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Fair Cadora, APC
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The Dreaded Move-Away Case

Child custody litigation is some of the most emotional and costly litigation in family law for obvious reasons, namely the fact that most parents love their children more than anything and cannot bear the thought of being apart from them. Child custody litigation becomes even more emotional, costly and complex if the primary custodial parent seeks to move the child outside of California.

Move-away cases are the brain surgery of child custody litigation because there are many factors the court must consider when deciding whether a child should locate to another state or country. Furthermore, there are several procedural and legal hurdles the parties must overcome when they seek to litigate or defend a move-away case. Some of these factors include the child sharing arrangement prior to the request, whether the current custody order is a final custody determination, whether there is potential detriment to the child if the child moves, the child’s interest in maintaining the status quo in the current custodial relationship, the relationship between the child and parties as well as between the parties themselves, the distances of the move, the reason for the move and even the child’s preferences.

In addition, the parties to a move away matter are entitled to a full custody evaluation as well as a full trial on the issue of the move away both of which will cost the parties tens of thousands of dollars. Let’s also not forget the substantial impact on the child if one parent moves and one parent stays behind. The bottom line is that there are no winners in a move away case because the child is going to be apart from both parents for many months at a time.

If you are considering relocating to another state or country with your child or the other parent has filed for a move-away request, call Fair Cadora now to learn about your rights to take the appropriate steps towards protecting yourself and your children.
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When it comes to divorce, California is a “no fault” state which means that no matter the reason parties get a divorce, a spouse is NOT entitled to “damages” for things such as abandonment or adultery. In fact, married couples in California can get divorced simply by having “irreconcilable differences” which basically means someone wants out of the marriage.

Now, bear in mind that just because California is a “no fault” state in terms of divorce, spouses still owe a “fiduciary duty” to one another which is the highest legal duty someone can have to someone else. With this fiduciary duty owed to your spouse comes the right and obligation to be completely transparent with one another about the finances of the marriage.
Hiding money, incurring substantial debt or engaging in transactions that materially affect the marital finances without notifying the other spouse can subject a spouse to various penalties such as an unequal division of assets, the payment of the other spouse’s attorneys’ fees and even monetary penalties called sanctions. The fiduciary duty owed to your spouse continues even after you separate until the time a judgment is entered which means the spouses are required to constantly update the other of any transaction, business, personal or otherwise, that could affect the marital estate.

Furthermore, spouses are required to notify and allow the other spouse the opportunity to engage in any transaction, business, personal or otherwise, that affects the marital estate such as buying and selling real property or a business opportunity. A spouse’ failure to fully and accurately disclose anything that may materially impact the marital estate could result in the loss of the asset, payment of attorneys fees and/or monetary sanctions.

The moral of the story is to keep your spouse apprised of all financial issues, including financial opportunities, that affect the marital finances.
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All too often in family law proceedings, parties and their attorneys allow their emotions to control the direction the case proceeds, which always ends in the same way with the parties' lives and their children's lives in ruin both emotionally and financially while the attorneys sit back and collect tens of thousands of dollars in attorneys’ fees. What most people do not know and what many family law attorneys fail to tell their clients is that family court is not a court of law where there is always a winner and a loser like in a criminal case or an auto accident lawsuit. Family court is a court of equity which is founded on principals of fairness, equality and best interest. Family Court has no winners or losers; just degrees of losing because even if you as a party think you won a custody case or a property dispute, your children, your bottom line, and/or your relationship with the other parent will be negatively impacted by the result regardless of what you may think and/or feel about the outcome.

Most family law attorneys in California also forget or simply fail to tell their clients that California is a no fault state so a party's conduct during the divorce, other than abuse towards a spouse or child, is completely irrelevant to the proceeding. This means that your spouse's infidelity, lying or midlife crisis has absolutely no impact on the proceedings unless there was some type of breach of fiduciary duty, which is rare. Despite this fundamental principal in family law, parties and attorney time and time again bring up issues of infidelity and other non-abusive conduct that only fuels litigation and increases fees because the other side denies the allegations and digs their heels in. Parties and attorneys also often prepare testimony and declaration that are emotionally charged that contain irrelevant material that judges really do not want to hear or read.

What is the solution then? Cooperate, come to an agreement and stay out of court. As hard as it may be to come to the table and try to reach a compromise, espeically when your spouse has hurt you emotionally, the alternative is flipping a coin and hoping for the best and taking the matter to court where someone who knows nothing about you and your life is going to make a decision based upon a very limited source of information and facts. It does not matter how many good facts you have or who your attorney is, there is absolutely no guarantees because the outcome in family court is almost always both sides walking away upset that they did not get everything they wanted and being furious with their attorney in the process.

There are, however, times when you need to litigate and take issues to court such as allegations or false allegations of abuse in a domestic violence matter, high conflict custody disputes, when one parent wants to move the children out of state or when two experts differ greatly in values of property and there is not compromise to meet in the middle. A good rule of thumb that we advise clients is only take cases to trial when you have nothing to lose. Another good rule of thumb is to litigate when the benefit outweighs the cost. An example of when you should NOT litigate is when it will cost you $20,000 in attorneys’ fees to go after $10,000. Never throw good money after bad despite what you attorney tells you becuase a year down the road you will be kicking yourself.

The take away from this article is to always consider settlement and cooperation prior to litigation and to follow the sound, objective and unemotional legal advice regarding your case. If you attorney is pandering to your emotions and pushing for litigatin to make the other side pay, they are providing no service to you because highly charged and emotional cases only results in one winner… the attorneys. Give us a call to learn more about cooperation versus litigation in family court proceedings.
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Lawyers are salespeople because we sell our expertise and our time. We do not sell guarantees and you should run away from any attorney who guarantees an outcome because no matter the facts of a case or the law you believe is in your favor, the only one who controls the outcome of your case is the judge and they sometimes don't get it right. I've seen judges make orders completely contrary to the law knowing full well the parties do not have the money or expertise to successfully appeal the decision. So guarantees from lawyers are a clear indication of a bad attorney. It is also unethical for attorneys to guarantee an outcome based upon our rules of professional conduct so don't buy into the bull and beware the guarantee gremlin.
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The Emotionally Unstable:

Crazy. Nuts. Delusion. These are terms we hear everyday in our business and the reality is often much worse. Emotionally fragile people often spiral out of control and become worse and self medicate as a result of a pending divorce. We have seen meth induced psychosis turn into a party lighting their face on fire in front of the children in an attempt to keep the relationship together. We have seen paranoid Schizophrenics, believing themselves to be Jesus, kidnap children thinking they were protecting them from the Devil. Worse yet we have seen an emotionally and mentally ill person light their own children on fire in order to hurt their estranged spouse. If you feel that a spouse is mentally or emotionally unstable and may hurt themselves, you or worse yet, your kids, take every precaution to protect yourself and your children and call us immediately to get the guidance you need.
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Guess what friends? No matter what is going on in your divorce, you will lose. Children will be impacted, you will always pay too much support or receive too little, and property is divided, sometimes unequally. So who are the winners in Family Court? Visit our blog to find out.
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People often have the misconception that divorce severely and negatively impacts children. While divorce is never a positive experience, there is one simple rule parents must abide by to lesson the impact on children - NEVER INVOLVE YOUR CHILDREN. It is a parent's responsibility and duty to protect their children at all times, which includes protecting children from the fallout of a divorce. Tragically, many parents feel it necessary to talk about adult issues or court proceedings in front of the children or worse yet, talk negatively about and/or alienate the other parent. If at any time you find yourself talking to your children about a divorce or negatively talking about the other parent children in front , bear in mind that you are extremely selfish because that the only person you are hurting is your child. Always be positive around your children and let them be children. Otherwise, your problems will only escalate from bad to horribly unbearable.
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