Common California Divorce Mistakes

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Gordon Family Law is committed to educating clients and we want to share some common mistakes we see early in the divorce process so you can avoid making them.

(1)  Making a deal with your spouse about splitting your assets or debts without seeing all the financial information in front of you. If your spouse has always handled all of the financial decisions in your household and you don’t have any information about you and your spouse’s income and assets, your spouse could have an unfair advantage over you when it comes time to settle the financial issues in your divorce.  Make sure you accurately gather all the documents before you agree to any final decision.

(2)  Hiring a lawyer who promises you that they will “win”. As we all know, there is no winning in divorce – generally divorce is the result of many years of consideration and is often a very sad event. A thoughtful divorce attorney will explain that the best outcome for a successful mediation or divorce is to walk about thinking “that wasn’t so bad,” meaning that both parties had to make concessions but they have walked away with primarily what they need.

(3) Tax considerations. Divorce and any property division have potentially huge IRS tax implications.  If you are dividing real property or retirement accounts – please consider talking to a tax consultant or accountant about your divorce. The rules about filing separately or single can impact your taxes in the years after a divorce.

(4) Believing your children will be better with you than they are with your ex.  Divorce is hard on children, but not as hard as you may expect. Children are usually as happy as their most unhappy parent. What that means is that unless there is evidence, meaning CPS reports or a police record, fighting over children is expensive and rarely successful.  We are strong believers in co-parenting and working together with your ex to create logical plans for raising children in separate homes.

(5) Not taking care of yourself. Divorce is one of the most stressful events, besides maybe the loss of a loved one. In the next few months, it’s important to carve out some time for yourself as you go through a divorce. Re-connect with free activities you enjoy – like walking outside, gardening, hiking, and talking on the phone with friends.  If you need suggestions, I am happy to send you a picture of my labradoddle, Griffin. 

What are the benefits of Mediation?

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What Are The Benefits Of Mediation?
The mediation process is client focused. In mediation, clients determine how long the process will take by how organized they are. The parties, not a judge, control both the process and the outcomes. A party can choose to have an attorney to inform them about the law but the decisions they make are their own. The process takes place in a safe, respectful environment. Mediation focused attorneys recognize that parties have an interest in maintaining respect after the process is complete.

 

How Is Mediation Different From Litigation?

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In any litigated divorce, your attorney starts a lawsuit against your spouse. This is automatically a win or lose proposition.  Because mediation is focused on win-win solutions, any negotiations are usually carried out under the threat of additional litigation. 


Most divorces are eventually settled out of court, but how the parties get there are influenced by what the parties think the judge would do at trial. Some divorce actions are resolved only after a trial, with the judge making the final division of assets and the post-divorce plan for the parties and their children.

What is an annulment?

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There are three ways to terminate a marriage in California:  dissolution (divorce), annulment, and death. (See Family Code Section 310).


Under California law, if a marriage is legally void or voidable, then the marriage can be annulled. One reason for why a couple would opt for an annulment rather than a divorce are religious reasons. This is because once a marriage is “null” then the marriage is not recognized as having occurred in several religious communities.
Reasons that a marriage could be found void or voidable include: incest, minority of one of the parties, prior existing marriage, unsound mind, fraud, force, or physical incapacity. (See Family Code Section 2210).  One of the common misconceptions with annulment is that a marriage can be voided on the grounds for “fraud” if one party has broken a promise, had an affair, misrepresented his/her financial or social status, or hid criminal records.


This is not true.  


Family Code Section 22110(d) defines fraud as “The consent of either party was obtained by fraud, unless the party whose consent was obtained by fraud afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as his or her spouse.”  Under this standard, California courts have found that misrepresentations about sterility or interest in having and bearing children are grounds for voiding a marriage based on fraud. However, having an affair or lying about your financial stability are not considered ‘fraud.’  
One of the most common uses of this code section is to annul or void marriages that are for immigration purposes only.


Should you get an annulment? If you are considering using this path to separate from your spouse, check with an attorney and look at your local rules because in most courts any allegation of grounds for voiding a marriage must be proven at an evidentiary hearing which may mean that both you and your spouse will have to appear in court.

Contact amanda@gordonfamilylaw.com for more information.