If you and your spouse agree to use the buy-out option, the process is different. First, the funds would not be drawn from your retirement plan, instead they would be from other assets. For example, if you had an art collection which was estimated to be valued at $100,000 and your spouse is entitled to half, that is an easy calculation. If the determination is made they would be entitled to $50,000 in assets from your retirement plan, you could agree to turn over the entire art collection to your spouse. Keep in mind, the buy-out still must be approved by both your spouse and by the court.

Property division is complicated when both spouses have both property they own together as well as property which is considered their sole property. It is further complicated with both partners having retirement plans which must be divided upon their divorce. Everyone who is working through the complicated process of a divorce should be working with an attorney whom they feel comfortable with and one who understands the complexities involved in resolving issues surrounding QDROs and pension benefits.

If you need assistance resolving any aspect of your marriage dissolution or drafting a QDRO to divide retirement assets, contact Attorney Bishop to schedule a consultation. Call our office at (619) 724-4148 or complete our online Contact Form.

 

Five Tips For Helping Children Cope With Divorce

While California is among the states with some of the lowest divorce rates, according to US News & World Report, this does not mean divorce does not occur. Regardless of the circumstances of your divorce, it is not easy for anyone. Getting to the “new normal” is challenging — for you, your ex-spouse, and for your children.

Divorce is traumatic for everyone involved, but often less traumatic on the adults involved than the children. Children often blame themselves for the problems their parents are having, and this can often lead to their acting out. Parents can prepare their children for life after divorce by ensuring they have the tools to help them cope. Here are some useful tips for making sure your children are not further traumatized following a divorce.

Tip One: Keep Lines of Communication Open

First and foremost, it is important you communicate with your children. Parents should also be willing to maintain their own lines of communication. Remember, regardless of any friction between the parents, you will both have to deal with ensuring your children grow up safe, happy, and healthy.

While the children do not need to know the details of your divorce, or the cause, they do need to know the divorce was not their fault, they are loved by both parents, and prepare them for the changes which will be made in their lives.

Tip Two: Avoid Being Too Rigid

While you want your children to maintain a schedule, make sure you are not being overly rigid. Remember, circumstances change — for your children, your former spouse, and in your life as well. Sometimes visitation schedules may need to be altered — avoid getting overly emotional about those changes, so your child does not feel they are being put in the middle of choosing between two parents.

Additionally, it is important to remember your child may be acting out in the months following a divorce. Try to accommodate their mood changes — this is particularly important in the teen and pre-teen years — without approving of the behavior. Reassuring your children that both parents are there for them is important and sometimes this may result in you needing to make changes to your schedule to ensure they can visit with their other parent, or grandparents.

Tip Three: Avoid Shutting People Out of Your Life

Divorces tend to “divide” families. In addition to being estranged from your spouse, your circle of friends may narrow, your family circle may narrow as your in-laws avoid visiting with you. Make sure you have a strong support system — for you and your children. Utilize those resources which are available to help you cope with what your child is feeling.

Your child’s other parent, school guidance counselors, teachers, coaches, and the children’s grandparents should be kept informed about any challenges your child may be facing. This will help them interact with your child, be on the lookout for any signs they may be facing emotional distress and may also help your child cope with the changes they are facing. Being open with friends, family, and those who interact with your children on a regular basis can be helpful for you — more importantly, it is very helpful for your children.

Tip Four: Encourage Your Child to Share Emotions Good and Bad

While you do not want to encourage bad behavior, you will want to encourage your child to let you know how they are feeling about what is going on around them. Let your child know the emotions they are feeling — anger, fear, and confusion — are normal given the situation. Make sure they understand they are free to discuss how they are feeling with you or with your ex-spouse.

The more a child feels secure in sharing how they are feeling, the more likely they are to turn to you — rather than take out their frustration in other ways. Encourage them to stay engaged with family members, with your ex-spouse, and with their friends. The healthier an outlet you offer them for “blowing off steam” the more likely they are to be able to cope with the changes which are going on in their lives.

Tip Five: Avoid Confrontation with Former Spouse in Front of Children

During the divorce process, there were probably many contentious issues including child support, spousal support, and parenting plans. Differences in parenting styles can confuse children and make it harder for them to adjust. Make sure if you and your spouse have a difference of opinion you handle it privately, preferably where the disagreement is not happening in front of the children.

Likewise, it is important your children see you and your spouse agreeing on things as well. Wherever there are areas of agreement, it is always a good idea to sit down and include your children in discussions which pertain to them. This type of interaction allows your children to see despite your differences, both parents remain committed to doing what is in their best interest.

When Circumstances Change and You Need Help

In some instances, families learn after a divorce which includes a custody and support agreement that there need to be changes. Changes to parenting plans may need to be made to accommodate schedule changes which can impact children or parents. If you and your former spouse cannot agree on these changes, we can help. The Law Offices of Steven M. Bishop, Attorney at Law, A California Corporation has been dealing with family law issues for more than four decades.

Remember, the wellbeing of your child is of the utmost importance and the more stable you can keep the relationship between your children, yourself, and your former spouse, the better for everyone involved.

A Family Law Specialist Can Help

Attorney Steven M. Bishop is a certified specialist in Family Law by the California Board of Legal Specialization and can help you and your family through this difficult time. Your children must remain a priority for both you and your spouse. We can provide you with assistance with many of the issues you may be facing including parenting schedules, support matters, and more. Contact us today at (619) 299-9780 and schedule a consultation.

 

Can Alimony be Modified in California?

When a final divorce decree is issued, one of the spouses may be awarded alimony. Too many times, those who are paying alimony, and those who are receiving alimony believe the amount awarded is the “final” amount and that amount is paid until the judgment is released. However, California courts do recognize in some cases, once an order has been established, there may be valid reasons to request the order be modified.

What Circumstances Can Lead to Modification of Alimony?

The first thing to understand is an alimony, or spousal support order as it is known, may only be modified if specific conditions are met. Spousal support payments are not ordered randomly — there are specific criteria which must be met before a judge will include spousal support in a divorce settlement. The specific criteria are included in California Family Code Section 4320.

Some of the circumstances which would allow you to make changes in spousal support include:

  • Income Changes — if the spouse receiving alimony has an in income of greater than 10 percent, there may be grounds for requesting a modification. The paying spouse who has the same situation may also request an alimony modification.
  • Living Situation — if the spouse receiving alimony begins cohabitation, there may be grounds to request a modification of alimony orders. Additionally, if the paying spouse has had a change such as a new dependent, they may also request a modification of support.
  • Failure to Exert Effort to Become Self-Sufficient — one of the characteristics of spousal support is it is to serve as a bridge unless there are circumstances which make it impossible for the receiving spouse to gain employment. In these cases, it may be necessary to request the court issue a “Gavron” warning which stemmed from Marriage of Gavron, 203 Cal. App. 3d 705, 711-712 (Cal. App. 2d Dist. 1988). This case was brought when a spouse who was receiving a substantial monthly alimony payment refused to seek employment over an extended period of time. This option is available when the court has not ordered permanent alimony payments.

There may be other circumstances which could warrant a modification of alimony, you should speak with a skilled family law attorney if need to either request an increase in alimony payments, or you are seeking a decrease in payments.

Alimony Modification Process in California

Assuming the court has retained the jurisdiction necessary to hear a case for modification of alimony, the person requesting the modification will be required to fill out the following forms:

  • Spousal or Partner Support Declaration Attachment(Form FL-157 ) – this form is optional but may help you prove the reasons why a modification is needed
  • Declaration(Form MC-030 ) or an Attached Declaration (Form MC-031 ) would be used if more information is necessary to support your request

While it may be possible for you to fill out these forms on your own, the challenge is making sure the arguments you are putting forth will sway the judge to find in your favor. This is one reason why it is helpful to work with a certified family law attorney in all matters which require court intervention.

Things to Avoid When Requesting a Modification of Alimony in California

While a modification of an alimony order may be made at any time, it is important to make sure you have the legal grounds to do so. There are other things you should be aware of when filing for a modification of spousal support including:

  • You should continue making payments if you are the person paying. This is important because a failure to make payments could result in your being held in contempt of court.
  • You should file a modification request as soon as you have identified the legal conditions have been met. Should an order for modification be issued, it will not be retroactive, the new order will only be in effect once the court has ordered or approved the change.
  • Do not modify your payments based on a verbal agreement between the two involved parties. Even if you have agreed to a change, it must be changed within the court system.

It is always important to protect yourself during the modification process, so you do not face additional legal challenges associated with non-payment or partial payments of alimony. Seek legal guidance if you have any questions regarding payments of alimony.

Experience Matters When Dealing with Alimony Modifications

When you are requesting a modification of alimony, it is important to have the proper documentation and proof needed to justify the request. While it is always possible to have the alimony order modified in California, if you do not have the legal basis to do so, it will be denied.

Spousal support payments are typically designed to ensure a person can maintain their standard of living following the dissolution of a marriage. However, when the paying spouse is facing challenges making payments, or the receiving spouse is unable to make ends meet, there may be grounds for changing the payments. You will not know if your situation warrants a modification until you speak with an experienced California alimony modification attorney.

Hiring an experienced family law firm can make a difference between having your request approved or denied. That is because an experienced attorney can help you determine if you have the legal grounds needed to request a modification. If we determine you have the legal basis for a modification, we will help you gather the documentation, fill out the required court forms so they are accurate and represent your interests in court. 

To talk to our lawyer about your family law issue in a free telephone consultation, please call our office at 619-304-0418 or an email. We provide services to individuals throughout the San Diego County area and help them reach a resolution on all types of family law matters. Contact The Law Offices of Steven M. Bishop, Attorney at Law, A California Corporation at (619) 299-9780 if you have questions about your current alimony. Let us help you with requesting a modification.

 

Types of Property that are Eligible for Division in a Divorce

California is a community property state. This means during a divorce, the assets of the marital estate are divided equally, as are the debts. However, what is not as clear is what is considered part of the marital estate. Under California Family Code 750 Section 3 the definition of the marital estate is more clearly defined. However, this does not mean that all property is considered community property.

Property and Debt Acquired During a Marriage

In general, when any asset is acquired during a marriage it is considered to be community property. This includes:

  • Wages and Benefits
  • Lottery Winnings
  • Business Ownership
  • Real Estate
  • Bank Accounts
  • Retirement Accounts

These assets would be divisible equally between the spouses at the time of a divorce in California.

Understanding Sole Property in California

Separate (or sole) property may also be owned by a spouse in a California marriage. There is a narrow standard for this category of property. To be considered sole property, the spouse must show the property was gifted to them, was acquired from an inheritance, or was part of a personal injury compensation settlement.

Other sole property may be identified as agreed upon by the partners. Generally, this means the partners have either a post-nuptial or a prenuptial agreement in place. Property which either party owned prior to the marriage may also be considered sole property under California Code § 770.

There is one other category of sole property which couples should be aware of. Any debt or asset acquired following the parties physically separating from each other during the marriage would also be considered sole property.

Commingled Marital Property

Spouses often do not understand community property statutes and inadvertently wind-up using funds which might otherwise be considered sole property for property which becomes part of the marital estate. Some examples of this include:

  • Pension and Retirement Accounts — any funds which are in a pension or retirement account at the start of the marriage are considered sole property. However, if you withdraw funds from these accounts during your marriage and deposit the proceeds in a jointly held bank account, they are then considered community property. The difference in value between the accounts at the time of the marriage, and upon the dissolution is also considered community property. Funds in this case which are owed to the non-contributing spouse would be divided through a Qualified Domestic Relations Order (QDRO).
  • Real Estate Liquidations — if one spouse owned a piece of property coming into the marriage and subsequently sells the property the proceeds may be deposited into an account in only their name and remain sole property. However, if the proceeds are used as a down payment on another property, the new property becomes part of the marital estate if the payments on the property from funds either partner earns, then the equity in the property is considered community property.

As you can see, community property rules are confusing which is why a couple who is in the process of a divorce must seek competent legal assistance. Debt and property, including business which is part of the marital estate must be carefully reviewed.

Post Nuptial and Prenuptial Agreements and Community Property

Another factor which must be considered when dividing property in a community property state is what agreements exist between the spouses. In some cases, there are agreements which were entered into legally which bind the parties. Unless there are instances of fraud or coercion, these agreements will further dictate the division of property. Some examples include:

  • Debt incurred by one spouse — either spouse may elect to purchase a vehicle or other large-ticket item which requires a loan. In these cases, the spouses may have an agreement in which one party agrees to be legally liable for the loan. These agreements, unless they are forced upon the spouse are legal and would eliminate one spouse’s liability.
  • Assets acquired by one spouse — when a spouse buys a business, invests in artwork, or buys an antique, they may have a reason for holding it as sole property. If the spouses have a legal document specifying that for legal purposes the property is designated as sole property, the court will typically uphold these agreements.

Prenups, and post-nuptial agreements can often cause complications in divorce proceedings. Make sure your attorney is informed of any agreements which exist which may have an impact on the overall value of your marital estate.

Always Seek Legal Help When Dealing with Property of a Marriage

Most people are not aware of how the courts view marital property under California law. Individuals should take steps to ensure their sole property does not become commingled during their marriage to protect their own interests. It is also important to remember that if you should acquire property during a period when you are separated from your spouse you should make a note of the date of your separation to ensure you are credited with being the sole owner.

Student Loans in Community Property States

Remember, there may be different rules which apply to student loans. When a spouse takes out a student loan during a marriage, the rules may be applied differently. If the spouse co-signed on the loan, they are liable for repayment of the loan. If the loan was used and as a result the student’s income improved the family’s financial picture, then both spouses may be liable for repayment.

However, if the spouse who used the loan defaulted on the loan and the other spouse was not a cosigner, they may not have any liability. If one spouse entered the marriage with outstanding student debt, that debt does not become part of the marital estate and remains the sole liability of the spouse who took out the loan. Talk to your attorney about any student loans which were taken out during your marriage, so you understand when you may be responsible for part of the loan.

Want to Know More About Community Property?

To learn more about your specific options regarding community property and your divorce, call our San Diego office at 619-304-0418 or send us an email.  We will arrange a free phone consultation with Attorney Bishop, and he can help you understand sole and community property and how it may apply to you.

 

Is My Spouse Hiding Assets During Our Divorce?

Marital property — this is one of the most misunderstood factors in a California divorce.  California is a community property state — this means property and debt is generally equally divided between each spouse. According to the courts in California, when a couple divorces, marital property is considered equally owned by both spouses. Since each spouse or partner owns one-half of the property, they also are responsible for one half of the debt. There are complicated rules that pertain to sole owned and community property during a divorce which make it imperative for you to hire an attorney who understands California law.

Marital Property Versus Sole Property in California

There are two categories of assets and debts which a couple may have at the time of their divorce. Marital assets are those assets which are accumulated during the marriage. Marital debt is the debt accumulated during the marriage. However, there is also property and debt which may be classified as sole property and debt including:

  • Inheritances — any inheritance a person may receive while married is classified as a sole asset. This means upon the dissolution of a marriage; the property is not divisible between the two partners.
  • Property owned at time of marriage — if a person owns property at the beginning of the marriage, this property may not be included in community property. There are exceptions to this: For example if a partner owns a property or business at the time of the marriage and no additional investments in the property or business were made during the marriage from community property funds, they may remain classified as sole property. However, if there were investments during the marriage, the value of the property at the time of the marriage, less the current value may be classified as community property.
  • Proceeds from Personal Injury Cases — if one partner settles a personal injury lawsuit, the value of the lawsuit may be classified as a sole asset.
  • Property Defined in Pre or Post Nuptial Agreements — when a couple enters into a post or prenuptial agreement they often classify certain property as sole owned. This may be presented to the court as proof of one party owning the property in cases where property division is being considered.
  • Debts Which the Spouse had When Entering a Marriage — student loans, automobile loans, etc. which a spouse had prior to being married may be classified as sole debt.

You should speak with a California property division attorney during your divorce to make sure you understand the complexities involved in community property law.

Financial Disclosures During a Divorce Proceeding

Both parties will be required to submit individual financial disclosures during their divorce proceedings. These disclosures cover all assets including life insurance policies, IRA, and other retirement accounts, as well as bank and brokerage accounts. The court requires the person submitting such a disclosure to attest as to its truthfulness and completeness.

Still, there may be times when one spouse attempts to diminish the value of the assets of the marriage. There are several ways this may be done including:

  • Liquidating bank or brokerage accounts — withdrawing funds from accounts as a means of hiding the value of the account is a common tactic that is used to minimize the value of the marital estate.
  • Investing in Cryptocurrencies — today with increasing availability of cryptocurrency, one spouse may make a sudden investment in these currencies. There is no statement which is issued by the company holding this asset. This may be done in advance of considering a divorce as a means of shielding the spouse from disclosing the asset.
  • Business Investments — in advance of filing for divorce, one partner may withdraw funds from a bank account or other investment account and put the funds into a business which has been designated as sole property. This is a method used to minimize the value of the marital assets.
  • Other Investments — rare books, artwork, or other unexpected investments in antiques may be used as a way of hiding assets during a divorce proceeding.
  • Unexplained Loans — your spouse may make unexpected loans to friends and family as a method of hiding the true cash value of your marital estate.

If you suspect your spouse may be hiding assets, it is important you advise your attorney of this fact immediately. There are ways to ensure there is full disclosure including looking back at prior account balances. Always bear in mind these methods are often utilized well in advance of a divorce filing — you may stop seeing certain bank or brokerage statements, notice your spouse is getting less in bonus money or commissions, or has taken a sudden interest in unregulated investments.

Hiding Assets or Shielding is Illegal

When a couple files for divorce, each is entitled to an even division of property as well as obligated to repay debt which is part of their marital estate. Anything less than full disclosure is illegal, and the courts may hold the responsible party in contempt of court, or the offending party may face other penalties imposed by the court. You should never settle for less than the full value of your marital estate because your partner is attempting to hide assets.

When you are involved in a divorce where a significant portion of your marital estate is deemed community property, one spouse may be attempting to shield some of these assets. You need an attorney who will thoroughly investigate any claims of hidden assets to ensure you get the portion of the marital estate you are entitled to under California law. Be certain to tell your lawyer about any assets you believe may have been wrongfully liquidated or transferred to others in the months leading up to your divorce. Remember, the higher the value of your marital estate, the more likely your spouse is to attempt to shield assets.

We Can Help With High Value Divorces and Hidden Assets

To speak to us about your property division case, please call the San Diego offices of Attorney Stephen Bishop at 619-304-0418 or send us an email to arrange a free phone consultation. We can help ensure your spouse is making a full disclosure of all assets which should be part of your marital estate to make sure you get your rightful share of your marital estate.

Ways Business Debt Can Affect Your California Divorce

Divorces are messy. California is a community property state which can further complicate an already complicated situation. In community property states, in general, any assets or debts accumulated during the marriage are divided evenly between the two parties with the exception of property which was acquired prior to the marriage or acquired by one party as the result of an inheritance, or a personal injury lawsuit settlement.

Business Finances Can Complicate Divorces

When there is a business involved, the entire situation becomes far more difficult: Not only are there assets which must be dealt with, but there are also business loans and other debts to deal with. This is a common problem in which the already complicated high-asset divorce becomes even more complex

The two areas in which business debt can impact a divorce include:

  • Business Loans — you may have taken a loan against your business assets to repair a roof, expand your home, or for other purposes which you believe enhance the value of a marital asset. However, this may not result in your spouse being responsible for half the debt.
  • Salary from Business — even if a portion of your salary from business is being used to repay the loan you took out for personal reasons, you may not use this reduced amount for consideration for spousal or child support obligations.

Both of these situations would result in your having higher debt following a divorce. This could result in a devastating financial picture as you move forward.

Avoiding Business Debt Problems During a Divorce

We already understand having a business can further complicate your divorce. However, there are some steps you can take to avoid being saddled with debt which should rightfully be divided between you and your spouse.  There are some steps you can take to ensure your business debt is equitably distributed during a divorce.

Avoid Commingling Personal and Business Funds

Your business funds and family funds should remain separated at all times. The only funds which should be placed in your personal accounts from a business account is your salary. In the event you borrow money using your business assets or your business you need to carefully document the use of funds.

If you are borrowing money for personal reasons, make sure you carefully document the following:

  • How much money was borrowed from your business
  • What the purpose of borrowing funds was
  • Any amounts which were repaid from personal funds

Use of Business Funds Once Divorce Proceedings Begin

Once your divorce proceedings have started, you should avoid borrowing business funds to pay for personal expenses. Doing so could jeopardize the court’s rulings on how much income you may have to acknowledge for purposes of calculating child and spousal support payments.

You should continue to draw your normal salary from your business during your divorce proceedings. The more caution you use with business funds, the less likely your expenditures are to be questioned during these proceedings.

Consult with the Appropriate Professionals

Just like you hire a skilled family law attorney to assist you with a divorce, you should also consult with a financial advisor and a tax professional when dealing with business assets and debt. In many cases, it will require the expertise of a forensic accountant to assist in determining the value of your business. Make sure you provide them with any documentation which is requested so they may set a true value for your business.

High Value Divorce Complications

Even when you and your spouse agree you can no longer share your lives together, there can be serious disagreements over how assets and liabilities are divided during a divorce. If your business is considered “sole ownership” – meaning your spouse may have no right to the assets of the business, this does not make it less complicated if you have borrowed money against your business for personal reasons.

A jointly owned business, and a solely owned business are treated in different manners for the purposes of divorce in California. In order for a business to be considered sole ownership, one of the following conditions must be met:

  • Ownership prior to marriage
  • Whether the business was inherited from another family member
  • Whether you and your spouse had a prenuptial or post-nuptial agreement

None of these factors may prevent your spouse from having a claim against the business. Some of the items which will be reviewed as part of your divorce settlement will include whether any of your family’s funds were used to grow or invest in the business, whether your spouse provided any labor support during your marriage, and whether money taken from family funds was repaid during your marriage.

Avoid Taking Risks in a High Value Divorce

Anytime there is a business involved in a divorce proceeding, the ability to have a “simple” divorce becomes impossible. You want to work with an attorney who understands what is at risk and maintain as much control as possible over your business once your divorce is finalized. You also want to avoid having business debt that could cripple you financially as you start on a new path. Working with a skilled divorce attorney who has experience handling high value divorces with a business as an asset can help you overcome some of the challenges you will be facing.

If you are in doubt regarding any financial decisions you are making during your divorce proceedings, speak with your attorney before doing anything. The courts will not look favorably upon you if there is an attempt to use personal funds for business reasons. Keep your business finances and your personal finances completely separate and make sure you do not liquidate any assets which may be considered joint property.

Contact Attorney Steven M. Bishop to schedule a consultation today. Attorney Bishop is a Certified Specialist in Family Law, he can help you from the early planning stages to the final disposition. Do not take unnecessary risks that could put you in legal jeopardy. To schedule a consultation regarding your divorce, contact Attorney Bishop at (619) 304-0418 or complete our online  contact form.

 

Contact Us Today

*Required

Discuss Your Case With An Experienced Family Law Specialist

To talk to our lawyer about your family law issue in a free telephone consultation, please call our office at 619-299-9780. You may also send us an email. We represent people throughout San Diego County in a host of different family law matters.

Contact
Map Location

The Law Offices of Steven M. Bishop, Attorney at Law, A California Corporation


591 Camino De La Reina, Suite 700

San Diego, CA 92108

Phone: 619-299-9780

Fax: 619-299-0316

Map & Directions