 Military divorces are different, right from the beginning. If we're talking about a service member who's on deployment, we have to know where he or she is in order to serve the member with the petition for dissolution of marriage. In some situations, there is no way to find out, because the nature of the member's current deployment may mean that the member's whereabouts is classified information. We also have to determine if our court will have personal jurisdiction over the member, even if we can serve the member properly. Many service members maintain their legal residence in the state they lived in before they joined the service. Let's say we are talking about a female whose legal residence is in Alabama. We also know her current address, but she's not in California and she's never lived in California. Even if we can serve her, she may decide not to file a response. If she doesn't file a response, as a general rule the court doesn't have personal jurisdiction over her. We can still ask the court to enter her default, and the court can deal with custody of minor children in most circumstances, but otherwise as a general rule the court can't do anything else but dissolve the parties' marriage. For example, the court can't deal with the division of community property. If there is any of consequence, that's a problem. Another problem is delay. Under the Service Members Civil Relief Act, a service member on active duty can obtain a postponement (called a stay) of court proceedings if the member's duties do not permit leave time to go to court. The procedure the member must follow to obtain a stay is complicated, but with persistence it can be accomplished. Another problem is establishing the member's income for purposes of spousal and child support. A service member's pay stub is a Leave and Earnings Statement. It's nothing like a civilian's pay stub, and a lawyer unfamiliar with one will have a very difficult time understanding it. Dividing military retirement benefits is also considerably different than dividing civilian retirement benefits. This list of differences between military divorces and civilian divorces goes on and on. If you or your spouse is a service member, and you need a divorce, find a family law attorney that is experienced in military divorces. We have that experience.

Andrea Kaye and Stan Prowse Legal Eagle Radio

Military Divorces Are Different

 Senior Divorce For Those Over 50 According to a recent article in The Wall Street Journal, the overall divorce rate has decreased slightly.  However, the divorce rate among people over 50 has increased substantially.  In 1990, the rate was one in ten.  In 2009, the rate was one in four.  In other words, nowadays 40% of all divorces involve spouses over 50 years old.  We’ll call them senior divorces.  For me 40% is a surprising statistic.  Although I haven’t kept track, it seems that most of the divorces I’ve handled were between spouses with small children, which would make Mom and Dad roughly 25 to 40. We’ve all heard about couples staying together ‘for the sake of the children’ and parting company only after the kids were grown up and gone.  Those may have been senior divorces, but years ago they were only noteworthy because they didn’t seem to happen very often, and friends and neighbors were shocked when they did.  You’d think surviving twenty or so years of marriage would be a pretty good indicator that ‘til death do us part’ would turn out to be true.  However, something must have been going on to increase the rate of senior divorces fourfold in 19 years. One thing that’s obvious is the increased number of households with working women.  When I was a child, none of my friends had working Moms.  They were all home in their house dresses, doing laundry and baking cookies.  Without jobs and their own incomes they were financially dependent on their husbands, and after their children left home they turned to garden clubs and charity balls.  By the time women were 50, divorce for most of them was virtually unthinkable economically, so they just didn’t think of it.  Period. No Fault Divorce and The Desire for Financial Independence It was also unthinkable socially.  It’s easy to forget that no fault divorce is a relatively recent invention.  Before no fault, a spouse who wanted a divorce had an affirmative burden to prove he or she was entitled to one, because the other spouse had done something morally reprehensible, like beating or cheating.  People hired private detectives.  It was a big deal.  Now if you want a divorce, you just check the “irreconcilable differences” box on the form.  If your spouse doesn’t want a divorce, too bad for him or her.  For better or worse, divorce is now normal.  A senior divorce is no longer embarrassing. We also live in an age that demands and celebrates happiness and self-fulfillment.  Unhappiness and self-sacrifice and are decidedly out of fashion.  A joyless and confining marriage should not be endured, especially after the children are out of the way.  Instead it should be ended, and ending the second is probably easier than ending the third, and so on.  In this climate, an increasing rate of senior divorce was probably inevitable.  Fiftieth wedding anniversaries may become highly unusual.  Even passing that milestone is no guarantee of staying together - we recently divorced a couple in their 80’s! The contrast between yesterday and today is easy to see and goes a long way towards explaining the rising rate of senior divorce.  Working women are educated and financially independent, which makes emotional independence attainable once it feels necessary.  A wife’s financial independence also reduces a husband’s guilt if he instigates the breakup. Whether you’re female or male, or 60 or 70, waking up in the morning and feeling you have to go out on your own again and “find yourself” is now Ok instead of alarmingly weird. So, all you grown children feeling smug about having parents who never divorced, watch out.  Any day now with little or no warning, Mom or Dad may well decide to take off for greener pastures and surprise the daylights out of you. Carlsbad Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.

Senior Divorce

 California’s legislature has given husbands, wives, and domestic partners of any persuasion the right to dissolve their marriages or domestic partnerships on the basis of irreconcilable differences.  Fault is not an issue.  Singing,“You cheated, you lied, you said that you loved me,” in Family Court gets you nowhere.  The process is also form driven.  There is one for almost everything and you have to use them.  And if you force yourself to read them carefully they do make sense.  Better yet, if you and your attorney fill them out completely when you’re supposed to and follow the italicized instructions exactly, things will go along much more quickly and much less expensively than otherwise.  The basics are not complex.  Dissolution of a marriage or a domestic partnership involves three major issues: Property Division, Child Support and Child Custody (only if you have minor children), and Spousal Support. Property Division The first issue is identifying all of the assets and debts both of you have, characterizing each as community or separate, dividing the community items in half, and confirming which separate items belong to each of you.  Everything you earn or acquire while you were married (which for convenience in this discussion includes being in a domestic partnership) and still living together (before your date of separation) is presumed to be community, the same for debts.  Separate assets and debts are those you had before you married, gifts or inheritances you received while married, and assets and debts explicitly acquired by you as separate property while married, unless you mixed up separate with community so you can no longer identify the separate.  Do your best to accept the proposition that fifty cents of every dollar you ever earned while married belonged to the other guy.  It’s true unless you have a prenuptial agreement that says otherwise. Child Custody and Support The second issue is child custody and support.  These days you have to be a very bad person or live in Outer Mongolia not to have joint legal and physical custody, so arguments over sole legal or physical custody have largely given way to arguments over timeshare - the ratio of the time (as a percentage) each of you has responsibility for the kids.  If you can’t agree on who has the kids when, don’t start World War III over it.  The State will happy to decide what’s best for them whether you like it or not.  Before a judge can make an order on the subject you have to go to mediation with Family Court Services.  If you still can’t agree, the FCS mediator will recommend a timesharing schedule to the judge, and the judge will adopt the recommendation as the order almost every time. Now that you know the time share percentages, calculating child support is easy.  A computer program is mandatory.  Although the program is the most complicated in the country, the inputs are simple.  The first is the timeshare of each party.  The second is the average monthly income of each party over the past twelve months, which for most people is not hard to determine.  Sorry, debts don’t count in determining what you pay.  Neither do expenses, except for health insurance, child care costs, and a few other deductions.  If you can’t manage your child support and your debts at the same time, your next stop may be bankruptcy court. Spousal Support The third issue is spousal support, which is either temporary (prejudgment) or permanent (post judgment).  You can agree on this yourselves.  If you can’t the computer program for child support also spits out a number for temporary spousal support.  It’s not mandatory to use the number for temporary support, but it’s usually what’s ordered.  The judges aren’t supposed to use the program for permanent spousal support, but they do anyway - nobody really knows what to do with the specific factors set out in the Family Code for permanent support, although everybody agrees that permanent spousal support should probably be lower than temporary.  Unless you’ve been married  for only a few years, the judge will probably not order a termination date for spousal support.  If you want it recalculated or terminated you’ll have to come back later and convince the judge that something has changed to justify doing so.  Each party has an obligation to become self supporting and to contribute to the support of the kids, but it’s easier to announce that rule than enforce it.  Compelling a previously non-working spousal support payee back into full-time employment is a protracted and expensive proposition. And there you have it.  The devil is in the details. Carlsbad Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.  

California Divorce Essentials

 Self control is an old virtue.  Lately it seems people have less of it in private and public than they used to have.  This is too bad, particularly if you are going through a divorce.  Losing it completely at home is also a good way to start one, because it will probably get you arrested and kicked out of the house. At the hearing on whether to issue a permanent domestic violence restraining order, the person from whom protection is sought (by definition the person who got arrested, aka the "perp") starts off at a tremendous disadvantage, even if wrongly accused.  What is the best way to ensure that the order is issued against you?  You guessed it: act angry and belligerent, and fail to control yourself.  Even if you were in fact the victim, by acting like a jerk you'll seal your fate. Even if the divorce doesn't start with an out of control argument and an arrest, the need for self control is still just as important, particularly if minor children are involved.  Before the judge even sees you at the hearing to decide who gets the kids, you will have to spend a morning with a Family Court Services mediator. The mediator doesn't care about you.  The mediator cares about the welfare of the kids.  If you can't control your urge to argue with your soon to be ex, and to tell the mediator that he or she is a dirtbag, you can pretty much kiss the kids and any form of child custody goodbye.  On other hand, if you control yourself and talk calmly about your concerns for the kids' welfare, fate is much more likely to smile upon you.  Controlling yourself at the actual hearing is no less important.  If you have a lawyer, your opportunities to self destruct are limited, but you can still manage it by smirking and rolling your eyes during the presentation by the opposing lawyer.  If you don't have a lawyer helping you to stay calm and impassive, you'll have to do it yourself.  If you screw up and act like a jerk again, you may wind up with supervised visitation only. In that case, a whole new minefield is waiting.  You would like to get out of supervised vistation as quickly as possible, but you can easily make it last longer than it should by losing your self control at exchanges, or by giving in to the urge to bad mouth your spouse to the kids when the supervisor is listening in. Even without kids involved, and with or without an attorney, sef control throughout the whole process is essential.  Let go of the anger when it comes to property division.  Forget any thougts of concealing some of it.  It's an accounting problem, not World War III.  Accept a reasonable compromise rather than insisting on grinding the other guy into dust.  If you have to pay spousal support, don't play games by paying it late. Chances are you are not too great on self-control if you wind up in a divorce in the first place.  In any event, self control is essential to get through the process with your sanity intact, ready to start your new life on a sound foundation.  So, if you haven't got self-control, work hard at getting it.  If you already have it, work hard to keep it.  Self control is still a great virtue.

Self Control and Divorce - Child Custody

 California's Domestic Violence Prevention Act was passed in 1993, signaling a zero tolerance policy for civilian domestic violence.  Since 2001, the Department of Defense has also had a zero tolerance policy for domestic violence in the armed forces. The definition of domestic violence covers a lot of ground. Here are the basics from the California Domestic Violence Prevention statute: intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, placing a person in reasonable apprehension of immanent serious bodily injury, molesting, attacking, striking, stalking, threatening, battering, falsely impersonating, harassing, making annoying telephone calls, destroying personal property, contacting directly or indirectly by mail or otherwise, coming within a specified distance, and disturbing the peace.  The military definition is similarly broad. Who can be protected? Again the list is inclusive: spouses, people who have lived together, and people who have merely had romantic relationships. In the civilian world in California, the victim fills out forms and submits them to the clerk's office.  The forms identify the victim as the "protected person."  The perpetrator is blandly identified as the person from whom protection is sought.  The forms list the orders the protected person can request.  The usual orders are referred to generally as "stay away" orders and "no contact" orders.  The typical stay away order is 100 yards.  No contact orders typically prohibit contact of any kind, direct or indirect. The orders typically last three years.  If the parties are living together, the perpetrator is ordered to move out. The clerk takes the forms to a judge, who decides whether to issue the requested orders on a temporary basis. If the judge decides to issue them, he sets a hearing within two or three weeks. Whenever Temporary Restraining Orders ("TRO's") are issued, they include an order to turn in or sell any firearms the perpetrator owns or controls. All of the above happens without any notice to the perpetrator, who gets served afterward with a notice of the hearing along with the temporary orders themselves. The hearings are typically "he said, she said." In the vast majority of cases, a wife or girlfriend is the protected person. Although many of the alleged incidents tend to be embellished and some may be entirely fabricated, something has usually happened that falls within the draconian definition recited above, so a "permanent" order is typically issued. In the military world, the sequence of events is similar. The victim complains to the service member's command, and the command issues the orders. However, there is (as far as I can tell) no hearing where both parties are present to give their sides of the story. Given the zero tolerance policy of the military, it appears that military protective orders may be just as easy to come by as civilian protective orders, if not easier. Permanent domestic violence protective orders can be devastating for the perpetrator. In the military, they can end the prospects of promotion and perhaps lead to separation with an administrative discharge, hampering the service member's job prospects in the civilian world. In the civilian world the consequences are similar. Any position requiring an employee to carry firearms, or obtain a security clearance, is likely to be unobtainable. A permanent domestic violence protective order in the context of a married couple is likely to be the opening salvo of a divorce proceeding.  It also bears mentioning that serious domestic violence can lead to criminal charges both in the civil and military arenas. Lastly, if children are involved, either as victims or as bystanders, the perpetrator parent can look forward to losing custody and being consigned to supervised visitation only, for a lengthy period. Domestic violence is serious business. Taking behavioral cues from video games, action movies, and out of control celebrities is not smart.

Domestic Violence Protective Orders

 Dividing a military pension is a minefield Dividing a military pension is like walking through a minefield. From the perspective of both the service member spouse and the non-service member spouse, unexpected and unwanted results are an ever present risk. Why should it be so hard? One reason is that military pensions are the creation of federal law, but federal law does not tell you how to divide them in the event of a divorce. Another reason is the complexity of the federal statutory scheme. Until 2014, for example, a dollar for dollar trade off existed between retired pay and disability pay. A service member could agree to a division of retired pay in his or her divorce, but later decide to trade retired pay for VA disability pay. VA disability pay is not subject to division in a divorce, so suddenly the former spouse could be surprised by a dramatic reduction in her or his payments from DFAS. Congress fixed this in 2005 by allowing concurrent receipt of disability pay and retired pay ("CDRP"), so that the former spouse's benefits are not reduced by a disability pay election after divorce. But not so fast. The law only applies to certain classes of retirees. The general rule is that the service member retiree must have at least 20 years of creditable service and a VA disability rating of at least 50%. If the service member retiree doesn't meet these criteria, this seemingly past minefield is still there, and pre-CDRP protective strategies used by the non-service member spouse during divorce will still be in play. And there's more. Congress has also provided Combat-Related Special Compensation ("CRSC") for service members with at least a 10% disability directly related to the award of a Purple Heart, or to combat, operations, or hazardous duty. By statute it is not retired pay, and it is not divisible as property. Neither is it compatible with CDRP, which stops upon receipt of CRSC, although any past-paid CDRP has to be given back. This means that an eligible service member retiree can once again forestall what would otherwise be an award to an ex-spouse of a share of military compensation earned during marriage. The state courts are split on whether pre-CDRP protective strategies for dealing with a disability pay election will be effective in dealing with CDRP.

Military Pension Division

 Divorce and PTSD The first question for an attorney representing a service member is whether his client has PTSD. Clients don't come in the door with their psychological issues written on their foreheads, and asking someone if they've been diagnosed with PTSD is probably not the best way to start a succesful relationship.  On the other hand, there are tactful ways to approach the issue.  You can certainly ask, 'When did you last deploy?  Were you in a combat zone?'  However, that's dancing around.   In my experience, the best way to approach possible psychological issues in a military divorce is the same way they should be approached in every divorce. Part of the client's intake process in every case should be obtaining the client's medical history.  Whether you're dealing with a Fortune 500 executive who's been forced to take unwanted early retirement, or a PFC who's coming off several months in Afghanistan at a forward fire base in the middle of nowhere, you can't represent the client effectively without knowing his or her medical issues. You don't want to discover for the first time in the middle of a custody dispute that a military client's being treated for severe PTSD, any more than you want to discover that a civilian client's being treated for psychological problems caused by domestic violence or emotional abuse.  It's also worth remembering that service members diagnosed with PTSD have a broad spectrum of issues, and that none of them in any particular case may be genuine issues when the subject, for example, is successful parenting.  Here's the bottom line.  The guys on the other side will always be looking for something wrong with your client, whether it's PTSD or something else.  Your attorney should immediately know everything about you that the other guys might use against you, so that whatever it might be, it can be explained and drained of prejudicial impact on your case.  If you're a current or former service member with PTSD, and you're looking for a divorce lawyer, don't keep your PTSD a secret, and don't hire a lawyer who's afraid of helping you deal with it successfully in your divorce.

PTSD May Be a Factor in a Military Divorce

 Child custody in military divorces often looks different than it does in civilian divorces.  Many young men marry their high school sweethearts before they enlist.  Their wives travel with them to wherever they are based.  Soon there are small children.  The combination of low pay, stressful parenting, and homesickness often destroys the marriage. Without local roots, and usually without jobs (or jobs worth keeping), wives tend to feel that their best option is to go back home to their families, where they will have a ready made support system for themselves and their babies, including free baby sitters, and perhaps a better opportunity to find a job through family friends.  Let's say back home is Alabama. Typically the initial separation is supposed to be only a temporary visit back home, but it turns into a permanent relocation.  This is a dangerous situation for the service member husband and dad when it comes to child custody, because the California courts will lose jurisdiction over the children to the Alabama courts once mom and the children have been in Alabama more than six months.  In other words, unless dad files for divorce here in California before his children have been gone six months, he's not likely to get them back.  Instead,  after six months mom will file for divorce back home, and the Alabama court  will decide whether the children return to California to be with dad, or whether they stay with mom.  Under those circumstances, it's highly likely that mom will get sole custody of the children, and dad will only get visitation.  Because of limited leave time, travel time, and travel expenses, dad will most likely be with his children only a couple of weeks a year while they are little kids. Military dads must be aware of this six month rule and file for divorce before their time expires.  If they do file here in California within six months, it is highly likely that the California court will order mom to return the kids to dad pending the conclusion of the divorce proceedings.  The court cannot order mom to come back with them, but almost invariably she does.  When mom comes back with the kids, the custody picture changes favorably to dad by a large margin.  The general rule is joint legal and physical custody.  A 50/50 time share may not be attainable, but the frequency and duration of the periods when dad has the kids will be far greater that they would have been if mom and the kids had remained in Alabama. 

Modifying Child Support - Marine or Sailor

 High Conflict Divorce Cases and Mental Illness Divorce lawyers refer to some divorces as "high conflict cases."  Over the past few years we've realized that some form of mental illness drives many of them. High conflict cases usually involve child custody and visitation.  The parties cannot agree on anything and fight about everything.  The cases  go on interminably through numerous motion hearings and are resolved only by trials. I'm neither a psychologist nor a psychiatrists, so I'll keep my comments on this phenomenon in plain English. Consideration of mental illness may help answer some puzzling questions in high conflict cases.  For example, why is Mom so convinced after separation that Dad is a terrible parent who should get supervised visitation only, when prior to their separation Dad's parenting skills seemed acceptable?  Why is there such a disconnect between the available evidence and Mom's accusations of Dad's unfitness?  We could easily reverse the genders. Children And A Parents Self Worth We now understand that some parents sense of self-worth is excessively and intimately bound up with their children.  They are overly dependent upon them.  If they feel threatened with the loss of a child to the other parent, they feel threatened as well with the loss of their own identity and their reason for being.  They can't let go, and consequently tend to view the child as their exclusive personal property. This inevitably produces a battle with the other parent over the child's affection and loyalty, which in turn harms the child's own sense of self-worth, reduces the child's ability to trust others, and generally makes the child miserable.  The overly invested parent will probably try, figuratively or literally, to take the child away from the other parent. Assuming we decide that the overly dependent, overly invested parent is abnormal to the extent of mental illness, what do we do about it?  The courts can do very little to help such a parent.  He or she can only be ordered to outpatient "counseling," and for no more than a year.  The court can also order a psychological evaluation and a custody evaluation, but neither is therapeutic. High Conflict Child Custody And Visitation Disputes From a practical standpoint, introducing mental illness into the mix may do little more than provide the court with something else to lean on when it makes child custody and visitation orders in high conflict cases.  Genuine mental illness suggests the potential futility of attempting to settle high conflict child custody and visitation disputes by negotiation.  Unfortunately, it also suggests that aggressive advocacy on behalf of the mentally ill parent before and at trial will be counterproductive for both parents and for the child. In my practive I remain mindful of these consideratins at all imes in high conflict cases.  When mental illness appears to be a factor in my client's behavior, I do everything possible, with tact and discretion, to induce my cleint to recognize his or her problems and voluntarily enter long tern serious therapy. San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.

Divorce and Mental Illness

 As a serving sailor or marine, you have a right to treatment of PTSD Whether you are a serving sailor, marine or retired service member, you have a right to treatment for PTSD.  Federal statutes and regulations creating the Veterans Administration and governing the care it provides guarantee the availability of multiple treatment options. If you've retired, and you think you are suffering from PTSD, the obvious place to start is a VA hospital.  However, given the scandals presently unfolding regarding timely access to care at VA facilities, you owe it to yourself to get on the Internet and find out what's out there for you, before sitting in a waiting room for hours on end. The first problem you'll encounter is an information age standard: too much information. having trolled through some of it, it seems to me that the best place to start would be the site of the National Center for PTSD.  This site does not provide clinical care or individual referrals, but it does help veterans find local mental health services and information on trauma and PTSD.  Right on the first page, you'll find phone numbers for the Veterans Crisis Line, the National Suicide Prevention Lifeline, and other emergency help. After that the going gets a little tougher.  I suspect that if you are reading this, and in fact suffering from PTSD symptoms, you will find yourself overwhelmed before long going from link to link and reading up on what PTSD is and what you can do about handling yours.  I think this may call for a slightly different approach than you might imagine.  Veterans sometimes call my office an want to know who they can sue to get help.  The answer is you can't.  That's probably a good thing.  Litigation would not be helpful.  But you can complain.  Would writing to anyone in the government help?  Past experience indicates it wouldn't.  About all that ever comes back are form letters.  However, you and everyone else has a member of Congress elected from the district where you live.  They're easy to find.  If you don't already know who yours is, try looking on the general federal government web site, USA.gov. Get the address and phone number of the local office. In the office there will be a number of staffers whose job it is to make constituents happy.  That includes you.  A living person will actually talk to you, listen to your problem, and make a conscientious effort to help you by answering your questions and directing you to the next step, in a concrete and focused fashion.  Maybe I'm dreaming, but I believe that's how it's supposed to work, and that it does.  A final thought.  Enroll everyone you know in your battle to get the help you need. And don't give up!

Getting Help with PTSD

 Separate Property in A Divorce There are many things to consider if you’re thinking about divorce.  One of the most important considerations is records.  If you have what you think is separate property, be prepared to defend it, because you have the burden of proof.  Proving that “no” community property has gone into your separate property is the problem.  If community property has paid any expenses of your separate property, the community is entitled to reimbursement, so you lose half of the amount in question. If community property has paid part of the purchase price, made a mortgage payment that partially reduced the principal, or paid for part or all of an improvement that likewise increased the value, the community acquires a proportionate interest in the property.  This has a snowball effect if we are talking about a series of properties of increasing value. Accurate Financial Records of Separate Property Avoiding a community reimbursement claim or a community interest claim requires accurate and complete financial records going back to when the property was acquired.  If the separate property we’re talking about was purchased with the proceeds of previously owned separate property, “when it was acquired” means when the first separate property in the chain was acquired.  That could easily mean going back twenty years. If you are counting on obtaining the needed records from a financial institution or an escrow company, you are in for an unpleasant surprise.  They usually don’t keep records more than six years, even on microfilm or electronically.  Also bear in mind that if you can’t account for a portion of the purchase price, that portion will be presumed to be separate property. Moreover, the records must allow you to trace all payments to their source.  You may be able to prove that the down payment came out of your separate checking account, but you also have to prove that the money was separate property when it went into your checking account.  If your Aunt Matilda sends you a $10,000 check every year, be sure the check is payable only to you as your separate property, and that you keep a copy of it. Checking, Investment and Escrow Account Records If you’ve been prudent, you will have kept all your checking account records, investment account records, and escrow records.  You will also have kept meticulous records of the income and expenses of your separate investment property.  If they show the property always carried itself, great.  If they don’t, you’d better be able to show that any shortfall was made up with your separate funds. Lastly, assuming you kept all the records you need to protect your separate property, make sure they don’t disappear.  Added to the usual risks of fire, flood, and moving is the risk that your spouse may destroy them or hide them at the first sign of serious marital discord.  Have at least one complete set of copies, and keep it in a safe place under lock and key. San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.

Advanced Planning For Divorce - Records

 If a divorcing couple has minor children, child support will be one of the main issues in their divorce.  Here are five things to remember about how child support works.  To find out how much you will pay or receive, someone has to do the following five things: 1.  Determine Custody. Joint legal and joint physical Joint legal, sole physical, visitation Sole legal, sole physical, visitation “Primary residence” ? 2.  Determine a parenting plan Holiday schedule School breaks (year ‘round?) Summer 3.  Calculate time share Partial days School days More time supporting parent has, the lower the payments 4.  Determine income Employees with regular paychecks – easy Self-employed – difficult Commissions and bonuses 5.  Adjusting the computer’s figure Front end – impute income Back end – “add-ons” San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.

Five Things to Remember About Child Support

 Why is divorce so expensive?       And why does it take so long?  Why is divorce so expensive? There are many reasons.  Let's look first at dividing the assets.  Most middle class couples have more than one checking account, savings account, and money market account.  Let's take them and cut them in half.  First we have to know the date of separation, because we're going cut them in half as they existed on the date of separation.  Perhaps the date of separation is not an issue, but we still need to have statements for all the accounts for the month in which separation occurred.  If you do online banking, it's usually quick and easy to accomplish that.  However, we're also going to need copies of all the monthly statements for all the accounts for all the months from the month in which separation occurred down to the present.  That can be a surprisingly large number of statements.  Community Debt, Separate Property And Reimbursement Claims Why do we need all those statements?  The answer is that some amount of debt existing at separation is almost always paid after separation with money earned by one of the parties after separation.  The debt is community debt, while the earnings are separate property.  A party who makes a payment on a community debt with his or her separate property is entitled to be reimbursed.  In other words, the other party owes the paying party one half of the payment.  Unless you're prepared to forego what may be substantial reimbursements, someone has to examine all those statements, and perhaps all the checks drawn on the accounts, to identify and prove all your reimbursement claims. On the other side of the coin, when community funds are used to acquire or improve one party's separate property, that party must repay the money to the community.  In other words, the party owning the separate property has to pay the other party half of the money spent during the marriage on the separate property.  These reimbursement claims can be based on payments made years ago.  That means acquiring and examining even more account statements, unless you're willing to kiss the claims goodbye.  Most people aren't, so finding and asserting reimbursement claims of both kinds requires hours and hours of work. But, you ask, why can't we just divide the accounts immediately based on the statements for the months in which separation occurred?  Sounds like a good idea, but one party may blow the money immediately, only to discover eventually that he or she owes the other party substantial reimbursements or a substantial equalizing payment.  If the money were still in the accounts, it would be available to pay to the other party, but it's not, leaving the other party high and dry.  ATRO's "Automatic Restraining Orders" and Division of Community Property Each side usually refuses to take that risk, so the accounts remain undivided until the final reslution of the case.  The Family Code attempts to minimize the risk by prohibiting either party while the case is pending from using both community and separate property for any purpose other than reasonable living expenses without the agreement of the other party or a court order.  This prohibition is one of the automatic restraining orders ("ATRO's") which become effective immediately at the beginning of the case.  The ATRO's have the unintended consequence of discouraging immediate division of monetary assets when at least partial immediate division would benefit both parties, reduce animosity, simplify matters, and help get the case over with earlier than otherwise. QDRO's "Qualified Domestic Relations Orders and Retirement Plan Division A monetary asset whose division can be similarly time consuming is a retirement plan created to make saved earnings tax exempt as long as they remained saved.  These are either "defined contribution plans" or "defined benefit plans."  Such plans "quailfy" to produce the desired tax deferral by adhering to certain arcane provisions of the Internal Revenu Code.  Because they are "qualified" plans, dividing them requires a "qualified" court order also adhering to the Code.  Such orders are called qualified domestic relations orders, or "QDRO's."  The preparation of QDRO's has become a legal sub-specialty.  Preparation of a proposed QDRO satisfying both parties and the plan administrator can take months. We could go on and on with time consuming and document intensive problems encountered in dividing community property so that the legal rights of the parties are satisfied.  Because each party is typically intent on getting all of his or her legal rights satisfied completely, and each party's attorney knows who will be blamed if that doesn't happen, family law attorneys are usually afraid of compromises, again dragging out the proceedings. Determing Spousal Support - Family Code Section 4320 Similar considerations tending to generate long delays and inordinate legal fees are at play in all of the other tasks which must be accomplished to produce a final judgment dissolving a marriage.  Custody and visitation issues can easily defy a quick resolution, and they usually do.  Rare is the case in which a preliminary pronouncement of complete agreement proves to be true.  Determing spousal support requires the application of sixteen different factors and sub-factors spelled out in section 4320 of the Family Code.  The amount of potentially relevant information is mind boggling.  Acquiring it can take months.  Analyzing it and arguing over it can take more months. Getting married is quick and easy.  Getting divorced is slow and difficult. That's the nature of the beast.

Why Is Divorce So Expensive?

 1. Withdraw half of the money you have in joint bank accounts, and put it in a new account in your name alone at a bank where nobody knows your spouse. This includes all checking, savings, and brokerage accounts. Your spouse and his or her lawyer will profess to be shocked.  Pay no attention, but be sure to do this before the petition is filed.  Stop using the old joint accounts.   2. Copy all account statements and similar financial documents and put them in a secure place where your spouse can’t find them, like a safe deposit box in your name alone.  Go back as many years as possible.   The originals may disappear. 3. Get your own credit card if you don’t have one already.   When you separate, start using it and cancel all the joint cards you had.  Also cancel the home equity line of credit if you and your spouse have one. 4.Change your will.  If you and your spouse have a family trust, revoke it and do a new one.  You don’t want your spouse to get your half of the community property if you die before the divorce is final. 5. If you’ll need temporary spousal support and you’re entitled to it on the numbers, prepare the court papers asking for it when you prepare the petition, and file both at the same time.  Don’t wait until after the petition is filed.  Ditto for child support and custody.  Don’t assume you and your spouse will be able to agree on everything. PDF Download Version San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.

Five Most Important Things to do Before Your Divorce

 The phrases contested divorce and uncontested divorce can be misleading.  Let’s take contested divorce first, because its meaning is clearer than uncontested divorce.  From the court’s viewpoint  contested means that the case ended with a trial, the judge decided the issues, and the decision is attached to the one page mandatory judgment form as the terms of the judgment.  Of course, there are trials and there are trials.  In some cases the parties can agree on all issues except one or two, and those are the only issues decided at the trial. In that event the terms of the judgement are a combination of the judge’s decision on a few issues and the parties’ agreement on the rest. Going to Trial over Divorce or Not? If there is no trial the divorce is uncontested.  All cases in which the parties reach a settlement on all issues are uncontested in this sense.  From the parties’ viewpoint the case may have looked like World War III, but it just didn’t go to trial.  Instead it settled completely, the parties signed a Marital Settlement Agreement, and the judgement (with the Agreement) was entered without a final battle between them. Default Cases and Default by DESIGN - Uncontested Divorce There is a subcategory of uncontested divorces that deserves special mention.  Those are default cases.  There are two types.  In the first, the respondent refuses to discuss the issues and doesn’t file a response to the petition.  At the petitioner’s request, after the time to respond has expired (30 days after service), the clerk enters the respondent’s default.  After that, the respondent has no right to participate in the proceedings, and the judgment is entered on the basis of evidence presented by the petitioner alone, by written declaration or orally at a “prove up” hearing. The second type of default case might be called default by design.  Here the parties have settled all issues, signed a Marital Settlement Agreement, and want to avoid paying two filing fees (one for the petition and one for the response).  The petitioner takes the respondent’s default, and the judgment is entered on the basis of their Agreement. In practice many couples separate initially on good terms and one or both of them expect an uncontested divorce without any court hearings.  Most of the time this expectation is unrealistic and not fulfilled.  However, it is the source of many calls we get from potential clients asking us what the cost would be of an uncontested divorce versus a contested divorce.  The question is impossible for us to answer, except to say that in simple cases where the parties do prove to be in agreement on everything with no arguments, the cost might be a few thousand dollars, while the cost of a contested divorce will be much more. High Conflict Contested Divorce Cases When the parties have come to hate each other, especially when they have children, high incomes, and numerous high value assets, significant fees and costs are likely to be incurred, despite our best efforts to save our clients stress, time, and money by draining the emotion out of their cases and creating a climate more condusive to agreement than argument.  We can and will deal professionally and successfully with high conflict cases, but we believe our clients’ best interests (as well as their children’s) are better served when high conflict can be reduced with the help of our experience and sensitivity.  Please call us for an appointment to discuss your case. Carlsbad Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.  

Contested Uncontested Divorce

The Stan Prowse "Legal Eagle Segments"on the Andrea Kaye Radio Talk Show are designed to be an easy listening source of information on famil law, divorce and legal help for military service members.

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Andrea Kaye and Stan Prowse Legal Eagle Radio

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