QUESTION: I want a divorce from my wife as rapidly as possible. I also want her removed from the only house in this country I have ever felt at home in. My wife has done everything to make me suffer since April 3, 2012, in very concrete ways. She is doing all possible to deny me ANY rights to my son with her. My wife is an ethnic Russian who originally was born in the Ukraine. I can prove she is being coached on how to ruin my life. Right now, my wife has full custody of my child. Currently, I do have a pending child custody/restraining order case with a good attorney, but his specialty is criminal defense. At times, I also find him insensitive to my situation, and I feel my case is not important to him. This pending case will be heard at the beginning of August after an expert will assess both my wife and me for "custodial/psychological" evaluation. On April 3, I was arrested and spent 24 hours in jail because my wife accused me of domestic violence. The night before I was arrested, I sent my wife a text message that stated, "If you mistreat him, I'm calling the cops." I heard my wife yelling at my son, and I heard lots of physical commotion coming from his bedroom where they were located. I assume she was not treating him as a mother should. All criminal charges were recently dismissed (I believe on May 9) . I met my wife when I was teaching in Russia for the United State Information Service (now, this service falls under the Department of State through US Embassies around the world). I brought my wife to this country and married her. She obtained US Citizenship.
MY RESPONSE: The best help for your divorce would be from a Certified Family Law Specialist who knows the Family Law field, not a criminal attorney.
Tuesday, September 18, 2012
CAN MY EX-WIFE GET A RETROACTIVE CHILD SUPPORT MODIFICATION?
QUESTION: My ex wife waived payment of child support to her during a hearing granting her a move away order from California to Washington. Once she moved to Washington, she asked me to pay her support. I agreed to pay support but was only paying the original court ordered amount when we had 50-50 custody in California. This was mutually agreed upon and a modification of support was not filed. My son is now graduated from high school, 18 years old and lives on his own in Washington(she has moved back to California). She is now saying she will be taking me to court and suing me for back child support based on the actual 75-25 physical custody she had while living in Washington. Can she do this?
MY RESPONSE: It depends on what the Order required. If you were paying what the Order required, she can't come back for more, even though she had a larger percentage of physical custody. Child Support can't be modified retroactively to a date prior to the date she files an Order to Show Cause, Motion, or Request for Order seeking a modification.
MY RESPONSE: It depends on what the Order required. If you were paying what the Order required, she can't come back for more, even though she had a larger percentage of physical custody. Child Support can't be modified retroactively to a date prior to the date she files an Order to Show Cause, Motion, or Request for Order seeking a modification.
HOW CAN I GET SOLE CUSTODY OF MY INFANT?
QUESTION: My ex is very abusive, deals drugs, drinks underage and I am only speaking to him for supervised visitation....I don't believe he'd hurt our son but I can't be sure so I want supervised visitation. He is trying to get my son for four days at a time; my son is only 8 weeks old, and is breastfeeding exclusively. I just wonder if he will be allowed that time?
MY RESPONSE: You would best retain an experienced Family Law Attorney to represent you in the child custody litigation. An attorney would know how to question witnesses and how to get evidence admitted, and your chances of succeeding would be significantly enhanced if you hire a good Family Law Attorney to handle your case.
MY RESPONSE: You would best retain an experienced Family Law Attorney to represent you in the child custody litigation. An attorney would know how to question witnesses and how to get evidence admitted, and your chances of succeeding would be significantly enhanced if you hire a good Family Law Attorney to handle your case.
HOW LONG DOES IT TAKE TO FINALIZE A DIVORCE?
QUESTION: I am the respondent to the petition my husband served on me. He has been paying the rent and bills since I am unemployed. There was only one case hearing due to him stopping to pay the rent for a month and there was a court order. So based on that hearing and another one scheduled I want to have an estimate on how long more this divorce might take to be finalized.
MY RESPONSE: Your divorce case doesn't get finalized by itself. You would best retain an experienced Family Law Attorney to represent you, and if you haven't yet filed your Response, to do that and move your case before your husband has your default entered. Otherwise, your husband could just sit on the case and do nothing. If you can't afford an attorney, you should go to your Superior Court's self-help clinic for assistande by a volunteer lawyer
MY RESPONSE: Your divorce case doesn't get finalized by itself. You would best retain an experienced Family Law Attorney to represent you, and if you haven't yet filed your Response, to do that and move your case before your husband has your default entered. Otherwise, your husband could just sit on the case and do nothing. If you can't afford an attorney, you should go to your Superior Court's self-help clinic for assistande by a volunteer lawyer
Sunday, August 12, 2012
WHAT HAPPENS TO RETIREMENT BENEFITS IN A LEGAL SEPARATION?
QUESTION: What happens to retirement benefits in legal separation? One person is retired and one still works with 5 years left.
MY RESPONSE: All community property is divided in a legal separation, the same way that community property is divided in a divorce: 50/50. Each party gets a 50% interest in the community portion of the other party's retirement benefits, usually by way of a QDRO (Qualified Domestic Relations Order). The community portion of a party's retirement benefits is that portion that was earned during the marriage to the date of separation. Portions of retirement benefits earned before the marriage or after separation are the separate property of the party earning those benefits. You would best retain, or at least consult, an experienced Family Law Attorney to ensure that the retirement plans are properly divided.
MY RESPONSE: All community property is divided in a legal separation, the same way that community property is divided in a divorce: 50/50. Each party gets a 50% interest in the community portion of the other party's retirement benefits, usually by way of a QDRO (Qualified Domestic Relations Order). The community portion of a party's retirement benefits is that portion that was earned during the marriage to the date of separation. Portions of retirement benefits earned before the marriage or after separation are the separate property of the party earning those benefits. You would best retain, or at least consult, an experienced Family Law Attorney to ensure that the retirement plans are properly divided.
WHAT CAN I DO WHEN MY EX DOESN'T LET ME SPEAK TO MY SON?
QUESTION: My ex and I recently got a court ordered custody schedule. In it, it says neither parent can prevent or restrict the other from speaking to our son. He is saying he will not allow me to speak to our son during the time he has him. I have told him I am willing to set up a pre-arranged time for me to speak with my son, and that I will not prevent him from speaking to our son, either. I have majority custody, and our son is about to be a year old. What can I do?
MY RESPONSE: Document your communications with your ex, by e-mail if possible, and save your e-mails to him and his e-mails to you, especially his refusals to allow you to talk to your son during your ex's time with your son, and try to call to speak to your son at least once a day during the time your ex has your son (but not to the point of annoyance) - and keep detailed records of your efforts, your ex's responses, and the results of your calls. Your options, once you have sufficient evidence, would be to file and prosecute a Contempt of Court against your ex, or to file and prosecute a Request for Order modifying child custody and/or visitation because of your ex's refusal to allow your communication with your son during your ex's visitation time.
MY RESPONSE: Document your communications with your ex, by e-mail if possible, and save your e-mails to him and his e-mails to you, especially his refusals to allow you to talk to your son during your ex's time with your son, and try to call to speak to your son at least once a day during the time your ex has your son (but not to the point of annoyance) - and keep detailed records of your efforts, your ex's responses, and the results of your calls. Your options, once you have sufficient evidence, would be to file and prosecute a Contempt of Court against your ex, or to file and prosecute a Request for Order modifying child custody and/or visitation because of your ex's refusal to allow your communication with your son during your ex's visitation time.
HOW DO I MODIFY OUR SUPPORT AGREEMENT?
QUESTION: My ex and I were divorced a couple of years ago. We filed without any attorneys and agreed that he would pay a small amount each month for child support and spousal support for a specific amount of time (with the spousal support ending early if I remarry). At the time the amount I agreed to was much less than I would have be awarded by California law but it was all I needed to make ends meet and i wanted to divorce amicably. Now he is trying to change the agreement to pay less. Can he do this? We agreed these would be the terms regardless of what happened in our lives from that point forward.
MY RESPONSE: It depends upon what the Judgment says. Unless the Judgment provides that your Spousal Support is non-modifiable, Spousal Support is modifiable based on a material changed of economic circumstances (although for you to seek an increase in Spousal Support, you would also need to prove that the Spousal Support initially awarded to you was insufficient to enable you to be supported in accordance with the marital standard of living). Child Support is always modifiable on a showing of changed economic circumstances. Your ex can seek a modification of Spousal and Child Support based on a material change of circumstances, such as loss of his job, reduction of salary, unpaid furlough days, an additional child to support, or your increased income.
MY RESPONSE: It depends upon what the Judgment says. Unless the Judgment provides that your Spousal Support is non-modifiable, Spousal Support is modifiable based on a material changed of economic circumstances (although for you to seek an increase in Spousal Support, you would also need to prove that the Spousal Support initially awarded to you was insufficient to enable you to be supported in accordance with the marital standard of living). Child Support is always modifiable on a showing of changed economic circumstances. Your ex can seek a modification of Spousal and Child Support based on a material change of circumstances, such as loss of his job, reduction of salary, unpaid furlough days, an additional child to support, or your increased income.
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