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Common Mistakes People Make During Their Divorce

Most people pursuing a divorce hope to move through the process as quickly and easily as possible. However, it isn’t uncommon for the husband or wife to use tactics that could do more harm than good. Although both sides can use effective strategies to fight for what they seek, such as a possession of certain assets, child custody, or child support, individuals pursuing a divorce must take caution not to use schemes that will undoubtedly harm their chances in receiving what they want or compromise what is in the best interests of all parties involved. The following tips may be able to help you avoid some of the most common mistakes made by individuals during their divorce.

Never Use A Child As Leverage

Your children are likely the most important thing in the world to you. There have been instances where one side will attempt to influence the other to get what they want by utilizing dirty tactics such as threats of limited visitation. It’s understandable to be enraged if placed in such a position. However, don’t lower yourself to that level and attempt to do the same. Your attorney’s assistance and guidance will be invaluable in this instance, so trust them. If you have been a responsible parent, the evidence will speak for itself.

Avoid A Romantic Relationship Until After The Divorce Is Settled

Depending on the couple, a divorce may last months. During this time, it is common that either party may begin to move on and start a new life. A new life is usually signaled with a new romance. If possible, put off any romantic relationship until the divorce has been settled. The reason being that your soon-to-be ex-spouse may use your new relationship as grounds for adultery, making the situation for you and your lawyer much more difficult.

Never Neglect Having Representation

In a divorce, your attorney is your best friend. Always be 100 percent honest with your attorney and never leave any information out as it may arise during proceedings and be used against you. If any incriminating information should exist about you, your attorney will use the best of their ability to redirect focus and concentrate on what is important.

Remain Even-Tempered

Verbal confrontation is no stranger to divorce proceedings. When your credibility as a capable parent or if your chances of receiving certain assets are challenged, then it’s understandable to become upset. Losing your temper, however, won’t help anyone, especially you. Allow your attorney to negotiate terms of child custody or asset distribution, and do your best to stay calm.

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Divorce can be a difficult situation to deal with. However, the guidance of an attorney from San Diego’s Fischer & Van Thiel, LLP, can help significantly. Contact one today at 858.935.6211.

Mike's Top FAQs About Child Custody

401K plans and divorce

401K plans and divorce

Question Detail

If my spouse waives his right to my 401k plan, is there any circumstance that the court will still award him half or a portion of my 401k plan?

Answer

It is theoretically possible that a court can disturb an agreement to waive rights to property, but it is unlikely.  Courts will generally treat agreements as contracts, and thus are likely to strike an agreement only if it is unconscionable, induced by fraud, undue influence, duress or is against public policy. The judge cannot “reject,” nullify, or modify the provisions of an agreement merely because of his or her personal belief that a different arrangement should be made.

A marital settlement agreement, or MSA, can be used as a contract between spouses regarding the division of property that would otherwise be subject to community property laws. An MSA is subject to general contract laws, meaning that it can be found invalid if terms are against public policy (which includes, but is not limited to, (a) abrogating the statutory child support duty or impinging on the court’s jurisdiction to award child support, (b) limiting the court’s exercise of child custody jurisdiction, (c) “altering legal relations,” (d) “promoting dissolution,” and (e) providing for “fault”-based penalties at marriage dissolution) . The MSA can also be found invalid if entered into as a result of fraud, duress, menace, undue influence, or other factors which may make the agreement void or invalid.  Generally, an agreement such as the MSA is favored.  Hence, if there are no legal or equitable grounds for rescission or reformation it is binding on the parties and the court without express approval.

Posted in: Divorce, Family Law, Property Division

Can I get child support if I am not getting a divorce?

Can I get child support in California if I am not getting a divorce?

Question Detail

I have been separated for two years from my wife, and my kids live with me. Can I get support without filing for divorce in California? We have not been living together since our separation, and even file taxes separately.

Answer

You do not need to file for divorce in order to get support. You will need to go through the court to obtain a child support order so you will have to file something. You can contact your local Department of Child support services office and they can help you get started. So while you do not have to file for divorce, you can file for a legal separation. The court needs to know that you two have in fact separated and there is one parent who is the full time provides and therefore in need of support.

Posted in: Child Support, Divorce, Family Law

Can I move out with my daughter before the divorce in California?

Can I move out with my daughter before the divorce in California?

Question Detail

My wife and I are going to divorce, but we have not filed yet. We are always fighting, and my daughter, who is 7, is very stressed with the way we are living. Can I move out with her, if I do not move far away and let him see her all the time? He is not happy with my choice. Is this legal?

Answer

Yes, you can move out with your daughter, assuming there are no court orders already in place regarding custody and visitation. It is important to maintain frequent and continuing contact between the child and the other parent. When the court makes custody and visitation orders they will look highly upon the parent who facilitated contact with the child and the other parent. It is important to make the transition as easy as possible for the child.

Posted in: Divorce, Family Law

Is there a statute of limitations on owed child support?

Question: Is there a statute of limitations on owed child support?

Question Detail

An ex lover of mine (20 years ago) just approached me out of nowhere about getting tested to see if her son is my child. He is 20 and I live in California. I am trying to find the statue of limitations for child support if indeed I take the test and the child turns out to be mine.

Answer

Unless the mother has made a claim for child support with the welfare office or her local Department of child support services office, they cannot now collect from you on child support. Since he is no longer a minor child now that he is emancipated, there are no obligations for child support. You can get tested to see if you are the father, but you do not have to.

If the state has paid out welfare for the child, and it turns out that you are the Father, there can be some potential liability there with having to pay back the state the money they paid out. If this is not an issue, then they cannot now ask you to pay for child support.

 

Posted in: Enforcement, Family Law, Spousal Support / Alimony

Is the opinion of the child ever taken into consideration in a divorce?

Is the opinion of the child ever taken into consideration in a divorce?

Answer

Typically the Courts will take the child’s opinion into consideration at the age of 12. There is no set age, it depends on the maturity level of the child. If a child is of sufficient age and capacity to form an intelligent preference to custody the court can take it into consideration. It is important to note that all judges will rule for what is in the child’s best interests whether it be for the mother or the father.

Posted in: Child Custody, Divorce, Family Law

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