Friday, August 26, 2011

WILL I BE ABLE TO GET CUSTODY OF MY CHILDREN?

QUESTION: A year and half go my wife took off with the kids without my permission from Kentucky to California. I didn't want to drag my kids through court battles and I trusted her when she kept telling me she would come back after her mother got better. Now she has filed for divorce in the state she lives in and is threatening to take off with them again. Do I have a shot of getting my kids back?
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MY RESPONSE:

You have a shot, but it is going to be difficult and expensive.

By not seeking custody/visitation rights for a year and a half, you allowed a “status quo” to occur where the children have become accustomed to living with your wife, and a Judge may be reluctant to significantly change the status quo.

However, a Judge may consider the circumstances of your wife’s deceit in making a custody order.

California became the childrens’ “home state” pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act [UCCJEA] after the children lived in California for six months.

You will need to retain an experienced Family Law Attorney in California (in the county in which the divorce case is filed) to represent you, long-distance, and you will likely need to appear in the California court for trial, and likely at other hearings as well.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

DO I OWE MY SPOUSE MONEY ON PROPERTY I OWNED BEFORE OUR MARRIAGE?

QUESTION: I owned a condo before marriage as my sole and separate property, since 1988. In 2006, I put my husband on title so that he could be President of our HOA. We separated in 2010. He contributed no money to the Condo. The mortgage has been in my name only. Now he wants 1/2 my condo. Do I owe any money to my husband on the Condo?

MY RESPONSE:

You likely transmuted your condo to community property when you added your husband to title, but you are entitled to reimbursement, pursuant to Family Code Section 2640, of the equity in your condo as of the date you converted the condo to joint ownership, as your separate property, before the balance gets divided 50/50.

Due to devaluation of real properties as a result of the recession, it is possible that there may be no balance to divide after your reimbursement.

You will likely need to retain an appraiser to appraise the condo as of the date you added your husband to title, and as of the date closest to trial.

If your mortgage was being paid down with community funds (i.e., your or his income) during the marriage prior to the date you converted the condo to joint ownership, your husband may have a small Moore/Marsden community reimbursement interest in the condo.

You would best retain an experienced Family Law Attorney to represent you in your divorce case.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

WHAT IS THE BEST WAY TO START A DIVORCE?

QUESTION: How do I start a divorce? What is the best way?

MY RESPONSE :

The best way to start a divorce is to retain an experienced Family Law Attorney to represent you and file and handle your divorce.

If you can't afford a lawyer, you should contact your local Superior Court (unlimited jurisdiction) and find out when and where that Court's self-help divorce clinic is available, and go there for assistance.

The first step in a divorce is to prepare and file a Summons, Petition and whatever other document your county requires for assignment of the case to a particular Superior Court.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

SHOULD I DIVORCE MY HUSBAND WHO LEFT ME 30 YEARS AGO?

QUESTION: I was married over 30 years ago. One day, my husband left to get lunch and never returned. He implied to me that he filed a divorce. Over 30 years later, I discovered that we are still married and he has another wife. I contacted his sister but she will not give me his home number. I checked public records and found no divorce decree. What are my rights as his wife?

MY RESPONSE:

If you are still married, your husband’s subsequent marriage is void.

You are entitled to derivative Social Security benefits based on his contributions into Social Security during the marriage. You are also entitled to certain rights as his wife, upon his death.

You are entitled to divorce him if you wish - which you might consider, since you need to file your income tax returns as married, filing separately (the highest marginal tax bracket) while you remain married to him.

On the other hand, iif you have little or no income, and if your husband is still earning a living, you might consider increasing the amount of your derivative Social Security benefits, as well as getting death benefits, by leaving the sleeping dog lie.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

IS MY HUSBAND ENTITLED TO HALF OF MY 401K PLAN?


QUESTION: If my husband and I get a divorce is he entitled to half of my 401k? We were previously married for 25 years and got a divorce for about 6 months, after which we got remarried and we have been married for about 3 more years. Would this make a difference? In our first divorce, he didnt want anything but now he is demanding half of my 401k.

MY RESPONSE:

Your husband is entitled to half of the community interest in your 401K plan, i.e, half of the 401K investments that were made in your second marriage to him.

If you were a participant in that plan prior to your current marriage, the contributions into that plan prior to your current marriage that were made during your prior marriage are your separate property if they were awarded to you in your first divorce.

However, if your 401K plan wasn’t awarded to you as your separate property in the first divorce, your husband can request that the Court divide the prior 401K investments made during your first marriage as an omitted asset.

The contributions into your 401K plan subsequent to your separation from your husband (if you have separated from him) are your separate property.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

Monday, August 22, 2011

WHAT PARENTAL RIGHTS DO I HAVE TO MY STEP CHILDREN ONCE I GET MARRIED?

QUESTION: I am getting married within the next year. My fiancé currently has two kids from two different men. Neither father at birth wanted to be on their kid’s birth certificate. One child is 3 the other is 17 months old, both children are currently living with me along with my fiancé, as they have for the past 6 months. The fathers see them every so often; the 3yr old father maybe once every 3 months, the 17mth old father sees him about once a week for a day. My question is once we are married what legal/ parental rights do I have pertaining to the children that would then be my step children? Also if anything were to happen to my fiancé after marriage, leaving me to raise the kids alone, what legal/ parental right would I have then since neither father is on the birth certificate? If she were to appoint me sole custody and legal guardian of the kids would there be any way their birth fathers could over rule this in court to try to gain custody of their children?

MY RESPONSE:

You don't get "legal rights" to your stepchildren by marrying their mother.

Were you to want to adopt the children, the fathers would need to consent to the termination of their parental rights, inasmuch as the Court won't terminate, for adoption purposes, the parental rights of a parent who has visited or contributed to the support of a child at any time during the past year.

If your wife appoints you as the children’s legal guardian on her death, the fathers could seek custody of the children unless you had adopted them.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

CAN I MOVE OUT DURING A DIVORCE?

QUESTION: My wife and I have tried to reconcile our marriage several times but to no avail. We have 4 children, we own a home, and we have been married for 21 years. My wife is telling me I should get an apartment while she stays in the house with the kids for a year or so till they get adjusted. Does my moving out have any negative bearing for me in the divorce if I keep in contact and visit the children?

MY RESPONSE:

If you move out, you will lose the daily interaction and the frequent and continuing contact with your children that you had when you saw them at home every day. That could affect your ability to get substantial Child Custody rights at the OSC and Trial levels.

Not moving out during the divorce might avoid an OSC for Child Custody and Child Support.

You would have much greater exposure to an earlier and greater Child Support order if you move out, since Child Support is based on the percentage of your custodial timeshare, your income, and your wife's income.

There is no legal requirement for you to move out - just keep the peace and stay out of each other's way - sleep in different bedrooms, don't threaten each other, and don't commit domestic violence.

Moving out would result in increased costs of living because of the need to support two separate housholds - and you could be stuck with all or the majority of the costs of your wife's household, especially if your wife doesn't pay the mortgage or real property taxes.

Also, moving out would result in your loss of control of your house - in terms of ensuring that it is appropriately maintained and repaired, facilitating sale of the house if that is appropriate in the division of community assets, and ensuring that the mortgage and real property taxes are paid.

If you can work out peaceful co-existence in the family home, you may be able to avoid those risks.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

WHAT CAN I DO TO PREVENT THE MOTHER FROM GETTING CUSTODY?

QUESTION: I married my wife 3 years ago; she wasn't a citizen of US then. Soon after our marriage, we had a baby girl. About a year ago, my wife went back to her country with our daughter and a month later, she said she cannot stand her life in the US anymore because it was not “comfortable.” (Her parents are fairly wealthy in her country). I flew over to her country asking if there’s anything I can do to save the marriage; she said no. Her parents tried to talk to her, but she insisted on a divorce. Her parents then told me to just bring the baby back with me to US, since she’s too stubborn and won’t listen to anybody (I personally think her parents think she’s still young, 24 years old; why have a baby? She can still find somebody nice and marry him if she doesn’t have a baby). It has been almost a year, and I haven’t heard from her. Not even a single question about our daughter. The divorce never took place. What I’m afraid now is that she may come back to US one day and seek custody of our child. Anything I can do to protect my kid?

MY RESPONSE:

You might best let a sleeping dog lie.

If you file a Divorce case and seek custody of your daughter in that case, you would need to give notice to your wife, and that would likely induce her to move back and fight.

The longer your daughter is with you, the better her bonding with you.

The longer your daughter is not with her mother, the less chance your wife would have to get custody.

If your wife returns to the US later, deal with her then in the Court.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

IS MY WIFE ENTITLED TO HALF OF MY BUSINESS?

QUESTION: I am the sole owner of a franchise, and am currently going through a divorce. My wife wants half the value of the business, even though her name is not on it anywhere. Is she entitled to any of it since it is my only source of income?

MY RESPONSE:

If the business was started during the marriage, it is a community business.

Each party, on divorce, is entitled to 1/2 of the net community property. If you acquired the franchise during the marriage, and paid for it with monies earned during the marriage, it is community property.

It doesn't matter that your wife's name is included in any paperwork as a co-owner of the business.

If it is community property, your wife has a community interest in the franchise.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

HOW CAN I GET CUSTODY OF MY SON FROM MY FORMER GIRLFRIEND?

QUESTION: My ex-girlfriend has kept me from my son for years off and on now. I have him for the summer and its great. The other day my son asked if he can live with me because he hates it there where he lives he says he sleeps on the couch and has no bed not to mention the mom moved in with a boyfriend with a bad past after only being with him for 4 months. He moves out off and on and she sells his stuff when she needs money. I am heart broken because my son wants to stay with me. I pay her child support but there is no court order custody. Can I keep him with me with out going to jail or getting arrested for kid napping I just want whats best for my son and if I take him back who knows when I will ever see him again. He is 10 now and time is getting short.

MY RESPONSE: File a Paternity case and an Order to Show Cause for Child Custody. That would be your wisest and safest move.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |


Wednesday, August 17, 2011

SHOULD I FILE FOR LEGAL SEPARATION OR DIVORCE?

QUESTION: I was wondering what the differences were between getting a legal separation and a divorce? Is one more cost effective? I want to know if I can date while legally separated from someone. I know when getting a divorce it is not a good idea, because your ex spouse can use this against you, but we have been separated for a long time. We are just now getting to all the paperwork.

MY RESPONSE:

A legal separation is the same as a divorce, except that you remain married to your spouse.

People who seek legal separation usually do so due to religious beliefs against divorce, and the other party may respond to a legal separation by either seeking a divorce or a legal separation. If either party seeks a divorce, the Court will grant one on the generic grounds of irreconcilable differences.

Under your circumstances, you would best seek a dissolution of your marriage (a divorce), because if you got a legal separation from your husband, in order to divorce him, you would have to file a subsequent divorce case and start all over from the beginning. That would definitely not be cost-effective.

There is no law or rule against dating another person during a divorce or legal separation case. Your ex-spouse can't use that against you.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

WHAT RIGHTS DO I HAVE TO OUR HOUSE?

QUESTION: My husband and I built a house on some property he owned before we were married. My name is not on the deed to the property but is on the house. We have been married for 6 1/2 years, am I entitled to the house I built with him? Do I have to get out?

MY RESPONSE:

You don't have to move out if you file for divorce, but if the house is awarded to your husband in the divorce (with an appropriate equalization payment to you), you will ultimately need to move out after the divorce.

If your name is not on the property, I am curious why you think your name is on the house.

Under the circumstances that you relate, you would likely have a community interest in the house, but it would not be a 50% interest.

You would best retain an experienced Family Law Attorney to represent you in your divorce, and you may need to retain a forensic account to assist in determining your percentage of co-ownership in the property.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

WHAT ARE MY RIGHTS TO MY BOYFRIEND’S ASSETS IF HE IS STILL LEGALLY MARRIED?

QUESTION: I have been living with my boyfriend for 8 years, who is (12 years) married, but has been "physically" separated from his wife/child for 9+ years. We have a 10 year old child together. I have 2 questions: 1. I have had an insurance policy on him for 3+ years, is that valid if he is "legally" married? Or could his wife contest it? 2. If something were to happen to him, God forbid, if he does a WILL and leaves assets to our child and myself, can his wife contest this as well, since they are still legally married and own property together?

MY RESPONSE:

You shouldn't have a problem with the Life Insurance coverage.

However, if your boyfriend is still married to his wife, she may have some rights to his estate which may enable her to contest his will. He should divorce his wife to enable him to terminate those rights.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

CAN THE FATHER GET CUSTODY IF THE MOTHER GOES TO JAIL?

QUESTION: If the mother goes to jail can the father get custody of the parties’ minor child?

MY RESPONSE: That would likely happen, but it would be best for the father to file an Order to Show Cause for modification of Child Custody, so that he can have all appropriate legal rights to the child.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

HOW DO I MODIFY A CHILD CUSTODY/VISITATION ORDER?

QUESTION: What steps do I take to modify a child custody/visitation order?

MY RESPONSE: File an Order to Show Cause to modify child custody and/or visitation. You would best retain an experienced Family Law Attorney to represent you in that matter.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

Sunday, August 14, 2011

WHAT RECOURSE DO I HAVE IF MY HUSBAND IS STILL MARRIED TO HIS PREVIOUS WIFE?

QUESTION: I just found out my husband may still be married. Before we married he told me he got an annulment in California. What recourse do I have?

MY RESPONSE:

You should ask your husband for proof of his Annulment, such as a Judgment, or a case number and court name and location, so that you can examine the court records in that case and determine whether or not his prior marriage was annulled.

If his prior marriage was never annulled or dissolved, your marriage to him is void.

If you want out of your marriage, you can file to annul your marriage, because a person cannot be married to two people at the same time.

If you want to stay with your husband, he should divorce his "wife" and then remarry you.

You won't be entitled to derivative social security benefits based on your marriage to your husband, until 10 years after you validly marry him.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

HOW WILL THE COURT DETERMINE CHILD SUPPORT IN OUR DIVORCE?

QUESTION: My soon to be ex wife earned approximately $11.00 more than me prior to the birth of our daughter. She has since shortened her working hours (we work at the same company) yet still makes .50 cents more than I do because of her new schedule. She is adamant about being a stay at home mom (which is her decision and I'm not faulting her.) My question is this, how will the courts factor in the difference when coming up with a amount for child support, (I haven't yet sought legal counself because I haven't been served anything and it has been a month since we physically separated + we're on semi-speaking terms email/texting etc) also, can they force her to go back to work full time?

MY RESPONSE:

Child support is based on your monthly income, your wife's monthly income, and your percentage of custodial timeshare. It is not merely based on how much you and your wife earn per hour.

If you want the Court to impute income to your wife, you would need to be able to prove that she has both the ability and the opportunity to earn that income.

A reported case with facts similar to yours was in re Marriage of LaBass and Munsie, where the Court imputed full time income to a wife who chose to work only part time, after the husband proved that there were full time jobs available to the wife for which the wife was qualified, along with the amount of pay that was available in those full time jobs. In that case, the Court allowed the husband's use of classified ads to show that "offers to bargain existed" to overcome the wife's hearsay objections.

In my experience, some, but not all Courts, will accept classified ads as a basis to impute income to a party.

You could file a Motion to have a Vocational Tranining Consultant perform a vocational examination of your wife; in such an examination, the expert interviews your wife, learns of her education, training and experience, contacts references of hers, and performs a labor market survey, to determine what jobs are available, at what rate of pay, for which your wife would be qualified.

The testimony of a Vocational Traning Consultant at a hearing or trial is an effective way to persuade the Court to impute income to a party.

Whereas a Court cannot force your wife to go back to work full time, if you are able to prove her ability and opportunity to earn full time (as addressed hereinabove), the Court can treat your wife for support purposes as though she is earning the income that the Court imputes to her.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

HOW CAN I KEEP THE COST OF DIVORCE DOWN?

QUESTION: My wife and I are separating, what is the best way to keep divorce costs down?

MY RESPONSE: Settle it!

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

AM I ENTITLED TO HALF OF MY SPOUSE’S RETIREMENT?

QUESTION: After 11 years of marriage, I am getting a divorce. Am I entitled to half of my spouse’s retirement?

MY RESPONSE:

You are entitled to 1/2 of the community portion of your husband's retirement.

Any portion of your husband's retirement earned prior to the marriage or after separation is his separate property.

A QDRO (Qualified Domestic Relations Order) will need to be prepared, signed, made an order of the Court, and served on the retirement plan (in addition to the Judgment), in order to comply with ERISA requirements.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

HOW MUCH TIME DO I HAVE TO RESPOND TO A DIVORCE AFTER I WAS SERVED?

QUESTION: How long do I have to respond to divorce papers after being served?

MY RESPONSE:

Your Response to the Petition must be filed and served within 30 days after you are served.

If you fail to timely file and serve your Response, your spouse can file a request that the Court enter your default.

So long as your Response is filed and served before your spouse files a request that the Court enter your default, you could potentially file and serve your Response after the 30-day limit, but you would be taking an unreasonable risk not to file and serve your Response within the requisite 30-day time limit.

The expense of a Motion to Set Aside Default and the risk that the Court might not grant that Motion make it unwise for you to delay filing and serving your Response beyond the 30-day time limit.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

HOW CAN I CHANGE MY CHILD’S LAST NAME?

QUESTION: My daughter is 15 yrs old and I want to change her last name. There is not a father listed on her birth certificate. My husband is willing to give her his last name. We have been married since 1997. He has been the father figure to her since she has been a baby. How do I change her last name?

MY RESPONSE: You would need to file an Action for a Name Change, which requires that you provide notice to each and every interested person, including your daughter's biological father, so that those interested people can attend the hearing and contest the action if they so desire.

A better thing to do, if your husband wishes to do it, would be for your husband to adopt your daughter.

If your daughter's biological father hasn't communicated with her or provided any support for her for over a year, the biological father's parental rights can be terminated in an adoption by your husband if the biological father refuses to sign a consent to the adoption.

The biological father would need to be given notice of the adoption proceedings, and the Social Worker would give the biological father the option of signing or refusing to sign his consent to the adoption.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

HOW LONG DO I NEED TO WAIT BEFORE I CAN REMARRY AFTER MY SPOUSE PASSED AWAY?

QUESTION: Is there a legal requirement that I wait a certain period of time to get re-married if my spouse has recently passed away? Or does it not matter? Thank you.

MY RESPONSE:

There is no waiting period if your wife died. You are single.
You can get re-married as soon as you get a marriage license.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

Tuesday, August 9, 2011

CAN MY HEALTH RECORDS IMPACT CHILD CUSTODY?

QUESTION: I was diagnosed with a terminal illness last week but my x-wife does not know this. I will still be healthy for several years and want to spend them with my kids. Can my medical records be found by her lawyer?

MY RESPONSE:

It is unlikely that your medical records, or your health condition will affect the issue of child custody, unless you make your medical condition an issue in the case.

Your medical records are entitled to protection as confidential documents under the physician/patient privilege unless you tender the issue of your health condition to the Court, i.e., if you claim inability to work due to your health condition, your medical records could be discovered.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

WHAT WILL MY WIFE GET IF WE GET A DIVORCE?

QUESTION: I'm a marine and Ive only been married for a little over a year. We married at the very end of my service. We also bought a house about four months ago and its in both of our names. The divorce is due to adultry on her part. Now she is threatening to court and take all that I own if I dont pay her off. What will she get if we get a divorce?

MY RESPONSE:

Your wife would likely be entitled to little or nothing in a divorce, after a one-year marriage.

California has no fault divorce, so your wife's adultery would not be relevant to a divorce.

The house that you bought four months ago is likely worth no more, and probably worth less, than what you paid for it.

If it has any equity, its equity would likely be eaten up by realtor commissions and costs of sale, if it could even sell.

If you put separate property into the down payment, to the extent that you can trace separate payment into the purchase of the house, you would be entitled to reimbursement of that separate payment out of the net sale proceeds before the balance, if any, would be divided as community property - and there likely would not be any balance.

Whatever you owned before the marriage is your separate property, and your wife isn't entitled to any of your separate property.

In terms of Spousal Support, that is based on your income and her income and the marital lifestyle as the major considerations.

If you earn significantly more than your wife, you could have a Spousal Support obligation, but that would last only 1/2 the duration of the marriage.

If your wife earns significantly more than you do, she could have a Spousal Support obligation to you, for 1/2 the duration of the marriage.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

AM I ENTITLED TO ANY OF MY HUSBAND’S RETIREMENT MONEY?

QUESTION: My husband and I are both retired law enforcement officers. His retirement is twice as much as mine. He is entitled to Social Security at age 62. Am I entitled to any of his retirement?

MY RESPONSE:

Assuming that you and your husband are getting a divorce, each of you is entitled to his/her respective 1/2 community share of the other party's retirement pay/funds.

Retirement funds earned during the marriage comprise the community share, but retirement funds earned prior to marriage or after separation are separate property, i.e., those portions of the retirement account are not part of the community share.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

IS MY HUSBAND LEGALLY REQUIRED TO PAY MY ATTORNEY’S FEES?

QUESTION: My Husband filed for Divorce to marry Homewrecker. He left me, and our children with nothing. He Promised to pay Attorney Costs in Summons, but he won't give me any money for an Attorney. What can I do?


MY RESPONSE:

I'm not sure what you mean: "Promised to pay Attorney costs in Summons" because the Summons is a form which has no place for such matters.

I assume that you mean that he checked one of the boxes under item 7.e. on the Petition (not the Summons), under which he requested that the Court make orders for payment of attorney's fees by one party to the other party.

You might re-check the Petition to see if he asked that the Court order that he, or that you, pay attorney's fees.

If your husband earns a decent living, you may be able to find an attorney to either represent you on a Limited Scope basis to file a Divorce and an Order to Show Cause [OSC] for Attorney's Fees to thereafter fund full retention, or to represent you from the start on a full retainer basis, to file a Divorce and an OSC for Attorney's fees (as well as for Child Custody, Child Support, and Spousal Support) to enable you to be represented throughout the case.

The Elkins Legislation that became effective January 1, 2011 encourages Courts to make attorney's fee orders early on, to level the playing field between divorcing parties with disparate incomes.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

CAN A PARTY SEEK ALIMONY TWO YEARS AFTER A DIVORCE IS FINALIZED?

QUESTION: Can a party sue for alimony 2 years after a divorce is finalized when both parties waived alimony at the time of the divorce?

MY RESPONSE:

If the waiver of spousal support was properly done, any attempt to seek spousal support two years after the Judgment of Dissolution of Marriage was entered will likely be unsuccessful.

Family Code Section 2122 sets forth the grounds and time limits for a Motion to set aside a Judgment, i.e., actual fraud, perjury, duress, mental capacity, mistake in connection with a stipulated judgment, and failure to comply with the disclosure requirements, but many of those grounds have a one-year statute of limitations.

In particular, Section 2122(e) requires a Motion based on mistake as to a stipulated or uncontested judgment (whether mutual or unilateral, mistake of law or fact) to be brought within one year after the date of entry of judgment.

However, if the waiver of spousal support was not properly done, the issue of spousal support may remain a viable issue after the divorce.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

Friday, August 5, 2011

HOW LONG DO YOU HAVE TO BE SEPARATED BEFORE YOU CAN FILE FOR DIVORCE?

QUESTION: Do you have to be separated a certain number of days to file for divorce?

MY RESPONSE:

No.

The signature of the Petitioner on the Petition for Dissolution of Marriage constitutes separation sufficient for a Divorce case to be filed.

The earnings and accumulations of each spouse following separation are the separate property of each respective spouse.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

CAN A MOTHER HIRE AN ATTORNEY FOR THE CHILDREN WITHOUT THE FATHER’S APPROVAL?

QUESTION: My mother has 100% physical custody and joint legal custody. Can my mother hire an attorney for minors without my father’s approval?

MY RESPONSE:

The mother can hire an attorney to represent her (but not the children) without the father's approval.

Only the Court can appoint an attorney to represent the minor children, and that can be accomplished on either party's request (if the Court finds need for minor's counsel) or on the Court's own motion.

If the mother has retained an attorney ostensibly to represent the children, the father can file a Motion to recuse that attorney, since the retention was in violation of the father's joint legal custodial rights, creates a conflict of interest, and was done without the approval or order of the Court.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

CAN I GET A DIVORCE IF I CAME TO THE U.S. ON A FIANCE' VISA?

QUESTION: We got married a few months ago, I am not a citizen yet. Can I get a divorce if I am here because of engagement visa?

MY RESPONSE:

If you have complied with California's minimum residency requirements for a divorce (6 months in the state, and 3 months in the county), you can file for a divorce in California.

The fact that you came here on a fiance' visa does not prevent you from getting a divorce.

However, you would be wise to consult with an immigration attorney before filing a divorce case, to determine whether filing a divorce case would jeopardize your immigration status.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

HOW CAN A PERSON DIVORCE A FOREIGN SPOUSE?

QUESTION: My boyfriend would like to divorce a woman he married 14 years ago. They lived together briefly in CA while she was visiting here from Sweden. Right after they married, she accused him of abuse, which caused a lot of legal problems for him, and somehow secured her green card status, even though they never lived together after that. They had no contact since then. Apparently, they may still be married. She may also have returned to Sweden - we found her Facebook page. We would like to find out if she already divorced him, or, if not, how he can divorce her in the simplest way. Thanks.

MY RESPONSE:

Had she divorced him, he undoubtedly would have had to have been served with her divorce case.

He should try (or have a private investigator try) to locate her in Sweden, and find out her residence address, and ask if she will agree to accept service by mail and return a dated and signed Notice and Acknowledgment of Receipt.

If she agrees and complies with her agreement, service will be simple, and your boyfriend can proceed to get a divorce.

If she either doesn't agree, or doesn't return a dated and signed Notice and Acknowledgment of Receipt, service will have to be done in accordance with the requirements of the Hague Convention re Service of Process, in order to proceed with the divorce.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

WILL MY WIFE GET CHILD SUPPORT FROM ME?

QUESTION: For the last year my wife and I have been on unemployment. I pull in $1,100.00 and she gets $400.00. She moved out June first and has left the marriage. We have 3 children. Does she have dibs on my potential earnings as far as child support goes or does it stay where it was when she decided to leave?

MY RESPONSE:

After filing her divorce case, your wife can file an Order to Show Cause for a Guideline Child Support order retroactive to the date of filing of her Divorce case based on your income, her income, and your percentage of custodial time-share of the children.

If and/or when you become re-employed, your wife can file an Order to Show Cause to modify Child Support to the guideline figures, based on your new income, her income, and your percentage of custodial time-share of the children, retroactive to the date of her filing that OSC for Modification or the date it is served upon you, at the Court's discretion.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |

WHAT SHOULD I DO IF A SPOUSE WON’T PROVIDE FINANCIAL INFORMATION FOR A DIVORCE?

QUESTION: My boyfriend is trying to file for divorce in California. Part of the requirement is to disclose financial information. His ex will not provide this information, so how should he proceed in filling out his FL-141 (Declaration Regarding Service of Declaration of Disclosure) Forms?


MY RESPONSE:

Assuming that your boyfriend has already filed and had his Dissolution of Marriage Action served on his wife, he should prepare his Preliminary Declaration of Disclosure, his Income and Expense Declaration, his Schedule of Assets and Debts, and his Declaration re Service of Preliminary Declaration of Disclosure and Income and Expense Declaration, and those should be served on his wife, and his Declaration re Service of Preliminary Declaration of Disclosure and Income and Expense Declaration should be filed with the Clerk of the Court (not the other documents).

He should request, in writing that his wife prepare and serve the same documents on him, and advise her that unless he receives them within 30 days, he will need to seek the assistance of the Court to compel her to do so and to pay monetary sanctions to him.

If she doesn't comply, he should file (and serve) a Motion to compel preparation and service of those documents, and for an Order compelling his wife to pay a certain dollar amount of monetary sanctions to him.

If the Court grants his Motion, and his wife fails to comply with the Court's order within the time limit specified in the order, he should file another Motion to compel preparation and service of those documents, and for "Terminating Sanctions", i.e., for the Court to enter his wife's default, which, if granted, will enable him to proceed to get a judgment against his wife without her participation in the case.

If your boyfriend can afford to retain an experienced Family Law Attorney to represent him, he would be wise to do so, because there are technical requirements for the procedures addressed above which he may not know and/or which may be difficult for him to comply with.

This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |