Choosing the proper divorce lawyer is not as important as choosing a spouse
But if you regret the choice you made for a spouse you don’t want to regret your choice for a divorce lawyer.
We believe that family law issues in particular are not constrained to an 8-to-5, Monday through Friday timetable. Our clients are encouraged to call us outside business hours and on weekends when problems arise if they feel it can’t wait until the next business day; we also do not nickel and dime clients for phone calls, text messages or emails, because we would rather a client feel free to ask a question or report an issue than worry about how much that text or phone call will cost and fail to seek our counsel.
Going through a divorce – particularly if you have minor children – may well be the hardest thing you will do in your life. It is both an ending (of a marriage that began with such hope and love) and a beginning of your life going forward. What happens during your divorce will set you on the road for a future that will be filled with challenges no matter what happens between the parties and the lawyers and the court.
There are many good lawyers who can help you end the marriage. Not only will we help you with all these legal details, with getting you all that you should gain financially and regarding custody and visitation, but we will also help prepare you for the new life ahead.
Children come first
When children are involved, you want to attempt to not only obtain the most favorable custody and visitation, but recognize that while your spouse will no longer be your spouse, they will always be the children’s parent. Only in rare circumstances will you be left as the sole parent legally, and part of crafting your future involves the attempt to develop a relationship that allows both parents to work together amicably at least on the surface. You will miss too much of your children’s futures if parents cannot work together, attend events together, and co-parent in a way that minimizes friction and promotes cooperation. That may seem impossible at the beginning of a divorce when passions are at their highest, but we can help work out a parenting plan that may allow you to not miss important times in your children’s lives because of unresolved animosity between the parents that poisons their relationship with the kids. As one book put it, you want to avoid the divorce from hell so you can dance at your daughter’s wedding.
An important part of providing for the welfare of children is making certain you have the resources to provide for them going forward.
We’ll work together to minimize your costs
No one can predict how much a divorce will cost, because it greatly depends upon the actions of the other party. If your spouse files unnecessary motions with the court, or refuses to cooperate with producing documents needed to fairly distribute property, then your costs will mount. Our pledge is that we will work to minimize costs to resolve your divorce as swiftly and economically as possible while getting the best results for you.
We spend a lot of time educating our clients, explaining options to allow them to fully participate in their case. We will always be mindful of your bottom line financially, and will carefully explain tactics and options along with their projected costs and possible outcomes so we can guide your divorce litigation together. While we cannot guarantee results or costs, our clients always understand that we have their financial abilities and interests in mind.
Choose your divorce attorney with care
Retaining a lawyer for a divorce is never cheap, but we offer a sliding hourly scale based upon ability to pay as well as substantial discounts for work performed (as well as active military and first responder discounts); if warranted under the law, we will work to get your spouse to pay some or all of your legal fees up front.
Call for your free consultation today, and let’s take the first step toward charting your new path forward.
Prenuptial and Postnuptial Agreements
Marriage is a time of hope and loving thoughts for the future. It doesn’t seem appropriate to cloud this magical occasion with thoughts of the marriage not working out prior to the ceremony.
Yet there are times when it is appropriate to consider practical realities. Just as making a will or getting life insurance does not mean you are looking forward to dying in the near future, preparing a prenuptial agreement does not mean that you anticipate divorce or separation but rather that you want to specify the disposition of property if the worst happens.
A properly-prepared prenuptial agreement can also allow parties to avoid much of the pain and financial cost of a divorce surrounding the disposition of property. It protects not only the parties but children and other family members much as a will or trust does, by preserving assets by agreement instead of fighting over them. It takes property and financial decision-making out of the divorce equation to a great extent so such matters are not debated and decided at a time when passions tend to run wild and anger replaces calm judgment.
Postnuptial agreements (after marriage) can avoid the stigma of “planning for failure” before the marriage but still provide the parties with an understanding of how things will sort out.
Prenuptial and postnuptial agreements may actually increase the likelihood that a marriage will last, by giving the parties an understanding of what their financial life will be outside marriage. They can provide an extra impetus to stay together and work things out, recognizing beforehand the financial realities which divorce brings (and which couples rarely full appreciate when contemplating divorce).
These agreements must be properly drafted and implemented to avoid the risk of being thrown out by the court.
Divorce – deciding whether to file, filing, answering
The decision to file for divorce should never be an easy one. Life will change dramatically, in some ways that can be anticipated but in many ways that the parties will never comprehend beforehand. Part of our job is to try to give our clients as comprehensive an understanding of the pros and cons of divorce, what the process involves, and what life will be like afterwards. Divorce is not always the best option, but when it is, you need to understand from the beginning how it will impact you, your children, and your future. Getting out of a bad marriage does not mean that life will be better afterward, only different.
It is generally better if you file the petition for divorce rather than your spouse. California is a “no fault” divorce state, which means that you needn’t share the factors that lead to your filing; “irreconcilable differences” covers a lot of territory. If you file the petition you establish a measure of control, from when it happens and where it is adjudicated to having the opportunity to swiftly move into required and voluntary papers and motions. (See FAQ for discussion of the process from filing to judgment and beyond).
Frequently Asked Questions
If your spouse files, you have a limited time to answer to avoid a default (although default divorce judgments are fairly easily set aside). The good news is that the answer (like the petition) is simple and does not require a lot of time or information. Often people seek our help after they have filed or answered, when it becomes clear that the quick and amicable resolution they had hoped for does not materialize.
Child custody and visitation – before and after judgment
Children come first
When children are involved, you want to attempt to not only obtain the most favorable custody and visitation, but recognize that while your spouse will no longer be your spouse, they will always be the children’s parent. Only in rare circumstances will you be left as the sole parent legally, and part of crafting your future involves the attempt to develop a relationship that allows both parents to work together amicably at least on the surface.
You have many options with custody, and we will take the time to learn your situation and your life to work with you to fight for the custody and visitation arrangement that is best for you and your kids.
You may no longer be husband and wife. You will always be Mom and Dad.
You will miss too much of your children’s futures if parents cannot work together, attend events together, and co-parent in a way that minimizes friction and promotes cooperation. That may seem impossible at the beginning of a divorce when passions are at their highest, but we can help work out a parenting plan that may allow you to not miss important times in your children’s lives because of unresolved animosity between the parents that poisons their relationship with the kids. As one book put it, you want to avoid the divorce from hell so you can dance at your daughter’s wedding.
Custody is not just about time, it is about money.
Whether you are paying child support or receiving it, how much time you spend with your kids (called "timeshare") will affect the amount of support.
For some people, this is not important. For others, it is very important. We will help you with this issue no matter where you are on the financial and emotional spectrum, and guide you to a result you can live with.
We can assist you in the process to effectively argue for, and get, the time you want with your children. See FAQ for more details on the process.
Frequently Asked Questions
Child custody and visitation - before and after judgment
When parties have minor children, the complexity of divorce (legal, financial and emotional) expands greatly. Property and financial settlements, while important, involve more room for compromise than your relationship with your kids. You can always make more money, or buy a new couch or car; your kids (and your fleeting time with them as they grow up) cannot be replaced if given up.
Parents’ relationships with their children during divorce are complex, involving more than your duty and desire to raise your children. Children are a financial factor, and time spent with them translates directly into support monies paid. Sometimes the party paying support cannot help but view their time with the kids as a financial matter.
Judges are very aware of this, and one of our jobs is to make certain that you get as much time with your kids as possible without the Court believing that your desire is more financial than parental.
The judges do a good job of championing the value that the people of California through their legislature have declared - that the welfare of the children comes first. It is a critical function of our representation that we argue your position from the perspective of the best interest of the children, not what is desired or financially advantageous to you. We achieve better results for our clients because we understand how to frame your desired outcome for the judge’s approval. We will not deceive the Court, but will make your arguments in the best manner possible to maximize results.
One reality that we recognize and educate our clients about is that what is written on paper is not what ends up being the situation after judgment. Life intrudes, and quite often the actuality of visitation and time with the children changes for the better after judgment. Clients who desire more time with the kids than the judge orders (or is determined through settlement) often find that their timeshare (the percentage of time the kids stay with a given parent) increases after the divorce is final. Of course, each case is different, but flexibility in working with your former spouse often leads to results you are happy with in the long run.
We can assist you in the process to effectively argue for, and get, the time you want with your children.
Child Support & Spousal Support (Alimony) – Before and After Judgment
Money is important. Unless you are one of the fortunate ones who are fabulously wealthy, divorce will almost inevitably lead to some lowering of your lifestyle. The simple fact is that income and financial resources that can support a joint lifestyle are rarely sufficient to maintain that lifestyle in two households.
Child support is a numbers game, based upon calculations that are built into the Family Code and each county’s local rules (because each county has a different standard of living and expenses). This calculation – which is based upon the gross income of the parties, their respective time with children, and a very few deductions – would appear to not be a subject of debate. You plug the figures into a program and the support is spit out.
It is rarely that simple. If one party is self-employed, or has bonuses, or works a lot of overtime, it makes setting that base income figure problematic. If one party is unemployed or underemployed, the judge may well “impute” income, i.e., establish an income level that is not currently being earned but theoretically could and should be earned. By statute both parties are expected to make every effort to become self-sufficient and to support their children. Many factors enter into this argument – including age and special needs of children; health, skills and work history of a non-working spouse; and non-income financial resources available.
Both child support and spousal support (commonly referred to as alimony) during the divorce proceeding itself (what is called temporary or pendent litesupport) are generally calculated by a software program approved by the state. After judgment, when the divorce is final, child support remains determined (most often) by these guideline calculations, but spousal support is determined by the judge evaluating fourteen factors (including length of marriage, abuse during marriage, standard of living, ability to pay, etc.).
Child support continues until a child is 18 years old (or 19 and still in high school and living at home). For spousal support, the general rule is that, for marriage under 10 years in duration, spousal support lasts for half the length of the marriage (usually measured from the judgment date, not the date of separation). For long-term marriage over 10 years in length there is no set termination date in the code, but the trend in California is to order support based upon a rehabilitation theory – spousal support is designed to allow the supported party to gain an education or training and find a job to be self-sufficient. The judges have great discretion to set not only the amount of support but the duration. These are usually among the most hotly argued issues in divorce, and you need an attorney who can effectively wield the law and your facts to get you the best result.
While results can never be guaranteed, BALA knows the law, and is unusual among family law attorneys in having the investigation and accounting expertise to gather the facts to obtain the best results for our clients, whether seeking support or defending against support claims. See our FAQ for a more detailed discussion.
Frequently Asked Questions
Property Settlements – including Tracing of Interest in Real Property and Simple & Complex Division of Marital Assets
One of the most common reasons for a client to seek us out for help is the parties cannot agree on property settlements. This can be a matter of not agreeing on who should get what furniture or keepsakes acquired during marriage, to division of a 401K or who gets the family home.
Property is classified in general as separate property (owned by one person or the other) or community property (owned by both parties equally). Separate property goes to the party who owns the interest; community property is divided between the parties if possible or traded (the wife gets the $10,000 car, the husband gets the $10,000 grand piano).
The emotional element of property division comes in a close second to time the parties get with their children. The rather horrific 1989 black comedy “War of the Roses” centered in large part on who would get a small (and essentially valueless) ceramic dog figurine; (SPOILER ALERT!) the parties literally died over this trinket which meant so much to them (and was used as a bargaining chip).
People often have strong (and inaccurate) beliefs as to who “owns” things acquired during marriage. While the Family Code is fairly clear in some instances (i.e., gifts and bequests during marriage are the separate property), there is often argument about even these seemingly clear-cut definitions. “You gave me that car for my birthday!” “No, we bought it as a family car before your birthday!” Often the determination of ownership requires detective work and documentation. This is called tracing and is often something that family law attorneys are not skilled at or willing to relentlessly pursue (“If I was good at math I would not have gone to law school!”).
Tracing can make a difference of tens of thousands or even hundreds of thousands of dollars for our clients. While there is a cost associated with tracing, we will always advise you of both the potential costs and the potential benefits to allow you to make the choice of how far you want to pursue things. BALA is ever-mindful of the financial resources of our clients and will always educate you on the cost-benefit calculation so you can be in control of your case.
Retirement plan distributions
Depending on the circumstances, calculation of each party’s interest in retirement plans including 401K plans and pensions can be simple or complex. Simple, if the plan was entirely funded during the marriage, complex if part of the plan was funded before marriage.
Distributing a pension or retirement plan can also have issues relating to taxes and vesting of interests. You need to understand your rights and options, and we can guide you to not only determining your legal interest but working out a settlement that minimizes taxes or delay in gaining access to funds.
Business valuations for separate or community businesses
California is a state filled with entrepreneurs and small business owners. Each business type requires understanding and the proper approach to evaluate each spouse’s interest in a business and setting a dollar amount to that for settlement. Different approaches are needed for different types of business entities (i.e., for a sole proprietorship started before or during marriage and a corporation where one spouse is the sole stockholder or one of several entrepreneurs), even though they may bear a superficial similarity.
If you are the business owner, you want to preserve your interest in the business and minimize the interest your spouse has, because that translates into money or asset swapping. If you are the spouse of the business owner you want to maximize your interest (and financial payment or offset). We have experience from both sides, and have gotten our clients favorable results because of our knowledge as well as our tenacity.
California is a state filled with entrepreneurs and small business owners. Each business type requires understanding and the proper approach to evaluate each spouse’s interest in a business and setting a dollar amount to that for settlement. Different approaches are needed for different types of business entities (i.e., for a sole proprietorship started before or during marriage and a corporation where one spouse is the sole stockholder or one of several entrepreneurs), even though they may bear a superficial similarity.
If you are the business owner, you want to preserve your interest in the business and minimize the interest your spouse has, because that translates into money or asset swapping. If you are the spouse of the business owner you want to maximize your interest (and financial payment or offset). We have experience from both sides, and have gotten our clients favorable results because of our knowledge as well as our tenacity.
Tracing hidden assets
Sadly, sometimes spouses hide assets during marriage, often in anticipation of divorce or simply because of greed and a need to control. Discovering these hidden assets can be problematic but can also result in significant financial benefit to our clients. In extreme cases, where your spouse has grossly violated their fiduciary duty (duty to disclose and treat their spouse with the utmost honesty and integrity), the court can award the entire hidden asset to the harmed spouse.
Tracing assets often requires painstaking attention to detail and research, as well as gathering documentation that can be elusive or hard to obtain. While again there can be no guarantees, BALA has had success over the years locating hidden bank accounts and assets for our clients.
Mediation – An Alternative to Lawyers and Litigation
Often a divorcing couple is not overly antagonistic but simply needs help working out a fair disposition of property or child custody and support issues, as well as drafting a settlement agreement and filling out the paperwork required by the Court. They do not want to go to the expense of hiring lawyers to represent and argue for them. And they do not want some judge taking the decisions out of their hands to craft an order that they have no control over.
Divorce can be a very expensive proposition if both sides hire lawyers and fight every issue out through the courts. A long divorce process has an added emotional cost; the months (or years) a divorce goes on takes a great toll on the parties as anger, frustration, remorse, and fear roil through the parties with no resolution to dissipate them.
Mediation is a process whereby parties can come together to work out their differences in a more relaxed (and inexpensive) forum than the courts. The mediator does not represent either of the parties, but is a neutral who will counsel, educate, evaluate and recommend settlement solutions. Mediation may include joint sessions and break-out sessions where the mediator talks to the parties individually.
The mediator does not try, as a lawyer representing the parties would, to obtain an optimal result for one party. A successful mediated settlement results in an agreement, which the court will turn into an order, which makes each side equally unhappy but that they can live with and sleep well at night.
Some mediators consider themselves successful if they get their clients to come to a settlement no matter the content; at BALA we are just as concerned at reaching an agreement that both parties will accept as not perfect but acceptable without buyer’s remorse.
Our mediation will help you understand the realities of your situation, what judges have done in similar cases in the past, what the law says, and what your options are. We will guide both parties, individually and together, toward a settlement agreement that both parties can live with, prepare all the documents the court will require, and file those documents. It might be done in as few as one or two two-hour sessions or may take longer, but if the parties are willing to work together it can save tens of thousands in lawyers’fees and months of litigation.
Domestic Violence Restraining Orders
If your spouse is verbally, psychologically or physically abusive to you or your children, your first duty is to protect the kids and yourself. If you are married this can be accomplished by a domestic violence restraining order (DVRO). A DVRO is not a magic bullet; it does not guarantee that you or the children will not be threatened or hurt in the future, but it gives you the ability to have the police come and arrest your spouse for violation of the order, including coming near your residence or work, or the kids at school. In most cases it has a strong deterrent effect.
It is fairly easy to get a temporary restraining order; the court could rather err on the side of caution for a few weeks until a hearing on the petition is held where both sides can argue their case. The real challenge is getting the judge to extend an order for a year or more.
A DVRO against your spouse can also help you in child custody or support orders both pre- and post-judgment. For this reason some spouses file for a DVRO even when there has been no abuse, and we help clients fight such fraudulent claims.
We both assist clients with obtaining needed restraining orders and defend clients against false applications for retraining orders.
Because the history of a restraining order can be used in a custody or support context during a divorce or parentage proceeding in court, some parents have filed false domestic violence claims against their partners to gain an advantage in these matters.
BALA has experience defending against such false claims. Often criminal attorneys will follow their usual practice of encouraging clients to plead to lesser offenses if accused of a false abuse-related offense, unaware of how this will impact a divorce or custody or support matter. They believe they are saving you from jeopardy when they may end up taking your children from you or costing you thousands in unnecessary child or spousal support.
You need someone who understands the law from the family law perspective on your side.
BALA can provide such expertise.
Cohabitation (“Marvin”) Actions for Unmarried Partners
Many people live together, have children, and acquire property together without getting married. California does not recognize “common law” marriage (where people who live together for a period of time can be considered legally married).
Couples who live together and build a life together without marriage are still subject to the Family Code when it comes to their children, but they do not fall under the Family Code regarding their property. There are no community property rights for unmarried couples of same or opposite sex cohabiting relationships. This creates real issues for couples who split up after years of partnership. Whereas a married partner has rights to property acquired during marriage through income earned in the marriage, no such rights exist for unmarried couples. An unmarried spouse has no community interest in retirement accounts or pensions, no right to spousal support, and no community interest in real property paid for out of earnings during the relationship if not held in their name.
Fortunately, the California Legislature recognized how unfair this is, and provided a way for the cohabiting partner to make a claim. Made famous in the Lee Marvin case in 1976, the California Supreme Court declined to decide the case as a marriage but established that Michelle Marvin had a contract claim against Lee Marvin.
A Marvin action is a separate lawsuit which claims that the parties had a contract (verbal in most cases) that they would share income and property acquired during the relationship, that one party agreed to provide a certain level of support for the partner for a certain period of time, etc. The courts, in deciding such cases, have consistently looked for certain arguments and evidence. We have studied the successful (and unsuccessful) cases to derive arguments which are effective and persuasive based upon what the courts have cited as winning claims.
A Marvin action also can be brought even after marriage. Often people live together for a number of years, then get married. Sometimes they live together longer than they are married, and without a Marvin claim there would be little support or community property (such as when a couple lives together for 10 years then is married for 3 years).
Divorce lawyers often overlook Marvin claims which pre-date the marriage and only look at the marriage period. This can leave tens of thousands of dollars or more on the table.
