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 Family Law 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, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and 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: In California, will I have to pay more spousal support if I have been married to my wife for over a decade? I have been married to my wife for over 10 years. Since we live in California, will I be required to pay more in spousal support because of this?
ANSWER: I assume from your question that you are in the process of, or facing, a divorce. If there is no divorce or legal separation, you won't have a spousal support obligation.
Family Code Section 4336(a) provides that except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration.
Family Code Section 4336(b) provides that for the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of the separation, is a marriage of long duration. However, the court may consider periods of separation during the marriage in determing whether the marriage is in fact of long duration. A court could even, under certain circumstances, determine that a marriage of less than 10 years is a marriage of long duration.
You can limit the duration of spousal support if you and your wife stipulate in writing during the divorce, or orally stipulate on the record in the divorce court, to a specific limited duration of spoual support.
Family Code Section 4320 addresses circumstances to be considered by the Court in ordering spousal support, and the duration of the marrige is one of the many enumerated factors that the Court would consider. The primary impact of the duration of the marriage would be on the court's determination of the duration of spousal support, rather than the amount of spousal support. In a short term marriage, spousal support is ordinarily awarded for 1/2 the duration of the marriage. In a long term marriage, spousal support is ordinarily awarded until the payee's death or remarriage. Other factors may come into play, so you would best consult with a competent Family Law Attorney about the particulars of your matter.
Friday, December 31, 2010
Thursday, December 30, 2010
CAN I GET A DIVORCE IF I DON'T KNOW WHERE MY SPOUSE LIVES?
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 Family Law 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, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and 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 proceed with a divorce if I do not know where my husband lives? We went through separation of property in our legal separation over 3 years ago, and now I want to file for divorce. However, he has moved out of state and I am unaware of his location. Do I need to get in touch with him to move forward with my divorce?
ANSWER: You should contact his friends and relatives in an effort to locate him, so that he can be personally served with the divorce papers after they are filed. Do you know what state and/or part of that state he moved to? If you are unable to locate him, you would best hire a competent Family Law Attorney to handle your divorce to get your husband served through publication, which would first require a due diligence search by a qualified third party in an effort to locate your husband before applying for a court order to permit service by publication.
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 proceed with a divorce if I do not know where my husband lives? We went through separation of property in our legal separation over 3 years ago, and now I want to file for divorce. However, he has moved out of state and I am unaware of his location. Do I need to get in touch with him to move forward with my divorce?
ANSWER: You should contact his friends and relatives in an effort to locate him, so that he can be personally served with the divorce papers after they are filed. Do you know what state and/or part of that state he moved to? If you are unable to locate him, you would best hire a competent Family Law Attorney to handle your divorce to get your husband served through publication, which would first require a due diligence search by a qualified third party in an effort to locate your husband before applying for a court order to permit service by publication.
Wednesday, December 29, 2010
THE FIRST STEP TO TAKE BEFORE GETTING DIVORCED
Certified Family Law Specialist DONALD F. CONVISER, of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Family Law 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, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and 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 should I do before getting divorced in California? I want to make sure that I take the right steps before getting a divorce. My wife and I are separated, and she owns her own business and has two homes in two different states. What do I need to do to be set up financially?
ANSWER: The first step you should take is to have a face-to-face consultation with a competent Family Law Attorney, who would ask appropriate questions of you and obtain responses and information to assist in determining what steps need to be taken. From your question, I can't determine whether the business which you call your wife's business is a business which was formed during the marriage, or a business which your wife had prior to the marriage. If it was formed during the marriage, it would be community property. Even if your wife had the business before the marriage, you may be entitled to a "Pereira/Van Camp" interest in her business. Also, from your question, I can't determine whether your wife owned the two homes prior to the marriage, if they were purchased in her name alone during the marriage, or otherwise, but you could have some sort of interest in the homes, depending on the specific facts. Also, from your question, I can't determine who has greater income, or whether you and your wife have children and if so, who has de facto custody, but all of the above comprise matters to discuss with a Family Law Attorney, in person.
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 should I do before getting divorced in California? I want to make sure that I take the right steps before getting a divorce. My wife and I are separated, and she owns her own business and has two homes in two different states. What do I need to do to be set up financially?
ANSWER: The first step you should take is to have a face-to-face consultation with a competent Family Law Attorney, who would ask appropriate questions of you and obtain responses and information to assist in determining what steps need to be taken. From your question, I can't determine whether the business which you call your wife's business is a business which was formed during the marriage, or a business which your wife had prior to the marriage. If it was formed during the marriage, it would be community property. Even if your wife had the business before the marriage, you may be entitled to a "Pereira/Van Camp" interest in her business. Also, from your question, I can't determine whether your wife owned the two homes prior to the marriage, if they were purchased in her name alone during the marriage, or otherwise, but you could have some sort of interest in the homes, depending on the specific facts. Also, from your question, I can't determine who has greater income, or whether you and your wife have children and if so, who has de facto custody, but all of the above comprise matters to discuss with a Family Law Attorney, in person.
Tuesday, December 28, 2010
WHAT TO DO IF A CONSULTING LAWYER HASN'T PERFORMED SERVICES
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 Family Law 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, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and 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: I paid a lawyer to file my divorce but he is not my attorney on record, and he has not completed forms. It has been weeks and it has been impossible to get a hold of him. My simple divorce has to still be finalized and it has been over a year and a half since I filed. Can I get help from another lawyer?
ANSWER: It sounds as though you hired a lawyer as a consultant to perform "unbundled services" to file your divorce case, and if so, you would be your own lawyer, in Pro Per. If that is the case, you can substitute another attorney to take over your representation from yourself. From your question, I can't determine what forms the first attorney hasn't completed, but the attorney who you substitute in can complete the divorce case. The agreement between the first lawyer and you should define what the first lawyer was supposed to do, and if he was paid to do something and didn't do it, you can sue him in Small Claims Court for refund of the portion of the amount paid that he didn't earn.
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: I paid a lawyer to file my divorce but he is not my attorney on record, and he has not completed forms. It has been weeks and it has been impossible to get a hold of him. My simple divorce has to still be finalized and it has been over a year and a half since I filed. Can I get help from another lawyer?
ANSWER: It sounds as though you hired a lawyer as a consultant to perform "unbundled services" to file your divorce case, and if so, you would be your own lawyer, in Pro Per. If that is the case, you can substitute another attorney to take over your representation from yourself. From your question, I can't determine what forms the first attorney hasn't completed, but the attorney who you substitute in can complete the divorce case. The agreement between the first lawyer and you should define what the first lawyer was supposed to do, and if he was paid to do something and didn't do it, you can sue him in Small Claims Court for refund of the portion of the amount paid that he didn't earn.
Sunday, December 26, 2010
DIVORCING AN INCARCERATED PRISONER
DONALD F. CONVISER, a Divorce and Family Law Attorney, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Certified Family Law Specialist serving clients in Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your family law or divorce issues, brings you another blog, responding to questions posed to him by members of the public in areas of Divorce and Family Law.
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 I get divorced from my husband who is in a California prison? I have been married to my husband, who is in a California prison, for 6 years. I want to divorce him, but will this be like a normal divorce? Will an attorney help?
ANSWER: You can divorce an incarcerated prisoner. After you file your divorce case, you will need to have your husband served by the Sheriff or a registered process server. You should provide your husband's full name, date of birth and CDC number to the prison. Call the prison and ask their personnel for their procedures to get the inmate served with process, ask them what particular process servers have served inmates there, and call and select a process server (or the Sheriff of that county) to do the process service, and follow their instructions. Being a prisoner doesn't entitle your husband to "extra rights"; in fact, he will likely experience additional difficulty because he is imprisoned. It would be a good idea for you to hire a Family Law attorney to handle your divorce 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 I get divorced from my husband who is in a California prison? I have been married to my husband, who is in a California prison, for 6 years. I want to divorce him, but will this be like a normal divorce? Will an attorney help?
ANSWER: You can divorce an incarcerated prisoner. After you file your divorce case, you will need to have your husband served by the Sheriff or a registered process server. You should provide your husband's full name, date of birth and CDC number to the prison. Call the prison and ask their personnel for their procedures to get the inmate served with process, ask them what particular process servers have served inmates there, and call and select a process server (or the Sheriff of that county) to do the process service, and follow their instructions. Being a prisoner doesn't entitle your husband to "extra rights"; in fact, he will likely experience additional difficulty because he is imprisoned. It would be a good idea for you to hire a Family Law attorney to handle your divorce case.
Friday, December 24, 2010
HOW LONG DOES IT TAKE TO FINALIZE A DIVORCE?
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 Family Law 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, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and 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 long will I have to wait in California for my divorce to finalize? How long does it take to get my divorce finalized if I am in California? Will a lawyer speed up the process?
ANSWER: It depends on what happens in your divorce.
The soonest you could get a dissolution of your marriage would be six (6) months from the date your spouse was served with the Summons and accompanying documents.
If the parties enter into a Stipulated Judgment (after exchanging their requisite Declarations of Disclosure), it can be filed long before the six months are up, but in that case, the Court would dissolve the marriage, effective six months after service of Summons.
The time it takes the Court to process Judgments varies from Court to Court.
If there is no agreement, and if your spouse doesn't respond to the Petition within 30 days after service is made, you can file to take your spouse's default, and once granted, you can file for a default judgment, so long as you have served your requisite Declarations of Disclosure and you have complied with the requirements to file for a default judgment.
If your spouse files a Response to your Petition, and you can't settle the case with your spouse, you will need to seek to set the matter for trial, and it depends upon your particular court's calendar congestion as to how far in the future the trial will be set.
It would help for you to hire a competent family law attorney to handle your case, because he/she would know what should be done, how, and when.
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 long will I have to wait in California for my divorce to finalize? How long does it take to get my divorce finalized if I am in California? Will a lawyer speed up the process?
ANSWER: It depends on what happens in your divorce.
The soonest you could get a dissolution of your marriage would be six (6) months from the date your spouse was served with the Summons and accompanying documents.
If the parties enter into a Stipulated Judgment (after exchanging their requisite Declarations of Disclosure), it can be filed long before the six months are up, but in that case, the Court would dissolve the marriage, effective six months after service of Summons.
The time it takes the Court to process Judgments varies from Court to Court.
If there is no agreement, and if your spouse doesn't respond to the Petition within 30 days after service is made, you can file to take your spouse's default, and once granted, you can file for a default judgment, so long as you have served your requisite Declarations of Disclosure and you have complied with the requirements to file for a default judgment.
If your spouse files a Response to your Petition, and you can't settle the case with your spouse, you will need to seek to set the matter for trial, and it depends upon your particular court's calendar congestion as to how far in the future the trial will be set.
It would help for you to hire a competent family law attorney to handle your case, because he/she would know what should be done, how, and when.
Thursday, December 23, 2010
WHAT TO DO IF YOUR SPOUSE DOESN'T SIGN THE MSA THAT SHE AGREED TO
DONALD F. CONVISER, a Certified Family Law Specalist, of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Family Law 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, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and Divorce.
The following is a question posed to me which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: What can I do if my wife and her attorney are not complying with our California Marital Settlement Agreement? My wife and I filed for a divorce and have an MSA. We both have attorneys. I signed the MSA and also paid 90% of equalization payment that was agreed upon to my wife and she accepted it. My wife and her attorney now seem to be dragging their feet on signing it. What would be my next steps to have her comply?
ANSWER: It is impossible to turn back the clock, but you shouldn't have paid your wife before the MSA was fully executed and submitted to the Court with a Judgment to sign.
Since your wife hasn't signed the MSA, you might file a Motion for 1) refund of the amount paid, and/or 2) entry of judgment pursuant to the MSA, alleging 90% performance by you in reliance, addressing the facts. However, it is unlikely that the Court would enforce an MSA that has not been signed by one party.
If you are unable to get the other side to sign an MSA, you may need to have a trial set to resolve the case.
See my December 16, 2009 Blog, entitled: "BEWARE GOING PRO PER [representing yourself] IN A FAMILY LAW CASE. THE DEAL YOU NEGOTIATE MIGHT NOT BE THE DEAL YOU GET" [addressing Marriage of DELARIA and BLICKMAN]. That Blog reveals how an appellate court dealt with a case having facts similar to yours, where a party partially complied with an oral MSA. Unfortunately, the Court in that case held that if the parties didn't have a signed agreement or an oral agreement recited into the record of the Court as required under FAMILY CODE Section 2550 (and Code of Civil Procedure Section 664.6), the Court would not enforce the agreement.
The following is a question posed to me which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: What can I do if my wife and her attorney are not complying with our California Marital Settlement Agreement? My wife and I filed for a divorce and have an MSA. We both have attorneys. I signed the MSA and also paid 90% of equalization payment that was agreed upon to my wife and she accepted it. My wife and her attorney now seem to be dragging their feet on signing it. What would be my next steps to have her comply?
ANSWER: It is impossible to turn back the clock, but you shouldn't have paid your wife before the MSA was fully executed and submitted to the Court with a Judgment to sign.
Since your wife hasn't signed the MSA, you might file a Motion for 1) refund of the amount paid, and/or 2) entry of judgment pursuant to the MSA, alleging 90% performance by you in reliance, addressing the facts. However, it is unlikely that the Court would enforce an MSA that has not been signed by one party.
If you are unable to get the other side to sign an MSA, you may need to have a trial set to resolve the case.
See my December 16, 2009 Blog, entitled: "BEWARE GOING PRO PER [representing yourself] IN A FAMILY LAW CASE. THE DEAL YOU NEGOTIATE MIGHT NOT BE THE DEAL YOU GET" [addressing Marriage of DELARIA and BLICKMAN]. That Blog reveals how an appellate court dealt with a case having facts similar to yours, where a party partially complied with an oral MSA. Unfortunately, the Court in that case held that if the parties didn't have a signed agreement or an oral agreement recited into the record of the Court as required under FAMILY CODE Section 2550 (and Code of Civil Procedure Section 664.6), the Court would not enforce the agreement.
Wednesday, December 22, 2010
MOVING OUT FOR DAUGHTER'S MENTAL WELL-BEING
DONALD F. CONVISER, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, a Certified Family Specialist,an effective and aggressive Family Law 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, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and 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: Can I move out with my daughter before the divorce in California? My husband and I are going to divorce, but we have not filed yet. We are always fighting, and my daughter, who is 7, is very stressed with the way we are living. Can I move out with her, if I do not move far away and let him see her all the time? He is not happy with my choice. Is this legal?
ANSWER: Yes, you can move out of the home argument environment with your daughter. Your reason for your move, as well as your proposals regarding the proximity of your move and allowing your husband frequent and continuing contact with your daughter are reasonable. Actual physical separation of the parties frequently occurs before a divorce case is filed.
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 I move out with my daughter before the divorce in California? My husband and I are going to divorce, but we have not filed yet. We are always fighting, and my daughter, who is 7, is very stressed with the way we are living. Can I move out with her, if I do not move far away and let him see her all the time? He is not happy with my choice. Is this legal?
ANSWER: Yes, you can move out of the home argument environment with your daughter. Your reason for your move, as well as your proposals regarding the proximity of your move and allowing your husband frequent and continuing contact with your daughter are reasonable. Actual physical separation of the parties frequently occurs before a divorce case is filed.
Tuesday, December 21, 2010
"CAN THE COURT MAKE MY HUSBAND SHARE DIVORCE FEES?"
Certified Family Law Specialist DONALD F. CONVISER, owner of Warner Center Law Offices, located in Woodland Hills in the San Fernando Valley, an effective and aggressive Family Law 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, brings you another informative and educational blog, responding to questions posed to him in areas of Family Law and 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: Is there a way to make my husband pay for half of the divorce fees in California? After only months of being married, my husband abandoned me. He was abusive, manipulative and cheating. I left him all of the assets, including the furniture. I just want the divorce and for him to pay half of the fees. Can the court make him pay for them, or do I need a lawyer?
ANSWER: From your question, it appears that you are referring to filing fees. The current filing fee for a divorce case in California is $395, but if you qualify due to no or low income, you can apply for a waiver of the filing fees. Hiring a lawyer for a divorce will cost far more than $395, but you would receive the benefit of the lawyer's education, training, experience, advice and skills, and depending on the facts of your matter, could result in orders awarding you domestic violence restraining orders, spousal support, child custody and child support (if there are children), your share of the community property, your share of retirement and other deferred employee benefit plans, and attorney's fees and costs. You should consult with a knowledgeable Family Law Attorney about the particular facts of your matter.
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: Is there a way to make my husband pay for half of the divorce fees in California? After only months of being married, my husband abandoned me. He was abusive, manipulative and cheating. I left him all of the assets, including the furniture. I just want the divorce and for him to pay half of the fees. Can the court make him pay for them, or do I need a lawyer?
ANSWER: From your question, it appears that you are referring to filing fees. The current filing fee for a divorce case in California is $395, but if you qualify due to no or low income, you can apply for a waiver of the filing fees. Hiring a lawyer for a divorce will cost far more than $395, but you would receive the benefit of the lawyer's education, training, experience, advice and skills, and depending on the facts of your matter, could result in orders awarding you domestic violence restraining orders, spousal support, child custody and child support (if there are children), your share of the community property, your share of retirement and other deferred employee benefit plans, and attorney's fees and costs. You should consult with a knowledgeable Family Law Attorney about the particular facts of your matter.
Monday, December 20, 2010
DON'T MISS A HEARING IN YOUR DIVORCE CASE
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 Family Law 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, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and 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: If I reshedule my custody hearing court date, will that hurt my case? I am a father and I have legal custody of my girls. Yesterday my spouse did not show to court becuase she had to reschedule. She does not work, but I do. If i miss my custody hearing, and I reschedule for the following week, is that bad for my case?
ANSWER: Don't miss a hearing.
Any time a party doesn't show up for a hearing, the hearing could go forward without that party's participation, possibly or likely causing a result adverse to that party.
Whether or not a hearing gets continued based upon a party's unavailability (or supposed unavailability) can depend on what facts are presented to the Judicial Officer, how and when, whether there has been a prior continuance of the hearing, the reason given for seeking the continuance, whether the parties agree to the continuance, the local rules, and the particular Judicial Officer's policies, practices, discretion and prejudices.
If you seek to continue a hearing, you should contact the Judicial Officer's clerk in advance to inquire about those matters, find out whether the Judicial Officer would continue the hearing if both parties agree to the continuance, how to get the continuance, and what dates the Court has available for the continued hearing. If the Court would allow the continuance and both parties are agreeable, the matter would need to be continued to a date available to the Court and both parties.
Courts usually require a continuance to be arranged in advance so that the Court can control its calendar.
Courts generally require either a Stipulation for Continuance, a Stipulation and Order for Continuance, or a Notice of Continuance to be filed and served, if they will allow the continuance, so make your inquiry first. The Court will likely charge a filing fee for such filing.
Due to calendar congestion, most courts won't reschedule a hearing for the following week - some courts would continue the hearing for months, in which case, if it is your OSC, it may be a good idea to re-file your OSC to get an earlier hearing.
If you need a continuance due to exigent circumstances and the other party refuses, file an Ex Parte Application and have an Ex Parte hearing on the matter in advance of the scheduled OSC hearing so that you will find out whether or not the Court will continue the hearing - Courts don't always grant Ex Parte applications.
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 I reshedule my custody hearing court date, will that hurt my case? I am a father and I have legal custody of my girls. Yesterday my spouse did not show to court becuase she had to reschedule. She does not work, but I do. If i miss my custody hearing, and I reschedule for the following week, is that bad for my case?
ANSWER: Don't miss a hearing.
Any time a party doesn't show up for a hearing, the hearing could go forward without that party's participation, possibly or likely causing a result adverse to that party.
Whether or not a hearing gets continued based upon a party's unavailability (or supposed unavailability) can depend on what facts are presented to the Judicial Officer, how and when, whether there has been a prior continuance of the hearing, the reason given for seeking the continuance, whether the parties agree to the continuance, the local rules, and the particular Judicial Officer's policies, practices, discretion and prejudices.
If you seek to continue a hearing, you should contact the Judicial Officer's clerk in advance to inquire about those matters, find out whether the Judicial Officer would continue the hearing if both parties agree to the continuance, how to get the continuance, and what dates the Court has available for the continued hearing. If the Court would allow the continuance and both parties are agreeable, the matter would need to be continued to a date available to the Court and both parties.
Courts usually require a continuance to be arranged in advance so that the Court can control its calendar.
Courts generally require either a Stipulation for Continuance, a Stipulation and Order for Continuance, or a Notice of Continuance to be filed and served, if they will allow the continuance, so make your inquiry first. The Court will likely charge a filing fee for such filing.
Due to calendar congestion, most courts won't reschedule a hearing for the following week - some courts would continue the hearing for months, in which case, if it is your OSC, it may be a good idea to re-file your OSC to get an earlier hearing.
If you need a continuance due to exigent circumstances and the other party refuses, file an Ex Parte Application and have an Ex Parte hearing on the matter in advance of the scheduled OSC hearing so that you will find out whether or not the Court will continue the hearing - Courts don't always grant Ex Parte applications.
Sunday, December 19, 2010
SEPARATION in DIVORCE CASES
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 Family Law 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, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and 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, as well as information which may be educational about the subject matter of the question:
QUESTION: Is it necessary to be legally or officially separated before you get a divorce? We just decided to get a divorce. We have been married and living together for 2 and a half years. We never decided to separate legally, though my husband has been staying with friends lately. Do we need to be legally separated before we can get a divorce?
ANSWER: You don't need to live separately to get a divorce. All you need to qualify for a divorce is to have irreconcilable differences that have led to an irremediable breakdown of the marriage. Just file a divorce case, have the papers served by somebody over 18 other than you, and proceed.
MORE ABOUT SEPARATION:
In some cases, "separation" becomes a significant factor. In "long term" marriages (usually marriages of 10 or more years in duration before separation), the Court generally awards Spousal Support until the death or remarriage of the payee [Family Code Section 4336], whereas in "short term" marriages, the Court generally awards Spousal Support for a period equivalent to 1/2 the duration of the marriage to the date of separation. Because the earnings and accumulations of a spouse while living separate and apart from the other spouse are the separate property of the spouse [Family Code Section 771(a)], the date of separation can be of considerable consequence to the parties' property rights, and may affect property division.
Although Family Code Section 771(a) does not define "date of separation" or specify a rule for determining it, and although there is no definitive authority setting forth a single standard to be employed or a comprehensive list of factors to be considered, a number of courts have attempted to enunciate guidelines.
MAKEIG v. UNITED SECURITY BANK & TRUST COMPANY (1931) 112 Cal.App.138, 143 refers to separation as that "condition where the spouses have come to a parting of the ways and have no present intention of resuming the marital relations and taking up life together under the same roof."
Marriage of BARAGRY (1977) 73 Cal.App.3d 444, 448 inquires "whether the parties' conduct evidences a complete and final break in the marital relationship."
Marriage of VON DER NEULL (1994) 23 Cal.App.4th 730, 736, construed BARAGRY to hold commencement of the separation period "requires not only a parting of the ways with no present intention of resuming martial relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship."
Marriage of NORVIEL (2002) 102 Cal.App.4th 1152, 1159, 1162 reiterates BARAGRY's formula, but adds, "By at least one creditable definition, 'living separate and apart' means 'residing in different places and having no intention of resuming marital relations.'", and concludes, "Spouses must be 'living separate and apart' in order to separate. Many attorneys take issue with NORVIEL, and most trial courts do not require the additional requirement addressed in NORVIEL.
Marriage of MANFER (2006) 144 Cal.App.4th 925, 930, 934 rejected the trial court's requirement of a public revelation of the parties' separation in a case where the parties concealed from their friends and family their intention to divorce, and cites as useful authority the standard articulated in Marriage of HARDIN (1995) 38 Cal.App.4th 448, 451-453: "The date of separation occurs when either of the parties does not intend to resume the marriage and his or her actions bespeak the finality of the marital relationship. There must be problems that have so impaired the marriage relationship that the legitimate objects of matrimony have been destroyed and there is no reasonable possibility of eliminating, correcting or resolving these problems." "All factors bearing on either party's intentions 'to return or not to return to the other spouse' are to be considered. " No particular facts are per se determinative. The ultimate test is the parties' subjective intent and all evidence relating to it is to be objectively considered by the court." Stated differently, "The ultimate question to be decided in determining the date of separation is whether either or both of the parties perceived the rift in their relationship as final. The best evidence of this is their words and actions. The husband's and the wife's subjective intents are to be objectively determined from all of the evidence reflecting the parties' words and actions during the disputed time in order to ascertain when during that period the rift in the parties' relationship was final."
If there is a controversy as to date of separation in an action for dissolution of marriage and it affects whether or not the marriage was of "long duration" or if one party had significant earnings and/or accumulations during a period of time in which separation of the parties is questionable, you would be wise to seek the services of a competent Certified Family Law Specialist.
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, as well as information which may be educational about the subject matter of the question:
QUESTION: Is it necessary to be legally or officially separated before you get a divorce? We just decided to get a divorce. We have been married and living together for 2 and a half years. We never decided to separate legally, though my husband has been staying with friends lately. Do we need to be legally separated before we can get a divorce?
ANSWER: You don't need to live separately to get a divorce. All you need to qualify for a divorce is to have irreconcilable differences that have led to an irremediable breakdown of the marriage. Just file a divorce case, have the papers served by somebody over 18 other than you, and proceed.
MORE ABOUT SEPARATION:
In some cases, "separation" becomes a significant factor. In "long term" marriages (usually marriages of 10 or more years in duration before separation), the Court generally awards Spousal Support until the death or remarriage of the payee [Family Code Section 4336], whereas in "short term" marriages, the Court generally awards Spousal Support for a period equivalent to 1/2 the duration of the marriage to the date of separation. Because the earnings and accumulations of a spouse while living separate and apart from the other spouse are the separate property of the spouse [Family Code Section 771(a)], the date of separation can be of considerable consequence to the parties' property rights, and may affect property division.
Although Family Code Section 771(a) does not define "date of separation" or specify a rule for determining it, and although there is no definitive authority setting forth a single standard to be employed or a comprehensive list of factors to be considered, a number of courts have attempted to enunciate guidelines.
MAKEIG v. UNITED SECURITY BANK & TRUST COMPANY (1931) 112 Cal.App.138, 143 refers to separation as that "condition where the spouses have come to a parting of the ways and have no present intention of resuming the marital relations and taking up life together under the same roof."
Marriage of BARAGRY (1977) 73 Cal.App.3d 444, 448 inquires "whether the parties' conduct evidences a complete and final break in the marital relationship."
Marriage of VON DER NEULL (1994) 23 Cal.App.4th 730, 736, construed BARAGRY to hold commencement of the separation period "requires not only a parting of the ways with no present intention of resuming martial relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship."
Marriage of NORVIEL (2002) 102 Cal.App.4th 1152, 1159, 1162 reiterates BARAGRY's formula, but adds, "By at least one creditable definition, 'living separate and apart' means 'residing in different places and having no intention of resuming marital relations.'", and concludes, "Spouses must be 'living separate and apart' in order to separate. Many attorneys take issue with NORVIEL, and most trial courts do not require the additional requirement addressed in NORVIEL.
Marriage of MANFER (2006) 144 Cal.App.4th 925, 930, 934 rejected the trial court's requirement of a public revelation of the parties' separation in a case where the parties concealed from their friends and family their intention to divorce, and cites as useful authority the standard articulated in Marriage of HARDIN (1995) 38 Cal.App.4th 448, 451-453: "The date of separation occurs when either of the parties does not intend to resume the marriage and his or her actions bespeak the finality of the marital relationship. There must be problems that have so impaired the marriage relationship that the legitimate objects of matrimony have been destroyed and there is no reasonable possibility of eliminating, correcting or resolving these problems." "All factors bearing on either party's intentions 'to return or not to return to the other spouse' are to be considered. " No particular facts are per se determinative. The ultimate test is the parties' subjective intent and all evidence relating to it is to be objectively considered by the court." Stated differently, "The ultimate question to be decided in determining the date of separation is whether either or both of the parties perceived the rift in their relationship as final. The best evidence of this is their words and actions. The husband's and the wife's subjective intents are to be objectively determined from all of the evidence reflecting the parties' words and actions during the disputed time in order to ascertain when during that period the rift in the parties' relationship was final."
If there is a controversy as to date of separation in an action for dissolution of marriage and it affects whether or not the marriage was of "long duration" or if one party had significant earnings and/or accumulations during a period of time in which separation of the parties is questionable, you would be wise to seek the services of a competent Certified Family Law Specialist.
Saturday, December 18, 2010
DISMISSING A DIVORCE CASE FOR IMMIGRATION PURPOSES
DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices inWoodland Hills in the San Fernando Valley, an effective and aggressive Family Law 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, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and 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: Can you withdraw a divorce petition for immigration purposes in California? My husband filed for my green card almost 2 years ago but we were later denied because he was arrested when it was time for our interview and therefore we could not attend. After this we separated, filed for divorce and being out of status I had to return to my national country. However, we have now reconciled and decided to give us another chance, so my question is, is it possible for us to withdraw the divorce petition, (we are yet to file for a judgment, we filed uncontested divorce), so my husband can begin the petition all over again? If possible, could you represent us and how much would this cost? Thank you
ANSWER: If you and your husband are agreeable to dismiss the divorce case, then both of you should sign a Request for Dismissal [Judicial Council Form No. CIV-110), and file it with the Court, and the Court will dismiss the case. If you and/or he had an attorney in the case, the attorney would need to sign the Request for Dismissal in lieu of the client.
As to filing or refiling a Petition with INS, you will need to deal with an Immigration Attorney.
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 you withdraw a divorce petition for immigration purposes in California? My husband filed for my green card almost 2 years ago but we were later denied because he was arrested when it was time for our interview and therefore we could not attend. After this we separated, filed for divorce and being out of status I had to return to my national country. However, we have now reconciled and decided to give us another chance, so my question is, is it possible for us to withdraw the divorce petition, (we are yet to file for a judgment, we filed uncontested divorce), so my husband can begin the petition all over again? If possible, could you represent us and how much would this cost? Thank you
ANSWER: If you and your husband are agreeable to dismiss the divorce case, then both of you should sign a Request for Dismissal [Judicial Council Form No. CIV-110), and file it with the Court, and the Court will dismiss the case. If you and/or he had an attorney in the case, the attorney would need to sign the Request for Dismissal in lieu of the client.
As to filing or refiling a Petition with INS, you will need to deal with an Immigration Attorney.
Friday, December 17, 2010
LOW COST DIVORCE OPTIONS
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 begin the process of filing for divorce at a reasonable cost? I need to file a divorce but do not have a lot of money to put out on it at this time. How do I begin the process in the first place and what is the easiest way
ANSWER: Most courts have self-help clinics to assist self-represented parties prepare and file documents in divorce cases. Also, if you qualify financially, the Court might grant an application by you to waive filing fees. Those are your least expensive options. Depending on the issues in your divorce case, using the self-help clinic may or may not be your best option.
Generally, the best option is to retain, or at least consult with, a knowledgeable family law attorney, so that you can be informed regarding of your rights and responsibilities and what needs to be done in a divorce case.
Some Family Law Attorneys offer "unbundled services", i.e., consultation services where you represent yourself, but get information, guidance, advice, and preparation of documents (in your name) from the attorney. That option is less expensive than retaining the attorney to represent you, but then you will be the person who receives and has to respond to documents in the case, and if you receive documents, it would be a good idea to promptly schedule another consultation with the "unbundled services" consulting attorney.
QUESTION: How do I begin the process of filing for divorce at a reasonable cost? I need to file a divorce but do not have a lot of money to put out on it at this time. How do I begin the process in the first place and what is the easiest way
ANSWER: Most courts have self-help clinics to assist self-represented parties prepare and file documents in divorce cases. Also, if you qualify financially, the Court might grant an application by you to waive filing fees. Those are your least expensive options. Depending on the issues in your divorce case, using the self-help clinic may or may not be your best option.
Generally, the best option is to retain, or at least consult with, a knowledgeable family law attorney, so that you can be informed regarding of your rights and responsibilities and what needs to be done in a divorce case.
Some Family Law Attorneys offer "unbundled services", i.e., consultation services where you represent yourself, but get information, guidance, advice, and preparation of documents (in your name) from the attorney. That option is less expensive than retaining the attorney to represent you, but then you will be the person who receives and has to respond to documents in the case, and if you receive documents, it would be a good idea to promptly schedule another consultation with the "unbundled services" consulting attorney.
Tuesday, November 23, 2010
The changing landscape of Family Law under Elkins legislation
DONALD F. CONVISER, Certified Family Law Specialist, owner of Warner Center Law Offices in the Warner Center area of Woodland Hills, California, in the San Fernando Valley, representing clients in the Courts of Los Angeles and Ventura Counties for over 35 years, writes this blog to educate the reader about some of the changes in the way that Family Courts will handle cases, beginning in January, 2011, as a result of legislation which followed recommendations of the Elkins Task Force.
In 2007, the California Supreme Court rendered an important opinion in ELKINS v. SUPERIOR COURT, 41 Cal.4th 1337, a Contra Costa county case which attracted participation of Amicus Curiae, including the Association of Certified Family Specialists and the Contra Costa Bar Association. The husband in the ELKINS case was in Pro Per (i.e., he represented himself) during the divorce proceedings. A local superior court rule and a trial scheduling order in that case provided that in dissolution (divorce) trials, parties must present their case by means of written declarations. The husband, not being versed in the law, was unable to establish the evidentiary foundation for all but two of his 36 exhibits, and the trial proceeded "quasi by default", to the husband's prejudice.
On appeal, whereas the Supreme Court was sympathetic to the need of trial courts to process their heavy case loads of divorce cases in a timely manner, it held that the trial court deprived Mr. ELKINS of due process protections, and that same judicial resources and safeguards should be committed to a family law trial as are committed to other civil proceedings, and it remanded the case to the trial court to allow live testimony at trial.
Whereas the ELKINS case involved "trial by declaration", for many years, Family Law courts all over California have required Motions and Order to Show Cause [OSC] proceedings, especially those concerning economic issues (such as Child Support, Spousal Support and Attorney's fees) to proceed by way of declaration (as opposed to live testimony) pursuant to REIFLER v. SUPERIOR COURT (1974) 39 Cal.App.3d 479, In re Marriage of STEVENOT (1984) 154 Cal.App.3d 1051, CODE OF CIVIL PROCEDURE Sections 2009 and 2015.5, and CALIFORNIA RULES OF COURT Rule 5.118.
As a result of the ELKINS case and its ramifications, an ELKINS Task Force was appointed to review not only the way that the ELKINS trial was handled, but to review all family law proceedings, and to make recommendations to the legislature regarding changes it felt that would be appropriate to make in the way all Family Law cases should be handled.
As a result of the ELKINS Task Force recommendations, the leglislature enacted AB 939 and AB 1050, which will change the landscape of Family Law proceedings in California. AB 939 states, among other things, that access to justice requires that parties be able to appropriately address the court and present their cases. It adds Section 217 to the Family Code (effective January 1, 2011), providing in relevant part that a hearing on any Order to Show Cause or Notice of Motion, absent a stipulation of the parties or a finding of good cause to refuse live testimony (stating its reasons on the record or in writing for its finding), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing, and the court may ask questions of the parties.
This writer deems the addition of FAMILY CODE Section 217 to be the most significant result of the ELKINS Task Force Recommendations (although others are significant as well). It will enable judicial officers to perceive and evaluate the credibility of witnesses' live testimony, instead of ruling on the quality and skill of a lawyer's writings. How the Courts will afford to make time for live testimony in this era of economic stress and downsizing is a problem that the Courts will have to deal with, but the need for fairness and justice in hearings has now been addressed and legislated. 2011 will bring the dawn of a season of fairer hearings.
Some other significant results of AB 939 included the amendment of various attorney's fee provisions(Family Code Sections 2030, 2032, and 3121) to level the playing field, and amendment of Family Code Section 2330.3 endeavoring to keep a case with the same judicial officer through final judgment and requiring the Judicial Council to adopt a standard of judicial administration prescribing a minimum length of assignment of a judicial office to a Family Law assignment (in an effort to avoid the problems caused of late by the revolving doors in the Family Law courts, which more often than not resulted in a Judicial Officer's ignorance of prior proceedings in a case to which which he/she was assigned, mid-stream).
AB 1050 amended FAMILY CODE Section 3042 to require the family court to consider and give due weight to the child in making an order granting or modifying custody or visitation if the child is of sufficient age and capacity to form an intelligent preference as to custody or visitation, and to require the court to permit a child who is 14 years of age or older to address the court regarding custody or visitation unless the Court determines that doing so is not in the child's best interests.
The ELKINS Legislation will likely result in overcrowded court dockets, delays before hearings, and two hearings on Motions or OSCs (the initial hearing to determine the amount of time needed for an Evidentiary Hearing and to set the Evidentiary Hearing, the 2nd hearing being the Evidentiary Hearing based on live testimony), but it will remedy a long standing problem - Family Law trial courts have, for too long, based their OSC and Motion rulings on attorney-drafted paperwork, rather than live testimony in proceedings where the Judicial Officer would be able to evaluate the credibility of witnesses. That is going to change under the new ELKINS legislation.
In 2007, the California Supreme Court rendered an important opinion in ELKINS v. SUPERIOR COURT, 41 Cal.4th 1337, a Contra Costa county case which attracted participation of Amicus Curiae, including the Association of Certified Family Specialists and the Contra Costa Bar Association. The husband in the ELKINS case was in Pro Per (i.e., he represented himself) during the divorce proceedings. A local superior court rule and a trial scheduling order in that case provided that in dissolution (divorce) trials, parties must present their case by means of written declarations. The husband, not being versed in the law, was unable to establish the evidentiary foundation for all but two of his 36 exhibits, and the trial proceeded "quasi by default", to the husband's prejudice.
On appeal, whereas the Supreme Court was sympathetic to the need of trial courts to process their heavy case loads of divorce cases in a timely manner, it held that the trial court deprived Mr. ELKINS of due process protections, and that same judicial resources and safeguards should be committed to a family law trial as are committed to other civil proceedings, and it remanded the case to the trial court to allow live testimony at trial.
Whereas the ELKINS case involved "trial by declaration", for many years, Family Law courts all over California have required Motions and Order to Show Cause [OSC] proceedings, especially those concerning economic issues (such as Child Support, Spousal Support and Attorney's fees) to proceed by way of declaration (as opposed to live testimony) pursuant to REIFLER v. SUPERIOR COURT (1974) 39 Cal.App.3d 479, In re Marriage of STEVENOT (1984) 154 Cal.App.3d 1051, CODE OF CIVIL PROCEDURE Sections 2009 and 2015.5, and CALIFORNIA RULES OF COURT Rule 5.118.
As a result of the ELKINS case and its ramifications, an ELKINS Task Force was appointed to review not only the way that the ELKINS trial was handled, but to review all family law proceedings, and to make recommendations to the legislature regarding changes it felt that would be appropriate to make in the way all Family Law cases should be handled.
As a result of the ELKINS Task Force recommendations, the leglislature enacted AB 939 and AB 1050, which will change the landscape of Family Law proceedings in California. AB 939 states, among other things, that access to justice requires that parties be able to appropriately address the court and present their cases. It adds Section 217 to the Family Code (effective January 1, 2011), providing in relevant part that a hearing on any Order to Show Cause or Notice of Motion, absent a stipulation of the parties or a finding of good cause to refuse live testimony (stating its reasons on the record or in writing for its finding), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing, and the court may ask questions of the parties.
This writer deems the addition of FAMILY CODE Section 217 to be the most significant result of the ELKINS Task Force Recommendations (although others are significant as well). It will enable judicial officers to perceive and evaluate the credibility of witnesses' live testimony, instead of ruling on the quality and skill of a lawyer's writings. How the Courts will afford to make time for live testimony in this era of economic stress and downsizing is a problem that the Courts will have to deal with, but the need for fairness and justice in hearings has now been addressed and legislated. 2011 will bring the dawn of a season of fairer hearings.
Some other significant results of AB 939 included the amendment of various attorney's fee provisions(Family Code Sections 2030, 2032, and 3121) to level the playing field, and amendment of Family Code Section 2330.3 endeavoring to keep a case with the same judicial officer through final judgment and requiring the Judicial Council to adopt a standard of judicial administration prescribing a minimum length of assignment of a judicial office to a Family Law assignment (in an effort to avoid the problems caused of late by the revolving doors in the Family Law courts, which more often than not resulted in a Judicial Officer's ignorance of prior proceedings in a case to which which he/she was assigned, mid-stream).
AB 1050 amended FAMILY CODE Section 3042 to require the family court to consider and give due weight to the child in making an order granting or modifying custody or visitation if the child is of sufficient age and capacity to form an intelligent preference as to custody or visitation, and to require the court to permit a child who is 14 years of age or older to address the court regarding custody or visitation unless the Court determines that doing so is not in the child's best interests.
The ELKINS Legislation will likely result in overcrowded court dockets, delays before hearings, and two hearings on Motions or OSCs (the initial hearing to determine the amount of time needed for an Evidentiary Hearing and to set the Evidentiary Hearing, the 2nd hearing being the Evidentiary Hearing based on live testimony), but it will remedy a long standing problem - Family Law trial courts have, for too long, based their OSC and Motion rulings on attorney-drafted paperwork, rather than live testimony in proceedings where the Judicial Officer would be able to evaluate the credibility of witnesses. That is going to change under the new ELKINS legislation.
Monday, April 26, 2010
WHY SHOULD I HAVE A PRENUP?
Donald F. Conviser, Certified Family Specialist, owner of Warner Center Law Offices, located in the San Fernando Valley in the Warner Center area of Woodland Hills, serving Prenuptial Agreement, Divorce, Paternity, and other Family Law clients in the Courts of Los Angeles County and Ventura County for over 38 years, offering a free confidential consultation to address your family law questions, presents this blog entitled: Why should I have a Prenup, in an effort to clear up misconceptions that many people have about property rights in a marriage.
A Prenup is one and the same as an Antenuptial Agreement, a Premarital Agreement, and a Prenuptial Agreement.
In this era when more marriages fail than survive, a Prenup is a wise planning tool for anyone with assets or earnings of any significance to have in place before any wedding date has been chosen, or if already chosen, at least before a marriage license has been obtained, or wedding plans have been committed to.
Far too frequently, people enter into a marriage under mistaken beliefs about their property interests, a few of which are:
BELIEF: Whatever money I earn during our marriage is my own money. WRONG - Your earnings are community property. However, a properly and timely drafted and entered Prenuptial Agreement can make your earnings your own separate property.
BELIEF: If I own property before the marriage, my spouse can't ever get an interest in it. WRONG - even if you don't transmute the property into community property or the separate propery of your spouse, certain things can create a community interest in your separate property, including but not limited to using community income (yours or your spouse's) to pay down the mortgage or improve the property, using your or your spouse's labors or talents to improve the property, refinancing the property, etc. Your spouse could be entitled to a PRO TANTO community interest, under the MOORE/MARSDEN rule. You are far safer by having a Premarital Agreement drafted and entered before the marriage which preserves your property as your separate property and removes risks of community interests and reimbursements.
BELIEF: If I get a quitclaim deed to my separate property from my spouse, it will eliminate the risk of a community property claim to the property. WRONG. This is a common misconception. As addressed above, the community could still obtain an interest in the property through the use of your or your spouse's earnings to pay down the mortgage or improve the property, or using your or your spouse's labors or talents to improve the property, refinancing the property, etc., making you vulnerable to a MOORE/MARSDEN apportionment of community and separate interests in the property. A well-drafted Premarital Agreement can protect you against such an interest being acquired by your spouse.
BELIEF: If I refinance my separate property during the marriage, the proceeds of the loan will be my separate property. WRONG. Under Marriage of GRINIUS (1985) 166 Cal.App.3d 1179, the court would look to the intent of the lender to determine whether the loan proceeds are community and separate, and in this era of declining or uncertain property values, lenders are no longer providing "stated income" loans, but are requiring and scrutinizing detailed loan applications to ensure that the borrower can afford to make the loan payments - and remember, without a Prenup, earnings during the marriage are community property, so the risk is that the loan proceeds will be held to be community property. Far better for you to have a Prenuptial Agreement crafted in advance of the marriage for you by an experienced Certified Family Law Specialist, to avoid such risk.
BELIEF: If I buy an asset with my separate property duirng the marriage, the asset is my separate property. WRONG - kind of. Property acquired during a marriage is presumed to be community property, and the burden is on the spouse asserting its separate character to overcome the presumption. You will be far safer with a well-drafted Prenup.
If you wonder whether or not you should have a Premarital Agreement, you probably have enough to lose to take the wise step, early, and get the ounce of protection to avoid the pound of cure.
A Prenup is one and the same as an Antenuptial Agreement, a Premarital Agreement, and a Prenuptial Agreement.
In this era when more marriages fail than survive, a Prenup is a wise planning tool for anyone with assets or earnings of any significance to have in place before any wedding date has been chosen, or if already chosen, at least before a marriage license has been obtained, or wedding plans have been committed to.
Far too frequently, people enter into a marriage under mistaken beliefs about their property interests, a few of which are:
BELIEF: Whatever money I earn during our marriage is my own money. WRONG - Your earnings are community property. However, a properly and timely drafted and entered Prenuptial Agreement can make your earnings your own separate property.
BELIEF: If I own property before the marriage, my spouse can't ever get an interest in it. WRONG - even if you don't transmute the property into community property or the separate propery of your spouse, certain things can create a community interest in your separate property, including but not limited to using community income (yours or your spouse's) to pay down the mortgage or improve the property, using your or your spouse's labors or talents to improve the property, refinancing the property, etc. Your spouse could be entitled to a PRO TANTO community interest, under the MOORE/MARSDEN rule. You are far safer by having a Premarital Agreement drafted and entered before the marriage which preserves your property as your separate property and removes risks of community interests and reimbursements.
BELIEF: If I get a quitclaim deed to my separate property from my spouse, it will eliminate the risk of a community property claim to the property. WRONG. This is a common misconception. As addressed above, the community could still obtain an interest in the property through the use of your or your spouse's earnings to pay down the mortgage or improve the property, or using your or your spouse's labors or talents to improve the property, refinancing the property, etc., making you vulnerable to a MOORE/MARSDEN apportionment of community and separate interests in the property. A well-drafted Premarital Agreement can protect you against such an interest being acquired by your spouse.
BELIEF: If I refinance my separate property during the marriage, the proceeds of the loan will be my separate property. WRONG. Under Marriage of GRINIUS (1985) 166 Cal.App.3d 1179, the court would look to the intent of the lender to determine whether the loan proceeds are community and separate, and in this era of declining or uncertain property values, lenders are no longer providing "stated income" loans, but are requiring and scrutinizing detailed loan applications to ensure that the borrower can afford to make the loan payments - and remember, without a Prenup, earnings during the marriage are community property, so the risk is that the loan proceeds will be held to be community property. Far better for you to have a Prenuptial Agreement crafted in advance of the marriage for you by an experienced Certified Family Law Specialist, to avoid such risk.
BELIEF: If I buy an asset with my separate property duirng the marriage, the asset is my separate property. WRONG - kind of. Property acquired during a marriage is presumed to be community property, and the burden is on the spouse asserting its separate character to overcome the presumption. You will be far safer with a well-drafted Prenup.
If you wonder whether or not you should have a Premarital Agreement, you probably have enough to lose to take the wise step, early, and get the ounce of protection to avoid the pound of cure.
Wednesday, April 14, 2010
CAN YOU COMPROMISE CHILD SUPPORT ARREARAGES?
Donald F. Conviser, Certified Family Law Specialist, owner of Warner Center Law Offices in Woodland Hills, California, serving divorce and family law clients in the Courts of Los Angeles County and Ventura County for over 35 years, offering a free confidential consultation (call 818/880-8990) regarding your divorce or family law issue, provides insight regarding whether or not a payor can effect a private compromise of child support arrearages as opposed to a compromise through CSSD or any other local child support agency.
California Family Code Section 3651(c)(1) provides in relevant part that a support order may not be modified as to an amount accrued before the filing of a Motion or Order to Show Cause for modification. So going to Court to seek a retroactive modification would not work to compromise child support arrearages.
However, where justification exists, courts have refused enforcement of child support obligations. Marriage of JACKSON (1975) 51 Cal.App.3d 363 and in Marriage of TRAINOTTI (1989) 213 Cal.App.3d 1072, were cases in which the supporting party (the father) received actual physical minor child, albeit without an order changing custody. In those cases, the appellate courts acknowledged that an order for child support may not be retroactively modified, but held that the trial court had the discretion to deny enforcement of child support orders on equitable grounds - because the father was actually supporting the child, and in so doing, he was satisfying or discharging his support obligation.
The appellate court in Marriage of GRAHAM (1959) 174 Cal.App.2nd 678 held that a party can waive her right to a portion of spousal support and child support. Marriage of PABOOJIAN (1987) 189 Cal.App.3d 1434 was a case where the ex husband told his ex-wife that he had serious financial trouble, and the ex-wife told him to take care of the children and forget the alimony. The appellate court in PABOOJIAN affirmed the trial court's ruling that the ex-wife waived spousal support.
In Marriage of HAMER (2000) 81 Cal.App.4th 712, the appellate court found no evidence of an express oral agreement to accept less than the amounts required by the judgment and to forego collection of the difference, but commented in dicta about changes in the law, that child support was enforceable until paid in full, that child support was not retroactively modifiable, and that lack of diligence can no longer be asserted as a defense.
In Marriage of SABINE & TOSHIO M. (2007) 153 Cal.App.4th 1203, the appellate court disapproved Toshio's compromise with Sabine of past child support arrearages and future child support, and held that under Family Code Section 3651(c)(1), the trial court had no authority to make an order requiring Sabine to accept less than the full amount due. But the facts of that case reflect that Toshio imposed his will on his ex wife through nonpayment of her much-needed support payments, and essentially gave her no choice but to accept his compromise. Nevertheless, that case provides some authority for a court to disapprove a compromise settlement of child support arrearage.
Nevertheless, in Marriage of ROBINSON (1998) 65 Cal.App.4th 93, the appellate court held that the resolution of a bona fide dispute regarding support is acceptable, and in Marriage of THOMPSON (1996) 41 Cal.App.4th 1049, the appellate court indicated that there must be a dispute for there to be a valid accord and satisfaction.
If there were unfortunate economic circumstances which made it impossible for the payor to pay child support, the best thing to do would have been to file an Order to Show Cause to modify child support. But the circumstances may have been so dire that the payor may have not been able to afford an attorney, at the time. So what can you do now? If you have the understanding and sympathy of the payee, you could enter into a written agreement to compromise the arrearages, albeit without any guarantee that the Court would honor the agreement. In HAMER, the court found that there was no evidence of any alleged agreement, so a written agreement would be better than nothing, and would avoid the risk that the trier of fact might belive one party over the other regarding an alleged oral agreement. But it might be advisable, in addition, for the parties to enter into a written STIPULATION AND ORDER, to file with the Court. The Court might or might not sign the ORDER; if it doesn't, you would still have the written agreement to submit to the Court if needed later, again without any guarantee. If the Court signs the ORDER, it should create a greater level of comfort for the payor.
California Family Code Section 3651(c)(1) provides in relevant part that a support order may not be modified as to an amount accrued before the filing of a Motion or Order to Show Cause for modification. So going to Court to seek a retroactive modification would not work to compromise child support arrearages.
However, where justification exists, courts have refused enforcement of child support obligations. Marriage of JACKSON (1975) 51 Cal.App.3d 363 and in Marriage of TRAINOTTI (1989) 213 Cal.App.3d 1072, were cases in which the supporting party (the father) received actual physical minor child, albeit without an order changing custody. In those cases, the appellate courts acknowledged that an order for child support may not be retroactively modified, but held that the trial court had the discretion to deny enforcement of child support orders on equitable grounds - because the father was actually supporting the child, and in so doing, he was satisfying or discharging his support obligation.
The appellate court in Marriage of GRAHAM (1959) 174 Cal.App.2nd 678 held that a party can waive her right to a portion of spousal support and child support. Marriage of PABOOJIAN (1987) 189 Cal.App.3d 1434 was a case where the ex husband told his ex-wife that he had serious financial trouble, and the ex-wife told him to take care of the children and forget the alimony. The appellate court in PABOOJIAN affirmed the trial court's ruling that the ex-wife waived spousal support.
In Marriage of HAMER (2000) 81 Cal.App.4th 712, the appellate court found no evidence of an express oral agreement to accept less than the amounts required by the judgment and to forego collection of the difference, but commented in dicta about changes in the law, that child support was enforceable until paid in full, that child support was not retroactively modifiable, and that lack of diligence can no longer be asserted as a defense.
In Marriage of SABINE & TOSHIO M. (2007) 153 Cal.App.4th 1203, the appellate court disapproved Toshio's compromise with Sabine of past child support arrearages and future child support, and held that under Family Code Section 3651(c)(1), the trial court had no authority to make an order requiring Sabine to accept less than the full amount due. But the facts of that case reflect that Toshio imposed his will on his ex wife through nonpayment of her much-needed support payments, and essentially gave her no choice but to accept his compromise. Nevertheless, that case provides some authority for a court to disapprove a compromise settlement of child support arrearage.
Nevertheless, in Marriage of ROBINSON (1998) 65 Cal.App.4th 93, the appellate court held that the resolution of a bona fide dispute regarding support is acceptable, and in Marriage of THOMPSON (1996) 41 Cal.App.4th 1049, the appellate court indicated that there must be a dispute for there to be a valid accord and satisfaction.
If there were unfortunate economic circumstances which made it impossible for the payor to pay child support, the best thing to do would have been to file an Order to Show Cause to modify child support. But the circumstances may have been so dire that the payor may have not been able to afford an attorney, at the time. So what can you do now? If you have the understanding and sympathy of the payee, you could enter into a written agreement to compromise the arrearages, albeit without any guarantee that the Court would honor the agreement. In HAMER, the court found that there was no evidence of any alleged agreement, so a written agreement would be better than nothing, and would avoid the risk that the trier of fact might belive one party over the other regarding an alleged oral agreement. But it might be advisable, in addition, for the parties to enter into a written STIPULATION AND ORDER, to file with the Court. The Court might or might not sign the ORDER; if it doesn't, you would still have the written agreement to submit to the Court if needed later, again without any guarantee. If the Court signs the ORDER, it should create a greater level of comfort for the payor.
Monday, April 12, 2010
WHAT IS JOINT LEGAL CUSTODY?
Donald F. Conviser, Certified Family Law Specialist, of Warner Center Law Offices in Woodland Hills, serving divorce and family law clients in the courts of Los Angeles and Ventura Counties for 38 years, offering a free confidential consultation (call 818/880-8990), writes about an oft misunderstood concept: Joint Legal Custody.
Clients frequently ask me: What is joint legal custody? If I have joint legal custody, am I required to consult with the other parent of my child regarding activities I want to enroll my child in? Do I need the other parent's consent for me to enroll my child in those activities?
Family Code Section 3003 states: "Joint legal custody" means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.
A look at Family Code Section 3083 and the Child Custody Orders in your case will assist in obtaining the answers.
Family Code Section 3083 states: In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court.
Only in those circumstances where the court order requires mutual consent for a decision or activity, is mutual consent required.
Where mutual consent is not required, you needn't consult with the other parent, and the other parent's consent to the activity or decision is not required.
However, where the order is unclear as to whether or not mutual consent is required, you are safer to discuss the activity with the other parent and seek consent, because the consequences of violation of a court order can include contempt of court or you may possibly risk an unfavorable modification of custody.
Your attorney could file an Order to Show Cause for clarification of the order, to get the order spelled out sufficiently so that you will know what you can and can't do without the other parent's consent.
Depending on the quality of your relationship with the other parent, and your ability to co-parent your child cooperatively with the other parent, it may be a good idea to meet and confer with the other parent from time to time to discuss issues that would best be resolved between the parties, instead of through adversary litigation and the Court.
But if your relationship with the other parent is not a relationship of trust or cooperation, there is a risk that what you propose could get pipelined to the other parent's attorney, so you need to evaluate the quality of your relationship with the other parent before you start sharing ideas which the other parent may be unwilling to accept.
Joint legal custody assumes that there is a spirit of cooperation between the parents. Where the Court opines that there is a lack of cooperation, the Court may well make a sole legal custody order, or the Court may give one party the ultimate decision making power. If you are seeking joint legal custody of your child, it is best to create a relationship of cooperation with the other parent.
Clients frequently ask me: What is joint legal custody? If I have joint legal custody, am I required to consult with the other parent of my child regarding activities I want to enroll my child in? Do I need the other parent's consent for me to enroll my child in those activities?
Family Code Section 3003 states: "Joint legal custody" means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.
A look at Family Code Section 3083 and the Child Custody Orders in your case will assist in obtaining the answers.
Family Code Section 3083 states: In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court.
Only in those circumstances where the court order requires mutual consent for a decision or activity, is mutual consent required.
Where mutual consent is not required, you needn't consult with the other parent, and the other parent's consent to the activity or decision is not required.
However, where the order is unclear as to whether or not mutual consent is required, you are safer to discuss the activity with the other parent and seek consent, because the consequences of violation of a court order can include contempt of court or you may possibly risk an unfavorable modification of custody.
Your attorney could file an Order to Show Cause for clarification of the order, to get the order spelled out sufficiently so that you will know what you can and can't do without the other parent's consent.
Depending on the quality of your relationship with the other parent, and your ability to co-parent your child cooperatively with the other parent, it may be a good idea to meet and confer with the other parent from time to time to discuss issues that would best be resolved between the parties, instead of through adversary litigation and the Court.
But if your relationship with the other parent is not a relationship of trust or cooperation, there is a risk that what you propose could get pipelined to the other parent's attorney, so you need to evaluate the quality of your relationship with the other parent before you start sharing ideas which the other parent may be unwilling to accept.
Joint legal custody assumes that there is a spirit of cooperation between the parents. Where the Court opines that there is a lack of cooperation, the Court may well make a sole legal custody order, or the Court may give one party the ultimate decision making power. If you are seeking joint legal custody of your child, it is best to create a relationship of cooperation with the other parent.
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