How To Deal With Same-Sex Divorce In California

People assume that because same-sex marriage is legal in Calfornia, same-sex couples have the same issues as their heterosexual counterparts when it comes to divorce. This is not the case. There are few ways in which dealing with same-sex divorce in CA requires proactive planning and preparation.

These tips will also help you if you are ending a legal domestic partnership.

What To Know About Same-Sex Divorce In California

Here are some of the things that can help you prepare for your divorce when both parties are the same sex.

Are you legally married? Or are you domestic partners?

Longtime couples often forget that their well-established legal domestic partnership, or that under-the-radar “marriage ceremony” in a friends’ backyard (pre-legalization of same-sex marriage), are not always viewed the same as established legal marriages.

If you actually established your legal domestic partnership (LDP) with the state of California, the state considers you legally married. It is worth locating and making copies of all official documentation so you have proof of your partnership/marriage status as you move forward.

If you only established your domestic partnership with your company as a way to reap medical or retirement benefits, or it was recognized by city/county/or other entities – but your legal domestic partnership was never legalized by the state of CA – your dissolution of assets is not considered a legal divorce.

It’s always best to consult a divorce attorney and bring any official/legal documentation pertaining to your domestic partnership and/or marriage for the attorney’s review.

The length of time you’ve been together can be a factor in same-sex divorce

The length of time a couple has been married can impact two important factors. The first is the amount of alimony to be paid (if it is to be paid at all). Second, the length of time you have been married also determines which assets fall into the community property pot, and which are retained by the individual (called “separate property”).

Because many same-sex couples were together and cohabitating for years or even decades before same-sex marriage was legalized back in 2008. The time you cohabitate prior to your legal marriage or DLP date may be taken into consideration when it comes to the division of assets or benefits, as long as the two of you can agree to the exact length of time you’ve been together.

Legal parentage is not automatically assumed

Unless both of you have already moved through the family legal system to establish legal parental rights to your child(ren) your parenthood is not “assumed” during the divorce. In the case of a child that is born into a heterosexual marriage, the courts assume both parents are the legal parents. That is not the case for same-sex marriages.

Same-sex couples who go through fertility treatments or other means to have a child should take the steps necessary to legally establish parental rights. If you are not legally recognized as your child(ren)’s parent, you should take those steps ASAP. Clearly establishing your parental rights is essential before you can move forward with legal custody and visitation agreements.

Keep in mind that divorce is exceptionally hard on children, and can negatively impact their emotional wellbeing as well as their physical health, sense of self-worth, and divorce is known to negatively affect their academic pursuits. For this reason, we highly recommend working with a family law mediator to make the process as calm, compassionate, and smooth as possible for everyone involved.

We also recommend reading some of our blog posts pertaining to divorce and child custody, including How to Prepare for Child Custody Mediation, How to Talk With Your Kids About Divorce, and, Tips for Co-Parenting After a Divorce.

Dividing retirement assets

There are still some lasting vestiges from the Defense of Marriages Act. As a result, you and your spouse may need to take extra-legal steps to divide your retirement assets (typically considered “community property” from your marriage date or the agreed-upon date as per #2).

The IRS states:

“If [a retirement plan’s] terms are inconsistent with [United States v.] Windsor or Revenue Ruling 2013-17, a retirement plan must . . . [be] amended to comply with Windsor and Revenue Ruling 2013-17. For example, a plan must be amended if it defines ‘spouse’ by reference to section 3 of DOMA, or only as a person of the opposite sex.”

An experienced divorce attorney will work with you to ensure this is taken care of as per your divorce agreement and settlement.

Work with a mediator first

The divorce process is painful and stressful, even in the “best” of situations. Family law mediators work with couples and their families to mitigate tension, learn about the typical court process, and to save thousands of dollars in unnecessary legal and court fees.

We always recommend that clients work with us through a mediation process first, only hiring us as divorce attorneys if you are not able to come to an agreement via mediation. Read, The 10 Most Common Divorce Mediation Questions & Answers to learn more.

Schedule A Consultation

Would you like to ensure everyone’s rights are respected and attended to during your same-sex divorce in California? Schedule a consultation with me here at the Law Offices of Gerard A. Falzone.

9 Most Common Risk Factors For Divorce

Researchers spend a great deal of time evaluating what makes things work – and what doesn’t. When it comes to the dissolution of marriages, psychologists and legal professionals have determined that there are universally common risk factors for divorce.

Knowing what they are, and remaining vigilant when one or more rears its head in your own marriage or domestic partnership can ensure you get the help and support you need before things fall apart.

Are You Experiencing Any of the 9 Most Common Red Flags in Your Marriage?

The following are nine of the most common risk factors for divorce. If you are already past the point of no return, we highly recommend consulting a family law specialist who focuses on mediation, which can save you thousands of dollars and help to create a smoother transition for you and your children.

Extramarital affair (lack of commitment)

By and large, the two most likely reasons for divorce are cheating and/or a lack of commitment by one or the other spouses. These two reasons alone account for roughly 60% to 70% of all divorces.

Your parents got divorced

If you were raised in a household with parents who got divorced, you are more likely to get divorced yourself. And, of course, the same is true for your spouse. Interestingly, it is not necessarily because your parents provided a model of divorce.

Researchers who studied more than 20,000 adults who had been adopted as children found that the child’s likelihood of getting divorced was linked more closely to their biological parent’s models than their adoptive parent’s models. They believe it is due to genetically linked personality traits such as impulsivity and neuroticism (tendencies towards anxiety, self-doubt, depression, and other negative feelings.

Different drinking habits

If you are a big drinker, and your spouse is not, it can cause problems. The University of Buffalo, NY reviewed couples who were not heavy drinkers, couples who were both heavy drinkers, and couples where either the wife or the husband was a heavy drinker. Those with mismatched drinking habits, 45% to 55% got divorced before their ninth anniversary, compared with a 35% divorce rate for couples who had the same drinking habits/patterns.

Getting married too young OR waiting too late

Couples who marry in their late teens and early 20s, as well as those who wait until after age 32, are more likely to get divorced.

You spent $20,000 or more on your wedding

A 2015 study out of Emory University showed a direct correlation between the money spent on a wedding and a couple’s divorce rate. Those who spent $20,000 or more were 3.5 times more likely to get divorced. On the flip-side of the wedding coins, couples who spent $1000 or less are the least likely to end their marriage.

Less income (as well as less education)

We’re going to put these two factors together. Studies consistently show that couples who have at least a four-year degree are more likely to stay married. They also show that the lower the income or the more money problems a couple have, the more likely they are to split up. Since education and income are linked, it makes sense that a lower level of education and a lower income are both risk factors.

You lived together before you were married

This one may seem surprising since you would think the familiarity and comfort level of already living together before marriage would eradicate any of the initial hurdles of moving in after marriage. But, the reality is that studies have consistently found couples who lived together before they were married have higher divorce rates.

We aren’t really sure why this is the case, but researchers suspect it might be that those who were raised without strong religious connections are more likely to live together before tying the knot, and being raised without a religious background is also a risk factor for divorce.

Poor communication is another risk factor for divorce

These two go hand-in-hand. Individuals who do not have the skills to express their feelings verbally, or who are not good communicators are more likely to either argue and cause conflict, or shut-down and not deal with the emotional challenges and issues that arise in a marriage or long-term partnership. So, when communication skills are poor, arguing and conflict escalates, and one or both individuals are more likely to want a divorce.

Keep in mind that combative partnerships are detrimental to everyone involved, including children. Consulting with a divorce mediator can be the best way to work through the issues together and with as little harm done to the children as possible.

Have a child before marriage (or within the first year of marriage)

Couples who got married after they got pregnant or after the birth of their baby, as well as couples who have a baby within the first year of marriage, are more likely to get divorced than those who marry first and wait longer to bring children into the mix.

How And When To Obtain Emergency Child Custody And Visitation Orders

Child custody and visitation orders are legal documents that stand strong in the eyes of the family law court. That said, there are situations when parents or potential legal guardians can apply for and obtain emergency child custody and visitation orders.

Legally and technically speaking, it is illegal to violate the court’s child custody and visitation orders unless and until a judge has ordered otherwise. Of course, if a child’s physical and/or emotional wellbeing is seriously in jeopardy, California family law courts often make exceptions while the case is moving through the courts.

If you are concerned that the custodial parent is jeopardizing the child’s safety or wellbeing, or is a threat to him/herself and others, contact a local family law attorney ASAP to learn more about your options and to create a plan of action.

Grounds For Obtaining Emergency Child Custody And Visitation Orders

Domestic abuse

If your child expresses the s/he has witnessed or overheard domestic abuse in the form of physical or verbal/emotional abuse, you can apply for an emergency order. This includes both scenarios where a custodial parent is either the abuser OR the abused.

In either case, the court will be inclined to suspend unsupervised visitation or child custody in an abusive household while social workers assess the situation and render their observations and conclusions. In the meantime, if the child desires it, the courts may require supervised visitations with the co-parent, with which you must legally comply.

The child is a victim of abuse or their custodial parent is charged with abuse

If a child reports any type of abuse – physical, sexual, verbal – in the custodial household, it is grounds for getting an emergency child custody and visitation order. If the perpetrator is the parent, the child is typically removed until the investigation is complete. If the offender is someone other than the parent, the courts might agree to remove the child from that household until they have done further research, but they might not if the custodial parent is 100% cooperative and agrees to protect the child from further contact with the suspected perpetrator.

For example, in cases where the reported abuse wasn’t done by the custodial parent, the courts may not grant the emergency order if the custodial parent agrees to remove the potential offender out of the house or to prevent the child from coming in contact with the suspected offender (such as a neighbor, relative, or babysitter). In this case, the parent’s word might be enough and the court will follow through on the case.

If the suspected perpetrator is not a member of the household, and the child expresses that s/he feels safe with the parent as long as s/he’s kept away from the suspected abuser, the courts will probably uphold the current custody/visitation order with specific promises on the custodial parent’s behalf.

A parent threatens to take a child away or withhold visitation

As mentioned above, the standing court order is always the “legally binding agreement” between parents and the courts. If, however, a parent threatens to take a child away, to not return a child on the date specified, or to remove the child across state lines without your consent, you can apply for an emergency order.

As always, this is to protect the child but not to support tension or animosity between exes. So, if the child’s custodial parent wants to take the child across the state/country borders to visit family or for normal vacation, it’s typically best for you to agree. And, your application to the court may backfire on you if the judge feels it had more to do with your ex than supporting your child’s health and safety. It is only when evidence looks like a parent is trying to take a child away or play manipulative games that the court would issue the emergency order.

One parent is refusing to agree to a necessary medical procedure

If your child requires a necessary medical procedure and one parent won’t agree (typically out of fear of the results), the courts may grant a temporary, emergency legal child custody agreement. This allows the parent supporting the medical procedure to make the decisions in the best interest of the child. In that case, California courts call in social workers and legal professionals who analyze all of the information, including medical records and the doctors’ input/recommendations, to form an opinion that is shared with the court.

Co-parenting during COVID-19 sheltering-in-place may be grounds for emergency child custody and visitation orders

Most recently, we have had calls from parents who are afraid their co-parent is not following COVID-19 social distancing and is putting their child at risk for contracting the virus. This is newly chartered terrain, but there may be grounds for obtaining an emergency child custody or visitation order in this case. The cases moving through the courts today will help to set the stage for future years if/when we’ll need to shelter in place to avoid the spread of an epidemic. Again, consulting with a family law professional is your best resource.

We’re Here To Help You When You Need It

Do you need swift support and counsel to move forward with the application for an emergency child custody or visitation order? Contact us here at the Law Office of Gerald A. Falzone and we’ll do whatever we can to facilitate your case as swiftly as possible.

Co-Parenting While Sheltering In Place

Co-parenting while sheltering in place puts multi-household children and their families in a tight spot. On one hand, there is the desire to honor all of the sheltering in place stipulations, which prohibit visiting others’ houses or social gatherings of any kind. However, it does allow traveling to and from your home to other locations for “essential” reasons, and honoring the orders set forth in your child custody agreement is absolutely “essential” in the court’s eyes.

Your Child Custody Order Still Reigns Supreme

While it’s understandable that you or your spouse may have concerns about a child traveling from house to house, and the risk of potentially catching or spreading COVID-19, your child custody order still reigns supreme unless the parents have a written agreement that states otherwise.

Review your child custody order

If you worked with an attorney or family law mediator to draft your child custody order, there may be specific clauses you’ve forgotten about along the way. This may include information such as:

Does illness or medical emergency alter the co-parenting while sheltering in place?

Sometimes, child custody orders dictate that an illness, serious injury, or other medical emergency alters the plan. Nolo.com writes, “If your child has asthma, is immunocompromised/suppressed, or has another underlying medical condition that makes your child more susceptible to COVID-19 or resulting respiratory complications, you should speak to your child’s pediatrician for advice and talk to your ex about how to reduce the risk to your child in both homes.”

Perhaps a child remains longer with one parent or another to provide a greater level of stability during healing. The other parent will be fully entitled to a make-up time later on and can use Zoom or other video-streaming, phone calls, online games, letters, texts, email, and other digital options to remain closely engaged with his/her child.
If your child is diagnosed with coronavirus, you may have to disclose that to the other parent or you may not – it’s probably in the agreement.
If you or the co-parent are diagnosed with a contagious, life-threatening illness (such as COVID-19) it could be considered negligence to keep that information from your child’s other parent or to have your child in your home again until you recover are test negative for the virus or contagion.

Your child custody agreement is your primary resource. But, of course, it is only a template. It cannot answer every question or dilemma that may arise throughout the course of life’s unpredictability. For that, you rely on (hopefully) healthy communication skills.

Visit 7 Tips For Positive Communication with Your Ex to help set the stage for open, honest, and heartfelt conversations.

Create An Agreement For Co-Parenting While Sheltering In Place

If you and your child’s other parent are more or less in agreement, see if you can draft a simple COVID-19 Co-Parenting Agreement that prioritizes overall health and wellbeing – starting with the child’s and then including each of the parents and other household members.

Have an honest conversation around:

Your ability to honor shelter-in-place orders. If both households are vigilantly honoring the tenets of the Bay Area’s shelter in place orders, there’s no reason a child can safely travel between homes (always washing in and out, of course).
Are one of you at higher risk for contracting COVID than another? Some of my co-parenting clients work in the ICU or healthcare industries, or in supermarkets where they feel especially exposed. In these cases, some of them have established it’s better to have the child remain 100% with the other parent and have gotten creative with visitation. Others have established their own honoring of protective gear and sanitization routines are enough to protect them and their child(ren).

Is the child expressing a wish to remain with one parent over the other right now? Some households are more tense, anxious, and afraid right now and can spill right over onto the children. If your household climate, or your ex’s, is agitating your child or seems detrimental to his/her sense of safety, happiness, and security, s/he might express a desire to spend more time with one parent over the other. In this case, you can make a temporary agreement to accommodate the child’s understandable request.
Will there be changes to child support/alimony during this time? While you can apply for a modification to any child support or alimony payments as a result of COVID-related financial hardship, you’re still beholden to the original agreement unless the two of you have agreed to temporary changes.

That said, any disagreement between the parents needs to be resolved ASAP with help from a family law specialist or the judge. In the meantime, the existing order or agreements remain in place. If you truly feel your child’s health is at risk, you and/or your lawyer may be able to obtain an emergency child custody/visitation order. Click Here to learn more about that.

Get Your Changes in Writing

If you decide to create a temporary COVID-19 Co-Parenting agreement, make sure to get it in writing. Even a clearly worded, detailed email that states the new tenets of the agreement – and the recipients have written acknowledgment and agreement of those changes – may be enough to hold up in court if a dispute arose afterward. However, I highly recommend working with a family law professional, even if it’s a one-time consultation with a mediator, to keep your child custody and visitation agreement clear and legally sound.

The agreement can always include that either party retains the right to revert back to the original agreement, or to amend the temporary version, by communicating in writing to the other parent. You may also want to clarify that the temporary agreement is immediately null and void and that both parties will revert back to the legal co-parenting agreement as soon as sheltering in place restrictions are reduced or eliminated.

Need Professional, Third-Party Support?

Would you benefit from third-party support from a family law professional as you navigate co-parenting while sheltering in place during COVID-19? Contact us here at the Law Office of Gerald A. Falzone. I work with couples to calmly and compassionately make decisions that always prioritize the child’s and family’s well being.

Is Alimony Modification Possible If I’m Unemployed?

If you make court-ordered alimony (spousal support) payments, you must maintain the payment schedule whether or not you are unemployed. Even if you and your former partner have a verbal agreement, and s/he agrees to take a reduced payment, you must continue making the payment in full until a new court order has been issued.

The California Family Law Courts state:

Unless the judge signs a new court order, the existing spousal or partner support amount and order will not be changed. So, to protect yourself, even if you have a verbal agreement with your spouse/domestic partner to change the spousal or partner support amount, put it in writing and have a judge sign it. That way you have a current spousal or partner support order that reflects the current amount.

A court order translates to a legal obligation, and failure to meet that obligation can have severe consequences (see below). Continue making full spousal support payments until a family law court orders an alimony modification or otherwise.

As with child support, the court expects you to pay the full amount of your court-ordered payment whether you are working or not. In fact, family law courts typically view unemployment as a temporary situation. They view your education, training, prior work history, the average of your last 12-months of earning, and other pertinent details to establish your general earning potential.

According to the Bureau of Labor Statistics, most unemployed adults find a new job in about five to 15 weeks. As a result, the courts consider unemployment to be a short-term situation. If you are unemployed, the courts expect that you will be employed shortly as a result of your diligent job hunting attempts, fueled in part by your legally enforced alimony payment obligations.

Even so, you should ask for a spousal support modification sooner rather than later in case a modification lowering or waiving your payments will be granted.

Applying For An Alimony Modification May Help

If you are actively looking for a job and have not found one, you can apply for an alimony modification of payment. This is also the case if your unemployment is due to something more serious than a typical job layoff. For example, if you are recently disabled or facing a diagnosis of terminal or chronic illness, you may be eligible for a spousal support payment modification.

We recommend working with a family law attorney who can provide you with legally sound advice while facilitating the payment modification process.

In California, you begin the process by completing and filing the following forms, available on the courts.ca.gov website:

Request for Order (Form FL-300 “https://www.courts.ca.gov/documents/fl300.pdf”). You can use the Information Sheet for Request for Order (Form FL-300-INFO “https://www.courts.ca.gov/documents/fl300info.pdf”) for information to fill out FL-300
Income and Expense Declaration (Form FL-150 “https://www.courts.ca.gov/documents/fl150.pdf”).
If you are changing a spousal or partner support order made as part of your divorce or legal separation judgment, or after the judgment, it may be helpful for you to use the Spousal or Partner Support Declaration Attachment (Form FL-157 “https://www.courts.ca.gov/documents/fl157.pdf”). This form asks you to provide the information the judge will need to make a decision in your case, addressing all the factors the law tells the judge to consider when making decisions about long-term spousal or partner support. This form is optional, but even if you do not use it, you may want to take a look at it to make sure you understand what you will have to prove to the judge.
Also, use a Declaration (Form MC-030 “https://www.courts.ca.gov/documents/mc030.pdf”) or an Attached Declaration (Form MC-031 “https://www.courts.ca.gov/documents/mc031.pdf”) if you need more space to explain why you believe a change in spousal or partner support is needed.

Again, we recommend having those forms reviewed by a family law facilitator. Even a one-time payment for their time will ensure the forms are filled out completely and correctly. Filing incomplete forms, or forms containing errors can result in the forms being kicked back to you – delaying the court date and potentially modified payment reductions. Finally, don’t forget to make two copies of the forms, one for you and one for your former spouse/partner.

Once the forms are completed and filed, you’ll move forward with additional steps for alimony modification, including:

Getting an official court date
Serving your former spouse or partner with the relevant forms
Filing proof that your former spouse/partner has been served
Attending your court hearing

Penalties For Failing To Pay Court-Ordered Spousal Support

The courts have a very clear format for penalizing individuals who are delinquent in paying alimony or child support payments, including reduced or missed payments. This includes:

Wage garnishment
Garnishment of tax returns
Repayment plans with 10% interest tacked on (paid to your former spouse/partner)
Suspension of your driver’s license
Jail time

Again, a one-time consultation with a family law attorney can make all the difference in ensuring spousal support payments are fairly based on your current employment status and earnings, and to facilitate the modification process.

Contact the Law Offices of Gerald Falzone to schedule a free, 30-minute consultation or to schedule an appointment to discuss how your current unemployment situation could lower or waive alimony obligations.

Effects Of Divorce On Child School Performance

It’s no mystery that children suffer from the effects of divorce when parents separate and suffering can hurt a child’s school performance, social interactions, and a sense of self.

It is not easy to navigate the role of “adult getting divorced” and “parent,” but the more you can do to positively support your child’s process and provide the mental/emotional support they need, the better off they will be at school, at home, and in the world-at-large.

FYI: Children are not alone. Divorce can also impact a parent’s work performance. Read The Effects of Divorce on Work Performance to learn more about how to support yourself through the process as well.

Statistics Around Divorce And Its Impact On School Performance

Some studies have shown that students with divorced parents:

Have lower overall GPAs
Are more likely to have to repeat a grade
Have lower comprehension scores
More likely to have behavior and impulsivity issues at school
Are less likely to attend/graduate college

While that sounds bleak, more recent and comprehensive studies indicate there’s more to it than that. Statistics from a recent UCLA study on divorce and its impact on school performance took a bigger-picture view.

Researchers divided families into three different groups: couples unlikely to divorce, couples more likely to get a divorce, and those who fell in the middle.

In families in the “unlikely to divorce” group, children of divorced parents were 6 percent less likely than children of non-divorced parents to graduate from high school and 15 percent less likely to complete college
For children in the “likely to divorce” group, there was virtually no impact on their likelihood to graduate from high school or college if their parents’ marriage ended. The paper noted that children in that group already have lower levels of academic achievement — so a divorce generally didn’t make things better or worse for them.

Ultimately, it seems like socio-economic stability, and emotionally healthy home has more to do with academic success than divorce rates. While divorce often causes temporary or semi-long term ripples in a child’s behavior or academic progress, an emotionally healthy and supportive household allows children to regain their traction.

The Psychological Effects Of Divorce On Children

It’s also important to remember that a decline in academics or escalating behaviors at school is a normal response to emotional upset.

Your honest communication and preparation are essential

According to verywellfamily.com:

Children from divorced families don‘t always perform as well academically. However, a study published in 2019 suggested kids from divorced families tended to have trouble with school if the divorce was unexpected, whereas children from families where divorce was likely didn’t have the same outcome.

Read 5 Tips For Helping Children Cope With a Divorce for more information on how to support your children (and yourself) through the process.

Emotional impacts affect the ability to concentrate or focus

The emotional impacts of divorce are like a continued ripple effect. There are so many things going on at the same time. In addition to losing the security of two parents who live together and a familiar home landscape, many children must move to a new home, change schools, make new friends, or change sports teams – all amid their personal, all-time low.

Children often feel they’re somehow to blame for the divorce, or that if they were “good enough” the parent who has moved out or changed houses would have stayed, etc. etc. All of this diminishes their ability – and their will – to focus on academics.

Negative feelings are painful to hold, and they’re difficult to express, which means they can come out in detrimental ways.

Children may outwardly resent and punish you

If academics are a household value, your children may also use academic decline, disruptive behavior at school, or negative peer interactions to punish you. This is a call for help, and any notable decline in academics, social isolation, or atypical behavior issues at school should be handled with care and close attention if it doesn’t resolve in a reasonable amount of time.

Informing the school can instrumentally help

Telling the teacher, administration, and counselor can be instrumental in helping your child. While you may feel as if the information is private or embarrassing, the faculty’s awareness of your child’s experience can exponentially support your child as s/he adjusts to the new version of normal. Together, you can collaborate on the best ways to support the child, tailored to his/her personality and needs and the school may be able to offer counseling support as needed, as well as space to take breaks or vent.

Contact the Law Offices of Gerald Falzone to work with a Bay Area family law attorney who specializes in mediation and whole-family divorce support to improve the family’s emotional wellbeing.

Can I Have My Child Transfer Schools During A Divorce?

The parameters around whether you can have your child transfer schools during a divorce are governed by the current custody agreement – temporary or legally -, a court or judge’s decision and the emotional wellbeing of your child.

While we can provide general information about transferring a child’s school during a divorce, we recommend consulting with a family law attorney if you haven’t already before making any final decisions.

Will Your Child Transfer Schools During Your Divorce?

If you transfer your child without respect for California child custody laws, you may jeopardize your own custody status in the eyes of the law.

What is best for your child’s mental and emotional wellbeing?

First and foremost, your child’s mental and emotional wellbeing should be the top priority before making the decision to change your child’s school. Divorce is extremely hard on children, disrupting their sense of self, their security, and their happiness. As the secure and familiar world they know begins to splinter and re-build around them through the divorce, the stability of the same school and friends can provide a healthy anchor while children slowly adjust to their new life with divorced parents and a divided home life.

If you haven’t already, consider meeting with a family law mediator to negotiate child custody agreements, as well as decisions around whether or not to change a child’s school. This can save you thousands of dollars in legal fees, and neutral mediators are experienced at smoothing over the rough emotions that can get in the way of making the healthiest decisions for your child.

Read How to Prepare for Child Custody Mediation for more on that topic.

Is the decision a mutual one between you and your spouse?

If the decision is mutual, there should be no issue. That said it is a good idea to get your mutual consent in writing and sign it. That way, if negative feelings or contentious disagreements arise in the future, you have proof that your ex-spouse supported your decision.

Do you have sole or joint legal custody?

If you have sole legal custody, you can change your child’s school without permission from your ex. If your spouse has visitation rights or partial/joint physical custody, you should notify him/her about your decision so s/he can’t say that you’re trying to keep the child from him/her by withholding information about where your child is, needs to be picked up for visitation, etc.

If you have joint legal custody, you cannot transfer your child to another school without your ex-spouse’s consent OR a judge grants you permission.

Is the new school a reasonable distance from your ex’s home or place of business?

If you have joint physical and legal custody, it makes sense that your child’s school should be a reasonable distance from your home, and your ex’s. Transportation to and from visitation is a 50/50 endeavor between parents. If your chosen school is notably further from your ex’s home or work than the current school, s/he has a right to oppose it. In that case, you may need to go to court.

Will your child transfer schools and be happy?

How does your child feel about the transfer? Hopefully, your child’s feelings are seriously considered by you and your ex-spouse. Keep in mind that if your child does not want to change schools, and your ex opposes you, the judge may not side in your favor if you wind up in court.

Is transferring your child’s school worth a trip to the courtroom?

If you have joint legal custody (even if you have sole physical custody), you cannot make the decision to transfer your child’s school until your ex-spouse agrees or the court orders it so. If your ex is not willing to budge on his/her stance, you will need to go to court and let the judge decide. This can cost thousands of dollars if lawyers have to be involved, and there is a chance the judge will want to hear from the child, which can be traumatic for some children.

While younger children’s testimony is sometimes requested, California Family Code 3042 states that children who are 14 years or older, and who can clearly express their feelings or preferences can have a say in where they live and where they go to school. If your child is 14-years old or more, the odds are the judge will want to know how s/he feels about the idea of transferring. While judges do not automatically base their decision on older children’s feelings, they do take the child’s testimony into consideration to establish whether your reasoning justifies the switch.

We’re Happy To Serve You

Contact me here at Falzone Law, 415-582-7800, and schedule a free, consultation. In addition to reasonable hourly fees, I am happy to serve as a mediator to keep you out of the courtroom and facilitate a more streamlined divorce and child custody agreement process.

Can My Ex Track Me During My Parenting Time?

Even the smoothest of divorces are emotionally complex when children are involved. All of a sudden, the loss of control over where your children are and what they’re doing when they’re with the non-custodial parent can lead to excessive worry and concern.

That worry or fear, combined with the innovation of GPS trackers and other monitoring devices, can make it tempting to track the non-custodial parent when they have custody of the children. This is completely illegal in the state of California.

Is Your Ex Tracking You During Your Parenting Time?

If an ex is tracking you during your parenting time, you should consult with an experienced family lawyer who can help you decide what to do next.

California is a dual-consent state

California is a dual-consent state. This means that both parties must consent before wiretapping, GPS tracking, or other location tracking devices are used to monitor someone’s movements or behaviors. In addition to facing criminal charges, any information or evidence supplied by these devices is considered null and void in a courtroom.

However, there are exceptions to this law. The most common is if your ex has convinced the courts that you are at risk for taking the children outside the jurisdiction without consent. In this case, a judge can order tracking devices on your car, phone, etc., so your ex can keep track of your movements when you have the children.

Again, the ability for an ex to track you during your parenting time would only be legal if it was ordered by the court. Otherwise, s/he is violating your right to privacy and your rights as a parent. If you have found a GPS or other tracking device on your car or phone that was installed for your ex’s use, without your consent, s/he can face civil and criminal charges.

Avoid the need for your ex to track your movements during parenting time

Any time spent in a courtroom is expensive, and it can create ugly, unnecessary emotional entanglement that is detrimental to your child(ren)’s wellbeing. If your ex is so upset or worried that s/he’s threatening to track your movements when you have the children, we recommend taking the following actions.

Meet with a family law mediator

Meeting with a licensed, family law mediator can work wonders for facilitating communication between ex-partners who cannot see eye-to-eye about child custody arrangements, or who are not acting or thinking rationally when it comes to the other partner’s time with the children.

Family law mediators are completely neutral parties. We do not take sides. We simply facilitate communication and negotiations between two parties and let them know what a judge would be most likely to say or decide if the issue is brought to court.

Because you pay by the hour, session, and/or the documentation required for filing – family law mediation continues to be markedly more affordable than hiring a lawyer and going to court. Simply put, mediation often saves couples tens of thousands of dollars in legal fees.

Consult with a family law attorney

If your ex is unwilling to go the mediation route, consult with a family law attorney to explain your situation and determine the next steps.

The goal is always to move forward with the least amount of stress and contention as possible, so the first step may be for your lawyer to write a letter explaining the illegality of your ex’s threat to track you – and that legal steps will be taken if you are, indeed, being tracked without your consent.

If first-step actions are ignored by your ex, we can move forward with further steps to protect your rights and to support you in building a trusting relationship with your children.

Find evidence of the tracking device(s) and take action

Next, it’s time to consult with device tracking professionals who can scan your vehicles, phones, computer, etc. to locate and identify actual tracking devices. This is the evidence you would need to pursue action from the courts.

Just as a judge hates to be lied to about hidden assets, s/he also balks when an individual says they haven’t been tracking their ex – only to have evidence presented to the contrary. There is no point in taking legal action until you have solid proof of tracking devices to follow it up.

We Are Here For You

Do you need professional legal and emotional support as you work through sticky and painful child custody details? Please give me a call, 510-521-9500 (Oakland) or 415-482-7800 (San Rafael), or contact the Law Offices of Gerald Falzone online to schedule a free consultation.

Can Child Support Debt Be Consolidated?

Court-ordered child support payments are strictly enforced, and failure to pay on time – or skipping payments – has serious consequences. Child support debt consolidation is an option, preventing you from paying steep interest rates, or facing some of the more dreaded results of getting behind in your payments, including:

Suspension of your driver’s license
Legally enforced payback interest rates of 10% or more (paid to the child support recipient)
Wage garnishment
Tax return garnishment
Property and/or asset seizure
An outstanding warrant for your arrest
Jail time

While it can feel like child support enforcement is out to get you, the system is equally rigged in favor of child support debtors getting back on track.

Determine If Child Support Debt Consolidation Is The Best Option For You

Debt consolidation can be a solution, clearing the money you owe (child support arrears), to get you back on track. However, it’s not always the best solution.

Continue making payments on time

Keep in mind that you are legally responsible for continuing to make monthly child support payments while a debt consolidation loan is pending. Skipping on payments while waiting for the loan to come through can backfire if you owe thousands more than the debt covers when the loan finally funds.

Is there a family member willing to provide a low-interest loan?

Both the interest charged by Child Support Services and the interest charged for most unsecured loans is on the higher side.

In California, and here in the Bay Area, the standard interest rate charged by the state for child support arrears is 10%.
The average interest rate for a consolidated loan is 8% to 28%, depending on your credit history.

You may find that taking a loan from a family member or friend, drawing up the paperwork, and deciding on a slightly lower interest rate is the happier medium.

Secure fixed-rate loans at rates that are higher than what the state charges

If your child support debt consolidation loan has an introductory rate of 8% but comes with an APR (adjusted percentage rate), you have no control over the amount the interest will raise over the course of the loan term. So, while the original 8% rate feels like a deal, you may wind up paying twice that – or more – over the ensuing months or years.

It may be worth it to work with the county where the child support order originated – or where the petition to collect back owed child support was filed. They are willing to work with you directly to come up with a reasonable payback plan, and their fixed interest rate may save you money overall.

Have you looked into child support modification?

California is known for having higher-than-average child support payments because the state uses an amount per child driven by both parents’ joint income, rather than a fixed “cost per child” amount.

However, this also means the amount you owe is fluid to a certain point. If your child’s other parent gets raises or bonuses, those need to be reported, as do yours. The same is true if a person makes notably less money than they did when the divorce and child support orders were filed.

Visit the Child Support Services website, where you can use the online calculator to estimate current payment obligations, speak with a free family law specialist, or begin the process to request a child support modification. The child support recipient is equally obligated to help with this process (the county will take it over if s/he isn’t cooperative) by providing their most recent paystubs and/or tax information.

If you know s/he is making money under the table, the combination of a private investigator and some well-timed surveillance can result in evidence that not only lowers your payments but results in the other parent having to pay you back with interest.

Does bankruptcy clear child support debt?

No, Chapter 13 bankruptcy does not clear child support arrears. Child support debt is considered a “priority debt,” and it will be added into your Chapter 13 priority debt repayment plan – including the state’s additional 10% interest rate.

Keep this in mind because knowing that may mean that filing bankruptcy will do more harm than good for your overall financial situation.

If the stress of child support debt is weighing you down, or you’re tempted to bury your head in the sand, it’s time to contact a family law specialist and schedule a consultation. We can help you sort out exactly which plan makes the most sense for getting you back on track, and we can facilitate your request for child support modification.

We’re Here To Help You

Contact us here at Gerald A Falzone, to schedule a child support debt consultation, so we can work together to find a solution. We have two convenient office locations – Oakland (510) 521-9500, and San Rafael: (415) 482-7800.

The Biggest Child Support Mistakes To Avoid

When it comes to deciding child support allocations, the state of California is transparent, and the financial parameters are primarily determined by incontestable, mathematical logarithms. In other words, what you’re going to pay – or receive –rarely varies from the legally-specific standards.

That being said, there are serious child support mistakes you can make that result in harsh fines, stiff interest rates (payable to the child support recipient), or that can jeopardize other aspects of your child custody case.

Always consult with a lawyer, and remember that honesty is always the best policy – even if it means paying more.

6 Child Support Mistakes to Avoid During and After Your Divorce

These are some of the most common child custody mistakes, the bulk of which occur when parents don’t have an experienced lawyer or legal professional advising them through the process.

Hiding or lying about your income

This one is huge. Just as you should never lie about or try to hide assets during a divorce, you should never hide income – including side job income – from the courts or your partner/ex-spouse when you pay OR receive child support.

This is one of the simplest ways to make a judge angry – and you can be held in contempt of court. Plus, you will wind up owing back-pay (child support arrears) and the rate of back pay interest is a whopping 10% – made payable to the child support recipient.

Making payments outside the court-approved methods is one of the common child support mistakes

Many counties in the Bay Area use a wage garnishment method to collect court-ordered child support payments. This is a streamlined approach with the funds paid by your employer to the local child support services office, with payments automatically transferring to the other parent. This can be unnerving at first but is beneficial to both parties.

As the person responsible for paying, this method ensures you’re never late with a payment, which could immediately trigger a driver’s license suspension through the CA DMV – and places you in arrears. Emotionally, it takes money out of the equation so co-parenting your child(ren) remains the primary focus.

However, each county has its own court-approved child support payment methods, and these are the only methods you should use to pay/receive child support payments to alleviate any potential hassle down the road.

Always report changes in income – in either direction

If you have taken a recent income hit, report it to your local child support services and request a modification. This may lower your child support payments. On the other hand, all raises, major bonuses, or side job income should also be reported to the payee, so s/he can determine whether or not to apply for a modification in the other direction.

Angry ex-spouses commonly hire private investigators to track your habits and prove uncited employment, side jobs, etc., so it’s not a good idea to hide or be dishonest about any means of income. Again, the online child support guideline calculator is the best resource for determining if current income changes would alter child support payments.

Quitting a job or not getting a new job when unemployed

Unemployment and/or disability status does not change or stop your current child support order. You owe the amount stated in the order regardless of your personal or financial circumstances – unless and until a modification is granted. If you are at all employable, the court determines your earning potential and bases child support payments on that figure – regardless of whether you have a job or not.

Pay precisely what the court order dictates

If you have a court order, always pay the stated amount, no matter what. So, for example, let’s say you’ve fallen on hard times, and your generous ex says you can pay less until you get on your feet – your answer should be, “thank you, but no thank you.”

While you’re welcome to apply for the aforementioned child support modification, you are obligated to pay the court-ordered amount, period. If your ex were to turn you report that you’ve paid less, you’ll owe back payment and interest.

Not adjusting your budget (and paying something) immediately

California uses a precise mathematical algorithm, that takes the combination of both parent’s incomes, and determines a specific percentage of that as the “cost of raising their child(ren). That percentage is used for resulting mathematical calculations to determine who owes what to whom.

We often find that clients are surprised at how steep these individual payments can be. And, most of the time, those payments are owed from the time the person responsible for paying the support moves out – even if the divorce papers haven’t been filed yet.

If you are pretty sure you’ll be paying child support, use California’s Child Support Guideline Calculator to determine the estimated amount you’ll be paying and plan your budget accordingly. Getting used to life without that money now makes it easier when you need to start paying. Note: Child support may be allocated to parents in 50/50 child custody arrangements in order to ensure a child’s reasonable standard of living is upheld in both households.

We’re Here For You

Are you interested in paying a fair and honest child support payment, and remaining in the court’s good graces? Contact me here at The Law Offices of Gerald J. Falzone. I’m prepared to meet with you for a consultation or two in order to answer questions or help you establish estimated child support payments, to facilitate child support or custody mediation, or to represent you in court. You can also give our office a call at (510) 521-9500.