A divorce is a life–altering event. Unlike almost any other legal matter, during a divorce proceeding emotions are heightened and can lead to poor decisions on the part of both parties involved.
It's already overwhelming for you – let us take care of the details and fight for what you deserve. Our experienced staff of divorce attorneys will arrange every aspect of your divorce agreement, including:
-Restraining Orders & Visitation
-Child custody, support, and visitation
-Division of property and assets
-Grounds for divorce – fault/no–fault
No one's family is perfect – but sometimes, a breakdown in the family relationship can require outside help to resolve. Family law governs the legality of family relationships, and can be used in a wide variety of cases, including:
-Child custody and visitation rights during divorce proceedings
-The determination of paternity
-Domestic violence and child abuse
-Legal agreements between couples
Mediation is an effective alternative to court litigation for resolving disputes that arise as two people separate their lives. A mediator, acting as an impartial third party, helps couples work through the issues of their divorce to reach a mutually agreeable settlement. This is a voluntary process which allows couples to retain control over the outcome of their divorce.
Why Mediation is safe:
-Sign the settlement agreement ONLY if you feel it works for YOU
-NO ONE IS LOCKED IN... you can always go to court if you can't reach an agreement you can live with- YOU make the decisions
-You get all the information on each issue before making a decision
-You create a custom plan that you can try out before signing anything
-You can get outside options
-The mediator will not allow anyone to be abusive, threatening or insulting- they are FAIR!
"People with problems are people in pain; they want relief and they want it as quickly and as inexpensively as possible." -Nancy Thomas, Attorney
Why Is Walnut Creek Family Law Center, Inc. Your Best Choice For Mediation?:
-Over 25 years of legal practice
-Empathetic- A good listener
-Worked with victims and defendants in domestic situations
-Understand both sides of a divorce
-Can articulate various positions
-Can prepare Martial Settlement Agreements & other necessary Court Documents
-Can prepare Stipulated Judgments for filing non-divorce cases
-We understand the law, and are very good at explaining it!
When can you use mediation?
-Sexual Harassment Claims
-Estate Distribution Disputes
-Dissolution of Non-Marital Relationships
-Real Estate Disputes
-Post Divorce Modifications
-Labor Management Disputes
-Construction Defect Claims
"The entire legal profession, lawyers, judges, law school teachers, has become so mesmerized with the situation of the court room contest that we tend to forget that we should be healers of conflicts. For some disputes, trials will be the only means, but for many claims... our system is too costly, too painful, too destructive, too inefficient for a truly civilized people. To rely on the adversarial process as the principal means of resolving conflicting claims is a mistake that must be corrected." -Chief Justice Warren E. Burger
Family & Divorce Mediation
Divorce mediation is an effective alternative to court litigation for resolving disputes that arise as two people separate their lives. A mediator, acting as an impartial third party, helps couples work through the issues of their divorce to reach a mutually agreeable settlement. This is a voluntary process which allows couples to retain control over the outcome of their divorce.
What does a Mediator do?
The mediator helps couples identify the issues that need to be resolved, and guides each through the decision making process. The mediator remains neutral and helps keep the negotiations flowing, in order to reach an agreeable resolution for both parties.
What Are The Benefits Of Using This Approach?
It is less adversarial, time-consuming, and costly than battles waged in a courtroom. The details of your private life are kept confidential, and the emphasis is shifted towards settling disputes, as compared to finding fault. Individuals also have more control over the process, and open communication is encouraged. When couples work towards a mutual agreement, the likelihood of future cooperation is improved, and both sides can feel comfortable with the outcome.
What Issues Can Be Resolved?
Couples can reach an agreement on such things as parenting arrangements, parenting plans, spousal support, and the division of assets and debts. Couples still have the option of using court litigation for decision that can't be agreed upon in mediation. Each retains the right to walk away from negotiations and continue the fight in court.
Do Mediators Replace Lawyers?
Mediation does not remove the need for legal counsel. Your lawyer can help you prepare for negotiations, discuss the legal ramifications of the issues, and answer any questions that you may have concerning how to proceed. Your lawyer should also review any proposed settlement agreement before it is signed and finalized.
Is Mediation Appropriate For Everyone?
In situations where there has been abuse, or one spouse feels very intimidated by the other, this may not be the best avenue to settle disputes. Both parties need to feel free to express their opinions without fear of reprisal. A couple should be able to deal fairly with each other and discuss the issues that need to be resolved, and be open to compromise.
Choosing to work together when splitting up can save you a lot of time and money when compared to approaching your divorce as adversaries. While divorce mediation may not be for everyone, for those who choose this path, it is a means of taking control of your divorce and avoiding the negative consequences of an adversarial divorce.
Issues involving children, including custody, time share, visitation, extracurricular activities, holidays and vacations, and particularly child support, are often the most contentious elements in any family law proceeding. So is the relationship between the child and a party’s new partner.
Custody and Visitation are terms of legal significance. Custody has two components: Physical Custody and Legal Custody. Physical Custody determines which parent the children will live with at any given time. Legal Custody means which parent or parents have decision-making capability for the children as to health, education and welfare including, but not limited to, where the children will attend school, what medical procedures or medications may be administered, religious upbringing, sports activities including football, and day care. Each of these categories has far-reaching ramifications including tax consequences, the right to move away with the child or children, the effects upon extended family, educational opportunities, mental health counseling or treatment, etc.
What factors does a court take into consideration in deciding who is awarded joint or sole custody of the children?
All courts are mandated to apply the “Best interest of the Child” standard. In doing this judges or commissioner’s apply their perceptions (or misperceptions) in making a discretionary call. A judge or commissioner must hear the evidence on both sides, sometimes primarily by declaration in short-cause matters, and makes a judgment call that is oftentimes nothing more than a shot from the hip. The unfortunate part of this is that it tends to establish a base line or status quo from which future orders may deviate. The policy of the law is that parents should be able to share their children and that each parent should have “frequent and continuing contact” with his or her children.
Prior to issuance of the first temporary custody order in a case, except in emergency matters such as those involving protective orders, the parties are required to attend mandatory mediation through Family Court Services, also known as Child Custody and Recommending Mediation or the Family Services Bureau, depending upon the County. The parties will meet jointly, or separately if one party requests this, with a mediator employed by the county who is usually a Social Worker or who is a Licensed Clinical Social Worker (LCSW) or a Masters in Family Therapy (MFT). The mediator will speak with each party for a limited period of time, may request to interview the child or children, and will then formulate a short report and written recommendations which will be provided to the court.
Although courts may modify the recommendations or reject them, most courts tend to stick closely to these recommendations and to adopt them. Thus, a party’s future relationship with his or her children may be determined by spending less than an hour with a mediator. Good actors, those who are courteous to the mediator, and those who focus on the child rather than upon the other party’s inadequacies, tend to do well. Self-control can be a major factor, as is a party’s willingness to attend counseling, co-parent counseling, therapy, anger management, etc. depending on the allegations and circumstances. The family court mediators (counselors) are mental health professionals who are indoctrinated to believe that therapy is the panacea to all the world’s ills, particularly since we don’t have a lot of other acceptable remedies.
A child custody evaluation where custody or time share is disputed used to be rather routine. Once upon a time the cost was $2500 to $3000 and rather than seeing a Social Worker or MFT or MSW, most knowledgeable attorneys preferred to use Licensed Clinical Psychologists (Ph.D’s or Psy.D’s) as they could also do psychological testing as part of the process. The evaluation resulted in a report of twenty-five to forty-five pages with recommendations. Collateral contacts were made, home and school visited, psychological testing was performed where appropriate, and time expended was often twenty-five or more hours as compared to one hour for a family services mediator. Unfortunately, due to inflation, these evaluations now cost upwards of $7,500 and can reach as high as $15,000. Few people in today’s economy can afford this although it is still the best road to full and unbiased information to the court.
We now often hybrid the mediation and the evaluation by using what we term Recommending Mediation, usually with a mental health professional who has substantial forensic experience in custody matters and who is probably not a Clinical Psychologist. He or she works with both parents, and the child or children upon request, to assist them in resolving issues. He or she is not an arbitrator and does not make any orders but, like a family court mediator, he or she submits recommendations to the court which are given substantial weight.
Initial custody hearings, called Short Cause Hearings, are usually twenty minutes or less in most courts and in that limited time the Court will make its initial orders as to custody, time share, possibly occupancy of the family residence, child support, spousal support, etc. depending upon what relief has been sought and what issues have been placed before the court in the pleadings. The court will not hear issues not specifically included in the pleadings and if relief of a different kind is sought in the Responsive Declaration, it too will not be heard as it must be the subject of a separate filing.
A party may request a Long Cause Hearing at the time of the Short Cause Hearing which means that the court will set the matter for a contested evidentiary hearing down the road. At that time witnesses may be called and it is in essence a “mini trial” on limited issues.
After the determination of child custody and visitation or time share, the next step is to calculate the appropriate amount of child support. The formula used to calculate the appropriate amount of support is known as the child support guidelines. California law provides guidelines to courts for setting the child support payment amount. Child Support guidelines are based on each parent’s gross monthly income, the amount of time the child is cared for by each parent, the tax filing status of each parent, deductions such as property taxes and mortgage interest, pre-tax deductions, other supported children, work-related expenses, etc. For the purpose of deciding child support payment amounts, the court considers income from all sources, whether or not it is reported or taxed under federal law. The guidelines came into effect as part of an effort to make the calculation less of a judgment call and more of a mathematical equation. Income can be in the form of money, property or services, and includes wages from a job, tips, commissions, bonuses, governmental benefits, passive income, rental or business income and all other income which is available for child support. Unlike spousal support, a party’s expenses are normally not a factor in computing child support.
The net disposable income for each parent is calculated by subtracting certain items form his or her income, including taxes, union dues, health care premiums, out of pocket business expenses, mandatory retirement, child or spousal support being paid from another relationship and costs of raising children from another relationship. The State of California has developed a child support calculator.
As to new spouse’s income, if you are the paying party, the more your new spouse earns, the less you pay. If you are the receiving party, the more your new spouse earns the more your receive. Sound crazy? It’s the opposite of what most people think or expect. Why? It’s because the new spouse’s income is not directly used to calculate child support. What it does do is affect the party’s tax bracket so that the more a payor’s new spouse earns, the higher the party’s tax bracket and the less money he or she has available to pay support. Similarly, with a payee, the more his or her new spouse earns the higher the tax bracket and the more need the party has.
Certified Family Law Specialist
The State Bar of California offers California lawyers the opportunity to become certified in nine areas of law practice.
In order to be identified as a "certified specialist" in California, an attorney must be certified either by The State Bar of California Board of Legal Specialization, or an organization whose certification program has been accredited by the State Bar. (Such an organization must have requirements for certification that are at least equal to those of the State Bar's program.)
California attorneys certified as specialists must pass a written examination in their specialty field, demonstrate a high level of experience in the specialty field, fulfill ongoing education requirements and be favorably evaluated by other attorneys and judges familiar with their work.
Attorneys should refer to the State Bar's certification requirements and list of specialty areas for additional information
Memebers of the public can find a certified legal specialist in their county by accessing Legal Specialist Search.
THE ASSOCIATION OF CERTIFIED FAMILY LAW SPECIALISTS
When you choose a Certified Family Law Specialist to assist with your family law matter you have selected a person who has successfully met the high standard set by the California State Bar for education, experience, and knowledge in the field.
In pleadings seeking custody, and/or during mandatory mediation, one parent often makes all kinds of allegations and accusations against the other parent. He or she may sling mud as much as allowed, and often tries to paint the other parent as incompetent, bi-polar, angry, depressed, substance abuser, an abuser, a molestor, an alienator, etc. Since no one wants to expose the children to such a person, it can result in temporary sole custody to the other parent, random drug or alcohol testing or assessment, parenting classes, batterer’s classes, therapy, professional or non-professional visitation supervision, etc. To the parent on the short end, most often the father, it can result in years of uphill litigation with the constant involvement of mental health professionals to seek and obtain a fair and reasonable custodial time share with his or her children.
We also point out that child support is significantly dependent upon each party’s custodial time share, ie. The more time you have, the more money the other party has to pay or the less money you have to pay. In other words, in addition to the need to be with the children, factors such as control, revenge, vindictiveness, learning to believe you are a victim, and dollars – particularly dollars – are considerations in seeking custody and fighting for every day and minute and trying to exclude the other parent.
We are not suggesting any of this. This is simply the reality of family law in which nice people show the worst side of their personalities and kids become the battleground. And No, it doesn’t have to be like that, and sometimes isn’t.
There are responsible parents who know or learn how to co-parent their children, and who do not involve them in the issues and litigation. Unfortunately, there are not enough of them which is where we come in.
Domestic Violence is about power and control over another person. It is not a mere problem with anger. Rarely do you see an abuser act violently with friends, acquaintances or their boss. Abusers can act charming, loving and attentive--when they want to. Drinking, drugs, the victim’s behavior or stress does not cause domestic violence. It is learned behavior. It is learned in the home by observation and reinforcement before the age of 10. Domestic Violence happens in all races, religions and socio-economic groups.
In California, domestic violence is a crime. Criminal code section 273.5 requires criminal penalties including jail or prison and participation in a 52 week batterer’s treatment program. To meet the criteria for arrest under 273.5 the partners must be married, living together, or have a child in common and the victim must have visible injuries.
The concept of Domestic Violence (DV) in the family law context is significantly subjective and is often a tactical vehicle in an attempt to obtain custody. While there may be no doubt as to its occurrence when someone is hit, shoved, has credible witnesses, medical care or visible injuries, is sometimes difficult to prove absent independent corroboration. DV it may include threats, non-contact actions, expressions of anger and other elements deemed threatening to a party. If a person, be it a household member or a spouse, is placed in reasonable fear or apprehension of injury, domestic violence has occurred.
The Domestic Violence Prevention Act can be found in Family Code §6200 et seq.
The definition of DV is in §6211 and the definition of abuse is in §6203.
While this is not a dissertation on Domestic Violence (DV), certain points should be noted:
(a) DV is prophylactic. It is intended to prevent a recurrence of DV and to ensure a period of separation between the parties. It is not punitive in nature.
(b) DV allegations are commonplace when custody of children is involved. Many more DV allegations are made by women than by men. Studies also show that women report DV about three to four times as often as men do for sociological reasons.
(c) Family Code §3044 is frequently the motivating factor in the bringing of allegations, whether founded or fabricated. Family Code §3044 raises a rebuttable presumption that if there has been a showing of DV within five years, an award of sole or joint physical or legal custody of a child would be detrimental to the best interest of the child. In other words, if you can convince a court that the other party seeking joint custody perpetrated DV, you are significantly ahead in gaining sole custody (and a higher or lower amount of child support).
(d) DV can result in criminal charges pursuant to Penal Code §273.5. This is serious stuff and can result in loss of custody, jail time, fines, attending a one year batterer’s program, therapy, etc.
(e) A very significant percentage of DV allegations in family law cases are fabricated, exaggerated, brought with the cooperation of friends who have been divorced all of whom consider themselves experts in this area, etc. While false allegations are commonplace, unfortunately a very significant percentage of DV allegations are true and can result in serious physical and emotional injury not just to the victim, but also to minor children in the household. We are adept at both prosecuting and defending these claims.
(f) Allegations of DV, particularly marginal ones, create animosity which, in many cases, take years to dissipate. If two parents are going to be sharing their child, which they will in one manner or another for the rest of their natural lives in most cases, this creates the type of chronic hatred that affects the child’s ability to relate to both parents throughout that child’s life.
(g) "It takes two to Tango". Absent someone being under the influence, DV rarely occurs in a non-confrontational environment. People argue, goad each other, threaten each other, until one party does something to react, be it having physical contact with the other party, making a threat, screaming, kicking an object, throwing an object (often a cell phone or tv remote), etc. At that time someone will call 911, the police will respond. Sometimes, if things are very heated, the responding officers will issue an EPO (Emergency Protective Order) for one party to vacate the residence for a period of time sufficient to enable the other party to file papers in the court seeking a more permanent order or to allow things to cool down.
(h) Despite the fact that the law is supposedly gender neutral, if the police respond, we find that they will usually arrest the male rather than the female, even if both have bruises, scratches, etc. If only one party has these, the other party may be arrested. Men are far more at risk of being arrested than women.
(i) In cases of substance use, including drugs and alcohol, if a party is under the influence the police will take that person into custody. As to custody matters,
if habitual usage is established the court may order a drug or alcohol assessment and/or treatment as part of any DV orders, and may also order supervised or restricted visitation with minor children.
(j) When a party has a new spouse or significant other, the other party often finds it difficult to deal with the concept and perceived threat of someone else being in the child’s life. If mother has a new boyfriend or husband, father is concerned that, heaven forbid, the child calls him "Dad" which, we point out, is inappropriate. Usually the men get over the need to belly up and act tough with each other and before very long they may even watch football together, have a beer, etc. When a father gets a new girlfriend or wife, mother often chronically regards that person as a threat to her motherhood and the the other parent’s new partner will become a target and the embodiment of evil. While the situation may find a status quo of tolerance after a period of time, it is common that there will always be distrust and dislike, at least until that person has family problems with husband in which case they become friends and allies.
(k) We sometimes hear creative terms such as "financial abuse", the threat that the other party will be thrown out into the street and will get nothing, the threat that a spouse will take everything, and threats regarding seeing the child. Husbands often use financial threats as a weapon to control wife. None of these threats usually form a basis for DV. People get angry and say stupid things in an effort to hurt the other party. They rarely come within the meaning of Family Code §6203.
(l) If there is DV, or an allegation of DV, a party normally files a Request for Order seeking, amongst other relief, a restraining order, a stay-away order, temporary custody, temporary support, counseling or therapy for one or both parties, a "kick-out order", etc. This is often done ex parte which means without the presence of the other party. If a request for an ex parte order is filed, it can be with notice to the other party, or without notice. If it is with notice, the other party may file a Responsive Declaration within a specified time period. This may range from one to two days in most counties. If it is issued without notice based upon an allegation that great or irreparable harm will result from giving notice, the Court will consider only the moving papers and may issue, deny or modify a temporary order, pending a hearing within either twenty-one or twenty-five days or, if custody is involved per Family Code §3062, within twenty days. The law generally requires notice but in a significant percentage of cases a party, usually the wife or a female attorney, will file without notice because it is easier to score when the other team is not on the field. Judges frequently are often callous and insensitive and sign these despite the policy of the law as set forth in 5th and 14th Amendments on the theory that it is only three weeks until the hearing. For a child torn away from a parent, or for a parent torn away from a child, the Court’s do not understand that this can be a lifetime.
Domestic Violence should not happen to anybody and there is no excuse for it. Just as in battery cases, words, no matter how insulting or derogatory, do not justify putting someone in fear for his or her safety. When such threats, physical contact or actions do result in abuse, attorneys coming onto a case or a party can file a request for emergency restraining orders offering protection for victims fearing for their safety. Temporary Restraining Orders can be granted by a court within twenty-four (24) hours of being submitted to the Court and then become part of the California Law Enforcement Telecommunications System (CLETS) by which any law enforcement agency in the State of California has access to them and will enforce them.
As stated, in the family law context, the allegation of domestic violence is an all-too-common occurrence. Spouses seeking an advantage in litigation often seek domestic violence restraining orders in seeking sole and legal custody of the children, seeking to expel the other spouse from the family home, and seeking for a way to get even with their spouse. Often times these allegations are fabricated or over embellished. Issues from prior years surface, resulting in allegations of physical and emotional abuse from one-time isolated incidents. This often leaves the accused spouse having to disprove every allegation posed by their vindictive ex. In these cases, a practiced family law attorney can mean the difference between having a restraining order granted and having one denied, having one’s children on a fair timeshare or having restricted visitation, having access to the family home or being excluded, being able to possess firearms or not, obtaining or maintaining a security clearance or not, being able to enter certain foreign countries, or not, etc.
There is also a Civil Code section under the Domestic Violence Protection Act. This Civil Code section protects partners who are in dating relationships or same sex relationships. In some cases, no visible injuries have to be observed by an officer to warrant an arrest. Remedies for domestic violence include Criminal Charges, Restraining Orders, Civil No-Contact Orders, and monetary penalties against the offending party.
The bottom line: Control your anger. Walk away rather than respond. No threats. No hitting or pushing. Don’t do anything in the presence of your children to scare them. Don’t make derogatory remarks about the other party in the presence of children.
If you need protection, or if you need to be defended against such an order, we are competent, capable and experienced in all areas of Domestic Violence. Mr. Weisinger has thirty-nine (39) years of experience in handling family law matters and has the ability to deal with these circumstances in an effective manner.
Spousal support has two different standards, depending upon whether the order is a temporary order or a permanent order. Temporary orders are set by the same computer programs that are used to calculate child support, but the factors considered vary from child support and the court may deviate from the guideline figures. Unlike child support, a party’s expenses and ability to meet those expenses are considered by the court, as reflected by the evidence including a party’s Income and Expense Declaration which is a required form. When the time comes for the court to determine permanent support, it is prohibited from relying upon the guidelines and must independently consider each of the criteria set forth in Family Code Section 4320, including the marital standard of living, earnings and earning capacity, job skills, duration of the marriage, time away from work to raise a family, age and health of the parties and instances of domestic violence. It also includes the admonition that the goal is for the supported party to be self-supporting within a reasonable period of time.
Should a party be unemployed during the pendency of issues on spousal support, courts are liberal in granting Gavron Warnings also known as seek work orders. These orders usually demand that a party spend no less than 30 hours per week seeking work and maintaining a journal of all efforts to obtain employment.
When a parent has a variable income, such as someone who is on commission or who receives periodic bonuses, we have a mechanism to determine accurate (guideline) support. We use the lowest amount the paying parent is expected to receive on a monthly basis and run the support calculations which give us base support. We then add $1000 to that parent’s monthly income and again run the calculations. If, hypothetically, adding $1,000 per month results in increased child support of $128 per month that is the equivalent of 12.8%. Child support is then the base support plus 12.8% of anything on a monthly basis in excess of this. The figure is also adjusted if the other party has a change in income. Child support is strictly income driven and we do not normally consider expenses. There are special adjustments that can be made for parents who have a very low income or an exceptionally high income.
Permanent support is not “permanent” within the normal definition of the word. “Permanent” in regard to family court orders normally means that, in order to seek or obtain a modification, there must be a showing of a material change in circumstances since the prior order, as a pre-requisite.
High Conflict Cases
Unlike many attorneys – the more normal ones – we do not shy away from high conflict litigation cases involving custody or property issues or false allegations. That is why many of our cases come to us on referral from other family law attorneys. We well understand the nuances of family law litigation and that we are dealing with egos, emotions, the need to control, vindictiveness, retribution, domestic violence, family interference, alienation, disputes between former and current partners, hidden assets, and the myriad other machinations and consequences of a relationship gone bad. These are day to day issues for us.