We in California are often bombarded with the latest celebrity divorce gossip, and it can sometimes influence how we perceive the entire divorce process to be, because it seems like the tabloids make every juicy morsel in the process seem far more (or less) dramatic and upsetting than it really is. With some of these famous couplings lasting mere months, to the ones that break our hearts because we though they would stand the test of time, many of these stories fascinate us. When it come to your own legal separation or divorce, though, how feasible a goal is it to try to model such a personal situation after the rich and famous? Back in 2014, when actress Gwyneth Paltrow and musician Chris Martin announced their “Conscious Uncoupling”, the term inspired its share of satire and ridicule not because it seemed like a bad idea, but because it seems so out of touch for regular people with actual emotions and real-world grievances to achieve. Now that Ms. Paltrow is remarried and making the talk show circuits touting the happy state of her new marriage AND previous divorce along with a promised book on the subject, the American public is again forced to examine this complicated ideal.
If you ask the experts that commented on Paltrow’s Goop website, conscious uncoupling "brings wholeness to the spirits of both people who choose to recognize each other as their teacher." While THAT may seem a bit esoteric for most of us, what it really means is that former partners put aside blame in favor of effective co-parenting and/or emotional well-being.
The term, coined by relationship expert Katherine Woodward Thomas, whose five-week program of the same name promises to "release the trauma of a breakup, reclaim your power, and reinvent your life." Where it differs from other break-up scenarios is that the couple believes that they have both tried to work through problems in their relationship without success. The decision to end the relationship, whether a marriage or long-term relationship, is made by both parties with an agreement to cause the least amount of damage to themselves, their personal integrity, and their offspring. Sounds like a sound concept, doesn’t it? And if both parties are equally financially solvent with substantial resources and neither is rubbing a new love interest in the other’s face, it also seems like a viable option. The problem with “Conscious Uncoupling” as cited by celebrity, is that most of us don’t live like that. Also, and this is the kicker, most of us have some sort of feelings of despair or anger that we are just too exhausted or busy to deal with because the realities of separating one life into two leaves little time for anything else. What the proponents of “Conscious Uncoupling” may not have to deal with is the practical matters of that split. Where am I going to live? Who is going to pay for daycare or school for the kids? What about clothes and groceries, and will I even be able to afford my weekly yoga class? EVERYTHING is going to change, therapy may not be an option at first because things are so up in the air. You want to take care of your kids, and it may seem more realistic to you to make it easier for them by pretending to table resentments because that is all you can manage right now. Finally, if there has been infidelity or abuse of any kind, this concept can be an impossible pill to swallow for the aggrieved party.
Sure, “Conscious Uncoupling” works out if you have multiple homes, and various sources of income is coming in to both parties. In these cases, many of the common stressors of the average separated couple can be bypassed in favor of immediate attention to emotional adjustment. When you are talking about giant sprawling properties with different housing structures situated across the landscape, it isn’t such a hardship to consider staying on that property with your ex to co-parent when the chances are slim that you will run into each other. The same can be said for those “family vacations” that former Hollywood couples like Ben Affleck and Jennifer Garner go on - new love interests in tow with the kids. Its difficult to imagine such a scenario involving regular folk who must worry about furnishing new apartments since they moved out of the joint home, much less enjoying tropical getaways in those first lean months/years of starting over.
Conscious Uncoupling is surely successful for the lucky few that have the time, finances, and lack of emotional distress. For everyone else, it’s probably best to call an experienced attorney…and they can hopefully recommend a good therapist.
Hopefully, in everyone’s life, they find that perfect someone that they are meant to be with. She, who is the other half of your soul. The man that really gets you is your best friend and your lover. You have found the answer to the question of your future, and you want to make it official. While we are all certain that life after the wedding is assured, none of us can see into the future as to what will be. Human beings grow and change, sometimes at different rates, and sometimes down different paths. So, before we enter into what is necessarily a legal agreement between two parties based on a set of circumstances that are bound to change, wouldn’t it be the smart thing to do to first sit down with an expert or two and discuss, in writing, what the expectations you BOTH have for this life you plan together? Heaven forbid the unthinkable happens, and you can no longer envision a future which includes the person you currently swear to love, honor and cherish until death, what happens after the marriage? Consult any legal expert, regardless of income or assets, and they will advise you to negotiate a prenuptial agreement that benefits BOTH parties in case things just don’t work out.
Prenuptial agreements are no longer a tool used by the wealthier spouse to ensure they aren’t being “taken advantage” of. Even for couples who start with nothing, the potential earnings and community property laws in California would behoove engaged couples of any tax bracket to discuss the future should the marriage be unsuccessful. In California, the dissolution of a marriage and the allocation of property is governed by the California Family Code. For those who are wise enough to consider a prenuptial agreement, a measure of control is kept between spouses as opposed to the State, over which you have no say. Because of this, it's wise that each party to hire a legal expert to represent them so that the final draft of the prenuptial agreement protects the interest of both parties.
Despite the clinical reputation of this sort of contract, sitting down with your future spouse to REALLY talk about your future should not be the romance killer its often made out to be by those stereotypical “fortune hunter” characters often depicted in movies (although they do exist). Having a frank and honest discussion about what you expect from marriage, what all your deal breakers are, and can ultimately be a way to strengthen your foundation. For one thing, the process requires full disclosure of all assets, debts, and financial situations and should involve discussion on how you will both handle your money and economic future. Money can be a significant stressor on a marriage, and better to find out your coping skills beforehand as well as develop a plan to deal with anything that may come up! Similarly, given the emotional and physical blissed-out state that many engaged couples exude, sitting with the lawyers to discuss what your ideas about children, child rearing, allocation of household chores, and even sexual responsibilities should entail can be quite eye-opening! After hashing out all these minute details, you will surely know your future spouse more thoroughly, and be able to make a more informed decision about your future without all those pesky pheromones clouding your judgment.
An argument can be made that having a substantial prenuptial agreement is similar to having flood insurance on your house. We all hope the flood never comes, but if it does, it pays to be covered. As the famous financial advisor Suze Orman shares, “As somebody who, in my second marriage, insisted on a prenuptial agreement, I can also testify that sometimes it is an act of love to chart the exit strategy before you enter the union, in order to make sure that not only you but your partner as well, knows that there will be no World War III should hearts and minds, for any sad reason, change.”
Just turn on the tv or internet broadcasts right now, and you can hardly escape the news that Jeff Bezos and his wife of 25 years, MacKenzie Bezos are getting divorced. Mr. Bezos is the genius behind Amazon and according to the Bloomberg Billionaire Index the wealthiest person on the planet, with a net worth of about $136 billion! However, because Jeff and MacKenzie reportedly don’t have a prenuptial agreement, this number could significantly decrease. Remember, Washington like California, is a community property state, meaning all assets could be split right down the middle when the couple finalizes their divorce.
As to whether you should hire an attorney or attorneys to handle your prenups, take a lesson from Steven Spielberg. Mr. Spielberg and his first wife, Amy Irving signed a prenup on the back of a napkin, and a judge agreed to award Ms. Irving $100 million because he decided that the “document” was invalid since she was not represented by an attorney.
While the motivation to enter into a prenuptial agreement is undoubtedly financially practical, the other benefits are of equal importance when we advise negotiating one. Ultimately, the affianced will have a greater understanding of communication and compromise, while establishing those financial practices that can put marriage at risk. In the end, knowing that a marriage will not end with acrimonious months or even years in court can relieve some of the stresses of the unknown, and encourage a more significant effort to make that marriage work.
If you are ready to tie the knot, you need to seriously consider the advantages of getting a prenuptial agreement. If you are already married and feel like you need to protect yourself and the assets that you brought into the marriage with a post-nuptial agreement, contact the Law Offices of Tracy Duell-Cazes, TDC Family Law, and schedule a free consultation. 408-267-4848.
It seems a cliché to write about resolutions in the new year, but when you have just ended a marriage, no matter how long it lasted, it can be helpful to use the new year as a starting point for some smart choices towards beginning your new life. Taking stock in all that happened in that past year, no matter how painful, will help you learn from those mistakes, heal from them, and make better decisions going forward.
It is never a good idea to wallow in misery, even when the something truly life-shattering has occurred. Bouts of clinical depression may be unavoidable after extreme change, even if that change is positive, because the brain is a mysterious organ that often deals with different kinds of stimuli in the same way. It is still wise to try to mitigate the impact of that adjustment by heeding the advice of mental health professionals, surrounding yourself with supportive loved ones, and engaging in various acts of self-care.
Staying positive means adapting a policy of “It could always be worse, but it WILL get better”. No one is saying don’t talk about the divorce, or your feelings of loss or lingering anger. But it is advisable to then turn the conversation (and thought patterns) to any other topic. When you are with those people you trust who are supporting you, its ok to lean on them…that’s what caring about someone entails…but also interest yourself sincerely in THEIR lives. Steer the conversation in a direction of positivity…What can I do for you? What can I plan? What can we look forward to? By focusing outside of yourself, you are reconnecting with your friends and family and most importantly, thinking beyond your own personal miserable past. It can be exhausting to constantly recount all the things that went wrong with your relationship and ultimately your life with your ex.
Letting go of past grievances
It is impossible to focus on your possible shiny future, if you are still bitter towards your ex…even if he or she totally deserves it. The thing about that is, even if the ex was abusive, a cheater, squandered all your money or stole your dog, your being unhappy and disgruntled towards everyone and everything does not get even, if there even is a way to do so. Imagining getting even can be a great exercise in creative thinking but spending too much time on those thoughts will bleed over into all you say and do. Honestly, your ex is not affected at all by your sniping bitterness, because they are gone. You and the people around you are the ones who will suffer, and if your ex returns your hatred, you may be playing right into their hands with your cynicism and visible hostility.
George Herbert famously said, “Living well is the best revenge.” If you think about it, allowing another person’s actions to change how you behave even after they are no longer sharing your life, is tolerating that person holding way too much power over you. Whether they want that power or not, no one else should be allowed to change who you are on a fundamental level, unless it’s for the better.
Should you decide to date, acting like a disillusioned cuckold will do nothing to help you keep the attention of a prospective mate. Again, no one is saying lie and fake being happy. You went through something, for some more painful than others. You should own that, but prove you bring more to the table than your past heartache. Faking happiness is counterproductive to truly BEING happy, which is the whole point, anyway.
Fill your life with plans.
Plan fun things. Plan interesting things. Plan to do things you really enjoy. Heck, plan to get out of bed, shower and go to the grocery store in something other than sweatpants! Whatever you put in your Outlook™ calendar, DO it!!! These plans are about setting small doable goals for your future, and every time you keep those plans, you are keeping a promise to yourself that life is getting better.
Sometimes things may get bad. You may choose to take a few days here and there to just be sad. You may break some of those plans to have those sad days, call a good friend and cry or yell about your ex. You are entitled, because it’s all part of healing. You must grieve properly in order to be able to one day have that big, beautiful future everyone deserves. Be kind to yourself. Be mindful not to let these slip-ups become all you know and are. Resolve that this is going to be a good year because you will do the work.
The New Year is fast approaching and for most of the world, this means a chance to jumpstart our lives on the right footing. New Year’s resolutions aside, bidding adieux to what may have been a painful year, filled with divorce and family reformulation, can be invigorating. On top of shedding all that sadness is the prospect of the possibility of experiencing NEW adventures. As humans, in constant search for connection, the search for a life partner can seem the most rewarding, exciting, and daunting adventure of all!
Are you ready for dating? Experts on the subject have differing opinions as to when it is appropriate to move on from a failed marriage. Heaven knows our loved ones give us plenty of encouragement to “get back on the horse”. For many couple friends, the sooner you find someone to round out the numbers for a dinner party, the better. What others advise, no matter how well meaning, there are many personal and complicated factors to consider when approaching a return to the dating scene.
The most sensible piece of advice, as described by WebMD columnist Lisa Fields, is to go by your own inner voice above and beyond all others. Everyone may be telling you it’s time to get out there, but for some of us, a grieving period is necessary. Depending on how long you were married, and what sort of divorce it was, you may need a longer period of adjustment just to get used to your new normal, much less the addition of someone else to the mix. Many people associate being in a relationship as being happy and successful, and they want that for you because they care, but it doesn’t mean it’s true. Finding out who you are outside of a long-term relationship can take time and is probably a good idea before engaging in another round of coupledom.
On the other hand, some people have checked out of the marriage long before the papers are signed. You may have felt for months or even years that you were done and just kept putting off ending it for convenience, or the kids, or for of the unknown. In this case, who could blame a person for itching to check out what’s out there. Actually, some will try to blame you if they think it’s too soon, but again, only you can determine when that right time is. Children should be considered, of course, but being respectful and discrete in your romantic endeavors will hopefully help to protect them from unnecessary discomfort until you have found someone serious enough to introduce into your lives.
One of the ways to tell whether you are ready to date is by examining your attitude. According to Dr. Dawn Michael, Ph.D., relationship expert and author, considering the type of date you would be able to offer is a good way to determine if you should be dating at all. If you can offer nothing beyond bitter stories about your ex and/or the divorce or can’t help being mopey and cranky about your lot in life, perhaps you might not be able to provide the best dating experience. In this article from AskMen.com, Dr. Michael advises, "A man is ready to date again when he has a good attitude about dating. When he's ready to have some fun and get out there and meet new people and be open. Dating with a bad attitude will only result in bad dates,". In other words, and valid for both men and women, would YOU want to date you?
Once you have determined that you are really prepared to get out there, and can claim to be jazzed about love and romance, and not just the physical aspects of a relationship, then you can begin to contemplate how to go about sorting through the many, many, MANY others in the same situation to find the one that is right for you.
In a previous post, we discussed getting through the holidays as a parent newly divorced with your children splitting time between yourself and your ex. You should also know that the difficultly of the holidays not only also extends to your ex, but also to your children. They are used to celebrating all together. The holidays have changed and so, too, have the traditions surrounding the holidays.
When it comes to traditions around the holidays, nobody likes change, least of all children who rely on those traditions to reinforce their versions of reality and stability.
This is not only difficult for young children, but also for older, or even adult children who are now adapting to this change in their lives.
If the kids look forward to visiting their maternal grandparents at Christmas only to find that their divorcing parents have arranged a different schedule for everyone, it could be quite unsettling.
For the little ones…
Focus on fun! Seriously, all those little rituals that you and your ex created throughout your marriage can be considered those ghosts of Christmas past. Some of them can be saved…making cookies, decorating a tree, watching Claymation holiday movies on Christmas eve. All are easy enough to replicate … but some of the minute details will have to be altered, and you better believe those kids will notice! Not using the special snowflake cookie cutter that you all bought on vacation one year? What about Grandma’s angel is always on top of the tree?
You can’t compete with that kind of history, so don’t even try. Please remember, you are not trying to “win” the holiday competition with your ex. You are trying to make the divorce easier on your children who love both of their parents and feel the change in family dynamics deeply. What you do want is to add some new little touches to some old traditions and some altogether new customs for those kids to remember.
In this spirit, may we suggest enlisting the help of your children in picking out these new additions to their holiday celebration? Taking a tot to the Holiday store to pick out new cookie cutters or special ornaments is a great way to get them invested in making this time work. Little Mandy is far more likely to look forward to making those cookies if she gets to use the sprinkles and snowflake shapes she picked out herself!
Similarly, getting a new angel for the tree is not about to compete with the one that has been in your former spouse’s family for generations, so just pick something else. Make it something different, fun, whimsical, and (the younger the child) sparkly!
Put every kind of thought you have about “taste” and “design” straight out of your mind and focus on what will merely make your children smile … or even giggle. When all else fails, laughter is what you are aiming for.
Adult Children…still children
Up until the time when they have families and children of their own, your adult children still share the same idealized memories of holidays past that the little ones do. The only difference is they have had a longer time to coat those recollections with the shiny, happy glaze of nostalgic goodness. They will rely on their parents to maintain those traditions.
Therefore, when divorce occurs, even though your “kids” have a car and mortgage payments, go on expensive vacations, and must find a place to house their pets, you will still have to deal with the emotional fallout.
They will be saddened when they think of all those great holidays of yore, sure that “nothing will ever be the same”. They may be resentful for how your divorce will affect them. If they take a selfish view of the situation as an adult, it may be time for a serious discussion. You have spent their entire lives shielding them from pain and uncomfortable situations, but it is time for them to realize that you must also take care of yourself. Sometimes that means making hard decisions that affect the whole family.
After the serious discussion, the final answer is the same as it was with the younger kids. It is time to make new traditions, however with adult kids, these traditions can be more adult in nature as well. Take a trip. Go on vacation. Get away for a few days and let that be the new tradition.
Making new traditions can be an exciting and necessary step to enjoying the holidays in the present. Make new memories to enjoy in the future. Turn this obstacle into an opportunity to start fresh. Start something new and when the holidays come around again, you will be excited for all of the new traditions you have created.
The holiday season, no matter the religion or culture, is always accompanied by unrealistic expectations of happiness and jocularity. Invariably, you are just setting yourself up for disappointment regardless of where or with whom you are celebrating, but when you are divorced and separated from your children, that anticipation can quickly morph into dread.
Pictures of drinking spiked eggnog alone under a Charlie Brown Christmas Tree may keep you up at night as the specter of merriment creeps closer. Don’t worry, though. You can do this…and maybe have a great Thanksgiving, Christmas, Hanukkah, Kwanzaa, and New Year while you are at it .
If this is your first Holiday alone since the divorce or separation, the enhanced memories of the ghosts of Christmas past will do their best to make you believe that every moment was all Thomas Kincaid canvases depicting warm cider, and soft hugs and giggles of Christmas morning. You forget about the fights over who gets to open what first, disappointed whines about presents not received or can I eat my candy cane now!? Gone are the recollections of the mess that is the aftermath of the gift exchange, that special dinner, or the “wrapping party” from the night before. We are happy to be with our children, but all holidays are a LOT of work. Nobody is saying forget the good times, but acknowledging the down sides of any given occasion can lesson the sting of being the one NOT participating this year.
Whatever the custody agreement, maybe you got Thanksgiving and she got Hannukah or New Year’s, eventually it will be your turn to be the one making new traditions with your offspring. You want them to enjoy themselves, so encourage them to have fun at your ex’s too. No sensitive child that loves his parents can really enjoy themselves if they think one parent is home alone and miserable. Therefore, you owe it to them, as well as yourself and your new life, to have the best time possible.
The real key to getting through the holidays is planning. Some things are unavoidable, like illness or deaths in the family, but you should be on the same page with your ex that unless extreme emergency is involved, this schedule is set in stone. Stability is not only important to children, but adults need to know that they can count on something too, particularly considering the uncertainty of life after separation. The more time you have to plan ahead, the more likely you are to be able to get together with friends or relatives that may be visiting during that time. Or planning a trip to visit them! Maybe you can stay somewhere you went to as a kid with your sibling or visit a college roommate after twenty years of scheduling conflicts or missed chances. The more meaningful or fun the plans, the more likely you are to be able to satisfy that hole you are feeling from missing your kids.
Planning ahead also allows you and your ex to hammer out solid arrangements for when you may be able to call or Skype/FaceTime/video chat with the kids in a way that doesn’t make them feel bad or interrupt whatever plans the parent on duty has scheduled. Also, maybe one parent is on for Christmas, and the other for Christmas Eve. Leaving these preparations until the last minute increases the likelihood that something doesn’t work out, and someone is going to be disappointed.
Hopefully, there is family or friends around to spend this special time with, but that’s not always possible or feasible, depending on location or finances. This doesn’t give you permission to wallow. Remember, you don’t want your babies coming home to a parent that wears obvious signs of having been miserable and alone through the entire holiday. Instead, plan to practice self-care, so that you are a better parent and a better human. Someone who is healthy emotionally, MUST be a more engaged, stable parent than one battling to find their own footing in the new world of singlehood.
A fiduciary is an individual in whom another has placed the utmost trust and confidence to manage and protect property or money. The relationship wherein one person has an obligation to act for another's benefit. A fiduciary relationship encompasses the idea of faith and confidence and is generally established only when the confidence given by one person is accepted by the other person. In a fiduciary relationship, one party has an obligation to act for the best interests of the other. The most commonly cited fiduciary relationship is between an attorney and a client. The attorney, regardless of how they may feel personally, must act in their client’s best interest.
A couple going through a divorce has a fiduciary responsibility to each other with respect to their community property until that property has been divided. This does not mean either side has act for the best interest of their soon to be ex-spouse at the expense of themselves.
In California, divorcing couples are required to file forms with the court that truthfully disclose all their assets including bank accounts, real estate, income, and other high value assets, such as cars, boats, vacation homes, jewelry or art, creating that fiduciary agreement.
If one party submits these forms with a false or inaccurate account of assets, they are breaking that faith and confidence.
California is a community property state, meaning all assets that a couple acquired during the course of the marriage are usually divided equally between parties. Whether one person earns or receives more income or property, those assets are jointly owned. When a party attempts to hide some of those assets from their partner they are not holding up their part of the fiduciary responsibility.
If a husband, for example, knows that divorce is on the horizon and decides to skim some funds from a joint account into a private account, or if a wife were to use their joint account to buy a horse, or a new condo, or take lavish vacations, they are not living up to their responsibility. Lowering your bottom line by moving funds or going on spending spree is the same has hiding assets.
Assessing a property’s actual value as opposed to the perceived value is best done by an unbiased third party, to reduce the likelihood by one or the other undervaluing the property. This deliberate understatement of value can make it difficult for the court to accurately calculate the entirety of marital property. Understated value will also cause your spouse to then counter with a stated value that is well above the actual value. Each side is going to want to represent the numbers in a way that benefits their case.
The penalties for hiding assets can be significant when the attempt to do so is brought out into the open. If found hiding assets, the court may impose sanctions. Since your unethical actions forced a court procedure, you may also find yourself saddled with court costs, including your spouse’s legal fees. If the assets were found after the divorce was finalized, you can be subject to contempt of court and the judgment can be voided. Ultimately, when found out, your liability will be far greater than the value of the assets you attempted to hide.
When you work with us as you go through your divorce, we will take a complete look at your assets, property, and income to make sure that everything is being reported in a fair way. We will also, through the process of discovery, look at what your spouse is reporting to ensure that everything seems to be in order. If we see inconsistencies we can bring in experts, such as forensic accountants to see what the numbers are telling us.
Representation of divorce cases in movie and television always come down to a vicious court battle. Screaming attorneys and judges pounding the gavel makes for good drama, but the truth is far different. Judgments are often bases on a formula. Also, being a community property state takes a lot of the guesswork and deliberation out of the picture. When it comes to determining the value of marital assets, so much of it is also based on formulas or on current appraisals. Hidden assets cause the basis of almost all financial decisions to be incorrect. This leads to a longer and drawn out process and more legal problems.
As you go through the process of divorce, if you believe your spouse is hiding assets, we will work with you to bring the truth to light.
Going back to school can be a very exciting time for a kid. They get to see friends they have not seen in a couple of months and they get to relive their summer through the stories they get to share. When family issues arise, going back to school can become very stressful and daunting for them. Kids do not know that no one knows that their parents were just recently divorced. Kids have a very self-centered view of the world, so kids may feel different when they head back to their familiar setting. They may think that they are being stared at or even made fun of behind their backs.
We have discussed the importance of co-parenting, even if you are not getting along with your ex-spouse. Kids need to be reassured by both parents that they are loved and that nothing has changed for them in school. Their friends will still be their friends.
In some cases, after a divorce, the kids may move and therefore start in a new school. This can make a difficult situation tougher. Kids are now dealing with two levels of stress: the stress of a new school and that internal thought that their parents’ divorce has somehow effected them.
Whether your kids are in a new school or staying at their old school, it will help if your kid’s teachers and principal know of the situation. They can be your eyes and ears in school to make sure your child is not having difficulty or even acting out in school as a reaction to the divorce.
Many schools now have support groups for kids of divorce. Seek out these groups. They are a great way for kids to work through their issues in a school setting and learn that even though their parents are no longer married, they are still loved and when it comes to school, nothing has changed.
It is very common for children to have behavioral issues after a divorce. There are some things you should be looking out for, including issues concentrating, signs of low self-esteem, inappropriate behavior in and out of the classroom, underachieving in the classroom or in other extra-circular activities, or significant changes in your child’s normal behaviors.
You cannot possibly be there with your kids throughout the day so have to rely on the school to let you know about behaviors as they happen and not wait until a report card or parent-teacher conference, which could be months after the behavior is noticed.
When kids are younger, or if they have developmental delays, such as autism spectrum disorder, they may not know how to express themselves. They may not even know how to express how they are feeling. This is what leads to changes in behavior or even signs of anxiety or depression. Work with your kids’ teachers and with the school’s psychologist to help your kids work through this new part of their lives.
Your kids may need more attention than usual during this transition period. Don’t just rely on their words, but watch their actions and listen to the feedback from the school. Keep a positive attitude at home regardless of what is going on with your ex. A positive and nurturing environment is important for kids to know that even though there are major changes at home, those changes are not their fault, and you are still there to support them.
In California, there are two types of contempt of court proceedings. Direct contempt, which occurs when someone misbehaves in court or behaves disrespectfully towards the courts or its proceedings, and Indirect Contempt, when a party fails to obey a judge’s orders. The repercussions can range from financial restitution to actual jail time, so parties may want to think long and hard before they decide to disobey a judge’s mandates.
First and foremost, be aware that violating a custody order is breaking the law under Penal Code section 278.5. You may not think about it this way, as criminal court, family court, and civil court can seem like entirely different animals due to differences in procedure, but an order given by a judge holds the same weight regardless of venue. If a criminal judge made an order understood to mean certain jail time if violated, a law-abiding citizen would do their best to adhere to that order…the same consideration needs to be given to a family court judge when rulings are made in matters of child custody.
The court takes into consideration a variety of factors when determining custody. If a custody agreement already exists between parents, a judge is likely to take that under advisement. It is not just the parents who can voice their desires, but also the children, depending on what age they are. Suitability for parenting is also a major consideration…Is either parent emotionally, mentally, physically, and financially capable of providing care for the child? What are the changes that have occurred in the child’s life and what are the likely changes that will happen once the dust settles on the proceedings? Lastly, what are the relationships between all the parties, parents and children included? Is there a history of abuse, neglect or animosity between the child or either parent or between former spouses? None of these are arbitrary reasons to settle a custody dispute in one way or the other.
It may not always be what a parent wants when a ruling is made. Everybody wants to believe they are the best person for the job when it comes to being a full-time parent, but if you completely remove all emotion from the equation, sometimes the painful truth is that what is in the best interest of the child, and this includes long term, is often contrary to what one parent or the other wants. But if there are circumstances that cause you concern for your child’s wellbeing, begin by consulting your attorney, so that he or she might advise you as to your legal course of action to rectify the situation. This is because you do not want to be the one in violation of the judge’s orders. Likewise, if you know your ex is in contempt, your response should be in the courts.
To prove contempt by California’s standards, one must first have a valid written court order. This means a clear and concise written order detailing exactly when, where, and for how long a child must spend with each parent. It is incredibly difficult to prove contempt on vaguely worded orders. Usually, both parties have received copies of the court order to sign or are present in court when it is given. There are occasions when one party is not able to make it to court or was not served with the written court order which can make it a challenge to prove knowledge of the order at all! And finally, the accused must have violated the court order willfully. This doesn’t mean your ex arriving late with your child due to traffic or a meeting that runs long, but rather not allowing that child to spend the agreed upon number of nights and weekends with you even though they know the terms of the written order.
At the end of the day, is it worth it to violate a court order to save yourself some money or to circumvent a custody agreement when the repercussions of those actions can mean steep fines or ultimately reduced custody for the accused? Likewise, it may want to be considered that bringing a contempt of court proceeding forward to recoup past or partial child support payments may be more expensive than what you are owed.
The ins and outs of enforcing a court order can be confusing and complicated. When it comes to something as emotional as your child’s health and well-being, it is tempting to consider fighting fire with fire, she wants to keep my kid from me, then I will just ignore the custody order too. Don’t do it! Remember, if you think your child is in danger, call the police. If think your ex is violating the custody agreement OR if you think you might be served with contempt of court actions, it is better to have an experienced attorney navigating those complex legal waters for you. There is too much at stake to improvise when it comes to the welfare of your children.
Tracy Duell-Cazes is a Certified Family Law Specialist by the California State Bar. If you having issues related to child custody or there is a contempt of court possibility around child custody, contact Tracy at the TDC Family Law at 408-267-8484.
The dissolution of a marriage is never easy, even when amicable. But when things are contentious and there are children involved, a tender situation can turn into a turbulent maelstrom of raw emotions, name calling, and conflict. You may be concerned about your ex’s parenting abilities, stressed about child support or financial issues, exhausted by conflict, or worried that you will never be able to get past all those relationship resentments that led to the divorce. But for joint custody to benefit your offspring, it is vital to for you to overcome these challenges and develop a civil working relationship with your ex to provide your children with the stability, security, and close relationships with both parents they need.
Barring serious issues such as domestic violence or substance abuse, having both parents actively involved in their children’s daily lives- or co-parenting - is the best way to continue the standard of care and close relationships with both parents that they experienced prior to the inevitable disruption that occurs with divorce. Putting aside relationship issues and hurt feelings that often accompany an acrimonious split can be easier said than done, but research suggests that the perception of a cordial relationship between co-parents can have a profound effect on the overall mental and emotional well-being of children and the incidents of depression and anxiety.
One of the things parents often lose sight of is that they are divorcing from a marriage, but NOT a family. "You're a parent first and a divorced parent second, so don't let the divorce play a significant role in your decision-making," says Montreal divorced dad Phil Clavel, the author of Dad Alone (Vehicule Press, 2003), a guide for divorced fathers. "Make decisions as a mom or dad, not as a divorced mom or dad." No matter how angry or upset you may still be about the divorce, be careful what you say when small ears may be listening. You don't want to give your children the mistaken impression that they were to blame for the breakup.
Remember that a child is a connection that you will always have, through years of graduations, birthdays, holidays, and family milestones. If you want to your children to experience those events with a sense of security and well-being, you will make every effort to maintain a good working relationship with your co-parent. AND, if you want to be a part of all those special moments, you will do your best to put aside any negative comments or expressions about your ex when around your mutual offspring. Children are smarter than you think, and they want to be allowed to love and accept both their parents.
By using only positive or at the very least neutral language about their other parent, you are effectively giving your child permission to behave naturally around both parents. No one wants to be the bad guy that talks smack about Mommy or Daddy. That way leads to withholding of invitations to special events for fear of causing undo stress during important occasions.
Hostility makes co-parents work against each other, rather than as a team towards the same goal of creating happy, healthy well-adjusted little humans. Sometimes these adversaries use their children as messengers, or they withhold financial support or visitation to punish the other parent. Rather than being a focused parent who acts for the kids' sake, it's really a way of excusing yourself from your co-parenting responsibilities. And if you consider yourself as a team of one, the loser isn’t your ex. It is your shared offspring.
Consider carefully what you hope to gain with every communication. If you don’t want to burn all your bridges and cause your kids to resent you or spend thousands on therapy, you will refrain from being rude, sarcastic, or accusatory when communicating with him/her. Above all, remember that your children's welfare must always be your priority. Contemplate the long-term effects on your children of everything you and your ex say and do, and you can create the best possible co-parenting situation.
Joint custody arrangements can be draining, maddening, and anxiety inducing. It can seem impossible to surmount all the pain and bitterness your shared history brings up. Making shared decisions, interacting with each another at drop-offs, or just speaking to someone you’d rather forget about can seem like irresolvable tasks, however, the benefit to your children is worth making the effort. Despite the challenges, though, if you want the best for them, you can and must develop an amicable working relationship with your ex for the sake of your children.
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