Holidays and Custody

It is essential that when going through a parentage action or divorce, that you account for holiday custody arrangements to avoid problems down the line.

Typically people will alternate who has Thanksgiving and Christmas (for example mom gets Thanksgiving on even years (2012, 2014 etc) and Dad gets Thanksgiving on odd years (2013, 2015, etc). The same is done with Christmas, except the parent who gets Thanksgiving is usually not the person who gets Christmas that year. Parents often also give Christmas Eve to the person who does not have the child on Christmas days.

Of course there are different schedules for each family. If you live far apart, cultural/religious schedules, etc are all important factors that play a part on the schedule that your family will agree to.

No matter what schedule works for you, make sure it is part of your court order so that there is no confusion and so it can be enforced later.

Retirement Accounts

One of the biggest mistakes people make when they do their own divorces or use a paralegal/legal document assistant to help them, is not dividing the retirement account properly.

Certain types of accounts need to have the company joined to the suit as a "party" so that they are on proper notice of the final division and can therefore properly pay out to each party once they reach retirement age.

There are attorney's that are specialists that handle these types of accounts. They are called QDRO specialists and they are quite pricey - but cost less then trying to go after the 401k/pension company 40 years from now when you retire. Generally when I have clients with small amounts in their account at the time of divorce, I have them exchange it for another asset or see if they can roll it over into an IRA in their own name immediately. If those options are available they will be far cheaper than a QDRO specialist and there is usually not a point in paying 5-10k to restructure retirement accounts that are only worth 10k themselves.

Stepparent Adoption

In California there is a streamline process for stepparent adoptions. If you have the biological parent's consent then the process can be fairly simple. If you do not have their consent it becomes a lot more difficult. You will need the court to rule in your favor. The easiest way to do that is to show that the other biological parent has abandoned the child. This is defined as not communicating OR supporting the child within the past year. If that is the case, the judge will often rule in your favor. If not the case, the stepparent will likely not be able to adopt the child.

Additionally, keep in mind that if the stepparent does in fact adopt the child that in the eyes of the law they are a parent with all rights to support, visitation, etc after a divorce or death. The biological parent's rights are essentially terminated and the stepparent steps into their place.

730 Evaluations - Required in Most Move Aways

Sometimes the court looks at all of the evidence and still does not feel that they can truly determine the best interest of the child. Due to the need for more information, they order a 730 Evaluation. A marriage and family therapist who has does some other special training and approved by your county  courts will meet with both parents, the child, and anyone else that they deem necessary (teachers, half siblings, doctors, etc). They will also review report cards, letters from friends, medical records, and any other pertinent documents.

Although a wonderful way to ensure that the child is met with and all of the information is on the table, these can be incredibly expensive. If you can get a focused evaluation - meaning they look at just the move away and not custody as a whole (or whatever other issue you have in front of the court) you can usually find a flat fee of about 3,000-5,000. If you do an ENTIRE evaluation they can cost 10k-20k.

Due to the cost people try to avoid them wherever possible. However the court and mediators if you are in a recommending county, can request one if they feel that it is needed.

Reconciliations

Sometimes people who have filed for divorce consider reconciliation. Some of these end up being long term and some of these reconciliations fall apart again a few months later. If you have filed all of your paperwork with the court and now are deciding to reconcile, instead of dismissing the case immediately, I would suggest that you and your partner enter into a Stipulated Order that basically puts the case on hold for the time being, but gives you until a certain date (usually a year) to reinstate the case without having to completely refile all of your paperwork from the beginning.

You do not want to just do nothing and let your case sit -- this is especially true if you are in a situation that may result in a default judgment, or if you filed an agreement or order that the court may sign within 6 months. It also can make things murky since CA is a community property state.  Talk to an experienced family law attorney about filing the correct paperwork to put your case on hold until you can determine that your reconciliation is forever.

Choosing a Family Law Attorney

Choosing an attorney can be hard - should you go with the person who has a tv ad, the person that advertises in the phone book, a quick yelp search, etc...

Honestly you might have to sort through a couple of attorneys before you talk to one that just clicks as the person who is right for you. You have to work with this person for months or possibly a year or two depending on the complexity of your case.

We all passed the bar, but those who chose family law for reasons other than money have a much different attitude then most typical attorneys. We care about the people involved - we understand that every decision or strategy impacts your life and the lives of your children (and gasp - even your ex's). Unfortunately even in family law we have the sharks that are only in it for the win, no matter how much it hurts the other side and as a result the kids.

1. You want to find an attorney that understands that you will have to co-parent with the other side. You may be livid with them now -  but for the rest of your child's life you will have to deal with them for visitations, major events, etc. Co-parenting is KEY if your lawyer does not understand that - MOVE ON.

2. You want to find an attorney who also understands your spouse/ex's behavior. This is imperative where it is a domestic violence situation. You will want an attorney that will not be bullied by the other person, but on the other hand understands how "charming" abusers can be.

3. Make sure that your attorney understands what you want and is realistic about you about what is possible or not based on your situation. Do not go with an attorney who just tells you what you want to hear in order to get the fee agreement signed. If it sounds too good to be true, it probably is.

4. Make sure that you are talking to an actual attorney and preferably the attorney that will be handling your case. Lots of times you talk to a paralegal/assistant or intern and not the actual attorney. Make sure you talk to the person that will be handling the day to day parts of your case - since you will be working with them closely and have to feel like you trust them.

5. Make sure you talk to your attorney about hidden fees/charges. Do they typically waive some of them? For example, I typically only charge clients for longer phone calls and not for leaving me messages. I do not guarantee them this, but I do tend to do this. With this you also need to make sure they are not in it for the money-- by this I mean are they more likely to drag on your case in order to collect more fees. or try to get you and your ex to reach an agreement that is best for all parties involved (again dont forget about the children). In family law if your attorney is not trying to lean you in the direction of an agreement - get another attorney.

www.allforthefamilylegalclinic.org

Filing for a Restraining Order Yourself

This is one time you may not actually need an attorney. The state makes it very simple to handle a restraining order yourself. Most court houses have a self help area for victims of domestic violence so they are a great resource for you.

Basically the procedure is this.
1) Fill out the forms DV-100 and DV-100 (You can google these forms and they will come up or ask the court form them)

2) If you have children that you also want protected fill out DC-105 and DV-140 also

3) If you are asking for child support fill out an FL-150 Income and Expense Declaration.

4) Ask your court clerk or self help area if they have any special forms for your county that you should also fill out.

5) File the above with the clerk. Ask the clerk when you should come back to determine if a Temporary Restraining order has been granted (this is what will be in place until your hearing). Then come back when they tell you to and see if the judge signed the order. If they did file it appropriately.

6) After filed and you have a hearing date - have someone over the age of 18, who is not protected by the order serve your abuser with the forms you filed as well as a DV-120 Blank response form. FYI you can ask the local sheriff to do this for free for you. Make sure you get a Proof of service DV-200 to file showing that the other side was served in case they do not show at the hearing.

7) Make sure that you have a copy with you of your restraining order at all times. 

• Keep 1 copy with you, always. You may need to show it to thepolice.
• Keep another copy in a safe place.
• Give a copy to anyone else protected by the order.
• Leave copies at the places where the restrained person is ordered not to go (your school, work, etc.).
• Give a copy to the security officers in your apartment and office buildings.
  
  
  8) Show up to the hearing! This is where the judge will have a chance to hear both sides and determine if a long term restraining order should be issued.
  
  
  9) If you get the order, fill out a DV-130 and file it with the court for the judge's signature! 
  
  
  10) Once you have the signed by the judge copy of the DV-130 - have someone other than yourself who is over 18 serve it to your abuser. Again, you can have the local sheriff do this for you for free. 
  
  
  Good luck!