San Diego Divorce Lawyers
How to Prepare for Divorce
Statistics tell us that approximately half of all first marriages will end in a divorce, with even higher percentages for second or third marriages. The odds are likely, therefore, that any married person will need to go through a divorce at one time or another in their lives. If you realize that your marriage is heading for a divorce, or if you plan to be the one who initiates divorce proceedings, remember that there are several proactive steps you can take in order to prepare yourself – financially and emotionally – for your coming divorce.
Look for the Signs of Trouble
The first thing to understand when preparing for divorce is the importance of time. All the steps that you can take to get ready are only effective if done weeks, or even months in advance. For this reason, it is important to stay aware of the status of your relationship. People who feel “blindsided” when their partner files for divorce aren’t telling themselves the whole truth. The signs of relationship troubles are always present – it is up to you to observe and accept them for what they are.
Once you realize that a divorce is inevitable, it is time to start organizing your personal and marital information. Obtain copies of all important documents relating to your financial and social ties to your spouse. Keep clear records of all financial assets and debts you and your spouse have accumulated over the years – including bank accounts, credit cards, stocks, and loans. Find copies of your tax returns for the past few years. Compile any estate-planning documents – such as wills and prenuptial agreements. Also write down important contact information so that you can access it easily later.
Prepare Your Finances
Always remember that divorce has the potential to seriously damage your financial situation. To avoid this, start by taking a look at your credit report. If there are problems, try to fix them before the divorce before an expensive legal battle has drained your financial resources. Keeping a clean credit report will allow you to fend for yourself more effectively after the divorce is over. Now is also a good time to begin separating the assets that you and your spouse hold. If you have joint bank accounts, loans, and credit cards, consider taking the time to create your own separate accounts for use both during and after the divorce.
Start changing your mindset from that of a married person to that of an individual. This does not mean making a rash decision to move out, or taking actions which may make the situation worse by angering or irritating your spouse. What it does mean is that you begin to prepare yourself for a new outlook on life. This may be something as basic as dusting off an old resume and making contact with potential employers, or looking at places where you can live when the divorce is complete. If you feel emotionally troubled, seeking counseling, advice, or support is also a good idea.
Find a Professional
Although you may be inexperienced in the divorce process, there are many professionals who know divorce inside and out. A San Diego divorce lawyer can help you navigate your way through your divorce by offering you experienced legal counsel. Call the Fischer & Van Thiel law firm at 858-935-6211 today.
Mike's Top FAQs About Divorce401K plans and divorce
401K plans and divorce
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?
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.
Can I get child support in California if I am not getting a divorce?
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.
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.
Can I move out with my daughter before the divorce in California?
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?
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.
Question: Is there a statute of limitations on owed child support?
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.
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.
Is the opinion of the child ever taken into consideration in a divorce?
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.