by Cristin M. Lowe

We love our pets, and it seems crazy to think that California law views them as property to be divided in the event of a divorce.  My dogs, Murphy and Wykid Angel, certainly don’t consider themselves property – they are completely offended and horrified at being categorized as such.  So how do we protect ourselves and our furry children in the event of a divorce?

1.  Paperwork matters.  If your pets are AKC registered, make sure you look at their papers to see whose name(s) are listed as the owners.  Double check the vet records to make sure that you’re also on the contact list.  For that matter, make sure that you have copies of their current vaccinations, their Microchip ID numbers, and other such important information.  If you purchased the pets prior to marriage, find copies of the purchase contract, the source of the funds, and any other documentation that proves you are the legal owner.

2.  Think about parenting plans.  Consider a shared “custody” arrangement of your pets.  Just because the law characterizes pets as property doesn’t mean that we have to do the same.  Family law is very unique and special, in that Courts will honor a reasonable and enforceable agreement, regardless of whether or not it’s technically the “correct” legal resolution.  If you have human children, keeping your pets on the same schedule often makes sense.

3. Don’t forget about the details.  If you are going to do a shared custody arrangement, remember that you also have to discuss the costs of maintaining your pet.  I’m not just talking about food and grooming.  Although it’s not a comfortable topic, caring for your pets in their older years is something that needs to be discussed.  At what point do the vet bills become too expensive?  How will you make decisions regarding whether to treat or let them go?

4. Be compassionate.  As much as you love your pets, your spouse likely has also formed a close attachment with them.  Just as importantly, your pets likely love your spouse and would miss your spouse terribly if they never saw him or her again.  If we truly consider our pets as children, we need to “walk the walk.”  That means that we have to consider their best interests and not be selfish.  Just like it’s rarely in children’s best interests to never see the other parent, the same concept applies to our pets.  Sometimes we do have to make sacrifices and be uncomfortable because we love our pets and want what’s best for them.

by Cristin M. Lowe

Most people imagine a courtroom to be just like what is commonly seen on TV. For people with divorce and family law matters, TV shows really aren’t a good benchmark of what to expect when you go to court for your case.

1.  Court security.  Almost all courthouses require you go to through a metal detector before entering the courthouse.  Some require you to take off your shoes (think TSA-style security).  Most of the time you need to take off a belt and empty your pocket of phones, change, etc.  No matter what, you should definitely build in some extra time to get through security.  Don’t show up to court at 8:55 am thinking you’ll be right on time for your 9:00 am hearing.

2. No jury.  One of the common questions my clients ask is whether or not there will ever be a jury in their divorce case.  Unless we are talking about an extremely unusual quasi-criminal subdivision of divorce cases called contempt, no, there will never be a jury.  Your case will be decided by a judge or a commissioner.

3.  It’s public.  Many people are also surprised to learn that their case is not the only one on calendar.  Most types of family law cases are public hearings.  That means a few things.  First, there will likely be more than one case set for the same time as yours, which means that you should be prepared to wait for a long time before the judge calls your case.  Second, anyone can sit in the audience during your hearing, which means that you are able to bring family and friends with you (although I would generally recommend that you avoid bringing a whole entourage).  Third, watch what you say – don’t blurt out private information that IS going to be overheard by other people.

4.  Read the signs.  Most courtrooms post the list of hearings outside of their doors first thing every morning.  Don’t ignore it – look at the list to make sure your case is on there, and look to see where you are on the list.  Look at the tables when you walk into the courtroom.  Many judges have signs at the tables that designate which one is the Petitioner’s table and which one is the Respondent’s table.  This will show you where the judge expects you to sit when your case is called.  And almost all courtrooms have signs indicating what the expected proper etiquette is.  Most of the time, this means no cell phones, drinks, food, hats, sunglasses, gum, etc.

by Cristin M. Lowe

At long last, Kim Kardashian and Kris Humphries are divorced!  At a hearing on Friday, April 19, 2013, Kim’s attorney presented a written agreement to the Court, which was accepted.  Kris Humphries did not appear, but Kim was sworn in and questioned by the judge.  So how was this able to happen without Kris Humphries being present?

First of all, because the parties had an agreement, Kris’ appearance likely was unnecessary, especially since his attorney appeared for him.  And although it may sound lopsided, the questions asked of Kim only need to be answered by her.  This process is officially called “voir dire.”

Most family law litigants will find themselves being sworn in at one time or another.  The judge’s clerk asks the parties to stand and raise their right hand as they are asked if they swear to tell the truth, the whole truth, and nothing but the truth.  A verbal answer such as “yes” or “I do” is required – no nodding or “uh huh-ing” is allowed.

Assuming that there is an agreement, after being sworn in, either each party’s attorney or the judge will ask a number of procedural questions.  Generally speaking, the questions run along the lines of making sure that each party understands the agreement, had enough time to think about the agreement, desires to make the agreement a formal Court Order, and has no questions about the agreement.  Each party must answer these questions out loud, and only after the judge is convinced that each party voluntarily and knowingly entered in to the agreement will accept it and make the agreement into an order.

If the agreement also terminates the marriage itself, that leads to a second series of questions.  We call them the “jurisdictional facts.”  In order to obtain a divorce in California, there has to be a date the marriage started and a date the marriage ended (usually called the date of separation).  Additionally, at least one of the parties needs to have been a resident of California for at least six months prior to filing for divorce, and a resident of the county of filing for at least three months prior to the filing.  The Court has to find that all of these basic requirements have been met, and in Court, one of the parties has to testify to these facts.  In the Kardashian/Humphries divorce, Kim happened to be the one doing the testimony.

In California, there are two grounds for divorce: irreconcilable differences and incurable insanity.  Like nearly all divorces in California, Kim and Kris fall under the category of irreconcilable differences.  Basically, their marriage got to the point where they were unable to stay together any longer.  It’s not about fault or blame – someone or both of them wanted out.  Kim was likely asked if irreconcilable differences had arisen between her and Kris and whether those differences had led to the irremediable breakdown of her marriage.  It is reported that the judge also asked Kim if counseling or any other assistance would help to put their marriage back together, which is also a routine question.  Only one of the parties needed to answer these questions, since California is a state where only one person needs to want a divorce in order to obtain it.

And with those few questions, the case is over and the trial vacated as long as they sign the final documents.  Let’s hope it’s smooth sailing for both of them from here on out!

Kim leaves the courthouse under high security. But where’s Kris?

by Cristin M. Lowe

Once again, Kim Kardashian’s divorce is making headlines.  Kris Humphries recently failed to appear at a mandatory Settlement Conference, reportedly infuriating the judge.  Rumor or not, I can say from experience that most family law judges would not be pleased if a party did not show up to one of these hearings.  It is a complete waste of time for everyone involved, and with ever-decreasing financial resources, judges are never happy when they could have rearranged their calendar to accommodate a different case that is ready to go.

A Settlement Conference is somewhat self-explanatory, in that the goal is to settle the case.  I like to explain it as the last ditch effort to either narrow the issues or resolve as many of them without a trial.  Sometimes a trial just can’t be avoided, but in almost all cases, it is very possible to focus the scope of the trial simply by talking out the issues and taking the time to hear each party’s stance on every single concern.

Settlement Conferences are informal hearings, meaning that the judge cannot make orders regarding the outcome of the case.  A judge can order that certain documents be filed or impose some sort of procedural schedule, but he or she cannot determine the merits of a case.  Although that seems backwards, it is really important to create a “safe harbor” where parties and their attorneys can candidly discuss issues without the fear of the judge making a decision.  Often times, judges will take attorneys into their chambers to discuss the case frankly and off the record.  This face time with the judge is invaluable, as it gives the attorneys the judge’s impression of the case and his or her thoughts on settling the case.

The work is not just between the attorneys and the judge, though.  In order to settle a case, it’s incredibly important that both parties appear, because attorneys don’t have the authority to make agreements about a client’s divorce case without the client’s permission.  Practically speaking, no one wants someone else to determine their financial future, their custody situation, or in Kris Humphries’ case, whether or not to agree to a divorce versus an annulment.  Attorneys need to be able to confer with their clients and discuss the various proposals and options being put on the table.

We don’t know why Kris Humphries did not come to court, but if you ever find yourself in a similar situation, learn from his very big mistake.  First of all, you need to notify the other side and your attorney if you are unable to appear, even if it’s a true emergency.  Secondly, explore options of appearing telephonically.  Not all judges will allow for this, but it’s certainly worth asking and exploring, especially if you have to travel from a distance.  Thirdly, if there is time to do so, ask for a different hearing date so that you can appear.  Many judges will be flexible and schedule a Settlement Conference on a convenient date or time.  For my out of town clients, I often ask for a Monday or Friday hearing so that they can take fewer days off of work.

One other point of interest is that the media is making a big deal that Kim Kardashian listed Kris Humphries as a witness to be called at trial.  The boring explanation is that Evidence Code Section 776 allows a party to call the opposing party as a witness.  In a nutshell: calling the other side as a witness is more than routine and should always be expected in a family law trial.

by Cristin M. Lowe

The holidays are already stressful when you’re part of a blissful, intact family.  But for over 50% of the population who experience divorce or a separation, the holiday season can feel like a cruel joke when you’re surrounded by ridiculously jolly people who couldn’t possibly understand what you’re going through.  Here are some tips for getting through the holidays.

1.     Prepare to feel emotional and be okay with it.  Holidays are a unique time of the year, and when you think back to all those Thanksgiving meals at your in-laws, it can be a potent reminder of the “good old days” before divorce.  Be ready to experience a mix of emotions, from anger and resentment to jealousy, depression, and sadness.  Be prepared to have an emotional reaction to everything from a song on the radio to looking through your holiday decorations.  Say to yourself, “I am human; I will probably feel sad; and I am ready!”  Most importantly, allow yourself to feel those feelings.  There is nothing wrong with remembering past years with both fondness and sadness.

2.      Don’t postpone joy. There are many, many things to celebrate.  It’s okay to cry when you need to, but the rest of the family, especially your children, will often take their cue from you.  Find every little thing you can be joyful about this holiday season and share it!  One of my old clients started a new family tradition post-divorce: he and the kids put up a “Joy Tree” in their kitchen.  The kids made “leaves” out of their traced hand prints on construction paper, and they all wrote down reasons they were happy on the leaves and hung them on the tree.

 3.      Focus on others. The holidays are really about sharing, being thankful, and giving back. There are all kinds of people that YOU could encourage during the holidays. The holidays aren’t about you, anyway.  They are about having a generous heart and a gracious spirit. Cultivate those characteristics and be grateful for every good thing you have.  Consider volunteering to help out those less fortunate than you.  Helping out others can often get your mind off of your own troubles.

4.      Respect old traditions, but don’t be afraid to begin new traditions.   Sometimes the best intentions fall short—as parents, we want to protect our children, and as a result, we try to make everything different during the holidays in order to avoid bringing up old memories. That can be a big mistake.  Sometimes it’s okay to keep things the same.  Children feel secure with routines and traditions, so sit down, talk to your kids and ask them what they want to change or keep the same. Go with the flow of what your children want to do. And remember that YOU have to be comfortable with any change you make, because if you don’t feel comfortable, that’s going to impact your children.

5.      Keep it in perspective.  Don’t go overboard and try to buy your kids everything they want just because you feel guilty or want to make up for the divorce.  Give the gift of time and attention instead.  Remember that you aren’t the only person in the world getting a divorce in the middle of the holiday season.  Instead of finding people to commiserate with, focus on all that you do still have to be thankful for, and recognize that there are others less fortunate than you.  Don’t expect your first holiday season post-divorce to be picture perfect (or your second or third, for that matter).  Remember that the holidays aren’t about perfection and focus on what is really important to you, whether it’s family, friends, health, job security, or the excitement of what is yet to be.

by: Cristin M. Lowe

Ah, the dreaded Schedule of Assets and Debts.  The document that consistently overwhelms, intimidates, and, if we’re being honest, irritates most, if not all people who have to do it.  Probably the number one question I get as a divorce attorney runs something along the lines of, “Why do I have to do this?” or “Do I really have to get you everything on this document?”

The answers to these questions are found in Family Code Section 2100 (the text of which is at the bottom of this post), but in a nutshell, the law requires everyone to do a full and accurate financial disclosure for three main reasons: 1) it helps promote settlement; 2) it makes sure both sides understand and know what the assets and debts are; and 3) it ensures a fair and open resolution to property division.

Even if I’ve managed to convince you of the benefits of doing a full financial disclosure, I understand that the job is still difficult.  When trudging through stacks of documents and online statements, follow the Rule of Three to make your life easier.  The number three is magical—getting three things done is doable, not overwhelming, and most importantly, is real progress.

Three (naturally) ways you can use the Rule of Three to get your Schedule of Assets and Debts done:

1) Pick the next three things you need to do and write them down on a sticky note or piece of scrap paper.  For example, 1) Get a copy of the house deed; 2) Get the latest mortgage statement; and 3) Go to zillow.com for the current fair market value of the house.  Then do them.  Every time you get distracted and forget what you were supposed to be doing, go back to your list.  If you get discouraged, remember that you only have three things you need to do.  When you’ve done the first three, write down and do another three.  You’ll be amazed at how many completed post-it notes you’ll end up with.  Always finish your three before taking a break.

2)  At the end of the day, pick the most important three things for you to do the next day.  Write them down.  Set a specific time of day that you’re going to start on your project and stick to it.  If you use this technique, you’ll always be working on your priorities.

3)  If your list is very long (and with Schedules of Assets and Debts, they do tend to be long!), pick three similar things, and do just those.  I like to group them in terms of the assets and debts—main home, rental property, cars, bank accounts, timeshares, retirement accounts, etc., but there certainly is no magic to my method.  If you like stability like me, do three more of the same things until that entire group is done.  If you like variety, do three of something different.

None of this is legal genius.  It’s my best advice for how to take this overwhelming task and break it down into something doable so that you feel like you can start.  Once you’re moving, things become much easier – you’re buoyed by the progress you’re making.  Try using the Rule of Three today.

Family Code Section 2100:

The Legislature finds and declares the following:

a) It is the policy of the State of California (1) to marshal, preserve, and protect community and quasi-community assets and liabilities that exist at the date of separation so as to avoid dissipation of the community estate before distribution, (2) to ensure fair and sufficient child and spousal support awards, and (3) to achieve a division of community and quasi-community assets and liabilities on the dissolution or nullity of marriage or legal separation of the parties as provided under California law.

(b) Sound public policy further favors the reduction of the adversarial nature of marital dissolution and the attendant costs by fostering full disclosure and cooperative discovery.

(c) In order to promote this public policy, a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for dissolution of marriage or legal separation of the parties, regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties. Moreover, each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues, or at the time of trial on these issues, each party will have a full and complete knowledge of the relevant underlying facts.

by: Cristin M. Lowe

Although most of us assume that Kanye West is indeed the father of Kim Kardashian’s baby, California law doesn’t make those same assumptions.  In fact, the initial presumption is that Kim’s legal husband, Kris Humphries, is the father!  According to Family Code Section 7611, Kris can be presumed to be the natural father of Baby Kimye since he and Kim are still married and the child is born prior to the entry of their divorce.  Luckily for Kim, this presumption is only conclusive if Kim and Kris were living together at the time of conception under Family Code Section 7541.

Interestingly enough, the law only allows for either Kanye or Kris to be the presumed father.  In order for Kanye to become the presumed father, he does not have to submit to a DNA test or establish any other sort of biological evidence.  He can simply sign a voluntary declaration of paternity, stating that he agrees he is the father, and according to Family Code Section 7570, this creates a presumption that he is, indeed, the father.  Other ways Kanye can become the presumed natural father of the child include marrying Kim after the child’s birth, consenting to being placed on the birth certificate, receiving the baby into his home, and openly holding the child out as his own.

No matter what though, in order for Kanye to go from presumed father to legal father, he will need to obtain a Judgment of Paternity, just like thousands of other unmarried couples do in order to protect his rights.  Absent marriage, a case under the Uniform Parentage Act (UPA) needs to be opened by Kim and Kanye in order to legally establish them as parents to their unborn child.  Under the UPA, they will determine custody and visitation rights, as well as whether or not child support is appropriate.

By: Cristin Lowe

Never Assume You were Heard Correctly

“The single biggest problem in communication is the illusion that it has taken place.”

-          George Bernard Shaw

Mediation is a somewhat artificial institution.  Think about it: you go to a small, uncomfortable room, sit with a stranger and your ex, and then talk about your children.  After the appointment, if you don’t reach an agreement within a short amount of time, this stranger gets to recommend what he or she thinks is best for your kids.  Sound fun?

That is why it is absolutely vital to make sure that you are 100% confident that you are being heard.  Just because you’re talking to a person who is a self-proclaimed expert at listening doesn’t mean that this is actually taking place.  It is still your responsibility to make sure that you are being heard.

One of the most common issues I have when meeting with clients is their use of pronouns.  Usually they’re trying to make themselves easier to follow, but it’s just the opposite.  The third reference I hear to “she” or “her,” and I’m lost.  I don’t know if the client is talking about his ex-wife, one of his daughters, his mother, his ex-wife’s mother, an aunt, or the teenage babysitter.  I can’t tell you how many times I’ve had a client sit down and say, “He never wants to spend time with him.  He cancels visitation at the last second, and his feelings get hurt.  Then he blames me.”  Other than knowing one person is the dad and one person is the son, I have no idea who doesn’t want to spend time with the other, who cancels visitation, whose feelings get hurt, and who blames her.  Trust, me, if you speak like that to your mediator, that person can’t understand either.

I find that referring to people by their relationship or title, rather than a name, is the best way for me to follow a story.  “Mom,” “grandma,” and “nanny” are simple to remember and understand.   Other than using names for your children, other names should generally be limited to titles. Remember, you are usually the only one who is guaranteed to understand what you want to say.  You need to make sure you allow others to also hear you correctly.

What other examples do you have?

The process of dealing with a divorce is so similar to grief for good reason: it’s the death of your marriage.  And along with the death of your marriage comes the end of your old life, dreams, and hopes.  Knowing what to expect and being able to keep things in perspective will help you get through this difficult time in your life and allow you to achieve peace once again.

Regardless of whether you are the one who initiated the topic of divorce or it was dropped on you, you’re going to fight against reality.  If you just tried a little harder or your spouse gives you another chance, things can get better.  This isn’t how you imagined life when you said “I do” all those years ago.  In short, you’re in denial.

Once reality sets in, it’s usually followed by shock.  How could this be happening to you of all people?  Wasn’t your marriage supposed to beat the odds?  Shock comes in all different forms, including numbness, disassociation, and numbness.  No matt

er what though, you feel as though you will never get through this divorce.

Over the next few months and possibly even years, you’ll experience an emotional roller coaster.  You try rationalizing the divorce, even though there is nothing logical about what you’re going through.  There is a lot of reviewing and rehashing history, often times with regret.  Depression is common during this stage.

And then something miraculous happens.  It doesn’t happen overnight, and most of the time, you don’t even realize it’s happening until you’re there.  You let go.  You stop looking backwards at the past and begin to look towards the future.  Your old boundaries and rules have changed, and before you know it, you’ve also changed.  Your new life begins to fall into place.  You acknowledge that your marriage is over and that there is nothing more you can or even want to do to repair it.  You’re at peace.

President John F. Kennedy had these wise words to share:

“Peace is a daily, a weekly, a monthly process, gradually changing opinions, slowly eroding old barriers, quietly building new structures. And however undramatic the pursuit of peace, the pursuit must go on.”

Don’t give up—you will get there and you will find peace again.

The difficult decision of clicking a button.

To Friend or Not to Friend

By: Cristin Lowe

It’s no big secret that a breakup results in a division of friends along with the furniture.  But what happens with your Facebook “friends” post-separation?  Is “unfriending” your ex and his or her friends the right thing to do after the end of a relationship goes public?

I’ve been unfriended by my brother-in-law’s ex after they broke up.  Twice.  I can’t say I regretted it (or even noticed exactly when it happened, if I’m being honest), and there was a guilty sense of relief that I no longer had to take a side.  After all, it didn’t matter that she was a lovely person and we might have been friends had she never been in a relationship with my brother-in-law because let’s face it: we both knew my loyalty lay with him.  And that unspoken loyalty ended a friendship that never really existed outside of occasional text messages, the Holidays, and, of course, Facebook.

I’ve also chosen not to friend another friend’s significant other simply because I was pretty confident that relationship wasn’t going to be of the “always and forever, ‘til death do us part” variety.  To date, they’ve proven me wrong, but I still have enough doubt that there is no way I am going to take the initiative to reach out and friend him.  Thankfully, he doesn’t strike me as the assertive type, so I think I’m safe from having to ignore his friend request.  Crossing my fingers.

Years ago, before I began dating my now-husband, I got to personally experience the awkwardness of dividing up friends after a breakup.  Luckily for me, at that time he didn’t know what Facebook was, so other than his extremely angry and bitter sister unfriending me over the breakup, it never really became an issue.  At the same time, it’s always struck me as a little odd knowing that through our numerous remaining Facebook friends-in-common, we could keep tabs on each other despite not having spoken in years.

Some people remain Facebook friends with their ex in order to continue “spying” on him or her.  Or else they task their friends to keep up to date on the latest happenings with the “other side.”  Does she have a new boyfriend?  Does he look happy?  Is she sharing personal divorce details with her friend community?  Has he changed his status to “single” yet?  The list goes on and on.  If you are in the silent guilty majority of people who engage in this behavior, just remember that so long as you’re focusing on the other person, you’re not going to be able to move forward with your life.

Others take the opposite stance.  They fill their Facebook page with pictures of their glamorous new lives filled with freedom.  Their status updates are full of breezy comments about how great things are going and how happy they are.  Often times these comments and pictures refer to a new significant other.  Instead of being the jealous parties, they are doing everything they can to make the other side jealous.  Unfortunately, just like the other group of individuals, they also remain focused on the past, not the present or future.

You need to be brutally honest with yourself.  If you can’t resist the temptation to spy or listen to your friends share information about the ex, that’s a clear sign you need to hit that unfriend button and give your real friends strict instructions not to give you updates by proxy.  Make sure that you keep your own posts appropriate.  By appropriate, I mean that if your ex was to print out your status update or comments, you wouldn’t be concerned if your words were shown to your divorce judge or your kids.  Encourage your friends not to post their feelings about your breakup on their own walls, just in case your children happen to come across those posts.

Regardless of what you choose with your Facebook friends after a breakup, remember that what matters is that you want to be fully in charge of your own virtual community.  You should get to the point where it doesn’t matter whether you or your friends unfriend the other side.  After all, the point of ending a relationship is to move on, right?