Dangerous Divisive Issues in California Divorces
“I have never seen a genuinely ‘amicable’ divorce,” reports Brooke Sommerfield, a San Diego Child Advocate. “The law says couples may divorce when they have ‘irreconcilable differences’; realistically, how could you have irreconcilable differences with a former loved one and not say and do some things that you later regret?” Sommerfield goes on to say, however, the majority of ex-spouses learn to behave appropriately and negotiate their settlements in good faith, “because of a desire to save on attorneys’ fees, and especially because recognize how their cooperation helps their children cope with the divorce.”
From her own experience and reliable statistics, Sommerfield identifies five especially volatile issues that frequently escalate into bitter, brutal disputes between former partners in the midst of divorce:
- Threat of imminent harm
California and other states have adopted “no fault” divorce laws, in large measure, to protect spouses’ safety and privacy.
Once spouses have filed for divorce and one has left the household, both partners are entitled to go on with their lives without fear of harassment, retribution, stalking, surveillance, threats, trespass or invasion of their privacy. Naturally, threats against the couple’s children are especially serious and demand immediate legal intervention, compelling the Courts to issue Orders of Protection (restraining orders) whenever one spouse menaces or intimidates the other.
If you feel threatened or are the victim of an ex-spouse’s intrusion or assault, during divorce process file a police report immediately. The report has two benefits: first, it alerts an ex-spouse that such actions will not be tolerated and there is a zero tolerance for any kind of abuse. Second, it supports a police report supports requests for the Court’s protection. Request temporary restraining orders to guard yourself and children against harm throughout the divorce if it is warranted. It is possible to petition for a restraining order without an attorney—in pro per is the legal term; or, of course, one spouse may request a divorce attorney’s assistance. In many cases, taking advantage of a qualified and experienced divorce attorney’s services provides an extra defense against harassment, because all communication can be referred to your lawyer negating any reason to interact with the harasser.
- Allegations of child abuse, molestation, or neglect
Estranged spouses often use legal maneuvers to punish former partners. Jealous ex-husbands are especially prone to punishing ex-wives as the women enter the early stages of a serious new relationship. After conducting thorough background and credit checks on “their suspects,” ex-husbands often claim their ex-wives’ new boyfriends jeopardize the health and welfare of the children, and frequently petition for permanent orders of protection to bar the new boyfriends from visiting while the children are with their mothers. Even when the charges are false and slanderous, the women must submit to investigations and appear in Court.
In April, 2012, after defending a client against flagrantly false allegations of child abuse and neglect, Brooke Sommerfield did some independent research into the frequency of non-custodial parents’ fraudulent allegations of abuse. According to Court records, in slightly more than 50 percent of cases either Child Protective Services investigators or the Court found no evidence to support the claims. Further research into the public records indicated that about 10 percent of parents falsely charged with abuse subsequently filed civil suits against their estranged spouses, generally claiming libel, slander, and harassment. “My client was devastated by the allegations, humiliated by having to testify in open Court, and generally a hot mess of raw emotions throughout the ordeal.” Sommerfield continues, “Although I cannot imagine feeling so embittered and enraged that I would file such heinous charges against an ex, it obviously happens far more often than we suspect, and especially women facing false charges need exceptionally skilled attorneys to fend-off the charges.”
- Visitation rights and privileges
During divorce, disputes over visitation become especially bitter because ex-spouses frequently believe their former partners are manipulating the children or “holding them hostage to their desires.” Moreover, in many cases, the children do suffer serious emotional harm when non-custodial parents fail to comply with their visitation agreements. Disputes generally take one of two very different forms: Either the non-custodial parent seeks more visitations, sometimes in exchange for lower child support payments; or the custodial parent seeks modification of the divorce’s visitation agreement because the non-custodial parent has neglected or violated its terms.
Reliable studies indicate that more than three-quarters of children suffer “moderate to severe” emotional disturbance during separation and divorce; and the research strongly indicates that older children suffer more profoundly than their younger siblings.
Issuing its orders, or approving stipulated settlements, the Court typically focuses on the proportions between visitation and support payments, looking at children’s special needs only in cases of disability or exceptional medical conditions. In cases where children show signs of serious emotional trauma, however, the Court will reconsider visitation issues and accept children’s testimony about their needs, wants, and wishes.
Until January, 2012, the Court had no strict guidelines for children’s testimony; since then, however, the Court has adopted and implemented age-sensitive rules for honoring children’s desires to be heard by the Court. A judge must allow a child fourteen or older to testify in his or her parents’ case unless he issues a specific finding that indicates why testifying would not serve the child’s best interest. Children under fourteen may testify when the Court finds addressing the Court would serve their best interests. In many cases, the Court will appoint an attorney to advise, counsel and represent the child.
- Failure to comply with support orders
As soon as the Court issues orders for alimony and child support, your ex-spouse must begin regular payments. The California Department of Child Support Services monitors payers’ compliance and offers a full range of information and support services for both payers and recipients. If your ex-spouse regularly defaults on child support payments, the Courts may elect to garnish paychecks up to one-half of his or her disposable income. This rule applies not only to employers’ regular checks but also to commissions, bonuses, and other compensations. This rule also applies to unemployment payments and California tax refunds. The DCSS keeps track of arrears and will continue garnishing paychecks until an ex-spouse pays child support obligations in full.
- Disputes over community property and assets
The Family Court enforces disclosure rules similar to the “discovery rules” in criminal and civil courts. Attorney John Montero briefly explains, “The Schedule of Assets and Debts Form FL-142 lists all of your assets and debts, even those assets or debts which either of you claim is your separate property. The form is part of your preliminary and final disclosures.” Assets include real property and exceptionally valuable personal property, and they include stocks, bonds, equities and other investment products along with tax-sheltered or tax-deferred accounts, pensions, and insurance policies. The “official” list is considerably longer and more detailed, and all assets must be disclosed and listed by law under penalty of perjury.
Disputes generally arise from disagreements about what is community property—assets acquired during the marriage and owned by both spouses. Or disputes erupt over evaluation of “sole and separate property” and its use. In general, spouses retain ownership of everything they had before they married, but the value of those assets may influence the Court’s determination of fair and equitable distribution of assets held in common. Studies have shown that people who authorize their attorneys to negotiate these issues fare far better than those who try to negotiate for themselves.
In some very simple California divorces, a person may file and act in pro per, and legal assistance is available for disadvantaged people or those experiencing hardship. When neither property nor custody triggers a serious conflict, do it yourself divorce saves separated spouses a great deal of time and money. Or, perhaps a couple can opt to hire a single attorney to represent both parties. John Montero, Sacramento Divorce Attorney strongly recommends, “In the vast majority of divorce cases, one attorney can represent and mediate both parties interests fairly and develop a settlement that satisfies their concerns. In cases where there are many assets, and/or disputes threaten to grow violent and destructive separate counsel is highly advised.”
If you are located in the Bay area, contact the law offices of John Montero and schedule an appointment to discuss representation for your divorce proceedings. Mr. Montero will meet with you and explain the merits of your case, as well as, instruct on how to proceed. John Montero specializes in California divorce, child custody and spousal support cases.