Articles Posted in Divorce

It finally has happened.   I guess some would say the inevitable.  But Ben Affleck and Jennifer Garner have finally called it quits after what appeared to be an on again off again relationship.  Jennifer Garner filed a Petition for Divorce.  She did not put an attorney on the Petition for Divorce which is unusual for a high profile couple.  Jennifer Garner and Ben affleck filed a Joint Petition for Divorce and both are seeking joint physical and legal custody of the three minor children. The couple separated June 30, 2015 almost two years ago.  It appeared from the public’s eye that the couple was trying to work things out for the children’s sake.

There is a big issue yet to be determined and that is spousal support.  Apparently Ben Affleck made much more money during the marriage than Jennifer Garner.  Therefore he will be obligated to pay Jennifer Garner either a lumps sum spousal support payment or monthly payments for a period of time yet to be determined.  In California a marriage over 10 years will garner life time spousal support payable by one spouse to the other.  In the case of Jennifer Garner and Ben Affleck there marriage was over 10 years so Jennifer Garner might be in for a substantial financial reward depending how she negotiates the divorce.

It also has been stated that she and Ben filed as their own lawyers which often takes away alot of animosity and litigation that having lawyers might cause. However, in the case of Ben and Jennifer they have approached the Divorce amicably and by filing as their own lawyers they are keeping up this amicable and calm approach to their divorce.  In addition, what is important to them has always been their children.  By both requesting joint legal and joint physical custody they both are invested in the best interest of their children.

In the modern day and age of the internet and facebook, instagram, twitter and all other sorts of social media outlets people have fallen into the trap of airing their dirty laundry during their divorce to the public to view and offer ill fated advice.  Do not trust the 3rd party input from social media.  Do not rely on a layman opinion regarding your divorce or family law matter that may negatively impact you during the divorce proceedings.  If you have spent the time and resources to hire a family law attorney and then head to facebook or other social media to share your intimate experiences about your divorce or all other issues regarding your dissolution of marriage then you are asking for a lot of trouble.

Studies have shown that leaking personal information to the public seeking affirmation of your personal business during a divorce can lead you down a very troubling and damaging road that cannot be undone.  Airing dirty laundry should be done to a friend on the phone but not to the public where the divorcing parties have access to your personal business that might not be so flattering to you during the divorce proceedings.  Do not undermine your lawyers efforts to effectively fight for your rights to spousal support, child support, child custody and property division as well as any custody issues you are vigorously fighting for by posting pictures of you out partying or drinking alcohol.  And do not post provoking pictures of your new boyfriend or girlfriend when you are trying to fight for your credibility in Family Law Court.

Julia Rodgers, founder of Holistic Divorce,  states “Couples should keep divorce-related issues away from the public. Doing this gives them the power to control the narrative and solidifies their case. In this age where comparison and blame-shifting is rife, couples are tempted to tell the world who’s at fault. However, doing this helps nobody.” This statement is very true.  Using social media to play the blame game and cast blame at the other spouse during the divorce only will in the end hurt you from achieving what you want to succeed from doing. That is to walk away from the divorce without losing all your assets and keep your personal life in tact.

Often the grounds for divorce in the United States and in California is irreconcilable differences.  Family law courts do not require that there is a fault to get divorced. However, under a new law in Mississippi would permit a spouse to allege domestic violence as a ground for divorce in that state.  The bill has been opposed by other house members who do not want to permit a  new domestic violence ground for a divorce in that state.  The bill which was sponsored by senator Sally Doty of the Mississippi Senate would like the statute to permit spouses to only have to prove that emotional and financial abuse occurred.  In addition the Statute would include that “habitual cruel and inhumane treatment” be grounds for divorce as well.  This would be a monumental law permitting spouses to only show some sort of abuse other than physical abuse.  Normally to prove Domestic Violence the party would have to show some sort of reasonable threat if imminent violence or some sort of stalking.  To permit the element of emotional abuse would definitely make proving domestic violence much simpler. That is the concern of  representative Andy Gipson of Mississippi State Legislature who feels another law adding emotional and financial abuse would be duplicative and add nothing to the current law in place. He adds that we do not need to add to an existing divorce law that already includes domestic violence elements in the statute.  His argument states that their is a history in the Mississippi Court system that have held for a victim of domestic violence who can prove there was habitual and cruel inhumane treatment over a period of time. This opposition by Gipson seems to be the issue between he and Senator Doty.  She further states that the new Domestic violence codification under the Mississippi divorce law would allow one witness and one incident to be permitted to prove the grounds for domestic violence under the divorce law. This new element permitting only one instance of abuse to occur as all that is needed to establish domestic violence in a divorce in Mississippi can be crucial in assisting a victim in getting a divorce.  The purpose stated Wendy Mahoney the executive director of the Mississippi Coalition Against Domestic Violence was to make the ability of getting a divorce a little easier for those parties who are victims of domestic violence.  And to show only that one occurrence is all that is be needed to prove domestic violence to get a divorce would be a significant change for the better Wendy Mahoney believes.  Representative Gipson strongly believes that the new addition to the current divorce laws would destroy the stability of marriage and make it easier for people to get divorced.  However, Senator Doty’s fight was fulfilled as the Mississippi State Legislature had passed the bill allowing domestic violence as a ground for divorce.  In addition, one key element that was added included the provision for one key witness as all that is needed to prove domestic violence.  This means that the victim themselves was all that was needed as evidence in Court to establish their case.

Free-Scarlett-Johansson-Picture-300x225As it is has become apparent Scarlet Johansson has filed for divorce. Her husband Romain Dauriac is from France.  He does not appear to want to contest the divorce issue but seems likely to contest the Child custody issue.  He and Scarlet share a daughter who is a Toddler named rose. He states that he is the primary care giver of the child.  He further states that Scarlet is always on a film shoot and he has to make his schedule work for her while she films. Scarlet appears to be taking the high road according her statement to public.  She states that ultimately her daughter will know how her divorce went down.  Clearly Scarlet does not want to make any of her divorce issues public.  However, due to the public nature of her career how can she really argue she wants to make her divorce private when she is such a public figure.  Her statements about having a private divorce may be based on false hope rather than reality.

As far as the child custody issues go there appears to be a big issue with regards to international child custody laws.  As Romain is from france.  If both parties can agree as to a schedule of visitation and custody then the international child custody issue will not be an issue.  However, if Scarlet and Romain cannot agree as to any schedule, then who will become the primary custodian of the child, Rose will be a very important issue. And how that will be determined by the Court will be very factual sensitive.  The Court will have to investigate who partakes in the day to day upbringing of Rose and who can maintain that type of contact with the child going forward.  The law Family Courts use is the “Best Interest” standard.  There are many criteria the Court will assess and then determine what is in the Best Interest of Rose and who should she reside with.  The Court can also make a custody determination giving primary custody to a parent that does not live in the United States such as Romain.  Since France is part of the Hague Convention Treaty Courts in the United States can freely decide that a child can reside outside The United States without much fear of any risk losing jurisdiction.

Secondly, the Johansson divorce will involve some property issues.  As Scarlet is a high profile actress who makes millions of dollars for her movies it is apparent she makes substantially more money than her husband Romain who is a curator of Art shows in New York.  Normally there would be a very big Spousal support issue where Scarlet would be paying her husband Romain thousands of dollars of support for a period of half of the length of the marriage. But both parties signed a prenuptial agreement which probably contracted away any spousal support issues the couple might face during their divorce proceedings.  Therefore Romain probably will be given a much smaller settlement of any assets Scarlet earned during their marriage.

Often people find themselves at the point in their life when they must decide to go forward with their marriage or should they terminate their relationship. One impediment they might find that might decide their decision making in going forward, is the enormous divorce process that they face once they file divorce papers with the court. The legal process through the Court system is often daunting and will cause enormous stress to the parties.  Therefore, there is an alternative solution that many parties are using nowadays that might resolve the unnecessary stress with the divorce process. Mediation is an informal and less stressful divorce process that many people find very beneficial in going through the divorce.

This process involves the parties meeting at a lawyers office or even a nonlawyer if they so choose.  This type of setting is much more pleasant and does not involve going to court. Once in the office the parties can sit with the Professional and proceed going through the divorce process.  All of the documents and procedures are involved in this Mediation process however, there is no need to go to Court.  The Professional Mediator will do all the paperwork and do all the Court filings.

Now the difficult part of all divorces is coming to an agreement with all the issues of the divorce such as support payments, division of property and custody issues. In a Mediators office all these issues can be handled without conflict in the Mediation setting. When both parties can come to the Office with their prospective requests and desires the mediator often can find that middle ground that often cannot be found in Court. If the Mediator is an experienced family law attorney they often can explain the outcome of the issues to the parties and act as an effective intermediary to resolve all potential conflicts. They can explain how a custody schedule might work and what way would be more effective for the parties.  They can also resolve the financial issues involved in the divorce. The mediator can look at all the financial declarations of the parties and resolve the spousal support issues if any.  They can also divide assets without having to fight in Court.

When people get a divorce there may be a variety of reasons for the termination of the relationship. One party may practice one religion and the other another.  If children are involved the issue of the upbringing of the children and which religion shall reign supreme becomes a hot topic.  How can both parties post marriage raise children to share and participate in each parties religious practices if any. This complex question seems difficult to solve at first, however, after careful planning and willingness by both parties, with an open mind, the problem can be easily resolved. How so? Well if both parties determine that religious practice is a positive learning tool for their children and that religion is seen as a form of education and inner spiritual development for the child whether the child is Christian, Muslim, Hindu or Jewish the child can flourish with the practice of both types of religions.

Our modern day society demands that we have an open mind to all religious practices.  As post marriage parents, the parties must divide everything up equally and fairly, including how we go about teaching religion to our children.  As children are shared between the parents on different Holidays and Vacation times so too can the parents divide the religious holidays and practices among themselves.  Each parent can equal time with their children in the practice of their religion.

If parties decide that they cannot decide how to divide up or decide who will be able to practice their religion with the children then the Courts will have to get involved.  As a result the Courts will order an often rigid arbitrary schedule that neither parent will feel is effective in adhering to their religious practices.  It would not be in best interest to have an arbitrary third party determine the fate of a child’s religious experience.

If you are thinking of getting a divorce to start the new year on new way of life.  I have several tips that you can use and plan about prior and during your divorce.  First, make sure you have money set aside to assist you financially during and after the divorce from your spouse.  The most important issue that arises for a person going through a divorce from a long term marriage is making sure there is enough money in the bank.  You need to create a budget for yourself post divorce. What are your expenses, make a spreadsheet.  If you are familiar with family law forms prepare an income and expense declaration.  This form will be truly helpful along the way during your divorce process.

If money is an immediate issue and your job does not financially give you the security you need you can hire a lawyer and go to Court and get an order, if there are children, child support and spousal support.  These two orders may well be the most important orders you can get in place during the divorce process.  It is important also to start separating your bank accounts from your spouse and putting your own money into that account.  Also along with a new bank account get your phone plan.  Privacy is very important during the divorce process and the other spouse does not need to know any of your business now that you are on your own.

Furthermore, you need to think about getting your own health insurance plan.  During the divorce process the law places a restriction on one spouse throwing the other off of the health insurance, including the children. However, that does not mean that once the divorce is final the other spouse is ordered to maintain health insurance for you, they don’t have to.  But they will have to insure the children by law.

In Texas there  is a lawmaker who is trying to make a push in the legislature for a no fault divorce.  This would mean that there needs to be a reason for getting a divorce in the state of Texas.  What this Texas lawmaker wants to do is make the family stronger and less likely for people to go to court and get a divorce.  Usually in Texas people go to Court and just file for divorce and get their personal property divided and that is it.

However, one Texas lawmaker has decided it was time to change the no fault divorce in favor a more traditional and difficult way to get a divorce.  This lawmaker wants to uphold the institution of marriage and make if more difficult for people to dissolve the marriage.  The family has deteriorated over time with the easy access to the court system and its quick mechanisms for terminating the marriage relationship.  Is this a good idea? well, time will tell if this lawmaker gets his way.  A divorce that would need to be brought to court and have a judge decide the fate of a marriage can be both positive and negative.

The negative side of having to find a fault with a divorce would be that the court system would definitely be more crowded.  A court system that is already burdened by too many litigants will be further inundated by people having to present a divorce case in Court.  What if the Judge decides there is no fault? Does that mean people will remain married because one party doesn’t want to get divorced.  That would a rather heinous result of this fault based divorce.

Costa Mesa Homes 001Who would have thought it would ever come to splitting up the family pet during a nasty divorce?  But times have changed and the family pet is now a hot commodity during a divorce proceeding. The family pet is the new hot topic of dispute for couples going through the most stressful time of your life. It used to be not too long ago Judges would only decide the custody of the children or how to divide proceeds of the sale of the house.  But now the Judge must decide who gets the dog or cat and to divide time amongst the parties just like sharing the children.  Pets are considered property as a couch or a stereo in the eyes of the law, however, nowadays the Court must take a more humane and difficult approach about how to divide the family pet.

Court must decide who is better suited to care for the dogs daily needs such as feeding, grooming, housing and sheltering the family pet. In the case of dogs who can better offer the dog interaction with other dogs and financially support the dogs needs.  The Court must consider who the pet is bonded to as they would a child.  Also the Court must look at who might have had the pet before the marriage.  In that case, the party who came into the marriage with the pet should be able to take the pet with them after the marriage.

There could be situations where the parties must use a alternate weekend option. In addition, the parties work schedule is an important issue.  Who is better suited to be home for the pet after work or during the daytime. It is in the dogs best interest often not to be driven too much back and forth from one party to the other.  The Court must decide who is better suited to maintain stability for the dog or cat.  The frequency of contact with the animal is vital as well.  It is important that the pet have adequate supervision at home and when someone is not home. A weekly back and forth schedule is ideal and offers the pet and both parties quality time with the pet.

Often after a divorce a person usually gets to put there name back to their birthname. Often this is the woman in the marriage.  However, sometimes when two parties are fighting it out in court they often forget some minor details of the divorce.  Child custody and property division become forefront in the litigation. Often some things are forgotten in the divorce.  Not to worry.  There are remedys after the divorce.  Many issues arise after the divorce is final.  Sometimes child custody becomes an issue.  Sometimes Child support becomes an issue.  Sometimes the divorce is an entry on reserved issues. This means that the parties are divorced however, they did not resolve all property issues at time of the divorce. They want to get divorced right away and worry about property issues later.

But one issue arises that is often overlooked and not talked about much.  This issue is that of An Ex Parte Application For Restoration of Former Name After Entry of Judgment and Order. This motion occurs when the woman wants to put her last name back to her birth name. Usually woman forget to do this during the divorce proceeding because they are so preoccupied with other issues of the divorce such as property and child custody.  This remedy is quite simple and certainly helps the woman regain her birth name back and regain her identity separate from the divorce.  This has to be done legally because upon marriage many women assume the name of the man and thus their name changes to the name of the man.  But upon divorce it is not an automatic reversion back to her birth name.  Why you might ask does it not revert back to her birth name? Well tradition and many centuries of women assuming the identity of the man make the change back to the birth name not a guarantee or a desire of many woman.  But there are certain woman who want go back to their birth name and do not want maintain the identity of the ex husband.

The procedure is quite simple and requires a motion to file with the court. The judicial counsel forms of the state of california provide an efficient method for the woman to gain back her self esteem and identity.  The law office of David Schwarz has done many motions to restore the former name of the ex spouse.  The motion usually takes a few weeks to prepare and file with the court.  The Court then processes the request and files it with the court.  The Court will return a filed and conformed copy of the motion and make it an order.  Thereafter the party can go to the DMV or wherever the parties name is registered under the married name and legally change it back to their birth name.  This procedure is a benefit to the party seeking relief to have a new lease on life getting back their own identity.  Please feel free to call the law office of David Schwarz an Orange County,California Divorce Attorney to pursue this ex parte application to restore their former name.