What Is Marriage Abandonment?

what is marriage abandonment Marital abandonment, also called desertion, describes situations where a spouse leaves the marriage, including the marital responsibilities, and severs all ties. However, the other party’s absence makes some parts of the divorce proceedings more challenging. Unlike most divorces, where two people negotiate their divorce agreement, you’re left on the hook.

We recommend seeking professional divorce advice from a family law specialist before proceeding with a divorce after marital abandonment. You’ll want to make sure you think of every angle ahead of time to ensure your final divorce is just that – final.

Definition Of Marital Abandonment (Desertion)

In a culture where more than half of married couples eventually divorce, we often hear people using phrases like, “When my husband left…” or “my wife left me…” However, a person moving out and then working through separation and divorce is not the same as marriage abandonment.

Marriage abandonment means:

One spouse moves out without any intention of saving or working on the marriage
They do not continue paying shared bills, nor do they honor any of the other marital/financial obligations or agreements
They have left and remained out of contact for at least 12 months and have no intention of returning

Different Types Of Marriage Abandonment

There are different types of marriage desertion:

Criminal marriage abandonment

Abandonment can be considered criminal, especially if the spouse left behind has medical issues or relies on the abandoning spouse for financial or caregiving support. This doesn’t mean you cannot pursue a divorce if an ill spouse depends on them for money, insurance, or physical care – but abandoning that spouse is considered a crime. You must go through the proper legal divorce channels. It is also considered a crime to leave children behind without honoring child support obligations (regardless of whether you want custody/visitation or not).

Constructive marriage abandonment

These terms mean less in California than in other states since we are a no-fault divorce state (see below). However, some spouses claim they “had” to leave the marriage because they were forced out – via a spouse making their life miserable while in the home. Even so, both parties should work through the legal divorce channels to ensure the best overall outcome for all parties involved.

What Does Marital Abandonment Mean In California?

In no-fault divorce states, marital abandonment doesn’t have to be proven. Rather, the abandoned spouse moves forward with the divorce proceedings through their county family law courts. In other states, where divorce fault must be proven, the abandoned spouse has more to do to secure the evidence required to prove they were abandoned.

Although marital abandonment does not affect how a divorce is filed in California, it can affect the divorce process.

Child support, custody, and visitation

If a spouse abandons both the marriage and the children, it will affect child support and custody decisions. In most cases, someone who completely abandons a marriage and children already knows this. However, it’s increasingly harder to get out of paying child support due to the court’s harsh penalties, such as garnishing wages and tax returns, suspending a person’s driver’s license, seizing bank accounts, or suspending their passport.

Spousal support

The grounds for getting spousal support in California are evolving due to the reality that most households have two working adults. Spousal support is only awarded in cases where one person doesn’t work or makes considerably less money than the other. In this case, it may be awarded – typically for a limited time. Also, unemployment rarely works to get out of spousal support as the court still looks at your employment/earnings history and often provides a limited grace period before you’re expected to be employed and pay again.

Settling of assets

California is also a community property state, and that doesn’t change just because one person abandoned the marriage. Ultimately, any assets acquired during the marriage – and that wasn’t the result of an inheritance or personal gift – are split 50/50. However, the deserter is accountable for all of the money they didn’t pay toward house, car, insurance, and other financial obligations. All of these will be accounted for during the divorce proceedings to make sure you get your money – and potential interest losses – back.

Take precautions for your future

Abandoned spouses are vulnerable. You must honor the legal tenets of your marriage agreement (community property) while simultaneously protecting yourself. We recommend reading “You’re Divorced: What happens now” to begin thinking about how to move forward concerning your marital agreement.

Filing for immediate legal separation is probably the best bet, for now, allowing you to extricate yourself from shared financial accounts and

Consult With A Family Law Specialist To Resolve Marriage Abandonment

Typically, we recommend divorce mediation to avoid the intensifying stress and financial costs that accrue in a normal divorce battle. However, mediation isn’t possible if you’ve experienced marriage abandonment and have lost contact with your spouse. In that case, we recommend consulting with a divorce lawyer who can work with you through the steps required to finalize your divorce. Contact the Law Offices of Gerard A. Falzone to begin working through the dissolution of your marriage after abandonment.

Does Legal Separation Always End In Divorce?

does legal separation always end in divorce There are varying reasons couples decide to separate rather than divorce. For some, trial or legal separations are a way to “try out” what life would be like if they were to legally dissolve the marriage in a divorce. In other cases, legal separation establishes permanency to the end of the emotional and physical relationship while retaining other benefits of a legal marriage- typically financial.

While most separations do end in divorce, it isn’t always that way. So, while some people may argue that if most separations end in divorce, so why not just skip to divorce, it’s worth reviewing the alternatives if you’re on the fence about divorcing at this point in time.

Legal Separation Or Divorce? Which Makes Sense For You?

The idea of both temporary and more permanent separations has existed for as long as humans have joined together in matrimony or to raise a family. Historically, separations were a way to maintain a status quo within a cultural or spiritual community that may have frowned on divorce, while allowing two people with irreconcilable differences to live their own lives with a certain amount of freedom from one another. Now that divorce is more common and culturally acceptable, we’ve seen a rise in separation rates.

The question for couples choosing trial or legal separations is do we repair the relationship and live like a married couple again or do we divorce and legally dissolve the marriage? According to Psychology Today, it is believed that as many as 80% of couples who separate wind up moving forward with a divorce. However, this doesn’t mean separations are irrelevant.

There are plenty of ways the separation can still benefit the lives of the adults and children in question. When we work with couples to determine whether separation or divorce is the right decision, we evaluate various factors.

Reasons To Consider Separation Over Divorce (For Now)

Here are some of the reasons clients opt to try separation over divorce rather than heading straight to divorce proceedings.

They just aren’t sure yet

In many cases, particularly couples who have been together for a decade or longer, they just aren’t sure. Unless there is an egregious behavior that isn’t being resolved in question – such as domestic violence, child abuse, or addiction/substance abuse issues – many people have a sense that “this too could pass,” in which case they don’t want to divorce too hastily.

I’ve never met a couple celebrating a 50- or 60-year anniversary that can’t offer several examples when they went many months or years at a time until they found their way back together – and are grateful they did. It’s this idea that permeates the decision-making of couples who are hopeful resolution will come – but that it may take space and time.

They aren’t as convinced about independent living

There is a common expression, “misery loves company.” While I never advise any client to live miserably, many have lived so long in companionship that they aren’t 100% sure whether living apart is truly better than living together in a different type of partnership. This is quite common for those who have been married for decades and raised a family together. In this case, a trial separation gives them insight into what life outside of the partnership looks and feels like.

Health insurance

Health insurance is expensive, and many families get their insurance through one or the other parent’s employers. Without that coverage, the income discrepancy is quite large. This is one of the examples where legal separation for a longer period of time may make more sense. By legally separating – but without divorcing – couples have a way to separate the bulk of their finances for a while but agree to keep things like health insurance, retirement savings, investments, or other joint benefits accumulating jointly for maximum profitability in the long term.

Other reasons to consider legal separation

Every household is different and financial obligations or benefits are constantly a driving factor for couples who opt to remain in long-term separations rather than divorce. For example, couples with families that choose to have one parent remain at home with the children may decide to legally separate. In this way, the income is still shared between the both of them, in their separate locations, but the children still have the continuity of a stay-at-home parent. Over time, when the children are old enough, and the stay-at-home parent rejoins the workforce, they may opt to move forward with a divorce.

Recommendations Before Separating

Regardless of whether or not you’re separating with the idea of healing the marriage because of business or financial reasons, there are three things you should do:

Meet with a family law mediator

You don’t need lawyers to file a legal separation, but you should take advantage of experienced legal advice. Together, we’ll determine the overarching goals of the separation period and come up with an estimated time period if that makes sense.

If there are children in the picture, we’ll also discuss child custody and visitation schedules. After decades in this business, I can also provide multiple tips on how to ease into this transition in a way that supports everyone’s best interests.

Meet with a financial planner

If you’ve been married for five years or more and/or you have a family, it’s worth meeting with a financial planner to discuss the long-term consequences of separation versus divorce. It’s always good to have a third-party, objective opinion, and a fee-based financial planner can help. In some cases, clients have changed the way they handle their separation or determined a specific length of time based on what they learned from their financial advisors.

See a licensed, professional therapist

If you hope to reconcile your marriage, I recommend working with a therapist together as a couple. The separation will not be easy and it’s essential to create a safe space to work together on the hard things while also learning communication and healing tools to practice on your own. Even if you know the relationship is over and are separating for financial or business reasons, having your own therapist is a smart idea as you make your way through a difficult transition.

Deciding Between A Separation Or Divorce? The Law Offices of Gerard A. Falzone Can Help

Are you in the process of determining whether a separation or divorce makes the most sense for you and your family? Schedule a consultation with the Law Offices of Gerard A. Falzone. For more than thirty years, we’ve dedicated our lives to taking the stress and trauma out of divorce, creating a safe space for couples to make legal decisions about separation, divorce, and child custody issues in a way that serves the best of the whole. We look forward to helping you see your way through.

You’re Divorced: What Happens Now?

you're divorced what happens now No matter how much it was necessary, moving through a divorce is always stressful. It takes its toll on those getting divorced as well as their loved ones. Once you’re divorced, there are still some loose ends to tie up.

9 Essential Steps To Take Now That You’re Divorced

We know the steps leading up to the divorce seemed never-ending, and there’s a temptation to just cross your fingers and hope all will be well. However, paying attention to these essential steps will ease the way forward into the next chapter of your life.

Get the emotional support you need

If you haven’t already done so, we highly recommend seeking support from a therapist or spiritual counselor. This is even more important if you have children – including adult children! Getting the support you need, and ensuring your children have the support they need, helps to unwind any residual emotional damage.

By and large, when the anger recedes, grief is the most prevalent emotion associated with divorce. People grieve the loss of the marriage they dreamed of, the loss of future dreams, the intact family they hoped to provide for their children, and the loss of any property, assets, or possessions that held sentimental value. This loss must be tended to, or it can cause residual issues later on.

Review your marital settlement agreement

Some individuals and couples quickly and efficiently divide up their assets, properties, titles, accounts, etc., without a moment to waste. Others drag their heels. If your ex-spouse was against the divorce, reluctant to sign divorce papers, or dragged their heels leading up to the final document filing, prepare for a similar experience after you’re divorced.

Make a concise summary of your marital settlement agreement, so you have a one-page version of what needs to happen. This includes things like:

Dividing account totals
Closing joint accounts in alignment with the divorce agreement
Transferring/retitling ownership of property, cars, toys, and other relevant assets to the appropriate person

Make a realistic timeline for when these things should happen in order of priority, and then start making your way down the list.

If your ex-spouse doesn’t do what they’re supposed to, contact the family law court or your divorce mediation lawyer to begin filing the paperwork necessary to file a motion for enforcement, which takes all of the responsibility from your shoulders.

Create clear and detailed co-parenting schedules, payment plans, etc.

If you have children and a child custody/visitation agreement, their well-being and security are a top priority. Regardless of how angry, resentful, or hurt you are, you must take the higher road when it comes to co-parenting. Child and young adult development research clearly show that children fare far better when their parents co-parent cooperatively.

Set up autopay for spouse or child support (preferably through the family law court)

Regardless of how amicable things are now, we recommend taking everything you can out of the equation regarding the “business side” of spousal support or child support payments. Most family law courts in California now offer the ability for these payments to run through them for a very nominal annual fee (or for free, depending on the total amount of the payments). For less than $50 per year, payments automatically deposit into your bank account.

By registering these payments through the court takes the personal relationship out of the equation. Payment agreements are between the court and the payee; if payments are late or skipped the recipient never has to be “the bad guy.”

Change passwords, names on accounts, etc.

As you open new accounts, odds are you’ll use a different password than you did when you were married. This is strongly advised if you and your spouse used the same password for everything. Also, if you’re changing your name after the divorce, you’ll also need to begin that process.

Because it can take up to three months or so to legally change your name in California, it may mean going back through each and every one of your accounts and completing their process to finalize the name change in their systems.

Create new estate planning documents (will, trust, etc.)

This is a good time to meet with an estate attorney to draft a new will and trust documents. This is even more important if you have never created a will or trust in the past. Because California is a community property state, your ex-spouse would automatically inherit everything.

Now, without a will or trust in place, you leave your children and family members more vulnerable if you become incapacitated or die without specific instructions, including those who can make legal and medical decisions on your behalf. One of the benefits of working through this process is that you may uncover or remember accounts, credit cards, investments, life insurance policies, or retirement funds you forgot you or your spouse had and that haven’t been closed or divided yet.

NOTE: Make sure that any account beneficiary or “pay on death” designations reflect the right person on any accounts that became yours. If your ex-spouse’s name remains on those forms, there is nothing anyone else can do about it if you die. Those funds transfer directly to whoever is named, regardless of marital/divorce status.

Update (or create) your advanced medical directive

That segues directly to the next item on the list: updating or creating an advanced medical directive. Again, before you’re divorced, your spouse would have been the one making any medical decisions on your behalf.

Now that you are single, it’s essential that your medical directive outlines who you select to make medical and end-of-life decisions on your behalf if you cannot do so. Medical directives also help you outline what you want or do not want in any given scenario. Advanced medical directive forms are available from your health care provider, or you can also use free online versions like This One by Prepare For Your Care.

Protect your credit

Once all of the steps in your marital settlement agreement are complete, we recommend pulling a free credit report to ensure all the accounts you closed or divided are taken care of. You are entitled to one free credit report per year from all major players, such as Experian and Equifax.

Keep in mind that it can take several weeks or a few months for things to cycle on and off your report. If you and your spouse were efficient at dividing and conquering the tasks on your marital settlement agreement, wait 90 days or so before pulling the reports to ensure they’re accurate.

Click Here for instructions on obtaining your free copy report from legitimate agencies.

Take care of insurance details after you’re divorced

Review all of your insurance policies – auto, homeowners, medical, dental, vision, and life – to make sure their current and that your ex-spouse is no longer on the policy. In some cases, this might mean you need to ensure you’re off your ex-spouse’s policy (alleviating any financial responsibility on your end) and getting a policy of your own.

Need Guidance To Complete The Steps After You’re Divorced?

Do you need guidance or advice about what happens now your divorce is complete? Contact The Law Offices of Gerard Falzone. We can review your divorce agreement and marital settlement agreement and create a checklist for you to follow. Once the checklist is complete, you’ll feel as if a tremendous weight is lifted, and you’ll finally be free to move forward.

The Downsides Of A DIY Divorce

The good news is that family law proceedings in California allow you to do your divorce paperwork and legal filing or make decisions about asset distribution and child custody/visitation issues. However, a DIY divorce has a downside. Lack of information, misunderstandings around CA divorce and child custody laws, or making hasty decisions often result in finalized divorce proceedings that do not honor your best interests.

Pursuing a DIY divorce is certainly within your rights, but even a single consultation with a divorce attorney or mediator can prevent you from making costly mistakes.

5 Downsides Of A DIY Divorce In California

Here are five of the most common downsides we see when clients come back to us after a DIY divorce gone wrong.

Being taken advantage of by a pushy or bullying ex

If your soon-to-be ex is driving the train, you could be pushed into decisions that are not in your best interest. While we understand the temptation to get the divorce over with as soon as possible, being too hasty costs you in the immediate and the long term.

You don’t have to go to court to get divorced. In fact, we always recommend pursuing divorce mediation whenever possible. In just a few fee-based sessions with an experienced divorce mediator, you can walk through every piece of paperwork and receive neutral recommendations about any areas of conflict – such as finances, spousal support, child custody/support/visitation, and other questions around asset distribution.

Meeting with a family law attorney either alone for a pre-divorce legal consultation or together for mediation can help your divorce move forward quickly and ensures all of your paperwork is filed without mistakes so the courts don’t kick it back for resubmittal.

Not understanding community property laws

California is a community property state. Sometimes, people mistakenly believe that means everything you have together is split 50/50. That is not the case. Anything you earned, acquired individually or together, or invested during your marriage is entitled to be split equally.

However, there are exceptions to the community property laws. Examples include:

Finances that were yours before the marriage (retirement, investments, savings, etc.)
Any assets you inherited before or during the marriage
Gifts given especially to you by family members, including financial gifts.
Property owned in your name prior to the marriage or property inherited by you during the marriage.
Financial gain or assets accrued while legally separated.

Meeting with a lawyer before the divorce is the best way to ensure the two of you are dividing your assets as the judge would if you went to court.

NOTE: Resist any temptation to hide any assets when going through a divorce. If you hide assets and they are discovered by your ex now or even years after the divorce is final, the courts will not hesitate to act swiftly and are more than happy to grant those assets and more to your ex.

Giving up benefits you are entitled to

Sometimes, in a more-toxic-than-normal situation, clients are willing to sign away just about anything and everything to get out of the marriage and start anew. Unfortunately, this often means making decisions they regret later.

For example, I once had a client whose spouse was difficult throughout the divorce proceedings. He had a modest IRA, while she received a generous county retirement pension. To escape the constant tension, he was willing to take his IRA and leave her all of her retirement until I demonstrated what an exponential financial loss would be for him in the long term.

As a result of a single consultation, he let CA divorce law reign supreme and now receives his portion of his ex-wife’s pension, just as she’ll receive her portion of his IRA when he retires. Your divorce mediator or attorney is there to ensure everyone makes the best possible choices in alignment with CA family laws.

Child custody and visitation

Children should never be put in the middle of a divorce. Their well-being must be a top priority during and after the divorce proceedings. After listening to your ideas and input, as well as your children’s (if they are old enough), we can establish a child custody and visitation agreement that is in everyone’s best interest.

Are you a step-parent? If you are getting a divorce in a marriage involving step-parents, work together to create a child custody agreement that considers that. Currently, step-parents have no legal rights for visitation or holiday exchanges. However, the two of you can create whatever legal agreement you want as long as it’s part of the divorce agreement. Whatever agreement you come to regarding visitation and custody of step-children should be in writing and should have the signed approval of their other biological parent(s).

Improperly filed paperwork is just one of the downsides of a DIY divorce

Legal paperwork is challenging to navigate, and most California divorces require proper filing and procedures for multiple forms. If there is a single mistake, the forms are kicked back to their initiator, and you have to refile them. This process can happen repeatedly. It is frustrating at the very least. Similarly, you may have made a wording mistake or checked an incorrect box that makes its way into your legally-filed divorce.

Once the documents are recorded, and the divorce is filed, you have to go back to court and request a modification to make any changes. Until then, whatever was checked remains part of the legal domain and you are beholden to follow that law if and until a judge rules on your modification request.

Schedule A Pre-Divorce Legal Consultation Before A DIY Divorce

You may be perfectly prepared to file a DIY divorce in California. However, it’s always best to schedule at least one pre-divorce legal consultation with a qualified family law professional to make sure you do it right. We’re happy to review your situation, go over the paperwork, and help you make any corrections to the court documents before you formally file them. Contact the Law Offices of Gerard A. Falzone to schedule a consultation or receive legal advice about your upcoming divorce.

What Is A Gray Divorce & Tips To Prepare

The term gray divorce is relatively recent, adopted to describe the increase in divorces between couples who are aged 50+ and have been married for decades. These divorces can be more complicated than others because, unlike couples who’ve been married for ten years or less, these couples often have a complex array of assets that must be intricately worked through and fairly allocated.

And then, of course, there is the painful burden of processing the dissolution of a family culture. Adult children are still children and experience the same range of emotional impact as younger children in a divorce. Finally, there is the reorientation as each partner relearns life as an individual – rather than as part of a couple.

Steps To Support You While Navigating A Gray Divorce

Here are some important steps to support you as you prepare for and navigate divorce in your 50s, 60s, 70s, or beyond.

Is legal separation a better first step?

If you haven’t tried legal separation, this might be a good first step. Marriages mean different things to different people. Marriage can also mean different things to people at different phases of their life. Sometimes, legal separation offers prospective candidates for a gray divorce to take a look at their personal and shared narratives to see if there might be an alternative to divorce.

Taking time and space away from the marriage to process personal work while still honoring the same types of living and financial arrangements offered by divorce allows couples to find their way back into a partnership that may be defined differently from what it was before. Other times, legal separation helps those on the fence to see clearly that divorce is the best way forward. Every situation is different.

If Not, Prioritize mediation or a collaborative divorce process

If at all possible, work together to put the marital issues on the table as you work to divorce one another with the least amount of angst, resentment, and stress possible. One of the best ways to do that is to seek help from a family lawyer who specializes in mediation or seek individual representation from lawyers who prioritize collaborative divorce.

Divorce mediation

Divorce mediation uses one lawyer between the two of you. They are paid by the hour or may offer “packages” based on the number of sessions you meet with them. During divorce mediation sessions, the mediator serves as a completely objective party. In other words, we are completely neutral and do not “take sides.” Instead, we help you to divide assets fairly and facilitate cooperative decision-making at every turn.

When you are in disagreement or conflict about how a particular asset or issue should be handled, we provide feedback on how a judge would most likely rule were you in a courtroom. Divorce mediation saves couples tens of thousands of dollars, keeps your business completely private, and facilitates all of the legal document compilation and filing for you.

Collaborative divorce

A collaborative divorce shares the same goals as mediation: for couples to work through things as fairly as possible while minimizing negative conflict. However, in this model, each individual has their own attorney representing their interests, and both “teams” work together collaboratively to reach an equitable outcome. This is more expensive than mediation since there are separate attorney fees involved, but it’s still more affordable in terms of both financial and emotional/energetic costs.

Both options keep you out of the courtroom, which can be a very negative, draining, and damaging experience – especially if there are children and grandchildren involved.

Learn more about how assets and investments are divided

Unless you have a prenuptial agreement, odds are the two of you, assets, and finances are tightly woven together in a single fabric. The California divorce process works to unravel that fabric into its separate parts again – and as equitably as possible. The more you understand how assets are divided in a divorce, the better prepared you’ll be.

Because California is a community property state, the majority of the monies and assets acquired during your marriage are split 50/50 – without any deliberation. There are exceptions, such as inheritance or gifts, but these must be proven to be exceptions for the courts to recognize them.

NOTE: This is NOT a time for secret preparations, hiding money or funds, hiding newly acquired assets, or starting any new financial ventures on your own. The courts frown on any attempts to hide assets before or during a divorce. Proof you were trying to do so can mean your spouse gets far more than they would have been entitled to otherwise.

Seek personal support through counseling or a similar outlet

This is no small thing. Ending a marriage that has survived decades, and that created a family, means the dissolving of a dynasty of sorts. While it may be the best and healthiest step for you both, it doesn’t come without tremendous emotional and energetic costs.

Meeting with a licensed therapist or credentialed spiritual advisor, or life coach makes all the difference in your emotional and energetic well-being. It will also support you in working for the highest good of both yourself and everyone involved.

Keep the kids out of it as much as you can

Adult children can be put in a terrible position if their divorcing parents aren’t careful. Like small children, they go through the same emotional and logistical struggles resulting from a gray divorce. They are often privy to far too much personal information about their parents that should be completely separate from their mother/child or father/child relationship. As tempting as it can be to gain allies, children should not be your support network during this process. They should be encouraged to have healthy, balanced, and open relationships with each parent – regardless of what brought their parents to this point.

After more than 30 years as a family lawyer and mediator, we witness the damage done when parents bring their children into the mix. Children always fare best – even adult children – when they can say things like, “I never heard my father say a disrespectful or unkind thing about my mother. He keeps his feelings about her separate from our relationship…” or vice versa. Plus, the more drama and trauma are brought into your adult children’s world, the more will spill over into your grandchildren’s lives.

Preparing For A Gray Divorce? Work With An Experienced Family Lawyer

The Law Offices of Gerard A. Falzone are known for their focus on integrity and fairness. We have more than 30 years of experience helping Bay Area couples navigate their divorces as smoothly, honorably, and affordably as possible. Call us at Schedule a consultation to learn more about our services, and we’ll be here to support you and your family every step of the way.

How Are Investments Divided In A Divorce

Dividing assets is one of the most challenging and laborious parts of going through a divorce, especially if couples aren’t in agreement about who gets what. As a community property state, California has simplified the process somewhat, assigning 50% of the assets accumulated during the marriage to each spouse.

However, that process becomes more convoluted if portions of those investments belonged to one or the other party before the marriage, the money was part of an inheritance, there was a prenuptial agreement in place protecting some portion of the investments, or when one of the spouses holds assets as part of their small or medium-sized business.

What To Expect: Dividing Investment Assets in a Divorce

We highly recommend meeting with a family law mediator if you are in any disagreement about how to divide investment assets in your divorce. In a single consultation or two, we will review your assets and explain how a judge is most likely to see the situation. This saves couples thousands of dollars and keeps the energy more focused in a neutral – rather than contentious or escalated – space.

In the meantime, here are general “rules” around how investments are divided in a divorce:

Are you legally separated?

If the splitting of assets is a charged topic, we recommend filing a legal separation with the courts as you navigate the divorce process. Without that clear line between “married” and legally separated/divorced, your spouse is entitled to the money coming in during the interim. That means that while you may have moved out, or your spouse did, they may still be entitled to your recent big bonus or lottery winnings as part of the community property laws. Your legal separation is a smart move to beginning the work of separating assets.

Investments divided prior to marriage

Any investments that were yours before the marriage are still considered yours and not part of the community property pot. If those funds were merged into a joint account along the way, you are typically entitled to your original amount, which will be subtracted from the community property portions. The courts use specific algorithms to work out interest gained/lost during that time to keep it equitable between both parties.

Inheritance money or financial gifts

Did you add money you inherited into the investment portfolio? Have you received specific financial gifts during your marriage? That money is also protected from the “community property” clause. Once you’ve shown proof of where the money originated, the courts consider it yours.

Retirement funds

Any retirement funds earned prior to your marriage remain yours. However, all pension, IRA, 401K, and other retirement funds earned during the marriage are split 50/50. In some cases, the amounts are so similar between each person, couples decide to keep their own retirement accounts without splitting anything, and that decision is legally recorded in the divorce agreement. Otherwise, the courts enforce the 50% split of each account using a Qualified Domestic Relations Order (QDRO). The order is issued to the administrator of the retirement account, who sets up accurate partial payments to each spouse when they retire, ensuring you don’t have to suffer the tax hit that would ensue if you split the accounts and drew the money out now.

Business-related Investments

Did you start a business during your marriage? There is a chance your spouse is entitled to the business investments or assets as well, depending on how you set things up. If s/he was largely involved in starting it or worked to support you as you started it, their portion of the business could be significant. Meet with a business or family law specialist ASAP to learn more about what to expect during a divorce.

Negotiating Property & Other Assets Instead of Dividing Investments

You also have the option to forgo dividing assets and swapping them for property or other liquid assets instead. Here in the Bay Area, where real estate investments arguably perform far better than the typical investment portfolio, couples often give up their portion of certain investments or retirement funds in order to keep the house and a car.

Again, using specialized algorithms, family lawyers or mediators can help you determine the fairest way to split your assets without having to file QDROs for every retirement or investment account you have.

Have Questions Regarding Assets And Investments Divided Fairly?

Are you struggling to agree on how to fairly divide your joint investments and community property assets? The Law Offices of Gerard A. Falzone are prepared to stand by you every step of the way. While we prioritize mediation whenever possible, we are also willing to go to bat for you in court to ensure you get your fair share of marital investments and assets. Contact us to schedule a free phone consultation and learn more about the process. (415) 482-7800.

Do Stepparents Have Visitation Rights?

Most of the time, couples think about child custody agreements for biological children resulting from a dissolving marriage. However, in a culture where more than 50% of American children of divorce experience a remarriage of one or both parents, family law specialists frequently handle stepparent visitation cases as well.

Unfortunately, regardless of how long a stepparent has been in a child’s life or the bond they may share, current California law does not automatically grant stepparent visitation rights when a couple divorces – or if the biological parent dies. This is why we recommend blended families work with family law specialists to ensure the child’s wellbeing is always a top priority in any divorce.

Securing Visitation Rights As A Stepparent

Here are the legal steps you can take, whether you are a stepparent about to divorce a partner with children, or you’re in the midst of a divorce and want your children to retain a relationship with their stepparent after the divorce.

Have honest conversations with your children

If your children are old enough, it’s essential to discuss the situation with them in age-appropriate ways. You may want to work with a family counselor or therapist to facilitate this process. Children are inherently wired to protect their parents’ emotional well-being and may be afraid to let a mom or dad know they want to remain in contact with their step-parent.

In most cases, step-parents interested in maintaining a relationship with former stepchildren have developed solid and reciprocal bonds. Creating a visitation schedule is a healthy way to protect a child’s emotional wellbeing through the divorce proceedings and beyond.

Make co-parenting a priority

If the children’s other biological parent is still in the picture, you are not involved in a co-parenting triangle. Co-parenting isn’t easy, but every study ever done on children and emotional health during/after a divorce focuses on the importance of healthy co-parenting. Create co-parenting agreements between all relevant parties and use it as something you can all come back to remain on the same page with parenting, regardless of the adults’ water under the bridge.

Consult with a family law mediator

Using a family law mediator can exponentially decrease the stress and financial drain common in a divorce. This is especially true if there are children in the picture. Your divorce agreement, including child custody and visitation agreements, is yours to create. The courts uphold virtually anything you agree to as long as all relevant parties sign the documents.

Your family law mediator can work with you and the children’s other biological parent to create a visitation agreement that makes sense. Sometimes, this includes scheduled days, overnights, weekends, or vacations. Or, the agreement may be as simple as regular phone calls, email/text communication, and open invitations to all birthdays and important school or extracurricular activities.

You can fight for your right as a stepparent.

The first three recommendations are for couples and families who can navigate the same page. In some cases, this may not be possible. For example, if your stepchild’s parent(s) resist your request to retain visitation rights of some kind, the law may still be on your side.

California family law code states: Notwithstanding any other provision of law, the court may grant reasonable visitation to a stepparent if visitation by the stepparent is determined to be in the minor child’s best interest. That holds true as long as the visitation by the stepparent doesn’t conflict with the custody or visitation of the other custodial parent who is not part of the divorce proceeding.

Factors the court considers when ruling on stepparent and visitation/custody include:

Age of the child.
Length of the stepparent/child relationship.
Any history or evidence of domestic violence or abuse.
Emotional relationship/strength of the bond between the child and biological parent (in some cases, stepparents are the more stable and emotionally healthy adults).
Resistance from either biological parent about the stepparent’s child visitation request. In this case, the stepparent must show unarguable evidence their presence is in the child’s emotional best interest.
Input from the child if they are old enough.

The first step is to find an experienced family lawyer and schedule a consultation. While clear communication with the other party/parties and mediation is always our first recommendation and preference, we are happy to support you in court if it is in the best interest of the child.

Have you considered adopting the child?

If the other biological parent is out of the picture, it is in a devoted stepparent’s best interest to adopt the child if they want a legally vested interest in the child’s present and future wellbeing. However, keep in mind that even the most attentive and loving stepparents have zero legal rights in their child’s lives.

For example, you can take them to the hospital in an emergency, but you can’t authorize medical treatment; you can pick them up from school if they’re ill, but only if a biological parent has added you as an emergency contact. Even so, you cannot sign any legal school documents or forms.

Adopting your stepchildren, when possible, gives you the automatic consideration of the courts if you and your spouse or partner decide to separate or divorce down the road.

Expert Legal Advice Is A Must For Stepparent Visitation Rights

Expert legal advice is necessary if your marriage is struggling and you’re worried about stepparent visitation rights. Knowing your options and having time to prepare may be the key to ensuring you and the children you love have the right to enjoy a steady, healthy, and long-term relationship.

Contact the Law Offices of Gerard Falzone to schedule a consultation and receive personalized recommendations and advice. First and foremost, I’m committed to mediation and child custody/visitation decisions that are as nonconfrontational as possible. However, I’m willing to go to court and protect your rights – and the rights of any child – if necessary.

What Is Spousal Abandonment?

Spousal abandonment was one of the most commonly used reasons to pursue a legal divorce before California became a no-fault divorce state. While you don’t hear the term “spousal abandonment” much these days, it is still a very real issue and takes a heavy emotional and financial toll on those who are left behind.

Understanding Spousal Abandonment

Spousal abandonment is defined as when a person leaves a legal marriage without an intent to return, without working through proper legal channels, and failing to honor their financial responsibilities. It happens without warning or communication, and often the spouse left behind cannot locate their spouse. While spousal abandonment is not grounds for divorce in no-fault divorce states, the one left behind can move forward with divorce on their own using “irreconcilable differences” as the reason.

Marriage is a legally binding contract. While spousal abandonment does not affect how a divorce is filed or how it moves forward, it can affect the divorce process and a judge’s final decisions. In our experience, judges do not take spousal abandonment lightly and the final judgment is likely to err more in your favor.

When Should I Take Legal Action If Abandoned By My Spouse?

It is worth your while to meet with a family lawyer sooner rather than later because time is of the essence when it comes to the legal and financial realities for one left behind. Ultimately, the decision to file a divorce is entirely up to you. However, there are some situations where we recommend taking legal action or filing for divorce if your spouse is not communicating.

Consulting with an experienced family law attorney is a wise first step. We can help you determine which steps are necessary to move forward in a way that aligns with your values while ensuring your spouse is held accountable for their marriage responsibilities.

You have children

A parent’s first priority should be their children, and the law certainly views it that way. If your spouse has left and is not contributing financially, or the money they are sending is not enough, sporadic, or unpredictable, you speak with a family law specialist ASAP. Regardless of whether or not you choose to file for a divorce, your child’s parents owe you child support.

The court has all kinds of ways to find your spouse if you can’t. If they don’t respond to the court, they risk having their driver’s license and passport suspended, bank accounts frozen, etc. The courts can garnish wages from employers as well as any future returns. And, they charge 10% interest to your spouse on unpaid balances, which are payable to you.

You can download and complete child support forms on the California Child Support Services webpage. I also recommend scheduling a consultation with a family law specialist to make sure the forms are filled out correctly. If you miss anything, they get kicked back and it delays the process. Investing in even a single consultation can help expedite your process.

You’re ready to get divorced

In many cases, regardless of the heartbreak and stress associated with spousal abandonment, clients are more than ready to file for divorce. In this case, the way is clear. Technically, there is no need to hire a lawyer to pursue a divorce. The California Self-Help Divorce Forms page has a wealth of information, as well as the forms you can download and print.

Also, check your local family law court website to learn more about their self-help offerings, which typically include in-person support by appointment. In most cases, you are best off consulting with a Bay Area family lawyer

You are in trouble financially

If you are currently a stay-at-home parent, you were the lower wage-earning spouse, or you’re struggling to pay the bills, take legal action. Again, I recommend consulting with a legal family law specialist to determine your next best steps. Alimony, called spousal support, is not like child support. It is not an automatic right so you’ll need to take a different route if you’re entitled to financial support from your spouse.

In this case, if you are not ready to file for divorce, you’re advised to move forward with a legal separation. With a legal separation, your spouse will be legally ordered to pay child support, may be legally ordered to pay spousal support, and marital assets and debts are divided in half so you aren’t responsible for the whole.

Your spouse has or is running up additional debt

There are many benefits to living in a community property state. In a spousal abandonment situation, these benefits may be detrimental depending on your spouse’s actions. Each day you remain legally married, without filing legal separation or divorce papers, your spouse has the ability to add to your household debt and you are legally responsible for it.

In many cases, the spouse who leaves acquires new credit cards and has them sent to a new p.o. box or mailing address, without you knowing it. Filing for a divorce is the best way to stop your responsibility for any bills or debts s/he’s wracking up. We also recommend running regular free credit reports to keep an eye on any lines of credit or loans (cars, toys, etc.) that appear after they move out.

Also worth keeping in mind, any assets your spouse acquires during his/her abandonment are 50% yours; and any assets you acquire in the period between abandonment and legally filing for divorce are 50% theirs, too. The more you uncover prior to filing for a divorce, the better the outcome of the proceedings will be.

Our Family Law Practice Is Here To Help

Are you wondering about how to handle your spousal abandonment scenario? The Law Offices of Gerard Falzone are here to provide solid counsel and personal recommendations. Contact us to schedule a free consultation. (510) 521-9500. Even a single meeting or two may be all you need to support your forward movement in the right direction.

Legal Separation Or Divorce? Which Is Right For You?

Married couples often jump straight to the divorce option when conflicts or seemingly irreconcilable differences are such that dissolution of marriage feels like the only option. However, legal separation is also a possibility and is overlooked more and more as divorces have become easier to obtain.

Learning more about the differences between legal separation and divorce may create a different pathway forward for you, your spouse, and your family.

Difference Between Legal Separation & Divorce

Legal separation functions like a divorce in many ways. Couples typically decide to live in two separate places and can live their own lives without being accountable to the typical vows of marriage (love, honor, and monogamy). A legal separation may also involve other legal decisions associated more typically with divorce, such as:

Division of certain assets and/or debts
Spousal support (aka “alimony”)
Child custody/visitation
Child support

A legal separation is filed with the California Family Law courts, and there is no time limit on how long a couple can stay legally separated. Because you are still legally married, neither party can remarry anyone else. If you decide to pursue a divorce, you’ll move forward by filing the paperwork required for a dissolution of marriage. Once the divorce paperwork is officially filed, the divorce becomes final in six months.

As with a divorce, we advise couples to work with a family law mediator whenever possible. In addition to saving you thousands of dollars and keeping you out of the courtroom, mediation is known for creating a more safe, amicable, and peaceful space to come to your determined agreements. Again, this is a smart step forward to keep the energy mutually respectful and positive.

5 Reasons Couples May Prefer Legal Separation

There are many reasons couples prefer legal separation to a final divorce agreement. Most of them fall under the following five categories:

You’re not sure you want a divorce (yet)

I’ve seen it all – including couples who’ve gotten divorced and remarried again. A divorce is a final and legally binding agreement. Even in the best-case scenarios, where a divorce moves forward via non-combative mediation, it is still emotionally and energetically draining.

Sometimes, couples realize that while they are feeling divorce is on the horizon – they aren’t 100% sure it’s what they want. These individuals know they don’t want to divorce in haste or due to disagreements or hurts that time might heal. A legal separation allows them to see what life would be like if they did divorce. Also, legal separation gives them physical and emotional space to work on themselves or on their relationship. That, along with time, may be exactly what’s necessary to reconcile again.

Your religion prohibits divorce

If your religion prohibits divorce, legal separation is often viewed as the way to “get divorced without actually getting divorced.” However, it’s important to remember that the court will handle the asset/debt division, child custody/child support, and potential spousal support payments in the same way it would if you were getting a divorce.

Your personal views or beliefs prohibit divorce

Most couples get married with the intention of never getting divorced. However, some individuals are more committed to never getting divorced than others. If you are one of those people, legal separation is a smart alternative. It gives you space and time to truly take stock and determine what is best for your personal and collective paths forward.

That said, if your spouse doesn’t feel the same, your legal separation won’t and can’t provide protection from getting divorced. Furthermore, if one of you decides to file for a divorce (dissolution of marriage), the California courts will ultimately honor that decision, and you may wind up being divorced anyway. So, while this is a good option for you both to gain a buffer as you make your future decisions, it’s not feasible to escape divorce if that is what the other person wants.

To give the children an adjustment period

This is a gamble. Just as a couple might choose legal separation as their own cooling-off period as they decide whether or not they truly want a divorce, some couples use legal separation as an adjustment period for their children. This is a gamble. It may be worth it if you actually think there is a decent chance of reconciliation. If you are sure you’re eventually divorcing, it’s probably best to skip the legal separation and move forward with a divorce. Pretending otherwise may do more harm than good to the children’s well-being.

In my experience, children assume a legal separation will result in reconciliation and may hold fantasies that crush them later on. So while a divorce is painful and has a negative impact on most children, it’s always best, to be honest, and clear (in an age-appropriate way) about what is happening so children can get the support they need in real-time.

Retain the financial benefits of marriage

Some long-term partners decide to take the plunge because of the financial benefits of marriage. That same idea works in reverse. I have clients who opt for legal separation over divorce because it makes more economic sense to remain married. Couples may choose legal separation to:

Retain their married tax status
Continue joint business interests
Remain on one or the other’s health insurance policy
To receive future benefits (such as retirement or social security) now or in the future

In this case, legal separation is more like a business decision than one of emotion. It works because it’s legally recognized and allows individuals to live separate lives in separate homes/locations. However, you may find that future partners aren’t entirely happy about it, which may eventually force a divorce decision down the road.

We Can Help You Decide On Legal Separation Or Divorce

If you’re in the process of deciding whether or not to get legally separated or divorced, it’s time to schedule a consultation with a family law mediator. Contact the Law Offices of Gerard Falzone to learn more about your options and to determine whether legal separation or divorce makes the most sense for your situation.

Mediation vs Collaborative Divorce: Which Is Best?

Are you opting to forgo the courtroom and finalize a more amicable divorce on your own? Good for you!

Unless there is no way for you and your spouse to agree on major divorce tenets, such as spousal/child support, visitation, or the distribution of joint assets, it is always better to get divorced using a mediator or by coming together and collaborating.

Divorce Mediation vs Collaborative Divorce

Divorce mediation or collaboration are options you can use if you want to avoid courtroom drama and excessive legal payments and fees. Currently, the average cost of a divorce settled in the courtroom is $17,500, and many divorces cost far more than that. The ability to move forward with your divorce – and your life – without the added stress, time, and expenses is a bonus of both mediated and collaborative divorces.

Mediation

Mediation is an increasingly popular way for couples to settle family law disputes without the emotional and energetic drain of the courtroom. Mediators are neutral parties; they do not take sides. Instead, they work with both parties as a neutral educator and facilitator, informing them about common court practices and rulings and helping them to determine the wisest and fair means of settling every aspect of their divorce and/or child custody disputes.

Most mediators are paid by the hour for their consulting services. Another benefit, besides navigating a divorce as affordably and conflict-free as possible is that mediators take care of all of the legal paperwork and can file it for you, to ensure nothing is kicked back by the courts. The average divorce by mediation runs around $7,000 or less. Some couples only require a session or two to make their final decisions, which means they get divorced for $1000 or less.

Collaboration

All of the legal divorce paperwork required by the California family law courts are available for you to fill out and complete online. All county court systems also offer appointment- and walk-in free support services to review the documentation for you or answer general questions about the process.

This means you and your spouse can collaboratively work through the paperwork and create your own divorce terms without any legal assistance. That said unless you have no children and relatively few (if any) assets, I rarely recommend collaborative divorce unless your situation is very friendly.

Which is Best For Your Divorce?

The number of decisions you’ll make determines whether or not a meditative approach is better than a collaborative one. Decisions lead to complications, especially where emotions are involved, and a mediator is well-skilled in facilitating difficult discussions while providing insight as to the court’s most likely decision based on statistics.

On the flip side, if you’ve only been married a few years, have no property to speak of, and there are no children in the mix, a collaborative divorce may be just the thing to quickly move through the paperwork and file it with the court. It may still be worth paying a paralegal or mediator to review the final documents to make sure they’re filled out accurately. Even the smallest of paperwork errors leads to the courts kicking the documents back for you to correct and refile, which gets cumbersome.

I recommend using a mediator when there are more complicated things to work out.

NOTE: If there are children involved, mediation is the way to go. Your children deserve to have the most legally accurate and smooth experience possible. Your decision now to hedge one way or the other to “keep the peace” can backfire when both parties move on and you all embark on the new path. Mediators prioritize the children’s health and wellbeing throughout the divorce so you can make decisions that are in their best interest at all times.

If any of the following apply to you, investing in a mediator can save you exponentially throughout the divorce process and afterward:

Spousal support (or not)
Child support
Child custody/visitation
Decisions about who’s keeping the house and what that looks like
Dividing assets outside of California’s 50/50 community property laws
Etc.

Sometimes old patterns rear up even in the most well-meaning of people. I’ve seen clients who were willing to sign off on a fair amount of their entitled assets “just to be done with it and move forward.” While this may seem ideal in a collaborative divorce model, those decisions can come back to haunt you.

Should your ex-spouse decide things were unfair or his/her story changes later on and it turns out they felt pressured at the time or were too distressed to make sound decisions, you could wind up in a divorce court to iron things out with a judge.

Benefits of Using a Mediator

There are multiple benefits to using a mediator for your divorce, including:

The process is smoother, less fraught with fights or stress, and almost always healthier for children and the larger family dynamic.
Now you have a known ally who you can hire again and again over the years to provide sound legal advice in case you need to come back to the table to modify child custody or support issues.
You have the opportunity to work methodically through all of the same questions a divorce lawyer would, but at the same time in mediated settings so it’s faster and more affordable.
Gain insight into whether a judge is likely or not to support your stance, vs. your spouse’s, to make fair decisions across the board.

Would you like to work with a Bay Area divorce mediator with a proven track record for helping couples move through their divorces with as much compassion, gentleness, and respect as possible? Schedule a consultation with the Law Offices of Gerard A. Falzone.