Six Months Have Passed, I Am Divorced Right?

NO, you are not divorced!!! This is a myth that has gotten a number of people in trouble.

The code provides that you can be an unmarried person in six months and one day after the Respondent was served. Notice, you can be, not you are an unmarried person.

So how does this all work? Say you resolve your case and the Judgment is sent to court three months after the Respondent was served. The court will sign the Judgment and it will become a binding court order. On the face of the Judgment is a place the court stamps the day you are an unmarried person. Since, in this hypothetical, you were done in three months, you have not met the six month time frame. The court will stamp a date six months and one day from the date the papers were served on the face sheet.

Let’s say it takes a year to get the issues resolved. You are not divorced just because the six months passed. You will be married until the court signs the Judgment. Again there is a place on the face sheet where the court will fill in the date you are an unmarried person. So you will be married until the date the court signs the Judgment.

If you want to be an unmarried person as soon as possible, you can request the issue of your marital status be addressed by the court prior to resolving the other issues. This is called a Bifurcation of Marital Status. It is not automatic; you have to formally request it. The court may or may not grant your request depending on issues related to health insurance and/or retirement plans.

Mediation vs. Mediation

Many people get the two confused because the same word is used to describe two very different types of processes.

One is mediation as a form of alternative dispute resolution. The other is mediation provided by the court to assist the parties in working out a custody and visitation agreement for the children.

Let’s start with mediation as the form of alternative dispute resolution. This is a process where the parties work with a neutral third party, the mediator. The mediator can help the parties work out an agreement on all of the issues in a divorce including child custody and visitation. The hope is that the parties will be able to work with the mediator to reach a comprehensive agreement not have to go to court. Issues which can be resolved in mediation include child custody/visitation, child support, spousal support and the division of community property assets and debts. The mediator is an independent person. They may be an attorney, but that is not a requirement. They are not employed by the court.

Mediation through the court is for child custody and visitation issues only. Mediation is required by law when either party brings an issue involving child custody and/or visitation before the court. In other words, a motion is filed with the court asking a judge to decide on custody and/or visitation. The court will order the parties to attend mediation before the court makes an order. The mediator’s in this case are mental health professionals with specific training required by the Family Code. In the mediation session they will not address any monetary or property issues. The mediators are employed by the county and see only cases where a motion has been filed with the court.

The Components Of Child Support

Child support has three different components. You need to know about each component so you are not surprised when the judge makes a child support order.

The first component is the child support amount itself. That is determined by placing information into a DissoMaster or Child Support Calculator and a number then being generated.

The second has to do with health insurance and unreimbursed medical expenses. The Family Code requires both parties to have health insurance for the children if it is available at a reasonable cost. For many couples this does not make sense as many plans do not work together. Spending extra money to have two plans is a waste of money. I try to have parents compare plans and choose the best plan with the best cost and agree the parent with the best plan provide the health insurance for the children. The default is the law if the parent carrying the insurance loses it for some reason. With the cost of plans these days it makes sense to maximize the money available.

The unreimbursed medical expenses fall under health care. Generally each party is ordered to pay one-half of unreimbursed medical costs not covered by insurance. This can include medical, dental, vision, mental health etc. Essentially any expense that would be categorized as a health related expense is covered.

The third component is child care. In most instances the parties are ordered to each pay one-half of work and/or educationally related child care.

If I Am Awarded A Portion Of The Other Party’s Retirement Plan, How Do I Get Paid?

Any type of retirement plan needs to be handled in a special way to ensure the non-participant spouse receives the percentage awarded to them.

Many people do not realize what needs to be done to ensure payment happens when retirement comes along. An order for payment in the Judgment does not guarantee the plan will make the payment. First the plan may know nothing about the order. If they don’t know about it, they aren’t going to send the payment due. Second, there is no valid court order as to the plan if the order for payment is only set forth in the Judgment.

By law, a court can only make a valid order against a person or entity who is a party to the court case. So, by definition, if the plan is not a party to the divorce, the court order does not and can not bind them.

When a plan is going to be divided, a Summons and Petition for Joinder are filed with the court. The papers must be served on the plan. The plan then files a response. This now makes the plan a party to the divorce action. The court can now make an order the plan must follow. 

The next step is the order. A copy of the Judgment alone is not sufficient. A special order called a Qualified Domestic Relations Order (QDRO for short) must be prepared. The order is approved by the retirement plan, signed by the parties and counsel and then sent to court for the judge’s signature. this makes the QDRO a valid binding court order. The order is served on the plan. The plan will recognize the QDRO and follow the order contained in it. 

The order will be kept and at retirement the plan calculates the amount the spouse and non-participant spouse will receive. Each will receive their own check. One thing to always remember is to keep the plan updated on your address so they have the correct address to send the check to.

How Long Do I Have To Pay Child Support?

The Family Code sets out the length of time child support must be paid. In most cases it is until the child reaches the age of 18, or, if at 18, they are still a full time high school student, until they graduate or reach 19, whichever occurs first.

The above is set up to make sure the children have both parents assistance until they are an adult and have graduated from high school. Many children turn 18 while they are in their senior year of high school. The 19 year old limit helps allow for a child that may have been held back at some point during their education.

There are a few exceptions to the general rule. The exceptions are the child becomes emancipated through the court, gets married or joins the armed forces. These would legally stop child support before the time limit set forth in the first paragraph.

Can you be required to pay support after a child becomes an adult? Yes, if the child is mentally and/or physically disabled and cannot take care of themselves. Taking care of themselves, meaning cannot hold down a job, cannot care for themselves independently etc.

Once a child is an adult, you as the parent, are no longer required by law to provide for them. What you decide to do for them is at your discretion. That means you cannot be forced to help with college. How much you help with any education after high school is up to you.

What Is Child Support Supposed To Pay For?

A few statements I hear a lot are: “the money isn’t going to my kids. I want to mom/dad to account for the money.” ”He/she is living better than I am.”

Child support helps cover many things. It is to help provide a home to live in. Rent for a parent and children is more than if the parent only had to house themselves. Then there is PG&E. Children use electricity as do the adults. How about transportation? A parent needs to have a car. The car needs gas, insurance and maintenance. Gas cost is higher if the parent has to take the children to school, appointments and extracurricular activities. Then there is food to eat. Depending on the age the food bill can add up. The children need clothes and personal care items. There are school supplies and projects that have a cost. Many children are in activities. Those all have a cost. There are registration fees, special clothes, costs if they travel, weekly or monthly charges if the children are in lessons. All parents want to have some extra to do fun things like eating out, parks, movies etc. It all adds up.

As for the living situation, it may look that way. One thing to remember is the parent with the larger share of time with the children is providing more for the children. The out of pocket cost to feed/house/clothe one person is far different than two, three, four and so on.

Does the support allow the receiving parent to live better than they might without the support? Sometimes, yes. The support calculation is set up to keep the standard of living for the children similar in each household.

The Parent Who Would Receive Child Support Is Receiving Cash Aid, Now What?

Once the parent who would be entitled to receive child support is receiving aid, there are a set of rules that will apply. When a parent starts receiving aid they give up the right to negotiate a child support amount. They sign over the right to set and receive child support to the county. The Department of Child Support Services becomes involved. They step into the shoes of the parent receiving aid.

The Department of Child Support Services will file papers to start a case and set child support. Sometimes they try to work out an agreement for child support before filing a motion with the court, sometimes not. 

If they file a motion the payor parent will need to file a response and appear at the hearing. If they do not appear the court can set an order.

When appearing for a hearing it will be in a Family Support Court. the parties will be interviewed by a Family Support Officer. The Family Support Officer will prepare a Child Support Calculator based on the information obtained in the interview. The parties can agree or disagree with the figure. If they agree, the court will review the calculation and make the agreement the order of the court. if the parties disagree the court will allow the parties to argue on the factors they disagree upon. Because the County is now in the shoes of the recipient spouse, they will be allowed to argue their points as well. Once the court has heard the arguments, the judge will make an order.

Once the order has been set, a wage assignment will be prepared and served on the payor’s employer. The support will be deducted from the payor’s check and sent to the County.

The County will keep track of all of the payments made and when they are made. If a person owes any back support, the County can collect it through a few different means. If you receive a tax refund, it will be intercepted and applied to the back support. They can also levy bank accounts to collect the back support.

If you do not pay, they can take away your driver’s license and/or any other license you have, i.e. contractor’s license, notary license etc.

For all back support owed there is interest tacked on at the legal rate. The interest can add up if one is not careful.

How is Child Support Calculated?

Child support is set on a state mandated guideline. Family Code Section 4050-4076 sets out the formula used to set child support. This formula has been incorporated into a computer program which will calculate the amount of support once the figures have been input. In the Family Court, the program is called DissoMaster. In the Family Support Court the program is called a Child Support Calculator. 

Factors that are input into the program include figures such as: number of children; % of time the noncustodial parent spends with the children; tax filing status; wages; self-employment income; any additional forms of taxable and non-taxable income; cost of mandatory retirement; cost of union dues; cost of health insurance; hardships for other children from another relationship in the home and any other child and/or spousal support being paid. If the person who will receive the child support wants the guideline amount, the court must order it, unless one of the few exceptions applies. 

The Family Code makes it mandatory to order the guideline amount. If no aid money is being paid, the parties may agree on a child support figure higher or lower than the guideline amount.

Why There is NO WIN in a Divorce

You are hurt, angry, reeling from the shock your marriage is over. You want to take your ex to the cleaners. They need to pay........ 

You can go hire the attorney with the reputation of being a bull dog or a shark, but in the end everyone, especially the children, lose. If the fight is on, let me tell you what the probable outcome may look like.

1. The attorney’s make A LOT of money;
2. You both will be broke;
3. You may be very disillusioned with the process, especially if you don’t get what your attorney promised you were entitled to;
4. Depending on the level of animosity, you and your ex may not even be able to discuss simple things making everything a fight and/ or a stressful challenge when dealing with issues involving the children;
5. Your children will be a wreck and emotionally damaged. The children become the unnoticed collateral damage as they watch their parents battle it out;
6. The emotional toll is huge. It takes a lot of energy to fight the fight. It is exhausting and can have physical ramifications as well.

Why Mediation is Better for the Children

When you are working together to create a plan for sharing your children you are emotionally coming from a place where the children’s needs are first. With them as the focus there is no fighting or trying to win the children over to get back at the other parent. You will avoid the pitfalls of those who are in fight mode and keep your children first. Your children will not have to endure some of the following:

1. Fighting in front of the children.
2. One or both of the parents saying derogatory things about the other in front of the children. 
3. Saying things which make your children feel it is not OK to want to talk to and/or see the other parent. 
4. Discussing the court proceedings with the children to get an advantage over the other parent.
5. Having the children read the legal documents to get an advantage over the other parent. 
6. Making a scene at public events and special outings by arguing or insulting the other. 
7. Making the children feel like they have to take sides. 
8. Not allowing the children to take their clothes and belongings back and forth between homes. 

What are the Benefits of Mediation

1. Mediation is a peaceful, non-adversarial way to resolve the issues involved in a divorce or other family-related matter. In mediation the parties work through the issues with a neutral third party. The mediator assists the parties in finding mutually beneficial solutions

2. Mediation is a confidential and structured process. Nothing that happens during the mediation process can be used in court should the mediation process not be successful. 

3. Mediation is less emotionally draining than going through the litigation process. Think about what you feel like when you have a disagreement with someone- how does it make you feel? Sick, sad, angry, anxious, tense and/or frustrated? In mediation we work through the disagreements in a respectful manner. The focus is resolution, not who will win. 

4. Mediation is better for the children. Kids love both of their parents. To be put in the middle is emotionally devastating. In Mediation we focus on what is best for the children.

5. The mediation process does not put either party in a detrimental position. If the Mediation is successful, then all of the paperwork can be taken care of without going to court. If the process is not successful, the parties can opt out and go through the court system. 

6. Mediation is less expensive. Family law cases can run $10,000.00 to $20,000.00 to $30,000.00 for each party depending on the level of acrimony. In most instances, mediation can be completed for less than $10,000.00 TOTAL!

What is Mediation?

Mediation is an emotionally and financially cost effective way to resolve all issues in a divorce. It is a process where the parties work together to create solutions with the help of a neutral third party, the mediator.

The parties can work outside the box to create a settlement that meets their needs instead of a court making an order that may not be to either parties benefit.

It can take one or more sessions, but the sessions are scheduled as close or far apart as the parties want. The parties are in charge of the process.

The fees are paid for one attorney, not two.

Sessions are confidential so the tough issues can be discussed without fear that what was said in a meeting will be used in court later

There are no constraints on what can be presented in mediation. Everyone has the opportunity to speak and be heard.

If the process does not work, the option to go to court and ask the judge to decide the issue is still available.

The Process to Obtain a Child Custody and Visitation Order in Fresno County

You will attend at least two court hearings before you have an order.

From the time you file until the first hearing, called a Readiness Hearing, will be approximately 2 months. At the Readiness Hearing you will be given dates to attend orientation to mediation, mediation and a return to court date.

The time from the first hearing until the second hearing will be approximately 45 to 60 days, depending on the courts calendar.

• At mediation, children are no longer interviewed.
• Mediation is confidential. That means nothing that happens during the mediation session can be brought up at court.
• At the second hearing, all the judge will know is whether you agreed, disagreed or have a partial agreement. If any agreements are reached those will be typed up and made available prior to or at the hearing.

At the second hearing the judge has the option of:

• Making an order that day.
• Determining additional information is necessary and sending the matter to Tier II mediation and setting a return to court date.
• Setting the matter for a contesting hearing/trial where evidence is presented by the parties before the judge makes a decision.

In this process, the judge decides who your children will live with and when.

Steps to Hiring the Right Divorce Attorney

There are things you should look for when hiring a divorce attorney:

1. 
   You must feel comfortable.  If you’re not comfortable in the interview phase, when the going gets really tough there will be friction.
   
   
2. Make sure the attorney tells you the Good and the Bad and doesn’t promise you a pot of gold at the end of at the rainbow. This isn’t going to happen.  Everything is split 50/50; that’s just what it is.  You have to hear the good parts of your case and the bad parts of your case from your attorney.
   
   
3. The attorney must be reasonable. If they want to “go after” the other party and get them for all they’ve got, you can end up in court for a long time with the attorney’s fees skyrocketing.  This attitude takes you to court to battle.
   
   
4. Most of all, you want to have somebody level-headed who’s really going to give you a realistic view because it’s never all one way or the other.  It’s just not going to work that way.  That is the main thing is that they be forthright with you.  

When you hire the right attorney, it makes the process go much more smoothly with less stress and less tension on all parties.