2015: Why are Some Divorce, Paternity and Legal Separation Cases in San Diego Superior Court More Contentious Than Others and why Does it Matter?

Emotions always run high in family law cases and it does not make a difference whether the case is a legal separation, divorce or paternity. This is especially true when visitation and custody is an issue in the case. As neither parent will be able to spend 100% of their time with their child or children [as they did when they cohabitated] this means that each parent can only spend 50% of the time if both parents are going to see the children or child equally. When parents are living together, in most cases, they try and work in a collaborative fashion to resolve and continue their relationship. Contrast this with a pending paternity, divorce or legal separation family law case in San Diego which often is an adversarial proceeding as each parent would like to spend as much time [in vast majority of cases] as possible. In addition, given both spousal and child support, there is an inherent dynamic which is [unfortunately] adversarial in nature. Payors of support would [in most cases] like to pay as little as possible and most payees of support [again in most cases] would like to receive as much as they can. Neither party is right or wrong and this is human nature for financial best interests. Unfortunately, of course, this lends itself to arguments regarding the parenting plan and the amount of child and/or spousal support. Most negotiations and/or dispute resolution strategies try to adopt some form of a “win/win” outcome. In a family law, there are no winners and only degrees of losing as no one wants to divorce when they get married. Whether a legal separation, divorce or paternity, the parties will never live together as they did in the past.

In some cases, the spouses or parents cannot speak with each other. This, of course, makes the matter much more difficult to resolve. Imagine a business meeting in which buyer and seller cannot speak with each other. How could they ever reach an agreement? Of course, in the example above, this would be a collaborative process with both buyer and seller desiring to reach an agreement. In many family law cases, resolution of financial issues are not considered as a business decision and as an emotional decision. While, clearly, spending time with your children or child is emotional and not a financial issue or business decision, there are issues which are financial but become an emotional issue in many cases. One example of the family residence. Many cases have both spouses insisting to stay in the marital residence without fully analyzing the economic impact. For example, if spouses cannot agree on a buy out, the Judge will often order the house sold. Both parties would pay 50% of the commission costs for this community property asset sale. There have been cases in which both parties were so insistent on keeping the house that neither could agree to a buy out of the other and the house was sold. It is a common practice, when a buy out, not to have the commission fee deducted. The spouse who is bought out benefits since does not have to pay 50% of sale commission and the buying spouse benefits since does not have to move and keeps residence. This is complicated since the transfer of interests in the community property residence must be considered. The bought out spouse will need their name taken off of any obligation for the house and there also may need to be an equalization payment if equity. The buying spouse will need to refinance in own name and will obtain an interspousal transfer [or other] deed which places house in their own name. Given that incomes may be considered for support, it is crucial to analyze budget post division given all costs and expenses. There are many additional factors which need to be considered including any reimbursements and a complete analysis with all factors needs to be made before deciding to buy out or be bought out of the marital residence.

The law firm of Doppelt and Forney, APLC offers a confidential and complimentary virtual consultation in their office for family law cases in San Diego Superior Court. This 30 minute virtual consultation is confidential whether you use their legal services or not. Conveniently located in Rancho Bernardo with free parking and elevator, their office is easy to get to for your consultation.