This blog addresses what can be done if one party deceived or defrauded the other party or the court or committed perjury and/or violated his/her fiduciary duty of disclosure to the other party by falsely claiming loss of a job, lack of income, or income below his/her actual income, resulting in an inadequte or excessive support order.
Two different avenues of relief are available, with different statutes of limitation, depending upon whether the support order was an order on an Order to Show Cause (either during the pendency of the action, or following Judgment in the action), or whether the support order was in the Judgment in the case.
Family Code Section 3690(a) provides that a court may, on any terms that may be just, relieve a party from a support order, or any part or parts thereof.
Family Code Section 3691 provides that the grounds and time limits for an action or motion to set aside a support order, or any part or parts thereof, are governed by this section and shall be one of the following:
(a) Actual fraud: Where the defrauded party was kept in ignorance or in some other manner, other than his/her own lack of care or attention, was fraudulently prevented from fully participating in the proceeding. An action or motion based on fraud shall be brought within six months after the date on which the complaining party discovered or reasonably should have discovered the fraud.
(b) Perjury: An action or motion based on perjury shall be brought within six months after the date on which the complaining party discovered or reasonably should have discovered the perjury.
Family Code Section 2102(c) provides that from the date of separation to the date of a valid, enforceable, and binding resolution of all issues relating to child or spousal support and professional fees, each party is subject to fidicuary standards governing confidential relationships with each other, including a duty of the highest good faith and fair dealing that neither shall take any unfair advantage of the other, as to all issues relating to the support and fees, including immediate, full, and accurate disclosure of all facts and information regarding the income or expenses of the party.
If the fraud or perjury was committed in an Income and Declaration upon which a Judgment of the Court was based (whether a Stipulated Judgment or a Judgment pursuant to the decision of a judicial officer) the Judgment, or at least the support provisions of the Judgment can be set aside and relitigated if a Motion to set aside is timely filed, providing evidence of the fraud or perjury, and demonstrating that it materially affected the support order and that the moving party would materially benefit from the granting of the relief, pursuant to Family Code Section 2121(b).
Family Code Section 2122 sets forth the Statutes of Limitation to set aside a Judgment (or support orders set forth in a Judgment), as follows:
(a) Actual fraud: within one year of the date when the complaining party discovered or should have discovered the fraud;
(b) Perjury: within one year after the complaining party discovered or should have discovered the perjury.
Once the fraud or perjury is discovered, the aggrieved party should diligently file a Motion to set aside the support order, the Judgment, or the support provisions of the Judgment, to seek a new support order based on the true income of the other party, and to seek monetary sanctions and attorney's fees for breach of the wrongdoer's fiduciary duty to disclose [See Marriage of FELDMAN (2007) 153 Cal.App.4th 1470] and/or for conduct which frustrated the policy of the law to promote settlement of litigation and reduce the cost of litigation through cooperation [See Family Code Section 271].
This blog was brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specialist, owner of Warner Center Law Offices, an aggressive and effective Los Angeles Divorce and Family Law Attorney serving clients in Los Angeles and Ventura Counties since 1972.
Sunday, February 27, 2011
Tuesday, February 22, 2011
WHAT IS THE TIME LIMIT TO SERVE DIVORCE PAPERS?
The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: Is there an expiration date on divorce paperwork that is filed in California? I filed for divorce from my wife February 2010. In that same month I also served her. I was told that I had to give her time to respond. After a month with no response, I returned to the court house and explained my situation. From my knowledge, if she does not respond in the given amount of time, her signature could be excluded. And I would be able to continue to follow through with the divorce. But upon being seen at the courthouse, the front desk told me that I would not be able to continue without her paperwork. After continuous tries to reach her, they all failed. But in February of 2011, a family member reached her. She has confirmed that she received the paperwork when I originally sent it. She just did not bother with it. Now she is going to send me the signed paperwork. But the problem is that I am currently deployed in Afghanistan. I am to return in March of 2011. My question is, am I going to have to file the paperwork again? Or did I even have to wait for her paperwork to continue on with my divorce?
ANSWER: There is an "expiration date" for the service of the Summons in California.
Service must be made within two years of the filing of the Petition, pursuant to Code of Civil Procedure Section 583.420(b), or the case can be dismissed by the Court. The local rules of the county in which the action is filed may prescribe a shorter time.
Parties are not permitted to serve process on other parties in the same action, whether personally or by mail. Service may be made by a person at least 18 years of age who is not a party to the action.
If you mailed the papers to your wife with a Notice and Acknowledgment of Receipt of service to sign and return to you, and she failed to sign and return that document to you, your wife hasn't been served.
Even if your wife returns the signed Notice and Acknowledgment of Receipt to you, the court clerk may not accept it without a signed Proof of Service by Mail by the person who mailed the papers to your wife.
As noted above, if you were the person who mailed the papers to your wife, you wouldn't be able to provide the court clerk a proper Proof of Service by Mail, since you are a party. If the court clerk does accept and file the Notice and Acknowledgment of Receipt without a Proof of Service by mail, it may suffice, but for your information, it shouldn't suffice if you did the mailing.
If you are unable to get proper service upon your wife by mail and Notice and Acknowledgment of Receipt, you or your Family Law Attorney should hire a process server to personally serve conformed copies of the Petition, Summons, the Declaration under UCCJEA (if there are children), and a blank Response and a blank Declaration under UCCJEA on your wife (if there are children), and upon service, you or your Family Law Attorney should promptly file the proof of personal service with the Court, with a copy for the Clerk to conform and return to you. Your wife doesn't have to sign anything to be served in that manner, and assuming that you timely handle the service, you won't need to re-file a divorce case.
You should retain a Family Law Attorney to handle the case for you and advise you regarding what needs to be done in the case, especially due to the fact that you are based outside of the U.S.
Once your wife is served with process, it depends upon how or if she responds to the Petition as to how the case will proceed. If she doesn't respond, your Family Law Attorney would file a Request to Enter her Default, and once granted, she will not be able to respond or participate in the case. If she does respond, you should have an experienced Family Law Attorney to counsel and represent you, to determine what to do and when to do it in the divorce case.
This blog is brought to you by Los Angeles Divorce Attorney DONALD F. CONVISER, a Certified Family Law Specalist in California since 1980.
QUESTION: Is there an expiration date on divorce paperwork that is filed in California? I filed for divorce from my wife February 2010. In that same month I also served her. I was told that I had to give her time to respond. After a month with no response, I returned to the court house and explained my situation. From my knowledge, if she does not respond in the given amount of time, her signature could be excluded. And I would be able to continue to follow through with the divorce. But upon being seen at the courthouse, the front desk told me that I would not be able to continue without her paperwork. After continuous tries to reach her, they all failed. But in February of 2011, a family member reached her. She has confirmed that she received the paperwork when I originally sent it. She just did not bother with it. Now she is going to send me the signed paperwork. But the problem is that I am currently deployed in Afghanistan. I am to return in March of 2011. My question is, am I going to have to file the paperwork again? Or did I even have to wait for her paperwork to continue on with my divorce?
ANSWER: There is an "expiration date" for the service of the Summons in California.
Service must be made within two years of the filing of the Petition, pursuant to Code of Civil Procedure Section 583.420(b), or the case can be dismissed by the Court. The local rules of the county in which the action is filed may prescribe a shorter time.
Parties are not permitted to serve process on other parties in the same action, whether personally or by mail. Service may be made by a person at least 18 years of age who is not a party to the action.
If you mailed the papers to your wife with a Notice and Acknowledgment of Receipt of service to sign and return to you, and she failed to sign and return that document to you, your wife hasn't been served.
Even if your wife returns the signed Notice and Acknowledgment of Receipt to you, the court clerk may not accept it without a signed Proof of Service by Mail by the person who mailed the papers to your wife.
As noted above, if you were the person who mailed the papers to your wife, you wouldn't be able to provide the court clerk a proper Proof of Service by Mail, since you are a party. If the court clerk does accept and file the Notice and Acknowledgment of Receipt without a Proof of Service by mail, it may suffice, but for your information, it shouldn't suffice if you did the mailing.
If you are unable to get proper service upon your wife by mail and Notice and Acknowledgment of Receipt, you or your Family Law Attorney should hire a process server to personally serve conformed copies of the Petition, Summons, the Declaration under UCCJEA (if there are children), and a blank Response and a blank Declaration under UCCJEA on your wife (if there are children), and upon service, you or your Family Law Attorney should promptly file the proof of personal service with the Court, with a copy for the Clerk to conform and return to you. Your wife doesn't have to sign anything to be served in that manner, and assuming that you timely handle the service, you won't need to re-file a divorce case.
You should retain a Family Law Attorney to handle the case for you and advise you regarding what needs to be done in the case, especially due to the fact that you are based outside of the U.S.
Once your wife is served with process, it depends upon how or if she responds to the Petition as to how the case will proceed. If she doesn't respond, your Family Law Attorney would file a Request to Enter her Default, and once granted, she will not be able to respond or participate in the case. If she does respond, you should have an experienced Family Law Attorney to counsel and represent you, to determine what to do and when to do it in the divorce case.
This blog is brought to you by Los Angeles Divorce Attorney DONALD F. CONVISER, a Certified Family Law Specalist in California since 1980.
Monday, February 21, 2011
WHO HAS TO PAY DEBTS AND OBLIGATIONS IN A DIVORCE?
The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: What liabilities are involved with divorce? Is there any financial or legal liability for the person who decides that they want to file for divorce? It seems to me that if one party walks away from their side of the obligations, ie car payments, house payments, etc that there should be some liability and they should be responsible for what they owe. Legally, is the person who initiates the divorce responsible for upholding their end of financial obligations that were made when the couple was together?
ANSWER: Both parties are equally responsible for community debts.
No additional liability attaches to the party who initiates the divorce.
The Court ordinarily divides the net assets 50/50, i.e., the value of the community assets less the amount of the community obligations.
If one party is financially unable to pay his/her share of the obligations, the party better able to pay may be awarded a larger portion of the community assets to counterbalance the larger portion of the community debts that party would be ordered to pay.
If the net value of the community assets less obligations is a negative figure, the Court does have the discretion to divide the community debts unequally, i.e., to order the party with the better ability to pay the debts, but that party is generally awarded all or at least a substantial amount of the community property, if any exists.
If a party is ordered to pay community debts and fails to do so, the creditors can sue the other party for those debts and collect those obligations from the party sued. That party can sue the ordered party for repayment, but if the ordered party declares (and is granted) bankruptcy, the liability of the bankrupting party to the other can be discharged.
This blog is brought to you by Certified Family Law Specialist DONALD F. CONVISER, a Los Angeles Family Law Attorney.
QUESTION: What liabilities are involved with divorce? Is there any financial or legal liability for the person who decides that they want to file for divorce? It seems to me that if one party walks away from their side of the obligations, ie car payments, house payments, etc that there should be some liability and they should be responsible for what they owe. Legally, is the person who initiates the divorce responsible for upholding their end of financial obligations that were made when the couple was together?
ANSWER: Both parties are equally responsible for community debts.
No additional liability attaches to the party who initiates the divorce.
The Court ordinarily divides the net assets 50/50, i.e., the value of the community assets less the amount of the community obligations.
If one party is financially unable to pay his/her share of the obligations, the party better able to pay may be awarded a larger portion of the community assets to counterbalance the larger portion of the community debts that party would be ordered to pay.
If the net value of the community assets less obligations is a negative figure, the Court does have the discretion to divide the community debts unequally, i.e., to order the party with the better ability to pay the debts, but that party is generally awarded all or at least a substantial amount of the community property, if any exists.
If a party is ordered to pay community debts and fails to do so, the creditors can sue the other party for those debts and collect those obligations from the party sued. That party can sue the ordered party for repayment, but if the ordered party declares (and is granted) bankruptcy, the liability of the bankrupting party to the other can be discharged.
This blog is brought to you by Certified Family Law Specialist DONALD F. CONVISER, a Los Angeles Family Law Attorney.
Sunday, February 20, 2011
HOW LONG WILL IT TAKE TO GET A DIVORCE, AND HOW MUCH WILL IT COST?
The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: How long will it take me in California to get a divorce? Will it take a long time to divorce my husband? How much will it cost?
ANSWER: It would take a minimum of 6 months after the filed Petition and Summons are served on your spouse for you to get a divorce, assuming that your case is expediently handled and that there are no contested issues. Usually, divorces take upwards of one year, sometimes upwards of two years to complete. It depends upon the issues in the case and their complexity, whether or not the divorce is contested, and how easily and quickly it is resolved.
The filing fee for a divorce is currently $395, and attorney's fees are typically charged on an hourly basis.
Based upon the parties' relative economic circumstances, if attorney's fees and costs are properly sought, the Court can order the party who is better able to pay to pay part or all of the other party's attorney's fees and costs.
You should meet and consult with a Family Law Attorney regarding the particulars of your case, to get a better idea of its complexity and the cost to handle your case.
QUESTION: How long will it take me in California to get a divorce? Will it take a long time to divorce my husband? How much will it cost?
ANSWER: It would take a minimum of 6 months after the filed Petition and Summons are served on your spouse for you to get a divorce, assuming that your case is expediently handled and that there are no contested issues. Usually, divorces take upwards of one year, sometimes upwards of two years to complete. It depends upon the issues in the case and their complexity, whether or not the divorce is contested, and how easily and quickly it is resolved.
The filing fee for a divorce is currently $395, and attorney's fees are typically charged on an hourly basis.
Based upon the parties' relative economic circumstances, if attorney's fees and costs are properly sought, the Court can order the party who is better able to pay to pay part or all of the other party's attorney's fees and costs.
You should meet and consult with a Family Law Attorney regarding the particulars of your case, to get a better idea of its complexity and the cost to handle your case.
Friday, February 18, 2011
CAN I GET "PALIMONY" IN CALIFORNIA?
The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: Can I get palimony in California, if it even exists? Do I have any rights, even though I was not married? I was with my ex for 8 years. Though he had supported me for years, he would always threaten to leave me and take my car.
ANSWER: You might, or might not, be entitled to Palimony, depending on the circumstances of your particular matter.
If your "ex" agreed in writing, or orally, or if the circumstances implied an agreement, for your "ex" to support you for the rest of your life (or for a defined period in the future), there is a chance that you may be able to persuade a court or jury to award you Palimony, but you would be responsible to pay your own attorney's fees and costs if you choose to take that chance.
Merely because your "ex" supported you for eight years is likely not enough. You should consult with a Family Law Attorney who is experienced handling "Palimony" (frequently called "Marvin") cases regarding the particular facts of your situation.
This blog was brought to you by Los Angeles Family Attorney DONALD F. CONVISER, a Certified Family Law Specialist.
QUESTION: Can I get palimony in California, if it even exists? Do I have any rights, even though I was not married? I was with my ex for 8 years. Though he had supported me for years, he would always threaten to leave me and take my car.
ANSWER: You might, or might not, be entitled to Palimony, depending on the circumstances of your particular matter.
If your "ex" agreed in writing, or orally, or if the circumstances implied an agreement, for your "ex" to support you for the rest of your life (or for a defined period in the future), there is a chance that you may be able to persuade a court or jury to award you Palimony, but you would be responsible to pay your own attorney's fees and costs if you choose to take that chance.
Merely because your "ex" supported you for eight years is likely not enough. You should consult with a Family Law Attorney who is experienced handling "Palimony" (frequently called "Marvin") cases regarding the particular facts of your situation.
This blog was brought to you by Los Angeles Family Attorney DONALD F. CONVISER, a Certified Family Law Specialist.
Thursday, February 17, 2011
WHAT SHOULD I DO IF I WASN'T ADVISED OF MY CHILD'S IEP MEETING?
The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: What should I do if I was not notified of a meeting as mandated by my child custody order? My ex husband and I share legal custody and shared physical custody. It is his responsibility to inform me when medical or educational decisions are being made for our four minor children. An IEP (individual educational plan) meeting was scheduled and attended by my ex husband; however, I was not informed of this meeting until my son just told me, after the meeting had taken place without me. What action can I take against the county and my ex husband?
ANSWER: The particular wording of the Legal Custody Order is important to consider, in the light of your husband's failure to advise you of the IEP meeting. If that Order required your and your husband's joint participation in educational decisions, it would appear that he violated that Order. If that Order required him to inform you in advance regarding educational options, it would appear that he violated that Order. If the Order merely required him to inform you when educational decisions are made, that order may possibly be too vague and general to be enforced.
You should consult with and retain an experienced Divorce Attorney to represent your interests in seeking a modification of the Legal Custody Order to make it more specific and/or to seek remedies for your husband's violation of the Legal Custody Order.
You should also contact your child/childrens' IEP personnel, provide them a copy of the Legal Custody Order, and request/insist that they provide you advance notice of and the right to participate in any and all IEP meetings.
This blog was brought to you by Los Angeles Divorce Attorney Donald F. Conviser, a Certified Family Law Specialist.
QUESTION: What should I do if I was not notified of a meeting as mandated by my child custody order? My ex husband and I share legal custody and shared physical custody. It is his responsibility to inform me when medical or educational decisions are being made for our four minor children. An IEP (individual educational plan) meeting was scheduled and attended by my ex husband; however, I was not informed of this meeting until my son just told me, after the meeting had taken place without me. What action can I take against the county and my ex husband?
ANSWER: The particular wording of the Legal Custody Order is important to consider, in the light of your husband's failure to advise you of the IEP meeting. If that Order required your and your husband's joint participation in educational decisions, it would appear that he violated that Order. If that Order required him to inform you in advance regarding educational options, it would appear that he violated that Order. If the Order merely required him to inform you when educational decisions are made, that order may possibly be too vague and general to be enforced.
You should consult with and retain an experienced Divorce Attorney to represent your interests in seeking a modification of the Legal Custody Order to make it more specific and/or to seek remedies for your husband's violation of the Legal Custody Order.
You should also contact your child/childrens' IEP personnel, provide them a copy of the Legal Custody Order, and request/insist that they provide you advance notice of and the right to participate in any and all IEP meetings.
This blog was brought to you by Los Angeles Divorce Attorney Donald F. Conviser, a Certified Family Law Specialist.
Wednesday, February 16, 2011
WHAT ARE MY EX-HUSBAND'S RIGHTS REGARDING MY SEPARATE PROPERTY HOUSE?
The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: What will happen to my house after a divorce in California? I owned the house before we were married. My ex made some improvements to the house during our marriage. How will this house be affected by divorce under California family law?
ANSWER: If the funds used to improve your house were your husband's separate property funds, and the value of your house was enhanced by the amount of his separate property improvements, he may have a dollar-for-dollar right of reimbursement for his traceable separate property that went into your house.
If the source of the improvement funds was community property, i.e., your husband's and/or your marital earnings, then the community may have such a dollar-for-dollar right of reimbursement [your husband's share of the community reimbursement would be 1/2, and the other 1/2 would be your share].
However, if you and/or your expert can demonstrate with competent evidence that the value of your house was not enhanced by the improvements [as might be the case if your husband converted a bedroom into an office for his own use, and it didn't enhance the value of the house], you may be able to persuade the Court not to allow reimbursement.
This blog was brought to you by DONALD F. CONVISER, a Los Angeles Divorce Attorney.
QUESTION: What will happen to my house after a divorce in California? I owned the house before we were married. My ex made some improvements to the house during our marriage. How will this house be affected by divorce under California family law?
ANSWER: If the funds used to improve your house were your husband's separate property funds, and the value of your house was enhanced by the amount of his separate property improvements, he may have a dollar-for-dollar right of reimbursement for his traceable separate property that went into your house.
If the source of the improvement funds was community property, i.e., your husband's and/or your marital earnings, then the community may have such a dollar-for-dollar right of reimbursement [your husband's share of the community reimbursement would be 1/2, and the other 1/2 would be your share].
However, if you and/or your expert can demonstrate with competent evidence that the value of your house was not enhanced by the improvements [as might be the case if your husband converted a bedroom into an office for his own use, and it didn't enhance the value of the house], you may be able to persuade the Court not to allow reimbursement.
This blog was brought to you by DONALD F. CONVISER, a Los Angeles Divorce Attorney.
Tuesday, February 15, 2011
"HOW DO I LEGALLY SEPARATE FROM MY SPOUSE?"
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: How do I legally separate from my husband in California? I would like to legally separate from my husband. What is my first step?
ANSWER: There is a significant difference between "separation" and "Legal Separation."
A "Legal Separation" is essentially the same as a Dissolution of Marriage, except that you remain married to your spouse, i.e., it results in permanent orders of child custody, child support, spousal support, and property division, BUT if you get a Judgment of Legal Separation, it will require a separate Divorce case to dissolve your marital status.
People who seek a Legal Separation are usually people whose religious beliefs do not allow them to Divorce.
The first step in a Legal Separation is to prepare and file the Petition for Legal Separation and its Summons (and any related documents), have a copy of the filed documents served on your spouse along with a blank Family Law Response form, and file a Proof of Service reflecting that service.
I think you mean by your question, how can you "separate" from your husband and have that separation recognized by the Court?
You can separate by telling your spouse that you intend to get a divorce, by writing to your spouse that you intend to get a divorce, by physically separating from your spouse (moving out of the bedroom may be sufficient if you don't continue to have an intimate relationship with your spouse), by not conducting your relationship with your spouse as though you are still married, and by filing an action for Dissolution of Marriage (i.e., a Divorce case) or a case for Legal Separation.
Separation comprises words conveyed to your spouse to the effect that your marriage is over and that you don't intend to resume your marriage, along with objective manifestations of your intentions.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive L.A. Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
QUESTION: How do I legally separate from my husband in California? I would like to legally separate from my husband. What is my first step?
ANSWER: There is a significant difference between "separation" and "Legal Separation."
A "Legal Separation" is essentially the same as a Dissolution of Marriage, except that you remain married to your spouse, i.e., it results in permanent orders of child custody, child support, spousal support, and property division, BUT if you get a Judgment of Legal Separation, it will require a separate Divorce case to dissolve your marital status.
People who seek a Legal Separation are usually people whose religious beliefs do not allow them to Divorce.
The first step in a Legal Separation is to prepare and file the Petition for Legal Separation and its Summons (and any related documents), have a copy of the filed documents served on your spouse along with a blank Family Law Response form, and file a Proof of Service reflecting that service.
I think you mean by your question, how can you "separate" from your husband and have that separation recognized by the Court?
You can separate by telling your spouse that you intend to get a divorce, by writing to your spouse that you intend to get a divorce, by physically separating from your spouse (moving out of the bedroom may be sufficient if you don't continue to have an intimate relationship with your spouse), by not conducting your relationship with your spouse as though you are still married, and by filing an action for Dissolution of Marriage (i.e., a Divorce case) or a case for Legal Separation.
Separation comprises words conveyed to your spouse to the effect that your marriage is over and that you don't intend to resume your marriage, along with objective manifestations of your intentions.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive L.A. Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
Monday, February 14, 2011
WHAT CAN I DO TO FINALIZE MY DIVORCE?
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: What can I do to finalize my divorce? If my husband served me with divorce papers and I filed my response, what can I do if he does not finalize the paperwork? I want the divorce to go through but he is not moving forward.
ANSWER: Prepare, date and sign your Preliminary and Final Declarations of Disclosure [including your attached Income and Expense Declartion and your Schedule of Assets and Debts]and your Declaration re Service of Declaration of Disclosure and Income and Expense Declaration and have them served on your husband. Service can't be done by a party, so you will have to have somebody else, over the age of 18, serve those documents by mail and sign a Proof of Service; then file your Declaration re Service of Preliminary and Final Declarations of Disclosure and Income and Expense Declaration, and that Proof of Service, with the Court Clerk. Don't file your Schedule of Assets and Debts with the Court Clerk. File a Request for Trial Setting to have a trial set in your case.
You would best consult first with and retain a Family Law Attorney if there are significant issues such as Child Custody, Visitation, Child Support, Spousal Support, or Property Division involved in your divorce.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
QUESTION: What can I do to finalize my divorce? If my husband served me with divorce papers and I filed my response, what can I do if he does not finalize the paperwork? I want the divorce to go through but he is not moving forward.
ANSWER: Prepare, date and sign your Preliminary and Final Declarations of Disclosure [including your attached Income and Expense Declartion and your Schedule of Assets and Debts]and your Declaration re Service of Declaration of Disclosure and Income and Expense Declaration and have them served on your husband. Service can't be done by a party, so you will have to have somebody else, over the age of 18, serve those documents by mail and sign a Proof of Service; then file your Declaration re Service of Preliminary and Final Declarations of Disclosure and Income and Expense Declaration, and that Proof of Service, with the Court Clerk. Don't file your Schedule of Assets and Debts with the Court Clerk. File a Request for Trial Setting to have a trial set in your case.
You would best consult first with and retain a Family Law Attorney if there are significant issues such as Child Custody, Visitation, Child Support, Spousal Support, or Property Division involved in your divorce.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
Sunday, February 13, 2011
DOES NOTARIZING A PRENUPTIAL AGREEMENT MAKE IT ENFORCEABLE?
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: Can a notarized prenuptial agreement be legally enforced in California? Our prenuptial agreement has been notarized; does that mean that the prenup is legally enforceable under California law?
ANSWER: Acknowledgment [notarizing] of the parties' signatures on a Prenuptial Agreement isn't required for a Prenuptial Agreement to be enforceable, but is routinely done to protect against a party's later claiming that his or her signature was forged.
Whether or not a Prenuptial Agreement [otherwise known as a Prenup, Pre-Nuptial Agreement, Antenuptial Agreement, Ante-Nuptial Agreement, Pre-Marital Agreement and/or Pre-marital Agreement] is enforceable depends on many factors, including but not limited to its contents, the financial disclosures made in connection with the Prenuptial Agreement, whether the Prenuptial Agreement set forth the parties' voluntary and express waivers of disclosure beyond those made in the Prenuptial Agreement, the circumstances under which the Prenuptial Agreement was entered, whether each party consulted with indepdent counsel regarding the Prenuptial Agreement, how close to the date of the marriage the Prenuptial Agreement was entered, whether or not there was a confidential relationship between the parties prior to and/or at the time of entry into the Prenuptial Agreement, and the circumstances existing at the time enforcement of the Prenuptial Agreement is sought.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
QUESTION: Can a notarized prenuptial agreement be legally enforced in California? Our prenuptial agreement has been notarized; does that mean that the prenup is legally enforceable under California law?
ANSWER: Acknowledgment [notarizing] of the parties' signatures on a Prenuptial Agreement isn't required for a Prenuptial Agreement to be enforceable, but is routinely done to protect against a party's later claiming that his or her signature was forged.
Whether or not a Prenuptial Agreement [otherwise known as a Prenup, Pre-Nuptial Agreement, Antenuptial Agreement, Ante-Nuptial Agreement, Pre-Marital Agreement and/or Pre-marital Agreement] is enforceable depends on many factors, including but not limited to its contents, the financial disclosures made in connection with the Prenuptial Agreement, whether the Prenuptial Agreement set forth the parties' voluntary and express waivers of disclosure beyond those made in the Prenuptial Agreement, the circumstances under which the Prenuptial Agreement was entered, whether each party consulted with indepdent counsel regarding the Prenuptial Agreement, how close to the date of the marriage the Prenuptial Agreement was entered, whether or not there was a confidential relationship between the parties prior to and/or at the time of entry into the Prenuptial Agreement, and the circumstances existing at the time enforcement of the Prenuptial Agreement is sought.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
Thursday, February 10, 2011
WILL I BE ABLE TO GET A DIVORCE IN CALIFORNIA IF MY SPOUSE CANNOT RE-ENTER THE UNITED STATES?
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: Will I be able to get a divorce in California if my husband cannot re-enter the United States? My husband is not a U.S. citizen and cannot re-enter the United States, having overstayed a visa here previously. I am filing for divorce (in California), and I'm wondering what the legal implications are of his inability to appear in person, even if he wants to.
ANSWER: You are not prevented from divorcing your husband merely because he cannot legally re-enter the United States. However, he would need to be served with process for your divorce to proceed.
If your husband is agreeable to the divorce, he can be served by mail if he signs and returns a Notice and Acknowledgment of Receipt of service.
If he is not agreeable to the divorce, he will need to be served in a manner appropriate to the country in which he is served.
Many, but not all countries, are members of the Hague Convention on Service of Process. If he is in one of those countries, he will need to be served in compliance with the Hague Convention's procedures. If he isn't in one of those countries, research will need to be performed to determine the method required to give him Notice of the divorce proceedings, its cost, and the amount of time needed to complete service in accordance with that country's requirements. Service of process in foreign countries can be expensive and time-consuming.
If your husband is served, either by accepting service via Notice and Acknowledgment of Receipt, or otherwise, he could nevertheless retain counsel in California to represent his interests in a divorce, or he could default, in which case your divorce case could proceed in his absence.
If he retains counsel in California, he could "appear" at hearings via "Court Call" telephonic appearance.
Also, the fact that your husband cannot legally re-enter the U.S. doesn't preclude his illegal re-entry and personal participation in the divorce case.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
QUESTION: Will I be able to get a divorce in California if my husband cannot re-enter the United States? My husband is not a U.S. citizen and cannot re-enter the United States, having overstayed a visa here previously. I am filing for divorce (in California), and I'm wondering what the legal implications are of his inability to appear in person, even if he wants to.
ANSWER: You are not prevented from divorcing your husband merely because he cannot legally re-enter the United States. However, he would need to be served with process for your divorce to proceed.
If your husband is agreeable to the divorce, he can be served by mail if he signs and returns a Notice and Acknowledgment of Receipt of service.
If he is not agreeable to the divorce, he will need to be served in a manner appropriate to the country in which he is served.
Many, but not all countries, are members of the Hague Convention on Service of Process. If he is in one of those countries, he will need to be served in compliance with the Hague Convention's procedures. If he isn't in one of those countries, research will need to be performed to determine the method required to give him Notice of the divorce proceedings, its cost, and the amount of time needed to complete service in accordance with that country's requirements. Service of process in foreign countries can be expensive and time-consuming.
If your husband is served, either by accepting service via Notice and Acknowledgment of Receipt, or otherwise, he could nevertheless retain counsel in California to represent his interests in a divorce, or he could default, in which case your divorce case could proceed in his absence.
If he retains counsel in California, he could "appear" at hearings via "Court Call" telephonic appearance.
Also, the fact that your husband cannot legally re-enter the U.S. doesn't preclude his illegal re-entry and personal participation in the divorce case.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
Wednesday, February 9, 2011
IF A FATHER GIVES UP CUSTODY RIGHTS, WILL HE STILL BE REQUIRED TO PAY CHILD SUPPORT?
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: If my husband gives up custody of his child, is he still required to pay child support in California? What will qualify my husband to not be financially responsible of this child? My husband has a daughter from another marriage, and he is debating on whether or not to give up his rights to parent her. If this is what he chooses, will he still be required to pay child support?
ANSWER: It would be a mistake for your husband to "give up" custody of his child.
California's Mandatory Child Support Guideline is based on the father's income, the mother's income, and the parties' timeshare of the child. If your husband diminished his timeshare to zero, he would pay the maximum amount of child support.
Children are entitled to be supported by both parents.
Furthermore, children are entitled to relationships with both parents.
A choice by your husband to "abandon" his daughter could have significant emotional repercussions, now and in the future - his daughter could be hurt by such a choice, and she would likely resent him and his making that choice for the rest of her life. He could later regret having made such a choice.
Better for him to participate to the fullest extent possible in his daughter's life and wellbeing. He'll have a happier and healthier daughter, and his Child Support obligation will be lower than it would be if he didn't participate in his daughter's life.
This blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
QUESTION: If my husband gives up custody of his child, is he still required to pay child support in California? What will qualify my husband to not be financially responsible of this child? My husband has a daughter from another marriage, and he is debating on whether or not to give up his rights to parent her. If this is what he chooses, will he still be required to pay child support?
ANSWER: It would be a mistake for your husband to "give up" custody of his child.
California's Mandatory Child Support Guideline is based on the father's income, the mother's income, and the parties' timeshare of the child. If your husband diminished his timeshare to zero, he would pay the maximum amount of child support.
Children are entitled to be supported by both parents.
Furthermore, children are entitled to relationships with both parents.
A choice by your husband to "abandon" his daughter could have significant emotional repercussions, now and in the future - his daughter could be hurt by such a choice, and she would likely resent him and his making that choice for the rest of her life. He could later regret having made such a choice.
Better for him to participate to the fullest extent possible in his daughter's life and wellbeing. He'll have a happier and healthier daughter, and his Child Support obligation will be lower than it would be if he didn't participate in his daughter's life.
This blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
Tuesday, February 8, 2011
KELSEY GRAMMER BIFURCATION OF MARITAL STATUS LIKELY TO BE GRANTED
In December, 2010, Kelsey Grammer (Frasier, Cheers, Kelsey Grammer Presents The Sketch Show, etc.) filed a Motion to bifurcate and sever the issue of Marital Status in his divorce from his wife, Camille Grammer (Real Housewives of Beverly Hills), and to reserve the balance of issues in the divorce to be heard and ruled on at a later date.
Married to Camille for 13 years, Kelsey reportedly wants to bifurcate his divorce to enable him to marry his fiancee', Kayte Walsh on February 25, 2011, having announced his wedding plans on David Letterman's Late Night Show on January 13.
Kelsey joined various pension and retirement plans as parties to the divorce to meet statutory conditions as required to protect Camille's interest in those plans pending Further Hearing on Reserved Issues.
Camille, however, opposed the bifurcation, claiming that her pension expert wasn't given the opportunity to review financial documents including Kelsey's SAG pension records, that she needs to conduct discovery proceedings to discover and protect her community property interests, that Kayte could be entitled by virtue of her marriage to Kelsey to legal rights to aspects of Kelsey's pension that would remain subject to later litigation in the divorce case, and that if Kelsey remarries and dies before the Further Hearing on Reserved Issues, Kayte can claim pension rights as Kelsey's widow and Camille would have to fund her own attorney's fees in litigation over her share of the pension rights.
Camille's attorney proposed that Kelsey post a $10 million bond to cover Camille's litigation expenses and potential losses, asserting that Camille shouldn't have to litigate against the next Mrs. Grammer-to-be (who would be Kelsey's 4th wife).
On February 2, Judge Maren Nelson told the parties' attorneys that the marriage could be dissolved once they have agreed to a settlement, and the hearing was continued to February 7.
On February 7, the attorneys advised the Court that they had reached a settlement, but the parties had not yet signed the settlement documents, that a Stipuated Judgment will be submitted to the Court on February 10, and that Kelsey will post a $2 million bond for 18 months to protect Camille's interest in his pension pending resolution of the Reserved Issues. It appears that the bifurcation battle in Marriage of Grammer is going to be resolved, shortly.
For related blogs on the subject of Bifurcation, see my April 28, 2009 blog entitled THE POUND OF FLESH REQUIRED FOR BIFURCATION, my April 28, 2009 blog entitled REASONS TO OPPOSE BIFURCATED STATUS DISSOLUTION, and my April 26, 2009 blog entitled UNTYING THE KNOT EARLY: BIFURCATION OF MARITAL STATUS
This blog was brought to you by DONALD F. CONVISER, a Certified Family Law Specialist, owner of WARNER CENTER LAW OFFICES in Woodland Hills, CA, a Los Angeles Divorce Lawyer who has been aggressively and effectively representing clients in Los Angeles and Ventura counties for over 35 years.
Married to Camille for 13 years, Kelsey reportedly wants to bifurcate his divorce to enable him to marry his fiancee', Kayte Walsh on February 25, 2011, having announced his wedding plans on David Letterman's Late Night Show on January 13.
Kelsey joined various pension and retirement plans as parties to the divorce to meet statutory conditions as required to protect Camille's interest in those plans pending Further Hearing on Reserved Issues.
Camille, however, opposed the bifurcation, claiming that her pension expert wasn't given the opportunity to review financial documents including Kelsey's SAG pension records, that she needs to conduct discovery proceedings to discover and protect her community property interests, that Kayte could be entitled by virtue of her marriage to Kelsey to legal rights to aspects of Kelsey's pension that would remain subject to later litigation in the divorce case, and that if Kelsey remarries and dies before the Further Hearing on Reserved Issues, Kayte can claim pension rights as Kelsey's widow and Camille would have to fund her own attorney's fees in litigation over her share of the pension rights.
Camille's attorney proposed that Kelsey post a $10 million bond to cover Camille's litigation expenses and potential losses, asserting that Camille shouldn't have to litigate against the next Mrs. Grammer-to-be (who would be Kelsey's 4th wife).
On February 2, Judge Maren Nelson told the parties' attorneys that the marriage could be dissolved once they have agreed to a settlement, and the hearing was continued to February 7.
On February 7, the attorneys advised the Court that they had reached a settlement, but the parties had not yet signed the settlement documents, that a Stipuated Judgment will be submitted to the Court on February 10, and that Kelsey will post a $2 million bond for 18 months to protect Camille's interest in his pension pending resolution of the Reserved Issues. It appears that the bifurcation battle in Marriage of Grammer is going to be resolved, shortly.
For related blogs on the subject of Bifurcation, see my April 28, 2009 blog entitled THE POUND OF FLESH REQUIRED FOR BIFURCATION, my April 28, 2009 blog entitled REASONS TO OPPOSE BIFURCATED STATUS DISSOLUTION, and my April 26, 2009 blog entitled UNTYING THE KNOT EARLY: BIFURCATION OF MARITAL STATUS
This blog was brought to you by DONALD F. CONVISER, a Certified Family Law Specialist, owner of WARNER CENTER LAW OFFICES in Woodland Hills, CA, a Los Angeles Divorce Lawyer who has been aggressively and effectively representing clients in Los Angeles and Ventura counties for over 35 years.
Monday, February 7, 2011
IN A DIVORCE, WHO HAS TO PAY SCHOOL LOANS INCURRED DURING MARRIAGE?
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: In California, who should pay for school loan debts incurred during a marriage? I incurred school loans when I was married to my ex-husband. Does this work like regular debt, and will we have to split it? Should my ex-husband pay for part of the debt, or do I have to pay for it on my own?
ANSWER: Unless your ex-husband agrees otherwise, you will have to repay your educational loans.
Family Code Section 2641(b)(2) provides that a loan incurred during marriage for the education or training of a party shall not be included among the liabilities of the community for the purpose of division, but shall be assigned for payment by the party.
Family Code Section 2627 provides that educational loans shall be assigned pursuant to Section 2641
This blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
QUESTION: In California, who should pay for school loan debts incurred during a marriage? I incurred school loans when I was married to my ex-husband. Does this work like regular debt, and will we have to split it? Should my ex-husband pay for part of the debt, or do I have to pay for it on my own?
ANSWER: Unless your ex-husband agrees otherwise, you will have to repay your educational loans.
Family Code Section 2641(b)(2) provides that a loan incurred during marriage for the education or training of a party shall not be included among the liabilities of the community for the purpose of division, but shall be assigned for payment by the party.
Family Code Section 2627 provides that educational loans shall be assigned pursuant to Section 2641
This blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
Sunday, February 6, 2011
HOW CAN I PROTECT MY CREDIT DURING A DIVORCE?
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: How can I protect my credit during a divorce? I have not seen my wife since 2007. I have no idea where she is located, though I believe in Texas right now. I want to start a divorce with her. The other issue is that while married we signed a joint auto contract. I have requested the auto maker to repo it since 2007 and it continually does not get repoed because she says no. It is affecting my credit and I need to address this matter as soon as possible to help my financial distress. Any and all information is welcomed. Need to take affirmative action now.
ANSWER: You can file a divorce case here, your attorney can hire an investigator to try to locate your wife, and if unable to locate her, your attorney can obtain a declaration of due diligence from the investigator and obtain an Order for Publication of Summons to enable him to serve your wife by Publication.
Protecting your credit against the loan obligation that you co-signed for is far more difficult. Both you and your wife are liable on that loan, so the best thing you could do would be to hire an investigator to locate the car (perhaps by locating your wife) to enable the car to be repossessed. Your wife doesn't need to agree to the repossession by the lender. All that is required is that the car loan is in arrears, that the car is locatable, and that the lender have a repossessor available in that vicinity to repossess the car.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
QUESTION: How can I protect my credit during a divorce? I have not seen my wife since 2007. I have no idea where she is located, though I believe in Texas right now. I want to start a divorce with her. The other issue is that while married we signed a joint auto contract. I have requested the auto maker to repo it since 2007 and it continually does not get repoed because she says no. It is affecting my credit and I need to address this matter as soon as possible to help my financial distress. Any and all information is welcomed. Need to take affirmative action now.
ANSWER: You can file a divorce case here, your attorney can hire an investigator to try to locate your wife, and if unable to locate her, your attorney can obtain a declaration of due diligence from the investigator and obtain an Order for Publication of Summons to enable him to serve your wife by Publication.
Protecting your credit against the loan obligation that you co-signed for is far more difficult. Both you and your wife are liable on that loan, so the best thing you could do would be to hire an investigator to locate the car (perhaps by locating your wife) to enable the car to be repossessed. Your wife doesn't need to agree to the repossession by the lender. All that is required is that the car loan is in arrears, that the car is locatable, and that the lender have a repossessor available in that vicinity to repossess the car.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
Saturday, February 5, 2011
WHAT DOES MY HUSBAND HAVE TO DO TO ADOPT MY CHILD?
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: What does my spouse have to do in order to legally adopt my child in California? My husband wants to adopt my daughter after being in her life 5 years. Her real dad has not been in her life for the entire 12 years she has been alive. Can my husband adopt my daughter?
ANSWER: If your daughter's biological father has not seen or been in contact with her for over one year, and has not paid any money towards her support for over one year, your current husband can file an adoption case in your county, to petition to adopt your daughter and terminate the biological father's parental rights if the biological father doesn't consent to the adoption.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
QUESTION: What does my spouse have to do in order to legally adopt my child in California? My husband wants to adopt my daughter after being in her life 5 years. Her real dad has not been in her life for the entire 12 years she has been alive. Can my husband adopt my daughter?
ANSWER: If your daughter's biological father has not seen or been in contact with her for over one year, and has not paid any money towards her support for over one year, your current husband can file an adoption case in your county, to petition to adopt your daughter and terminate the biological father's parental rights if the biological father doesn't consent to the adoption.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
Friday, February 4, 2011
WHAT DO WE HAVE TO DO IF WE WANT TO ANNUL OUR MARRIAGE?
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: What do we have to do in California if we want to annul our marriage? Can we still qualify for an annulment? I have been married for less than a year, and want to divorce.
ANSWER: Annulment is not designed for the joint use of parties as a convenient alternative to Dissolution of Marrriage, to end their marriage.
The grounds for Annulment are specific. Those grounds are set forth in Family Code Section 2210:
(a) lack of capability to consent per Family Code Sections 301 or 302 unless after attaining age of consent, freely cohabited with the other as husband and wife;
(b) another marriage of husband or wife was already in force at the time of the marriage (other details omitted here);
(c) either party was of unsound mind, unless that party after coming to reason freely cohabited with the other as husband and wife;
(d) the consent of either party was obtained by fraud, unless the defrauded party with full knowledge of the fraud, freely cohabiteed with the other as husband and wife;
(e) consent to the marriage was obtained by force, unless the forced party afterwards freely cohabited with the other as husband and wife; or
(f) either party was, at the time of the marriage, physically incapable of entering into the marriage state, and tht incapacity continues and appears to be incurable.
Section 2210(d) is by far the most common ground in Annulments, but the fraud must go to the heart of the relationship for the Court to grant an Annulment.
A word to the wise: If you are seeking an Annulment, hedge your bets and seek both a Dissolution of Marriage and an Annulment in your Petition, so if the Court declines to grant the Annulment, you can still go forward with the Divorce, instead of having to start all over again with a Divorce case.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
QUESTION: What do we have to do in California if we want to annul our marriage? Can we still qualify for an annulment? I have been married for less than a year, and want to divorce.
ANSWER: Annulment is not designed for the joint use of parties as a convenient alternative to Dissolution of Marrriage, to end their marriage.
The grounds for Annulment are specific. Those grounds are set forth in Family Code Section 2210:
(a) lack of capability to consent per Family Code Sections 301 or 302 unless after attaining age of consent, freely cohabited with the other as husband and wife;
(b) another marriage of husband or wife was already in force at the time of the marriage (other details omitted here);
(c) either party was of unsound mind, unless that party after coming to reason freely cohabited with the other as husband and wife;
(d) the consent of either party was obtained by fraud, unless the defrauded party with full knowledge of the fraud, freely cohabiteed with the other as husband and wife;
(e) consent to the marriage was obtained by force, unless the forced party afterwards freely cohabited with the other as husband and wife; or
(f) either party was, at the time of the marriage, physically incapable of entering into the marriage state, and tht incapacity continues and appears to be incurable.
Section 2210(d) is by far the most common ground in Annulments, but the fraud must go to the heart of the relationship for the Court to grant an Annulment.
A word to the wise: If you are seeking an Annulment, hedge your bets and seek both a Dissolution of Marriage and an Annulment in your Petition, so if the Court declines to grant the Annulment, you can still go forward with the Divorce, instead of having to start all over again with a Divorce case.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
Wednesday, February 2, 2011
SHOULD I LET MY HUSBAND KEEP THE HOUSE?
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: What will my rights to my house be after I get a divorce? I am getting a divorce. The house is under my name. We have a 22 year-old living with us who may be eligible for grants to move in university housing or may choose to live with me. My husband has bad credit and would like to stay in the house and pay mortgage, get married immediately and bring in his wife to this house. I do not trust him to be able to pay the mortgage in the future if the wife decides to move elsewhere, or if I decide to sell the house in a year or two whether I can have them vacate the house. If we sell the house, there will be little or zero profit left with our second loans and the market as it is.
ANSWER: Keeping the house and allowing your husband to stay in the house would be problematic and ill-advised, under the circumstances you describe.
Since the house and the loans are in your name only, you could end up the victim of a foreclosure and a deficiency judgment on at least the loan secured by second trust deed if your husband fails to keep the payments current on both loans, causing you to default on your loans. If the loan secured by first trust deed had been refinanced, you could end up the victim of a deficiency judgment on the refinance loan as well.
Your credit would be damaged if your husband failed to keep the payments currrent on both loans, and your credit would be destroyed if a foreclosure occurred.
You could be forced to make payments on the loans on the house in which your then ex-husband (and his new wife) live in order to protect your credit if your then ex-husband failed to keep the payments current.
You would be forced to spend money on attorney's fees in post-divorce proceedings to deal with the house if your then ex-husband failed to keep the payments current.
If your husband has bad credit, he won't be able to refinance the loans on the house to remove you as the obligor on those loans.
Unless your husband is able to induce a friend or relative to become a co-borrower on a loan to pay off the loans under your name, and the loan in your name is paid off in full, the best thing to do under the circumstances would be to sell the house, and if your husband refuses, to ask the Court for an order to sell the house, either before trial, or at trial.
This educational blog is brought to you by DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Lawyer and Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
QUESTION: What will my rights to my house be after I get a divorce? I am getting a divorce. The house is under my name. We have a 22 year-old living with us who may be eligible for grants to move in university housing or may choose to live with me. My husband has bad credit and would like to stay in the house and pay mortgage, get married immediately and bring in his wife to this house. I do not trust him to be able to pay the mortgage in the future if the wife decides to move elsewhere, or if I decide to sell the house in a year or two whether I can have them vacate the house. If we sell the house, there will be little or zero profit left with our second loans and the market as it is.
ANSWER: Keeping the house and allowing your husband to stay in the house would be problematic and ill-advised, under the circumstances you describe.
Since the house and the loans are in your name only, you could end up the victim of a foreclosure and a deficiency judgment on at least the loan secured by second trust deed if your husband fails to keep the payments current on both loans, causing you to default on your loans. If the loan secured by first trust deed had been refinanced, you could end up the victim of a deficiency judgment on the refinance loan as well.
Your credit would be damaged if your husband failed to keep the payments currrent on both loans, and your credit would be destroyed if a foreclosure occurred.
You could be forced to make payments on the loans on the house in which your then ex-husband (and his new wife) live in order to protect your credit if your then ex-husband failed to keep the payments current.
You would be forced to spend money on attorney's fees in post-divorce proceedings to deal with the house if your then ex-husband failed to keep the payments current.
If your husband has bad credit, he won't be able to refinance the loans on the house to remove you as the obligor on those loans.
Unless your husband is able to induce a friend or relative to become a co-borrower on a loan to pay off the loans under your name, and the loan in your name is paid off in full, the best thing to do under the circumstances would be to sell the house, and if your husband refuses, to ask the Court for an order to sell the house, either before trial, or at trial.
This educational blog is brought to you by DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Lawyer and Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
Tuesday, February 1, 2011
CAN MY CHILD'S PREFERENCE BE TAKEN INTO CONSIDERATION IN A CHILD CUSTODY CASE?
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: Can my daughter's will be taken into consideration in a child custody case? My 17 year old daughter moved in with me (father) after her mother agreed. She allowed my daughter to un-enroll from her high school, and we enrolled her where my daughter and I live. Now, three months later, the mother has changed her mind and is threatening kidnapping charges. No paperwork has been filed to change custody. Can our 17 year old state she does not want to go back to mother's residence when and if Sheriff dept show's up at our door?
ANSWER: Your daughter's "will" might not be considered by the sheriff, but could be considered by the Family Law Court in appropriate proceedings. See my Blog published on January 28, 2011, entitled: "Is the opinion of the child ever taken into consideration in a divorce?"
If the Child Custody orders in the Judgment of Dissolution of Marriage or the Uniform Parentage Act Judgment award your daughter's physical and/or legal custody to your wife, you and your daughter may be at risk if the sheriff knocks on your door.
Under the circumstances, you should promptly retain a Family Law Attorney to file an Order to Show Cause to modify child custody in the divorce case, including a request for appointment of minor's counsel, who would be able to convey your daughter's preference to the Court. It is likely that the Court would be willing to consider your 17-year old daughter's preference.
This educational blog is brought to you by DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
QUESTION: Can my daughter's will be taken into consideration in a child custody case? My 17 year old daughter moved in with me (father) after her mother agreed. She allowed my daughter to un-enroll from her high school, and we enrolled her where my daughter and I live. Now, three months later, the mother has changed her mind and is threatening kidnapping charges. No paperwork has been filed to change custody. Can our 17 year old state she does not want to go back to mother's residence when and if Sheriff dept show's up at our door?
ANSWER: Your daughter's "will" might not be considered by the sheriff, but could be considered by the Family Law Court in appropriate proceedings. See my Blog published on January 28, 2011, entitled: "Is the opinion of the child ever taken into consideration in a divorce?"
If the Child Custody orders in the Judgment of Dissolution of Marriage or the Uniform Parentage Act Judgment award your daughter's physical and/or legal custody to your wife, you and your daughter may be at risk if the sheriff knocks on your door.
Under the circumstances, you should promptly retain a Family Law Attorney to file an Order to Show Cause to modify child custody in the divorce case, including a request for appointment of minor's counsel, who would be able to convey your daughter's preference to the Court. It is likely that the Court would be willing to consider your 17-year old daughter's preference.
This educational blog is brought to you by DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
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