The good news is mask mandates are lifting and the world may finally be on its way to recovery from the COVID-19 pandemic. This means schools, daycares, and camps will begin opening their doors, and kids will finally be able to interact with others in their peer groups. Perhaps more difficult to grapple with, the return to regular custody agreements may mean a return to the tension that accompanied negotiating and maintaining those arrangements pre-pandemic.
May we suggest using this time as a jumping off point for a new beginning? We have all been cut off from so many things in everyday life that we took for granted before 2020. Grandparents have not seen their grandkids for entire growth cycles, at this point-which for some means those beloved faces have been rendered unrecognizable by the passage of time! These relationships will consequently have to be rebuilt from scratch.
Similarly, everyone’s friendships have been strained by enforced distancing. Even with web meetings and video calling, adults and kids alike are missing the reinforcement of face to face, real life interactions. These relationships foster our feelings of connection, as well as reinforce our image of ourselves.
The benefits of re-establishing a set, yet flexible routine going forward far outweigh any lingering resentments that might have existed when the agreements on custody we first hammered out. This does not just benefit the children, but both parents will also profit emotionally from being able to schedule times away from offspring. These benefits include:
A lot of discussion has been going on since the start of the pandemic as to the importance of self-care. Being trapped in a house with young kids without a break makes that idea something of a pipedream. Mental health issues have been on a pronounced increase during prolonged quarantine, weight has been gained as families eat for comfort, not to mention the riot of exposed roots and bushy beards that have cropped up on all those Zoom meetings. Celebrate your reinstated alone time by getting a haircut, massage, or pedicure. You will feel like yourself again, and that’s going to be better for your relationship with your kids in the long run,
For everyone in the family, the end of COVID restrictions means a chance to strengthen familial relationships and important friendships. If you didn’t see as much of your kids in the past year, it is finally time to make new great memories in person! This means hugs for kids, hugs for mom and dad, and hugs for Grandma and Grandpa! So much affection is conveyed by a simple touch, and so much connection is forged by shared experiences- there really is no substitute for either. If the 2020/21 years have taught us anything, it is to get those embraces in while you can as much as you can. You never know what will happen down the road.
This has truly been a harrowing time for most people in the U.S. and around the world. Whether loved ones were infected, deaths suffered, or families merely kept apart, we now find ourselves living in an altered reality. When so much has been endured, many will take this opportunity to reevaluate what is important for the happy, successful life of the family. This can mean putting aside past grievances with a former spouse in favor of keeping the kids physically and mentally healthy. Whether those past gripes still have baring or not, how they effect you can change when faced with these other issues that are in fact life altering. Kids need this routine, both as a return to normalcy and to be able to put these previous trials behind them. That custody/visitation promises are being adhered to again will be a clear green light to children to relax a little as the world goes on. Remember, cordial participation to those legal accords benefit the overall health of your offspring and you. If you really believe that is not the case, it may be time to consult with your attorney.
As we pass the one-year mark of the extreme circumstances surrounding the COVID pandemic, many relationships are feeling the strain of prolonged isolation, in addition to mental health fissures that can (and are) lead to a marked uptick in domestic violence. It is difficult to say how big of a surge is happening because many choose not to report incidents to law enforcement—this too, because of COVID.
Before we are all vaccinated, or enough of us are to facilitate the “herd immunity” that permits the population to mingle again, many are holding tight to the “bubble” of acquaintances our local government has deemed appropriate to spend time with. This diminishing of points of contact, and therefore support, is one factor, but what if the entirety of the limited people you are in contact with are related in some way to your abuser? It can often take a LOT of prodding from loved ones and friends before a person, man, or woman, will come forward even to consider leaving an abusive situation. However, signs of abuse are often subtle and hard to notice through phone calls or web meetings. Consequently, if a person is not comfortable reaching out for support, they become even more isolated-many believing that there are no options for them other than to endure the ongoing abuse. After all, where can they go if they are not living in that “bubble”? Who can they turn to if their regular emotional support has become less available? Most health care professionals received training to spot domestic abuse signs—but victims aren’t seeing their doctors in person either!
According to data collected in surveys of nearly 400 adults for ten weeks beginning in April 2020, it has been suggested that more services and communication are needed so that even front-line health and food bank workers, for example — rather than only social workers, doctors, and therapists — can spot the signs and ask clients questions about potential intimate partner violence.
“The pandemic, like other kinds of disasters, exacerbates the social and livelihood stresses and circumstances that we know lead to intimate partner violence,” says Clare Cannon, assistant professor of social and environmental justice in the Department of Human Ecology and the lead author of the study. She explained that increased social isolation during COVID-19 had created an environment where victims and aggressors, or potential aggressors in a relationship, cannot easily separate themselves from each other. The extra stress also can cause mental health issues, increasing individuals’ perceived pressure and reactions to stress through violence and other means.
In California, awareness of domestic violence as a public health crisis is on the rise, as shown by a statewide study of 1918 adults conducted by the Blue Shield of California Foundation. In this study, “9 in 10 Californians feel domestic violence is a serious problem and two-thirds consider domestic violence to be a public issue that should be addressed by all of us.”
The benefit of studies like these is that we are given a more precise understanding of what solutions can be moving forward. According to Jacquie Marroguin, director of programs at California Partnership to End Domestic Violence, “One of the things we’ve been able to do in the field is intervention and prevention. Moving forward, we know we are looking at a new normal. And that means finding out what these services look like. All of these things serve to keep us all safer and in a better place.”
What we can glean from all the data is that the distribution of knowledge can alleviate many problems. In many cases, the thing that keeps victims quiet is not so much fear of their abusers, though that is a factor, but more the perception of being alone in their maltreatment with no way out.
Marriage is ideally a partnership in which two people share the load of responsibilities- physical, emotional, or financial. Whatever agreed-upon roles these partners take on-whether it be as the primary breadwinner or the caretaker of home and kids, these spouses are supposed to be equals at the end of the day.
Divorce happens when the partnership no longer works, often because one or both partners have changed what they can or are willing to contribute to the marriage as a whole. Whether the parent giving childcare wants to return to work, someone loses a job, or the rules that governed a married couple have changed for any number of reasons, the partnership is unable to function as it did.
Just because a couple is separating does not mean that their business together has entirely concluded. How does one ensure that a former partner is pulling their agreed-upon weight when the relationship is no longer a motivation for participation?
In the previous entry we wrote in 2016, Vocational Evaluation was explained in legal and technical detail so that a client of ours might know what is entailed to pursue such a course of action. We would like to explore what might drive a person to request a spouse or former spouse's vocational evaluation.
Divorce is an inconvenience at the best of times. Still, most can agree that it can also be time-consuming, costly, and emotionally draining in the long run, particularly when contentious. When everything is finalized, you would hope that circumstances and the commitment of all parties allow for adherence to divorce agreements, especially as it pertains to spousal and child support. Unfortunately, many issues can alter a person's ability (or willingness) to contribute as they have initially agreed financially.
During the past year, many people have lost their jobs and cannot find new ones, which has made it challenging for some to keep up with alimony and child support. Unfortunately, even with most people cutting back on extracurriculars, there are still necessary expenses that must be paid.
Sometimes, a person may suspect that their ex is not making enough effort to find employment, out of spite or laziness. He or she may claim that they are unable to work due to injury or lack of qualifications in a lucrative field, but you may suspect otherwise. Maybe they do not feel like you need or deserve the agreed-upon amount of support, so they seem to be dragging their feet about providing it.
Rather than rail against your former mate, avoid anger and suspicion by consulting your legal representative, who can file for a Vocational Evaluation involving your ex.
The purpose of the Vocational Evaluation is "To assess current and/or future employability and wage-earning capacity for the court. It can include the presentation of a vocational plan outlining specific details as to how the person will return to the job market (e.g., training time, cost, appropriate programs, entry/ceiling earnings upon plan completion, and job availability)."
A Vocational Evaluation is a tool that can also be helpful to a person who is amenable to going back to work. The process allows the subject to learn more about themselves from a vocational perspective, expand occupational knowledge, and learn about different careers that fit their specific needs, aptitudes, and interests.
Essentially, the process of Vocational Evaluation can be beneficial to both parties. It allows an impartial professional to weigh in on a solution to an individual's employability without the personal experiences, biases, and motivations that might otherwise color any suggestions for resolution.
See our previous post on Vocational Evaluations.
There really is an app for everything.
California has been a No-Fault divorce state for about 50 years. Nevada had been known as the divorce capital of the United States since the early 1900s, but California was the first to pass No-Fault divorce legislation. With the passing of No-fault divorce in New York in 2010, all 50 states are now, for the most part, No-fault divorce states.
One of the main benefits of No-fault was to lower the temperature of the divorce process, make the process less expensive, less emotionally draining, and allow spouses to maintain some level of relationship so they can continue to be co-parents to their minor children.
No-fault divorces also took away the ability of a spouse to use the accusation of adultery, cruelty or abuse as a negotiating tactic, which could be embarrassing, especially if a spouse is a public figure, which in California is a distinct possibility.
No-fault attempts to keep the process civil and protect the children from additional stress or embarrassment which could come with parents being divorced.
A common theme in divorce is to do whatever is in the best interest of the children. Even after a divorce, parents of minor children still have to work together to raise the children.
Anything you can do to keep communications open with your ex-spouse and remain civil is helpful. With cell phones and mobile technology being so ubiquitous, it is no surprise there are apps that can help you manage your post-divorce life.
Co-Parenting apps range in functionality. Some apps are fairly simple shared calendars spouses can use to keep track of parenting time days, pick-ups, drop-off, and any events or activities that each parent is going to be attending or responsible for.
Other apps go deeper and are specifically designed for divorced co-parents. An app like WeParent or Talking Parents help you to not only manage schedules, but also shared documents, appointments, expenses, and custody, or Parenting time schedules. There is also a messaging function to help keep the lines of communication open.
Keeping lines of communications open is really only half of the challenge. The other half is to keep communication civil. An addon to an app called OurFamilyWizard includes a Tone Meter, which like a spellchecker on your computer will monitor your tone in messages being sent and warn you if the tone is confrontational or can possibly lead to an argument. This app also allows each parent to add accounts to other people who they would require assistance from, such as grandparents or even mediators or therapists.
Not every divorce ends with parents being able to work together. Every case is unique and every case has its own details that need to be taken into consideration. However, when spouses are able to make the transition to co-parents, it is helpful to be able to use current technology to make everyone’s life that much easier. The internet is for more than cat videos and Bernie Sanders memes.
Use the internet how it was designed to be used: to make communication easier, open, and stress-free.
If you are having suicidal thoughts, contact the National Suicide Prevention Lifeline at 1-800-273-8255 for support and assistance from a trained counselor.
If you or a loved one are in immediate danger, call 911.
It is a common thing to hear that a couple has stayed in an unhappy marriage “for the children.” The ironic part is that of all age groups, when it comes to divorce, young children often have it easier than older children and even adult children.
Couples with teenagers or adult children have the attitude that adults and teens are more mature so they can handle difficult life events better than a young child. The truth is that adult children of a divorcing couple are often devastated by the news and can affect them to the level of it impacting their own lives and causing trust issues that can eventually even lead to their own divorce. For adults, the revelation of their parent’s divorce is a tough pill to swallow. As adults, a divorcing parent might even share more information regarding the decision to divorce. This can lead to a bombshell of a revelation such as, “your father and I have not gotten along for the last 20 years.”
They may even tell the adult child they stayed together for the sake of their younger self. This will cause the adult child to go back to a life previously well remembered and think that their entire life was based on a lie. Since the adult was told the parents stayed together “for the sake of the children” the adult may even develop a deep sense of responsibility for contributing to their parent’s unhappy life.
When things are not good at home where there are young children, parents will try to shield their kids from the truth of their reality. Even if parents do divorce, the news is brought to the young child in a very careful manner filled with reassurances of love for them, and that things will be fine and it is most definitely not their fault. This same protection is often not used for teenagers, and rarely used for adults.
While we have discussed the ramifications of divorce on adult children in the past, we want to take a look at the impact of divorce on teenagers. Even in the best of circumstances, the teenage years is an extremely difficult and awkward time. Teens are dealing with school, being forced to make decisions about college and courses which may decide the path their lives will take. They are also dealing with the everyday issues of being a teen. Things like dating, trying to figure out who they are, and dealing with puberty and raging hormones, and all the changes associated with growing up can put a level of stress and pressure on a teenager that is internally unbearable.
As a teenager, parents will look at their children as being more mature and will discuss their issues, such as a pending divorce in a more open way thinking their age and maturity will allow them to take this unpleasant news in stride.
In actuality, about 25% of teenagers will experience physical or emotional problems related to the changes caused by divorce.
As a parent, it is important to recognize the signs that your teenage children are not dealing with your divorce as well as you would have hoped.
Some of these signs may include:
For some teenagers the news of their parent’s divorce might be the proverbial bridge too far. The news can cause an emotional break and can even lead to suicidal ideations and even attempts to take their own lives.
The best way to deal with your teenager during a divorce is to remember what it was like to be a teenager yourself. You do not want to talk to your teen as if they are a toddler, but you also do not want to give them the raw, unfiltered details of your failed marriage. Children of any age still require reassurance and still require some level of protection from the full truth about their parents and their flaws.
Teenagers might act out and it is important to maintain a level of discipline and not let them run rampant because you feel they deserve to let off steam from hearing bad news. Teenagers still need, and even desire structure in their lives. This does not change because you have decided to get divorced. That structure is even more important.
Be present for your children. Talk with them and ask them about how they feel and take a genuine interest in their answers and their interests. Don’t dismiss their feelings, because even if they do not fully understand the situation, being dismissed in such a way can lead to additional stress and anxiety and lead them to think you are not interested in their feelings.
Encourage your teenager to speak to a counselor at school or enlist the professional help of a therapist. Teenagers are going to want to talk to their friends. This is an important part if their development, but if the only voices they are hearing are that of other teens who have potentially made their own poor decisions, it could lead to more serious issues down the road.
Nobody ever gets married with the vision of a future filled with divorce, and no one ever has children with the idea that they will not legally be able to spend every moments of those kids’ life with them, and that is how it should be. We can only hope that everyone who gets married and has children does so with the best of intentions, and if divorce occurs, we can only hope that all parties make plans to handle it with as much grace and optimism. What no one could ever have imagined in their wildest dreams was how the Global Pandemic would disrupt all those well-intentioned plans.
As we are still in the thick of it, we have missed almost all the big holidays with our extended families, which is hard enough. Christmas without Grandma’s hugs seems a travesty! But what if stay at home orders or quarantine prevents parents from seeing their kids!? Sure, it’s painful for the divorced parents, but without care taken-this time can cause damage to those relationships with our kids we work so hard to create and maintain.
Fortunately, this didn’t happen before we were connected by the internet, personal computers, and smart phones that utilize the technology of both. Imagine a toddler going nine months without hearing his mom or dad’s voice had this happened “back in the day”, like even 15 years ago! The kid would have trouble recognizing the necessarily absentee parent, and that parent would have missed so many milestones of growth! With so many negatives associated with social media and internet obsession, the silver lining is that at LAST those things are finally making themselves useful by providing real, meaningful connection between families.
Most parents have had to be at least partially responsible for the education of the kids while school was mandatorily closed. Because of that, everyone has really had to step up to the plate about learning to use video-calling and teleconferencing. A lot of school systems have even provided the kids with the tablets or laptops to do this with! Once you learn how to connect your kids with online classes and set up learning programs, it becomes so much easier to set up video calling between dearly missed loved ones—or parents that aren’t able to see their kids during the pandemic.
This needs to be a real priority for the custodial parent, and it can seem rough on top of all the other stuff you are being burdened during the global crises. What, you have to keep the kids alive, healthy, fed AND educated plus find time in the day to make sure your ex can facetime or Zoom them? This without scheduling in shower and bathroom breaks for yourself? The answer, for everyone’s sake is yes! If you want healthy kids with stable relationships and an appreciation of family, then both parents need to get on board the virtual train on the regular.
No one needs to go into how valuable setting up a structured routine is for children, because we have already done so in blogs past. Parenting experts agree that since the routine of school and custody, and playdates, and after school activities have ground to a halt, kids are floundering in the “new normal” to find acceptable ways to be. Setting up education time and play time is certainly important but establishing a regular call time for face-to-face talks with a parent they are not seeing enough of is another way of establishing that routine. Make it clear they can call at any time—but that these regular video appointments will be happening regardless, even if it’s just to check in, every day. It will become something everyone can look forward to, including parent on duty. That could be the time they schedule that shower!
This is also a useful tool around the holidays, where we idealize the concept of familial togetherness. In years past, relatives from out of the area would call on the day of the holiday and the phone would get passed around so that everyone would get a chance to say a few words. NOW, literally everyone and their uncle can join one of these video calls/conferences and enjoy a toast and a story while looking at the faces of their loved ones. It has been made so easy, that even grandma can do it! By being creative, you might be able to arrange for everyone to open presents at the same time or enjoy the same cookies so that you can make new memories that aren’t about how far apart we are—but what we can share together because technology has allowed us to.
Custody agreements between parents remains a sensitive subject at the best of times. You would think with something like a catastrophic event like a world wide pandemic, ex-partners should be able to put differences aside in favor of keeping everyone safe, but alas…some differences of opinion on parenting aren’t so easily overcome in this uncharted territory.
If you are a parent with a custody agreement in place, depending on where you are living in California (and the country), you are expected to keep to that custody arrangement…even if there is still a shelter-in-place order in effect there. This means that without proof of danger to you, or your children, you must still make the trip back and forth with the kids from home to home during a time when many people aren’t even comfortable going to the market or the doctor. Usually, exes who communicate well will arrange an alternative between themselves, wherein one parent takes sole custody of the children while the other maintains regular contact through scheduled Zoom meetings and phone calls until the crisis has passed. In this case, everything is easier than the alternative.
What happens when parents do not see eye to eye on what is the safest arrangement for the kids AND parents, and any extended family that may be in residence at either domicile? This can mean a range of things from not observing social distancing while at one parent’s residence, or not being made to wear masks when the situation calls for it. More concerning, what if one parent is more likely to be exposed to the COVID virus, increasing the possibility of spreading the disease to kids, former spouses, or any live-in relatives?
Firstly, we suggest not getting into a shouting match where the kids might overhear. Contact an attorney or mediator in your area to try to arrange parameters that everyone can adhere to, so that all stay safe. Sometimes, just having impartial parties hash out the details of what is reasonable is enough to make the solution clear without emotional reactions muddying the waters.
If mediation is not an option or proves unsuccessful, you may have to go in front of a judge, probably by video conference. This can be tricky, again, depending on where you live. Some courts, like the state district court in Davidson County, Tennessee state, “that the “primary residential parent” should take custody of the child within four hours of a shelter-in-place order and retain sole custody until the shelter-in-place order is lifted.” That is easy to interpret and enforce. However other courts in other districts are more stringent in their obedience to the original ruling.
For example, the Santa Clara County Superior Court Family Division issued a Notice Child Custody and Visitation Policies During COVID-19 Public Health Emergency which states “The COVID-19 pandemic is not, by itself, a reason to deny visitation or parenting time. Nor does the requirement to shelter-at-home justify, by itself, the denial of visitation or parenting time. Unless otherwise ordered by the court, parents are considered fit to care for their children and make decisions regarding day-to-day aspects of parenting while the children are in their care. Parents are expected to follow the most current public health orders and directives regarding social distancing and sanitation-related measures, such as frequent hand washing.”
An example that may allow for a temporary change of the custody order, is if one parent is following national guidelines for COVID safety at home to keep a child safe that is high-risk, while the other parent can be shown to have been exposed to someone with confirmed infection, a judge could advise it is in that child’s best interests to temporarily switch or postpone visits until the proper quarantine time has passed. This is also the case if there is another individual in residence that may pose a risk or infection spread, like an aging grandparent who has recently been in a retirement community.
Most courthouses in the state of California were closed early during the pandemic and are beginning to reopen gradually, but you can still consult your attorney to find out if family courts in your area are holding emergency hearings by video or phone conferencing. Individual court systems will be adjusting policies and scheduling as the pandemic progresses.
Here we are, September again…time for school and the return to regularly scheduled programing…with a twist. The Covid 19 Pandemic has changed the way parents are doing custody, because it has already changed the way children are attending school and every other aspect of childhood as we know it. From learning math to attending playdates, parents must adjust how the arrangements that were previously made that worked, for possibly years, will work in the current times.
Most schools are operating remotely at least part time across the country. This means kids are going to have to stay with someone when they are not in school. Former spouses are being forced to re-evaluate their work schedules and arrangements. Many businesses have moved towards a work from home model to keep their employees safe from infection, and this can work to the benefit for those with kids.
As with all custody adjustments, this will require cool heads and communication. Even though the school year has already begun, the process for educating children is still fluid throughout the country as infection rates fluctuate. The sooner you set up a virtual teleconference between all concerned parties, namely ex-spouses, and children old enough to contribute, the sooner a schedule can be hashed out to everyone’s satisfaction.
Obviously, the hope is that both parents are still working during this time when many Americans have lost their jobs. If one parent is between jobs, it may seem easier to have that parent in charge of the remote learning aspect of childcare, while the other takes the kids at other times. It can really help if you consider yourselves as part of a team in this unprecedented time in history. In fact, many formerly married couples have learned to put aside previous animosities in the face of this new reality. Issues that may have caused explosive arguments just last year may seem petty and unimportant when compared with the real-life struggles many across the world are being faced with. Although a marriage has ended, you must still operate as some sort of family, working together to make sure that you all remain healthy and productive.
Parents responsible for supervising remote learning do not have it easy. Most programs demand some sort of direction on the part of the parent, a prospect that can be overwhelming if that parent is also getting paid to perform their jobs from home. Children are easily distracted and need to be reminded to stay on task, which makes concentrating on your own work extra challenging. The parent that signs up for that must be prepared to have patience.
Also to consider is whether a parent that works outside the home may work in an environment that exposes them to huge masses of people possibly infected with COVID, such as in healthcare or mass transit. Not everyone is able to work from home, and the greater the chance of being exposed, the more all parties may want to consider adjusting custody to minimize exposure for the children.
Everything has changed since the pandemic hit, not the least of which is how we have to parent while trying our hardest to keep the ones we love safe. Hopefully, we can all agree to do what is best for the children, despite past arguments, or how this new reality may inconvenience us.
Even though California is a community property state, not all assets owned by each spouse is marital property. If something is not marital property, then it is not included in the accounting done to determine the assets to be divided during a divorce. If a spouse owns the property before getting married, that that might not be considered a marital asset. Marital assets are any assets, or conversely, debt, accumulated during a marriage.
There are cases when property that is acquired during the marriage might fall outside of the realm of marital assets. Inherited property is generally considered to be wholly owned by the spouse that inherited it. Also, if a spouse acquires a property, the couple may sign an agreement to exclude the property as a marital asset.
You MAY notice the language used above. "MIGHT not be considered" and "MIGHT fall outside of the realm." Why do we use such unsure language? Well, it is because there are times when non-marital property could be argued to be a marital asset.
Let's look at two examples. The first example is real estate. When this couple gets married, the wife already owns a vacation home. It is not used as the couple's primary residence. After they marry, they buy another home together. The second example is a business owned by the husband. He started the business years before the marriage and is the sole owner and employee of the business.
At the start, they agree that the business belongs to the husband, and the vacation home belongs to the wife.
For the first few years of the marriage, the husband works the business, and the wife also holds a job, and everything is going along great. After a few years, the business starts to grow and outpaces the income of the wife. They decide that the wife will put her career on hold to have kids and help with the business since it is now more than the husband can handle on his own.
The wife now begins to help with writing proposals, making phone calls, keeping the books, and even meeting with clients when the husband is too busy. Thanks to the efforts of the wife, the business booms. They are now able to hire additional people to work at the business.
Thanks to the success of the business, the couple can start to use the vacation home. Well, the vacation home needs some work since it has not been used. The husband starts to make repairs and updates to the home. The husband hires contractors, paid for with the family's money, and makes decisions the vacation home. The home becomes a true second home to the growing family with a successful business.
As it happens, the marriage doesn't survive, and the couple opts for divorce. The original agreement between the couple is that the business belonged to the husband, and the vacation home belonged to the wife. But, as the years went on, did this remain true?
It could be argued that both the business and the vacation home should now be included as marital assets. The wife placed her career on hold to take care of the family and worked to improve the business. Without her help and input, the business would not have grown or succeeded as it had.
Due to the success of the business, the vacation home became an essential part of the family, and the husband used profits from the business to repair and upgrade the home, making decisions on the best way to proceed.
In both cases, even though the home and business started separate, each became intermingled with each other. Money brought in to the family through the business paid for updates to the home, and as they had the ability, they used the vacation home for several months of the year, where the husband would then run the business.
While the law says that separate property can be excluded from the marital assets, to keep them separate, they have to be truly separate. Once assets are intermingled with marital assents, arguments can be made that they are now marital assets despite what the couple might have verbally, or even contractually agreed upon years before when the marriage was brand new.
If you are getting divorced, and there are questions about what is or is not a marital asset, call the Law Office of Tracy Duell-Cazes, known as TDC Family Law, for a free 45-minute consultation. Free consultations are available to new potential clients, and there is no obligation.
Tracy Duell-Cazes is a certified family law specialist, as recognized by the Board of Legal Specialization of the State Bar of California. You can reach Tracy at 408-267-8484.
First, we must define what means to be a fiduciary. A fiduciary is a person who has a legal or ethical relationship of trust. All attorneys are fiduciaries and have a trust relationship with their clients. That means that an attorney always must act in the best interest of their clients in all cases. When a person hires an attorney to represent them in legal matters, they know that their lawyer is always working toward their best interest. While this is vital in all legal matters, one of the cornerstones of our society is that everyone is entitled to a defense. In criminal matters, if attorneys did not have a fiduciary relationship with their clients, the system would break down with accused individuals never sure if their lawyer is working for them or against them.
The process is complicated and in so many ways has to do with money and finances. To properly divide assets, there has to be a proper accounting of everything that each of the spouses own. There must be a determination regarding separate property, and if it is actually separate or if it has been commingled to the point that it is now marital property. There is also the matter of spousal support and, if applicable, child support.
To get a proper gauge of all the assets, each of the spouses have a fiduciary responsibility to be completely open and honest regarding assets, property, money, and other finances. There are several parts of the law that discuss this fiduciary relationship, but they mostly have to do with “full and accurate disclosure of all assets and debts and other liabilities “in which one of both parties may have an interest.”
As with our criminal case example, if there is no fiduciary relationship, the courts would never be able to be sure that they are making decisions based on the most accurate information available, and the system breaks down.
The full scope and breadth of the fiduciary relationship is very complex and will be explained as we proceed through your divorce, though you should be aware prior to proceeding that you should be ready to disclose all of your finances. If there are any exceptions or separate property that should be excluded or you have a premarital agreement that excludes certain property from marital assets, that information should be brought to our attention as well.
If you have any questions about the fiduciary responsibility you have to your spouse, please call us for a free consultation.