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Is All My Income Considered In Child Support Calculation?

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In California, child support is mandated by law, and every child is entitled to financial support from both parents. If the parents divorce, child support is generally required. Once the court orders child support, it must be paid or there are serious consequences, including possible jail time. Child support can also be required in cases where the paying parent has no visitation rights with the child or children.

Determining Income for Child Support in California

The court cannot enforce child support payments until it makes an order for support. When parents separate, one of them must ask the court to make both an order establishing paternity and an order for child support. Once granted, the court can also award retroactive child support to the date the petition was filed.

For the purposes of determining child support, California law defines income as:

  1. Salaries, wages, commissions, and bonuses.
  2. Rents, typically from rental properties.
  3. Dividends and interest income.
  4. Pensions.
  5. Income from a trust or annuity (unless the annuity is connected to a non-income source such as personal injury proceeds).
  6. Monies received as the result of a worker’s compensation case.
  7. Unemployment and/or disability insurance benefits.
  8. Social security benefits.
  9. Spousal support received from an unrelated case.

There may be exceptions that apply to your situation. A qualified California family law attorney can tell you more.

The Statewide Child Support Guideline

 

California Family Code Section 4050 sets forth the guidelines the court must follow in applying child support rules. They include:

  • Each parent’s primary obligation is to support his or her minor children according to her or his situation and financial station in life.
  • Both parents are equally responsible for supporting their children.
  • It’s assumed the guideline is correct in all cases. Only in special instances should child support orders fall below the amount mandated by the guideline formula.
  • Child support orders must provide children with fair, timely, and sufficient support. The ordered support should also reflect California’s high standard of living and high costs of raising children compared to other states.

The Statewide Child Support Guideline is a complex algebraic formula that uses both parents’ incomes, deductions, and time spent with each child to determine a dollar amount for support (CS = K (HN – (H%) (TN)). What this means in simpler terms is that the greater the gap between income, and the less time the higher earning parent spends with the children, the more child support that parent will owe. Again, under California law, the amount of child support determined by the formula is presumed to be the correct amount owed. Unless there is a good reason why a different amount should be paid, the court is required to order the guideline figure

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Child support is a serious matter, and determining what is and is not income can be complicated. Whether you are the parent paying or the one receiving the child support payments, an experienced family law attorney who is knowledgeable on such issues can be very helpful. Remember, the goal is to guarantee that your children are well taken care of and that they receive everything they need to lead happy and healthy lives

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FAQ: How Does Social Media Affect My Divorce

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Facebook, Twitter, Instagram, and Pinterest. Social media accounts offer others a fun and interesting window into your world. But if you’re going through a divorce, social media posts can have serious implications and consequences, doing more harm than good.

They can adversely affect a wide range of issues: custody disputes, division of property, and spousal or child support decisions. Suddenly, what was once an enjoyable way to pass the time becomes a challenge to be overcome in court.

Social Media’s Impact on Divorce Issues

Keeping secrets in the information age is no easy task. California law allows for the discovery of information that is “not privileged” and is “reasonably calculated” to lead to discoverable evidence. What that means is that, even if you have restricted the privacy settings on your social media accounts, the court may still allow certain posts to be used for or against you. Here’s how you can be affected:

  • Child Custody and Support Proceedings. If your divorce involves issues of child custody and support, you should take extreme care in what you post. Even if they are otherwise innocent, posts referencing alcohol or drug use, brand new cars or homes, trips, dating stories, and new relationships can all affect custodial and support awards. Think twice or thrice before you post to a social media site. If there’s a chance a post could have a negative impact, it’s probably best to not post.
  • Divorce Proceedings. More than 80% of divorce attorneys nationwide have used social media as a valuable tool for collecting evidence to present to the court. And as long as requests can be argued to appear reasonably calculated to lead to the discovery of admissible evidence, courts have allowed them. What can you do? Act as if every social media post – or any other electronic communication like email – can and will be used against you in court. And keep in mind that friends you and your former spouse shared during the marriage may be alerting him or her to posts (or even private messages) you make or send.
  • Restraining and Protective Orders. If you have a restraining or protective order in place, commenting on, liking, or tagging your former spouse may be enough to violate the order. Courts are more frequently viewing social media speech the same way they do “live” conversations. Be incredibly careful in what you post.

Visitation Rights.

Social media and technology is not all bad news for your divorce. For divorced parents living a distance from each other, it can allow children to engage in ordered visitation schedules. Webcams and video chats allow for virtual visits and some states have passed specific laws that allow electronic communication to supplement face-to-face visitations.

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Many spouses going through a divorce freely text, email and update their status without considering the strategic risks and dangers that come along with these types of electronic communications. Before you post your next social media update or hit that send button, stop and think about the effect it might have on your divorce proceedings. An experienced California family law attorney can explain more about the implications of using social media during your divorce. While it may be an important part of your life, you may ultimately decide it’s best to stay off social media while your case is pending.

FAQ: Are There Ways To Reduce Alimony?

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California family law courts order spousal support to ensure that the standard of living experienced during the marriage is maintained to a reasonable extent after the divorce. Regardless of what you may have heard, that doesn’t mean that spousal support is fixed for life. In fact, California law does not favor indefinite spousal support, or alimony. If you or your spouse were awarded spousal support in your divorce, it is possible to have that support reduced.

Ways to Reduce Spousal Support After Divorce

Unless the conditions under which spousal support can be reduced or terminated are specifically addressed in your divorce agreement or court order, the paying spouse can request the court to order a reduction. There are three main steps in determining whether you’re entitled to a reduction.

1. Analyze the Spousal Support Order. There are no shortcuts to winning a spousal support reduction, and it isn’t enough to ask the court for one because you think it’s called for. Make sure you fully understand what the original order calls for. Check what, if any, provisions for modification or non-modifiability are outlined in it.

2. Analyze Your Former Spouse’s Change of Circumstances. One of the top reasons for a reduction in spousal support is the changing circumstances of one or both parties. What does that mean? Simply put, it’s the reason you believe a reduction is justified. Common changes in circumstances include:

• The paying spouse’s income has decreased since the spousal support was ordered.

• The receiving spouse’s income has significantly increased since support was ordered.

• The receiving spouse is now living with another partner. Sharing a home with a roommate, no matter what gender, does not qualify.

3. Prove Your Claim Through Evidence. Once you understand your original spousal support order, and you’ve identified any changing circumstances, you’ll need to produce evidence to the court that backs up your request for reduction. This can be in the form of financial documents, written declarations, oral testimony, or a combination of all three.

What the Court Considers

The court contemplates several factors when deciding whether a reduction is justified. Illness, unemployment, and remarriage are all causes for consideration. So, too, are a party’s age and physical and emotional condition. Keep in mind that the courts do not look kindly on those who voluntarily leave a job or seek a lower paying one simply to avoid paying the ordered support.

A reduction in spousal support can often be more difficult and complicated than obtaining the original order. That’s because in post-judgment divorce orders, the family court has certain conditions for modification and must use a complex evaluation, not a computer program, for determining if a change is warranted

An experienced California family law attorney can help you evaluate your current order and advise whether a request for reduction is proper. If you’re facing a spousal support modification request and want to oppose it, an attorney can tell you whether the request for modification is justified and help you oppose it if necessary.

FAQ: What Can I Do To Prepare For Divorce?

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It’s said when you’re going through a tough time, it helps to know you’re not alone. In the U.S., there are approximately 2.4 million divorces per year, and nearly half of all marriages in California do not last. 

Divorce is often a painful and difficult time in your life, both personally and financially. Careful planning goes a long way in helping you navigate these until now unchartered waters.

How to Prepare for Separation and Divorce

Start by making a checklist. It will not only help you get your thoughts in order, it can be emotionally calming, as well. A sense of purpose goes a long way in instilling confidence. You want to gather together documents that will be used to determine your family’s expenses:

  • Five years of state and federal tax returns.
  • Three years of bank statements.
  • A recent credit report, which you can often obtain online for free.
  • Three years of credit card statements, individually and jointly held.
  • Current balances and monthly payment amounts on other debts, like a mortgage or line of credit.
  • Current pay stubs for both spouses.

Next, assemble all the documents showing the distribution of your assets and debts:

  • Both current and date of separation bank, brokerage, investment, or other financial accounts statements.
  • Both current and date of separation retirement account statements. If any retirement account existed prior to the marriage, include a statement from the date of marriage.
  • Appraisals for real or personal property.
  • Copies of any homeowner’s policies showing value of the contents of any residence.
  • If either or both of you own a business: five years of corporate tax returns, balance sheets, shareholder agreements, and profit and loss statements. You’ll also need copies of all business insurance policies.

Finally, make an inventory of all your marital property. A quick way to do this is by photographing or videotaping all the contents of your home or homes. Don’t forget the outdoors, and include cars, boats, recreational vehicles, etc. If needed, you can always create a list later which shows the actual value of the items.

Consult an Attorney

From separation to final divorce, remember to take your time and don’t create any unnecessary pressure on yourself. Do your research, and don’t make decisions based on what happened to a family member or friend. And most of all, understand the California family law legal process. 

You don’t have to immediately retain a family law attorney, but it helps to consult with one who can give you specific advice on your own issues. It isn’t easy to make sound decisions when you’re in a stressful situation and an attorney can advise you on how to avoid making mistakes that may affect your divorce as it moves forward.

Getting a divorce can be a financial disaster, which is why it is best to hire a lawyer who specializes in divorce or family law. They will know how to best protect your assets and guide you through the process with ease. For more information or to schedule a consultation, click the button below, or call us at 619-289-7948.  We look forward to helping you!

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Bankruptcy and Divorce: How These Two Play Together in CA

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In California, divorce and bankruptcy sometimes go hand-in-hand. One or both parties may find themselves unable to pay family debts, or one spouse may try to use a bankruptcy to give themselves a financial advantage. Most concerns about divorce-related bankruptcies fall into one of these categories:

  • The payment of joint credit card debt.
  • The payment of alimony or child support.
  • The enforcement of a property settlement.

First, a quick answer on spousal or child support payments. Section 523(a)(5) of the Bankruptcy Code prohibits in all chapters the discharge of any and all support obligations. Here are some other common scenarios where divorce and bankruptcy cross paths.

Spouse Files for Bankruptcy During Divorce

A divorce sometimes trigger a bankruptcy filing by one spouse. Unfortunately, this can prolong the process and complicate property division issues. California is a community property state, so even if only one party files for bankruptcy, all matters relating to community property and debts are frozen until the bankruptcy case is completed.

The only exception might be in cases involving pre- or post-nuptial agreements. Once a spouse files for bankruptcy, a bankruptcy estate is established that includes assets such as the family home, pensions, stock portfolios, or mutual funds that can be used for paying debts owed by the filer. All such debts must be paid before the bankruptcy can be finalized. However, the court can still hear testimony on and decide issues related to support.

Filing for Bankruptcy Before Filing for Divorce

If you know ahead of time that either one or both of you will be unable to pay certain debts after divorce, you might want to consider filing for bankruptcy jointly. Just be sure to do so before you file divorce papers.

Just like community property assets are divided between the parties, so too are marital debts. If only one spouse files, he or she is the only one entitled to have their debts discharged. If those debts were joint, this could leave the other spouse open to creditors trying to get payment from them. To avoid being left responsible for any such debt, it’s worth speaking with an attorney about filing for joint bankruptcy.

Enforcing Judgments

Along with support obligations being non-dischargeable under the Bankruptcy Code, all property settlements owed from one spouse to the other, or to a child, are non-dischargeable in a Chapter 7 bankruptcy. Some debts, however, are still dischargeable in a Chapter 13 bankruptcy, so due caution and consultation with an attorney are in your best interests.

Foreclosure and Bankruptcy

If you’re in the middle of a divorce and are served with foreclosure papers because you can’t keep up the mortgage payments, it can be a frightening time thinking you’ll lose your home. Filing a Chapter 13 bankruptcy will stop the foreclosure and gives your family some time to propose a debt restructuring plan. Even if you are unable to reach such an agreement, filing for Chapter 13 relief can buy you time to find another place to live that is more within your means. It can also give your family enough time to put the home on the market yourself, which is always better than what you’d receive from a foreclosure sale.

Remember, filing for bankruptcy during or after a divorce is not an effective way to avoid basic financial commitments that typically occur between spouses. Above all, if your spouse files for bankruptcy before, during, or after your divorce, do not ignore it. Speak to a family law attorney who will go over all your options to protect your interests in the community assets.

Getting a divorce can be a financial disaster, which is why it is best to hire a lawyer who specializes in divorce or family law. They will know how to best protect your assets and guide you through the process with ease. For more information or to schedule a consultation, click the button below, or call us at 619-289-7948.  We look forward to helping you!

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5 Tips On Dividing Business Assets During a Divorce

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Resolving financial issues during a divorce is often complicated. When there are business assets involved, it’s important to understand how California family law dictates they be divided. In most cases, the business is typically an asset and source of income for the divorcing couple. California is a community property state, so if you and your spouse owned a business during your marriage, you’ll need to start off by determining if the business and its assets are separate or community property.

This is done by establishing the business’

  • Source of funds
  • Valuation at time of separation or divorce
  • Start date of marriage
  • Each spouse’s business contribution

How to Divide Business Assets

Whether both parties continue to own the business, you decide to sell and divide the profits, or one spouse buys out the other, it’s essential to find ways to protect you, your family, and your business assets. Here are five tips to get you started. By the way, a pre-or post-nuptial agreement may waive your legal interest in the business.

If one exists, a family law attorney can explain more.

  1. Get a Fair Business Valuation. A business valuation properly values the business so you can divide its assets as part of your divorce. Keep in mind that, even if the business was owned by you or your spouse prior to the marriage, it doesn’t mean the other party receives no value from it. That’s because, per Family Code section 760, all economic value that is created during a marriage is presumed to belong to both spouses. Many factors come into play when valuing a business. Number of customers, size, and location will affect a valuation, as will intangibles such as intellectual property. If you own a small business that has maintained consistent revenue during the marriage, valuation will be much simpler. Depending on your situation, each party may want to obtain their own valuation.
  2. Consider Buying Out Your Spouse. If you and your spouse agree that one person will retain the business, you can arrange gradual payments to him or her. This arrangement can relieve a lot of financial pressure, but it does require the business to be a profitable one. It also requires a level of trust in the other to run the business in good faith.
  3. Look at Other Options. If either one of you is interested in owning the business outright, and you don’t like the idea of payments made over time, there are other trading options. You can swap the business for your interest in any real estate, investment accounts, or other assets. Just make sure you receive competent advice on how assets are divided during a divorce in California.
  4. Think Again Before Co-owning. It is the rare couple who want to stay connected, except for any children, after the divorce is finalized. A clean business break is a practical and wise decision. Each party should get their half of the value of the business (not the shares) and then move on to brighter pastures.
  5. Hire a Good Attorney. In this case, a “good” attorney means one who has your best interests in mind. There’s no reason a business division should prolong your divorce proceedings, especially if you plan ahead. Divorce is painful enough – work with an attorney who wants to make the process as quick and friendly as possible for you.

Dividing a family business in divorce is rarely simple and often requires specialized knowledge. Be sure to consult with an experienced California family law attorney before making any decisions on how to divide this important asset.

Getting a divorce can be a financial disaster, which is why it is best to hire a lawyer who specializes in divorce or family law. They will know how to best protect your assets and guide you through the process with ease. For more information or to schedule a consultation, click the button below, or call us at 619-289-7948.  We look forward to helping you!

Schedule a Free Confidential Consultation

What California Law Says About Moving a Child After Divorce

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A common issue in child custody matters is when one parent wants to move out-of-state, or a good distance away, usually for a new job or to get remarried. Under California law, if that parent wants to move and take a minor child out of the area, they usually need the consent of the other parent or a court order granting the move-away request.

There are always complex legal issues that come up if you are co-parenting, but live separately from the other parent. Moving out of state is one that requires the court to consider a number of factors before it can issue a modification of custody decision or previously issued move-away order. 

Some of those factors include:

  • What, if any, changes in circumstances have taken place since the original custody and visitation order was issued?
  • What impact will the move have on the child? Will it be beneficial or detrimental?
  • What is the moving parent hoping to accomplish with the move? Is the purpose for moving to prevent the other parent from having contact with the child?
  • What is the current custody arrangement? How much time does the child spend with each parent?

What California Law Says

In California, you typically cannot take your children out of the state when a divorce is pending. The lead ruling that applies to move-away situations if you are the sole custodian of your child is the California Supreme Court case In re Marriage of Burgess (1996) 13 Cal.4th 25. It states:

Where “one parent has been awarded sole legal and sole physical custody of a child and the noncustodial opposes the custodial parent’s decision to relocate with the child, a court may deny the noncustodial parent’s requests to modify custody based on the relocation without holding an evidentiary hearing to take oral evidence if the noncustodial parent’s allegation or showing of detriment to the child is insubstantial in light of all the circumstances presented in the case, or is otherwise legally insufficient to warrant relief.”

In cases where custody is jointly shared, the case of In re Marriage of LaMusga (2004) 32 Cal App 4th, 1072, is most frequently cited. If the other parent has frequent and continuing contact with your child, the court starts with the presumption the move will be detrimental.

The court will then seek to determine what is in the child’s best interests by:

  • Holding an evidentiary hearing; and/or
  • Ordering a custody evaluation; and/or
  • Appointing minors counsel.

If you are the parent who wants to move, and you share joint physical custody, you must show the court that the move is in your child’s best interest. Unless there are extenuating circumstances, such as abuse, your request to move being approved by the court may be helped if you can show the court how you plan to make it possible for your child to maintain a good relationship with the other parent.

Today, there are more ways than ever to do that. In addition to frequent physical visits, a parent can stay close to their child through email, or what the court calls “virtual visitation” such as Skype or Facetime. You need to show the court you are going to foster the relationship with the other parent.

The Best First Step, Great Legal Counsel

Regardless of which approach you take, you’ll need to show the court that moving your child is in his or her best interests. The rules in California family law are always changing. If you want to move away with your child – or you’re worried that the other parent wants to – talk to a lawyer. A family law attorney can help you understand how the law applies to your specific situation.

Minella Law Group is swift and professional on handling all adoption legalities.  For more information or to schedule an appointment, call us at (619) 289-7948. We look forward to helping you.

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FAQ: Can I Request Termination of Parental Rights?

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It is possible to request termination of parental rights in California, but it’s often not granted. Termination of parental rights can only happen by court order and there are strict guidelines for doing so.

Termination of parental rights ends the legal parent-child relationship and terminates rights such as:

• Inheritance

• Custody

• Visitation

• Child support

• Liability for a child’s misconduct

Parental rights can also be terminated for an adoption or when the court finds either or both of the parents to be unfit. The court will only order termination of parental rights if there is someone else prepared to take on the care of the child.

How Termination of Parental Rights Happens in California

There are several ways termination of parental rights occur:

  • In Juvenile Dependency Court where the child, usually due to mistreatment, becomes a ward of the court. If the court finds one or both of the parents has abused, neglected, or abandoned a child, or if one or both parents are physically or mentally incapacitated,  termination of parental rights occurs to allow for adoption.
  • In Family Court Adoption proceedings where both birth parents voluntarily agree to termination of parental rights.
  • In Family Court Stepparent or Domestic Partner Adoption proceedings, where termination of parental rights is consented to by the non-custodial parent or where the court finds a parent has willfully abandoned a child.

Can Termination of Parental Rights be by Agreement?

California courts have ruled the parent-child relationship is the most fundamental right a child possesses. Parents are not entitled to stipulate away their duties and obligations to their child, and the courts have repeatedly found agreements to terminate parental rights are void and non-enforceable.

A parent cannot voluntarily relinquish their rights to avoid paying child support, even if the other parent agrees.

Abandonment and Willful Failure to Support

Even if you’re worried an absent parent will suddenly return and attempt to gain custody of your child, the courts do not consider this a reason to terminate parental rights. The exceptions are when there is a stepparent or domestic partner adoption, in which case the court may consider the absent parent’s abandonment and terminate parental rights without consent.

Consult an Attorney

Termination of parental rights is a serious issue, and a petition to terminate is not always granted by the court. You cannot have terminated because you’re upset with the other parent or don’t want them in your child’s life. This is a complex area of family law and you should consider speaking with an experienced California family law attorney about any questions you have regarding terminating parental rights.

Minella Law Group is swift and professional on handling all adoption legalities.  For more information or to schedule an appointment, call us at (619) 289-7948. We look forward to helping you.

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How To Handle Co-Parenting Issues

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Parenting is challenging under any circumstances, but if you’re co-parenting with an uncooperative former spouse, conflicts that were molehills during your marriage suddenly become mountains. In an ideal world, divorced parents develop a direct line of communication with each other on childcare issues, but sometimes lingering resentments or a plain old inability to get along can bring cooperation to a screeching halt. Co-parenting is difficult, here are some suggestions on handling co-parenting complications.

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Top 5 Items Not to Post on Facebook While Going Through a Divorce

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Social media and divorce do not mix.

While one might think that complete deletion of all platforms- Facebook, Twitter, Tumblr, Snapchat, Instagram, and whatever else may become popular in the time that is posted- this is not always the case. Deactivating your account, can be viewed as though you are trying to hide assets or information from your spouse or their legal team. With Social media and divorce you must assume that everything you post can and will be seen by both your spouse (through mutual friends) and in turn their legal team. Social media and divorce hurts in several ways- personally it can make you seem weak or desperate, but perhaps most importantly it can provide ammo to your opposing legal team.

     1. Pictures

Pictures of you out with friends either drinking or partying should not be posted. Even if this is not a common occurrence for you, images such as these can be used as proof that you are an unfit parent and become evidence in a custody battle. Social media and divorce can turn into the main argument in a custody case.

     2. Status Updates

Social media and divorce tends to destroy the best things about social media in general, such as status updates.  It is great to post about the good things in your life but this can also hurt you. Avoid updates about going out, or speaking negatively about your soon to be ex spouse, or even the court case as all of this can be used against you in court.

     3.New Purchases

Retail therapy is a real thing! However posting about new purchases is can be detrimental to a claim for spousal support. Even if you are excited for a little bit of joy, this indicates a financial stability, either hidden in discovery or implying you don’t need spousal support.

     4.Workplace Humblebrags

Avoid openly bragging about bonuses or promotions at work. While this may seem like a way to show the world you’re doing very well post-separation, one might feel like this is the best use of Social Media and divorce, but it still is proof that you have financial assets that your spouse can go after.

     5.Private Messages

Remember that even your private messages are up for grabs in the discovery period. Do not put anything in writing that you do not want a judge to read as if it exists on social media, it can be found. Think of social media activity as both public and permanent.

These same rules apply to your former spouse as well. Social Media and divorce is not a one way street. Keep an eye on his or her accounts (mutual friends can be useful for this) for the same purposes- photographs or messages that hint at hidden assets or perjury on financial statements.

Most of all, remember to exercise control and common sense with Social Media and divorce. Just to be safe- stick to pictures of your pet and uplifting quotes. Assume that anything you post can be viewed by both your ex spouse, so be sure to present an image of a happy, stable, responsible person.

Navigating social media and divorce at the same time can be tricky! That is why it is best to consult with a lawyer who specializes in divorce or family law. They will know the best way to advise you regarding these sensitive issues.