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Do you really need a divorce attorney?

If you and your spouse are beginning the divorce process, you may be wondering if you need a divorce attorney or if you can represent yourself. In theory, this sounds like a cost-effective plan, but the fact is divorce can be overwhelming. In cases where children are involved or finances are particularly complicated, it may be a challenging experience and you will be expected to make decisions that impact the rest of your life.

At a time when emotions may affect your ability to think clearly, you may find a divorce attorney useful. When deciding whether to hire an attorney or represent yourself, you’ll want to consider the benefits of hiring an attorney.

Home values, mortgages and divorce

California might be a community property state but that does not automatically mean that the process of splitting assets during a divorce is going to be easy. When it comes to a family's home, many factors may play into the ultimate decision about what to do with the home and just how much it is actually worth. In many cases, at least one spouse might want to try to keep the home after the divorce.

As explained by The Mortgage Reports, there can be some pitfalls with one person retaining ownership of the home after a divorce unless a new mortgage in that person's name only is obtained. This is because lenders can still hold a spouse liable for the debt on a joint mortgage even if their name has been taken off the deed of the home. At the end of the day, a house and a mortgage are two separate things.

Grounds for divorce in California

If you are considering getting a divorce from your spouse in Stockton, you should know that divorce laws are not as complicated as many might make them seem, while at the same time also being incredibly complex. Confused yet? That is exactly the feeling shared by most who come to see us here at San Joaquin Family Law. They often are not aware that you have to cite a grounds for divorce when seeking the dissolution of your marriage. This is largely due to the fact that California is a "no fault" state when it comes to divorce, meaning that neither you or your spouse need to be deemed at fault in ending your marriage. 

These two points seem to contradict each other, yet in reality they do not. Per Section 2310 of the California Family Code, there are two recognized grounds for divorce in the state. One is one party to a marriage having a permanent incapacity to make decisions, meaning that if your spouse becomes incapacitated, you can choose to end your marriage without needing his or her consent. The other is irreconcilable differences. These are defined as fundamental disagreements or issues that have contributed to the breakdown of a marriage that are unlikely to be addressed through counseling or other interventions. 

Former reality TV star and ex maintaining civility during divorce

In contentious marriages, the line between love and hate can be razor thin. That may be why it is seemingly so difficult for many Stockton to believe that such a thing as an amicable split is possible. A great of emotion may go into making a marriage work; and equally significant amount may go into ending one. Because of this abundance of emotion felt between a divorcing couple (both good and bad), it may indeed be unrealistic to expect them to get along smoothly in the immediate aftermath of their separation (even though doing so is undoubtedly in the best interests of their children). 

Perhaps this is the reason why so many seem shocked when a divorced couple seems to indeed be able to pull it off. Such shock is currently being experienced by those familiar with the story of a former reality TV star. The woman and her husband (the two have yet to finalize their divorce) have presented a rosy picture to observers of them working together to ensure that their children maintain steady parental influences. The pair has cited their kids as being the reason why they have maintained a friendly relationships and have agreed to keep their proceedings from turning hostile (even to the point of jointly agreeing to a 50/50 custody split). 

Should you withdraw from your 401k during your divorce?

Deciding how to divvy up your 401k can easily become one of the most complex issues in your divorce. Depending on how long you (and your employer in Stockton) have been contributing to it, there could very well be a significant amount of money in there already. It may be difficult to sell your ex-spouse on the virtue of being patient with such an account, and he or she may want whatever portion of it they are owed through your divorce agreement right now. This dilemma illustrates why the American Academy of Matrimonial Lawyers lists dividing retirement and pension accounts amongst the top three most contentious issues dealt with during divorce proceedings. So how should you handle such a situation? 

Most everyone understands that taking an early withdrawal from a tax-deferred retirement savings account can result in significant penalties (in the case of a 401k, that can be as much as 10 percent). That penalty is assessed against you (the account holder). You can try to secure a Qualified Domestic Relations Order, which could allow you to withdraw from the account without having to pay the penalty. However, unless the language of the QDRO specifically states that is your ex-spouse's intention, the plan administrator can choose to deny the request. You could simply make the withdrawal without the QDRO, yet if you do, you will want to attach some stipulation that your ex-spouse cover all or a part of the penalty. 

What to review when determining child custody

Parents on the edge of divorce know that the one of the most difficult tasks is figuring out how much time the children will spend with each parent. There are too many circumstances in a children’s custody case to count. If you must endure this process soon, here are a few key areas to remember when determining your child’s future:

Online sites help with co-parenting

Nobody expects divorce to be pleasant, but it doesn't have to be an ongoing war either. Nobody walks away whole in situations like that, including the children. If you have decided to divorce, the legal team at San Joaquin Family Law understands what a tough choice it was and the difficulties you still face. We have helped many clients through this painful and frustrating process, and we have some resources that can help make it easier to co-parent as you move forward.

Psychology Today calls it the "good divorce" movement and lists some websites that can help. If yours is not quite a "good" divorce yet, consider the benefits of using these online tools.

Defining "best interests of the child"

California parents going through divorce know all too well that planning a new routine for children involved is no easy task. For one, there are potential new school zones and living situations. There also comes the challenge of determining the best possible plan for younger family members. The term "best interests of the child" is common, but what, exactly, does it entail?

The Child Welfare Information Gateway points out that, although there is no single definition for the term, the "best interests of the child" refers to the process wherein courts determine what types of actions, services and orders will best serve a child. Courts generally consider a number of factors when making this decision, including the child's safety and the parent's circumstances. Specific factors may depend on the state, but the CWIG shares that courts will also commonly consider the relationship (and emotional ties) between child and parent, the child's mental and physical health needs and the presence of domestic violence in the home. Other important factors may include a child's close family bonds, such as the relationship with a sibling, and the child's own wishes.

Disagreeing on parenting after a separation

As if a divorce were not hard enough on its own, disagreements over parenting can seem to magnify the stress of the entire situation. California parents currently working through a such a disruption in normal family life understand the difficulty that often arises at this point in the separation. While ex-spouses may never completely agree on certain aspects of child rearing, discipline or parenting time as a whole, there are ways to navigate the process with a little more ease.

There are three routes courts usually take when determining child custody, as LiveAbout explains in an article on resolving post-divorce disputes over parenting time: physical custody to one parent (generally with visitation for one parent), legal custody to one or both parents and joint custody. In joint legal custody cases, the court expects both parents to make decisions together without assistance. However, when parents cannot come to an agreement, courts may refer the issue to a neutral third party. This third party is agreed upon by both parents. Court-ordered mediation is another solution to disputes. Lastly, LiveAbout shares that courts may intervene, depending on the situation.

Understanding parenting time

Each family member can cope with divorce in unique ways. For this reason, any children involved may require additional time and support during the separation. On top of this challenge, parents often disagree over details of a child custody plan. What can California families going through divorce learn about determining parenting time, and how can they navigate disputes that might occur as a result? 

First, it may prove beneficial for everyone to hold a family meeting about future plans. Parents magazine refreshes those going through a divorce on certain strategies to use when explaining child custody and visitation to younger family members. Before this can happen, however, ex-spouses must agree on how they will discuss plans with children. Parents urges readers to avoid putting down ex-spouses, as this can present a conflicted message to young audiences. If it is impossible for ex-spouses to be in the same room together, Parents suggests discussing plans with children one-on-one. A child may not have to know a parenting time dispute at hand, but parents can ease the tension by explaining as much about future plans as possible.

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San Joaquin Family Law
10 North California Street
Stockton, CA 95202

Phone: 209-478-2700
Fax: 209-464-5949
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