Parenting Plans

When discussing a parenting plan for your children following separation from your spouse, remember there is no "standard" parenting plan for divorced couples. What worked or was court-ordered for your friends who are divorced is not necessarily what is appropriate in your circumstances.

An appropriate child custody and visitation plan will vary depending on the ages of the children, their school schedule, the work schedules of the parents, and the geographic distance between the parents' homes. The parenting plan should provide regular, consistent times with each parent for day-to-day care, school and extra-curricular activities, holidays and vacations. The plan should be adjusted to accommodate the children, not the parents' convenience.

If the parents do not communicate or cooperate well, it may be necessary to set times for exchange of the children, provide which parent will provide transportation, and at times even where the children will be picked up and dropped off. The parenting plan should be detailed enough to avoid conflicts that may arise in the day-to-day parenting of your children. If the child is involved in sports, religious, or other activities, there should be provision for which parent (or both) are responsible for transporting the child to those activities.

At the same time, the parents should agree on which activities the children are involved. It is not appropriate for one parent to enroll the child in an activity without consulting the other parent, especially where doing so would impact the other parent's time with that child. A sound parenting plan should allow the child frequent and regular contact with both parents while affording them a safe, nurturing home environment.

Finally, if either parent has a problem with drug or alcohol abuse, violence, or neglect, you should consult an agency, therapist or attorney to assist in making adjustments to assure the child's safety and well-being. There are numerous web sites on the internet that can assist you with guidelines, suggestions, and even worksheets to assist with a sound, detailed agreement.

Child Custody Mediation

When parents are unable to agree on a parenting plan for child custody and visitation, the court requires the parties to attend mediation. This is true whether the parties are establishing an initial parenting plan following separation, or modifying a current custody plan.

The mediator is a mental health professional trained to assist the parties negotiate an agreement for custody, visitation, and other custody-related issues. If the parties are able to reach a complete agreement, the mediator will document the agreement so the parties can have the agreement adopted as an order of court. If the parties are unable to reach an agreement following mediation, the mediator will submit a report to the court with copies to the parties making a recommendation as to the child's best interests.

During the mediation process, the mediator may interview the children, other parties joined to the case, and other individuals who have unique information relating to the parties or their children - such as teachers, counselors, and day care providers.  However, the mediator's contact with third parties is usually at the discretion of the mediator given the parties' particular circumstances.

There are a few different ways to initiate the mediation process. If one party files an Order to Show Cause for custody or visitation, or requesting a modification of a current custody plan, the matter will be automatically referred for mediation at the Office of Family Court Services. Alternatively, either party can file a Petition for Mediation directly with the Office of Family Court Services without setting a court date. Finally, either party may file a Petition for Private Mediation with the court requesting the court order the parties to participate in private mediation with one of the private mediators on the court-approved Private Mediation Panel.

If you are considering mediation to resolve a dispute regarding child custody in Sacramento County, I recommend visiting the Family Court Services web site for additional information regarding the process and what to expect.

Chil Custody

When discussing child custody, it is necessary to differentiate between “legal custody” and “physical custody”.  Legal custody refers to the right and responsibility to make decisions regarding the health, education and welfare of a child, but does not reflect where the child resides.  Physical custody generally addresses where the child lives and how much time the other parent has visitation. 

When discussing legal custody, the court can order "joint legal custody" or “sole legal custody”. Joint legal custody is the most common and refers to custodial situations in which both parents share the right and responsibility to make decisions regarding the child's health, education, and welfare. The parties must consult one another regarding any significant decision regarding the child. In joint legal custody situations, one party cannot make a decision regarding the child if the opposing party disagrees.  If they cannot agree, they must resolve the disagreement through the courts or with the assistance of a mediator. Conversely, if one party has “sole legal custody”, that party can make such decisions on behalf of the child even though the other party disagrees. 

With physical custody, courts use the terms joint physical custody, sole physical custody and, more recently, shared physical custody. Joint physical custody simply means both parties will have significant, although not necessarily equal, parenting time. Sole physical custody means the child will reside primarily with one parent, subject to the other parent’s visitation rights. The distinction is not always clear. 

One important result of a sole physical custody order is that courts have held a parent with sole physical custody has the presumptive right to change the child’s residence without the permission of the other parent. This right is subject to the court’s ability to stop a parent from changing a child’s residence when doing so would prejudice the rights or welfare of the child, or where it would adversely affect the other parent’s ability to maintain contact with the child.  There is significant case law on the issue, and these situations are referred to as “move-away” cases.  The determining factor is not just the term used to describe the physical custody arrangement, but also the actual time spent with each parent and other relevant issues.

Finally, in conjunction with physical custody courts also use the terms “custodial parent” and “non-custodial parent”. But these designations also do not, in and of themselves, define the parties rights. Rather, they have become terms of art in family law without conferring or denying the parties’ rights with respect to the child.  

Dissolution of Marriage vs. Legal Separation

Many individuals in an initial consultation ask what the difference is between a divorce and a legal separation. My short answer is when completed a legal separation can accomplish the same objectives as a divorce - orders for child custody and visitation, child support, spousal support, and division of assets and obligations - but in the end the parties are still married. So why, they ask, would anyone want a legal separation? There are several circumstances in which the parties don't want to divorce for financial, personal, or religious reasons but want the benefit of a court order or judgment that declares them separated while addressing the same issues as a divorce.                                                         

In a typical marriage, one spouse has the other spouse covered on their medical insurance, perhaps through their employment at a discounted rate. Upon entry of a judgment of dissolution, the non-employee spouse must be dropped from the now ex-spouse's health policy because they are no longer related. This isn't a family law rule, and cannot be negotiated in a divorce. However, with a legal separation the non-employee spouse might remain on the employee spouse's health plan following judgment. This can be very important for a spouse with a pre-existing condition that might not otherwise be able to obtain health insurance on their own.

If a couple have been married for less than 10 years, they may wish to separate and divide the marital estate but delay a divorce until after ten years has passed in order for one spouse to take advantage of certain Social Security benefits. After 10 years of marriage, a spouse can collect social security benefits on a former spouse's Social Security record under certain circumstances. This may be important for a spouse who has stayed at home to raise children and has not paid into their own Social Security benefits.

If you are a military spouse, you may wish to remain married for 10 years to take advantage of benefits afforded by the Uniformed Services Former Spouse Protection Act.

If religious beliefs conflict with the concept of divorce, a legal separation allows spouses to live separately while maintaining their marital status for religious reasons.

Finally, legal separation allows the parties time to reflect on whether a divorce is what they really want. If they ultimately decide divorce is what they want, the proceeding can be amended to a divorce with existing orders remaining in place.

 There is one other situation not uncommon in California in which the parties might at least initially file for legal separation rather than a divorce. For the California courts to have jurisdiction, at least one party must have been a resident of the state for at least six months immediately preceding the filing of the Petition. If a married person has been in the state for less than the required six month period, they might still file a Petition for legal separation and later amend their Petition to request a dissolution of marriage. It is only necessary they reside in California at the time the proceeding is commenced.

Legal separation may be a valuable procedure for some circumstances, even where it is not possible to save the marriage. A consultation with an experienced family law attorney can assist in determining what is best for you.

Dissolution of Marriage vs. Annulment

A judgment of dissolution of marriage recognizes the validity of the marriage and terminates the parties’ marital status. They are then free to remarry as of the date provided in the judgment.

A judgment of nullity is granted only when a marriage is adjudged void or voidable under specific conditions provided by statute. A marriage is void (as if it never happened) in cases of incest and bigamy, and is voidable (valid unless and until the court declares a nullity at the request of one party and following an evidentiary hearing) in cases of minority, a current spouse mistakenly believed to be deceased, unsound mind, fraud, force, and physical incapacity.

A marriage is void in the event of incest or bigamy. The state of California does not recognize marriages between parents and children, brothers and sisters, half brothers and half sisters, uncles and nieces, and aunts and nephews. A marriage is also void where one party was married to another person. In the case of incest or bigamy, any marriage is simply not valid and never was.

A marriage is voidable where: 1) one party was a minor and parental and court consents were not obtained; 2) one party at the time of marriage was of unsound mind; 3) either party’s consent to marriage was obtained by fraud; 4) either party’s consent to marriage was obtained by force; or 5) at the time of marriage either party was physically incapable of entering into a marriage and the incapacity is incurable.

A judgment of dissolution dissolves the existing marriage, recognizing the marital relationship between the date of marriage and the date of termination of the marital status, but a judgment of nullity is retroactive to the date of marriage and no marriage is recognized. It is as if the marriage never took place.

The majority of annulments are granted on the grounds of fraud. The fraud consists of false representations or concealment of facts relating to a matter of substance such that the deceived party would not have entered into the marriage had they known the true facts. So, if your spouse turns out to be lazy and has a drinking problem, or misrepresented the extent of his or her wealth, that would NOT be grounds for an annulment. But if your spouse had no intention of being faithful, or represented that they were capable of having children when they were not, then a court may grant a judgment of nullity.

The difficulty in obtaining an annulment, even with a valid reason, is the matter of proof. It is often difficult to obtain an annulment following a contested trial on the issue when the evidence of fraud comes down to one person’s word against the other. Often, an annulment is granted following a “default hearing” where judgment is granted based on one party’s testimony and the other party does not appear.

The Marital Home and Divorce

If after reading the previous post you have decided to let your spouse have the house so you're not left with a big monthly liability on an asset that is worth less than what is owed, there are a few other matters with which you should be aware.

The most common misperception is that when one party or the other is awarded the house in a divorce, they are not obligated to refinance the mortgage in their name alone. In other words, they get the house while you remain legally liable on the mortgage. Many people are taken aback when they learn this, and concerned about the other party's financial ability and responsibility to maintain the ongoing obligations on the property. Even where the other party is financially responsible and timely pays all obligations on the property, what about your credit profile and ability to qualify to buy your own home one day?

If the other party receives the marital home (and the mortgage, taxes and insurance), you are no longer a legal owner of the house. As part of the Judgment in the dissolution you will be required to execute an Interspousal Transfer Deed that removes you from title and places the title in the name of your ex-spouse as their sole and separate property. But this does not effect your relationship and contract with the mortgage lender. You will still be legally liable for that mortgage until it is paid or refinanced.

 But you do have legal recourse in the event of default on the mortgage. To be clear, you should insist any Stipulated Judgment or Marital Settlement Agreement contains a phrase granting the Court continuing jurisdiction on the issue of the marital home until the mortgage has been satisfied. Then, if the other party becomes delinquent on the obligation with negative results to your credit profile, you may petition the Court to order the house sold immediately or awarded to you. This does not prevent damage to your credit, but will minimize the impact.

 Credit grantors are aware of the impact of divorce on individuals, and the fact a default occurred on the fault of an ex-spouse will be taken into consideration. Mortgage lenders are also used to divorce, and many will allow you to qualify to purchase your own home even when you remain legally liable on your ex-spouse's home after a period of time. Giving the house to your spouse does not mean you are without protection and unable to buy your own home.

But when negotiating the terms of a divorce, it is important to consider whether it is prudent based on the spouse's income and financial responsibility. If your spouse does not have a solid employment history, if he or she has not typically paid bills on time and been responsible, or if their income is not sufficient, it may be more prudent to insist the house be sold if possible.

While it may be easy to make the decision to walk away from a house that is upside down, in some marriages neither party alone is capable of making the mortgage payment. In that case you are looking at a short sale or foreclosure. Many people want to do a short sale and start over, but not many are successful. The lender typically takes light years to respond to short sale offers, and buyers often run out of patience. When decisions relating to the disposition of a house in divorce become difficult, it is important to obtain help. An attorney obviously can help with structuring a judgment, and a real estate agent with extensive experience with short sales and a good mortgage broker can serve to protect you from making a wrong decision that may harm you for years. If you are in the Sacramento area call me at (916) 921-9500.

How the Economy has Changed Divorce

Until 2007 when the housing market starting taking a nose dive, the issue of who would be awarded the marital home was determined by which party had the financial means to buy the other party's interest in the property. So if at the time of trial it is determined that marital home was valued at $100,000 in excess of the amount owed, then the party with the ability to pay $50,000 to the other party would be awarded the house.

Even if neither party had $50,000 in cash to pay the other party, one side probably could refinance the house to take out the money to pay the other party if they could then afford the resulting increase in monthly mortgage payments. Sometimes both parties were in a position to do so. In addition, the "buy out" of the equity in the marital home is balanced against the division of other property. For instance, if one party received $100,000 in equity in the marital home, and the other received $100,000 in other assets, then neither party would owe the other. Debts must also be taken into account.

But in today's economy, when it comes to deciding who gets the marital home, the issue more often is who is stuck with the house? Because now we have half or more of all properties "upside down" in value. Now we have a house being awarded to one party or the other and there is not only no equity, the house is valued at less than what is owed on it. And no, the person who gets the house does not get to take it for negative value. They get it for nothing, but they are stuck buying a house for more than what it is worth!

When neither party wants the house we sell it, right? But it is difficult to sell a house that is worth less than is owed. This means a short sale. That means both parties suffer a hit to their credit. Once, the parties in a divorce sold their house and each received enough money from the sale to go out and buy a new house. Now parties let their house go into foreclosure and both have difficulty even renting a home because their credit has suffered. 

Divorces today are characterized by a house worth less than what is owed, one spouse who has lost their job or experienced a cut in pay, increased debt as a result of a loss of income, and almost nothing but personal property to divide when all is said and done. Some couples just can't afford to get divorced.