What Is a Postnuptial Agreement and Why Should You Consider One?

While the idea of a prenuptial agreement may not have even been on your radar as you got engaged and started your life with your spouse, we all know that circumstances in life change through the years.

The family law attorneys at Azemika & Azemika have been providing expert service to Kern County for over 28 years. Our clients have peace of mind knowing that they are receiving knowledgeable representation at an affordable cost.

Today, we will discuss what a postnuptial agreement is and why you may want to consider one.

How Long Have Postnuptial Agreements Been Around?

Before the 1970s, postnuptial agreements were not usually enforceable. When a couple was married, for legal purposes they were considered a single person, and a single person can not enter into an agreement with themselves.  

However, as more couples began pursuing divorces and more states began establishing “no fault” divorces, postnuptial agreements became more extensively enforced.

Why Would Someone Need/Want a Postnuptial Agreement?

In the past, like prenups, postnuptial agreements tended to have a stigma attached to them. They have often been viewed as “encouraging” divorce. However, just because a couple is entering into a postnuptial agreement doesn’t automatically mean they are thinking about divorce.

Here are some reasons that a couple may enter into a postnuptial agreement:

  • To clarify what each party’s intentions are for the property they brought into the marriage.
  • If a spouse has children from a previous marriage/relationship and they want to make sure that particular assets get passed on to those children.
  • One spouse has been irresponsible financially or has gotten into legal trouble during the marriage.
  • If one spouse receives an inheritance, wins the lottery, or encounters another type of financial windfall.
  • If one spouse leaves their job to stay at home to care for their children, a postnuptial agreement can ensure that they will have the resources they need financially if the marriage were to end in divorce.

What Provisions Are Included in a Postnuptial Agreement?

Prenuptial and postnuptial agreements typically include the same types of provisions.   The primary difference is that a prenuptial agreement is entered into before a couple is married, and a postnuptial agreement is entered into after the couple is already legally married.

Typical items included in a postnuptial agreement are:

  • Protection from debts that your spouse has incurred
  • How mutual debt and assets will be divided
  • Provisions for children from prior marriages or relationships
  • Whether one spouse will pay spousal support and for how long the payments will continue
  • The ownership of businesses, property, family heirlooms, or inheritances
  • How assets will be handled in the event of the death of one of the spouses during the marriage

Postnuptial agreements can also include custody and child support if the marriage ends.  Sometimes, however, if the courts determine that the postnuptial agreement tries to restrict or limit child support or parenting time with children, they may not enforce that part of the agreement.

What Are the Different Types of Postnuptial Agreements?

There are three different types of postnuptial agreements in the United States.

Dividing assets and providing for spousal support – This is the most common type of postnuptial agreement.  It lays out how assets and debts will be split in the case of a divorce.  Spousal support is also addressed, as well as if one spouse waives spousal support in place of certain marital property.  This type of agreement includes property brought into the marriage by each spouse and any property acquired throughout the marriage.

A way for each spouse to waive spousal rights in the event of the death of their spouse – This type of agreement will supersede a will or state laws that give spouses certain property rights.  When signing this type of agreement, each spouse waives their rights to inherit property or other assets of the deceased spouse.

Provide a layout that can later be used as a separation agreement – This agreement spells out how custody, child support, and spousal support are to be handled and how the couple’s assets and debts will be divided.  This type of postnuptial agreement can be integrated into the divorce decree, limiting the time and cost of a divorce.

Let the Professionals Help You With Your Postnuptial Agreement!

Although no one wants to think of their marriage ending in divorce, a postnuptial agreement can help you avoid the burden and extra stress of hashing out the details in a very emotional and trying time in your life.

At Azemika & Azemika, we focus solely on family law so you can know, without a doubt, that your family law issues are in good hands.  Our clients can expect superior service from attorneys and staff that care about their needs.

Contact us now to schedule your consultation and see how Azemika & Azemika can help you!

Do Mothers Have More Parental Rights Than Fathers?

If you are a father who is in the midst of a separation or a divorce, you may be wondering if you even have a chance to gain custody of your children. Often, fathers are under the assumption that the custody of their children will automatically be granted to the mother. This is untrue.

While it is true that the courts often leaned towards awarding custody to the mother in the past, the state’s views have changed, and there is no longer a preference of women over men in granting custody.

At Azemika & Azemika, Kern County family law practice, our attorneys have a combined total of over 56 years of experience in family law. Our practice strictly handles family law cases, so you can rest assured that you’re in good hands.

How Was Child Custody Decided In the Past?

In the past, men were generally expected to be the breadwinner of the family, while women were typically expected to stay home to care for the house and the children. Due to this being the expected cultural norm, when a couple pursued a divorce, it was very common for the mother to gain custody of the children.

Custody Laws Today

Many women, whether married or single, work outside of the home, and more men have begun staying home and becoming the primary caregivers to their children. In most cases now, both the mother and the father contribute to finances as well as raising their children. 

As familial responsibilities have changed, laws have changed as well. Scientific research has suggested that children fare better when both parents are actively involved in their lives. Courts now promote participation from both parents when deciding custody.

Why Don’t More Dads Have Custody?

Looking at the divorced couples that you know, it may appear that mothers are still the primary caregiver, and statistically, they are. You may be wondering how that is possible if there is not a bias in family court. The majority of the time, the courts are not who decides who has how much parenting time.

In over half of custody cases, the parents decide that the mom should have primary custody of the children without the court’s intervention. Only a small percentage of child custody cases ever go to trial, and very few go entirely through the litigation process. This means that family courts are usually not deciding who the primary parent should be. Typically, the parents are the ones deciding that the mother should have primary custody.

It is also possible that fathers do not pursue custody because they believe they will be discriminated against in court or simply don’t want to put themselves and their children through the process. The bottom line, however, is that statistics simply do not indicate that there is a bias in the courts toward awarding custody to a female parent versus a male parent.

How to Take Advantage of Your Rights as a Father

The excellent news for fathers is that if you choose to assert your child custody rights, the laws are on your side. Shared parenting is normally what the courts lean towards unless extenuating circumstances exist. It is absolutely possible for you to be awarded equal parenting time.

If you were married to the mother of your children when the children were born, you are generally assumed to be the legal father of the children, so it will not be necessary to establish paternity first. You can petition the court for custody arrangements as part of the divorce proceedings. If the divorce has been finalized, you can ask for a modification to the custody arrangements to allow for more time with your children.

If you were not married to your child’s mother, you might have to take steps to establish paternity. Once paternity has been established, the same rules apply as above. And even if you are an unmarried father, you have equal parenting rights as the mother.

It is important to know that research suggests that children do better when their fathers are involved in their lives. If you genuinely want to be part of your child’s life, take the initiative to ask for a custody arrangement that will allow you to participate.

Need Help Asserting Your Parental Rights as a Father? 

When facing a custody battle, you need the best representation possible — a lawyer that knows the judge and court as well as one who can help you fight for your rights as a parent who wants what is best for their child. 

Azemika & Azemika Law in Bakersfield has helped families navigate divorce and child custody cases for more than 30 years, providing strong trust behind their legal guidance. 

For a family-oriented firm at an affordable cost, contact Azemika & Azemika Law today.

Should You File for a Divorce or Legal Separation in California?

Should You File for a Divorce or Legal Separation in California?

Are you considering filing for divorce in the state of California but unsure whether there’s a better option? Maybe you’ve heard that filing for a legal separation would be best, but what exactly are the differences between the two.

Divorce and legal separation are both serious legal matters. But, when you’re already preoccupied and attempting to navigate a rocky marital situation, having to figure out your best course of action can be even more distressing.

Knowing the details about each process can help you make a more informed decision regarding your future. Today, we will take a closer look at the details you need to know to help you decide whether a divorce or legal separation is a better option for you in California.

What Is a Legal Separation

Both divorce proceedings and legal separation proceedings begin with a petition filed to either dissolve the marriage (divorce) or invoke a legal separation between the two married people.

A legal separation agreement is a document that details things such as how you and your spouse will split your property, custody arrangements for your child(ren), and how you will pay for things during the legal separation process. This document is important during a legal separation, but it is also commonly one of the first things arranged during the beginning process of a divorce.

When you obtain a legal separation, you are still technically married. When you are legally separated, it means that you cannot remarry unless you convert your legal separation into a divorce. In a legal separation case, you still have to declare your assets and settle custody issues just as you would in a divorce case. 

How Are Divorce and Legal Separation Similar?

In both divorce and legal separation cases, both parties must disclose their assets and agree to custody arrangements set by the court. Property, as well as assets, are usually divided between both parties in a legal separation.

The two processes are very similar, save for the outcome. In a divorce, your marriage is dissolved, and you may have limited access to your ex-spouse’s future retirement income. 

Why Would I Consider Legal Separation?

In California, you must have been resident in the state for at least six months and a resident in the county where you are filing for divorce for at least three months. This residential requirement must be met by one or both parties for a divorce to occur.

  • There are no residential requirements or ‘cooling off’ periods required in a legal separation. Because there is no waiting period for a legal separation, it may be a better option for someone who has just moved to the area.
  • Some people have very personal reasons for wanting to avoid a divorce. For example, certain religions frown on divorce, and one or both parties may wish to avoid the stigma of being legally divorced. Others may simply want to avoid being called a divorcee.
  • Occasionally, couples choose legal separation to try and keep healthcare benefits for the spouse of the insured. However, legal separation isn’t a guarantee that the health insurance provider will have to keep the spouse covered, so this can be a risky plan.
  • If you are legally separated, you may still be able to file taxes as a married couple. Filing this way could help you with certain tax breaks.

Are There Negatives to a Legal Separation?

A legal separation isn’t a ‘clean break.’ Because your marriage has not been dissolved, you can’t legally remarry. And you are still financially tied to your spouse despite being separated. 

Since you are technically still married, you could be liable for your spouse’s tax debts. If they fail to pay their taxes, the IRS might come looking for you to pay it. If there is no financial benefit for either party under a legal separation (and there is no chance of reconciliation), it may be a better option to file for divorce instead.

For most people, a legal separation is simply the necessary first step towards a divorce. If you are sure that you want out of your marriage, a legal separation will only prolong the process.

Let Us Help You Navigate Your Separation

Divorce and legal separation are both difficult and draining processes. With so many moving parts and conflicting emotions, trying to map out your best legal options can be extremely difficult.

At Azemika & Azemika, we are dedicated to the practice of family law. We have seen numerous legal separation cases, divorce, custody matters, and many other family law issues. We can help you navigate the course of your legal proceedings so you can focus on healing your family.

Contact us today for a consultation, and we will work with you to determine the best option for you and your family’s future.

Common Mistakes Made During a California Divorce

Common Mistakes Made During a California Divorce

Divorce is a life-changing decision that can have a significant effect on your life. Even if your divorce is amicable, mistakes happen that can impact you forever, especially when there are children involved. If your divorce is not amicable, you may face complex legal and financial issues, hurt, anger, disputes, and other issues. 

The divorce process can be complicated and messy if you’re trying to do it on your own. There are forms to file, deadlines to meet, and court hearings to prepare for. You don’t want to make rash decisions, or show up with incomplete information, as this can lead to significant issues that you may or may not be able to resolve down the road.

If you’re considering divorce, you need to be aware of mistakes that can be avoided during the process. Here are five mistakes to avoid during a California divorce.

1. Rushing To Get It Over With

You may think that just getting the divorce done and over will save you time and money. But you may end up with a divorce judgment that you’ll regret later. Take your time and work out a mutually beneficial agreement. It’s critical to negotiate during the divorce process so that all parties leave the table satisfied.

Getting a divorce is a process. It doesn’t happen overnight. First, you need to review the terms of the divorce and understand all the details. Once the divorce is final, there are some details you can’t ever change. If you’re not sure that you understand all the details, Talk to your attorney. Going a divorce alone simply isn’t a viable option, especially in California, where property and alimony are such crucial factors.

2. Not Identifying Separate Property

California is a community property state. This means that even though the assets you and your spouse acquired during your marriage are subject to being distributed between the two of you, assets you acquired before the marriage are not. If you don’t identify assets you had before your marriage, they may be distributed along with the rest of the property.

Note: In some circumstances, there are assets acquired during your marriage that qualify as separate property. In the same vein, there are assets owned before the marriage that become community assets. For example, retirement accounts and privately held businesses may have both separate and community property components. It’s best to speak to an attorney to determine the distribution of all assets.

3. Unrealistic Expectations

Divorce is all about negotiation. This means both partners need to manage their expectations. If there is an issue you cannot agree on, you’ll end up in court. Negotiations outside of the court allow you to reach a middle ground that works for both parties. When you’re negotiating, try to be reasonable and practical with your expectations.

Remember, getting a divorce means that you’ll have less than you did during your marriage. If you expect to take all the marital assets, have no debt, and your attorney fees covered, you have unrealistic expectations. You need to decide which issues are worth the time, energy, and expense of possible litigation to adjust your expectations and save money on your divorce by avoiding court.

4. Assume Key Issues Will Resolve Themselves

A divorce is not an event to be passive about, and issues won’t resolve themselves if you don’t discuss them. It may mean difficult conversations and uncomfortable situations with your ex, but they need to happen. You need to make informed decisions because they will affect you long-term if you unknowingly give up too much in the divorce. When you delay or ignore the necessary steps to resolve issues can make your situation even hard and more stressful.

5. Posting Sensitive Information Online

You may be tempted to post about your divorce on social media. Resist posting your thoughts, feelings, and experiences about the divorce online at all costs. If you feel you can’t, you may want to not use social media until the divorce is finalized. There are things about your divorce and life that may become public record when posted on social media. Even if you think your account is secure, a private investigator may still access the information you post.

Things you post online can be distorted and be subject to scrutiny by people who don’t need to be involved. Even things that don’t seem directly related to your divorce can have a significant impact. For example, if you purchase a new TV, this information can end up as evidence and be used as proof that you have money to pay child support or even alimony.

Protect Yourself By Hiring An Attorney

No matter how amicable you think your divorce is or will be, there are still situations that could arise and cause conflict. Negotiation, separation of property, child support, and alimony all play significant parts in any divorce. Avoid costly mistakes that could have severe impacts on the rest of your life.

At Azemika & Azemika, our law firm is exclusively devoted to the field of family law. We handle divorce cases, dissolution of domestic partnerships, child custody, visitation, child and spousal support, paternity, abandonment, and adoptions. Our partners at Azemika & Azemika will put their expertise to work for you and make sure your case is customized to your needs. Contact us today for your free case evaluation.

How Fast Can I Get a Divorce in California?

It’s not uncommon for spouses to be in a hurry to get through the divorce process. Depending on the separation circumstances, they may be in quite a hurry to move on with their lives. Whatever the reason, people often feel that they can’t wait to get their divorce behind them, and it’s one of the most common concerns divorce attorneys hear the most.

So how fast can someone get a divorce in California? According to California divorce laws, couples can only get divorced if they’ve lived in the state for at least six months. Bar that, the only other factors are how quickly you and your spouse can agree to the issues addressed by divorce. Here are some of the events that can speed up or (slow down) a California divorce.

Incomplete or Improperly-Filed Paperwork

Many people seeking to divorce as quickly as possible believe the first step is to file the relevant paperwork with their court. They may feel such a hurry that they do this themselves. Unfortunately, this approach often creates the first costly hurdle in expediting the process.

The first step should instead be to seek out an experienced family law attorney. A California family law attorney will make sure everything is filled out and filed correctly on your behalf. Any errors you make with the paperwork will delay the remainder of the divorce process and only serve to drag out the process and make it more costly than it already is, so save yourself the trouble and contact legal counsel early. 

Even if you do complete the initial paperwork on your own, an attorney can help you in other areas of the divorce, especially if you and your spouse aren’t on the best terms and communication breaks down (as if often does at one point or another during the process). 

You’re also required to serve notice to your spouse that you’ve filed for divorce, which you can do on the same day you file. From here, your spouse has thirty days to file a response. If they respond, and how they respond, could set a trial in motion. If they choose not to respond, a judge may make a default judgment. However, California has a mandatory six-month waiting period starting from when you serve your spouse before a judge’s decision goes into effect. That means that even a quick ruling won’t go into effect until that six-month period ends. 

Disagreements Between Spouses

When it comes time for the division of property in divorce, California follows community property standards. The law defines community property as any assets (including property and income) that either party in a marriage acquired during the marriage. With community property, the division of property in a divorce sees each side getting half the total value of all assets.

Commingling property complicates this and is often where disagreements emerge. Property is commingling if its ownership can’t immediately be defined. The property you owned before getting married remains yours, but other circumstances can complicate matters. Often, this happens when one spouse helps another make payments for something, or they agree to share something before getting married.

You and your spouse can avoid commingling property issues if you can agree on how to separate property. California courts allow for couples to draw up their own agreements to split assets. However, an inability to cooperate will lead to even more delays as the judge and lawyers try to sort it out.

The same thing can occur with child custody disputes, child support, and alimony payments. In all of these instances, couples can work with their lawyers to draw up their own agreements and have them approved by a judge. Not doing so leads to an extensive discovery process designed to give the judge the most evidence possible so that they can make an appropriate ruling. 

Maintaining communication, no matter how difficult, is essential to resolving your divorce as quickly as possible. If you find you can’t cooperate with your spouse, your lawyers can work as mediators. If you are unable to work with your spouse to reach amicable agreements for some reason, it falls on the court to do its work. Unfortunately, there’s no timeframe for how long it has to take and no guarantee that the court will do it quickly. 

Disrupting the Process or Not Cooperating

It may sound similar to the previous point, but it’s very different. Instead of focusing on how you communicate with your spouse during proceedings, we’re talking about your attitude. How you act towards anyone involved in the divorce can have consequences, including slowing the whole process down.

People know that they shouldn’t be combative during their divorce, but it’s still an emotionally trying time for everyone involved. Still, it would be best if you practiced controlling yourself. Lashing out at others or being defensive only serves to interrupt things. In particularly bad cases, being combative will cast you in a poor light and likely affect the final ruling.

You should also be concerned with how you interact with your lawyer. You’ve hired them to help you, but they may choose to stop providing their services if you don’t treat them with respect. You also need to be honest with them. With issues like child custody and property and divorce, clients sometimes hide relevant information to protect themselves or try to skew the final verdict in their favor. Doing so not only leads to a lengthier discovery process but can convince your lawyer to leave your case.

The key to getting your divorce settled is to work with the proceedings. Do what’s asked of you by the judge and your lawyer. Don’t do anything to obstruct the proceedings or could be seen as trying to derail things. If you have pressing concerns, address them to your lawyer in private.

Notes On Uncontested Divorce

A divorce trial only happens when your spouse files an objection after you initially serve them. If they agree to the divorce, you can avoid a trial entirely. Remember that you still need to wait through the six-month grace period before it’s official, but if you want a fast divorce, an uncontested divorce is ideal.

If you and your spouse agree to divorce before you file, you and your lawyers can also work out agreements beforehand to make the process even faster. Your lawyer can help finalize arrangements before presenting them to a judge. If accepted, there won’t be a trial.

Azemika Law Can Help You

If you need help understanding the complexities of California divorce laws or would like an experienced attorney to help you work through divorce as efficiently as possible, call on our attorneys at Azemika & Azemika
We are experts in Kern County family law who bring compassion and honesty to everything that we do. We’ll treat you and your family with respect and confidentiality as we help you achieve the best outcome possible. Contact us today to learn more about our expertise and what we can do to help you.

Divorce, child custody, and your child’s best interest

What is the most stressful part of a divorce? The response changes from case to case, but for parents the answer will undoubtedly be child custody. 

Fear of hurting their relationship with their children, having their parenting scrutinized by a judge and fear of losing their child to the other parent entirely are but a few factors that make divorce proceedings so difficult for parents.

If you are soon going through a divorce (or currently are), you can save yourself, your child, and your spouse a lot of distress by working out a child custody and visitation agreement right away. Here are some considerations when working out such an arrangement.

Best Interest of the Child

At the heart of every custody dispute is one matter: what is in the child’s best interest. It’s common that divorcing spouses allow bitter feelings to make every issue about themselves. When it comes to your child, a judge will make a decision based on the child’s needs, not yours.

Unless there is evidence of abuse, neglect, or irresponsibility, a child will get to spend time with both parents. How that gets divided will vary based on multiple factors, but if you and your ex-spouse work with divorce attorneys to create a custody plan, it increases the odds that you’ll both get the time and custodial responsibilities you want.

Physical Custody vs. Legal Custody

A big point of confusion in child custody law is the concepts of physical and legal custody. Some see one as being more significant, while others may not understand the difference at all. Knowing how they differ is essential to your post-divorce co-parenting plan.  

Physical custody refers to who has custody of the child when. For example, if you have custody during alternating weeks, you would have physical custody during those weeks and your ex-spouse on the other weeks. Legal custody determines who makes major decisions regarding the child’s well-being, such as a physician or religious upbringing. 

The benefit of collaborating with your ex-spouse on a child custody agreement is that you propose ways to divide both responsibilities however you want. Of course, you should still be realistic and consider your ability to meet the proposed obligations.

Consider Your Child’s Responsibilities

While each parent’s commitments will carry a lot of weight in joint custody discussions, it would be foolish to overlook those of the child. When parents separate, it’s a very confusing time for children. They have to navigate a new set of norms that sometimes calls their sense of security into question.

Keeping a child’s social life intact can provide them additional support during this difficult time. Playdates, after-school activities, and visits with extended family all help maintain a sense of regularity. Don’t disregard them as part of your joint custody planning. If your custody arrangement would eliminate any of these things from your child’s life, reconsider and accommodate for it the best you can. 

Simplify Living Arrangements

The most common custody agreements see a child living between two locations to spend time with each parent. Depending on where the parents live, such arrangements could require a lot of travel for both parents and the child. If the custodial exchange is frequent, it could make it difficult for the child to get comfortable with the arrangement and new surroundings. 

Recent years have seen growing popularity for a new joint custody trend called “bird nesting” or just “nesting.” Nesting doesn’t see the child moving between homes to live with the custodial parents in its simplest form. Instead, a primary residence will be shared by the parents so that the child doesn’t travel. 

Let’s go back to the alternating weekly agreement again, and let’s say that your child lives at your residence. When it’s time for your ex to take custody, they will come to live in your home, and you would spend the week (barring visitation) elsewhere. It could be your ex’s home, other property you own, or joint property you both own.

Nesting requires a great deal of trust between both spouses, but it’s beneficial in that it removes the stress of having to travel from your child and gives them a sense of normalcy. It minimizes the disruptions they’ll experience while keeping both parents in the picture. 

It would be best if you didn’t view nesting as a long-term practice. The main intention is to make adjusting to divorce easier for children. Eventually, they’ll reach a place where they can handle living between two homes and travel. 

A joint custody proposal centered around nesting faces unique challenges, so it’s best to discuss potential difficulties and pitfalls with your divorce attorney.

Be Flexible With Your Plan

We all know events in our lives can run counter to even the most detailed plans, but understanding this doesn’t make it easier to pivot when changes are needed. Most people entering their first divorce know what they want but don’t know what to expect. When reality crashes into those expectations, things can get messy.

Your divorce attorney will tell you to temper your expectations and be flexible, but this should extend to your joint custody agreement as well. Temporary or permanent changes may be necessary as time goes on to keep both parents in the picture. Things like career changes, job promotions, new spouses, and moving are just a few examples of significant events that can affect custody arrangement.

Being open to potential changes is only half the equation. The key to ensuring you can implement changes as needed is maintaining a civil relationship with your ex and regularly communicating with them.

Not all circumstances lend themselves to a friendly divorce, but co-parenting is a collaborative effort that requires give and take. The ability to set aside differences with your ex and look past the personal problems between you is paramount to getting your joint custody plan approved. 

Involve Your Child

Remember: the most significant changes resulting from a divorce are happening to your child. Since it impacts them, it can help them understand and cope with what’s happening if they’re involved in the process. 

Of course, what this means isn’t the same for every child. It’s not unreasonable, for example, to let a teen or pre-teen have a say in mother and father visitation. However, a toddler wouldn’t have enough awareness of what’s happening to make similar decisions. Still, they may want to choose seemingly inconsequential things, like what toys they keep at a specific parent’s home. In both examples, the child has some control over what’s happening, making them more accepting of the change.

Let’s Talk

Child custody and visitation arrangements are always developed to serve the child’s best interests. During any divorce proceedings, it’s important to discuss a potential parenting plan. If this is not possible, be honest with the court and any third-party evaluators. Doing so will help the judge order an arrangement that works best for the child. 

For comprehensive representation in any child custody and child support matter, call Azemika & Azemika Law. We will fight for and protect you and your family during the separation and divorce process. Contact us today online or by phone 661-322-8166 to arrange an initial consultation with our attorneys.

What is a collaborative divorce?

The traditional divorce process can be incredibly stressful. Lengthy litigation, court costs, examination, and hostile feelings between spouses can affect all involved mentally, emotionally, and physically. 

No matter how much you prepare for the process, its nature can quickly become very tiring. However, there are options available to avoid taking your separation to court. One such option is called collaborative divorce.

When spouses choose to pursue a collaborative divorce, they work out a settlement with family law attorneys while avoiding litigation. By making this agreement, they can work out every aspect of the divorce, such as division of property, alimony, and child support on their terms rather than have to make a case in court and have the result ultimately determined by a judge. 

This allows for greater flexibility and, more importantly, avoids the additional negativity a divorce trial can bring. If you’re considering a collaborative divorce, here are some essential facts you need to know.  

The Role of Attorneys

When both spouses agree to a collaborative divorce, they also agree not to pursue litigation against each other. That being the case, what role do attorneys play in the process?

Family law attorneys will help you in multiple ways. Though they aren’t making a legal argument on your behalf during a collaborative divorce, they can use their skills to work as your advocate while you and your spouse work on their settlement. 

Both parties hire separate lawyers who help negotiate and iron out the agreement’s fine details so that there are no ambiguities. Unlike with mediators, spouses cannot share an attorney during this process.

However, you may find you’ll need additional help at various points. For example, when discussing how to separate property, it may be necessary to determine something’s monetary value. For this, you’d need an expert to give an accurate estimate. Family law attorneys have these connections in place and can bring additional resources into the discussions as necessary, saving you the trouble of having to seek them out on your own.

You Have Ultimate Flexibility

When a divorce goes to trial, the final terms have to follow state law. For example, when it comes to the division of property in divorce, California state law equally divides jointly-owned property between spouses. 

The property you owned before the marriage remains yours, but anything that becomes shared may have its ownership questioned. Such items become commingling property, and if you can’t prove original ownership, it becomes a judge’s decision.

Collaborative divorce lets spouses customize the terms however they agree to, giving you greater flexibility regarding complicated issues like commingling property. It also removes uncertainty from the equation. The judge’s decision may go against what you hoped for or strike you as unfair. That’s not an issue with collaborative divorce.

While you may negotiate outside customary divorce laws, the goal should be to make both spouses satisfied with the final plan. It isn’t an opportunity to take everything you want. Doing so will stall (and potentially tank) the negotiations altogether. Be reasonable and expect some give and take.

You Don’t Have To Involve The Child

Divorcing parents have the additional complication of their child’s welfare to focus on. When a divorce goes to court, child custody disputes can be the most painful to litigate. 

Doing so involves scrutinizing the parents, which may include questioning the child to learn more about how they feel and how their parents act. It can humiliate the parents and be scary for the child, and the ultimate custody decision could cause pain for anyone involved.

Thankfully, collaborative divorce allows you to establish all the terms of your separation, including child custody. With the help of their attorneys, spouses can shape a plan without involving their children at all. Of course, they can choose to involve them if they want, but it takes some of the stress of a divorce that children experience in either scenario. 

Judges make child custody decisions based on what they believe to be in the child’s best interest. This can include any number of factors, including the employment and earnings of each parent, criminal history, and where they live. 

When you and your spouse discuss child custody, the focus should still be on what’s best for your child. However, you can use whatever reasoning you like to make your conclusion and without having your life examined by a judge. 

What If We Can’t Agree?

At the start of a collaborative divorce, you and your spouse sign a contract stating you won’t pursue litigation to resolve the divorce and instead work things out amongst yourself. 

However, it may turn out that you hit roadblocks along the way, issues that no one is willing to concede. It can happen anywhere in the process, and if it does, that initial contract becomes void as you both take the matter to court.

When this happens, your current attorneys will have to remove themselves from the case, though they may help you find other representation for your divorce trial. Keep in mind that everything they worked on up to that point will be kept confidential. 

Depending on how far along in the collaborative divorce process you were before changing to traditional divorce proceedings, you may have signed agreements relating to specific issues already, like how to divide the property. If you have, those agreements may still be binding and won’t be decided by a judge, helping to speed up the process. 

Ultimately, if you and your spouse try and fail to finalize a collaborative divorce, the work you’ve done will still affect the final determinations.

A Better Way To Resolve Your Disputes

A divorce may be final, but what you experience during the process will remain with you for some time. One of the greatest boons of collaborative divorce is that it helps everyone stay civil as they prepare to separate. 

The hard feelings that litigation can bring up have a better chance of never coming to fruition and influencing your words or actions. Besides keeping things peaceful, it may very well help the healing once your divorce is over.

Talk to Our Attorneys Today

If you need help understanding the complexities of California divorce laws or would like an experienced attorney to help you with your collaborative divorce, call on our professionals at Azemika & Azemika

We are experts in Kern County family law who bring compassion and honesty to everything that we do. We’ll treat you and your family with respect and confidentiality as we help you achieve the best outcome possible. Contact us today to learn more about our expertise and what we can do to help you.

What Am I Entitled to in a California Divorce?

California divorce representation

People who seek a fast divorce in California are often shocked by how complex the process of division of property can become. What many expect to be a simple process is complicated thanks to California’s community property laws. 

Under these laws, you may not receive the property that you believe you should. Here’s a rough outline of what you are (and aren’t) entitled to in a California divorce.

What is Community Property Law?

California law defines community property as any property you or your spouse acquire during your marriage. Courts consider such property to be owned equally by the spouses regardless of who acquired it and will divide it equally unless you and your ex-spouse agree to divide it differently. 

The list of what is considered community property includes homes, cars, businesses, bank accounts, retirement accounts, and more. 

How Does Property Get Divided Equally?

A judge won’t order you and your ex-spouse to split your home down the middle physically. Instead, the property division’s goal is to ensure that both parties get an equal portion of all the assets’ value combined. So, if one spouse receives a car purchased during the marriage, the other spouse will get assets equal to the vehicle’s value. 

The process becomes more complicated when both parties use a spouse’s assets acquired before the marriage during the marriage itself. 

Similarly, a spouse who makes payments towards property owned by their partner has invested in it and has partial ownership. You can avoid potentially messy and time-consuming situations like these by reaching an agreement with your ex-spouse as part of your divorce proceedings. This is often quite difficult, however, as divorces are rarely a tidy affair.

What About Cash?

Believe it or not, California divorce laws treat cash and similar assets much the same way as property, with a few exceptions.

Cash and liquid assets earned or acquired during the marriage become community property. However, this doesn’t apply to money given as a gift, which typically remains the sole property of the person who received them.

Accounts that you both contributed to will be equally divided, including retirement accounts. Keep in mind that a judge won’t order the funds in a retirement account dispersed and divided. Instead, they’ll typically have it split into two equal accounts. 

Remember that what you acquire before you marry will remain yours. This includes cash and liquid assets, but only if you can prove they were yours before marriage. This could mean keeping receipts and bank statements as records. If you fail to do this or you and your ex-spouse shared accounts, your property may be considered commingling. 

With commingling property, it becomes challenging to determine who the original owner is. When it comes to property division in a divorce, sorting out commingling property can consume a lot of time and resources. 

Understandably, someone may lack the foresight to keep evidence of separate property, which is another reason it’s advisable to reach an agreement with your ex-spouse rather than leave the property division up to the courts.

Am I Entitled to Alimony?

Courts do not automatically grant alimony (also referred to as spousal support) as part of California divorce law. Instead, you must request it. If you do, the court will look to multiple factors, such as income earned, and decide. If a judge grants alimony, it’s to ensure that both parties can continue their lifestyles for some time. 

In most instances, alimony is awarded to a spouse who worked less, didn’t work at all, or was mostly responsible for raising the child. Despite popular misconception, alimony rulings aren’t designed to favor one party over the other.  

It’s important to note that a judge won’t grant alimony just because it is requested. An essential factor a judge will look at is how long you were married before the divorce. The shorter you’ve been married, the less likely you’ll be awarded alimony.

Who Is Entitled to Child Custody?

Unlike division of property, the rules to determine who will get custody of a child have many variables. Ultimately the court’s ruling will be in the best interest of the child. A judge will take each spouse’s financial standing, employment status, criminal history, and relationship with the child into determination. 

If the divorce results in joint custody, it may not evenly split each parent’s time with the child. A sole custody ruling might require the non-custodial parent to pay child support separate from alimony. 

You Can Rely on Azemika & Azemika

If you are going through a divorce and are unsure how your assets will be divided, Azemika & Azemika is here to help. 

For comprehensive legal counsel on your options during your divorce or legal separation, contact Azemika & Azemika, Kern County Divorce Attorneys. We will provide the guidance and representation you need to ensure your rights are protected, and we will fight for you and your family to help you get the resolution you deserve.

What Is a “No-Fault” Divorce in California?

wedding rings for No Fault Divorce

In the US, individual states can allow for at-fault divorces or no fault divorce. The former requires the partner filing divorce to provide evidence of fault (such as abuse or infidelity), whereas no-fault divorce has no such requirements. 

California is a no-fault divorce state and has been since passing the Family Law Act of 1969, becoming the first state in the country to enact such a law (with many others following soon after). 

Why Would You Choose a No Fault Divorce?

Proponents of no fault divorce point out that removing the need to prove marital fault makes divorces more accessible and the process much faster. While not everyone may see this as a good thing, no one can argue that it isn’t helpful for those living in particularly bad marriages.

Under an at-fault divorce, you would need to claim irreconcilable differences and present proof to support it. Essentially, this places the blame on one person and the burden of proof on the other. Depending on the circumstance, evidence can be challenging to present, especially in instances of mental abuse. 

Merely wanting the marriage to end is enough to meet the no-fault divorce requirements, even if your partner doesn’t want to separate. If it’s what you want, you can begin the process whenever you like. 

What if You Want an At-Fault Divorce?

No matter how unfairly your partner has treated you, California divorce laws don’t allow for at-fault divorces. However, that doesn’t affect the likelihood of you getting your divorce. It also doesn’t mean that marital fault can’t play a role in the divorce proceedings.

Even in a no-fault divorce, marital fault can provide one party with certain entitlements, but only if they can prove their claims. For example, if your spouse abused you and you have a record supporting this, you are more likely to be given custody of your child or children. Likewise, if you have evidence that your partner misused any of your assets, you may be able to recoup them as part of the division of property.

Even though California doesn’t permit at-fault divorces, you should keep records of anything that you think may constitute marital fault (including those you may have committed) and go over them with your lawyer. It’s best to know what may come up as part of the process beforehand so that you can adequately prepare and set reasonable expectations.

The Impact of Fault

There are limited situations where judges will consider fault as part of no-fault divorce. When it comes to custody, courts will always do what they feel is best for the child’s wellbeing. Issues like desertion and abuse are likely to influence who will get custody and the agreement’s terms. 

Assets are somewhat more complicated. California treats property acquired during the marriage as being equally owned by both partners and orders as close to an equal division of property as possible in a divorce. One spouse can contest the division, but doing so slows down the process and doesn’t necessarily guarantee a change. 

If you didn’t establish a prenuptial agreement before pursuing a divorce, you’ve likely been commingling assets. Commingling means assets owned by two or more parties that have been mixed, making it difficult to establish who owns what. A basic example would be car payments. 

Say you owned a car before you were married and had been making payments. However, your spouse begins helping you make payments and, in exchange, is granted use of the car. They have invested in the car, and as a result, it becomes a commingled asset. 

Unless you kept records showing your investments and assets separate from your spouse’s, it could be tremendously difficult and tedious to sort these issues out, and ultimately it may boil down to a judge’s decision.

What Are the Requirements to Get Divorced in California?

While you don’t need a specific reason to get a no-fault divorce, the person filing for divorce must have been a California resident for at least six months beforehand. From there, the timetable can vary depending on the separation of assets and any complications related to the process. 

Get Help From a Family Law Attorney

Don’t tackle your divorce alone. The advice of a seasoned attorney can make all the difference, even in the case of no-fault divorces. If you’re looking for assistance in filing, let the Azemika & Azemika Law Firm help you through every step of the process. 

Our experienced attorneys work in several different aspects of Kern County family law, including alimony, child custody, and divorce. 

Our expertise can help you plan the best path forward so you can get started on your new life sooner rather than later. Reach out to us today and see how we work to help you. 

Child Custody and Visitation Facts for California Dads

Child Custody and Visitation Facts for California Dads

“I want a divorce.” These are the last words any husband wants to hear.

It’s inevitable. You’re getting a divorce lawyer, and you have to start considering how things will change (from your belongings to your life). You have to split the “estate,” from your shared belongings to money and other assets. 

But what about the kids? Who gets the kids and when? 

Unfortunately, according to the American Psychological Association, divorce happens to 40 to 50% of married couples in the United States. The divorce rate for future marriages is even higher. 

But only a small percentage of divorces go to court, usually due to a custody battle. 

For fathers, custody battles can be an incredibly challenging aspect of divorce, especially when considering what is best for the children. How do you know what your rights are as a father fighting for custody or visitation of your children? 

Navigating custody battles can be intimidating and a trying time for fathers, so knowing your rights and the facts will help you set any expectations for the process. 

Courts and the Law

Men aren’t legally at a disadvantage. According to California law, judges can’t make a decision regarding child custody and visitation based on gender. 

As long as both parents are fit, California courts will offer both parents an equitable chance at custody. 

Entitlement For Child Custody And Visitation

Plain and simple, entitlement doesn’t exist in the courts because judges can’t decide based on gender. 

This decision isn’t about what you want or think you deserve. The judge’s decision will be based on the best interest of the child. In most cases, the courts believe that the best situation is for the child to have both parents in the picture — known as frequent and continuing contact

Parenting Roles

What did your world look like before the divorce? What was your daily routine? What was your child’s? 

Considering what life was like before the divorce, the judge will decide with one goal in mind: not to disrupt the child’s life. Keeping everything as normal as possible and moving forward in the child’s best interest is the primary goal. 

The court will consider how time was used before the divorce (by both parents) and how responsibilities were divided. If you worked 60 hours a week before the divorce, do you plan to after the divorce is finalized? Will this leave a reasonable amount of time for parenting and quality time? 

Two Types of Custody

There are two lines of custody when it comes down to how the courts decide what is in the child’s best interest.

1. Legal Custody

Legal custody involves making decisions about the child regarding several things, including schooling, organizations, travel, health specialists, and extracurricular activities. 

2. Physical Custody

Physical custody refers to where the child is and when. This form of custody takes into account the child’s primary residence, visitation times, primary custody agreements, and more. 

Generally, physical custody results in the child spending more time with one parent than the other, even if a joint custody agreement is reached. It’s near impossible for time to be split exactly 50/50 in every situation. 

Four Types of Visitation 

Shared time is essential to any parent facing a divorce situation. Time with both parents is important to a balanced upbringing. California courts select one of four visitation types based on what is best for the child and other factors. 

1. Scheduled Visitation

Visitation on a schedule prevents any miscommunication or confusion regarding who sees the child and when. Specific dates and times will be agreed upon by the parents and the court. 

2. Reasonable Visitation

This open-ended form of visitation allows for the parents to agree on their own. This type of visitation requires solid co-parenting skills from each parent.  

3. Supervised Visitation

Supervised visitation requires that the visitation with one parent be monitored by the other parent or an agency professional. This type of visitation is typically used for the child’s safety and well-being when one parent is not deemed fit to be alone with the child. 

4. No Visitation

Suppose time with one parent would be physically or emotionally harmful to the child. In that case, the child’s best interest is for the parent not to contact them. 

Consult with an Attorney For Advice

When facing a custody battle, you need the best representation possible — a lawyer that knows the judge and court as well as one who can help you fight for your rights as a parent who wants what is best for their child. 

Azemika & Azemika Law in Bakersfield has helped families navigate divorce and child custody and visitation cases for more than 30 years, providing strong trust behind their legal guidance. 

For a family-oriented firm at an affordable cost, contact Azemika & Azemika Law today.