Category Archives: Family Law

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 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.

Property Division: Annulment vs Divorce

California is considered a community property state, which means all properties and assets acquired after the marriage takes place are considered evenly shared between both parties. When the marriage is dissolved (referred to as a divorce or dissolution of marriage) those properties/assets are divided jointly.

Annulments are very different than a divorce. When a marriage is annulled, it is as if that marriage never took place at all. Once the annulment goes through, there is no legal record of the marriage, and neither party is beholden to any of the laws pertaining to a legal marriage or divorce. For the most part, properties, assets, financial holdings gained individually during the marriage, etc., return back to their pre-marital status.

We recommend reading our post, Annulment of Marriage, to learn more about the ins-and-outs of marriage vs. annulment. You may find that your marriage does not qualify for an annulment, in which case you’ll need to pursue a divorce, and property and assets may be divided after all.

The Basics When It Comes To Property Division

How Annulment Differs from Divorce (or a Dissolution of Marriage)

First and foremost, it’s important to know that annulment isn’t an option for all. The courts only grant an annulment if, there is evidence of fraud that led or induced an individual to get married in the first place:

Bigamy (one or the other is already legally married to someone else)
Incest (the individuals are too closely related by blood in accordance with the state’s laws)
One or both of the parties were married by force
There is a physical incapacity to consummate the marriage
One or both of the individuals are 17 years old or younger
One or both of the individuals are of unsound mind
Someone was intoxicated at the time
Domestic violence and/or substance abuse is discovered within 6 months of the marriage date

If you feel your marriage qualifies for annulment, we recommend consulting with an experienced divorce attorney in your area to make sure before moving forward.

Property Division in an Annulment

Assuming your marriage qualifies for an annulment, your assets, retirement plans, properties, etc., you held before you were married automatically return to their original owner/holder. Because most annulments take place within a relatively short time after the marriage, it is relatively easy for the divorce to facilitate their division between both parties.

If, however, you have been married for some time, and have acquired assets or properties together while you were married, things become more difficult. In this case, an experienced divorce attorney is your greatest asset when determining what belongs to who.

Also, the longer a marriage has gone on prior to an annulment, the more likely a court may order temporary alimony if one spouse was dependent on the other for income or financial support. Similarly, the court may order temporary child support for “step-children” to eliminate any chance that innocent parties are negatively impacted by the loss of financial stability. Even so, these orders are typically only temporary, granted for the length of time the court feels is required for the individual to get back on his/her feet and begin earning an income again.

Because the division of jointly held properties, financial assets, a jointly held business, and other assets is so complicated, it is generally recommended that both parties hire an attorney if there is any disagreement about property division.

Child Custody Issues are Handled Separately

If any children were conceived by you and your spouse, or your recently annulled marriage, your state’s child custody laws will dictate how legal and physical custody, visitation, and child support payments are handled. Whether or not your marriage was annulled will have zero effect on how child custody is handled because the law protects a child’s well being above all else.

If there is a question pertaining to the paternity of your child(ren), we recommend visiting our post, What You Need to Know About Paternity Law in California.

Have You Considered Mediation to Settle Your Annulment?

Have you considered mediation, rather than court-based annulment proceedings? Mediation via a professional law professional is a cost-effective – not to mention an emotion-effective – way to settle an annulment.

Mediation can save you thousands of dollars and can prevent things from becoming emotionally ugly. A mediator will explain the law surrounding asset and property distribution during annulment vs. divorce and can offer input as to how the court is most likely to decide things if you pursue your case in court. Mediators are completely neutral parties, which help to de-escalate high tension and emotions.

We’re Here For You

The compassionate team here in the Law Offices of Gerard A. Falzone is here to answer questions pertaining to property divisions in both annulments and divorce. We can serve as mediators or can represent you in court when you need strong and effective support. Contact us to schedule your free consultation.

Am I Entitled To My Spouse’s Business In A Divorce?

California is considered a community property state, and a privately owned business is part of that property’s assets. If your spouse owns his/her own business – it may be considered part of the community property, or not, depending on the situation.

If you’re pursuing a divorce and your spouse owns a business, we highly recommend you consult with an experienced family law attorney, rather than relying on blogs or online sources for your answers. Every business is unique, and complex factors affect what – if any – share of the business you have an interest in, as well as whether or not your share of the business is worth fighting for.

Here are some general considerations for anyone facing a divorce where a spouse’s business is in the picture:

When did your spouse establish the business?

If the business was owned by your spouse prior to your marriage, you may not be entitled to an entire 50% interest. It may be that the court determines the entire business – or a larger portion of it – belongs to your spouse.

What funds were used to establish the business?

If the funds came from the two of you, that’s one thing – community property. However, if the initial funds came from elsewhere, or was money your spouse already had in savings before you were married (not considered community assets), then you may be entitled to less than you think when all of the financial analysis is complete.

Is there are prenuptial or postnuptial agreement in place?

If you and your spouse drafted a prenuptial agreement to protect his/her business in the case of a divorce, you may not be entitled to any of it. However, these agreements are often contested during a divorce, especially if:

You weren’t represented by your own lawyer
You’ve determined your spouse hid assets or business interests from you when the agreement was drafted
The agreement was drafted the week or night before you were married, rather than in a more methodical, timely fashion
Your lawyer finds clear loopholes that slipped by the original lawyers

So, while the prenuptial agreement (prenup) may prevent the business – or a particular share of it – from ever becoming yours, it may also be that the loopholes or shortcomings of the prenup work in your favor.

Did the business’s equity or profitability grow during your marriage?

Even if your spouse protected his/her share in the business before you were married, any increase in the business’s overall value over the course of your marriage is considered community property. Therefore, you are entitled to 50% of that appreciation.

Did your spouse take a salary, or did s/he roll profit back into the business?

If you didn’t benefit financially from the business via your spouse’s competitive salary, because s/he rolled any extra funds back into the business, you may be entitled to more than half of the business since 50% of re-invested funds were actually yours.

How involved were you in the business?

The more involved you were in the business – helping to set it up, participating in decision making, working there, etc., the more shares of the business you may be entitled to.

What is the business’s professionally assessed value?

While the questions listed above can paint a better picture as to whether you’re entitled to your spouse’s business in a divorce, there are additional considerations as well. One of these is the business’s value – and that is assessed professionally. Forensic accountants perform this type of work – assessing the business’s debt to asset ratio.

If your spouse’s business still has considerable debt, that decreases it’s overall “value,” and you may determine you are just fine with allowing him/her to keep the business.

Is your spouse willing to relinquish his/her share of other assets?

If it’s the financial portion of the business’s value that matters most to you, and you aren’t interested in the business itself – there are other ways to divvy up the assets. Sometimes, a business owner is willing to give up his/her share of other shared assets (the house, car(s), retirement account(s), other property, etc.), in which case you can forgo your share of the business and recoup the value by retaining a greater share of other joint assets.

If you’re on the same page about most of the divorce decisions, but things are getting sticky around the business, we recommend meeting with a mediator to see if you can come to a mutual decision without having to go to the more costly, time- and energy-consuming court process.

There Are 3 Ways Private Businesses Are Handled During Divorce

If the court determines that you are entitled to any portion of your spouse’s business, there are three ways to handle it:

1. You become business partners

Often the least desirable outcome, we have also seen cases where ex-spouses become business partners, and the business remains as is with both spouses at the helm. Obviously, this is not the best solution for most couples, particularly if you weren’t emotionally or professionally involved in the business and have your own work and/or source of income.

2. Your partner sells the business

Depending on the situation, you may determine that selling the business is the best solution – particularly if one or the other of you is unable to buy the business from the other spouse, or your spouse is unwilling to grant more of your other shared assets to you, selling the business and splitting the proceeds might be the best way. Keep in mind that this can significantly slow down divorce proceedings if the business doesn’t sell as soon as you’d like.

3. One of you buys the other one out

Once the business’s value is determined, one of you buys the other one out at 50% of the value. This can be a no-brainer solution if you aren’t interested in the business, and your spouse has the means to buy it via cash or a third-party loan.

Again, your best bet is to hire a lawyer to review your options before making any final decisions about whether you are or are not interested in a share of your spouse’s business.

We’re Here To Help You

My name is Gerard Falzone and I am an experienced Bay Area family law specialist. My goal is to help my clients navigate their divorce proceedings without unnecessary angst, animosity, or drama. Contact my office to schedule a consultation at (510) 521-9500.

How To Tell Your Spouse “I Want A Divorce”

Every year, more than 800,000 couples throughout the U.S. decide that they want to get a divorce.

Deciding to get a divorce is never easy, nor is it easy to tell your spouse that that’s what you want.

Have you been putting off having this conversation for weeks, months, or even years? It’s a hard conversation to have. The sooner you do it, though, the sooner you can move forward with your life.

If you’re ready to tell your spouse, “I want a divorce” but aren’t sure how to go about it, keep reading.

Listed below are some tips that can make the conversation a little easier.

Be Honest With Yourself

Before you sit down and tell your spouse that you want a divorce, it’s important to know that this is truly what you want.

Once you throw out the “D” word, your relationship to your spouse will change. Don’t say it unless you really mean it.

Knowing whether or not a divorce is right for you is tricky, to say the least.

Be brutally honest with yourself about your desire for a divorce. You may also need to enlist the help of a therapist or counselor to help you figure out whether you want to proceed or not.

Consider Your Spouse’s Current State

Think about your spouse and how they’re feeling at the moment.

Do they seem blissfully ignorant and unaware that you’re unhappy? Or, is it clear that they’re unhappy, too?

Knowing where your spouse stands can help you decide the best way to broach the subject of a divorce.

Choose The Right Time And Place

No matter what your spouse’s current state is, there is definitely such a thing as a good time and place to talk about your desire for a divorce.

Do not bring it up ten minutes before you have to leave for work or while you’re out grocery shopping. Plan ahead for the conversation.

It may seem impossible, but you should try to choose a time and place when your spouse will be most receptive to your comments.

At the very least, plan to discuss it when you both are least likely to be stressed and will have the time to talk things out.

Choose Your Words Carefully

There’s also a right and wrong way to tell your spouse that you want a divorce.

No matter how fed up you are with the marriage, there’s no need to be cruel. Remember, too, that the words you use will have an effect on the way they react.

If you choose the right words and avoid placing blame on them for your problems, you’re more likely to have a productive conversation. This isn’t always the case, of course, but choosing the right words can definitely help.

Work with a counselor if necessary to figure out what you’re going to say beforehand.

Be Firm Yet Gentle

It’s not just about the words you say. It’s also about the way you say them. Make sure that your tone is firm, yet gentle.

Be clear about what you want. Don’t hedge or try and sugarcoat things. At the same time, though, there’s no need to be overly blunt or aggressive.

You may want to practice expressing your desire for a divorce before you sit down and have the conversation. That way, you can make sure you’re using an appropriate tone.

Prepare For Their Reaction

In addition to preparing your remarks, you also need to prepare for your spouse’s reaction to those remarks.

Do you think they’ll take it well and agree with you and your concerns? Will they cry or get angry?

No one knows with total certainty how they’re going to handle those situations. It’s a good idea to consider several different possible reactions so you can be prepared no matter how your spouse responds.

Take Safety Precautions If Necessary

Is there a possibility your spouse will become violent when you tell them that you want a divorce? If so, it’s important to take precautions to keep yourself safe.

Consider having the discussion in a public place where your spouse is less likely to make a scene.

If you prefer to talk in private, at least make sure that someone knows where you are and when you’re going to have the conversation. That way, they can come and check on you or be waiting on standby just in case.

It might be a good idea to have your cell phone handy with 911 pre-dialed before you begin the conversation.

Don’t Discuss The Details Yet

Immediately after you announce that you want a divorce is not the proper time to go over custody issues or other details.

There will be plenty of time for that, and it’s best if you can have those discussions after you’ve officially filed for divorce and have a divorce lawyer or mediator present.

If you discuss details now, when emotions are running high, you’re more likely to act rashly and may say or do things that you regret later on.

Don’t Involve Your Kids

Finally, don’t get your kids involved.

They shouldn’t be present during the discussion and you should do your best to keep them out of the conversation. This is an issue between yourself and your spouse.

Your kids will have to know about the divorce eventually, but they don’t need to be present at this time.

This rule applies whether your kids are adults or are young and still living at home.

What To Do After Saying, “I Want A Divorce”

After you have the hard conversation and told your partner, “I want a divorce,” it’s important to have a plan in place for how you’re going to proceed.

It’s good to have already hired a lawyer, too.

If you live in or around the Bay Area, contact the Law Offices of Gerard a Falzone today.

We make it easy for you to set up a free phone consultation so we can learn more about your case and help you figure out the best course of action.

What You Need to Know About Paternity Law in California

When DNA testing first became commonplace, it changed the way families functioned forever. However, the existence of DNA tests hasn’t erased the many complicated factors that go into navigating paternity law.

If you haven’t established paternity, or are in a difficult situation involving paternity, you’ll need to know certain things about paternity law. This knowledge will help you navigate challenges from child support to custody and more.

Ready to learn the essentials of paternity law in your state? Keep reading to learn the details that will help you through your situation.

California Paternity Law: The Basics

Paternity law is a broad term governing the legalities between fathers and children.

The simplest paternity cases are when the couple who has a child is already married. Then, under California paternity law, the husband is the assumed father of the child. This law also applies if the marriage happened during the pregnancy.

However, things get more complicated when a couple that’s not married has a child.

If you father a child with a partner you’re not married to, you’ll have the option of signing a document called the “Acknowledgement of Paternity” to confirm that you’re the father. You can also choose not to sign that document, but in that case, the mother might get the courts involved to hold you responsible for your biological child.

Other times, it may be unclear who is the father of a child. That’s when you might need to establish paternity.

Why Establish Paternity?

What are the benefits of establishing paternity in California? Let’s take a look.

Medical information

When you know who the real father of a child is, you can access their valuable medical history. This knowledge can help the child know about and prepare for possible genetic problems that might come from their father’s side.

Parenting rights

The biological father often has an easier time accessing the right to parent and raise their child. Both child and father can value this opportunity to be involved in each other’s lives.

Legal and financial reasons

A child who has a known father might also benefit legally and financially from this knowledge. For example, their father might pay child support or serve as a guardian. Some parents don’t want to be legally or financially responsible for a child that’s not theirs biologically.

Establishing Paternity In California

Need to establish paternity in California?

The only surefire way to establish paternity is to take a genetic test. You have a few different options for paternity testing — here are some of the most common ones.

Pre-Natal Test

If you want to establish paternity before a child is born, you can use a pre-natal test once the mother is at least eight weeks into the pregnancy.

You’ll want to opt for the Non-Invasive Prenatal Paternity test, which is safer than other prenatal test options. A blood sample from the mother will establish paternity. This works because she is sharing blood with the baby during the pregnancy.

Doctors will isolate the fetus’s DNA to see the paternity of the child.

Blood Test

You can also test paternity through the blood after a child is born.

Blood tests aren’t perfectly accurate, but they have high enough rates of accuracy to be useful.

With this test, the blood type will show who’s the likely father of the child. Genes play a role in determining the blood type, so blood type can be a fairly clear indicator of fatherhood.

Sometimes, a second test is requested to confirm the results of the first one. When both tests show the same thing, the finding is considered accurate.

DNA Test

The newer and more accurate DNA testing provides an even better method for genetic testing.

DNA testing involves samples of tissue or blood. DNA is completely unique, so this test can’t be wrong, unlike blood tests which can only determine a likelihood of paternity.

However, it’s still common to do at least two DNA tests to confirm findings. To take the tissue sample most DNA tests use a cheek swab. As with a blood test, samples will be taken from the mother, father, and child.

Handling Unusual Paternity Law Situations

Sometimes, you’ll find yourself in a unique and complicated paternity law situation. Here are some of the more common unusual situations and what to do in each one.

Post-divorce paternity

If the child was born while the couple was married, the husband is the legal father. However, keep in mind that legal father doesn’t mean biological father.

Sometimes, a divorce can cause the legal father to start questioning his paternity. Other times, the divorce might happen as a result of that questioning.

The divorce won’t affect the legal father’s rights as a parent. However, a genetic test that shows someone else is the biological father can change all of that.

The legal father, even if he’s not he biological father, can still be granted custody rights and required to pay child support — even if he doesn’t want to. Courts try to act in a child’s best interest, regardless of who turns out to be the biological father.

Having a baby with another man while married

What if the couple stays married, but the husband isn’t the biological father of the child?

These cases are never simple, and many different factors can affect the outcome. If the husband decides to fight for the right to keep the child, he might be able to maintain paternal rights even though he’s not a biological parent. However, the husband might decide to not fight for custody or other rights to the child that’s not his own.

In these and any other paternity cases, you can help ensure the outcome you want by hiring a paternity lawyer.

Need A Paternity Lawyer?

Navigating paternity law by yourself can become nearly impossible, especially if you find yourself in one of the more complicated situations listed here.

Even DNA testing won’t always clear up all the issues. You need a paternity lawyer on your side.

Our team can help. Contact us today to schedule an appointment.

How To File For Divorce: A 9 Step Guide

Filing for divorce can be extremely traumatic and time consuming.

You have to be mentally, emotionally, and legally prepared before you take that big step.

It’s in your best interest to gather information, consider your feelings, and make an informed choice.

Here’s How To File For Divorce

We’ve put together a list of nine steps to help you figure out how to file for divorce.

Be Certain

Getting divorced is a huge step. You need to be absolutely certain it’s what you want before you get started. At the very least you should talk to your spouse about the issues.

Tell them how you feel and see if they share your feelings. It’s going to be stressful and upsetting but it’s the best thing to do. You should consider going to marital counseling to see if your issues can be resolved.

Of course, this doesn’t apply in cases of abuse. If you feel you or your children are in any danger you should immediately get out of that situation.

Have a Plan

The moment when you realize you want a divorce can be very upsetting. Even worse is when you’re surprised with the news that your spouse wants a divorce. Once you know that it’s coming you have to start planning immediately and how to file for divorce is the first step.

Figure out what assets you brought into the relationship and what you hope to take out of it. Marital property will have to be split according to a judge’s decision or the terms of a pre-nuptial agreement.

If you have children you have to put their needs first. Have a plan for their future before you tell them that you’re getting divorced. Don’t make it set in stone though. Let them know that their opinion matters and that they will have a say in their future.

Get Your Finances In Order

In a lot of relationships, one spouse or the other handles most financial matters. If you’ve always let your spouse manage the bank accounts, investments, and other decisions you need to get a full accounting before filing.

This is important for several reasons. During the divorce proceedings, you can’t ask for assets you don’t know exist. You also have to consider how you’ll support yourself after divorce.

Often a woman’s standard of living will drop after a divorce while a man’s will rise. Figure out how you’ll live on your own income or what amount of spousal support you’ll need to get back on your feet. You should also check your credit score and report.

It’s very possible your score could be different from your spouses. This is especially true if they’ve made most of the financial contributions and large purchases in the relationship.

Gather Your Spouse’s Financial Information

Knowing your spouse’s finances is almost as important as knowing your own. This is especially true if they’ve been the main breadwinner. You need to know what you’re entitled to after your divorce.

Bank accounts, cash, and owned property information should all be submitted to the court. You need to know that an asset exists in order to get your fair share of them. This also lets you know what you ask for in spousal support if necessary.

Consider Your Future Relationship With Your Ex

Getting divorced doesn’t mean you’ll never see the other person again. For some people, they may remain friends after a divorce but don’t want to live a life with the other person. This is especially true if you have children with them.

Both parents have the right to be active in their children’s lives. One spouse will likely be assigned primary custody but they will have to co-parent.

If it’s possible you should try to maintain a courteous relationship.

Be Ready For Hard Choices

Divorce involves a lot more than two people’s relationship. It’s a legal separation of assets, children, and lives. You’ll need to make many difficult decisions before it’s over with.

If you have children everything becomes more complicated. A custody battle is honestly a nightmare. If you can reach an amicable agreement with your spouse regarding living arrangements it will make things much easier.

That being said, don’t expect to get everything you’re looking for. There’s an old saying about a good compromise, everyone walks away from the table disappointed.

Put A Team Together

Depending on your socioeconomic status and how you plan to proceed you may need a team to support you. If there are substantial marital assets and serious income differences you will have more advanced needs.

It’s important to have the best representation as well as financial support. Accountants, financial advisors, and others can help you figure out what you’re entitled to and how to protect it.

Start by getting legal counseling from a divorce attorney. This will give you much more accurate and in-depth information that will apply to your individual situation. It also lets you get a ballpark figure of how much a divorce will cost and what assets you might expect to receive.

Don’t Lie About Anything

The worst possible thing you can do in divorce proceedings is to lie. The judge hearing your case has broad powers to decide things like the division of property and alimony.

To begin with, never lie about the circumstances of your divorce. If you no longer love your spouse say that. There are no benefits to making false accusations of infidelity or abuse. You will be found out and the consequences can be severe.

Don’t try to hide any financial assets either. In every case, this is seen as a bad faith move and can negatively impact the division of marital assets.

How To File For Divorce

Once you’ve made the personal, relationship, and financial decisions you’re ready to take actual legal steps. Speak to your attorney to get the ball rolling.

Depending on what state you’re in there will be different filing steps. In some states, you’re required to go to couples therapy before filing. Once you know for certain that you want a divorce you’ll need to file the correct paperwork.

Be Ready For Changes

Deciding that you want to get divorced is a major decision. Having to figure out how to file for divorce shouldn’t hold you back. Make sure you’re certain about your decision as your life will change dramatically.

For more information about filing for divorce or pre-divorce counseling, contact us here.