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Understanding Transmutation Agreements in California

If you’re married, you need to understand your rights and responsibilities under California law regarding marital property and debts. One aspect of California property law that often generates questions and confusion is the concept of transmutation agreements.

What are they? How do they function in the context of a marriage or a divorce? In this post, we’ll shed some light on this crucial topic, but feel free to contact us if you have questions about transmutation of property in your particular situation.

Grasping the Concept of Transmutation

Transmutation agreements might sound complicated, but they're relatively straightforward once you break them down. Essentially, they are legal documents that spouses in California use to change the character of their property from separate to community, or vice versa. For example, if you owned a house prior to marriage (separate property), you could agree to change it to community property through a transmutation agreement. Similarly, a home purchased during marriage (community property) could be transmuted into separate property.

Why does this matter? The character of property is vitally important in the event of divorce, but it also plays a role in inheritance, taxation, and other issues.

California's Community Property Law and Transmutation

Because California is a community property state, assets and debts acquired during marriage are generally treated as community property and split evenly in a divorce. But what if you want to protect certain assets? Or perhaps you want to share an asset that you brought into the marriage?

That's where a transmutation agreement comes in. With this legal tool, you and your spouse can decide together how you want to classify your assets, regardless of when they were acquired.

The Importance of a Written Agreement

In California, transmutation agreements need to be in writing in order for them to be enforceable. A verbal agreement simply won't cut it, and it's also vital that the agreement is explicit about the intention to transmute the property. An experienced California family law attorney can help you craft a transmutation agreement that clearly reflects your intentions as well as your spouse's, protecting your interests and avoiding potential disputes in the future.

Transmutation Agreements and Divorce

When a marriage ends, a transmutation agreement can play a significant role in the division of assets. It might be used to confirm separate property that would otherwise be considered community property or to split a separately owned asset amongst the parties. A clear, well-drafted transmutation agreement can streamline the division of property during divorce, making the process more predictable and potentially reducing conflict.

Potential Pitfalls of Transmutation

Despite their advantages, transmutation agreements also have potential pitfalls. For instance, they might result in inadvertent tax consequences. In addition, the court might view the agreement with suspicion if it appears one spouse was disadvantaged. Therefore, it's crucial to consult a California divorce lawyer before entering into a transmutation agreement to understand the implications fully.

Holstrom, Block & Parke, APLC Protects Your Property Interests in California

Transmutation agreements in California can have significant effects on the outcome of a divorce and they can impact your finances in other situations as well. It's important to understand the legal and financial consequences before making any decisions.

At Holstrom, Block & Parke, APLC, we have experience with all aspects of California family law, including transmutation agreements. Call us at 410-590-9401 or contact us online to schedule a consultation. We're ready to help you understand your options and make informed decisions.

Divorce

Uncovering Hidden Assets in a California Divorce

It is an unfortunate fact of divorce in California that sometimes a spouse will try to deliberately hide assets so they can gain an unfair advantage. In other cases, spouses will forget about assets or have difficulty locating them.

In any of these situations, it is helpful to call on a divorce attorney with experience uncovering hidden assets. At Holstrom, Block & Parke, APLC our team of Certified Family Law Specialists and associates knows how to identify hidden assets and we understand the most effective ways to ensure you receive the right share of property in your divorce.

What are Hidden Assets?

The term hidden assets refers to property or financial resources that one spouse does not disclose during a divorce. This can range from secret bank accounts and real estate investments or to valuable personal items and property cloaked by false transactions. Unfortunately, some spouses attempt to obscure assets to influence the division of property in their favor, which is why you need vigilant representation.

Types of hidden assets vary broadly, spanning from clandestine cash hoards to concealed business interests. They may include undisclosed life insurance policies, investments in cryptocurrency, or foreign holdings. Additionally, phantom income from a business, artwork, antiques, or any high-value collections kept secret are also regarded as hidden assets. When a spouse operates a business, they have opportunities to hide assets by paying salary to nonexistent employees, making payments that are later reversed, and a variety of other tactics.

California's Stance on Hidden Assets

Under California’s community property laws, assets accumulated during the marriage are deemed to be jointly held, regardless of who acquired them. This extends beyond obvious assets such as your residence or vehicles to include salary, investments, retirement funds, business interests, and more.

Efforts to achieve a fair division of property fail when a spouse chooses to covertly squirrel away assets. However, if the attempt at hiding assets is revealed to the court, judges can require that spouse to make restitution and there could be other legal consequences as well. Judges tend to take a dim view of fraud during the divorce process, so when you can uncover attempts to hide assets, a skilled attorney can use this knowledge to your advantage. Efforts to hide assets not only affect property division but also can also impact decisions on child support and alimony, so it is crucial to have an accurate accounting in divorce.

How We Can Help Uncover Hidden Assets

The experienced team at Holstrom, Block & Parke knows how to uncover attempts to hide assets to ensure a fair distribution of property. We investigate transactions, dig up records, and scrutinize everything to determine if assets are missing from accounts, and to locate and value those assets.

The process is intensive, particularly when one spouse owns a business. We look for assets hidden through means such as:

  • Accounts that use a different name or social security number
  • Gifts given to friends and family members who could be temporarily holding property with the intent to return it after the divorce
  • Accounts opened in the name of a minor or other vulnerable individual
  • Repayments of fake loans that will be returned after the divorce becomes final
  • Fraudulent business expenses or concealed profits
  • Overseas accounts
  • Collectibles with an unusually high value

As experienced family law litigators, our team knows how to use strategic discovery tactics to uncover documents and information that can expose hidden assets. Skillful questioning often reveals valuable information about false loans and other suspicious transactions. We can also uncover evidence of assets depleted on an extramarital affair or other wrongful undertaking.

In addition, we work with seasoned professionals, including forensic accountants, expert property appraisers, and other niche specialists to delve into the complexities of your marital estate. Our approach is meticulous; we trace the monetary path, scrutinize every inconsistency, and question each inexplicable transaction to secure a just settlement that truly reflects your entitlements. We can uncover not only assets that were hidden intentionally but also those that may have been forgotten or misplaced over time.

Holstrom, Block & Parke Helps You Get the Assets You Deserve in Divorce

If you suspect your spouse may be trying to conceal assets during your divorce proceedings in California, you need to protect yourself. The sooner you act, the easier it may be to uncover hidden funds or other property.

We have the knowledge and experience to help. Reach out to us at Holstrom, Block & Parke today at (855) 395-5111 or contact us online to set up a consultation with a divorce attorney skilled at locating hidden assets and protecting your property interests.

Divorce

Understanding Divorce and Stock Options in California

As you move through the divorce process in California, categorization and division of assets is crucial. One significant asset that often presents complexity is stock options. At Holstrom, Block & Parke, APLC in San Diego, we are here to help break down these complexities for you and ensure you receive the right allocation of assets.

The Basics of Stock Options in Divorce 

Stock options in a divorce are considered marital community property if they were granted during the marriage and before separation. This means they are subject to division. 

However, if they were granted after separation or before the marriage, they are generally considered separate property. Accurately categorizing stock options requires careful consideration of dates, grant conditions, and vesting schedules.

California’s Community Property Principle 

As a community property state, California dictates that assets and debts acquired during the marriage be shared equally between both parties. This includes income, real estate, and yes, even stock options. 

To fairly divide these assets, you need to understand their value, and the process can be complicated. It's essential to evaluate their worth accurately and equitably, whether it be through the intrinsic value method or the Black-Scholes model.

Assessing the Value of Stock Options

Accurately valuing stock options can be a challenging task due to their nature. Expert financial analysis will be needed to determine their present value and future potential. This process often involves appraisals and assessments of vested and unvested stocks, all of which need to be handled with precision and expertise.

Choosing the Right Strategy for Division 

Once the value of the stock options has been determined, the next step is to decide how to divide these assets. This could involve the immediate offset method, deferred distribution, or reserved jurisdiction. Weighing the pros and cons of each strategy is an integral part of reaching a fair division of assets.

Holstrom, Block & Parke: Your Partner in California Divorce Proceedings 

If you're facing a divorce involving complex assets like stock options in California, the process can feel overwhelming. But you don't have to manage alone. 

At Holstrom, Block & Parke, we're ready to offer the guidance you need. Our team has the knowledge and experience to help you navigate these complex matters. Call us today at (844) 922-0516 or contact us online to schedule a consultation with a divorce attorney in Southern California. Don't let the complexities of stock options in divorce proceedings overwhelm you. Let us help you work towards an equitable resolution.

Divorce

Understanding Offshore Assets and Divorce in California

In the dissolution of a California marriage, arriving at a fair division of assets is paramount. However, this procedure takes on a whole new dimension of complexity when offshore assets are involved. Uncovering and accurately valuing these assets, which could range from foreign real estate to overseas bank accounts, demands not just a standard legal approach but a specialized skill set.

Offshore assets typically fall under different jurisdictions, each with its own unique laws and regulations. The process of discovery can be considerably complicated by issues like language barriers, diverse tax regimes, and differing property laws. Even worse, these assets can often be structured to be obscure by design. 

If you or your spouse has international assets, the team at Holstrom, Block & Parke, APLC in California can assist in ensuring a fair division. We are adept at handling the intricacies of international laws and can protect your share of assets, regardless of their global location.

Importance of Full Disclosure in Divorce Proceedings

In any divorce, both parties must fully disclose all assets–domestic and offshore alike. This ensures a fair distribution of property. However, if one party does not disclose all assets, especially those held overseas, it can lead to an unfair division. At Holstrom, Block & Parke, we are proficient in ensuring full asset disclosure in the interest of equity.

Understanding California Community Property Law

California follows community property laws. These laws regard almost all assets acquired during the marriage as shared property. This means that offshore assets procured during the marital period are subject to division. Understanding these laws is crucial when facing a divorce involving offshore assets.

Here are some key points to understand about California community property law:

  1. Definition of Community Property: Assets and debts acquired by either spouse during the marriage.
  2. Definition of Separate Property: Assets or debts one spouse acquired before the marriage or through gifts/inheritance.
  3. Division of Community Property: Upon divorce, community property and debts are divided equally (50/50).
  4. Offshore Assets: Offshore assets acquired during marriage are considered community property.
  5. Proving Community Property: Courts may require proof an asset is community property. Determination can be complex.
  6. Transmutation of Property: Separate property can become community property in various situations, so records need to be reviewed in detail.
  7. Impact of Prenuptial and Postnuptial Agreements: These agreements can override California's community property laws, determining property rights and obligations.

Challenges of Offshore Assets in Divorce

Offshore assets bring a unique set of challenges to divorce proceedings. Understanding these complexities is vital in safeguarding your interests.

Jurisdiction Issues: Jurisdiction refers to the authority given to a court or other institution to make legal decisions and judgments. With offshore assets, the question of which country's courts have jurisdiction over these assets can be complex. Often, multiple legal systems might have overlapping claims of jurisdiction. At Holstrom, Block & Parke, we understand these legal intricacies and work diligently to ensure a fair application of jurisdiction rules.

Varied Tax Implications: Offshore assets often trigger significant tax implications that need careful navigation. Different countries have different tax laws and agreements with the United States regarding the handling of assets. It's crucial to understand these tax obligations to avoid unexpected liabilities. Our team can guide you through these potential tax pitfalls, ensuring that you remain in compliance with all relevant tax laws.

Legal Differences Between Countries: In addition to jurisdictional and tax issues, the laws governing property rights can also differ substantially from one country to another. A property that's considered marital property in California might be viewed differently in another country. Understanding the relevant foreign laws is essential in ensuring a fair division of assets. The attorneys at Holstrom, Block & Parke have the experience and resources to navigate these diverse legal landscapes.

When dealing with offshore assets, having a proficient team of attorneys is invaluable. The team at Holstrom, Block & Parke can help guide you through the complexities, ensuring that the division of assets is fair and in accordance with California law.

Guidance from Holstrom, Block & Parke in California

Divorcing in California can be a complex procedure when offshore assets are involved . The legal team at Holstrom, Block & Parke has the skills and experience to navigate these complexities. 

They can guide you through the entire process, ensuring that your rights are protected and that all assets, including offshore ones, are considered during the division so you can receive the right share of property. Reach out to Holstrom, Block & Parke today at (855) 939-9111 to schedule a consultation with our knowledgeable team in California.

Divorce

Addressing Marital Fraud in California Divorce

Handling the complexities of a divorce is never easy, and when marital fraud enters the picture, the situation becomes even more difficult. At Holstrom, Block & Parke, APLC, we understand the intricate details associated with fraud and the immense strain it can add to an already taxing process. 

It's important to spot signs of marital fraud early and address these issues head-on. Being proactive can impact the outcome of the divorce proceedings, ensuring a fairer and more equitable division of assets.

Signs of Marital Fraud

Marital fraud, also referred to as financial fraud in the context of marriage, is a serious matter. This term is used to denote situations where one spouse hides or misrepresents their financial assets to gain an unfair advantage during a divorce settlement. Marital fraud can take several forms, each of which can seriously impact the outcome of a divorce settlement.

Hiding Money or Assets: This is one of the most common forms of marital fraud. In these cases, a spouse may move money to an offshore account, buy property that they hide, or gift property to a third party with the understanding they will receive it back after the divorce.

Property Fraud: A spouse might transfer the ownership of property or real estate to a family member or friend to avoid having it included in the divorce proceedings. They might also undervalue the property or claim it as a business asset to protect it from division.

Investment Fraud: If one spouse has significant investments, they might not disclose these during divorce proceedings. Alternatively, they could underreport the value of these investments or transfer them to someone else.

Business and Income Fraud: A spouse who owns a business could manipulate the company's books to make it look less profitable, thereby reducing their financial obligation in a divorce. Similarly, a spouse could misrepresent their income, claiming it is less than it actually is to reduce alimony or child support payments.

The team at Holstrom, Block & Parke can know how to uncover and prove marital fraud. We have professionals with experience in financial forensics who can help identify hidden assets, undervalued properties, or deceptive business practices. We will also help you understand your legal rights and possible remedies. Remember, every situation is unique, and fraud in your situation might look considerably different. 

Holstrom, Block & Parke's Thorough Approach in Uncovering Concealed Assets

At Holstrom, Block & Parke, we employ a meticulous and systematic strategy to handle marital fraud cases. Our objective is to unveil any hidden or distorted assets. Here are some of the key tactics we utilize in our comprehensive approach to safeguard your interests:

  1. In-Depth Financial Analysis: We closely examine bank statements, credit card bills, tax returns, and more. We're on the lookout for irregularities that might reveal hidden income or assets.
  2. Business Record Inspection: Our team scrutinizes business records and investment portfolios. Our goal is to detect any unusual transactions that might indicate concealed assets.
  3. Lifestyle Assessment: By comparing a spouse's reported income to their spending habits, we can spot any inconsistencies. This can often reveal hidden wealth.
  4. Social Media Examination: We evaluate social media platforms for signs of unreported wealth, such as extravagant purchases or extensive travel.
  5. Property Investigation: We probe into real estate holdings and property acquisitions. Hidden wealth is often found in properties purchased under different names.
  6. Business Interest Review: We investigate business entities associated with the spouse. Assets can be concealed within these businesses to evade detection.
  7. Financial Investment Analysis: Complex financial investments can be manipulated to hide wealth. We're skilled at uncovering these deceptive practices.

Our approach combines these strategies to ensure a thorough investigation, helping to secure a fair and equitable divorce settlement.

Legal Ramifications of Marital Fraud in California

California law views marital fraud seriously. However, proving marital fraud is not an easy task. It requires extensive documentation, expert testimony, and potentially, private investigators. Furthermore, there can be legal repercussions for a spouse found guilty of marital fraud, including fines and potentially jail time. 

Therefore, it's crucial to have a knowledgeable and experienced legal team guiding you through this process. At Holstrom, Block & Parke, we understand how to safeguard your interests throughout complex divorce proceedings. 

Consult Holstrom, Block & Parke in San Diego, CA

Divorces tainted with marital fraud require careful handling to ensure a fair outcome. Your trust and confidence in our team means everything to us, which is why we will leave no stone unturned in the fight to protect your interests. You can count on us to uphold your rights and strive for the most favorable result.

In a California divorce, especially when marital fraud is suspected, legal procedures can become very complicated. If you believe your spouse may be hiding assets or otherwise attempting to manipulate the divorce outcome, you need a divorce attorney well-versed in these situations. Reach out to us at Holstrom, Block & Parke today at (855) 939-9111 to schedule a consultation with one of our skilled divorce lawyers in Southern California.

Divorce

Inheritance and Divorce in CA

California is a community property state that considers any property acquired during a marriage to be marital property. Does this mean that if a family member leaves you an inheritance during your marriage that it becomes marital property? What happens to your inheritance if you and your spouse divorce? At Holstrom Divorce Authority, we can help you understand inheritance and divorce in California and how the law applies to your situation.

Is an Inheritance Separate Property or Marital Property?

California makes property division during a divorce fairly simple. Any property acquired before the marriage is separate property and belongs to the sole spouse. Property acquired during the marriage is community property belonging equally to both spouses.

There are two exceptions to this rule: inherited assets and transmuted assets. If a family member gives you a gift or inheritance, those assets are yours as separate property, whether your inheritance includes cash, stocks, bonds, real estate, or other assets.

An issue of ownership arises if you commingle or transmute your inheritance assets. Commingling could include putting inheritance assets into a joint account, using marital assets to purchase a family home, or investing in stocks, real estate, or a business that you share ownership of with your spouse.

Transmutation is a legal agreement to convert some or all of your inheritance into marital funds. Once you transmute any portion of your separate property, you can’t revoke the agreement and withdraw that property from the marital assets.

Protecting Your Inheritance with a Prenuptial Agreement

If a family member leaves you an inheritance before you are married, you and your spouse can determine in a prenuptial agreement whether any investments procured with your inheritance money will become marital property. You and your soon-to-be spouse can also determine if you agree to share profits from an investment if your spouse helps you manage the investment, and what portion of the investment belongs to your spouse.

If you and your spouse are already married when you inherit money, you can outline similar decisions in a postnuptial agreement. A postnuptial agreement is the same as a prenup, but you and your spouse agree to a postnup’s terms during the marriage. Managing inheritance and divorce in California often requires multiple steps to keep your inheritance separate from marital assets.

Other Ways to Protect an Inheritance in a California Divorce

You have several options to protect your inheritance from a divorce at different stages of your marriage. Before your marriage begins, you have the option to create a prenuptial agreement. You can also avoid commingling assets by creating a separate account or a trust to store your inheritance.

During the marriage, you cannot commingle or transmute funds from your inheritance. Don’t use your separate assets to pay communal debts or to invest in community property. You can set up a separate account or trust and draw up a postnuptial agreement.

Contact an Experienced Divorce Attorney in Southern California

Inheritance and divorce in California are simple concepts if managed correctly. If you’re considering a divorce and inherited property, contact an experienced divorce attorney in Southern California. Call Holstrom Divorce Authority at (844) 237-5791 today.

Divorce / Uncategorized

Understanding Trusts and Divorce in California

When you're dealing with divorce in California, trust issues can become a pivotal factor in asset distribution. Assets in and income from trusts, which are often set up for tax benefits or to maintain family wealth, often prove to be quite difficult to characterize and divide during the divorce process. At Holstrom, Block & Parke, APLC, we strive to provide clarity in these challenging situations while we work to secure your rightful share of assets.

Trusts as Marital and Separate Property 

Just like businesses, trusts can be treated as either marital community property or separate property in California. If a trust was set up before the marriage, it might be considered separate property, unless trust assets were commingled with marital assets. 

On the other hand, if a trust was set up during the marriage, it is likely to be considered marital property, subject to equal division. At Holstrom, Block & Parke, we work to analyze your unique trust situation and strategize to offer you the best way forward.

The Complexities of Divorce and Trusts in California

Living in a community property state such as California, navigating the labyrinthine nature of trusts within the context of divorce is no small feat. Trusts are legal arrangements created to hold and distribute assets. Assets held in a trust can become points of contention and confusion when a marriage dissolves, especially when the assets or trust income have become intertwined with the marital estate.

Trust income is often used to support the marital lifestyle. If one spouse has a separate trust from a wealthy parent, and that trust income has been consistently used to maintain the couple's standard of living, the trust income could be considered when determining spousal support in the event of a divorce. The courts may include the spouse's access to the trust income as part of their financial picture, potentially influencing spousal support calculations.

Similarly, if marital funds have been used to contribute to a trust, that trust may no longer be considered entirely separate property. Imagine a situation where a couple contributes some portion of their shared income to a trust initially established by one spouse before the marriage. In a divorce, the courts are likely to view those contributions as community property and since they have been commingled with the trust property, at least a portion of the trust could be treated community property subject to division during divorce proceedings.

Trust Evaluation in Divorce Cases

Determining the value of a trust during a divorce proceeding in California can be a complicated process. Various factors such as the nature of trust assets, control over the trust, and the terms of the trust agreement may affect its value. Our team can help you understand these factors, ensuring that the value of the trust is accurately represented in your divorce proceedings.

Preserving Your Trust Assets

When facing a divorce, it is important to safeguard your share of trust assets which may constitute a substantial portion of your overall wealth. Our team is prepared with the right strategies to protect your interests both during your marriage or at the time of a divorce. 

Maintenance of meticulous financial records can help tremendously in the process. By keeping clear and detailed records of every transaction related to the trust—including income distributions and reinvestments—you can demonstrate the separate or commingled nature of these assets, supporting your claim to these assets during the divorce process.

It is much more difficult to convince the court that trust assets should be treated as separate property if those assets have been commingled with marital assets. For instance, depositing trust income into a shared marital account can potentially change the separate nature of these assets. By keeping trust assets strictly separate, a trust beneficiary can help ensure their preservation in the event of a divorce.

Lastly, when a couple executes a pre-or postnuptial agreement that specifically addresses the unique nature of trust assets, that agreement will override community property laws, so this type of agreement can be a valuable tool to protect trust assets. Provisions could stipulate, for example, that trust assets and income are to be considered separate property and thus not subject to division during divorce.

Contact Holstrom, Block & Parke in Southern California

Divorcing in California when you have a trust involved is a complex legal procedure. To protect your interests, you need a divorce attorney experienced in handling trusts in divorce. Call us at Holstrom, Block & Parke today at 855-939-9111 or contact us online to schedule a consultation. We stand prepared to advocate fiercely to get the allocation of trust assets you deserve. 

Divorce

Protecting Assets with Trusts in a CA Divorce

Whether you aren’t married yet or you’ve already been married for 20 years, trusts offer you a secure way to protect separate property from commingling with marital property in case of a divorce. But how does a trust work, and how can you plan for protecting assets with trusts in a California divorce?

What Is a Trust?

A trust is a legal structure that allows the grantor (the trust creator) to name a trustee (the trust manager) to manage assets held by the trust until meeting conditions for distribution to the trust beneficiaries.

Using a trust offers several advantages. If either spouse has a trust and passes away, the assets held in trust bypass probate and the trustee can distribute the trust assets to the beneficiaries. Additionally, assets held in an irrevocable trust no longer belong to the grantor. These assets belong to the trust, meaning that a court can’t seize the assets to pay a grantor’s obligations.

Types of Trusts

There are many kinds of trusts you can choose from to maintain your separate property from the marital estate. Which type of trust offers the most protection, though? That depends on what kind of assets you own. Some different trust options include:

  • A revocable trust. Because the grantor is also the trustee and retains control of the trust during their lifetime, the court sees no difference between assets owned by the grantor and assets owned by the trust. However, the grantor has direct power over asset transfers and revisions or revocation of the trust agreement.
  • An irrevocable trust. The grantor must not be the trustee or a beneficiary of an irrevocable trust. Because the grantor gives up control of assets transferred into an irrevocable trust, the trust owns the assets. This offers asset protection for the grantor to retain those assets as separate property.
  • A domestic or foreign asset protection trust. A DAPT or FAPT allows the grantor to name themselves a beneficiary while naming a third party as trustee. This protects the assets from property division, but could leave them open to claims of exemption, including taxes, alimony, or child support.

How a Trust Can Protect Separate Property from the Property Division of Marital Assets

Protecting assets with trusts in a California divorce can be a complex legal topic. California is a community property state, meaning any assets acquired during the marriage are marital property, and spouses will divide them evenly in a divorce.

Assets acquired before marriage or in limited circumstances retain their status as separate property and belong to the sole spouse. Separate property usually includes:

  • A business owned by either spouse before marriage
  • Real estate owned by either spouse before marriage
  • Assets inherited from a family member
  • An inherited family business

Trusts can help you maintain your separate property and prevent commingling with marital assets in case of a divorce.

Contact an Experienced California Divorce Attorney

Protecting assets with trusts in a California divorce can be complicated. Contact us at Holstrom Divorce Authority to schedule a consultation with an attorney for divorce in Southern California at (844) 237-5791.

Divorce

Understanding and Preparing for a Move-Away Case

A Move Away case is one where a parent seeks to relocate to some other geographic area with a child they share with a parent who will remain local. Recently, there has been a dramatic increase in requests for consultations and representation in move-away cases. Some of the requests are due to the simple desire to leave California and reside in another state. Others have job opportunities in another state, or would like to be closer to family. We’ve also received requests from parents who would like to oppose the move-away request by the other parent. Whatever the case may be, understanding the intricacies and legalities of move-away cases is paramount to prevailing in such a case and often that is concurrently doing what is best for the child.

What is a move-away case?

A move-away is a particular type of custody case where two parents have a dispute or disagreement about what's going to happen with their kid(s) when either parent is going to relocate and there is an existing custodial arrangement. For example, they've got a schedule, maybe the parties have been separated for a couple years, or even a few months, but they have an existing de facto or status quo custodial relationship. The arrangement, or custodial relationship, could be 50/50, it could be 80/20. Or it may not be a percentage of time, but something like a set number of days during the week, and alternating weekends. When the kids are typically younger in age it is optimal, from a psychological developmental perspective, for a shared arrangement to grant more time to the parent who has more capability to be home and care for them (if such a circumstance exists).

Whatever the very legitimate and appropriate reason for the existing arrangements, whether by court order or not, the court will make a decision, or the parties have made a decision, that the existing arrangement is in the best interest of the child. A move-away case is a significant undertaking that happens with some frequency--And that frequency is increasing with today’s societal mobility, economic uncertainty, the ability to find more “virtual” employment opportunities, new relationships being formed from long distance, and ever changing migration patterns.

There is an abundance of law from the state of California, that relates to how the court should handle these cases, so that they're handled consistently the same. Yet the tactics and strategies exist that increase the probability of success, whether seeking to relocate with the child(ren), or opposing such a move.

How does a move-away case differ from a visitation case?

Custody time (also called “time-share”) is a plan for how the parents will share time with the children. This may also be referred to as “custody time” or “visitation” or the like. It is a shorthand way to refer to the amount of time a child is with each respective parent. Such court orders vary, depending on the best interest of the children, the situation of the parents, and other factors. If the case is more about minimal schedule changes, it's not a custody case. It's what we call a time-share type case. These cases are typically easier to resolve because we're not talking about a dramatic change in a custodial arrangement.

What many parents fail to understand…

The foundation for every custodial arrangement is what is in the best interest of the children, which includes relocation. So often, parents talk about “my time,” and they use the word “my kids”. They assert that they are entitled to “their rights”. Those parents are incorrect, and will face tremendous challenges if they are involved in litigation. Custody matters will always be about what's best for the children. The law starts from a presumption that frequent and continuous contact with both parents is what is best for the children. Many people confuse that to be a presumption that this naturally equates to a 50/50 arrangement. This is simply not true. There are so many factors involved in determining what is best for the child, outside of the parents’ opinions. The decision needs to be carefully made by the court in order to avoid having detrimental effect on the children, or impede the other parent's ongoing relationship and access to the child.

Some things courts will consider when determining move-away requests:

  • Which parent (if either) has an actual, or de facto, primary custodial relationship prior to the requested move
  • The good faith reason for the move (ex. job opportunity) -not designed to simply get away form the ex spouse (this is in turn mitigated if there is a history of Domestic Violence)
  • Distance of the move being considered/requested and the logistical issues raised include travel time, cost, etc.
  • The child’s age can be a large factor in the judge’s decision as it may be more difficult for younger children who haven’t had proper time to develop parent/child relationships-or older children who while more physiologically and psychologically developed and bonded have concurrently formed strong bonds with friends, schools, extended family, etc.
  • Any history of violence within the household(s)
  • The current and historical relationship between the parents
  • Ability to maintain proper medical treatment at both locations
  • The parents’ ability to Co-Parent or a lack of willingness to do so
  • The “best interest” of the child
  • The child’s preference and feelings about the move (depending upon the age)
  • An overall assessment of the “detriment” of the move. This issue was given overriding importance in the most recent California Supreme court case on this subject. In such cases, even where a permanent custody order is in place, the custodial parent’s right to relocate with a child remains subject to the changed circumstance rule. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072) 1088-1089 (LaMusga).

It is important to note the individual elements referenced above are not necessarily equal, nor determinative. The court will look at the totality of the circumstances in assessing the best interest and detriment.

Here in Southern California, a classic example of a move-away could be any distance greater than 30 miles, say Orange County to Riverside County. While this doesn’t seem like a huge distance, commute time needs to be taken into consideration. The freeways are often heavy with traffic and while the distance isn’t tremendous, the time it takes to travel between the two areas could frequently be over two hours on any given weekday. The commute is going to impede a parent from being able to spend enough quality time with the children. More importantly, how is that drive going to affect that child? Is it going to affect the ability of a parent to pick up on Friday evening? This kind of move would also potentially mean a change in school districts and various other factors.

Here’s where it gets complicated…

Once the relocation is defined as a move-away, things can get really, really complicated. Sometimes the status quo may not contain a court order that grants parents the ability to relocate. Some attorneys who craft judgments (and some people without attorneys) don't put all of the necessary language outlined in their judgments into their court orders, relative to custody. As is such, it may be possible that a parent could move and then change visitation later on. It's also possible that doing so could have negative consequences. This is one reason why it is critical that you have a discussion with a competent family law attorney to talk about your options, in your case.

What if there isn’t a court order in place for custody?

The following is a hypothetical situation: Two parents are unmarried and they're already living apart. There is no court order in place for custody of their child. One parent decides that they want to relocate with their child. They decide that they're going to go ahead and move to New York without consulting an attorney.

Guess what is likely to happen in this instance.... The other parent (more likely than not) is going to run into court and ask for an emergency order to have that parent, either not relocate with the child or immediately return the child. The parent who has already moved to New York, has probably settled in, secured employment and has started their new life. However, the court can effectively change the custodial arrangement because the first parent acted improperly and failed to do things the right way.

It's imperative to get a plan in place and follow the plan. The commonly used colloquialism that sometimes “It’s better to ask for forgiveness rather than permission” may work--or may lead to disastrous consequences.

How does a parent looking to move away get permission if they need it?

First, they will need to create a paper trail and reach out to the other party stating intent to move. Ask them what their thoughts are on the matter. It may be received well, it may not. Regardless, communicating the intent, (or possible intent,) in writing is always the first step. If they don't ask and just rush to court, then the court is going to think badly of that person for not asking or trying to work it out with the other parent. This is true whether the parents have court orders or not. Someone who is still in an intact relationship and simply takes off in the middle of the night with the child to a far away place is equally subject to an adverse consequence. While a history of Domestic Violence may mitigate this, it may not eliminate it.

A key point to keep in mind is that the court has no authority to tell a parent that they cannot move. Every adult in the United States has an absolute, unrestricted right to travel. The government cannot say that a parent can't move; that they have to stay here and take care of the children. In fact, what the court does when they engage in a move-away, is start with the presumption that the move is happening. They make orders based upon that expectation. The order will either be that the children move with the parent who is relocating, or that they stay with the non-moving parent. Then arrangements for visitation will be made accordingly.

Move-away cases are not a quick and easy process

Whether or not there is a custody order in place, a plan is needed. After step one, it might be time to file the move-away request with the court. If it is a full on move-away case, it's probably going to take quite some time to get the hearing on it and get it done. That means going to court, certainly doing mediation at court, possibly doing a custodial evaluation, setting the matter for an evidentiary hearing with witnesses and cross examination, dealing with cancellations and postponements that are rabid in the court system, particularly with COVID, and finally, having the hearing and getting a court ruling. And even if the parties get a court ruling, thee law of California mandates that the parent is not allowed to move for 30 days after that ruling. This can really drag out and parents really need to plan for the long haul.

How long does it take to resolve a move-away case?

This depends on the courthouse. If the case is being processed within the public court system, then parents at the mercy of the court. There may be shutdowns because of COVID. It may also take awhile if a psychological evaluation, referred to as a “730 Evaluation,"  is required. There may be a trial set for three days on a move-away case, and then some other case bumps it, and it gets postponed for another two or three months. A short time period might be six to nine months, while a long time period might be a year and a half or more, because of how the legal system works. This is why it is important to get started with the process as soon the parent thinks that they will be moving. Parents should always make a plan and seek legal counsel before they accept a job out of state, buy plane tickets, or hire movers. Then again, bad advice can set you back both in time and in the ultimate likelihood of success.

No two move-away cases are alike...

Please remember, every move-away case, like every custody case, is different. There are unique aspects of each and every one. The one thing that always remains the same is that ultimately, this is about what's best for the children. If the parents have a good co parenting arrangement, that can serve as a basic foundation for resolving things amicably. However, parents should only do so after consulting with competent counsel.

If you are contemplating a move and want to do things the right way, please reach out to us as soon as possible. Our team has extensive experience with move-away cases and we can help you plan for this impactful life change in a way that keeps your children the priority and offers the best possible outcome for your family.

PLEASE NOTE:

The material and information contained on this website is for general information purposes only and is not intended to be legal advice. It does not create an attorney/client relationship in any way, shape or form. Holstrom, Block and Parke are attorneys at law, licensed to practice in the state of California and have based the information presented on US laws. All cases are different and nothing in this content is intended to suggest any particular result for your matter. Holstrom, Block and Parke has no control over and accepts no liability in respect of materials, products or services available on any website which is not under the control of Holstrom, Block and Parke. Certain links in this website will lead to websites which are not under the control of Holstrom, Block and Parke, APLC. When you activate these website links, you will leave the Holstrom, Block and Parke website. Therefore, we have no control over and accept no liability in respect of the materials, products or services available on the third party websites, which are not under control of Holstrom, Block and Parke. There is no substitute for seeking out advice from a competent Family Law professional and you should always consult with an attorney before you rely on this information.

After Divorce / Child Custody / Divorce / Family Law / Parental Rights

Tips For Creating A Holiday Parenting Plan or Order

It's the most wonderful time of the year...it’s also the busiest and can be the most stressful time for families with parents who are separated or divorced, and have to figure out how to make sure that the children spend time with both parents. Creating a holiday schedule doesn’t have to be a source of stress for parents and children. In fact, the purpose of having a schedule or court order in place ahead of time is to alleviate frustration, confusion and chaos. These things enable both parents to plan for their major holidays respectively, while ensuring that the children have adequate time with each parent and the sense of security that comes with having a well communicated, mutually agreed upon plan. Children have so many expectations and emotions tied to holidays, due to the traditions and memories created. No child wants to spend the holidays, after a separation or divorce, listening to parents argue, being put in the middle of parental squabbles, or being made to feel guilty for spending time with one parent over the other parent. Parents should work together to mitigate anxiety and negative emotions for their children, while preparing them for new traditions and schedule changes in a way that reassures them that the holidays will still be memorable and a positive experience. The Custody Queens have some valuable tips for parents who want to navigate the holiday season as peacefully as possible by creating a plan that works for everyone, especially the children.

  1. Plan ahead. Do not wait until the last minute to start a conversation with the other parent. This needs to be well thought out and planned for in advance of the holiday so that plans can be communicated with the children.
  2. Be specific in crafting court Orders, but remain open to flexibility in practice. Having a specific court Order can help manage expectations and mitigate stress. On the other hand, remember life happens and being flexible with the other parent can be more practical and help foster a genuine co-parenting relationship.
  3. Accept that holidays will generally be split. This is really a conversation about how to arrange the time. Some suggestions on how to do this are:
    1. Alternating holidays (i.e. In odd years one parent has Christmas Eve and the other parent has Christmas day. In even years, the parents switch days.)
    2. Split the day between both parents (i.e. The first half of Thanksgiving Day is spent with one parent, the second half of Thanksgiving Day is spent with the other)
    3. Schedule the holiday twice. As parents, we can observe holidays on alternative days. For example, often separated parents observe their child’s birthday on a different day so that both parents get to celebrate. What child doesn’t want two birthdays?!
  4. Address travel. Will arrangements be needed for transportation and what time will need to be allotted for this? Who will be making these arrangements and paying travel expenses?
  5. Keep the children out of it. Even if you disagree, do not bring your children into the dispute—children want to celebrate holidays, not inherit your stress.
  6. Itemize which holidays need to be addressed in the Order. Some families celebrate only major holidays; others celebrate additional days/school break days/etc…Consider the type of schedule you have. If you exercise joint physical custody, do you really need to recognize all non-major holidays? The answer is sometimes yes. However, consider that with a joint physical arrangement, exercising non-major holidays does not provide you with additional time—it provides you with adjusted time that may cause unnecessary disruptions to an otherwise consistent schedule.
  7. Be efficient. Consider negotiating/agreeing on the entire year’s holiday/special day schedule at the same time. There is inevitably going to be more passion related to the holiday which is right in front of you (i.e. Christmas Eve or Christmas Day). Rather than having 8-9 different negotiations every time a holiday is approaching, just sit down, and agree on whatever split works best for your family for the entire year. If you don’t have your preferred schedule for this year, ask to reverse the schedule on alternating years so that it is consistent and your children get the opportunity to experience each holiday with both sides of the family.
  8. Special requests. If the other side has a request, do not refuse it just for the sake of refusal. Consider asking for an accommodation on your own special requests when negotiating.
  9. Identify your family’s unique needs. If you have them, include them in the plan or Order.

Now is the time to get your plan or orders in place to ensure that everyone has a peaceful holiday. For more tips on thriving during the holiday season, please read our blog post on Tips for Co-parenting Around The Holidays. With good communication, a willingness to compromise and proper planning, your holiday can be a lot less stressful and a lot more merry. Be sure to follow us on social media for daily posts and more.

PLEASE NOTE:

The material and information contained on this website is for general information purposes only and is not intended to be legal advice. It does not create an attorney/client relationship in any way, shape or form. The Custody Queens, a division of Holstrom, Block and Parke, are attorneys at law, licensed to practice in the state of California and have based the information presented on US laws. All cases are different and nothing in this content is intended to suggest any particular result for your matter. Custody Queens has no control over and accepts no liability in respect of materials, products or services available on any website which is not under the control of Custody Queens. Certain links in this website may lead to websites which are not under the control of Custody Queens, or Holstrom, Block and Parke, APLC. When you activate these website links, you will leave the Custody Queens website. Therefore, we have no control over and accept no liability in respect of the materials, products or services available on the third party websites, which are not under control of Custody Queens. There is no substitute for seeking out advice from a competent Family Law professional and you should always consult with an attorney before you rely on this information.

After Divorce / Child Custody / Co-Parenting / Divorce / Family Law

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The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.