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Divorce

Legal Separation vs Divorce

By | Divorce, Family Law Blog, Legal Separation

Legal Separation and Divorce: What’s the Difference?

When you and your spouse file for a divorce, you are essential asking for a judge to end your marriage, allowing you to legally separate and divide your finances and assets between yourself and your spouse. In contrast, when you apply for a legal separation, you draft a settlement agreement with your spouse that will explain the responsibilities and rights each spouse maintains despite living apart. During this time, you will still remain legally married, however, you will be choosing to live separately.

What is a Legal Separation Agreement?

Many financial professionals suggest that if a spouse is looking to spend time apart from their husband or wife for a period of time that extends beyond a typical trial period, they should probably obtain a legal separation agreement, which will help to resolve issues such as alimony and spousal support, division of assets and debt, and child support and visitation rights.

In some cases, a legal separation agreement can help you to reduce some financial risk. Since if you decide to live separately from your spouse without one, you could still remain liable for any debts and legal issues your spouse is involved with, despite the fact that you may not be living together. A written agreement regarding your separation would limit your liability for debts incurred by your spouse during the time in which you are separated.

Will California Recognize your Legal Separation?

The laws on divorce and separation can vary from one state to another, but each state will typically fall into one of three categories, including:

  • Those which require a legal separation before partners can file for a divorce.
  • Those which neither recognize nor require a legal separation.
  • Those which recognize a legal separation, but do not require one.

Here in California, the state will not only recognize your legal separation but it also does not require one.  It is a choice that you and your spouse will have to make depending on what is best for your situation. Some parties choose to have their marital status remain intact for insurance reasons, others for financial.  It is best to weigh the pros and cons of both before making a decision that can impact your estate.

The Impact of Legal Separation on a Divorce

It is essential to remember that once you have decided to legally separate from your spouse, the decision must be taken seriously. It is a binding, legal contract which some states do recognize to be just as important as divorce. In California, the terms which you may agree to within a legal separation agreement could set a precedence that is difficult to get out of at a later stage. For example, if you agree to your wife living in the home the two of you bought while you were married as part of your legal separation, and continue to make the mortgage payments for that house or home, a judge may demand that you continue doing so after you file for divorce.

This is why many professionals suggest that you should never agree to anything within your legal separation agreement that you would not consider in the process of negotiating for your divorce settlement since you may regret it later. It is also a magnificent and salient idea to speak to a lawyer before you attempt to come to terms with your partner alone. You certainly do not want to sign anything without an attorney’s approval. If you can work things out amicably with your spouse with getting other people involved that is wonderful but you have to be very careful about what you sign and agree to.  It is always best to consult an attorney to make sure that you are fully aware of your rights and the consequences to any provision that you sign.

Minella Law Group Can Help

Our experienced San Diego legal separation attorneys are here to advise and protect your best interests throughout the legal separation process, both in court and through negotiations. If you’ve decided to legally separate, we can advise you and file the necessary legal papers with the court. Contact us today to schedule your no-cost consultation at Minella Law Group.

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I Can’t Afford a Legal Retainer, Can I Still Get Divorced?

By | Divorce | No Comments

[This article has been updated for 2020]

Many people going through a divorce feel helpless, their first instinct is to reach out to an attorney. Family Law attorneys however, can be expensive and not everyone can afford to hire a divorce attorney.

San Diego has plenty of resources at everyone’s disposal to help in these instances. This is important now more than ever as many people have been impacted by global events this year.  Here’s a breakdown of options for affordable divorce resources.

Low or No Cost Divorce Options

All of the courthouses in San Diego have Family Law Facilitators. They cannot give you legal advice, but they will walk you through filing all of the paperwork you need, based on your situation. They provide assistance on a first come, first served basis, so it’s always beneficial to get there early.  

If you are looking for an attorney but cannot afford the sometimes $5,000+ for a retainer, there are attorneys who work on a volunteer basis. You can find those individuals here.

There are also pro bono attorneys, who work for no cost, in addition to legal aid. Both of these resources will have attorneys who can assist you, if you cannot afford one.

The Modest Means Program is designed to assist clients who are having a family law dispute and are able to pay for legal services but have limited financial resources available.

If none of these programs interest you or are the right fit, the San Diego court website has a full list of resources to assist in your Family Law matter.

 

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Divorce During The COVID-19 Pandemic

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If there is one thing this pandemic has taught us is to survive, we must adapt.  When I speak of survival, I don’t just mean survive the virus, I refer to all facets of life including home life, parenting, work, or running a business.  Every aspect of our life has to adapt to this new way of life. 

THE CHANGING FACE OF DIVORCE: WATCH VIDEO FOR LATEST

For work, we were forced to learn how to work from home literally overnight.  Working from home requires a level of personal motivation and discipline that not everyone has.  However, we didn’t have a choice and now our living rooms have become our office.  Those same living rooms have been turned into a classroom and parents have become teachers.  Now not only we are juggling working from home and parenting, now we have to also manage schedules, distance learning, and homework.   To survive, we adapt.  We adapt because we have to. 

This same philosophy applies to businesses.  Businesses can either shutter and potentially not reopen, or you adapt to survive.  You have restaurants becoming grocery stores, bakeries selling at home cookie kits, restaurants modifying their menu to purely takeout, bars selling at home margarita kits.  Everyone has to adapt to survive because the reality is, this situation is not changing anytime soon.  

The same goes for divorce or the other issues that come with divorce such as custody disputes or division of assets.  We need to adapt to survive.  The San Diego Superior Court has provided information that tells us it will remain closed so long as the Shelter in Place order remains in effect, and right now it is closed until at least June 1, 2020.  Another 6 weeks at minimum without access to a judge who can make orders to resolve disputes.  This leaves us with a conundrum, do we sit and wait for the eventual reopening of the court or do we adapt?

I view myself as a professional problem solver, a client comes to me with a problem and I find ways to solve it.  The problem now is how do we move a divorce forward while the court is closed?  There are many ways to move a divorce forward by utilizing resources such as mediation, arbitration, settlement conferences, and custody evaluators.   Each of these options will push the process along and allow dispute resolution to continue.  

For example, let’s say Husband and Wife are arguing over custody and cannot come to a conclusion.  The parties can utilize the assistance of a parenting coordinator or a retired Family Court Services counselor to assist them by recommending a parenting plan just as if the court was open.  This can all be done remote using Zoom or Microsoft teams, no one needs to leave the comfort and safety of their home.  From there, we can work out a plan using the recommendation as a guide and draft a stipulation to be filed once court is accepting filings.  Now this process only works if both parents are committed to dispute resolution, but if they are this is a means to an end.  

Another example, parties disagree over division of assets, support calculation and payment of attorney fees.  The parties can utilize the services of a retired judge to act as an arbitrator and provide to us their opinion using the law to say what they would do as the judge.  This again can be done remote using any of the platforms available.  Arbitration is non-binding, but an informed decision can be made on whether to settle or wait and have the same outcome.  Armed with the opinion of a judge who sat on the bench for years, the same bench your current judge sits on, will give you informed insight and may help you reach an informal resolution.  

These are just a few ways your divorce can move forward despite the court being closed.  What is important is you have options that do not require sitting and waiting, you can take action to better your living situation, you can take action to resolve disputes, and you can take actions to end the conflict.  

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Ask a Divorce Lawyer: 10 FAQ’s

By | Divorce, Family Law Blog | No Comments

When facing a complex family legal issue like divorce it’s natural to have a lot of questions. Learning the basics about proper proceedings, laws, and what to expect, can go a long way in helping you deal with this often emotional and difficult time.

We often get asked the same questions by potential clients in our initial consultation and though the specific facts of your case may vary, these commonly asked questions generally apply to most, if not all, divorce matters in California. We hope you find them useful!

1. How much will my divorce cost?

Beyond the $435 filing fees each for a complaint and first response, it isn’t possible to come with an exact figure, though there are some factors that control what it may cost. An uncontested divorce is almost always less expensive. If there are disputed issues over child and/or spousal support or division of property, there will be a greater time commitment on an attorney’s part which translates to higher costs.

2. How do I start the divorce process?

It begins with the filing of a summons and petition for dissolution of marriage. The forms have both boxes to be checked off and narrative sections. Once the paperwork is accurately completed it’s submitted to the proper county court.

People often ask, too, if it matters who files first. The short answer is no. There can be exceptions, such as gaining an advantage in jurisdiction, you need immediate custody or support orders, and/or if there is a potential risk to community assets.

3. How do I apply for temporary child or spousal support?

Once the petition is filed and served you can file a request for order with the court asking for temporary child and/or spousal support. The court will set a hearing date at which time the judge will determine if such an order is necessary.

4. Can the custodial parent move to another state or country?

The court must decide on the matter and it will always depend on the child’s best interest. If you’re a non-custodial parent who find themselves in this situation and opposes it, it’s important to take steps as early as possible so the court understands you want to continue visitation with your child.

5. How long will my divorce take?

Simple divorces can be finalized in a short period of time, sometimes days or weeks. A contested divorce can drag on for years. Working with an experienced family law attorney can help minimize the time your divorce takes as well as how much it will cost, all while protecting your rights and interests.

6. How is property divided in California?

In California all property is considered either “community” or “separate.” At your divorce, the court will divide community property (property acquired during the marriage), equally between the parties. Separate property, or property that’s acquired before marriage, after separation, or by gift or inheritance (even during the marriage) is deemed to be the sole property of the person who acquired it.

7. Can I handle my divorce myself?

Yes, it is possible to handle your own divorce. But divorce proceedings in California can be complicated and you may not be aware of all your rights. To make sure they’re protected, it may be in your best interest to work with a qualified divorce attorney.

8. Can I get my spouse to pay for my attorney fees and costs?

To ensure both parties have access to equal quality legal representation, the court has the authority to order one spouse to pay some or all of the other spouse’s fees and costs. Talk to a family law attorney about the ways you may be able to obtain funds from your spouse, so you have adequate representation.

9. What are the grounds for divorce in California? What if my spouse cheated on me?

California is a no-fault divorce state and most divorces are granted on the grounds the marriage bond has been broken. Citing wrongdoing of your spouse, no matter how egregious it might be, isn’t required or even permitted. The only other “ground” for divorce in the state is incurable insanity and the burden of proof is high.

Divorcing couples in California must also meet a residency requirement with at least one of them being a resident for at least six months and a county resident for at least three months before filing for divorce.

10. What is the difference between legal separation and divorce?

California is one of the few states that allows legal separation as an alternative to divorce. You still go through a legal process, but you remain married while living separately. This option is typically chosen for financial reasons.

While this list is not exhaustive, it certainly touches on the most commonly asked questions. If you have additional questions and would like to set up a time to speak with one of our experienced San Diego Divorce Attorneys, please give us a call..

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What Is Spousal Support?

By | Divorce | No Comments

Spousal support, also known as alimony, is a legal obligation on a person to provide financial support to their spouse. Spousal support is generally issued in connection with legal separation or divorce cases. One spouse pays the other ex-spouse – whether the husband or wife – a certain sum of money. Courts may require this if one party earns much more than the other, and the other one needs assistance in maintaining their lifestyle close to the marital standard. It is generally awarded to a spouse who makes a lower income or has been out of work during the marriage. The purpose of spousal support in California is to preserve a person’s financial status to the greatest extent possible.

Spousal support is broken down into two types: temporary (pendente lite) or permanent (post-divorce judgment). Temporary spousal support is awarded during divorce proceedings and meant to maintain the living condition of both parties before divorce is finalized. Permanent spousal support is awarded after divorce is finalized and it is to provide the lower-earning spouse with adequate income to ensure that their needs are met and they’re able to maintain their standard of living.

Check Out Our Alimony & Spousal Support Resources Page >> 

Spousal support payments can be made on a monthly basis for a predetermined period of time, but can also consist of a single lump-sum payment. In some cases, spouses can have an agreement on the amount and conditions of support. And if the agreement meets legal requirements, it will be upheld by the court, even if it means that the lower-earning spouse will not receive any support.

Eligibility for Spousal Support in California

Spousal support is issued on a case-by-case basis, but in most cases, only persons who have been married for a longer duration (usually over 5 years) are eligible for support. Other factors that the court will take into consideration when making the support determination include:

  • The assets and property owned by each spouse
  • The earning capacity of each person
  • Whether the parties shared a business
  • Whether one party has significant debt
  • Each party’s contribution to the relationship
  • Physical and mental health conditions
  • Whether the parties had a prenuptial agreement that set forth spousal support provisions

Length of Spousal Support

The length of spousal support is usually tied to the length of the marriage. As a general rule, the court will not order support for more than half the length of a marriage that lasted less than 10 years. However, the court will not set definite spousal support duration if a marriage lasted 10 years or longer. The party who pays will bear the burden of proof to show that spousal support is not needed at some point in time. 

While post-divorce spousal support is often referred to as “permanent,” it is increasingly rare for true permanent support to be awarded, even for longer marriages. California courts require the spouse being supported to make efforts to become self-sustaining. A spouse who claims an inability to become fully employed or inability to work will have to support the claim with evidence. True permanent spousal support generally applies to spouses who cannot become self-supporting due to age or disability.

Spousal Support Modification

Once the court issues a spousal support order, it becomes final and enforceable by the law. The orders can, however, be modified due to unique or special circumstances that occur later on. For example, if one spouse loses their job and cannot pay or the other spouse gets a job or a significant rise in income, spousal support can be altered or terminated.

Hiring an Attorney for Spousal Support Issues

Filing for spousal support in California can require many statements, documents and other items needed to support a party’s arguments. You’ll also need a thorough understanding of the law to avoid hurting your case. A qualified family lawyer can help review the terms and negotiate with the other party to ensure that your needs are covered.

If you’re considering filing for alimony in California, or simply have questions, contact us for a free consultation today!

how do you officially change your name after a divorce

How Do You Officially Change Your Name After A Divorce?

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People choose to change their name after or during a divorce for different reasons. For some, it’s a way to restore a sense of independence and help them move on. For others, it’s a matter of practicality. In California, the process is fairly straightforward, depending on whether or not you’re still going through your divorce or you were divorced in another state. Your divorce attorney can advise you on the best course of action and assist you with the legal processes including:

  • Your divorce was granted and finalized in California
  • Your divorce is not final
  • Your divorce was not finalized in California

If Your Divorce Has Been Finalized in California

If your divorce has been finalized in a California court, you must complete an Ex Parte Application for Restoration of Former Name After Entry of Judgment and Order asking the divorce court judge to restore your former name. You can find the form online or visit your county clerk’s office to fill out the form in person. Include a copy of the Notice of Entry of Judgment for your divorce if possible. Your divorce attorney can assist you in gathering all the information you need to change your name. It typically takes the court two to four weeks to process this type of request. 

If Your Divorce is Not Yet Final

If you’re in the process of divorce, you can still ask the court to restore your former name. When you submit your proposed Judgment for Divorce, ask your family law attorney to include a request to restore your former last name. When your divorce is finalized, the decree should include an official order that restores your former name. 

If Your Divorce was Finalized in a Different State

If you were not divorced in California, you should first contact the court that finalized your divorce and ask if there is a simple process to change your name in that state. If not, file a regular Petition for Change of Name with your local superior court clerk in California. 

A Family Law Attorney Can Help

Having an experienced family law attorney help you navigate your divorce and the process of changing your name can help you save time, money and cut down on stress.

Minella Law Group is a full-service family law firm. We can assist you in handling all aspects of family law issues, including divorce, custody, child and spousal support, and more. At Minella Law Group, our motto is service first. Divorce is hard enough; you should not have to struggle with your representation as well. We ensure you are always up to date with your case, presented with all the options available to you, and aim to keep the cost to you reasonable.

Contact us today to schedule a consultation. 

how will divorce affect my children

How Will My Divorce Affect My Children?

By | Divorce | No Comments

Making the decision to end your marriage isn’t easy. There are many people who will be affected – including your family, spouse, and friends. However, your children are among the most sensitive (and will be most affected) by separation. Multiple studies show that kids are more likely to experience stress, lower academic performance, and behavioral disorders after their parents undergo divorce. 

Children typically view their parents as superheroes. In your child’s eyes, you and your spouse should be able to solve even the most complex problems. This is why kids are often confused and distressed when their parents choose to end the marriage and go their separate ways.

It can be challenging to balance between ending your marriage and minimizing the impact on your children. To make this decision and process easier, you should understand how kids are typically affected by divorce, what family law says with regards to ending a marriage, and how you can minimize the impact of separation on children. 

Effects of Divorce On Kids

Children are affected by divorce in many different ways. Because most consequences are emotional, behavioral, and psychological, being aware of (and dealing with) these challenges early will prevent your kids from being affected over the long term. 

Some of the most common effects include:

1. Increased Stress And Depression Levels 

Divorce often comes with lots of instability and uncertainty. Your daily family routine will change, and you may not necessarily have a solid plan for what lies ahead. This uncertainty is what affects kids the most. Your child may need to move to a new location, switch schools, or get used to a new parent (for those looking to remarry). These sudden changes are what increase stress and depression levels in affected children. 

2. It May Affect Economic Stability 

In most divorce cases, the separating spouses experience a noticeable (if not significant) reduction in income. In fact, most divorcees need a 30% increase in income just to maintain their previous lifestyles. Even more concerning is that women are disproportionally affected (economically) during divorce than men. 

The impact of significant economic change is often felt most heavily by children from the marriage. This is because the instability in domestic living and expenses will directly influence your child’s ability to live a life similar to what they had before. 

3. Lower Academic Performance 

Your school-aged child may also experience lower academic performance after your divorce. This is because kids tend to undergo behavioral challenges during this time and it ultimately affects their grades. In more serious cases, the child may be unable to graduate from high school and may even end up falling into drugs/crime (if they don’t receive the support they need).

Reducing the Negative Effects of Divorce On Children 

In an ideal world, parents wouldn’t have to separate. However, there are always cases where a divorce is the best option for the parties involved. You can reduce the negative effects of divorce on your children by taking a proactive approach to the separation process. This involves planning ahead, seeking help and resources for your children, and collaborating with your former spouse to make the divorce proceed smoothly. 

1. Develop A Co-Parenting Plan

Under California family law, co-parenting is the preferred approach to raising kids from separated parents. Former spouses are encouraged to come up with a legally binding co-parenting plan that can be reviewed and approved by a judge.

This plan should be developed with the best interests of the children and not just the parents. In this way, conflict is reduced and your kids will be less likely to experience behavioral disorders. 

2. Avoid Putting Pressure On Your Kids 

Many separating parents tend to put their kids on the spot. For example, asking your kids to choose which parent they prefer can lead to anxiety and depression. You should avoid putting your kids in the middle of any conflict with your spouse. Instead, look for ways of handling such conflict away from your children. 

3. Maintain A Positive Relationship

The stress and uncertainty of divorce may cause you to pull away from your children. You may be pre-occupied with settling financial disputes, custody disagreements, and other legal matters such that you end up ignoring your kids. Strive to maintain a positive relationship with our children throughout the process. Remind them that you still care, and encourage them to open up about how they’re feeling. 

4. Know The Law And How It Can Help With Your Separation Process

California’s family law is constantly evolving to make divorce as smooth as possible. If you’re thinking about separation, consult a family lawyer to explore your options. There are provisions in the law that protect children’s rights, domestic abuse victims, and economically-disadvantaged spouses. 

technology in divorce

An App For Divorce? A Divorce Attorney’s Response To The New Wave of Tech

By | Divorce | No Comments

Recently, NextAvenue.Org published a blog on the new wave of technology as it relates to divorce services. As a divorce attorney in San Diego, I am always interested to understand the new trends in the divorce space. Below is my commentary on the article, as well as a reprinted version of the original blog post.

If you have any questions about family law or divorce services in San Diego, please don’t hesitate to contact me.

– Kathy Minella

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Can I Change My Child’s School During a Divorce? (even if the other parent does not agree)

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One issue that often comes up during a divorce is the dispute over where the children will attend school after the parents have moved in their separate directions. Sometimes, one parent wants to change the school their child attends, even if the other parent opposes the idea

Whether you can move your child to another school without your former spouse’s approval depends on the custody order issued by the judge:

  • If you were given sole legal custody, then you have the right to choose which school your child will attend without the other parent’s approval.
  • If you share joint legal custody, you and your former spouse must agree on which school to send your child to.

This post addresses issues that come up when parents share joint legal custody.

Parental Consent on School Issues

If your joint custody/parenting plan doesn’t already spell out which school your child will attend, then you and your former spouse must either come to a mutual agreement, agree in mediation, or file a motion asking the court to make the decision for you. If you ask the court to decide, it will base its ruling on what it things is in the best interests of your child. Factors the court considers include:

  • The desires and educational needs of your child.
  • The desires of both parents.
  • Where your child previously attended school.
  • The commuting time from each parent’s home.
  • The associated costs to each parent.

Should You Change Your Child’s School?

School choice issues are complicated. Even if your parenting plan allows for your child to go to school anywhere within a certain district or mile radius, is it the right thing to do? Of course, there are at times very good reason for switching schools: it’s a better environment for your child, economic circumstances have changed, or you have had to move to another district after the divorce. Some experts urge parents – who may not be aware of how stressful it is – to not change their child’s school after a divorce. Attending the same school often offers your child the stable support of friends and teachers he or she knows and loves.

If after careful consideration you feel it’s in your child’s best interests to move to another school, it’s always preferable to come to an agreement with the other parent.

If you’re worried that no matter what the reason, your former spouse will simply not agree to a change, it’s best to talk with your family law attorney who can advise you of your options and help facilitate an arrangement that everyone can agree on.

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Can Social Media Prove an Unfit Parent?

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Beware of what you post on social media during divorce and child custody proceedings. That may sound like a dire warning, but as reported by the American Academy of Matrimonial Lawyers, 75% of family law attorneys are using social media evidence in divorce and child custody cases. That means if one or both parents fail to exercise restraint when posting on their Facebook page, Twitter feed, or any other online social media platforms, it could be used against them in a child custody matter. Just one wrong post can cause more trouble than it’s worth.

Social Media is Not the Problem

It’s not uncommon for a parent’s fitness to raise a child to be called into question during a custody dispute. Social media has added fuel to the fire for proving unfitness, but social media itself is not the problem.

It’s the behaviors and comments of the poster that can influence the court. Even seemingly innocent posts can be misinterpreted or misrepresented to paint a parent in an unflattering light. Long gone are the days of charts, letters, and documents being the sole source of evidence. Today’s courts also accept text messages, emails, and screen shots of social media content in child support and custody dispute hearings.

Family Court and Social Media

In many cases, the information obtained from social media accounts is not as inflammatory as one parent may think. But posts about spending habits, irresponsible behavior, and personal relationships can be used to call into question a parent’s character. California family law courts focus on what is best for a child. They look to establish whether the child is safe, and if a parent’s lifestyle is in any way negatively affecting the child’s well-being. Posts about excessive partying or illegal activity (such as drug use) will most certainly be taken seriously by the court. Even what friends post about the other parent could be used as evidence.

What Can I Use Against My Spouse?

It’s a good idea to check your spouse’s profiles during a child custody dispute. If you believe your spouse is posting things that could have a negative effect on – or be downright harmful to – your child, take a screen shot of the content and share it with your family law attorney. Don’t stalk your former partner on social media; monitor him or her without obsessing.

Things that might be considered by the court include:

  • Tweets or Facebook posts about a wild night out on the town when the parent is supposed to be home caring for your child.
  • Posts that cast you and/or your parenting skills in a negative light.
  • Posts that could be construed as harassment or threats.
  • Posts about any litigation, the custody proceedings, or the judge.

Be Social Media Savvy Yourself

Many people have a false sense of anonymity when they’re surfing and posting on the net. But rest assured, if you’re checking out your former spouse on social media, they’re also looking at your accounts and printing out posts for their attorney. Be careful about what you post and take the time to think about whether it could come back to haunt or harm you. When in doubt, don’t post at all. It will help you avoid additional emotional turmoil during your child custody dispute.