The Divorce is Over, but there’s a Disagreement… now what do we do!?

The Divorce is Over, but there’s a Disagreement…now what do we do!?

By Deborah Ewing


In some cases, particularly where there are no children (or they are adults), there are no further legal issues once an agreement is reached and the Judgment of Dissolution of Marriage (divorce judgment) is signed.

However, in many cases, issues crop up after you thought your case was over.  There are many examples, including: the support payor loses his/her job or becomes disabled, and needs a temporary or long term reduction in support obligation; the supported spouse needs an increase in support for similar reasons; a parent moves away requiring modification of the parenting schedule; a child wants to significantly change the schedule, resulting in a change in both child support and the schedule; disagreements about parenting choices or activities for the children; the family residence must be sold and the parties cannot agree on terms. These are only a sampling of reasons people must ‘go back to court’.

But must you truly go to court? NO! The same cooperative process that you used for collaborative divorce, mediation or other non-litigation process can be used for any of these post-judgment conflicts as they arise. Depending on the nature of the issues, the assistance of your collaborative attorney, mediator, financial professional, coaches, child specialists, would be utilized.  Where appropriate, the agreement reached can be included in an agreement submitted to the court.

By continuing to resolve issues in a cooperative way, you reduce conflict, and save money. Even if your divorce case was a messy litigation, it is often possible to resolve future issues cooperatively without going to court, once emotions calm. It is well worth the effort.

Divorce options

Divorce Options – Workshop

Your Divorce Options – What You Need to Know!

Do you know someone who is considering divorce and wants to learn about process options?

Please recommend that they attend an informative workshop called “Divorce Options” at the Torrance Courthouse Law Library from 12:15 to 1:30 on the third Friday of each month.
Guests can attend this workshop even without preregistration. See Flyer for more details.

The program is presented by members of A Better Divorce and LACFLA– family law attorneys, mental health and financial professionals who specialize in divorce and related issues.

Download PDF: Divorce Options flyer – 83KB



Collaborative Divorce

Collaborative Divorces Gain Momentum

Getting a divorce is among the most challenging and trying times of a person’s life. Divorcing couples can spend thousands of dollars and give up many years of their lives to the traditional divorce process.

By the end, the parties come out the other side drained and bound to decisions made by a third party judicial officer.


It doesn’t have to be this way.

Couples looking to avoid such a public and adversarial process are increasingly utilizing collaborative divorce, which allows couples to settle the terms of their divorce confidentially and entirely out-of-court. The end result is that the parties can sign a settlement agreement with terms they actually created rather than terms determined by a judge.

Collaborative divorce is typically much less money than a contested divorce and unsurprisingly, it’s rapidly gaining momentum across the country as the preferred alternative to the traditional divorce process.

Many states, including California, have now enacted laws formally enabling and facilitating collaborative divorces.

Unlike in litigation, spouses typically utilize joint professionals, such as financial experts, child psychologists, custody evaluators and therapists. The goal of the involved parties and professionals is a cooperative resolution in the best interests of the family’s future.

So how does it work? Each party retains a collaborative attorney. The couple and their attorneys then sign an agreement that they will not litigate and will reach a fair settlement directly.

However, at any point either party can opt out, retain new counsel and pursue litigation.

But if the spouses do continue with the collaborative process, they must agree to communicate openly and work with one another and their attorneys to facilitate the process. All involved parties work together as a team, emphasizing cooperation and respect over animosity and confrontation.

Though this process may sound like mediation, it is not. In mediation, parties submit to a single, neutral third party. The mediator then works toward a mutually agreeable decision. However, a power imbalance between the parties often exists and yet they proceed without counsel.

In a collaborative divorce, spouses craft a settlement agreement with the benefit of their own legal advocate to help them.

Herein lies the beauty of a collaborative divorce: The spouses control their own destiny. The parties can come up with creative settlement terms and custody arrangements tailored toward their own unique circumstances that a judge or mediator may not otherwise make. So in many cases, this means a quicker and less expensive divorce with terms that are likely to be successful in the longer run because the parties invested time and effort into creating them.

Joseph Spirito Jr Family Attorney - Redondo, CaliforniaJoseph P. Spirito, Jr. Esq. of McGaughey & Spirito is a practitioner and instructor of collaborative divorces.

Five “No-No’s” When Getting A Divorce

Any of these may be the kiss of death to an amicable, reasonably priced divorce:

  • Don’t date.  There’s no rush!  This is true even if the divorce was not “your” idea.  Don’t join dating services or post your Facebook status as “single.”
  • Don’t make changes to your existing life, auto, health or other insurance policies, unless you have your spouse’s written agreement.  This includes changing deductibles, carriers, insureds or beneficiaries. 
  • Don’t unilaterally tell your children you are getting a divorce.  It is usually better for parents to share this information as a team.  Your children do not want to take sides or be in the middle.  Instead, use this opportunity to reassure your children that you both still love them, and that the divorce is not their fault.
  • Don’t “trash” your spouse to family, friends, and especially your children.  Never assume your children cannot hear you or that information you share in confidence won’t get back to them or to your spouse.  This includes Facebook, folks!
  • Don’t drown your sorrows with alcohol. Allegations of excessive drinking may be used against you in a custody dispute.  Many divorcing people suffer from emotional turmoil – anger, depression and other difficult feelings.  By all means get help from family, friends and/or professionals.

When in doubt, behave toward your spouse as you want your spouse to behave toward you.  That’s the bottom line.

deb-ewingDeborah Ewing, Wendy Jones, and Elaine Thompson are all experienced family law attorneys in the Los Angeles area, and are members  of A Better Divorce, a Collaborative Family Law Practice Group.

Date of Separation

When was it, and why does it matter?


The date on which one or both parties clearly communicate to the other their intent to end the marriage.

There are many details which may be helpful in determining the date of separation, including:

-          Are the spouses still living together?

-          Are they sharing finances?

-          Are they still “working on the marriage?”

-          Have they told anyone they are separating/divorcing?

-          Are they still acting like a married couple in public?

-          Are they still having sexual relations?

-          Has either spouse changed his/her mailing address?

Spouses may not agree on their date of separation.  They may each perceive the situation differently or have a different recollection of events.  When spouses disagree on what the date of separation is, it becomes a matter to be determined later, either by agreement or by a Judge.   


Sometimes the date of separation doesn’t really matter.  However, the date of separation can be important for a number of reasons:

-          The “length of the marriage” is determined by the date of separation, not the date the divorce becomes final.  The length of the marriage can have an impact on such things as spousal support and social security benefits.

-          After the date of separation,

o   Each spouse’s earnings belong to that spouse.

o   New debts incurred by a spouse belong to that spouse.

o   New deposits into benefit plans may belong to the participant spouse

Before your first appointment with a lawyer, it will be useful to think about your situation and the circumstances which might help determine your date of separation.

It should be noted that people frequently claim that they are “legally separated.” Usually they are mistaken.  The concept of legal separation has nothing to do with the date of separation.  It is a separate and unusual legal concept, and a true “legal separation” requires an order signed by a judge.

deb-ewingDeborah Ewing, Wendy Jones, and Elaine Thompson are all experienced family law attorneys in the Los Angeles area, and are members  of A Better Divorce, a Collaborative Family Law Practice Group.

Is Divorce Contagious?

-          Sometimes it seems as though when someone in your neighborhood, family, or social circle gets a divorce, others tend to head down the same path.  Is the grass really greener on the other side?  If divorce is sounding like a tempting option, here are some things you may wish to consider:

o   No two divorces are the same – just as no two couples and no two families are the same.  In a divorce, the differences matter a lot. 

o   “My friend receives/pays $7,500/month in spousal support!”  Maybe so, but that is no indication of what will happen in your case.  Yours and your spouse’s age, financial situation, work history, education, length of marriage, health, and a host of other factors, will influence how spousal support is determined, whether by settlement or in a Court setting.  The details of the amount, duration, and whether support will even be ordered are complicated and will vary widely.  It is impossible to know at the beginning what the outcome will be.

o   “My friends tell me 50/50 custody is the law.”  The phrase “50/50” is often heard in conversation; however, the reality is much more involved. There is no cookie-cutter approach to custody.  The schedule that works for another family may be totally different than what would work for your family.  Such factors as the ages of your children, geographical distance between households, work schedules, special needs, sports and other activities, and the relationships you have with one another will all play a part in determining the best plan.

o   “I heard I get half of everything…right?”  Well, maybe.  The division of your assets and debts is directly affected by the details.  The law on property division is fact-driven and the smallest differences can matter greatly.  Inheritances, separate property before marriage, changes in title, property loans, student loans, when property was acquired and debts arose, gifts to or between spouses, business interests, and many other factors must be considered before the final division is made.

-          Your life after divorce may not be what you’ve envisioned.  Careful consideration of a decision as big as this one is critical.  Just because your friend or relative got a result that looks tempting to you is no guarantee that the same thing outcome happen for you.  

deb-ewingDeborah Ewing, Wendy Jones, and Elaine Thompson are all experienced family law attorneys in the Los Angeles area, and are members  of A Better Divorce, a Collaborative Family Law Practice Group.

Life After Divorce

Now what do you do?

The documents are signed, the Judgment is filed with the court, you are officially “divorced.”  Now what?

-          Don’t throw away the Judgment – ever!  Years later, you may need to provide proof of your divorce (including a copy of the Judgment and Notice of Entry of Judgment) for any number of reasons, including remarriage, adoption, home loans, and Social Security benefits.  It is also wise to hold on to copies of the “Disclosure” documents you exchanged with your former spouse, particularly the Schedule of Assets and Debts, and Income and Expense Declaration.  Don’t throw away your tax returns as long as there is an order for support.

-          Is there any unfinished business?  Once the Judgment is filed with the Court, there are a number of tasks that may need to be completed:

o   Close joint bank accounts and credit cards and transfer any funds required by your agreement.

o   Notify insurance companies of the divorce, so that arrangements can be made to separate or establish new policies (auto, life, health).

o   Change title on vehicles and real property.

o   Make sure that the documents necessary to divide pension and other retirement plans and IRAs are prepared and processed now.

o   Make sure to change, if you wish, the beneficiaries on accounts and insurance policies.  See an estate planning attorney to talk about your new plans.

-          Keep records of payments   It is much easier to avoid conflicts and misunderstandings later on if you are able to go back and show records of what happened. Whether you are the person paying or receiving money, this is equally important.

o   You and your former spouse may have agreed to share the children’s medical costs.  If so, develop a system now for requesting reimbursement from the other parent.  Once a month, make copies of any medical, prescription, dental, vision or other agreed-upon costs you have incurred which were not covered by insurance.  Submit copies to the other parent showing what you paid, with a short (polite) cover note requesting reimbursement for their share.  Email is a good method for doing this if you have easy access to a scanner.  Print out the email or copy the note and put it with your receipts.  When you receive reimbursement, make a copy of the payment you receive.  If you are the one paying the reimbursement, keep copies of what you have sent.  If you don’t receive reimbursement on time (usually 30 days), send a brief (polite) follow up.  If you do not request reimbursement and provide copies to your co-parent, you may not be able to recover those funds later.

o   Whether you are the person paying or receiving support, it is very important to keep a record of each payment.  Years from now, you and your former spouse may disagree on the amount that was paid.  If payment is made by check, keep the cancelled checks (or copies of the checks you receive).  If payment is made through a payroll deduction, keep copies of your paystubs or of the checks you receive.  If you must pay or receive cash or a money order, make sure there is a signed receipt showing the purpose of the payment (child or spousal support, reimbursement for medical expense, shared cost of day care, etc.) 

You really are ready to start the next phase of your life.  With a little time devoted to organization and planning now, you can more easily put this behind you and move forward with confidence.


deb-ewingDeborah Ewing, Wendy Jones, and Elaine Thompson are all experienced family law attorneys in the Los Angeles area, and are members  of A Better Divorce, a Collaborative Family Law Practice Group.

What is meant by joint legal custody

Family Code ‘3083, with reference to the order of preferred joint legal custody

states as follows:

“In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court.”


In essence and in substance, that code section states that if no one specifies the particular of what joint legal custody will mean, there is a “default.” The default status provides that either parent may make the decisions with reference to the health, education or welfare of minor child. Either parent could consent to cosmetic surgery for the minor child, change a child’s school, or even change the child’s name.

Any parent who is seeking joint legal custody should consider specifying the areas which require mutual agreement including the following:

1.         Enrollment or termination of attendance in any public or private school.

2.         Participation in regularly occurring extracurricular activities.

3.         Non emergency medical, dental and orthodontic, other than routine exams

4.         Participation in mental health counseling, therapy or treatment.

5.         Change in area of a child=s residence

6.         Issuance of a driver=s license.

7.         Issuance of a passport

8.     Body piercing, tattoos and extraordinary hair cuts

9.         Signing contracts on behalf of the child (for theatrical services. etc.).

10.      Nominated as a guardian ad litem (to litigate on behalf of the minor child)

Legal custody has statutory liabilities to be aware of even if a parent with joint legal custody does not share physical custody. Civil Code ‘1714.1 provides that a parent in custody and control or a minor is liable up to $10,000.00 in damages resulting from acts of the minor which cause death, physical injury or property damage.  Education Code ‘48904 provides for a parent’s liability for a child’s willful misconduct or vandalism of school property up to an amount of $7,500.00.  Penal Code ‘490.5(b) provides that “a parent having custody or control of a minor” is jointly and severely liable with the minor for shoplifting or theft of books from a library.  lf both parents have authorized a minor to acquire a driver’s license, both parents may share some responsibility with reference to that minor in the event the minor has an accident.

Non-custodial parents should be aware of Family Code ‘3025 subsection (1):

“Notwithstanding any other provisions of law, access to records and information pertaining to a minor child, including but not limited to medical, dental and school records, shall not be denied because such parent is not the child’s custodial parent.”

A non-custodial parent has an absolute right to be made aware of and to acquire information regarding the minor child’s medical and school pursuits. The non-custodial parent need not accept a statement from, for example, the child’s physician or school administrator, that “I’m sorry, we cannot give you this information because you do not have legal custody.@

I hope this gives you a better understanding of what a joint legal custody really means.


Tara-McGuinnessTara McGuinness is a member of A Better Divorce, a Certified Family Law Specialist and has years of experience helping clients in Torrance / Palos Verdes in all areas of family law including California divorce, prenuptial agreements, trusts and estates. Our firm is conveniently located next to the Del Amo Mall in Torrance, California and is one of the most trusted family law firms in the South Bay community.

Collaborative Divorce

Planning Opportunities

This is the forth in a multi-part series by Christopher M. MooreRead Part 1 (PENALTY-FREE DISTRIBUTIONS FROM RETIREMENT PLANS BEFORE AGE 59½ : A WINDOW OF OPPORTUNITY),  Part 2 (Retirement Plan Interests as Community Property) and Part 3 (Taxation of Retirement Plan Withdrawals)

Planning Opportunities

The two common opportunities for planning afforded by Code §72(t) are those relating to distribution pursuant to a QDRO and periodic distributions from an IRA. Any amount may be distributed in a lump sum directly from a qualified retirement plan (other than an IRA) to the non-employee spouse before age 59½, without imposition of the penalty tax. Where an IRA is involved, the benefits may still be withdrawn as periodic payments under Code 872(t,)(2)(A)(iv).

Where the retirement plan in question is something other than an IRA, therefore, the non-employee spouse may receive part or all of his or her share in a lump sum. if that option is available under the plan, at ordinary Income tax rates, without the imposition of the 10 percent penalty tax. even if the recipient spouse is under age 59½, This can be a source of cash for the purchase of a residence or other assets.

Where the retirement plan in question is an IRA or the plan proceeds have already been rolled into an IRA, the spouse still has the opportunity to receive periodic payments free of the additional tax. These payments will vary depending on the age of the spouse and may require an actuary to calculate them, but there is some flexibility in setting periodic distributions so that greater or lesser amounts may be taken if desired. Once periodic payments are begun, they may apparently be later changed or stopped. Because only periodic payments may be made from IRA’s and lump-sum withdrawals may be made from other retirement plans, any decision as to a lump-sum distribution should be made before rolling the non-participant spouse’s interest into an IRA.

The opportunity to withdraw retirement plan benefits without penalty appears particularly attractive with today’s relatively flat tax rates, which may make it possible to withdraw large amounts from a plan during a particular year at ordinary income tax rates without increasing the tax rates.

The availability of retirement plan funds without penalty increases the options available to the parties and also, of course, creates new arguments for the parties. The spouse who is still working and not receiving benefits from the plan, for example, may argue that the ability to reach retirement plan benefits without penalty should be considered as a basis for reduced support to the non-participant spouse.

The exceptions discussed above will not apply to every case, and in many cases where they do apply, the parties may decide not to take early distributions. Distributions, once taken, are still taxable, and there is a strong inducement to allow assets, whenever possible, to remain in the plan to grow and compound at tax-deferred rates.

Whatever the facts of a particular case, however, if there are retirement plan interests and either spouse is under age 59½ counsel may wish to consider taking advantage of the window of opportunity afforded by the exceptions to the penalty tax on premature distributions found in Code §72(t).

Chris-Moore2Christopher M. Moore is a certified family law specialist, a fellow of the American Academy of Matrimonial Lawyers and a member of A Better Divorce, having specialized in family law for many years. Those years as a litigator have taught him that Collaborative Practice is the best way to resolve a divorce. A collaborative case is always faster, costs less and is less stressful than a conventional case where the parties face court congestion, delays and an adversarial, often hostile, relationship. Click here for more information about Chris and his firm.