Once divorce papers are served and filed, there are many questions a divorcing couple will have throughout the divorce process. When emotions are involved, especially in a high-conflict divorce, it isn’t always possible to figure out what’s best for you and your children. California family lawyer Erin McGaughey discusses the various complex issues that may arise during the divorce process, including child support and custody, spousal support, and choosing between a collaborative divorce and litigation.
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Divorce Magazine Podcast: California Family Lawyer Erin McGaughey on the Divorce Process
Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Family Lawyer, Erin McGaughey Partner at McGaughey & Spirito, California family lawyer Erin McGaughey handles complex divorce cases that involve child custody issues, financial issues, and business interests. She is among a select group of California attorneys who hold the state bar certification of Family Law Specialist. From 2011 to 2013, she was recognized as a Super Lawyer Rising Star by Los Angeles Magazine.
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Read the Transcript of this Podcast Below.
What are the first steps someone needs to take after being served with divorce papers?
McGaughey: Staying calm is important to do right away because, a lot of times, people are really taken aback; they’re angry, they’re hurt, there’s a lot of emotions. Give yourself a moment without reacting. I always advise that people speak with a family law attorney, ideally more than one, just to simply ascertain your rights, your obligations, and get a basic education on family law. There’s a lot of nuances in family law that most people don’t know when they get married.
You don’t ultimately have to be represented by an attorney; you can represent yourself, you can retain counsel. But it’s always a good idea to get a little bit of an understanding as to what’s going to happen in this divorce process and what are the steps that need to take place. A person should be aware that they have about 30 days to respond once they’re served. There is some timeliness to this that needs to be taken into consideration as well.
If someone doesn’t want to accept their spouse’s settlement proposal, does a divorcing couple have to go to court to settle their differences?
Not necessarily. Many settlement proposals are what I would consider works in progress, often multiple counter-offers that go back and forth between the parties before a final agreement is agreed upon. Sometimes, if it seems that they’re just at a stop-gap, you can utilize a mediator and maybe get some other ideas of how to resolve the outstanding issues. A mediator could be an attorney mediator. There’s some mediators who are retired judges that will also work with the parties. Sometimes, that third party can also provide some creative options to try and get the deal finalized.
If a divorcing couple can’t even speak to each other without getting in an argument, is that considered a high-conflict divorce? What does high conflict mean in the context of divorce? Is it physical, emotional, mental?
It can be any of those things. Sometimes, though, the divorcing couple can’t speak to one another because it is very emotional and hurtful, and a lot of emotions are raised. I would consider a high conflict to be more with those couples who almost will aggravate one another, whether intentionally or because it’s driven out of hurt or fear. The high conflict can come out of physical or verbal aggression. If there’s a restraining order involved, that’s definitely a high-conflict case.
What are the effects a high-conflict divorce can have on the children? How can a concerned parent protect his or her children from being harmed from this conflict?
A high-conflict divorce can have a very devastating effect on children. The fighting, the tension, the emotional turmoil – a lot of times the children do pick up on this. I think it’s very important for the clients to remember that they love their child more than the emotional troubles that they’re having with their spouse and the dislike.
I often times will encourage the parties, or the party that I’m representing, to meet with a parenting specialist to help them create the parenting plan that’s in the child’s best interest. Therapy is also something that is a very useful tool for the parents to keep the emotions that they may have for their spouse compartmentalized and allow them to parent and understand that they are both the child’s parent and the child has the right to have both them as parents in his or her life.
One thing I’ve heard a judge say to couples that I think can be effective is, “Mom, every time you speak bad about dad, you’re speaking bad about your child, and they know that. And dad, every time you speak bad about mom, you’re speaking bad about your child, and they know that. It’s very hurtful to the children, and I think keeping your love for your child in the forefront of your mind is very important.”
Can you describe some of the different options for child custody during and after divorce?
Child custody is actually comprised of two different components: there’s legal custody and there’s physical custody. Legal custody is the right to make the decisions regarding the health, education, and welfare of your children. The physical custody, that’s the parenting plan. Visitation is really a subsection of the parenting plan.
Many years ago, we used to say primary custody. A lot of courts have moved away from that because they don’t want one parent feeling as secondary. So, it’s often called a parenting plan or just joint physical custody, and the children shall be with the mother during this time and the father during this time. In terms of developing the parenting plan, it’s very specific to the family and what works in that family to meet the best interests of the children.
If parents have joint physical custody, can both claim the children as dependents? If not, who gets to claim them?
That is actually pursuant to IRS regulations. The short answer is that only one parent is able to claim the child as a dependent. It’s generally the parent who has more than 50% of the custody in every given year. The parents, however, can agree to alternate who claims the child as the dependent if they share 50/50 custody. Or, depending on the income levels of the parents, they can agree that one parent who has the child more than 50% of the time releases the exemption to the other parent. That’s a question that is best suited for the party’s accountants to figure out if there is going to be a major tax benefit in that reallocation.
Can divorcing spouses agree that neither one of them will pay child support to the other?
They can agree to that, yes. But the right to child support runs with the child, so it’s always modifiable. The parents can agree to no child support right now, and then, if things change in a few months, maybe child support would be appropriate. But yes, they can always agree as to the appropriate child support, whether it’s more or less than what our guidelines would otherwise say.
If there is joint physical custody but the child is living much more of the time with one parent than the other, would the parents need to change the child support arrangements to reflect the actual custody arrangements?
If they want to they can. They don’t necessarily have to, and sometimes, I advise clients, “Keep your eye on the prize, okay?” If the other parent isn’t exercising all their custody, and you’re really enjoying your custody, beware that if you go into court and ask for more child support, because the child support is tied to the timeshare, that parent may start exercising their custody.
How is spousal support determined? Does it make a difference if one spouse was not employed for the first few years of the marriage?
Spousal support is determined on a temporary basis during the pendency of a divorce. We often use the guidelines similar to the child support. We also look at factors in the family code that are considerations in determining the amount of support, which is really the key arguments and data that the court will look at when making a permanent support order.
The most important of those factors are the ones that you see used most often: the ability to pay and the need for spousal support. This leads into the second question: If a spouse hasn’t been employed for five years during a marriage, will that have an effect? Yes, it will. The courts on a temporary basis basically look at where everybody is right now. What’s the current status quo? However, it is the goal of the state that all parties become self-supporting. There is an expectation that the unemployed spouse at some point will start earning money and contributing to their needs monetarily.
One of the 4,320 factors that’s also considered by the court is how much time one spouse may have taken off to devote themselves to domestic duty. Again, the question is if a spouse is not employed for five years during the marriage. Well, is that because they were running the household or taking care of small children and that sort of thing? So, yes, that will play into the spousal support that’s ultimately decided by a court or most likely negotiated.
If someone doesn’t agree with the judge’s ruling, can they appeal it? If so, how is that done?
Yes, they can appeal a judge’s ruling. They file a notice of appeal and they start the appellate process. It’s a very technical process. I always recommend my clients consult with the appellate counsel. It’s also very expensive. Not a lot of people can afford to do it. The rate of successful appeals is somewhere in the range of about 30-33% in the county. Another option is to do a writ if you don’t like the judge’s ruling during the pendency of the case. That has even a smaller success rate for the court to take those up and hear them.
Can high-conflict cases be resolved through the negotiation or only via litigation?
Well, they can definitely be resolved through negotiation. I think in that type of situation it’s always helpful to have coaches involved or mental health professionals to give them some direction and some strength in terms of the negotiations, helping them understand what are the emotions that they’re feeling and what’s in their best interest. What you know legally is going on here, understanding what they need to do, and giving them the tools to get through the emotions will allow them to deal with the deal on the table.
Are there any advantages to taking a divorce case to court, or is it always better to settle out of court? Are there times that one method is better than the other?
When you litigate a case, you never know for certain what that judge is going to decide on an issue. When you settle a case, you have certainty, you have peace of mind, and you have some control over the concessions that you make. You don’t always have that in litigation. The judge will say, “This is what’s going to happen. These are my orders.” In that scenario, you don’t necessarily get everything that you want or that you like.
However, not all cases can settle. An example would be a move-away or a relocation case where you have one party who wants or needs to move across the state or the country and take the minor child or children. These are very difficult cases to settle. Sometimes a party doesn’t cooperate with the settlement process; those cases also need to see a judicial officer to help with the ultimate resolution. Generally, I find clients are happier when they’ve settled their case, made their own concessions, as opposed to having someone else who knows very little about their life make the ultimate decision. Cases are different, but when it’s possible to settle, most clients are better off afterwards.
Do you find that in some cases, people pursue litigation because they are hoping that the judge is going to side with them for financial reasons or, possibly, for emotional reasons, to prove that they were right and their ex is wrong?
Definitely. I think that some people come in, and they’ve been hurt and they want somebody to make it right. Family law is an interesting area of law because in most other aspects of law, somebody is going into court because legally they believe they’ve been wronged. It’s emotional issues that generally lead to the divorce – not legal issues. So, there’s a lot of emotion that comes in that’s driving the divorce, but it’s not a factor in resolving it legally.