The Complete Dissolution Threat List

A guide to the psychological warfare that is commonly waged during the divorce process.

Most lawyers who have been handling divorces for any length of time have clients report an almost predictable list of threats from their spouses. Since divorcing parties generally have a limited understanding of the process, they take these threats literally and immediately call their attorneys to report them, thereby increasing their fees and their anxiety level. Most threats are baseless and more a result of fear, bullying or desperation. Often, merely knowing that you are not the first one to hear these threats can have a calming effect.

Having said that, on rare occasions a threat will turn out to be real. Thus, while it is easy to say that they are common, whether to give them any weight depends upon the actual circumstances of your case.

The following is a list of common threats that attorneys often hear and to which they generally pay little attention. Most of these threats are just that – threats born of anger and frustration. In some cases it is definitely necessary to get the assistance of private attorneys and/or the District Attorney.

1. “When I tell them [X], you’ll never get the kids.” X can be an affair, the fact that you are seeing an analyst, a DUI, or some other transgression. Although X may have been painful to you and/or your spouse, unless it directly impacts the best interests of the children, it is doubtful that it is going to be given any significant weight by the custody evaluators and/or the judge.

2. “You’ll never see the children again.” Sorry, that’s not the way it works. When custodial parents don’t want to share the children, the courts have lots of weapons available to convince them to cooperate. These include sanctions and/or a change of custody. Having said that, sometimes a parent will disappear with the children. If a parent does this, you must immediately see a lawyer to get the appropriate court orders and file police reports. It will be necessary to get both state and federal arrest warrants. This is relatively rare, but it does happen.

3. “I’ll take the children and move back to Nebraska.” This one may be true, although it is not automatic. The custodial parent has a right to move the children pretty much anywhere s/he chooses, even if it interferes with the noncustodial parent’s visitation rights. Unless the noncustodial can show either that the move will cause some detriment to the children or that the moving parent’s purpose is to deprive the noncustodial parent of visitation, the courts will not interfere. The noncustodial parent’s remedies are more extensive visitation during vacation periods and perhaps an adjustment in support due to the costs of travel.

4. “If you ask for a share of my property [or support, or whatever], I’ll ask for custody and take the children away from you.” Go ahead and try. Custody determinations are made based upon what is in the best interests of the child. In making this determination, mediators and judges put more weight on established patterns of conduct than they do on expressed intentions. Thus, if the mother has been the one in charge of raising the children, the chances are very slim that the court is going to suddenly award custody to the father (usually prompted by a peek at the child support guidelines).

5. “You’ll end up in the street with nothing.” No. You will end up with half of the community property and, if appropriate, spousal and/or child support for an appropriate period of time. The spouse making the threat may not want to give you your share of the property and support, but your attorney can request that the court make orders insuring that the property is equally divided and that support is paid. You can also seek the assistance of the Department of Child Support Services in your county.

6. “You’ll never get any of my pension.” Although pensions are very emotional assets for many people, in the final analysis, they are just another type of property that must be considered and divided in the divorce. The simple answer is that it is community property and you deserve your share. Although it may be possible for the employee to keep his or her pension intact, it will require that the other spouse receive other property of equal value. In many marriages, the pension and the equity in the house are the two most valuable assets and if the employee is going to keep his/her pension, the other spouse may end up with the house.

7. “I’ll hide all the money and you won’t get a nickel.” This is harder than it sounds. It is difficult to move money around without there being a paper record of it. If your attorney does adequate discovery, s/he should be able to spot any significant transfers of funds from one account to another. In cases where such a threat is likely to be credible, it is important to get as many records from the financial institutions themselves as possible, as you don’t want to be relying on what your spouse is giving you. It may be necessary to involve a forensic accountant to assist in reviewing the records and searching for diverted assets. If the party is self-employed, then the search gets more difficult and more expensive. Although it is possible to hide assets, it is not as easy as most people believe.

8. “I’ll start a new family and they will be my priority.” So what? The court will require that s/he take care of the financial needs of the prior family before taking the needs of a new family into account. If s/he has a child with a new spouse, then s/he will be entitled to a hardship deduction in the child support calculation, but that usually doesn’t have a large impact on support.

9. “I’m kicking you out of MY house.” Maybe, but not right away. First, whose house is it? If both names are on the deed, you have an equal right to possession of it. Generally, you cannot be forced to leave unless you have committed domestic violence. If it truly is his (or her) house, then at the end of the case you will be required to leave. Having said that, you may want to leave sooner. Who wants to live with someone that they are divorcing?

10. “I’ve got someone new and s/he is better/younger/prettier than you.” This is designed to simply be hurtful. The retort may simply be, “Perhaps, but s/he doesn’t really know you yet.”

11. “Your attorney is unscrupulous and is taking you to the cleaners.” This is an attempt to “divide and conquer.” Most attorneys are acutely aware of the size of their bills and are not anxious to see them get out of hand. It is much easier for them to collect small bills than large ones. If your spouse thinks that your attorney is really a gem, then perhaps s/he isn’t representing you as vigorously as is warranted.

12. “Unless you do things my way, you won’t get a dime.” This is a threat made by someone who is used to being in charge. You don’t have to do it his or her way. That’s why you have an attorney to represent your interests. The law states what you are entitled to. If your soon to be ex-spouse can’t get used to the idea that s/he is no longer in charge of your affairs, that’s a personal problem.

13. “I’ll quit my job before I pay you a dime.” Although support is usually awarded based on actual current earnings, if the Court believes that one party is earning less than his or her capacity, it may use earning ability. In this situation, the paying party may be ordered to pay higher support (or the receiving party get less support) than would be warranted based upon his or her current circumstances. These are often credibility issues so it is best if you can get a witness to the threats.

14. “When the judge sees my expenses, you’ll get less (or I’ll get more) support than the guideline amount.” Perhaps, but unlikely. Judges are used to making orders that leave both parties unable to meet their stated expenses. Thus, unless there is a very compelling expense, such as unusual medical expenses, mortgage or private school expenses, the court is just going to apportion the available income equitably between the parties and let them get by as best they can.

15. “I’ll consider reconciling with you if you sign this agreement.” If s/he wants to reconcile, why do you need a property agreement? In all likelihood, it is simply an artifice to get you to make a concession that you shouldn’t make and shortly after signing it s/he will be gone again. Be extremely cautious of such devices.

While most such threats can be ignored, you may want to keep a log of the dates, times and context within which the threats were made. If you think that a threat is serious, then you should contact your attorney immediately. Otherwise, simply keep your log and periodically share it with your attorney. Take solace in the knowledge that the fact that your spouse feels the need to make these sorts of threats is usually because s/he is frightened and no longer feels in control.

The Law Offices of Erin E. Dixon is an Estate Planning, Trust, Probate, Divorce and Family Law firm serving Southern California with offices in the Santa Clarita Valley and the South Bay; http://www.erinedixon.com/.

DOES YOUR ESTATE PLAN PROTECT YOUR CHILDREN?

You may not know it, but you have an estate plan. Even if you have never taken the time to visit an estate planning attorney and have a trust or a will drafted, the state of California makes certain presumptions about what you would want as a parent in the absence of a specific written plan that you have signed with the appropriate formalities.

The first presumption is that you would want your children to receive all of the money from your estate when they turn 18

Remember how good you were with money when you graduated from high school? The state of California presumes that at the age of majority (18) your child can adequately manage any inheritance they might receive through a probate administration, or as the proceeds from a life insurance policy, etc. This could equate to hundreds of thousands of dollars in a typical estate. Taking the time to set up a trust gives you the control to decide how and when your child receives their inheritance. You can set age milestones (i.e., 50% of the estate distributed at age 25 and the remaining 50% distributed at age 30), or performance milestones (i.e., achieving certain grades in college). Your choices are unlimited; your estate planning attorney can tell you what some typical options are. No one knows your children as well as you do. As they grow and their personalities become more distinct you have the ability to reshape your estate plan to grow with them.

The second presumption is that you want your estate divided equally among your children

While your children are still under 18, generally you are inclined to treat them all equally when you consider how you want your estate distributed upon your death. However, we all realize that as children grow up they don’t all turn out as self-sufficient as we might have hoped. If you have a child who is now an adult and has a substance abuse problem, a spending problem, possibly even an abusive spouse, would you feel comfortable handing them hundreds of thousands of dollars? You may have a special needs child who will require a particular type of trust to protect their right to continue to receive governmental benefits, and you may feel that they require a different ratio of your estate. If you are unfortunate enough to have severed a relationship with a child (either through your actions, or through your child’s), while retaining solid supportive relationships with your other child(ren), would you want all of these individuals to receive the same sums of money upon your passing? You may, but then again you may not. The state of California presumes that you would want all of your children to receive the same amounts when you die.

The third presumption is that those family members with the closest relation to you would make the best guardian(s) for your children

Every family has at least one member who has difficulty with money, or difficulty holding a job, or difficulty maintaining relationships. Just because you share the same parents, you and your siblings (or even you and your parents) do not necessarily subscribe to the same philosophies on child rearing, religion, spending, etc. You possibly are more aligned with one particular sibling in your personal views on parenting, or perhaps you don’t see eye to eye with any of your family on this point. Your entire family may live on the other coast, also. However, you may be fortunate enough to have a close friend that shares your views on parenting that lives right around the corner from you. The courts will give preference to those with familial ties. Without formally nominating an individual in your estate planning documents, a close friend who might be the best guardian for your child(ren) would be required to launch an expensive and protracted campaign in court to try to become guardian of your children.

The fourth presumption is that your children can get along without any money during the administration of a probate estate

Probate is a long process. A typical estate takes a year to complete, and in many instances, much longer if there are any problems or complications. The guardian of your children would have to make particular requests of the court for a family allowance, or for an early (preliminary) distribution of a portion of the estate if they wanted to receive any financial support for your children during this process. If you have a trust in place your child(ren) will receive financial support virtually immediately, according to the terms of your trust.

The fifth presumption is that a former spouse would be a great person to act as guardian of your child’s inheritance

If you have a former spouse, you may be fortunate enough to have maintained at least a civil relationship with that person throughout and after your divorce proceedings. However, if you are like a great majority of people, you may find contact with your former spouse to be quite difficult. Without a trust, the surviving parent (your former spouse) has priority in being appointed as the individual to handle money left to your children.

The sixth presumption is that you would want your new spouse to receive a share of any of your separate property

Under the laws of intestate succession, if you have remarried, and have children from a prior relationship your separate property (everything you have when you remarry) will be split between your new spouse and your children (the ratio depends on the number of children you have). You may even have done an estate plan prior to remarrying that mentions the person you eventually marry, and leaves them some nominal gift. If you don’t take the time to update your plan after remarrying, and acknowledge that you have a new spouse in your will or trust, the state of California presumes that this is an oversight and you really intended to leave your new spouse a portion of your separate property estate (coming right out of your child(ren)’s share).

Your children’s welfare is the central focus during your lifetime. Drafting a will or a trust with a qualified estate planning attorney is an easy and relatively inexpensive process that can ensure that your children are cared for after you are gone.

The contents of this article are not intended to provide legal advice. Seek the counsel of an estate planning attorney for advice on your own individual estate plan.

The Law Offices of Erin E. Dixon is an Estate Planning, Trust, Probate, Divorce and Family Law firm serving Southern California with offices in the Santa Clarita Valley and the South Bay. Before retaining an attorney, see their rating on avvo.com.

PROTECTING YOUR CHILDREN WHILE GOING THROUGH A DIVORCE

Divorce is stressful not only for adults, but children too. Children are the unwitting casualties of divorce, and it should be your goal to protect them at all costs while going through your divorce and during the rest of their childhood. That being said, it can be your most challenging task when faced with a (soon-to-be-former) spouse that is angry and/or vindictive. The reactions you may receive from your children) may differ greatly depending on the child and circumstances surrounding the breakup. Fortunately, parents can help their kids during a divorce. Here's how:

Reassure Your Children

Reassure your children that both parents love them (do this early and do it often); tell them directly that the divorce is not their fault and that everything will be okay. In most cases, you should attempt to come up with a game plan (or "parenting plan") so that both parents can be actively involved in your children’s activities. Also, most Courts offer “parenting coordination classes” such as “Parents and Children Together” that can be taken to help you work with the other parent for the betterment of the children; take advantage of these classes even if they are not mandated by the Court, and even if your former spouse does not participate. Discuss any potential plans or agreements with your respective attorneys, and seek their input prior to making a final commitment. Do not sign anything without talking to your lawyer first.



Avoid Involving the Children in the Dispute

Do not involve your children in legal discussions. The financial and legal details of the divorce will only serve to upset and distress your children. Children should not be permitted to overhear your arguments and discussions about legal, financial, or emotional issues relating to the divorce. If your children are older, take care to safeguard any paperwork related to the divorce by storing it out of the way. Children should not be informed about what is going on in court and generally should not be asked to make a decision to choose one parent over the other. Your children should not be encouraged to shuttle messages back and forth between their parents; instead, you should communicate directly, politely, and calmly with the other parent about any parenting issues (even if your spouse is rude or unresponsive with you). Never bring your children to Court without prior Court approval. You will only aggravate the Court and upset your children.


Get Along with Your Former Spouse

Do not insult or talk negatively about your (soon-to-be-former) spouse in front of, to, or around your children. This is harmful and detrimental to your children. In extreme cases, it is sometimes referred to as "Parental Alienation Syndrome (PAS)", and can ultimately be used as grounds to take away custody of your children from you. You should encourage your spouse to be the best parent that he or she can be, even if your spouse was not a particularly good husband or wife. Children need both parents; driving a wedge between your child and the other parent will do grave damage to both or may backfire and cause the child to resent you and defend the other parent. Sometimes the other parent simply withdraws from the relationship altogether; only in the rarest of circumstances is this good for your child. The majority of children charged with crimes in our juvenile justice system do not have the active involvement of both parents. Keep in mind that your child’s parenting style as an adult is based largely on what he or she learns as a child.


Keep the Routine the Same

Try to maintain the status quo during the divorce as much as possible. The children have grown to expect such routines from you, and you will cause unnecessary stress if you decide to change all things that are familiar to them. If the divorce does not require moving them out of their house, changing schools, or moving to another city, it is not a good time to make these or other changes. If your children have friends they like to play with, family members that they want to see, or adults involved in their lives (that you approved of prior to the divorce), do not cut off those relationships simply because they may be "more friendly" with (or related to) your spouse. Your children should be encouraged to contact these people by telephone or email if they cannot visit in person. You must be the bigger person about these matters. Take the high road, rather than the low one that is so often traveled.


Be a Parent to Your Child

Do not dump your emotional baggage on your children. If you are angry with your spouse, have resentment toward your spouse, or are saddened by his or her actions, you should not discuss these extreme emotions with your children. Your child is not your friend, buddy, and certainly not your counselor or therapist. Casting them in this role only puts undue pressure on them. You are the parent and your children expect you to be in control at all times. If you are out of control, you cannot parent the way you should. Your children need you to be engaged most of all during this emotionally difficult time. If you need to discuss your feelings, hire a counselor or speak with a close friend or adult relative. An added benefit of putting your children first during this process is that it keeps you from wallowing in self-pity and helps move you along in the healing process.


Get Agreements with Your Former Spouse Regarding Raising the Child

Parents should discuss, agree, and then mutually enforce appropriate limitations concerning the use of cell phones, computers, video games, television, and similar electronic devices or modes of communication. You should include what ratings are acceptable for television, movies, and video games, as well as appropriate curfews or bedtimes.


Don't Criticize the Other Parent

In your resentment toward the other spouse you may be inclined to seek reassurance from your children that they favor you over the other spouse. Do not criticize the other parent. Do not permit, encourage, or allow your children to criticize the other parent. The other parent's failures in life (financial, psychological, relational, physical or emotional limitations, or legal problems) should not be discussed with the children, unless it is first brought up by the child, and only then after a discussion is had with the other parent about the nature and extent of the disclosures to be made to the children.


Never Introduce New "Significant Others" During a Divorce

Never ever, ever introduce new “significant other” into your children’s lives during or even shortly after the divorce. This will confuse them, upset them, and will make them very angry and resentful. Take this time to concentrate on the children and building your relationship with them, rather than a new love interest.


Create a Space for Your Child

All children should have a place for their belongings in a room separate from their parents, at each parents' location. The children should be allowed to take a reasonable amount of belongings with them to the other parent’s home and they should always be permitted to return with those items that were originally in his or her possession, unless a prior agreement is made with the other parent in advance. The child must be permitted to have photographs, correspondence, and personal items from both parents in their personal space.


No Drugs, Alcohol, or Tobacco

Children should not be exposed to secondary smoke from tobacco. Children should not be present during the use or possession of illegal drugs. Parents must ensure that children are not transported in a motor vehicle by any person under the influence of alcohol or drugs. Your children deserve to be safe and secure.


The Law Offices of Erin E. Dixon is an Estate Planning, Trust, Probate, Divorce and Family Law firm serving Southern California with offices in the Santa Clarita Valley and the South Bay; http://www.erinedixon.com/. Before retaining an attorney, see their rating on http://www.avvo.com/.