Will a Divorce Leave Me With My Spouse’s Debts?

Angela Powell met her husband when they were freshmen in college. They were married after graduation and they settled in Arizona. They consolidated their student loans under a federal program designed to help married couples, which helped lower their interest rates. Unfortunately, like many other marriages, theirs didn’t last. 

Even though Angela’s husband had taken out more than double the student loans as her, they were now both on the hook for paying back nearly $200,000 – five times more than what Angela had originally taken out. 

This story prompted a bipartisan effort to pass federal legislation to split loans proportionately based on original loan amounts in cases of divorce or domestic abuse. As of this writing, the Bill has yet to pass Congress.

The financial debts left behind in the wake of a divorce can be agonizing, with spouses feeling the burn for years, depending on how much each spouse piled on debt during the marriage.

In 41 states, dividing debt is based on “equitable division” or “common law” division, meaning that the court considers a couple’s finances when dividing debt as incurred together. Debt acquired separately is the responsibility of the spouse who added it.

California is one of nine “community property” states, which means any debt incurred during the marriage is divided 50-50. There are additional restrictions and laws involved, of course, to complicate things, such as the possibility of the courts considering assets and debts as total values, but not necessarily each individual item.

Who is Liable for Debt After Separation, but Before the Final Divorce?

With California falling under the community property classification, the time period of incurred debt starts on the wedding date and ends on the date of separation. 

This does not cover a spouse’s debts that were taken on before marriage or after separation. Separate property is what each spouse owns or owes individually from before marriage or after separation, plus any gifts or inheritance.

The date of the separation can be defined as the day at least one spouse:

  • Takes objective actions that show the intent to separate, which could involve one spouse moving out or starting to sleep on the couch. 
  • Agrees that the marriage is over.
  • Subjectively intends to end the marriage.

Proof of separation needs to be demonstrated by the non-verbal action of the spouses, not just words. For instance, courts will look at if a spouse physically moved out of the shared house, but both spouses still act as a couple together emotionally or socially. 

How Credit Card Debt is Handled During Divorce

Again, in community property divorce states, even credit cards that are in one spouse’s name, if the card (and debt on it) was opened during the marriage, each spouse is responsible for 50 percent of the debt. 

The same goes for joint or co-signed credit cards – even if one spouse used it more or made the payments. Though it is possible for a judge to analyze the facts and declare that one spouse can afford to pay more than the other towards the reduction of debt. With credit cards held jointly, neither spouse can remove themselves from the account. They can (and should), however, ensure that every joint line of credit or jointly held credit cards are closed to protect each from an ex-spouse transferring balances from their own account onto a joint account or running up the balance, leaving the other spouse liable.

How Mortgage Debt is Handled During Divorce

Divorce Debt Law

Even if a home mortgage is in one spouse’s name, in a community property state, like California, the court may consider the home community property during a divorce. A divorce attorney is integral in sorting through the details of each unique case like this.

Keep in mind that there is a difference between the mortgage and the title. The names (or name) listed on the mortgage are those responsible for paying the loan, while the names (or name) on the title are who owns the home. 

If an ex-spouse is removed from the mortgage, that same spouse should also be removed from the title. That is because the spouse no longer listed on the title should not then proceed to benefit from any appraisal or sale of the property. And if both spouses are on the mortgage and one does not make payments, the other spouse can be liable, and it could reflect poorly on their credit report.

If both spouses are on the mortgage, the best option is to sell the house, split the profit, and start over in a new chapter in life. 

How Auto Loan Debt is Handled During Divorce

Auto loans in both names can get complicated in a divorce, with one ex-spouse keeping the car and making payments – or one not paying and the other getting stuck with payments, any late fees, and default or collection costs. Just like a home, the car’s title and auto loan are separate things, so divorcing spouses need to make sure the ownership is transferred to whoever is keeping the car. 

There are options, however, that are fair for both parties to make sure a car loan is paid off after divorce, including:

  • Paying off the balance of the loan.
  • Refinancing the loan.
  • Setting up automatic payments taken from one account, as decided by a divorce court.
  • Selling the car and buying something more affordable with a new budget.

How Student Loan Debt is Handled During Divorce

Even with California’s community property law in divorce, there are some debt exceptions incurred during marriage that could be considered separate property, such as gambling debts, civil liability debts from lawsuits involving only one spouse, and student loan debt. 

Depending on the specifics of the case, a spouse can argue the 50-50 division rule if the debt is solely for the benefit of one spouse, not for the married couple together. If both spouses have benefited from a student loan debt, for instance, California courts may treat student loans as a community debt or look closer at factors to determine how to split the debt, which includes:

  • How much will the debt from the loan affect the amount of monthly spousal support?
  • How much has the other spouse already benefited from their partner’s education?
  • How much have both parties benefited from the education paid out of community funds?

Pay off Debt Before Finalizing Divorce

The best option to avoid problems with debt after a divorce is to pay off as much debt as possible before finalizing the divorce. This is if you can afford to, of course. 

If not, it is advantageous for spouses to maintain an amicable relationship, so they can:

  • Split payments (one makes the car payment, and the other pays the mortgage).
  • Dissolve joint accounts and refinance the house.
  • Cancel shared credit cards and transfer debt onto separate cards under each person’s name.

If you need help with a divorce case, call 619-299-9780 to schedule a free telephone consultation or contact a San Diego family law specialist here.

Supervised Visitation – What You Need to Know

Many parents say change cannot come quick enough regarding the rules and laws surrounding supervised visitation of children amid custody disputes. Three tragic stories are at the center of this push for change in California laws. 

In 2017, a Los Angeles woman requested sole custody of her 5-year-old son. Her ex-husband fought for full custody. She was denied by the court, and shared custody was granted. She was forced to allow him to pick up their son for a scheduled visit.

Shortly after, the father suffocated his son, killing the boy while he was still strapped into his car seat. During a confession, he told investigators that he wanted to hurt his estranged wife, and that he thought she should be punished.

The L.A. man was sentenced to a prison term of 25 years, and the mom was left heartbroken and alone.

When Protective Orders Do Not Protect

Early this year, a Sacramento man with a documented history of mental health issues and a violent record was allowed to keep his court-ordered supervised visit with his 9-, 10-, and 13-year-old daughters. Knowing the man’s history, their mother had begged the judge not to grant the visitation.

Despite having a restraining order for domestic violence, the man was able to procure a semi-automatic rifle. He walked into a church for the supervised visit and gunned down his three young daughters and the visitation supervisor before turning the rifle on himself, leaving behind an unanswerable tragedy.

These are two tragedies among numerous cases where requests were dismissed and warning signs were ignored. In the current climate of custody, court systems sometimes eschew allegations of abuse or violent records and focus instead on balancing custody between both parents.

Protective Order and Divorce Lawyer

A Push for Change

Recently, survivors of domestic abuse and violent crime took to the Sacramento Capitol to push for the California family court system to reform custody and visitation proceedings. They pleaded with lawmakers to understand that during divorce and custody battles, both the spouse of an abuser and their children could be in grave danger.

Data from the Center for Judicial Excellence (CJE) indicates that the U.S. has seen more than 870 cases of children killed by a parent or guardian during custody hearings due to separation and divorce. An estimated 10% (85) of these potentially preventable murders occurred in California. 

This danger often intensifies during a separation when restraining orders have been put in place to protect the separating spouse from abuse. Recognizing the threat to the spouse/parent but not the child may put children at risk of being assaulted, harmed, and even killed, as they are now the recipients of the abuser’s anger, frustration, and attempts to hurt their ex-spouse.

Changes are Coming

In 2019, the California state auditor reported numerous times when the Commission on Judicial Performance (CJP) fell short. The CJP is the only agency providing oversight and investigating complaints regarding handling cases in courtrooms and the judges presiding over them.

Judicial oversight is especially important in cases of domestic violence, which often extends into financial abuse. When survivors of abuse are financially incapacitated, they cannot obtain adequate representation during custody hearings, causing an imbalance in the courtroom and often allowing domestic violence and child abuse to go unrecognized in custody cases.

Advocates for family court reform have urged for courts to rule on custody cases by putting the safety of the children front and center, recognizing a history of abuse and violence, and identifying signs of abuse when evident.

The survivors and their allies’ efforts have resulted in new legislation known as Piqui’s Law (named for one of the children slain by a parent during a custody battle). These new regulations would allow California to receive up to $25 million in federal funding while setting up a system prioritizing child safety during and after divorce and custody cases.

Keeping Safe During Supervised Visitations

Supervised visitation is one of the public policies that California already has in place protecting children’s best interests while parents deal with custody and visitation matters in the family courts. When a child’s safety is in question, judges may order a neutral third party to accompany the child to visitations at a specified place and time with a predetermined duration.

Domestic violence or abuse are not the only reason to necessitate court-ordered supervised visitations. Some other reasons why a court-ordered supervised visitation provider might include:

  • Introducing parents to children when there is no pre-existing parent/child relationship
  • Reintroducing parents to children following a long absence
  • When a history of neglect or substance abuse exist or have been alleged
  • When a parent has a mental illness diagnosis or concerns
  • When there is a potential threat or concern that a parent may attempt to abduct a child

In California, all supervised visitation providers must follow the Uniform Standards of Practice for Providers of Supervised Visitation and meet these minimum qualifications before supervising visits. 

Providers can be classified as:

  1. Non-professional – Typically a family member or friend, and does not provide supervised visitation services professionally
  2. Professional or Therapeutic – Educated and trained in providing supervision services and usually charge for their services 

The family court will decide which provider best suits the needs of the supervised visits. Both non-professional and professional or therapeutic providers should make every effort to ensure children are safe and as relaxed as possible during a visit.

To fulfill their duties, a provider should be tuned into a child’s verbal and nonverbal behavior, listening, and watching closely for cues that may threaten the safety of the child or make the child uneasy during the visitation. This means they should always be present during the visit and ready to end the visit if any issues are detected.

In most cases, a local Family Court Service office can provide a visitation location. It is important to get a supervisor’s name and California Driver’s License number, and State Child Abuse Registry clearances and qualifications can be verified by calling TrustLine at 1-800-822-8490. More information on supervised visitations and related services can be found on the Supervised Visitation Network.

If you need help with a custody or divorce case, call 619-299-9780 to schedule a free telephone consultation or contact a San Diego family law specialist here.

Initiating a Divorce During the Holiday Season – What to Consider

Initiating or filing for divorce in San Diego County during the holiday season can be difficult. It is why many do so in January, known as the peak season for divorces. Divorce filings are reported to spike by nearly one-third following the holidays.

Already a stressful time of the year, a divorce can add even more tension within the family – especially if children are involved and expect Mom and Dad to be together for certain traditions. 

How are gift budgets handled now, for instance? How is time split with the kids or family gatherings in general on Christmas morning? Which church is attended for Christmas Eve service? And how does everyone cope with these changes?

In addition to the emotional and mental impact of divorce over the holidays, there are several other factors to consider before pulling the plug.

The Date of Separation

Keeping practicality in mind, the date of a couple’s separation can have a significant impact on their division of property. For instance, if one spouse usually receives a hefty year-end bonus, it may be a good idea to wait and file for divorce after the new year. This is because each spouse’s earnings will remain their property once both parties separate. A delay in filing for divorce may also avoid more unnecessary litigation in the case.

The default rule is the opposite, when all earnings and accumulations earned during marriage are considered community property and divided equally. 

Making Your Children a Priority

Your first priority when moving forward with the decision to divorce during the holiday season is to make your children a priority by keeping the process away from them. They have been anxiously waiting for this most wonderful time of the year, so it is best for everyone to:

  • Avoid visible conflict, heated discussions, and legal talk in front of them
  • Not fight about the children or custody of them in front of them

Along with these tips, be flexible if children are involved. They want to spend time with both parents over the holidays, so if both spouses are not with them on Christmas Day, one spouse can plan to get together with them on another special day. 

Making a Plan

Be prepared by deciding together how to discuss the divorce before the topic comes up among friends. Also, be mindful about how much detail to go into around friends because it is safe to say that it will get back to the ex-spouse, which may damage the case.

Gathering Information and Documents

Once the divorce has been initiated, no matter the time of year, it is critical to gather all essential information and documents so that the divorce attorney can get started on the process faster and without any hiccups.

Documents include:

  • Income-related paperwork, such as both spouse’s paycheck stubs over the last year, taxes, and any business expenses if one spouse is self-employed
  • Real estate-related paperwork, like any legal documents that show any real estate that is owned together or separately, mortgage statements, refinance statements, and tax assessor documents.
  • Joint financial accounts and bank statements over the last three years
  • Life insurance
  • All marital debts, including credit cards, loans, and medical bills
  • Pension funds
  • Vehicle titles, registration, and debt

Consult with an Attorney

Once each spouse has gathered all of the essential documents to propel the divorce forward, they should seek counsel with a divorce attorney experienced in evaluating all of the complexities of the case, including financial assets, child custody, and more. 

Divorce Attorney

Keeping Old Traditions and Starting New Ones

Take the higher road by keeping long-time family traditions, but also keep an open mind by starting new traditions as well. This may mean evolving into making a new traditional holiday meal or baking goodies, or visiting a new holiday attraction without the other spouse. New traditions may also involve spending time separately with the friends both spouses share. 

Understanding There Are Emotions Involved

Days during the divorce process may be up and down – especially over the holidays when fond family traditions have morphed into a new future. Embrace those moments of joy, whether that is hearing a beloved Christmas carol or watching a holiday movie, or opening up gifts with friends or family. Do not spend the holidays alone. Support during these times is imperative.

At the same time, understand that it is OK to be sad. It is a natural step in the divorce process. Let young children know that feeling sadness is also a normal part of this transition and that they can talk about it together at any time as everyone adjusts to the new family circumstances. 

Watching Holiday Spending

Even though parents who are divorcing may want to show their love by buying their kids everything on their Christmas wish list (including those expensive items), they need to consider watching their budget since a divorce will affect their future financial picture. Each spouse should only spend what they can afford.

Take Care of Yourself

The holidays are stressful enough without adding in a divorce. Spouses should take time for themselves for better physical, mental, and spiritual health by:

  • Eating well – including a holiday treat or two
  • Drink in moderation
  • Exercise
  • Get adequate sleep
  • Get a massage
  • Go out to dinner with a friend

Those initiating a divorce during the holiday season should remember that a divorce can represent a fresh start and a new chapter in your life.

Consider Options for Spending the Holidays

There are a few options ex-spouses can coordinate and cooperate on spending the holidays:

  • Alternate holidays, such as one parent getting the children on Christmas in odd years.
  • Assign fixed holidays to each parent, such as if one parent is Jewish and the other is Christian, allowing Hanukkah or Christmas to be assigned to each parent.
  • Split holidays, which is ideal for parents who live close by to split a portion of each holiday with their children.
  • Double holidays, which allows the children to celebrate the holidays twice, once with each parent that they choose on two different dates.

If you are going through a divorce during the holiday season, contact an experienced attorney today. Call The Law Offices of Steven M. Bishop at 619-299-9780 or contact us through our online system for a free consultation.

Prenuptials Agreements Aren’t Just for the Wealthy

TJ, and Sandy had a romantic meeting. Sandy Webb, met TJ at a bar in Apache Junction, Arizona. Years later, TJ found himself on a hospital bed, staring death in the eyes as a result of cancer. TJ proposed to her right then and there to affirm his love for her forever, but Sandy had one request: she wanted a prenup.

What is a Prenuptial Agreement Anyways?

A prenuptial agreement, also known as an antenuptial agreement, premarital agreement, or simply a prenup, is an official and legally binding written document that is effectively a contract between two individuals entering a civil agreement or marriage. A prenup functions as a roadmap to manage the union of the couple, particularly in scenarios such as divorce or death. Prenuptial agreements also allow the couple to control the legal rights they receive from the government upon marriage. 

The government already has established legislation that controls and regulates certain parts of marriage, both upon marrying and upon the annulation of the marriage:

  • Child support and custody
  • Alimony 
  • Bankruptcy 
  • Retirement benefits, 401k’s, and pensions  
  • Division of property
  • Savings and assets

These contracts allow the couple to give alternative paths to solving discrepancies between these issues in ways that may contradict what the government has already laid forth. Prenuptial agreements can be extremely useful for those hoping to establish a game plan for their marriage as otherwise, extremely turbulent court battles regarding these important topics have the potential to arise – potentially costing one or both parties a great deal. In the case of Sandy and TJ, an agreement such as this one cleared up a lot of uncertainty in the case that TJ’s cancer became too much for his body to handle – even more so as the two were both formerly married.

Why Prenups Are so Useful for Families

Despite the usefulness of this tool, there is a misconception in the United States that prenups are reserved for the wealthy and well-off. Potentially due to the assumption that prenuptial agreements are only useful if they are dealing with large sums of money or another outlandish theory, those in the lower to upper-middle classes have avoided partaking in these contracts. 

This can cause direct harm to them and potentially place a couple’s assets, child custody, and rights in jeopardy. Over time, this phenomenon has affected huge portions of society, despite having tremendous advantages for married couples. 

Clearing up the Question of Marital Property and Asset Division

Prenups allow couples to clear up who owns what. Oftentimes, this is made much easier before items and assets are utilized by an entire household. For example, should one partner have invested in a car more than the other, it may be in the best interest of the married couple to ensure that the car’s value is split based on how much was invested by each person. Alternatively, they may decide that the person who spent more on the automobile owns it outright. Later down the line, no matter who uses the car more, the prenuptial agreement will make clear who owns how much of the car should there be a divorce. 

Businesses may also be considered an asset in the case of a divorce. Should it be declared a separate asset with the help of an attorney, it may be completely immune to liquidation or division between parties, saving one’s livelihood and income stream for the better. 

One reason this is so important for individuals to do is that, without a prenuptial agreement, the courts will define marital property and divide assets based on federal or state law. Such as in the case of Sandy and TJ, it would be up to the local law in Arizona that may leave Sandy and her children without much of anything. 

Protection from Potential Debt 

Debt is a question that arises in many divorces. Whether it be credit card debt, student loans, or general bank loans for a small business, debt has to go to someone in the case of separation. In fact, some people are able to pin large amounts of their debt on the partner they are separating from with some sneaky tactics. 

In any case, a prenup may make it clear that one person’s student loans are entirely their own or that the couple’s joint business debt will be split down the center. This saves not only plenty of headaches but also legal fees. 

Identifies Inheritance to Offspring 

Prenups allow people to designate certain assets to their children in the case of divorce. These powers go further to protect the inheritance of children from previous marriages being brought into new marriages. Although they are not related by blood to the new partner, what they will inherit in case of divorce will be protected before the marriage even begins. 

Within the definition of prenuptial agreements is the fact that these are written up before a marriage begins. Yet, this does not mean that those who are already married cannot protect their assets and the like. A postnuptial agreement is a similar contract to a prenup that is produced by a married couple and their attorneys after they have already been joined in holy matrimony. Furthermore, postnuptial agreements may be used to clear up general financial matters such as checking account sharing and similar matters.

The Great Myth of Prenuptial Agreements 

What must be recognized by those of all creeds is that financial matters are important no matter the income level. As a newly-married couple engages in a range of financial decisions that determine their livelihood over the course of their habitation together, it should be recognized that there is always a potential for divorce or death, just like in the case of TJ, who needed to organize his finances with his family prior to potential death – despite not belonging to the upper classes of society.

Although the sheer amount of money that will be in question in lower income will be lower, it still has the potential to make or break how someone will be able to lead their life after the fact. Someone may be saddled with enormous amounts of debt, the complete loss of important assets such as their house, and little to pass on to their children.

All in all, prenups are extremely helpful for individuals and their families. If nothing else but to prevent confusion down the line, prenuptial agreements prevent a range of issues from occurring. The ultimate benefit of entering into such a contract is that it gives couples a clear-cut roadmap to their financial future in addition to saving them money from attorney fees and unexpected debt or loss of assets.  

Solutions for Handling Custody Exchanges When Parents Don’t Get Along

Divorce and child custody are among the most contentious and highly emotional life events. When parents do not get along, the children suffer the most. 

Whether children are precocious preschoolers or smart-mouthed teenagers, confrontational custody exchanges can have lasting harm. However, there are solutions to reduce conflict. 

How High Conflict Custody Exchanges Hurt Children

It is common knowledge that divorce and fights over custody can cause children to act out in school and at home. While the difficulty of the situation is often acknowledged, children’s adverse behavior is still regarded as a phase that they will bounce back from in time.

However, the medical community has taken a keen interest in the effects of stress on brain chemistry, illness, and overall health. Recent studies have revealed that toxic stress can alter a child’s brain chemistry and organ systems. 

The famous “it’s just a phase” dismissal may be ignoring a cause of life-long mental and physical illness. 

What is Toxic Stress?

Toxic stress describes someone who is under constant and prolonged pressure. Often referred to as the “fight or flight” response, the chemicals released in the body during a stressful event are meant to help the body respond to a single event, e.g., running away from a dangerous situation. 

In short bursts, stress chemicals are very beneficial. However, when stress chemicals are continuously released, they begin to damage internal organs, particularly the brain.  

How Toxic Stress Affects the Body and Brain

Toxic stress seriously affects the body and brain. Ironically, prolonged stress damages the body’s ability to handle stress.

Neurotransmitters in the brain send signals to the body to ease off releasing stress chemicals and switch happier chemicals, like dopamine and serotonin. 

When the body constantly goes into a stress-response episode, those neurotransmitters are damaged and stop releasing as many happy chemicals. The human body goes into a little war with itself, where stress chemicals constantly run into battle and happy dopamine and serotonin stop breaking up the fight.

The damage is irreversible. Once the body is unable to regulate its stress response, all other organ systems experience increasing damage through adulthood: 

  • Mental illness: Low levels of dopamine and serotonin are linked to depression, anxiety, substance-abuse problems, and low self-esteem 
  • Heart damage: Stress chemicals increase a person’s heart rate and blood pressure, leading to heart attacks, strokes, and hypertension
  • Damaged nervous system: Childhood stress damages the nervous system. The nervous system connects the whole body and affects every major system. Chronic stress will cause severe wear and tear on the body, leading to obesity, immune disorders, depression, and many more health conditions. 

Are Confrontational Child Custody Exchanges Really That Stressful on Children? 

Studies ranging from the 1970s through to present day have repeatedly found connections to high-conflict divorce and long-term adverse effects on children. 

Toxic stress affects a child the way hard braking wears down the brake pads on a car. Every time ex-spouses argue during the exchange of custody, the child’s brake pads wear down a little more. Soon, the brakes start to squeal and act up. Ignoring the issue only makes it worse. Eventually, the brake pads wear down past a certain point and trickle down to other systems. 

While the brake pads on a car can be replaced, childhood cannot. Confrontational child custody exchanges provide a continuous supply of stress that has been proven to be detrimental to kids into adulthood. 

What is the Solution to Reducing Confrontation During Custody Exchanges? 

When parents do not get along, there is no magic formula, one-time event, or blog that can change the relationship. Parents have to work to get along every day. 

Compromise is necessary. There will be times a parent has to swallow their pride. Times when parents feel they give more than the other. However, childhood does not last forever. 

As Dr. Harley Rotbart famously stated, from birth to turning 18-years old, there are “940 Saturdays and you’re done.” By the time a child is five-years-old, 260 Saturdays are gone. 

To protect children from a lifetime of mental and physical consequences, compromise for 940 Saturdays. A custody exchange plan can help.

What is a Custody Exchange Plan?

A custody exchange plan is a long-term, set routine to handle child custody exchanges. To create a plan that is agreeable for both parents, consider the following:

Long-Term

First and foremost, every decision needs to be made with long-term implications in mind. What defines “long-term” is often subjective. 

Five years is a good measurement when considering children. Toddlers and small school children have similar schedules. However, by 5th-grade, kids may have after school activities that will require an adjustment to the exchange plan. When high school comes along, teenagers have far more responsibilities and increasingly active social lives. 

When considering all aspects of the custody exchange plan, make decisions that will work for both parents for the next five years. Save the date to legally modify the exchange plan when time is up.

Neutrality

Instead of exchanging children at one another’s house, choose a destination that is neutral for both parties. The home is a source of comfort and control, but only for one parent. In a highly-contentious relationship, the visiting parent can feel out of place and defensive, setting the stage for antagonistic behavior for both. 

Choosing a public place that is equal distance for both parents can ease tensions dramatically. People are less likely to draw negative attention to themselves by being confrontational. Restaurants, playgrounds, or schools are neutral places that may be convenient for both parents. 

If the relationship between parents goes beyond not getting along into violent and aggressive behavior, using a school or a daycare can be a great buffer. One parent drops the child off at daycare; the other parent picks the child up. Communication, while still important, is reduced to the bare minimum. 

Short and Sweet

Keep the exchange brief. Drawn out goodbyes peppered with multiple hugs and kisses can trigger separation anxiety in children. Instead, parents can give their children their full attention and say a quick, loving goodbye. 

Another good tip when dealing with smaller children is giving them a timeframe for when to expect to be reunited. However, smaller children may not understand what three days mean. Instead, use language they can relate to, “I will see you after three nighttime sleeps.” 

Handling custody exchanges can be difficult for the family as a whole. Children suffer the most from high-conflict exchanges. Minimizing common sources of stress by creating a long-term plan can keep parents sane and protect their tiny humans from disease-causing toxic stress. 

The child custody attorneys at The Law Offices of Steven M. Bishop can assist in creating a legally-binding custody exchange plan. Schedule a consultation by calling (619) 724-4148. 

 

Is A Custody Plan Necessary If You Just Separate?

When married partners get a legal separation, they are not divorced, but they are no longer married either. That usually means they live at separate locations, and their children must travel back and forth to see them both. This can potentially cause additional hardship to children who are already going through the painful process of having their parents split up. 

The State of California has a keen interest in the welfare of its children. So California law prioritizes the welfare of children when couples separate by requiring there be a plan in place that is structured so that children are able to spend time with each parent on a schedule and with a minimum of disruption in their lives. 

The family law attorneys at The Law Offices of Steven M. Bishop work with separating or divorcing parents to develop custody plans that promote the best interests of the children and provide parents with workable custody arrangements.

What Happens When Partners Legally Separate 

The process of legal separation in California is very much like the process of divorce, except that certain legal rights and responsibilities between the separating couple remain in place when a separation is final. Like divorce, the following are determined in legal separation:

Separated spouses are not free to marry others and still have the rights granted to married couples to inherit or to bring a wrongful death claim. Unlike divorce, it only takes a motion to the court to remove the separation order and resume the marriage. 

Why Married Couples Might Choose Separation Instead of Divorce

There can be practical as well as economical reasons for partners to want to split physically while still remaining connected legally. One spouse may need or want some benefit or right only granted because of the marriage, such as:

  • Beneficial tax status
  • Access to healthcare or retirement benefits
  • Financial support
  • Social security benefits

Couples who seek to separate but do not meet the residency requirements necessary to get a divorce may seek a separation and later convert it to a divorce. For partners who choose not to divorce, a legal separation does protect each person’s financial interests from the actions of the other.

Child Custody in Legal Separation or Divorce

Custody plans in California are also called ‘parenting plans’ or ‘custody and visitation agreements.’ California requires parents to create an agreement concerning how they plan to parent their children after they separate. Custody plans must specifically address two components of custody with the best interests of the child or children in mind.

  • Physical custody – How much time will a child or children spend with each parent?
  • Legal custody – How will decisions affecting the health, education, and welfare of a child or children be determined?

There is a legal presumption that joint custody by both parents is in the best interests of a child unless evidence demonstrates that a different custody arrangement should be made. A parent who does not have custody of a child or children at least half of the time will normally be granted visitation rights as agreed upon by the parents or as ordered by the court.

Once an agreement is reached between parents, it will be reviewed by a judge before it can be finalized and become an order. Custody plans need to demonstrate that care was taken to consider the best interests of each child, and every attempt was made to formulate an arrangement with those particular interests in mind. Things to consider when creating a custody plan include:

  • Meeting a child’s basic needs for support and guidance, food, medical care, and rest
  • A child’s age, personality, experiences, and abilities
  • A child’s ties to a school or community
  • A child’s relationship with each parent 
  • Creating a schedule that is consistent and establishes a routine so a child has structure and can feel secure
  • Try to anticipate what might interfere with the plan – such as unexpected events – and allow for flexible solutions as necessary

In joint custody plans, it is typically agreed that both parents can have access to information about their child, including medical records. Parents usually also agree that each can freely contact their child, and they are not prohibited from contacting each other. 

What Happens When Separating Parents Cannot Agree on a Custody Plan?

When parents are not able to agree on custody or visitation issues, California law requires the parties to participate in mediation to try and resolve their issues prior to a court hearing. Also referred to as ‘child custody recommending counseling,’ parents meet with a Family Court Services (FCS) counselor who tries to help them come to an agreement. 

Parents are usually seen together unless there is a restraining order in place or domestic violence is alleged. Child custody recommending counseling deals only with disagreements relating to custody and not to issues dealing with financial matters, support payments, or property division.

When the process is complete, the FCS counselor lets the court know what was agreed upon and what wasn’t and makes a recommendation to the court about how the disputed issues should be resolved. The judge will review the recommendations but has the authority to make the final decision.

Getting to the Best Custody Arrangement for Everyone Involved 

People who are going through separation or divorce are not happy. It is a difficult time in the lives of parents, and it is an especially difficult time in the lives of children. It is a time of great disruption and uncertainty. Creating a plan for children to spend time with both parents in a structured and consistent way is the best means to help children move past the trauma and adapt to a new normal. 

The Law Offices of Steven M. Bishop has been helping parents develop custody plans in the San Diego area for more than 40 years. The firm’s family law and divorce attorneys encourage parents to cooperate by finding solutions that are sustainable and provide the optimum benefit for the children. Call 619-724-4148 to schedule a free telephone consultation or contact a San Diego family law specialist here.

Divorce and Your Retirement Plan – Removing Your Spouse as a Beneficiary

Back in 1994, David Egelhoff lived in Washington state and worked for the Boeing Company. It was a respectable job with a good pension plan and a life insurance policy. He had been married a couple of times. He had two kids with his previous wife and was just coming out of a divorce with his second wife, Donna Rae Egelhoff. 

Two months after David signed the papers to finalize the divorce from Donna, he got in a car crash and died. Both his retirement plan and life insurance policy were awarded solely to him in the divorce decree, but he died intestate (legally unrepresented). 

Unfortunately, he never swapped out Donna as his designated beneficiary on his benefit paperwork. The manager of both the plan and the policy, the Employee Retirement Income Security Act (ERISA), paid Donna $46,000, the proceeds from the life insurance policy.

Under Washington state law, David Egelhoff’s children from his previous marriage, Samantha, and David, were his statutory heirs. They wanted to recover their father’s life insurance proceeds, so they sued Donna in state court.

Because the Washington state law conflicted with the federal law, ERISA only recognized the last designated beneficiary which was Donna. So, to resolve the issue, the case was pushed from court to court until it finally ended up in the United States Supreme Court in 2001.

SCOTUS ultimately ruled Donna would keep the money because ERISA’s policy dictates the last known beneficiary receives the proceeds. This reinforced ERISA’s federally controlled standard procedures. They also noted the problem with allowing states to impose their own laws on federal administrations like ERISA creates roadblocks in administering the proceeds from plans and policies. 

This ruling only applied to ERISA, which manages benefit plans like 401(K) and 403(B). ERISA does not control individual retirement plans (IRAs). This means if an IRA were in question: Would they be resolved using state law, meaning Egelhoff’s kids would receive the benefit, or would it fall under federal law as well and release the money to Donna as the designated beneficiary?

There is an obvious takeaway from the Egelhoff case—take the time to check or double-check specific accounts, plans, and policies to make sure the designated beneficiaries are correct, and the money will go to the desired people. There should be no question where the money will go when someone passes. And there should be no reason to leave loved ones or a divorced spouse battling it out in courts, building years of animosity and attorney fees.

When someone leaves behind a mess of paperwork with outdated information, cases like these can get complicated. The Egelhoff case is evidence that information can go out of date in two months. A day can be too late when it comes to divorced spouses. There are a couple of things Californians can do to make sure their estate is dispersed according to their wishes. 

California Rules for Retirement Plans

So often, the idea of estate planning gets tangled up with the contents and beneficiaries of a will. What many overlook in the process of sorting the affairs of an estate are retirement plans or 401(K). A well-funded 401(K) can be the most valuable asset in an estate. Because of its importance, keeping the beneficiary information updated on all financial assets like life insurance policies and 401(K).

So much of a person’s assets are tied to financial products like these, and often, the designated beneficiaries have not been changed since you opened these accounts years ago. 401(K) or IRAs designations are legally binding and usually take precedence over instructions in a will.

However, if you decide to seek a divorce from your spouse, you may have to divide your 401(k) equally during your division of assets. Depending on when you acquired your retirement plan, your spouse may receive up to half of the value you acquired during your marriage.

California is a 50/50 or no-fault divorce state, operating by fairly dividing a married couple’s combined assets, known as community property. This division of assets also applies to retirement plans and usually causes substantial negotiations during a divorce.

Spouses often receive 50% of the retirement plan’s value, but only on the sum accrued during the marriage. This process manages all classifications of retirement accounts, including:

  • Employment-based plans or 401(k)
  • Family-owned business plans
  • Traditional private employment plans

There are two options when dividing retirement plans, including: 

  1. Both spouses agree one spouse will receive a retirement plan payout of a retirement plan when the other retires.
  2. Or both spouses can agree to allow one spouse to have sole control over the retirement plan, and the other spouse receives another portion of their community property that equals their share of the retirement plan.

If one of these two options cannot be agreed upon, the court may order the couple to decide by evaluating circumstances. The options can impact people in multiple ways. There is a risk of losing a retirement plan’s future value, or it could have tax implications. 

After an agreement is reached, and the retirement assets are split, a Qualified Domestic Relations Order (QDRO) will be needed to facilitate the transfer of the proceeds of the 401(k) into a spouse’s retirement plan. A QDRO is a convenient way to transfer funds while remaining tax-and-penalty-free. It also allows funds from a 401(k) to be rolled into a Roth or traditional IRA, 

There may be an urge to withdraw funds from a 401(k) because of concerns about losing large chunks of a retirement plan in an upcoming divorce. Actions like these have consequences. The court may look at this move as taking an advance from future retirement funds. Courts can order the account to be reimbursed, or other assets in the community property could be forfeited. 

Depending on the circumstances of the withdrawal, courts may take other actions to balance the division of community property, including: 

  • Pay a pre-tax
  • Pre-penalty valuation of the funds

The best move is to seek advice from a qualified estate planning attorney to help navigate the treacherous waters of divorce and retirement plans.

Keep it Simple, Keep the Inheritance Separate

The Millennial Generation continues to break the traditions of previous generations. Never scared of asking questions and doing things differently, these 25-to-40-year-olds are veering away from joint bank accounts and keeping their money in separate accounts.

Millennial parents also have one eye on the future. Almost 30% of them have already started saving for their kids’ college. Although less than half of these parents are aware of 529 plans—tax-advantaged plans used to invest in the education of individual children.

A recent Bank of America survey shows the majority of Gen X and Baby Boomer couples use joint bank accounts, with only 10-15% keeping their money in single-person accounts. More than 25% of Millennials have decided to keep their finances separate.

One reason could be Millennials embracing technology. With apps like Venmo and Zelle, you can transfer money from person to person in a snap. Another reason may come from experience. Millennials have watched their parents and grandparents go through divorces and struggle to divide their assets. 

Here is the catch—keeping separate bank accounts or only putting one person’s name on a house deed does not truly separate the assets into two separate baskets when a marriage is concerned. When a marriage is dissolved in California, a couple’s assets are usually melted into a large puddle that is referred to as community property. This puddle is evaluated, mopped up, and divided into two separate buckets. 

Defining Assets 

Divorce is challenging. Parsing out the marital assets can be the most difficult step in this process. California is a no-fault or 50/50 divorce state, so when identifying and dividing assets, it usually falls into one of two categories: 

  1. Community property – Equally shared property by the couple
  2. Separate property – Property that belongs solely to an individual spouse.

Identifying community property usually depends on assets both brought into the union or gained by either spouse while married. This may include:

  • Income and wages
  • Bank accounts and cash
  • Stocks and bonds
  • Intellectual properties 
  • Real estate
  • Cars
  • Home furnishings
  • Clothing
  • Collectibles 

During a divorce, any assets falling into community property are owned by both spouses and divided fairly in the divorce negotiations. 

The division of property can get complicated, especially in high-asset divorces. The terms often get contested, leading to courts where a judge divides the assets according to California’s community property laws.

The laws are different from an equitable distribution state where family courts evaluate various aspects of a case before property and debt are allocated to each spouse. Among the many aspects analyzed by the court usually include: 

But in California, a married couple or domestic partners are a legal community, and property encompasses both debts and assets. It does not matter who is determined to be at fault for the divorce or either spouse’s financial situation either before or during the marriage. All of it gets split during a divorce.

Because of California’s laws, it is imperative to act preventatively by protecting assets like an inheritance before a divorce happens.

The Exceptions   

Gifts directly given to only one spouse and any inheritance received by only one spouse are seen as separate property. No matter whether someone inherits property before or during their marriage, it is considered separate property, and a spouse has no ownership rights. 

But exceptions do exist. Two of these exceptions transfer inheritances from separate property to community property.

  1. Transmutation – Allowing a spouse to be assigned joint ownership of inherited property. This can happen if both spouses sign their names on a house deed or a car title.
  2. Commingling – If money is inherited, it should be deposited into a non-joint banking account. If this money is used to buy anything for both spouses, this is considered commingling, making it community property. If a house or money is inherited, but the beneficiary sells the house or uses the money to buy a new house or repair and remodel the existing home with their spouse, then this new house or the increased value of their home becomes community property.

This does not mean these exceptions are absolute, but if these assets get transmuted or commingled, it can be an uphill battle proving inherited assets should still be treated as separate property during a divorce.

The marital assets should get divided fairly, but this does not always mean equal. In some cases, a judge may deem a settlement as unfair and decide to add separate property to balance it out.

Some Preventative Tips 

Recent surveys have also seen an increase in couples getting prenuptial or postnuptial agreements. Millennials have been the largest demographic using these legal contracts as an effective solution to secure separate property. 

The entertainment industry has given prenups and postnups a bad name for making marriage seem like a financial negotiation, but couples discussing these agreements allow for honest conversations regarding finances and marital property.

Separate bank accounts may not protect property during divorces, but they are not worthless. Keeping money in a separate account can help in a bind. If a divorce gets hostile, and a spouse blocks access to funds or marital property, it is a good practice to keep at least one credit card and one checking account separate.

During a contentious divorce, no one wants to appeal to a judge so they will order their spouse to loosen the control of their funds just to pay ordinary expenses like bills and childcare or attorney retainers.

Eventually, these separate accounts may have to be divided up in settlements, but they can help in a tough spot. Someone already going through a tough divorce does not need to be cut off financially or dependent on the court or their loved ones to help support them.

It is also important to keep thorough files, records, and notes detailing any inherited property. In the event these assets are questioned, evidence is essential to trace when the inheritance was received and who has the sole ownership of it.

How Criminal Charges Can Affect Child Custody in California?

To be blunt, criminal charges can, and likely will, affect the custody of your child in California. There are various degrees of criminal charges, and the more severe a charge is, the more impact it will have on your custody case. 

A judge will always decide a custody battle with the best interest of the child in mind, which is why a criminal history may not always be detrimental or affect child custody. If a judge believes the charges on your record do not represent a current or future danger to your child, they are likely to overlook the criminal history. However, if the judge determines that the criminal charges put the child (or children) at risk or negatively impact your ability to be a fit parent, then this will have a grave impact on child custody. 

What Kind of Criminal Charge is it? 

All criminal charges are not the same and therefore, the court’s do not treat each charge the same when determining custody. The nature of the crime and the timeline will always be considered before the judge makes a ruling in a custody case

There are some crimes that will likely always lead to a parent losing custody, and those include: 

  • Aggravated assault 
  • Crimes that endangered a child (negligence, recklessness, etc.) 
  • Domestic Violence 
  • Homicide 
  • Kidnapping 
  • Sexual assault and harassment crimes 
  • Stalking 

In addition to considering the nature of the crime, a judge will also look at the following factors when deciding a custody case: 

  • Repeat offenses 
  • The sentencing for the crime 
  • When the crime occurred 

If the crime was violent in nature or the parent has multiple crimes on their criminal history rap sheet, then it will likely hinder your custody case and cause you to lose your parental rights in some capacity (if not entirely). However, if the charges on your record were not violent in nature, did not occur recently, and there are no repeated offenses, then they may not affect your case at all. 

The Effects of Drug and Marijuana Charges on Child Custody

Under California Family Code 3011 (a)(1)(B)(4), the habitual or continual use of a controlled substance, including alcohol and marijuana will greatly impact a child custody case. 

Even though marijuana is now legal in California, prior charges can still be a crucial issue when deciding a custody case. If the use and charges impacted a child’s life, the court will likely use this against a parent. However, for the most part, marijuana is now treated like alcohol and will typically only affect a custody case when the use of the substance is excessive, consistently in the presence of the child, while operating a vehicle, and/or under the influence during your assigned time with the child. 

Criminal charges related to drug use or selling of drugs can have a great impact on your case. However, the best way to abate these charges during a custody battle is to: 

  • show no repeated offenses
  • show that the use of substances has ceased 
  • show that the charges did not have any impact on your child or your ability to parent 

If there are drug charges on your record, a court will be able to require drug testing when determining custody of a child. 

Do the Criminal Charges Impact the Ability to Be a Fit Parent? 

A criminal charge will not always directly relate to the custody situation, but the charges can still impact the outcome of your case. The best interest of the child is always the top priority when determining the custody of a child or children. 

A court, or other parent, can show that an arrest, charge, or illegal actions negatively impact that parent’s ability to adequately care for their child, regardless of how the crime itself impacted the child. A court can view criminal charges and illegal behavior as a pattern of poor decision making and an inability to care for a child’s life. 

A court will never place a child with a parent when it believes the minor will be in an ill-fitting home or in harm’s way. A criminal history will likely lead a court to make assumptions about the parent and greatly limit their custody rights. An arrest record and criminal history will typically cause a court to rule in favor of the other parents and grant only limited visitations or supervised custody

Even though a criminal history can have a severe impact on gaining custody of your children, each case is different and, in some instances, the charges can be overlooked if a judge determines that having custody would be in the child’s best interest. 

Can you Overcome Criminal Charges? 

Criminal charges will not always mean an automatic loss of custody rights. If you are seeking custody of a minor child (younger than 18), there are ways to increase your chances of gaining custody. 

In the case of domestic abuse, a court will allow you to attend a fifty-two (52) week batterer program and complete the final evaluation to fully comply. Similarly, if you have a history of substance or alcohol abuse, you can receive substance abuse counseling and/or attend rehab to show that you have overcome substance use and will not affect your parenting. 

Additionally, the best way to overcome criminal charges (regardless of severity), is to remain in compliance with all probation, parole, and restraining orders. Most importantly, avoid committing any additional crimes. 

Contact a California Custody Lawyer 

A criminal history will likely have an impact on your child custody decision, but it is always important to discuss your case with an attorney before any court proceedings. For more information on how criminal charges can affect a child custody case in California, contact the San Diego family law attorneys at The Law Offices of Steven M. Bishop. 

To discuss your custody case with one of our attorneys, please call our offices at 619-724-4148 for a free phone consultation. We represent those throughout San Diego County and can help answer any custody questions you may have. You can also contact us by email.

Parenting Time and Summer Vacation Modifications

Regardless of how good a parenting plan is, there are bound to be disputes over how vacation times are handled. This is particularly true during summer vacation periods. Children are out of school until fall and their schedules are completely upended. This leaves parents in the predicament of deciding how best to deal with vacation issues when juggling two different schedules which may conflict with each other.

Although  working with a Certified San Diego Family Law Specialist can help you navigate this difficult issue, there are some things you should address before you seek legal counsel.

 

Review Current Parenting Plans

Keep in mind, your existing parenting plan is on file with the court. The court ordered both parents to abide by a schedule which the court believed was in the child’s best interest. Whenever possible, it is best to stick with this plan since there can be penalties associated with varying the plan.

While it may be acceptable for both parents to agree on a modification, it is also important to remember that until the court approves a different plan, either parent may object in court to the plan, even when there is nothing more than a verbal agreement between the two of them. You should never agree to a modified visitation plan which is not approved by the court.

 

Custody and Visitation Orders in California

California family laws typically allow parents to discuss and agree upon holiday and vacation times and will include these agreements in the final custody and visitation orders. When the parents cannot agree, however, the court will make these decisions and may issue a visitation schedule along with the divorce decree. These orders are typically done to protect the best interests of the child and may include language which specifically refers to holidays, summer vacations, and other school breaks. However, keep in mind, circumstances can change.

Some of the circumstances under which a court will review the current parenting plan include:

  • Material changes to the circumstances of one or both parents
  • The distance between the two households
  • The wishes of the child (over a certain age)

Whenever possible, parents should ensure they are doing their best to adhere to the court orders to ensure they are not facing any legal challenges. Remember, either parent may petition the court to hold the other parent in contempt of court for violating a visitation order.

 

Parenting Time Modifications by Agreement

California family law statutes make it clear the court will always take the best interest of the child into consideration. Therefore, it is important to understand that even when there is an existing parenting plan in place, the parents may agree to modify the plan which was agreed to at the time of their divorce.

Parents remain in control over the visitation of their children. When both parents agree the current plan is not working for them, they are free to agree to a modification of the current terms and present those plans to the court. These changes may impact only summer vacation, or they may impact the broader parenting plan if warranted.

Remember, as long as the new plan takes the child’s best interests into consideration, the court is likely to approve a modification which is submitted by the parents. This does require the parents to reach a mutually agreeable solution to summer vacations and other changes to parenting time. The drafting of a plan may be accomplished with or without the assistance of a family law attorney. However, it is always best to have the modification reviewed by your attorney before submitting it to the court, since your attorney can advise you of any potential problems which the court may find with the modification.

 

When Modification Is Contested

Unfortunately, parents cannot always agree on issues pertaining to summer vacation, or to visitations in general. If the parents cannot agree on a modified plan for parenting in the summer, then a petition must be filed with the court to modify the plan. However, this is not a guarantee — to show that a modification is warranted, the petitioning parent may be required to demonstrate:

  • There are circumstances which are substantially different than at the time the original parenting order was put in place
  • The circumstances which have changed materially impact the child, or
  • The circumstances have changed for one or both parents
  • The wishes of the child have changed since the original order was put in place

The petition will be submitted to the court for a hearing. Before such a hearing is held, the judge may recommend the parents participate in a mediation session so that an agreement which is acceptable to both can be reached.

In the event the mediation between the parents fails, then the court will request both parents attend a court hearing to rule on the dispute. As with all other issues which impact a minor child, the court will always defer to what they feel is in the best interest of the child or children.

 

Seeking Legal Help for Modifications

When a parenting plan is no longer working for the parents, or the child, modification of plans is sometimes necessary. However, agreeing on what those modifications should be is often a challenge as both parents may have different ideas as to what is in the best interest of the child.

Remember that the California Family Court will carefully scrutinize California’s Family Code to determine whether modification is appropriate. Parents who file a modification petition without the proper reasoning could be required to pay all legal costs associated with the request.

When you and your spouse cannot agree on a summer parenting plan that is different from your existing plan, you can opt to participate in mediation or arbitration before filing a petition with the court as well, which may be a better alternative. In the event you cannot reach an agreement, then your family law attorney can help you file the required petition for modification with the court.

 

Contact a Family Lawyer Today

Parenting is never easy and when the parents are not living together, there are more complications. Children need both parents, and it is in their best interest to make sure that when the parents can find common ground, they should. However, we are also realistic and know this is not always the case. If you are facing a potential dispute over your current parenting plan and summer vacation, contact a California custody and visitation modification attorney  at The Law Offices of Steven M. Bishop, Attorney at Law by calling (619) 299-9780.

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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.

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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

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