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It’s Spring Break. Who Gets The Kids?

In a perfect world, Spring Break will be decided, along with all other holidays and vacations, well before the actual dates arrive. That way everyone knows where they are supposed to be.

Here are the basic rules regarding shared custody:

The children’s health, safety, and welfare must be protected.
The arrangement must be in the children’s “best interest.”
The custody order must assure the children have frequent and continuing contact with both parents.
The “custodial timeshare” needs to be fixed and predictable.

In simple terms, there needs to be a plan that focuses on what is best for the children. It needs to be fixed and predictable so you, your ex, and the children know where to be and when to be there. The reason for this approach, which feels very rigid at first, is to diffuse the power struggle that exists in nearly every divorcing family.

Children as young as three years old have some idea of time and respond well to a schedule. Children do well when they know they can count on Mom and Dad to show up when they need them to. They do well when they know whether Mom or Dad will be dropping them off at swimming that day.

It is not a perfect system, but in my opinion, we are way better off than when I first started practicing family law. In those days, back when I was wearing shoulder pads and pantyhose, the law guaranteed a contest, if not a full legal battle as the court had to decide which parent was “fit” and which parent was “unfit.” The children were not the focal point of that contest, the parents were.

So assuming it’s your year to spend Spring Break with your children, please enjoy them and your trip to Disneyland.

Ellen F. Driscoll is a Divorce Attorney in Pasadena, California. Ellen is certified as a Family Law Specialist through the Board of Legal Specialization of the State Bar of California.

Do You Need an Emergency Order for your Divorce?

Fear, anger, resentment, and retribution often drive a divorce case, particularly right after the papers have been served. Your partner may have taken all the money that was in your joint accounts. Your partner may be refusing to allow you to have visitation with the children. Your partner may have told you that she is moving far away and going to take the children with her. Your partner may be interfering with your peace of mind by constantly emailing, calling, or showing up at your home or work. You probably want to go to court tomorrow to ask the judge for help.

The family law court will generally make orders after a procedure is followed which requires the party requesting the relief to give the other party proper notice of that proceeding. That notice is required to be provided about one month before the proceeding. This notice requirement had its genesis in the due process clause of the Constitution. It would not be consistent with our ideals for a court to make orders that affect people’s parental or property rights without giving those people a chance to put forth their position.

An exception to this rule is when such harm is being done that when brought to a court’s attention the court can make immediate orders. These emergency orders are called Ex Parte orders. These orders remain in effect until there is a full hearing on the requested relief. A victim of domestic violence can obtain an emergency temporary order from the police and then can proceed to the family law court to seek further protection as may be necessary.

So when is this emergency relief warranted?

It’s available in a very limited number of cases. The court can make emergency orders if they are necessary to prevent an immediate danger or irreparable harm to a party or to the children involved in the matter, or to help prevent immediate loss or damage to property. Immediate harm includes physical and sexual abuse of children or immediate risk that a child will be removed from the State of California.

Some examples of good reasons to file for an emergency order are:

The other party is moving or has moved out of the state with your child without your permission
You and/or your child have been physically and/or sexually abused by the other party
The other party is selling or disposing of important community property assets
The other party refuses to give your child life sustaining medication
Escrow on a property is closing and the other party is going to take all the funds

Some examples of not so good reasons to file for an emergency order are:

You want to go on vacation with your child and the other party will not cooperate with you
Your child does not want to go with you for visitation
The other party will not give you access to one of your vehicles
The other party has not paid you child support or spousal support
Your child is going to get his/her body pierced
The other party insists on attending your child’s soccer practice during your visitation time
The other party has taken your child to McDonald’s

The specific facts of your situation will determine whether your case warrants emergency relief. It is probably a close call. Just because your situation may not warrant an emergency order does not mean that it is not important. It does mean that you need to follow the proper procedures for a noticed proceeding. This allows the court to hear both sides and make a decision accordingly.

Ellen F. Driscoll is a Divorce Attorney in Pasadena, California. Ellen is certified as a Family Law Specialist through the Board of Legal Specialization of the State Bar of California.

Maintaining the Status Quo in Your Divorce; Overcoming it in Your Life

When you go through a divorce you will become familiar with the phrase “maintain the status quo.” It is probably one of the first rules you will learn about from your lawyer or a judge. It means don’t steal from the person you are divorcing. Don’t hide money. Don’t do anything unusual that will not be accepted by the Court or the other side. It applies to kids too. Don’t hide them. Don’t keep them from the other parent. Don’t change their schools. Don’t go on trips to Europe or send the kids away without letting the other parent know where they are going.

In other aspects of life, my advice is don’t maintain the status quo. Do one thing every day that scares you. That’s what my heroine Eleanor Roosevelt said.

Learn something new or take on a new project. That app for your computer that you are afraid to try is waiting for you. That pilates class that looks like torture is calling your name. Big or small it doesn’t matter…but it has to be something that you are at least nervous about.

I see a lot of people that let themselves get too comfortable and it costs them dearly. They looked the other way too many times when their partner made bad financial decisions, didn’t come home, or abused them. They never confronted their partner about him/her never wanting to have sex. They put up with way too much, figuring that it is just “cheaper to keep them.”

It’s not. It’s like deferred maintenance on your house; you end up taking care of it inevitably–why not do so now so you can enjoy the new bathroom tile as opposed to waiting until you sell it when your broker makes you re-do it.

So get going. Every day there is something or someone that comes along that makes us feel unsure of ourselves. Take that first step. You will be surprised how far you will go.

Ellen F. Driscoll is a Divorce Attorney in Pasadena, California. Ellen is certified as a Family Law Specialist through the Board of Legal Specialization of the State Bar of California.

To Half and to Hold: Prenuptial Agreements

People call me all the time to ask about prenuptial agreements.

What are they? Who needs one?

Ask yourself why you think you may need a prenuptial agreement.

Do you need to protect the interests of your children who are from a previous relationship in the event you divorce?
Are you marrying someone who has a lot more money than you, or is likely to inherit a lot of money?
Are you young and come from an affluent family and your parents are telling you that you need to get one?
Does your fiancé have a lot of debt? (Beyond student loans as those are exempt from California community property division.)
Do you have a business that is likely to grow?
Were you burned in your last divorce and vowed never to let that happen again?
Do you have relatives with special needs that you need to support?
Do you have a fundamental non-belief in paying (or receiving) spousal support?
Do you own patents, movie rights, manuscripts, songs you’ve written or recorded? Are you a writer? Are you an actor who will receive residuals?
Life insurance: Do you intend to get any and name your partner as beneficiary? Is that important to you? To him/her?
Do you own a house that your fiancé is moving into? Are you going to make payments on that property during marriage? How is title held?

By no means is this list exhaustive. There is no formula for a prenuptial agreement. It is unique–it is about you. Your life which now is going to be forever shared with The One. At least that is the goal. Until it isn’t; and that is not when you want to first be looking up the word prenuptial.

Most people would benefit by doing a few things before they take those vows:

Learn what a prenuptial agreement is and what it is not.
Next, ask yourself honestly if you think you want or need one.
After completing steps 1 and 2, talk with your intended partner about this.

It is critical that you do these steps in the right order. Most people don’t. They approach it in reverse which is exactly what you should not do. Don’t be one of those people. Nothing gets resolved. Feelings get hurt and the topic is buried forever.

You don’t necessarily have to get a prenuptial agreement as the law may give you all the protection you need without one. But you do need to learn about these agreements. You have to discuss it with your intended life partner and then make a decision together. You need to do this at least six months before you get married. You need to talk about money. You need to admit that you don’t know how to talk about money. You need to do it anyway. Talk to a lawyer and a financial advisor–not your best friend, or your brother, or the guy at the gym. Someone qualified. Talk to more than one professional person. Once you get the information in front of you this decision will become a practical one. The fear that results from ignorance will be gone and sanity can guide you.

You have to decide a lot of big things:

Kids? Working parents with childcare or stay-at-home parent? Where are you going to live? Vacations. Religion(s). Dog and/or cat.

These are elephants in the room that do not magically disappear on their own. Do yourself, your fiancé and your marriage a huge favor. Tackle the elephants head on.

It’s worth it. Your fairytale awaits. Make it a happy well-informed one.

Ellen F. Driscoll is a Divorce Attorney in Pasadena, California. Ellen is certified as a Family Law Specialist through the Board of Legal Specialization of the State Bar of California.

WHAT IS THAT “SECRET” TO SUCCESS?

Victory.

It comes in all shapes and sizes. It seems to always include one common ingredient: hard work. I am thrilled with some recent victories and grateful to be a part of them.

1. SETTLEMENT OF A VERY DIFFICULT CASE

It was the day Los Angeles got rained on in droves. To get to court we had to take the train as the freeways were flooded. My client had waited years for this day. The case had dragged on for far too long for all of the reasons that can cause that to happen: many complicated assets to sort through, other lawsuits, court delays due to budget cuts.

The forensic accountants and attorneys were ready to litigate it all: to fight for what his/her client was entitled to. We had spent more than two years preparing for this day. I was excited for the fight.

A magical thing happened: we were assigned an excellent judge who had all the time we needed. The parties were ready: ready to accept less than what they thought they deserved or ready to pay more than they thought they should pay. The parties were ready to listen. The judge was realistic, fair, and exceptionally kind.

It settled. The parties were visibly relieved.

2. 2014 LOS ANGELES MARATHON

I love running. I love to “just do it,” watch it, and cheer for it. This race was thrilling for a very special reason.

My nephew and godson, Matt, came from New York to run the Marathon. He is finishing law school and is employed at a firm in New York City where he works primarily on family law cases. To say we have much in common is an understatement.

Nephew was humble and happy and very grateful that his Mom and I were there with signs and cheers and tears shed in his honor. He patiently tolerates our need to constantly tell him how much we adore him.
Matt never mentioned how hard he had trained in frigid temperatures and all the early mornings he spent at a torture chamber known as Boot Camp, or how he somehow manages to fit this all in between law school classes and his fulltime job.

Matt is just there to run fast. He is remarkably good at it. He finished 598th out of more than 21,000 runners. Is his Aunt proud? Heck yes.

3. THE “SECRET” TO SUCCESS

That one common ingredient really is the ticket to success. Victory comes after lots of hard work and dedication, followed by more hard work and dedication.

Congratulations to my client and to Matt. Enjoy your victories. They were very well earned. Thank you for letting me share in your glory.

Ellen F. Driscoll is a Divorce Attorney in Pasadena, California. Ellen is certified as a Family Law Specialist through the Board of Legal Specialization of the State Bar of California.

Olympic Glory: Medal Counting

I thought we weren’t supposed to focus on one country’s medal count over the other. I thought the Olympics were supposed to be about nonpolitical, universal sportsmanship – a chance for the athletes to break down barriers by doing their absolute best. When did all that get thrown out? I am wondering if that ever really existed.

In 1984 Los Angeles proudly hosted the summer games. Peter Ueberroth proved it could be done within a budget; with at least a few permanent programs left behind to maybe enhance some kid’s athletic dream. Think Pasadena’s Rose Bowl Aquatic Center.

I got to “participate” in the games by being a volunteer at the Santa Anita Race Track for the equestrian events. We had outfits designed by Levi Strauss that were similar to those our athletes wore walking in the Russian opening ceremony. I loved that uniform then; now, not so much.

As hosts we were told not to smoke, swear or chew gum. We were taught that in some cultures people do not want to be looked directly in the eye. Our job was to stand in our uniforms and help people find their seats. We met Princess Anne. We only rooted for the American riders even though we were told that was not what the Olympics were about. We were clearly into counting the medals.

Maybe all those athletes and hosts that are in Russia now feel that sense of pride and patriotism that I felt. I hope so. I am not sure of the current medal count. I just hope we are winning.

If you ever go to court in a contested divorce case you are likely to hear that there are no winners in divorce battles, particularly when it comes to the kids. The message is a good one for both the lawyers and the litigants to keep in mind. In the rare case when everyone really listens to that message it encourages compromise and can result in the parties participating in the process; it’s even possible that all are satisfied with the outcome. In my experience this does not happen as often as it might. I think there is a culture of medal counting.

Ellen F. Driscoll is a Divorce Attorney in Pasadena, California. Ellen is certified as a Family Law Specialist through the Board of Legal Specialization of the State Bar of California.

BE MINE (or not)

Valentine’s Day comes every year whether we welcome it or not. It ignores the fact that some may be in some stage of divorce. At times it can be completely heartless.

Holidays are great except for those times when reality fails to match up with any of the greetings offered on the card rack:

“You’re my everything.”
“To my loving Wife/Husband,”
“You complete me.”

None are appropriate right at the moment. Just not feeling it.

What about a little reality? Something along the lines of:

“So happy you’re gone.”
“Life is better without you in it.”
“Thanks for the kids and for leaving us.”

I am sure these suggestions are tame compared to many floating through the minds of the newly-divorced, in the middle of the never-ending divorce, and about-to-be divorced public.

A quick glance at Wikipedia reveals that the true origin of Valentine’s Day is centered around martyrdom which did not involve candy, flowers, promises or mad scrambles to make dinner reservations.

The legends and myths are many. Perhaps the best known centers around a Roman guy named Valentine who was about to be executed. He was rebellious and determined. He worked hard to convert people to Christianity and secretly married soldiers who were forbidden to go down that path, as they were better at fighting if left single. Valentine’s vocations cost him and he was about to meet his maker. Before his execution he cured the jailer’s daughter of her blindness. She planted a pink blossomed tree in his honor.

So the story goes.

Somehow this morphed into a billion dollar event where we are told to buy stuff to prove we love each other. I think curing blindness and performing secret marriages for love-struck soldiers warrants rewards, including chocolate, flowers, and maybe even some jewels.

I confess to loving it, along with all the hype and sugar it offers. If nothing on the card rack fits your life today, perhaps remember Valentine’s Day is a chance to tell your BFF you love her or let your long-lost nephew know he’s your hero.

Ellen F. Driscoll is a Divorce Attorney in Pasadena, California. Ellen is certified as a Family Law Specialist through the Board of Legal Specialization of the State Bar of California. You can find out more about Ellen’s law practice at her firm website ellenfdriscoll.com.

Waiting

Waiting.

There is much of that while going through a divorce. You wait your turn at Court. You wait for your lawyer to return your call. You wait for your ex-spouse to respond to your settlement offers. You wait for the support check to arrive. You wait for escrow to close on your old house and the new house.

The problem with waiting is it reminds us that we cannot control everything we face; we cannot control the timeline to get this done.

Most people want their divorce over before I meet them. I understand that.

Here’s my favorite poem about waiting:

Waiting

Serene, I fold my hands and wait,
Nor care for wind, nor tide, nor sea;
I rave no more ‘gainst time or fate,
For lo! my own shall come to me.

I stay my haste, I make delays,
For what avails this eager pace?
I stand amid the eternal ways,
And what is mine shall know my face.

Asleep, awake, by night or day,
The friends I seek are seeking me;
No wind can drive my bark astray,
Nor change the tide of destiny.

What matter if I stand alone?
I wait with joy the coming years;
My heart shall reap where it hath sown,
And garner up its fruit of tears.

The waters know their own and draw
The brook that springs in yonder height;
So flows the good with equal law
Unto the soul of pure delight.

The stars come nightly to the sky;
The tidal wave unto the sea;
Nor time, nor space, nor deep, nor high,
Can keep my own away from me.

John Burroughs

Ellen F. Driscoll is a Divorce Attorney in Pasadena, California. Ellen is certified as a Family Law Specialist through the Board of Legal Specialization of the State Bar of California.