Category Archives: Family Law

What You Should Know About Supervised Visitation

Supervised visitation with children is a child custody condition the family law courts order on a case-by-case basis. While not common, they are designed to facilitate strong, healthy bonds between the child and the non-custodial parent while prioritizing the child’s physical and emotional health and wellbeing.

If you believe your child is not safe with a non-custodial parent, or you feel your child is afraid of his/her non-custodial parent and needs support building trusting bonds, supervised visitation may be worth pursuing with the help of a family law specialist or divorce attorney.

5 Things to Know About Supervised Visitation In California

Here is what you should know about supervised visitation: who it’s for, situations where it’s recommended, and other important information.

A judge is most likely to order supervised visitation in CA when…

The Family Law Courts of California have a range of situations in which custodial parents can pursue (or a judge may automatically order) supervised visitation between a non-custodial parent and his/her minor children.

These are:

To give the visiting parent a chance to address specific issues (this could include alcohol/drug abuse or other addictions that are untreated or currently in treatment)
To help reintroduce a parent and a child after a long absence
To help introduce a parent and a child when there has been no existing relationship between them
When there is a history or allegations of domestic violence, child abuse, and neglect, or substance abuse. Read, 7 Steps to Take Before Leaving an Abusive Spouse, to learn more about that topic.
When there are parenting concerns or mental illness
When there is a parental threat of kidnapping or abduction.

Your family law professional will listen to your story determine whether your situation warrants pursuing supervised visits with your child(ren) and his/her other parent.

Supervised visits take place with a family member or social worker present

The custodial parent is not allowed to be present during the visits. In addition to interfering with the bonding between the other parent and your child, your presence can trigger tension, stress, or even anger/trauma that inhibits or impedes the climate or emotional space of the visits.

Instead, the court will determine whether your child’s supervised visits should take place with another family member present or with a social worker – or a combination of both.

Visits can take place in the other parent’s home, a park, or other designated location

Where the visits take place depends on your particular situation. For example, if there is any risk of violence, the visitation is typically ordered to happen in a public space (like a park or downtown plaza) or in a designated child custody visitation center where social workers are present. If, however, the violence is not a threat and the other parent’s home is considered safe, the visit may take place in the other parent’s or a relative’s home – but with the court-appointed supervisor(s) present.

The courts will provide very clear and detailed guidelines about who will be there, where the visits will take place, the duration of the visits, and so on.

Supervised visitation with a child may be temporary or indefinite

In some cases, such as untreated addiction without a history of violence, the judge might require supervised visitation for a temporary amount of time. In that case, s/he may order that visits are to be supervised until the parent has successfully completed a substance abuse program and is meeting regularly with a mental health professional or sponsor of AA, etc.

Temporary supervision is also common in cases where the child hasn’t seen the other parent in a while, after the parent finds a suitable home, or is successfully managing a mental illness.

Other times, particularly if domestic, child, or sexual abuse has occurred, supervised visitation orders may remain indefinitely or permanently. In all cases, the situation is systematically reviewed by the courts with the child’s wellbeing as the top priority.

You can request supervised visitation for your child at ANY time

You can request supervised visitation for your child at any time if you feel his/her safety or emotional wellbeing is at risk. Things that seemed fine at the beginning may turn sideways and become evidence in a child’s reluctance to spend time with a particular parent (very different from preferring one house over another) as a result of fear, trauma, witnessing domestic violence in the other parent’s home, the development or returning to addiction, or you may notice attendance or academic issues related to the child’s visit with the other parent, etc.

In this case, you file for a child custody modification (read, What Are Post-Judgement Child Custody Modifications, to learn more). While you do not need a legal professional to file one, it can be very helpful. The courts require specific and detailed proof or evidence to modify a standing child custody agreement, especially if your request is for supervised visitation. Your lawyer will make sure you have everything you need to protect your child with as little courtroom time, drama, or stress as possible.

Have questions about your child custody agreement or wish to learn more about what you should know regarding supervised visitation in California? Contact the Law Offices of Gerard A. Falzone.

7 Important Steps To Take Before Leaving An Abusive Spouse

Taking the steps necessary to leave an abusive spouse takes a tremendous amount of strength and courage. Breathe into that and know that you have a community of people here to help support you through the process.

The priority is to keep yourself and your children safe while doing what’s necessary to legally extricate yourself from any binding relationships if necessary.

Before You Leave Your Abusive Spouse

Use the National Domestic Violence Hotline ASAP

If you haven’t already, we highly recommend using the National Domestic Violence Hotline as often as you need. This free service can provide invaluable support for women and children, and experienced, knowledgeable, and compassionate representatives are available to answer questions, offer information, make recommendations, etc., 24 hours a day, seven days a week.

You can contact them online here or by calling them at 1-800-799-SAFE (7233) or TTY 800-787-3224.

Contact an attorney with experience handling domestic abuse cases

The reality is that domestic abuse is a very delicate situation when it comes to leaving, separating, and divorcing a partner. Nobody understands that more than you. The problem is that many “experienced” divorce attorneys are actually not all that experienced at handling divorces involving domestic violence. As a result, they can make rookie mistakes that compromise the safety and wellbeing of their clients and families.

Seek counsel with Bay Area divorce attorneys who have experience with domestic violence cases and who can provide sound counsel around how to protect yourself as well as helping to facilitate a swift and as drama-free divorce as possible. We can lead you through pre-divorce counseling sessions so that you are protected, safe, and ready to launch when you officially file your divorce paperwork.

Identify and confirm a safe space to flee to

Leaving on the spur of the moment or in the immediate aftermath of a fight is not always the best move because it leaves you little to fall back on. Often, clients who’ve done that find themselves having to return to their abusers because they have nothing with them to take that first next step. Click Here to access a list of Bay Area domestic violence organizations and shelters. Call ahead of time and they can help you make a plan.

We can’t emphasize enough how important it is to bide your time and plan well. Secure a safe location, whether it be a local women’s shelter or a trusted friend. Under NO circumstances should you share your location with your partner. Make your move when you are calm and collected, have all of your necessary documents (birth certificate, license, passport, credit cards, a flash drive or cloud account to access your resume and contacts, cash if possible, etc.), as well as clothing, shoes, and toiletries.

Make sure you have the following items

We want to re-emphasize the documents and items you want to bring with you if at all possible. They will be necessary as you step into your new life, and they are also complicated to get a hold of once you are out of your home.

Driver’s license
Social security card
Passport/REAL ID
List of key contacts both printed and in some type of cloud storage (such as DropBox) so you can access it with your prepaid phone (See #7)
Health insurance cards
Bank account statements
Any copies of existing or former restraining orders (Don’t have a restraining order in place? Visit, Do I Need a Restraining Order, to learn more)
Copies of tax documents for the past three years
Marriage license (if you have one)
Your birth certificate
Kids’ birth certificates
Copy of your resume
Clothes (both casual and work/interview appropriate)
Toiletries
Any precious heirlooms/jewelry/etc., that is small enough to take with you

Your credit cards and some cash are also ideal to have with you. Abusers are notorious for canceling credit cards as soon as their partner gets away, so be prepared for that. If you have the ability to get your own card, that is ideal. OR, get a cash advance on existing cards so you have working cash in case your credit cards are canceled in an effort to strop you of your resources once s/he’s learned you’ve left.

Get a post office box

Secure a post office box before you leave and begin having your mail forwarded there. If you can, consider using a post office or mailbox location that is out of your normal loop or routine so it isn’t as easy to trace you there. These locations are secure and there is no way your abuser can find out your new address if you don’t offer it to him/her.

Only access your mail in full daylight, during busy times of the day, so any potential altercation will have witnesses and more access to protection from the public.

Speak to your children’s teachers, principal, coaches, etc.

Share your situation with the teachers, administrators, coaches, etc., in your children’s lives. Make sure they also have copies of any existing restraining orders.

This can feel embarrassing or intimidating, but remember that your abusive spouse is the one who should be embarrassed. You have done nothing wrong. Your leaving is an act of courage, bravery, and love for yourself and your children. It will be seen as such by others and learning to grow into a lean on your expanding community will be a good first step as you begin baby-stepping into your new life.

It’s also good for the adults in your children’s lives to know what is going on. It’s very common for children of domestic violence and/or divorce to struggle in school, withdraw socially, become more sad or angry, etc., and so knowing what is going on allows the adults in their lives to provide better and more compassionate support.

Acquire a prepaid cell phone before leaving an abusive spouse

These “burner phones” are exactly what you need because the calls can’t be traced. Do not share the number with anyone who might even consider giving it to your abusive spouse. If you have a moment of weakness or you suspect your abuser has found out your new number, you can ditch the old phone and get a new one.

Call Us When You’re Ready To Leave

It breaks our heart that posts like this need to be written. That said, we are here for you whenever you need expert legal counsel or advice about your domestic abuse situation and to begin taking you through the steps to file and finalize your divorce. Contact me here at the Law Offices of Gerard A. Falzone to schedule your free phone consultation, or call me at 510-521-9500 or 415-482-7800.

What To Do After Your Divorce Is Finalized

Divorce proceedings require a tremendous amount of energy and time. It’s go, go, go, and the energetic let down when a divorce is finalized often takes clients by surprise. The temptation to tuck things away in a file drawer and never look back is natural, but there are several things you should do first.

Are you at the beginning of the divorce planning stages? Read our page about Divorce Mediation, which is a much more streamlined, affordable, and smoother way to navigate the divorce journey.

7 Things to Do After Your Divorce is Finalized

We advise clients to honor the finalized divorce by taking care of these seven checklist items before charging forward into their new life.

Make copies and keep key documents in a safe place

There are certain things you will want to hold onto indefinitely after your divorce because you may need them later on. These include originals and copies of:

Your original marriage certificate/license
Your finalized divorce paperwork
Separate copy of spousal support/child support/custody/visitation documents
Financial statements (courts often ask for years’ worth of these records if either party ever asks for spousal/child support modifications
Settlement agreement from the divorce

We recommend keeping originals in a locked, fireproof drawer or safe, with copies held in an easy to access file cabinet.

Complete anything laid out in your divorce/child custody orders

If you are responsible for taking any actions as part of the divorce decree, do it without hesitation. This includes things, like:

Dividing or allocating relevant properties as ordered
Changing any ownership or titles for cars, boats, other toys to reflect the finalized divorce
Making alimony or child support payments in-full and on-time
Following any instructions provided by the courts or your lawyer

If you don’t take care of ordered business immediately, the courts may fine you or penalize you further.

Close and reopen financial/credit accounts

If you haven’t already done so, it is essential that you speak to any and all financial institutions, credit card companies, retirement account holders, etc., and let them know your divorce is final. In some cases, presenting them with the finalized divorce papers will be enough to remove a spouse from the account.

However, more and more, financial companies and credit card companies require customers to close existing accounts and reopen new ones to ensure a former spouse doesn’t have access to your money, your credit, or your personal information.

Update (or create) your estate plan

When one spouse dies, the remaining spouse automatically inherits everything unless there is an estate plan stating otherwise. Similarly, if your ex-spouse is currently listed as a beneficiary or POD (pay on death) recipient, s/he will automatically receive any funds from those accounts when you die. It doesn’t matter if you were divorced 20 years ago and remarried, or if your children believe they were entitled to the funds, financial institutions honor the most recent beneficiary, POD name, or will/trust information without question.

Verify insurance coverage will your carriers

Connect with insurance carriers (homeowners, health, auto, life, etc.) to ensure you are still covered and to verify whether they need any additional documentation or information. Many policies and premiums are structured according to whether an individual is married, single, or divorced – and they consider it your responsibility to let them know when legal status changes.

Make name changes with proof of divorce documents ASAP

If your divorce has inspired you to change your name, do it now. It takes quite a bit of time and paperwork so the sooner you get going, the sooner it will all be done. Even when you think you are done, odds are there will be an account, a travel membership, a club, nonprofits you’ve donated money to in the past – who have you listed under your former name.

Start with name changes for:

Social Security
Driver’s license
Passport/REAL ID
Your employer and HR office
Children’s school documents
Financial accounts
Retirement savings
Investment accounts
Credit cards
PayPal and other financial vendors
Magazine subscriptions
Travel/airline memberships

It does take time and diligence, but it pays off to have your legal name accurately reflected across the board.

Practice self-care when your divorce is finalized

As we mentioned in the introduction, divorce proceedings require a tremendous amount of time, energy, and stamina. All of the steps you have to take to keep the process moving forward, combined with other life changes that coincide with a divorce – such as finding a new place to live, moving, changing work or schools, family and friend reactions, etc. – can take their toll on your mental and emotional wellbeing.

Now that you are in the post-divorce phase, practice self-care in the form of quiet time, restorative activities that bring you joy, finding the support of an experienced family therapist, joining a support group for divorced adults and/or single parents – all can help you reclaim your life in a healthy and balanced way.

We Can Get You Through Your Divorce

Are you deciding whether or not to get divorced? Are you trying to navigate a DIY divorce and need professional support. Set up a consultation with The Law Offices of Gerard A. Falzone and we’ll help you choose the least complicated way to get your divorce finalized as peacefully and seamlessly as possible.

Do I Need A Restraining Order

It isn’t always easy to know if filing a restraining order is your best way forward without support from law enforcement or legal professionals.

In addition to consulting with a family law attorney, you can also schedule an appointment with the family law division of your country court, where anyone is entitled to free help and information.

Things To Know About A Restraining Order

The following explains the basics of a restraining order, how they are most commonly used, and whether or not you may need to file one. Keep in mind, however, that restraining orders move through the legal court system and are pieces of paper. If you or your children are physically at risk, consult with a family law professional to outline your safest, next steps.

What is a restraining order?

Ultimately, a restraining order is a legally binding order from the CA courts. In their words:

A restraining order (also called a “protective order”) is a court order that can protect someone from being physically or sexually abused, threatened, stalked, or harassed. The person getting the restraining order is called the “protected person.” The person the restraining order is against is the “restrained person.” Sometimes, restraining orders include other “protected persons” like family or household members of the protected person.

One of the problems with restraining orders is that paperwork doesn’t necessarily prevent another human from doing what they decide to do. In other words, filing a restraining order can’t keep your potential abuser from reaching out to you, harassing you, or from violating other sections of the order. When and if they do, however, your restraining order allows the police to take more instant action.

There are two different types of restraining orders.

Civil restraining order

This is filed when an offender is not intimately or closely related to you. If the person harassing or threatening you is a neighbor, roommate, friend, family member more than two-degrees removed, like an aunt or uncle, a niece or nephew, cousins, and more distant relatives, or another person you are not closely related to.

Domestic violence restraining order

The second type of restraining order is dedicated to victims of domestic violence. This is the type we see most often in the family law arena. This one is filed by adults who are victimized by people with whom they share an intimate or close relationship, including:

married or registered domestic partners
divorced or separated
dating or used to date
living together or used to live together
parents together of a child
closely related (parent, child, brother, sister, grandmother, grandfather, in-law)

Restraining orders, themselves, are divided into four different categories:

Emergency
Temporary
No-Contact
Domestic violence

Emergency orders are often the first step, getting the ball rolling and putting some protection into place as the case moves forward. Temporary orders extend the emergency orders and bide you more time until the judge is able to hear your case and decide whether a more permanent restraining order is necessary.

Do You Need A Restraining Order?

You may need to file a protective order if the person listed in the above, domestic violence restraining order category, has abused you or threatened to abuse you. Save any and all texts, emails, voicemails, or video footage that prove your case. Solid eyewitnesses (no hearsay) may also help your cause.

The same is true if you are a parent in a child custody situation where you feel like the child’s other parent or someone living in the other parent’s household has been abusive, is threatening to abuse the child, or where domestic violence between other adults or members of the household is traumatizing your child.

If you feel like your child is at risk, we recommend filing Emergency Child Custody and Visitation orders, as well as a restraining order, to keep your child(ren) safe.

Along with all of the legal documents you need to file, make sure to have a professional, evidence-based case to present in court. This includes things like:

Photos of personal damages or vandalism
Signed affidavits by eyewitnesses
Prior or current medical records and police reports
Any records of threatening conversations, messages, photos, etc.

Sadly, even though you are the victim here, you have to be your own strongest and most professional advocate when moving your case through the legal system if you cannot afford legal representation.

Tips For Helping Police Uphold Your Restraining Order

Police officers do not have instant access to any and all court orders. For that reason, it is essential that you keep your original court papers tucked in a safe and locked location.

Make copies and keep them everywhere you may need access, including your home, your car glove compartment, your desk at work, your friends’ houses, etc.
Report any and all violations. Any inconsistencies on your part (like texting or calling the person sometimes but then reporting them when they do the same) will compromise your case
Try to find a safer place to live if the person you’ve filed against is too out of control or uncaring about the law to be affected by a restraining order
Consistently call the police and file a report each and every time there is a violation to support your case with legitimate documentation

We are so sorry to hear of any clients who find it necessary to file a protective order, and yet they are essential in helping to keep yourself or loved ones safe. Need help working through a complicated separation, divorce, child custody case that requires a restraining order of some kind? Work with the compassionate family law team here at the Law Offices of Gerard A. Falzone. (415) 482-7800.

Understanding Premarital Legal Counseling

The majority of the sentiments around marriage are focused on the romantic aspects of the partnership. Premarital legal counseling focuses on the legally-binding and financial aspects of what it means to get legally married.

Scheduling a premarital counseling appointment to learn more about the most typical divorce triggers, the legal and tax ramifications for blending or separating current property, assets, and financial accounts help couples make more sound decisions before saying, “I do.”

Premarital Legal Counseling: Educate & Empower Yourselves Before Tying the Knot

Our legal strongly believes that while no one gets married with the expectation of getting divorced, everyone who gets married should know how their marriage will affect their legal rights and responsibilities. Couples who are informed, educated and empowered around how marriage affects their legal and financial future make better decisions. They enter the binding marital contracts with greater wisdom, and that paves the road for a successful marriage.

At Your Legal Counseling Session, We’ll Focus On:

Your current financial, property, and assets holdings

Because California is a community property state, what’s yours is his/hers and what’s his/hers is yours – unless you’ve legally stated otherwise. In an era where individuals wait longer to get married, often as homeowners, business owners, with established savings accounts, etc., it makes sense to protect what is yours independently and merge what is created together as a couple.

This is especially true if your partner has a challenging relationship with money, is in debt, or has bad credit (all worth discussing with a financial or legal professional before getting married!).

This isn’t about who has more or who is not wanting to share; it’s more of a conversation of what’s best to keep legally out of the couplehood that can be shared as desired along the way. It also allows two loving, respectful, and forward-thinking adults to prepare for every situation the future may throw at them.

If, in a worst-case scenario where divorce is potential – the way you want things shared, divided, or separated now is a much more logical, fair, and compassionate option than what might happen years or decades down the road when you are not able to hold such an unconditional perspective.

Prenuptial agreements & other forms

If one or both of you has a situation where prenuptial agreements make sense, your legal premarital counseling sessions are the space where you can draft those. I recommend prenuptial agreements for individuals or couples when:

There’s a need to keep finances separate
There are children from another partnership
Funds need to be protected to care for aging or ill parents/relatives
There are large income discrepancies (protects unreasonably high alimony payments down the road if you get divorced)
One spouse has more debt or bad credit than another (always run complete credit checks before marrying someone)
There are family properties, trust, or assets that should remain separate from community property laws
You want to avoid drawn-out court proceedings if you get divorced

If any of these apply to you, it’s worth having a conversation with your partner. Your premarital legal consultation gives you expert advice and recommendations to help you move forward in a way that feels clear and authentic for the two of you.

Understand the common precursors or triggers for divorce

It may sound crazy to talk about causes of divorce before you get married, but we have learned it makes good sound sense. As family law mediators and legal professionals, we have heard variations of the same stories over and over again. It’s heartbreaking to see individuals and couples who might have been able to remain in a healthy marriage if they’d known which red flags to look out for from the start.

We recommend reading our post, The 9 Most Common Risk Factors for Divorce for a detailed description of the hows and whys. In the meantime, the following are the basic bullet points. Review them with your fiance and see if any of them resonate. The more work you can do with premarital counselors – therapeutic and/or legal – beforehand, the better equipped you’ll be to navigate them now or in the future.

Affairs/infidelity
Financial discrepancies/hardships
Your parents were divorced
Different drinking/recreational drug habits (if this is a red flag now, seek help before your marriage!)
Getting married too young OR waiting too late
Weddings that cost 20K or more
Lower education levels or lower economic status
You lived together before marriage
Poor communication
Having a child before or within the first year of marriage

Don’t panic if any of these apply to you. These aren’t absolutes; they are simply some common roots of why people get divorced and are worth discussing and working through before you officially get married.

The Law Offices of Gerard A Falzone has supported Alameda and Marin County couples through premarital legal counseling consultations for more than 30 years. Contact us to schedule yours. (415) 482-7800.

5 Myths Of Divorce Litigation

They say there is no such thing as a simple or easy divorce, and we have to admit this is mostly true. However, when it comes to mediation vs. the courtroom, we can honestly say that the courtroom should be avoided at all costs whenever possible.

As a Bay Area family lawyer with more than 40 years of experience, I’ve seen over and over again how these 5 myths of divorce litigation lead people to make the wrong decisions.

Divorce Litigation Myths

I want to share these myths so individuals and couples have the information they need to make the right choice for how to proceed with a divorce.

Myth 1: You have to go to court to get divorced

This is not true at all. Couples who are mostly amicable and are in complete agreement around how assets should be divided, child custody and visitation agreements, and so on can often move through the paperwork with the help of a paralegal or a single consultation in a lawyers office. Others are able to more calmly and fairly navigate their divorce through mediation channels.

You only need to go to court if you are in dispute and cannot come to an agreement on a final divorce agreement/settlement.

Myth 2: You don’t need a lawyer in the courtroom

This is legally true, but it is absolutely one of the worst mistakes a person can make. While individuals are technically “allowed” to represent themselves in court, it is never a good idea. First and foremost, a single error on the legal paperwork, missing a filing deadline, etc., can give the upper hand to the other side and cause you to look irresponsible and unprofessional.

The legal process is not as straightforward as it should be, and legalese on court documents can be overwhelming – even the most educated individuals. In my post, 8 Reasons You Shouldn’t Divorce Without A Lawyer, some of my top reasons include:

You aren’t “fluent” in divorce law
The copious amount of paperwork is challenging
Your version of equal may not be as equal as you think
It’s an emotional roller coaster

The emotional point is not one to overlook. I’ve had clients who cry every time in my office appear as knife-edged stoics in court, and I’ve had men who never showed any signs of emotional regret fall apart in the middle of divorce litigation proceedings. You do not know what you will feel or experience until you are in the courtroom, which means you need a legal professional standing by your side to keep things professional, organized, and moving forward.

Myth 3: You’ll come out on top because your spouse cheated on you

California is a no-fault divorce state. There are only two grounds by which residents of California can file for divorce. The first is “irreconcilable differences that have caused an irremediable breakdown of the marriage,” and the second is, “a permanent legal incapacity to make decisions.” In almost all cases, divorces are filed under the former, “irreconcilable differences…”

This means that shy of any illegal activities (domestic abuse, child abuse, etc.), the judge cannot factor your spouse’s infidelity or other unsavory behaviors into the proceedings. The fact that your spouse had an affair does not give you a leg up in any way. This is why working with a lawyer is the safest way to ensure you keep things in the black-and-white realm of the divorce litigation arena, even when you are understandably floundering in the shades of gray.

That said, your spouse’s poor decision making in regards to alcoholism, drug use, a revolving door of sexual partners in the home while your child(ren) is present, etc., can affect the terms of your child custody and visitation agreement. As a result, your lawyer can help you attain the safest and most healthy outcomes for your children and the family in ways that representing yourself may not achieve.

Myth 4: The wife always gets alimony

This is not true at all anymore. In fact, in marriages where both parties are capable wage earners, without any major discrepancies in income, alimony is a far less common court order in California these days.

If there are major discrepancies or the husband has been the at-home care provider for the family, there is a good chance that the husband will be paid alimony for a set period of time until he has time to find suitable employment and the children have time to adjust. Husbands who aren’t aware of that often make the mistake of not pursuing it, which makes it worth your while to at least consult with an attorney before you head into the courtroom.

Myth 5: Everything will be split 50/50 or by who is on title

This is not true either. People often confuse the idea that California is a “community property” state with the idea that everything is split 50/50. They also mistakenly believe that if their name is on the title of a car, toy, property, etc., then it is theirs. Both of these beliefs are false.

Community property only applies to assets that were acquired during the marriage but excludes anything that was an inheritance or gift. So, your husband’s family dining room table is his if he wants it, even if you’ve used it throughout your entire marriage. If your wife’s name is on a car title, but the car was purchased during the marriage – it is viewed as joint property from the court’s perspective. Equally available to be divided are retirement accounts, investments, financial accounts, and any debts you’ve accumulated – including credit card debt charged on your spouse’s card.

Also, your spouse could have hidden assets or assets s/he’s secretly squirreled away to hide them from you. Legal experts have a network of professionals to track these things down and bring them to light. Your courtroom litigated divorce could shine a light on things you never knew about, whereas a family law consultation and mediation sessions can ensure everything is brought to the table and fairly distributed with far less stress and without any of the drama.

Let Us Help You

Are you thinking divorce litigation in the courtroom is your only option? Give me a call at the Law Offices of Gerard A. Falzone, (510) 521-9500 or (415) 482-7800 for a free phone consultation. We work for our clients every day to minimize the financial, emotional, and energetic costs associated with divorce proceedings, and we’ll do the same for you.

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.