Acceptance of divorce rises, while divorce rates fall

Divorce used to be seen as a shameful subject in this nation — at the very best, it was a sign of a personal failure. At it’s worst, it was seen as a moral failing as well.

Those days are now long past — divorce is now seen as morally acceptable by most people — including among married couples and older Americans, both groups that have traditionally opposed easy divorces.

Despite the massive shift in the nation’s moral code over the decades, American are actually divorcing less than often than they were in previous decades when divorce was seen as less socially acceptable.

California was the first state to grant no-fault divorces, way back in the 1960s when the majority of Americans still felt that divorce should be difficult. By the 1980s, the rest of the nation had followed California’s lead — leading to a national epidemic of divorces.

Gradually, however, divorces have been declining. In 2015, divorce rates dropped to their lowest in 35 years. Meanwhile, acceptance of divorce as a means to end an unhappy marriage has risen to more than 70 percent.

This shift in attitudes coincides with a shift in acceptance for same-sex marriages and the cohabitation of unmarried couples both with and without children. Experts suggest that the timing is not coincidental — the general shift toward the acceptance of all these things together may signal a general cultural shift. Both marriage and divorce are increasingly being understood as legal processes — marriage formalizes existing relationships and divorce formally dissolves relationships that have fallen apart.

Whatever the reasons behind the shift in attitudes, it may make it easier on you emotionally if you’re contemplating divorce to know that you enjoy the social support of many others — whether they’ve been in your position or not.

For more information about divorce or to discuss your options, contact an attorney today.

Source: Hot Air, “Americans Increasingly OK With Divorce, But Actually Doing It Less,” Andrew Malcolm, July 09, 2017

3 quick tips to make summer trips easy despite custody issues

Planning a family vacation can get complicated even without custody agreements to work around, so it’s no surprise that summer sees an uptick in the number of disputes that end up heading to family court.

In order to stay out of family court this summer, make the following tips part of your vacation plans:

1. Review your custody agreement before you start planning.

Forgetting what’s in the custody agreement is probably the biggest mistake that parents make. It’s great to plan a trip to Disney but you don’t want to announce that to the kids if your custody agreement says you can’t take them out of state without the other parent’s agreement (unless you already have that agreement — in writing). Similarly, the Canadian Falls has long been a favorite trip for family vacations, but your custody agreement may not allow you to take the kids out of the country. If you want to do anything that violates your custody agreement, you’re going to need some legal paperwork to make it happen.

2. Plan your trip ahead of time and get the court’s approval.

You may prefer to follow the road wherever it takes you, but you can’t do that when you have a custody agreement in place. Set down and figure out your plans, put them in writing and see if your kids’ other parent is agreeable. You may need the help of an attorney to then submit them to the court for approval, but once the judge has signed off on the plans you won’t have to worry about being charged with custodial interference.

3. Realize that a temporary change in custody doesn’t entitle you to any other changes.

If you’re planning a trip that will last most of a month and your kids’ other parent is willing to allow it, that’s fantastic — but it doesn’t automatically change your child support obligation for that period of time. One of the hardest concepts for divorced parents to grasp is that support and custody are two separate legal issues. If you need to request a modification of support for a month, go through the proper channels in court.

For more information on summer custody concerns or similar issues, please contact an attorney. Visit our page if you’d like more information on how we may be able to meet your needs in this area.

Facebook can ruin your child custody case

Facebook and other social media accounts have become routine fodder for courtroom drama — and child custody cases are no exception.

It often takes parents by surprise, however, exactly how what they post on Facebook can be negatively interpreted by their opposition.

Consider these examples:

— The mother of a four-year-old child was ordered to unblock her Facebook account and allow the court to review every post she’d made or photo she’d uploaded in the last four years, including private ones.

The child’s father alleged that her Facebook photos and posts could be used to prove that the mother was frequently on far-flung vacations without the child. The judge ruled that the information could help determine the quality and quantity of time actually spent with the child, a factor that can be important in custody.

— Another mother lost custody of her children to her ex-husband because her Facebook comments about him were so negative that the court determined she was emotionally unable to support a healthy relationship between her children and their father.

It’s absolutely critical that you don’t underestimate the role that Facebook could play in your custody case — around 81 percent of divorce attorneys admit that they use evidence gained through social media to support their cases.

You do not want to be part of that statistic. If you cannot simply remove yourself from Facebook altogether, post very little personal information and avoid photos of your location, family events or celebrations. Ask friends and relatives not to inquire about your divorce online and deflect any inquiries that are made by simply saying you aren’t discussing it.

If you have any questions at all about whether or not something could be used against you, don’t post it. In fact, you may want to have an early discussion with your attorney about the sort of posts that could ultimately haunt you in court.

For more information on how our firm will work to aggressively protect your child custody rights, please visit our web page.

Child support and incarceration: Important facts to know

What happens to your child support obligation when you’re incarcerated? This is something that confuses a lot of people — and can lead to serious additional complications that can make it harder to get back on your feet once you’ve served your sentence unless you handle the issue correctly.

Here are the most important facts you need to know:

1. Your obligation to pay support doesn’t stop just because you were incarcerated. Many people assume that the court system, being aware that they are incarcerated, makes the next logical leap and recognizes that it isn’t usually possible to continue paying the support when you’re behind bars.

However, that isn’t the case. For some inmates, those who have exceptional resources or investments that aren’t affected by their incarceration, it isn’t even true.

If you’re like most inmates, however, and your income essentially stopped once you went to prison, you need to file the appropriate paperwork requesting an adjustment of your child support payments.

2. If you don’t file the appropriate forms asking to stop your child support, you will continue to owe past-due child support and a 10 percent penalty for the past-due amounts.

This could create a significant financial burden that would be hanging over your head once you’re released, making it harder than ever to recover from the period of incarceration. Your initial paychecks could easily be taken for past-due support, leaving you with few options.

It’s important to note that your support order can only be modified back to the date of your request — so don’t delay your action thinking that the judge can simply make the order retroactive to the date you became incarcerated.

3. Unlike some other states, California does not treat incarceration as an act of voluntary unemployment, so incarceration itself is considered enough of a change in material circumstances to get support suspended during your incarceration — as long as you will be incarcerated 90 days or longer.

If your period of incarceration is less than 90 days, you’ll need to show the court some other reason that the support should be suspended.

Source: http://www.courts.ca.gov, “The Basics Of Child Support For Incarcerated Parents,” accessed June 01, 2017

Olympian learns she’s about to be divorced on Twitter

It isn’t unusual for couples considering divorce to physically separate while they sort out their feelings.

It is a little unusual, however, to talk about your impending divorce on Twitter before you’ve bothered to tell your spouse that you’ve decide to proceed.

That’s the unpleasant way that Olympian figure skater Michelle Kwan found out that her husband of four years had decided to go ahead with a divorce. After reading the tweet, she found an article online where her spouse announced that he’d filed for divorce in California, the state where he’s currently living.

Kwan is currently living in their home in Rhode Island and would prefer that the divorce case be handled by that state’s court. She’s attempted to serve her spouse with the Rhode Island divorce complaint 10 times — indicating that he must be going to great lengths to avoid being served.

Likely, his reluctance to be located has to do with his preference for California’s court system. When couples separate prior to divorcing and move into different states, jurisdictional disputes can be a problem. Not every state follows the same rules in a divorce, and it’s likely that Kwan’s husband prefers California’s marital property laws over those in Rhode Island.

California considers everything acquired after a marriage to be community property — and the general rule for dividing it up is “share and share alike.” In the majority of cases, community property is divided equally between the divorcing spouses regardless of factors like who contributed most to the marital assets.

Rhode Island, by comparison, has a much more complicated process for the division of marital property known as equitable distribution. Equitable distribution takes an approach that is best described as “fair but not necessarily equal.” When dividing up the marital assets, the judge is free to consider not only the contributions of each spouse toward the marital assets but a host of other factors. Some of the things considered are the length of the marriage, each spouse’s conduct within the marriage, the occupation of each spouse and his or her relative earning capacity.

Jurisdictional disputes in a divorce can quickly become complicated issues. If you suspect that you may have a jurisdictional issue with your spouse sometime soon, talk to an attorney today.

Source: Vanity Fair, “Michelle Kwan's Divorce Kicked Off with an Unpleasant Surprise,” Hilary Weaver, May 11, 2017

Fiduciary Duties of Managing Community Property: What a Managing Spouse Must Know

by Indy Colbath

Under California law, spouses owe each other certain duties both during the marriage, and after separation before the property is divided. These duties are fiduciary in nature, and held to the same standard as those between business partners. Family Code section 721(b) states in pertinent part that: “…This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners…included but not limited to the following: 1. Providing each spouse access at all times to any books kept regarding a transaction for the purposes of inspection and copying; 2. Rendering upon request, true and full information of all things affecting any transaction which concerns the community property. Nothing in this section is intended to impose a duty for either spouse to keep detailed books and records of community property transactions, and 3. Accounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse which concerns the community property.”

The California Legislature passed this statute with the recognition that married couples commingle finances and place confidence in the other that the financial well-being of the community is being properly managed. Frequently, one spouse is tasked with managing community property, and is oftentimes required to make quick decisions, thus not being afforded the opportunity to have long discussions with the non-manager spouse regarding the potential risks and rewards of a certain financial course of action. This statute was also passed with the recognition that there are some bad actors who amidst divorce would seek to take advantage of the confidential relationship, and purposefully try and defraud their former spouse.

One fiduciary duty imposed upon each spouse by section 721 is the duty of managing community and separate property. (For a crash course on the difference between community and separate property, click here.) The strictest duty applies to a spouse managing the separate property of another spouse, while lesser duties are imposed for the management of the community property, or the manager spouse’s own separate property. This article discusses the law governing the management of community property only.

So what is considered mismanagement of community property under California family law? The seminal case on this issue is Marriage of Duffy, (2001) 91 Cal.App. 4th 926. In this case, the trial court awarded Wife damages of $400,684 due to Husband’s investments of community monies held in an IRA that led to the community sustaining losses. The trial court considered the evidence before it and determined that Wife had asked Husband about investments, and Husband was “dismissive” in his answers. The record also demonstrated that Wife had been aware of Husband’s investments, and even signed purchase agreements. On appeal, the court found that Husband had not violated his fiduciary duties. In reaching this result, the court analyzed the legislative history of enforced duties between spouses, and concluded that the legislative intent was not to impose the “prudent investor rule” upon spouses when managing community property. In other words, spouses owe a duty of loyalty and good faith when managing community property, but do not owe a duty of care.

Family Code section 721 defines the duty owed between spouses as the same as owed between business partners, and specifically references California Corporations code section 16404. Subsection (c) states that “a partner’s duty of care…in the conduct of…partnership business is limited to refraining from engaging in grossly negligent or reckless conduct, intentional misconduct or a knowing violation of the law.”(Emphasis added). The rule in Duffy, Family Code section 721 and California Corporations Code section 16404 enables spouses to make investment decisions in managing community property, so long as the decisions are not grossly negligent, reckless, or knowingly violate the law. Simply losing money in an investment by itself does not amount to a breach of fiduciary duty.

While the law somewhat relieves the managing spouse from the strict application of the prudent investor rule, it’s always a good idea to consult with a family law attorney prior to making any major decisions regarding the management of community property, particularly post-separation and prior to the division of the community assets and debts. The attorney’s advice may vary, depending on the facts of the case.

[It should be noted that the fiduciary duty of management of community assets is dictated by different rules than the fiduciary duty of disclosure. For a discussion of the importance of full and accurate disclosures in divorce, click here.]

The risk of parental abduction: How likely is it?

Sometimes, a parent who is engaged in a volatile and bitter custody battle will momentarily lose all sense of perspective and decide that abducting the child is a wiser course of action than trying to fight about it in court.

What are some of the risk factors that indicate it could happen to you and your child?

If you’re the child’s biological mother, you stand a bigger chance of being victimized this way, statistically, than any other group. Biological mothers abduct their own children only 25 percent of the time. Male parental figures are generally responsible for two out of every three abductions. Biological fathers are behind parental abductions 53 percent of the time, and grandparents are the abductors 14 percent of the time. Other close relatives that have served as caretakers, like step-parents or biological aunts and uncles, account for the remaining 8 percent of abductions.

Most of the time, abductions are impulsive and emotional, rather than carefully planned out. Often, the abductor may be scared that he or she is about to lose all custody or visitation rights, which makes abduction seem like it’s a somehow reasonable course of action — which is probably why the majority of abductions happen right after a court-ordered change in parenting or visitation.

The information we know about parental abduction isn’t all bad, however. For example, it’s important to keep in mind that almost all of the children — 94 percent — who are abducted by a parental figure are eventually returned to their legal custodian. Almost half of those will be returned within the first week after the abduction once tempers cool and reality starts to sink in around the abductor.

If you are concerned about the possibility of a parental abduction because your child’s other parent, grandparent or some other relative has made threats, discuss the situation with your attorney and ask what can be done to limit the possibility until tempers cool down. Sometimes supervised visitation may be in order for a while. For more information on how our law firm may be able to assist you in custody matters, please visit our website.