When a couple is in the middle of a San Jose divorce, the key factor in determining child custody and visitation is what is perceived to be in the best interest of the child. Older children, particularly those over age 14, may be asked for their opinion on such matters, but young children must often rely on their parents, a team of adversarial lawyers who represent their parents (not them), the overworked professionals at Family Court Services and/or Mediation Services, and the discretion of a Family Court Judge to decide the best arrangements for them. What modern divorce law often fails to do is recognize that a child’s needs change over time.

What is in the best interest of a toddler is not necessarily in the best interest of an older child. What works well when your son is in elementary school might not be the best custody arrangement when he’s a high school student. Girls and boys often have different needs and mature at different rates. Teenagers often have jobs, extracurricular activities, and relationships with their friends that they do not want upset by complications in their living arrangements. When parents remarry and step siblings or half siblings are added to the mix, family life becomes even more complicated. A one size fits all approach to child custody and visitation issues is simply unworkable.

As you’re negotiating a San Jose divorce settlement you should carefully consider what is best for your children, since if the deal falls apart and you show the Court what you bargained for (as part of a fees argument) offers to settle from you that clearly put your children first could be read by the Court. Letting the Court see who put the children first could help your case, and in fact this divorce lawyer’s exerience has been that the Courts will often take your good ideas and directly incorporate them into the Court’s ultimate rulings.

Children will often suffer emotional harm as a direct result of being put in the middle of the divorce. A parent directly asking the children what visitation schedule they want could be heard by the child as that parent asking that the child take their “side” in the divorce. Being faced with a lose-lose set of choices (time with mom is NOT with dad, and time with dad is NOT with mom) can be like placing a heavy emotional weight on a young child. If the Court finds out that you put such a burden on the child(ren) it could hurt your case, and in fact Family Courts regularly Order that neither party talk about the case with the children.

You raising difficult issues is different from you listening to your child(ren). Listen, and try to make them comfortable enought to talk to you. Children are often afraid to speak up about their needs for fear of hurting the feelings of their parents, but a child who is unhappy with the visitation and custody arrangements will often act out in ways that make life difficult for the entire family. If you and your spouse can maintain a positive co-parenting relationship, it is a good idea to plan to readdress custody and visitation schedules periodically to make sure the arrangement continues to be satisfactory to everyone who is involved.

When parents are committed to working together and being respectful of their child(ren)’s feelings throughout the process of seeking a divorce, everyone benefits. Choosing a San Jose divorce lawyer with extensive experience in family law can help you craft a settlement that is fair to everyone involved, and allows all of you to move forward with the next chapter of your lives.

Divorce isn’t easy at any age, but going through a San Jose divorce as a woman in your 50s can be especially challenging.

When you are divorcing in your 50s, you’re likely to be coming out of a long term marriage (in California, “long term marriage” is a term of art meaning more than 10 years). No matter how you look at it, the loss of someone you’ve shared your life with for the past 20 or 30 years is devastating. Be kind to yourself during this time and allow yourself the space you need to heal emotionally.

Emotional support is very important when you are going through a divorce, especially when you’re in your 50s. Younger women often have the responsibilities of caring for small children to distract them during the divorce process, while women in their 50s are likely to find themselves with plenty of time alone to spend brooding about the end of the relationship, or reading blog posts from others. It is normal to experience some sadness when filing for divorce, but be on the lookout for drastic changes in mood or behavior that could indicate you are suffering from clinical depression.

Do not be afraid to seek the assistance of a counselor or therapist if needed — preferably before you file for divorce. While divorcing your husband because he is the cause of all that emotional pain can make sense, particularly if he is physically abusive, has an alcohol, drug, or gambling addiction, divorcing him and then later realizing that he was not the cause of your pain and that, in fact, you just separated yourself from the one person who was most likely to help you deal with the pain would be a big mistake. A good divorce attorney may not be able to get your husband back for you, after he has been served with the legal papers. If you attend church on a regular basis, your worship leader may be able to provide some comfort during this time and/or provide some valuable counseling and insight.

If you worked part time or stayed home during your marriage to tend to your children, you’ll need to be thinking about how you’ll support yourself financially. Alimony awards can be helpful, but the Courts base spousal support on numerous factors, including the ability of the other party to pay support. If your spouse is in his declining years you should be aware that the Courts are unlikely to make him pay the same amount of support after he loses his job or retires. You may be entitled to a portion of your spouse’s retirement benefits, but recent economic conditions might have left these benefits worth less than what you would need to live independently.

As a divorced woman in her 50s, you’ll need to consider all of your options carefully, whether this means completing some sort of training to boost your marketable skills or making significant adjustments in your living expenses to accommodate your lesser income. In addition to discussing this issue with your San Jose divorce lawyer, you may also want to meet with a certified financial planner to make sure your future needs will be taken care of.

Couples seeking a San Jose divorce often find themselves wondering what an “uncontested divorce” means. Contrary to popular belief, an uncontested divorce is not a divorce in which there are no disagreements. It is simply a divorce in which the parties involved have managed to work out a solution to their differences without the need for costly and time consuming courtroom proceedings. It’s what most people would refer to as a “friendly” divorce or a “good” divorce.

A divorce can involve negotiations on up to four major issues: division of community and/or marital property, division of debt, custody of minor children, and payment of child and/or spousal support. If the marriage did not produce children or the couple has accumulated no significant debts and has no assets to divide, there will likely be little left to settle. However, even marriages that do require negotiation on all four of these issues can end in an uncontested divorce if the couple is willing to work together to come up with a mutualy agreeable solution to their divorce settlement.

Mediation and arbitration are becoming popular as alternatives to courtroom litigation in a divorce settlement. Attorneys are often still involved in this type of divorce, but they serve only to draw up the proper paperwork to make sure that the agreement reached will be legally binding or to provide explanations of all of the available alternatives in order to make sure that everyone feels they are being treated fairly during the negotiation process.

Most Family Courts in California now offer some form of Alternative Dispute Resolution, in an effort to reduce the burden on the Court’s trial calendars. Because that burden on the Courts is mirrored by the size of the parties’ legal bill (a trial can be time consuming to prepare for and the costs of preparing can be substantial) it is usually prudent to consider settlement of any issues that are not complex and teh other parties’ position is reasonable. At the same time, each form of ADR has its potential traps for the unwary, so it is highly advisable that you talk with a good divorce lawyer to know the rules before you just jump in. For example, in California there is a Mediation Privilege, which is good if you want the Mediation to remain confidential, but if the other party lies to you (fraud) during the Mediation, and you make a deal assuming that lie is true, then when you find out the lie later you may not be able to use the actual false statement in Court — because that statement was privileged!    

If you are interested in an uncontested divorce and/or collaborative law, look for an attorney who has experience working with mediation, arbitration and/o collaborative law. An attorney specializing in family law or one who supports “child-focused” divorce would be a good choice. Every divorce attorney has his or her own unique style when it comes to practicing law. Some divorce lawyers are problem solvers while others live to make war. Picking a San Jose divorce lawyer who understands and supports the type of divorce you hope to have will increase your odds of being able to move on with your life as soon as possible.

When contemplating a San Jose divorce, many people fail to consider the link between divorce and health insurance coverage. In most cases, legally ending your marriage will impact your medical coverage.

If you have children with your spouse and he or she currently provides their healthcare coverage, continuing to maintain the insurance can be negotiated as part of the divorce settlement. A parent’s responsibility for a child’s medical needs is not affected by divorce. However, if your personal health insurance is through your spouse’s employer, he or she will usually not be able to continue to provide this benefit when your divorce is finalized.

As a divorced spouse, you will be eligible for COBRA (Consolidated Omnibus Budget Reconciliation Act) coverage for up to 36 months if your spouse works for a company that employs 20 or more people and you notify the health plan administrator within 60 days of your divorce. The purpose of this law is to provide you with a way to make sure that you have no gaps in your health insurance coverage. Unfortunately, COBRA coverage is very expensive. When you are covered by a spouse’s employer, the employer is most often paying a large portion of the monthly premium. Under the terms of COBRA, you must pay for this coverage entirely on your own. In fact, you will be paying 102% of the cost of the coverage.

If you can obtain health insurance through your own employer, this will almost always be a more favorable alternative than obtaining COBRA coverage. Private insurance policies purchased through a company such as Aetna, United Healthcare, Anthem/Blue Cross, or einsurance might be an option as well, depending upon your age and overall health. (No recommendation of any particular policy and/or company is made herein, rather it is suggested that you check rates and policy terms with multiple companies before you settle on one).  

Under some circumstances, a former spouse can be ordered to continue to provide health insurance coverage as part of alimony. For example, an ex-wife might request continued medical coverage if she was a stay at home mother throughout the marriage and now can’t obtain affordable private health insurance due to having needed treatment for breast cancer. If you have special medical needs that affect your ability to obtain proper medical insurance coverage, make sure the San Jose divorce lawyer you select to provide your legal representation is aware of the issue.

Occassionally, the issue of health insurance can be of critical importance, particularly if you have a serious medical condition that requires expensive treatments. If you have that situation you should inform your divorce lawyer at the very beginning so that he/she can do everything possible to protect your interests.