Law Office
Of
Mellanie Marshall
Law Office Of Mellanie Marshall
112 J Street, Third Floor
Sacramento, CA 95814
P. 916.442.1345 F. 916.442.1310
Email: MarshallLawGroup@Gmail.com
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THE TOP TEN DIVORCE FUBARs: Is Alimony Still Awarded in 2010? Ms. Marshall is direct and will keep you informed. With her, you will have a strong advocate to represent and protect YOUR best interests, providing aggressive representation if necessary
(By Mellanie Marshall, Published in SN&R 12.24.2009)
Divorce is often an individual's first significant brush with the legal system. Many are overwhelmed by what can be a complicated and thorny legal situation. Here's how to avoid or deal with the top 10 FUBARs.
FUBAR 1: Believing your spouse will be nice and play fair
Reality: your Ex is bringing a knife to a "tickle fight". Most people facing a divorce are emotionally vulnerable and upset; many are in a state of denial. I tell unsuspecting clients they need to protect themselves; and their common retort: "my spouse would never do that." Welcome ashore from the Good Ship Lollipop! You need to look out for Numero Uno; and expect your spouse to do the same. Divorce court is an adversarial system; expect to take some punches (above and below the belt). It's time to take off the gloves, fight smart and play for keeps!
FUBAR 2: Having unrealistic expectations or demands in Divorce Court
It's over. you're not getting back together. Your Ex wants everything (and for you to burn in hell). Too many people enter divorce proceedings with unrealistic expectations and demands. Since finances, children, property, a business or retirement funds may be in dispute, a realistic evaluation of your options is essential. Focus on an outcome you can live with, explore problem solving and so everything possible to assist your attorney and maximize results.
FUBAR 3: Not being fully informed; stupid questions get bonus points!
Many clients are intimidated by the legal system and even their own attorneys. Instead of asking questions, they accept everything on blind faith; resulting in unintended consequences. To ensure well informed decisions, I encourage my clients to pepper me with questions about their case, the likely outcome, or possible terms of settlement.
My relationship with a client is best when there is open and honest dialogue. I encourage clients to ask every question they can think of; legal, moral, financial, etc. I pride myself on an "open door" policy and am available to answer questions day or night. Family law is not a "9 to 5" business. I truly believe there is no such thing as a stupid question; especially when it comes to protecting and asserting my client's rights.
FUBAR 4: Playing hide the ball; or keeping your attorney in the dark
They are your priest in the court house...though some clients don't trust their own attorneys; their only friend in the battle trenches. By withholding information about their personal history, future plans or financial assets, they're handicapping their attorney. Divorce court is an equal opportunity laundromat for airing dirty laundry. Your Ex will paint a portrait of you Stephen King would admire. Fortunately in litigation, the truth always finds its way out. You need to present a clear picture of what your assets, liabilities, trophies, skeletons and motives are. If you want your attorney to do an effective job, they need to see the "whole enchilada."
FUBAR 5: Tomorrow, tomorrow: not getting representation soon enough
Many clients first attempt to handle their own divorce (commonly referred to as "Pro Per").... Yikes! The resulting damage can be extensive and sometimes permanent. People often make a mistake interpreting the law, or grave assumptions not knowing their rights. During these crucial times, ignorance is most definitely not bliss.
I have seen mistakes such as one spouse giving the other spouse his sole or separate property (i.e. the inheritance from his grandparents). His ex told him it was "community property" and "by law" she was entitled to half. If he had legal representation, he would still have all of his inheritance! It kills him to see her driving away in the Benz Gramps paid for.
FUBAR 6: Allowing your emotions to get in the way of your legal decisions
Many people going through divorce are emotional, frazzled and distraught. They are convinced beyond doubt their position is correct; and sincerely believe they are victims of an evil "Ex". If you let your emotions gain control, rather than reason and logic, you will undermine your case. Be reflective rather than reactive. Emotional people tend to hear what they want to; and are often unable to articulate what they really want or mean. Level headed decisions always prevail.
FUBAR 7: Expecting the legal system to be fair and the Judge to see things from your perspective
No matter your position or the strengths of your convictions, the judge can see the same issues in a completely different light, different than even your Ex's perspective. Judges often rule on limited issues, not addressing the "Big Picture". The bright glow of your halo, or your Ex's dark horns, is not necessarily outcome determinative. Your just and noble viewpoint won't always prevail; at least not in its entirety. Learn to accept it! The more realistic and balanced your expectations, the better you can problem-solve and obtain the most favorable outcome.
FUBAR 8: Letting "it" slide: complacency in enforcing Court Orders
Early in divorce proceedings the parties engage in all out war; personal attacks and outrageous allegations are the norm. Once emotions have cooled, the parties commonly express desires to "work it out"; they don't want to be tied up in court proceedings. They are reluctant to enforce their rights or "rock the boat". The Ex finally quit throwing things at your car; hence, the failure to enforce court orders timely. Lack of action may negatively impact your future rights or obligations.
The custodial parent lets the child move in with the other parent; then later demands the child's return. The courts will generally enforce the status quo and leave the child with the "non-custodial" parent. In doing so, the court seeks to provide stability and continuity for the child. The parties must exercise and protect their custody and visitation rights, or else risk losing them. Once visitation or custodial rights are lost or limited, it is an uphill battle to restore them. This impacts not only the relationship with your child, but effects child support obligations as well.
FUBAR 9: "The IRS is holding on line 2:" Ignoring tax consequences
Divorce proceedings can present complicated financial issues involving: assets, personal property, real estate, trusts, estates, retirement money; all of which have tax implications. Clients with significant assets should consult their financial adviser or C.P.A. to counsel them on tax consequences before entering into any Divorce Settlement Agreement.
FUBAR 10: Be an asset to your case, not a hindrance
Your goal should be to do everything in your power to assist your attorney in presenting your case, and achieving your desired goals. Clients caught up in the moment do really dumb things, sometimes impacting their freedom (jail) and restricting access to their children. In the early stages of a divorce people really need to put their emotions in check. I routinely advise clients, "keep your hands and your mouth to yourself". "I wish I wouldn't have..." doesn't bode well.
Overly emotional clients are often "needy," calling up to a dozen times a day. I typically do not keep track of phone calls and don't charge them to clients unless I get multiple phone calls in a single day. Write down your concerns, and address them all in a single phone call. This allows a certain amount of personal assurance without negatively impacting my available time (or the client's retainer). I strive to maximize results, while minimizing litigation costs.
Frequently Asked Questions About Divorce in California
1. What is the Difference Between a Legal Separation and a Divorce and Which One is Right for Me?
In a legal separation, the parties are NOT asking the court to terminate their marriage. Many people seek a legal separation in lieu of divorce for personal reasons (i.e. religious beliefs or health care concerns). The process is otherwise the same: the parties assets and debts are still divided. There are no statutory residency requirements for a Legal Separation; whereas in a divorce, the Petitioner (the person filing for the divorce) must have lived in that county for the previous three (3) months. You are permitted to file for a Legal Separation while awaiting the three month residency divorce requirement.
How Long will it Take for My Divorce to be Completed?
In the State of California, a divorce can be finalized no less than six (6) months from the date the Petition is served.
Will I automatically be Divorced in Six (6) Months?
No. If there continue to be unresolved issues related to your marriage after six months have passed, you must request relief from the court in the form of a Bifurcated Judgment. A Bifurcated Judgment terminates or "dissolves" the marriage, recognizing that there are other separate issues related to the dissolution that are yet to be decided, but that the marriage no longer exists, pending resolution of the other matters.
Is Everything Split 50/50? How do I Protect Myself Financially?
Once a Petition for Dissolution (Divorce) is filed with the court and properly served on the other party, there are "game rules" put into play called Restraining Orders. These orders of the court are listed on the back side of the complaint and apply to each of the parties equally, no matter who "filed". In general, both parties are prohibited from the following:
Yes, and the duration is solely at the discretion of the court. Generally speaking, if the duration of the marriage was less than ten years, the courts will award spousal support for a period of half the number of years of the marriage. A marriage lasting longer than ten years is considered a marriage of long duration and will often award support for a greater length of time. If spousal support is litigated, the court would usually retain the right to decide the amount and duration of spousal support.
I Inherited a Large Sum of Money Before I was Married? Is my Spouse Going to get Half?
Not necessarily; in fact, a gift (or inheritance) is the separate property of the party receiving the gift (or inheritance). Unless the gift (or inheritance) was intended to be given to both parties, it is considered to be the separate property of the recipient, and is thus not community property.
Is There a Difference Between Legal Custody and Physical Custody?
Legal custody is the right and the responsibility to make decisions related to the health, education and welfare of a child. Physical Custody refers to the periods of time physically caring for the child.
How is Child Support Determined?
Child support is calculated using a formula derived from state guidelines. There is a computer program used by the State of California (and your attorney can also calculate this) that takes the following factors into account: Incomes of both parents (or ability to earn), the percentage of time the child(ren) spends with each parent, as well as various other factors that affect each parent's net income.
