When a schedule cannot be reached by agreement, the case goes to court.  Then the judge gets to decide.  For the parents the decision seems pretty simple — hey judge give me what I want because I say this is what is best.  I can assure you that the process the court goes through is much more complicated, particularly when faced with competing arguments that may both have merit.  Want an example of how difficult judging family law cases can be, consider this case out of Santa Clara County.

Melissa and Steve got married.  Melissa and Steve had two kids.  In 2002 Melissa and Steve broke up and filed for divorce.  Melissa got restraining orders against Steve and court orders giving her custody of the kids.  In 2003 Melissa and Steve got back together, and pretty much forgot about the divorce action they had pending in court.  In 2008 they broke up again, and the court proceedings fired up again.  Read on to see what the poor kids were put through.

1.  In March of 2008 the kids were again put in Melissa’s custody after she alleged that Steve had made death threats against her.  These arguments prevailed over Steve’s argument that Melissa had made death threats against him, abused alcohol and drugs, and kept a loaded gun in her home where their children lived.

2.  In August of 2008 the children were removed from Melissa and put into Steve’s custody after he convinced the court that Melissa had a serious drug problem, was neglecting the children and was alienating the children from Steve.

3.  In 2010 Melissa went back to court and made the following arguments against Steve:

that Steve was a murderer, that she had seen him commit murder, that he had admitted to being a “hit-man,” and that he had threatened to kill her on several occasions. She claimed Steve belonged to the Hell’s Angels gang and was a drug dealer who had previously been incarcerated. In support of her contention that Steve was a dangerous man who posed a risk to the children, she provided documentation regarding the murder charges which had been brought against Steve, of which he was acquitted. Melissa also listed a litany of instances in which she characterized Steve’s conduct as abusive toward the children.

The court ruled against Melissa (allowing us to conclude that her character and parenting must have been even worse than Steve’s!).

4.  In 2011 Steve gets shot and killed while attending the funeral of a fellow Hell’s Angel.

Technically the case of Melissa and Steve was about family law procedure when one of the parties dies in the middle of the case.  In this case, with Steve’s death the children were returned to the custody of their mother.  I mention this case to demonstrate how challenging child custody cases can be.  How in the world can a court find any sort of best interest when children are in a situation like this?  Please click here to read the unpublished Tausan opinion.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

The college-educated middle class that embraced the sexual revolution is now leading the way back into marriage. And this group has more stable families because of the combination of two qualities hard for everyone else to find. The first is a flexible approach to family roles. Men who help with the children and women with six-figure incomes are very much in demand. The second is good jobs: Over the last 30 years, the number of men with stable employment has stayed even with women only at the top. The result is remaking the definition of domestic success.

In an article entitled The Marrying Kind: How Class Shapes Our Search For A Soulmate, Huffington Post columnists June Carbone and Naomi Cahn explore the new norm in picking a spouse, and how new mores may be producing more stable, longer lasting marriages.

Please click here for a very interesting read.

For more information on marriage and divorce in California, please click here to visit Hardinglaw.com.

#traditionalmarriage #newmarriage #marriage rituals #divorcestatistics

Please visit Hardinglaw.com for more information on John Harding and Harding & Associates Family Law.

Of course, please visit Hardinglaw.com for more information on California family law.

Divorce is often the most emotional time in a person’s life. It is also when permanent, life-altering financial decisions must be made. If you are in this situation then, naturally, you may be experiencing fear of the unknown. Fortunately, education helps alleviate that fear.

By Sharon Numerow

Here are the 7 most important factors to remember when negotiating a divorce settlement:

1. Money will Almost Always Become an Issue in Divorce

You are probably thinking: “Is that supposed to be a secret? I knew that already!” Yes, that may be so — but you may also be underestimating how much of an issue it will be. Even with the promise of fairness from your ex-spouse, or of a deal that sounds too good to be true, you should still do your homework. Remember not to make offers during negotiations out of feelings of guilt and “give away the farm.” Seek out the appropriate professional and information, so that years from now you do not feel badly that you agreed to a settlement too quickly. You also want to budget, budget, budget! You will be much more confident in your decisions if you prepare an estimate of a monthly budget (required in some provinces and states) to determine if you can afford to retain certain assets.

2. A 50/50 Division of Property is Not Always Equal

When I began to use this phrase, my teenage daughter reminded me that in school, when children are taught about fractions and things are divided 50/50, it is always equal! I concurred, but explained that in the division of a couples’ matrimonial property, this fact is not always the case. For example, a $400,000 house does not always equal $400,000 in stocks, or $400,000 in rental or recreational property. There are tax implications affecting many decisions, which may affect many of the assets and their values very differently. Overlooking this fact may mean that you get less property than you actually should, or at the very least, you may end up with future tax hits that you were not prepared for or even aware of. The housing market and stock market are just a couple of examples that in the future may affect the property you choose to retain and in turn your future personal net worth.

3. “Divorce the House, Before the Spouse”

Decisions about retaining the family’s largest asset should not be an emotional one. As difficult as it sounds, this decision should be made strictly by considering the responsibility and the dollars and cents involved. You must find out before signing the legal agreement whether you can qualify for a mortgage on your own. Many people believe that a lender will simply remove their ex-spouse’s name — but that is usually not the case! Speak to a lender as soon as possible to find out if you can qualify and (if so) how much you can qualify for. If you do qualify, make sure you ask yourself these questions:

Can you afford the monthly cost to service this debt? What about the costs of maintaining the home? Things like, utilities, property taxes, and unexpected maintenance such as a new roof? Do you have the time and energy to maintain a home? Will you be left with 25 years of ‘stuff’ to deal with on your own? Are you prepared to mow the lawn, and clean your home?

4. Understand the “True” Value of Your Investments and Retirement Assets

Get advice on the market risk of your investments. Will you be satisfied if you are the partner left with all of the high risk investments, and then the market takes a turn for the worse? Will you be satisfied if you did not retain 50% of the private investment that today is worth little — but can be extremely lucrative down the road? If you are dividing a portfolio of investments, it is extremely crucial to understand the make-up of these assets, and the background on some of these stocks and funds, before making a decision. There are hidden or unknown costs associated with many types of investments. If you decide to dispose of them, you must be aware of this fact. A surprise that you owe the ‘tax man’ money down the road will likely be very stressful. You may also need to be educated on stock options and other types of employee incentive plans that you or your spouse may have. These types of plans have become more prominent in recent years, as more employers have chosen to offer them to employees instead of raises. Options that may be ‘under water’ today may increase significantly in value down the road as the economy slowly improves.

5. Ensure that Pensions and Businesses are Valued Properly

Next to your home, a pension — especially for an employee that has been with his or her company long term — can often be one of the most valuable assets that a couple has. Certain types of pensions may need to be valued by a trained actuary in order to determine its true value. Failure to do this may mean that you miss out on a great deal of money being included in your matrimonial property total. Remember that the value on the annual statement of a pension is not always the correct one to use. It is also necessary for the spouse with the pension to look into the regulations of that pension, in order to determine the amount that the spouse is entitled to receive, and in what manner. For self-employed spouses, the value of their business is often included in valuing a couples’ matrimonial property. The valuation of a business can be very complicated, and for many it is absolutely necessary to consult with a Chartered Business Valuator.

6. Ensure that the Payor of Child and/or Spousal Support is Life Insured

In the event of a payor’s untimely death, it is necessary to have life insurance in place to fulfill future support obligations. Imagine if you have young children and are receiving child support, or if you are in your 50s or 60s and receiving spousal support (or alimony), and something happens to your ex-spouse (the payor)? In such cases, you will suddenly be without that income, which may be financially devastating.

7. Many Divorce Decisions have Significant Implications for Your Tax Return

There are many available claims on your tax return, especially with respect to children, which can save you significant tax dollars. The rules for most of these are complicated — especially as they apply to separated parents. However, when applicable, the tax savings can be significant. Do your research before signing your legal agreement, and have a professional complete at least your first tax return after legalizing your financial settlement. These are the 7 most important factors to remember when negotiating a settlement. Treat the financial decisions as a business deal, and educate yourself on the facts so that you will be an empowered decision-maker, and in control of your financial future. Also keep in mind that divorce is one of the few times in life when we often do not listen to our intuition, although it is the most important time to do so!

Sharon Numerow is a Certified Divorce Financial Analyst™ and the founder and owner of Alberta Divorce Finances in Calgary. She is also the proprietor of a personal income tax return preparation business. She has worked with clients and lawyers for more than 10 years consulting on divorce finances. She can be reached at 403 703-7176 or Sharon@AlbertaDivorceFinances.com. View the firm profile here and firm website here http://www.albertadivorcefinances.com/.

Please visit Hardinglaw.com for more information on financial planning during divorce.

#divorcefinancialplaning #hardingandassociates #johnharding

A parenting plan might contain some or all of the following elements:

• The parents’ philosophy and attitudes regarding their care of the children
• An acknowledgment of responsibilities for the welfare of the children
• Daily decisions and more major ones that require consultation
• Where everyone will live
• What time or times the children will spend with each parent, grandparents, and so on
• The importance of maintaining relationships with parents and others
• How the travel between homes will occur
• The schools, school activities, and extracurricular programs
• Arrangements for vacations, holidays, and other special days
• Special needs regarding medication, education, clothes, or equipment
• Financial arrangements, including extra expenses
• Communication between the two parents and sharing information about the children
• Communication between the parents and the children via telephone, email, and so on
• Appointment of a mediator/coordinator to deal with disputes
• A specified time for a review of the plan
• Additional agreements, for example, not to discuss money in the presence of children, and so on

Collaborative Parenting Plans

This type of plan will work for separated parents who can treat one another with decency and sensitivity, who acknowledge the importance of both parents to the children, and who work hard to foster all the relationships that are important for their children. They talk to one another regularly about the children. Their children’s friends are welcome in either home. In some cases they come together for Christmas, birthday parties, and the like. Many separated parents are doing this!

No matter how well you are getting on with your ex-partner, a written parenting plan is still a valuable asset. Even in the most amicable of separated households, misunderstandings arise. People (and children) are different and sometimes difficult. Circumstances change; unexpected things happen. The separated family is a special family and calls for special effort. At times it’s easy for the best of parents to lose heart, to feel exhausted, to wonder if their efforts are worthwhile.

A well-constructed and principled parenting plan can help you through tough times. You can take it out and read it again. You can discuss it with your ex-partner or your children. It will help you renew your commitment and maybe your enthusiasm. A key feature of a collaborative parenting plan is the commitment of both parents to consult one another on issues that affect the children, their welfare and development.

Q: I’m finding what to do about the children’s arrangements incredibly difficult. I feel so upset for them. I don’t trust their father to do the right thing by them. I don’t want to have anything to do with him. I don’t want them staying overnight with his girlfriend there, and I want him to feed them properly and stick to sensible bedtimes. Can I have this in a parenting plan?

A: You can have very specific details in your plan, and so can he. There’s no limit to what you can have. If you feel he’s out of touch with their routines, inform him, perhaps with the help of a mediator if talking with him is uncomfortable for you. You could also write lists for him, as appendices to a plan. While everyone gets used to the separation, you could suggest he spend his time with them without his partner. Try to approach the creation of your plan with an open mind, inviting him to draw up as many clauses as he wants. Work out what issues you want to be consulted on, and aim to set out the arrangements very specifically so you don’t need to have much contact with him. You may be well advised to have a neutral third party as a pick-up and drop-off person, so you don’t have to see him, and the children don’t sense your discomfort.

Parallel Parenting Plans

For parents who find it impossible to get along, parallel parenting can work. That means each household has its own set of rules, and the parents have a minimum of contact and communication. One thing they agree on is the children have two parents and they are going to spend some time in each household according to a determined schedule.

The essential ingredient in such a plan is the commitment of both parents to stick to the terms of their agreement. Moreover, the plan will need to be extremely detailed to cope not only with the children’s day-to-day timetables, but also to foresee and deal with expected changes and hiccups.

Where there is ongoing hostility between separated parents and little or no communication, a written parenting plan is essential. With it, and with a firm commitment to abide by the rules, shared parenting can still work. Without it, misunderstandings and confusion will inevitably arise and children will suffer.

Sure, there will be problems, even after implementing the most carefully structured parenting plan. Life’s like that! It’s never smooth or uneventful, whether your family is intact or separated.

This article has been edited and excerpted with permission from “Shared Parenting: Raising Your Children Cooperatively After Separation”. © 2009 by Jill Burrett and Michael Green, Celestial Arts, an imprint of Ten Speed Press, a division of the Crown Publishing Group, Berkeley, CA. You can purchase the book at amazon.com or randomhouse.ca

For more information on child custody, child visitation, and parenting plans please visit Hardinglaw.com

#childcustody #childvisitation #parenting plans #divorce

This tight focus could possibly allow the U.S. Supreme Court to punt on having to decide if a same sex marriage ban would be unconstitutional across the country. If the Supreme Court denies review of today’s ruling, Prop 8 would be dead, and same sex marriage would become legal in California, but not automatically spread beyond California.  That just seems too easy given the political debate on the same-sex marriage issue, but it is possible.

Here is the kicker language in my opinion.  The court writes:

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships.  Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.

In support the court asserts heavy reliance on a 1996 Supreme Court case called Romers v. Evans.  In that case the Supreme Court threw out a Colorado constitutional amendment that banned regulations prohibiting discrimination based on sexual identity.  The 9th Circuit opinion today hits again, and again, at the Romers precedent.

This little paradox is gonna tie a knot in the robe of the Roberts-Scalia-Thomas-Alito bloc at the Supreme Court, and should provide for some entertaining court watching.  Then again maybe not.  I suppose the 4 COIs (conservative original intentors) could write that there were no homosexuals at the time the Constitution was drafted, and therefore the document does not contemplate the protection of such a class of people?  Victory Prop 8.  However, that seems a bit boring to me, and without any legal reasoning.  I thing the Supreme Court is supposed to be more complicated than that?

There is another interesting twist to the case.  9th Circuit Associate Justice N. Randy Smith writes a dissent wherein he does believe that Prop 8 is rationally related to a legitimate governmental interest.  This dissent could be an analysis that the 4 COIs run with.  The sub-plot is that Justice Smith, who earned his undergraduate and law degrees from Brigham Young University, may be a Mormon.  And the Mormon Church was a major financial supporter of the Prop 8 campaign.  Just as conservative pundits criticized District Court Judge Vaughn Walker for being gay, I am sure the liberal pundits are going to attack Justice Smith’s Mormonism.

I am not a constitutional law professor, and can only speak as an amateur Supreme Court observer, but this does seem to be pretty intriguing stuff!  I am looking forward to seeing how it gets analyzed by the experts and how it plays out with the Supremes.

Please click here to read the 9th Circuit opinion.

Please be sure to visit Hardinglaw.com for more information on marriage and divorce, same-sex or otherwise….

April 5, 2012

• Introduction to Divorce Law
• Oakland, California
  LawReview CLE

April 24, 2012

• Introduction to Divorce Law
• San Diego, California
  LawReview CLE

May 1, 2012

• Introduction to Divorce Law
• Anaheim, California
  LawReview CLE

May 3, 2012

• Introduction to Divorce Law
• Pasadena, California
  LawReview CLE

May 18 – 2012

• 36th Annual Family Law Symposium
• Napa, California, Silverado Resort
  American Academy of Matrimonial Lawyers,
  Northern California Chapter

You may be angry and your first response is “sue the bastard.” Stop, take a breath, and keep reading. Before you proceed, your lawyer will assess your particular situation and discuss your options. If you have a choice, going to court should be the last resort for a divorcing couple. A lawsuit is never fun but in divorce situations it’s a gruelling, time-consuming, emotionally exhausting and expensive process for both parties. Sometimes a disgruntled spouse will want to go to court just to hear a judge say that they were right and their spouse was wrong. However, this is not a valid reason for going to court. First of all, it’s not likely to happen. The judge may not say what you want him or her to say. The judge’s role is to resolve issues in an orderly manner when the parties cannot. Second, the process could run you dry – emotionally and financially. Third, a spouse is more likely to cooperate with something that he or she has agreed to than to cooperate with an order imposed by the court with which the person does not agree.

When you separate, it is important to remember that the lines of trust have changed. You and your spouse now sit on opposite sides of the table with different goals than those you shared while married. One spouse may have difficulty dealing with the reality that the other spouse is on the opposing side. A spouse may show a side the other has never seen before – becoming highly uncooperative and refusing to disclose relevant matters such as financial statements. The conflict can escalate, and in the worst case scenario a paper chase can begin that will stretch for several years. In the end, you will have made difficult concessions, paid endless legal bills, and delayed the healing process that is part of the process of divorce.

Negotiating a Settlement Is Better For All

The outcome is much better for everyone if a settlement can be reached out of court, but it usually requires negotiation, which is part skill and part art. If your lawyer is negotiating for you, let your lawyer do the job for you. A professional in family law practice has the experience in these matters that can help you achieve your goals. Just be clear in expressing beforehand what it is that you want and what solutions would be most workable for you. You may not get everything the way you would like it, but if you cloud the discussions with low priority matters, you could lose on those things that are most important to you.

You are not likely to get all that you want but there are strategies that can help you negotiate the best possible settlement:

• Set your priorities.
• Know what you are willing to give, where you are willing to be flexible, and where you are not prepared to move at all.
• Be realistic. Consider the Big Picture when you must give and take.
• If your spouse responds with personal attacks, do your very best to stay focused on your priorities. Ignore any unpleasantness and keep telling yourself that your spouse’s attacks are just “noise.” They do not contribute anything to the process of reaching a ¬settlement.
• If your spouse makes an offer to settle, think it over carefully. Discuss your options in private with your lawyer.
• If you negotiate your own settlement, get legal advice before you do or sign anything.
• Take a deep breath.

We’ve mentioned taking a deep breath before. Negotiating a settlement and agreeing to the outcome is something that you will have to live with from this time forward. You need to keep as level headed as possible throughout a very difficult time. Negotiating a settlement is not a time for rash or spiteful acts. If tempers erupt and harsh words are spoken, take a deep breath and do the proverbial count to ten. It will help calm you. Breathing deeply is also a constant reminder that no matter what is happening, you are breathing and you are alive. You will get through this difficult time and your life will get better.

This article has been edited and excerpted from the Book To Have and To Hold with permission by McGraw-Hill Ryerson,Copyright ©2010 by Kathleen Aldridge and Nancy Jane Bullis. Katleen Aldridge, BA, B Ed, is an experienced educator, writer and editor of business and technical publications, she has co-authored several best-selling books, including the recently published Wired for Small Business Success. Nancy Bullis is a Toronto-based lawyer who provides writing, technical review and editorial services for several highly successful financial publications.

Other articles by Kathleen Aldridge and Nancy Jane Bullis, LL.B.

• How Can You Control Your Legal Costs?

For more in formation on divorce, family law, and California law please visit Hardinglaw.com

#reconciliation #mediation #negotiation #litigation #divorce #familylaw #californiadivorce

A few months ago, we invited readers and our website visitors to submit their divorce-inspired stories to our divorce blog. Our goal was to help readers express themselves, heal some of their wounds, and connect with members of our community who are traveling on the path of divorce. Below, we’re pleased to feature some selected written works

The Wisdom of a Grandmother
By Dana E. M.

… Our divorce was finalized after two years of pure hatred, name calling, playing “This Is Mine, You Can Keep That”… Fast forward another year when I was out visiting my 90 year-old grandmother in rural Mississippi… I was griping about some stupid thing my ex- husband had done when she looked at me and said, “Why do you hate him so much? You were best friends until you divorced.” “WELL”, I began, “He did this, and this, and this… and I CAN’T STAND HIM.” Pitifully, she just shook her head and looked at me and said “You’re divorced. You don’t love him. He doesn’t love you. But you have a small child together and you need to stop acting so selfish and start acting like parents. Forgive him and move on.” Ok. Let me tell you that when your grandmother (who normally has you  on a pedestal and thinks you can doabsolutely nothing wrong) begins tonotice that you’ve become nothing more than a griping whiner, you have to really look at yourself.

So upon returning home, I called my ex and we decided we needed to try to work out his – I mean our “communication” issues… Although we had never argued in front of our son, we realized that if we wanted to bring up a good, well rounded child, we would need to stop the constant complaining and arguing. The plan worked…

We are going to be celebrating our son’s birthday soon and he has decided on a “Paintball Party,” where all of the guests have guns filled with little balls of paint, and you run around shooting paint at each other… Although we are good friends now, my ex-husband and I will both be participating in the party and I cannot wait to get out on that field and hunt him down. I mean, seriously, friend or not, where else can you shoot your ex-husband and get away with it?

A Chance to Do Right
By Jason W.

… I am a father of two bea(u)tiful children: my daughter 2 years and my son 7 months. My divorce story begins in January of this year… I went to work just like any other day, but by 9 pm the police were there to arrest me… I  was taken to the courthouse to find out my wife had told them I pushed my daughter into a wall (you can imagine my shock) among other things; like I threatened to kill everyone and what not. After I was explained the situation and the terms of the restraining order she requested, I was taken to county jail for the night.

… Her parents… told her to file for custody/support… From there we started the back and forth of he did this and she did that. The problem is, everything she said was taken as fact (with ABSOLUTELY NO evidence) while my accusations were based on presentable facts they were thrown out andignored. My wife has a long historyof mental illness, has been in the psych ward… The law guardian (who has never so much as said hello to me let alone spoken to me) is convinced it is best for the children to stay with their mother. The social worker, whose report says specifically there is no evidence to support any allegations against me, says it is best for them to stay with their mother. The system itself of course is biased against me simply because I’m the father… She complains constantly that she “got nothing” because I have the house and my cars… I’m sorry but the children are everything as far as I’m concerned. I am at a loss because  it seems everyone has me backed in a corner.

After months of fighting I have agreed with my lawyer that it is easier to just make peace and see where we can go outside of court… I’m hoping that one day the bickering and backstabbing will cease and we can be around each other without the drama. I have wanted nothing more than peace from the beginning. I plan to see to it that we become friends for the sake of the children, I will not allow them to see us fighting…

I wanted so much more for my children but as my therapist has repeatedly told me, “This is a chance for you todo right what your parents didn’t.” And I fully intend to make the best of this situation both for my wife and I andthe children. I appreciate any advice or comments you all may have. Thank you for reading my story and I am touched by all of yours.

The Ringing of the Bell
By Holly H.

… As I ponder all of the events that have transpired throughout the course of our twelve year marriage, I am actually surprised we made it this far as  husband and wife. I am not, however, surprised we are still friends and enjoy each other’s company. Generally speaking, we have the same priorities in life. It’s just a bummer that marriage falls near the bottom of our priority lists.

… I could cite countless examples of the low priority we both placed on our relationship… I actually left town, the day after our wedding to attend a company sales meeting. We both agreed that we didn’t have time to take a honeymoon… Either my husband or I traveled at least half of the time we were married… We both happily accepted promotions and elevating career moves which drove us to move to 6 different cities and a dozen locations in 7 or 8 years… Things changed drastically once wehad our two children. While the kidsalways came (and will always come) first… we spent even less time together and lowered the priority on our relationship even further.

Many events have transpired between then and now which have led us to where we are today. Later today though, when my husband and children come home for dinner, as they usually do after having spent the weekend at his place, the doorbell will ring. I wonder what my husband will feel when he rings the bell of the home where he once lived. Nevertheless, with that ring, I will be reminded once again that my wakeup call came too late.

If you happen to be struggling in a relationship with your spouse or partner, consider for a moment what it would be like for them to ring your doorbell for Sunday dinner. Would you prefer them use their key?.

#divorce #separation #kids