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: When can desertion be claimed in a marriage? If a spouse leaves home and takes all of his/her clothes without notifying the other spouse that he is leaving or their whereabouts, how long must that spouse be gone before it is considered desertion? Is there any advantage to claiming desertion in a marriage?
ANSWER: You needn't claim desertion in order to dissolve your marriage in California. All that is required is a generic claim of irreconcilable differences which led to an irremediable breakdown of the marriage, and that counseling or assistance from the court would not serve to reconcile the marriage. The only possible advantage that I can envision to claiming desertion is if he has abandoned his children and has not made any effort to visit, contact or support them, in which case, those facts can be presented to the Court on the issues of child custody and visitation.
This educational blog is brought to you by DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive 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, responding to questions posed to him about Divorce and Family Law.
Monday, January 31, 2011
Saturday, January 29, 2011
CAN MY SPOUSE'S ATTORNEY FORCE ME TO WORK A CERTAIN NUMBER OF HOURS?
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
Question: Can my husband’s attorney force me to work a certain number of hours in our divorce and child custody case? My husband's attorney wants me to commit to working a certain number of hours and if I don't he threatens to ask the judge for a skills assessment for me. Also they have told me that my support and alimony #s will go down once orders are permanent-now they are temporary. Are these all control and scare tactics? As it is he pays for my having them 55%, when I actually have them 67%. What do you recommend? I am not opposed to working at all, I just don't have the time available right now. We live in California.
ANSWER: It appears from your question that you are not represented by counsel in the divorce.
It would be a good idea for you to retain an experienced Family Law Attorney to represent you in the divorce, for many reasons, one of which would be to insulate you from accessibility to your husband's attorney, another of which would be to provide you advice and counsel based on his education, training, experience and the facts of your case, another of which would be to assist you in making strategic decisions concerning the divorce case.
In the case of Marriage of LaBass and Munsie, the divorce court imputed income to the wife, a college professor who chose to work part-time so that she could spend more time with the minor children - where the husband's attorney submitted classified ads demonstrating that full time employment that was available to the wife. The Court in that case stated that the children are entitled to be supported by both parents.
I cannot tell from your question what you do for work, or how many hours you work per week, or what your hourly rate is, or whether additional hours of work are available to you, or what other activities make you unavailable to do additional work. These are matters that you would best address to your own Family Law Attorney, to obtain his advice and recommendations.
The "skills assessment" that you refer to is likely a Vocational Evaluation, which can be sought in any divorce case in which one party is unemployed, or arguably underemployed. Family Code Section 4331 addresses an Examination by a Vocational Training Consultant.
In a Vocational Evaluation, the expert evaluator tests, interviews, checks the employment history and transferable skills of the person being evaluated, and seeks and obtains any other information relevant to that person's employability, and then performs a labor market survey to determine what jobs are currently available, at what rate of pay, which that person is qualified for, as well as what additional education or training may be needed and how long that would take, to enable that person to work at a better job and higher rate of pay.
Typically, the Vocational Evaluator creates and submits a report to the attorney who retained the evaluator, or perhaps to both attorneys if so stipulated, and the evaluator may testify at a hearing or at trial. Income can be imputed to a party,based on his or her ability to work (i.e., education, training, experience, health etc.) and opportunity to work (i.e., jobs available for which that person is qualified). If income is imputed to a party, the imputed income can be used instead of actual income, for purposes of calculating and/or setting spousal and/or child support.
Tthe Uniform Support Guidelines apply both for temporary child support and for permanent Child Support (trial or case settlement child support). However, they only apply to temporary Spousal Support, which is intended to continue the "status quo" pending trial or settlement. Permanent Spousal Support is based on factors set forth in Family Code Section 4320, and usually is a bit less than temporary Spousal Support, but is fact-driven, so it could arguably be on the order of, or possibly higher than temporary Spousal Support in certain cases.
In connection with your receiving Child Support based on a timeshare which is not accurate or representative, it would appear that your spouse's attorney took advantage of your not being represented by counsel, so you would best retain experienced Family Law Counsel, preferably a Certified Family Law Specialist, to represent your interests in the case. A Family Law Attorney may be able to obtain a court order requiring your spouse to pay attorney's fees on your behalf.
This educational blog is brought to you by DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive 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, responding to questions posed to him about Divorce and Family Law/
Question: Can my husband’s attorney force me to work a certain number of hours in our divorce and child custody case? My husband's attorney wants me to commit to working a certain number of hours and if I don't he threatens to ask the judge for a skills assessment for me. Also they have told me that my support and alimony #s will go down once orders are permanent-now they are temporary. Are these all control and scare tactics? As it is he pays for my having them 55%, when I actually have them 67%. What do you recommend? I am not opposed to working at all, I just don't have the time available right now. We live in California.
ANSWER: It appears from your question that you are not represented by counsel in the divorce.
It would be a good idea for you to retain an experienced Family Law Attorney to represent you in the divorce, for many reasons, one of which would be to insulate you from accessibility to your husband's attorney, another of which would be to provide you advice and counsel based on his education, training, experience and the facts of your case, another of which would be to assist you in making strategic decisions concerning the divorce case.
In the case of Marriage of LaBass and Munsie, the divorce court imputed income to the wife, a college professor who chose to work part-time so that she could spend more time with the minor children - where the husband's attorney submitted classified ads demonstrating that full time employment that was available to the wife. The Court in that case stated that the children are entitled to be supported by both parents.
I cannot tell from your question what you do for work, or how many hours you work per week, or what your hourly rate is, or whether additional hours of work are available to you, or what other activities make you unavailable to do additional work. These are matters that you would best address to your own Family Law Attorney, to obtain his advice and recommendations.
The "skills assessment" that you refer to is likely a Vocational Evaluation, which can be sought in any divorce case in which one party is unemployed, or arguably underemployed. Family Code Section 4331 addresses an Examination by a Vocational Training Consultant.
In a Vocational Evaluation, the expert evaluator tests, interviews, checks the employment history and transferable skills of the person being evaluated, and seeks and obtains any other information relevant to that person's employability, and then performs a labor market survey to determine what jobs are currently available, at what rate of pay, which that person is qualified for, as well as what additional education or training may be needed and how long that would take, to enable that person to work at a better job and higher rate of pay.
Typically, the Vocational Evaluator creates and submits a report to the attorney who retained the evaluator, or perhaps to both attorneys if so stipulated, and the evaluator may testify at a hearing or at trial. Income can be imputed to a party,based on his or her ability to work (i.e., education, training, experience, health etc.) and opportunity to work (i.e., jobs available for which that person is qualified). If income is imputed to a party, the imputed income can be used instead of actual income, for purposes of calculating and/or setting spousal and/or child support.
Tthe Uniform Support Guidelines apply both for temporary child support and for permanent Child Support (trial or case settlement child support). However, they only apply to temporary Spousal Support, which is intended to continue the "status quo" pending trial or settlement. Permanent Spousal Support is based on factors set forth in Family Code Section 4320, and usually is a bit less than temporary Spousal Support, but is fact-driven, so it could arguably be on the order of, or possibly higher than temporary Spousal Support in certain cases.
In connection with your receiving Child Support based on a timeshare which is not accurate or representative, it would appear that your spouse's attorney took advantage of your not being represented by counsel, so you would best retain experienced Family Law Counsel, preferably a Certified Family Law Specialist, to represent your interests in the case. A Family Law Attorney may be able to obtain a court order requiring your spouse to pay attorney's fees on your behalf.
This educational blog is brought to you by DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive 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, responding to questions posed to him about Divorce and Family Law/
Friday, January 28, 2011
IS THE OPINION OF THE CHILD EVER TAKEN INTO CONSIDERATION IN A DIVORCE?
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
Question: Is the opinion of the child ever taken into consideration in a divorce? If so, at what age will the court actually take that opinion into consideration? Thank you in advance.
ANSWER: Yes, the opinion of your child may be taken into consideration by the court, under certain circumstances, but there is no particular age at which the court would consider the child's opinion. Instead, the court's perception of the child's maturity, reasons and intelligent preference would be factors which would influence the court's consideration.
Family Code Section 3042 provides: (a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody; (b) In addition to the requirements of Evidence Code Section 765(b), the court shall control the examination of the child witness so as to protect the best interests of the child. The court may preclude the calling of the child as a witness where the best interests of the child so dictate and may provide alternative means of obtaining information regarding the child's preferences.
If Minor's Counsel is appointed for the child pursuant to Family Code Section 3150, your child's wishes may be expressed through Minor's Counsel at your child's request. Family Code Section 3151(a) provides that if the child so desires, Minor's Counsel shall present the child's wishes to the Court.
This educational blog is brought to you by DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive 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, responding to questions posed to him about Divorce and Family Law.
Question: Is the opinion of the child ever taken into consideration in a divorce? If so, at what age will the court actually take that opinion into consideration? Thank you in advance.
ANSWER: Yes, the opinion of your child may be taken into consideration by the court, under certain circumstances, but there is no particular age at which the court would consider the child's opinion. Instead, the court's perception of the child's maturity, reasons and intelligent preference would be factors which would influence the court's consideration.
Family Code Section 3042 provides: (a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody; (b) In addition to the requirements of Evidence Code Section 765(b), the court shall control the examination of the child witness so as to protect the best interests of the child. The court may preclude the calling of the child as a witness where the best interests of the child so dictate and may provide alternative means of obtaining information regarding the child's preferences.
If Minor's Counsel is appointed for the child pursuant to Family Code Section 3150, your child's wishes may be expressed through Minor's Counsel at your child's request. Family Code Section 3151(a) provides that if the child so desires, Minor's Counsel shall present the child's wishes to the Court.
This educational blog is brought to you by DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive 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, responding to questions posed to him about Divorce and Family Law.
Thursday, January 27, 2011
WILL THE CHILDREN'S BANK ACCOUNTS BE CONSIDERED COMMUNITY PROPERTY IN A DIVORCE?
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: Will the bank accounts of the children be considered community property in a California divorce? During a divorce and separating finances, will the joint bank accounts with just me and the children be split as community property? Or will they remain untouched? My main concern is that the savings that I, alone, created for the kids have to be split with the respondent party? Thank you.
ANSWER: If the childrens' bank accounts were set up prior to separation as Uniform Gifts to Minors' Act accounts on behalf of the children, with you as Trustee, those accounts would qualify as the childrens' accounts as opposed to community property, especially if your spouse agreed to those accounts being set up and funded.
However, if you set up those accounts as joint accounts in which you and the children were joint account-holders, that could be problematic for a number of reasons including, but not limited to: 1) you would have the unfettered ability to withdraw funds from the accounts for your own use, so having the childrens' names as joint account-holders could be argued by your spouse to be illusory; and 2) if you funded those accounts without your spouse's knowledge or consent, your spouse could claim that you did so in breach of your fiduciary duty to the marital community, especially if their funding was done in anticipation of separation.
You should discuss the accounts with your Family Law Attorney, and you should disclose those accounts in your Declarations of Disclosure - in which you could enter a "Ch" instead of "P" or "R" as to whose accounts they are (Ch for children, P for Petitioner, R for Respondent), instead of leaving the designation blank (which would imply that they are community accounts).
If at all possible, you should try to negotiate a resolution with your spouse to convert those accounts to Uniform Gifts to Minors Act accounts of the children (if they were not already set up as that type of account), with no credit or reimbursement to your wife or the community for the monies used to fund those accounts.
This blog is brought to you by DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive 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, responding to questions posed to him about Divorce and Family Law.
QUESTION: Will the bank accounts of the children be considered community property in a California divorce? During a divorce and separating finances, will the joint bank accounts with just me and the children be split as community property? Or will they remain untouched? My main concern is that the savings that I, alone, created for the kids have to be split with the respondent party? Thank you.
ANSWER: If the childrens' bank accounts were set up prior to separation as Uniform Gifts to Minors' Act accounts on behalf of the children, with you as Trustee, those accounts would qualify as the childrens' accounts as opposed to community property, especially if your spouse agreed to those accounts being set up and funded.
However, if you set up those accounts as joint accounts in which you and the children were joint account-holders, that could be problematic for a number of reasons including, but not limited to: 1) you would have the unfettered ability to withdraw funds from the accounts for your own use, so having the childrens' names as joint account-holders could be argued by your spouse to be illusory; and 2) if you funded those accounts without your spouse's knowledge or consent, your spouse could claim that you did so in breach of your fiduciary duty to the marital community, especially if their funding was done in anticipation of separation.
You should discuss the accounts with your Family Law Attorney, and you should disclose those accounts in your Declarations of Disclosure - in which you could enter a "Ch" instead of "P" or "R" as to whose accounts they are (Ch for children, P for Petitioner, R for Respondent), instead of leaving the designation blank (which would imply that they are community accounts).
If at all possible, you should try to negotiate a resolution with your spouse to convert those accounts to Uniform Gifts to Minors Act accounts of the children (if they were not already set up as that type of account), with no credit or reimbursement to your wife or the community for the monies used to fund those accounts.
This blog is brought to you by DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive 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, responding to questions posed to him about Divorce and Family Law.
Wednesday, January 26, 2011
CAN MY SISTER FILE FOR DIVORCE IN THE U.S. IF HER HUSBAND IS IN THE PHILIPPINES?
I frequently receive questions from people regarding their divorce and family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: Can my sister file for a divorce in the US even though she was married overseas? We are born in the Philippines, and my sister lives in the States right now. She wants to file a divorce here against her estranged husband who abandoned them when their kids were small. They don't have any communications with him, and many years ago she learned he was living with another woman. Is it possible to have an American lawyer process it and how much it cost?
ANSWER: It is possible, but not certain, that your sister can divorce her estranged husband here. Where the parties got married is not relevant to where they can get divorced. If your sister is living in the same state as her estranged husband, she can certainly divorce him in that state. If her husband is living elsewhere, if he cooperates with the divorce proceedings and accepts service of process through Notice and Acknowledgment of Receipt and doesn't contest the divorce, she can divorce him here. However, if he has never been to the state where she files her divorce case, he could oppose jurisdiction in that state based on lack of constitutionally required minimum contacts with that state, but if he doesn't oppose jurisdiction, he waives that opposition. If he is currently in the Philippines, if he does not cooperate by signing and returning a Notice and Acknowledgment of Receipt, your sister would need to have him served through a time-consuming, cumbersome and expensive process known as Letters Rogatory, since the Philippines is not a member of the Hague Service Convention.
This informative and educational blog is brought to you by DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive 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, responding to questions posed to him about Divorce and Family Law.
QUESTION: Can my sister file for a divorce in the US even though she was married overseas? We are born in the Philippines, and my sister lives in the States right now. She wants to file a divorce here against her estranged husband who abandoned them when their kids were small. They don't have any communications with him, and many years ago she learned he was living with another woman. Is it possible to have an American lawyer process it and how much it cost?
ANSWER: It is possible, but not certain, that your sister can divorce her estranged husband here. Where the parties got married is not relevant to where they can get divorced. If your sister is living in the same state as her estranged husband, she can certainly divorce him in that state. If her husband is living elsewhere, if he cooperates with the divorce proceedings and accepts service of process through Notice and Acknowledgment of Receipt and doesn't contest the divorce, she can divorce him here. However, if he has never been to the state where she files her divorce case, he could oppose jurisdiction in that state based on lack of constitutionally required minimum contacts with that state, but if he doesn't oppose jurisdiction, he waives that opposition. If he is currently in the Philippines, if he does not cooperate by signing and returning a Notice and Acknowledgment of Receipt, your sister would need to have him served through a time-consuming, cumbersome and expensive process known as Letters Rogatory, since the Philippines is not a member of the Hague Service Convention.
This informative and educational blog is brought to you by DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive 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, responding to questions posed to him about Divorce and Family Law.
Tuesday, January 25, 2011
CAN I RESPOND TO THE DIVORCE PETITION AFTER THE 30 DAYS HAVE PASSED?
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 an informative and educational blog, responding to questions posed to him about 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: Is there a way to respond to a divorce in California after the 30 days have passed? We went to a mediator and she said I do not have to respond as long as we are in mediation. Now the 30 days to respond has passed and I am feeling nervous. Can I respond late?
ANSWER: As long as your spouse hasn't already filed a Request to enter your Default, you can file your Response to the Petition. Waste no time in doing so. Your Response must be served by someone over 18 years old, other than you, and a completed and signed Proof of Service will need to be filed at the same time that your Response is filed.
If there are minor children, you will need to prepare and file (and have served) a Response and a Declaration under UCCJEA.
If you can afford to retain a Family Law Attorney, you should do so without delay, because you will need not only to file a Response to the Petition, but you should consult with and receive advice regarding your rights and obligations in advance of the Mediation, since the mediator isn't your attorney and can't give you legal advice.
Also, don't sign a mediation settlement agreement without first consulting with a Family Law Attorney about it and showing it to the Family Law Attorney.
Were your default taken, you would need to act promptly to file a Motion to set aside your default, and you would need the services of a Family Law Attorney to do so.
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 respond to a divorce in California after the 30 days have passed? We went to a mediator and she said I do not have to respond as long as we are in mediation. Now the 30 days to respond has passed and I am feeling nervous. Can I respond late?
ANSWER: As long as your spouse hasn't already filed a Request to enter your Default, you can file your Response to the Petition. Waste no time in doing so. Your Response must be served by someone over 18 years old, other than you, and a completed and signed Proof of Service will need to be filed at the same time that your Response is filed.
If there are minor children, you will need to prepare and file (and have served) a Response and a Declaration under UCCJEA.
If you can afford to retain a Family Law Attorney, you should do so without delay, because you will need not only to file a Response to the Petition, but you should consult with and receive advice regarding your rights and obligations in advance of the Mediation, since the mediator isn't your attorney and can't give you legal advice.
Also, don't sign a mediation settlement agreement without first consulting with a Family Law Attorney about it and showing it to the Family Law Attorney.
Were your default taken, you would need to act promptly to file a Motion to set aside your default, and you would need the services of a Family Law Attorney to do so.
Monday, January 24, 2011
CAN I GET CHILD SUPPORT IN CALIFORNIA IF I AM NOT GETTING 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 an informative and educational blog, responding to questions posed to him about 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 child support in California if I am not getting a divorce? I have been separated for two years from my wife, and my kids live with me. Can I get support without filing for divorce in California? We have not been living together since our separation, and even file taxes separately.
ANSWER: Yes, you can. Your options are 1) for you to file independent private Civil Action pursuant to Family Code Section 4000 to enforce your spouse's duty to support [you will likely need to retain a Family Law Attorney to do that], or 2) to seek and obtain the assistance of the county pursuant to Family Code Section 4002 to enforce your spouse's duty to support, on behalf of your child. In the county of Los Angeles, CSSD is the public service agency which you would need to contact for such assistance.
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 child support in California if I am not getting a divorce? I have been separated for two years from my wife, and my kids live with me. Can I get support without filing for divorce in California? We have not been living together since our separation, and even file taxes separately.
ANSWER: Yes, you can. Your options are 1) for you to file independent private Civil Action pursuant to Family Code Section 4000 to enforce your spouse's duty to support [you will likely need to retain a Family Law Attorney to do that], or 2) to seek and obtain the assistance of the county pursuant to Family Code Section 4002 to enforce your spouse's duty to support, on behalf of your child. In the county of Los Angeles, CSSD is the public service agency which you would need to contact for such assistance.
Sunday, January 23, 2011
MORE ABOUT WHAT TO DO ABOUT CHILD SUPPORT IF YOU LOSE YOUR JOB
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 about 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: How do I stop paying child support after I lost my job? Do I still have to pay even though I have no income at all? Do I have to go to court?
ANSWER: Nothing is automatic. Waste no time in preparing and filing (and serving) an Order to Show Cause [OSC] to modify Child Support, supported by an Income and Expense Declaration and a Declaration which explains that you lost your job and has documentation attached as an exhibit which corroborates your explanation - such as a layoff notice from your employer. You should promptly apply for unemployment, and you should make a diligent effort to find new employment, keeping legible copies of all records relating to your search, including website inquiries, applications, rejections, etc. There are rules of evidence that your paperwork needs to comply with, so you would best hire a certified family law specialist if you can afford one. If you can't, you should see if there are volunteers at the Court who can assist you. You are NOT entitled to a modification retroactive to a date prior to your filing your OSC, so you should seek legal assistance without delay.
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 stop paying child support after I lost my job? Do I still have to pay even though I have no income at all? Do I have to go to court?
ANSWER: Nothing is automatic. Waste no time in preparing and filing (and serving) an Order to Show Cause [OSC] to modify Child Support, supported by an Income and Expense Declaration and a Declaration which explains that you lost your job and has documentation attached as an exhibit which corroborates your explanation - such as a layoff notice from your employer. You should promptly apply for unemployment, and you should make a diligent effort to find new employment, keeping legible copies of all records relating to your search, including website inquiries, applications, rejections, etc. There are rules of evidence that your paperwork needs to comply with, so you would best hire a certified family law specialist if you can afford one. If you can't, you should see if there are volunteers at the Court who can assist you. You are NOT entitled to a modification retroactive to a date prior to your filing your OSC, so you should seek legal assistance without delay.
Friday, January 21, 2011
WHAT TO DO ABOUT CHILD SUPPORT IF YOU ARE LAID OFF; WHAT TO DO IF YOUR FORMER SPOUSE INTERFERES WITH YOUR CUSTODIAL TIME
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 an informative and educational blog, responding to questions posed to him about 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 you change the determinations made in a divorce if circumstances change? If someone uses the same divorce attorney and the divorce becomes final, can the terms be changed later? For instance, they said they would share custody of the children, but every time it's my brother's turn to have the kids for the weekend, his ex-wife comes up with a reason why she needs to keep them. Can he get custody in writing even though the divorce is already final? Also, his child and alimony payments were determined on his last two years of work. He has since lost his job and the ex-wife makes more than he does. Can you and how do you adjust the required monthly payments? He "owes" her $5000/month but doesn't have a job. How is he supposed to pay this? Thank you for any help you can provide. Signed, a worried sister
ANSWER: You were wise to seek advice on behalf of your brother.
To deal with his unemployment, your brother should file an Order to Show Cause to modify Child Support, supported by his Income and Expense Declaration, reflecting in his supporting declaration the date and fact of his being laid off from his job, and his unsuccessful efforts to find new employment. The Court won't modify Child Support retroactively to a date prior to his filing that Order to Show Cause, so he should not delay getting assistance, preferably from a Family Law Attorney, but if he can't afford that, some courts have clinics available to assist people in preparing documents and to advise people regarding the necessary procedures. Based on the facts you relate, your brother should be able to get a Child Support Order requiring his ex-wife to pay Child Support to him.
To deal with the custody/visitation difficulty that your brother is having, I am assuming from your question that the judgment only provides for joint Child Custody. If that is the case, and the specific days and times of your brother's physical custody of the children are not spelled out in the divorce judgment, I would suggest that the Order to Show Cause that your brother files include a request for a modification of Child Custody, to spell out particular days and times each week (plus alternate holidays, birthdays, etc.) for your brother's physical custody of the children - and in his supporting declaration, he should set forth the problems he has experienced with his ex-wife about his time with the children, and set forth a "parenting plan" providing the days and times he wants his children to be with him, and the days and times he wants his children to be with his ex-wife.
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 change the determinations made in a divorce if circumstances change? If someone uses the same divorce attorney and the divorce becomes final, can the terms be changed later? For instance, they said they would share custody of the children, but every time it's my brother's turn to have the kids for the weekend, his ex-wife comes up with a reason why she needs to keep them. Can he get custody in writing even though the divorce is already final? Also, his child and alimony payments were determined on his last two years of work. He has since lost his job and the ex-wife makes more than he does. Can you and how do you adjust the required monthly payments? He "owes" her $5000/month but doesn't have a job. How is he supposed to pay this? Thank you for any help you can provide. Signed, a worried sister
ANSWER: You were wise to seek advice on behalf of your brother.
To deal with his unemployment, your brother should file an Order to Show Cause to modify Child Support, supported by his Income and Expense Declaration, reflecting in his supporting declaration the date and fact of his being laid off from his job, and his unsuccessful efforts to find new employment. The Court won't modify Child Support retroactively to a date prior to his filing that Order to Show Cause, so he should not delay getting assistance, preferably from a Family Law Attorney, but if he can't afford that, some courts have clinics available to assist people in preparing documents and to advise people regarding the necessary procedures. Based on the facts you relate, your brother should be able to get a Child Support Order requiring his ex-wife to pay Child Support to him.
To deal with the custody/visitation difficulty that your brother is having, I am assuming from your question that the judgment only provides for joint Child Custody. If that is the case, and the specific days and times of your brother's physical custody of the children are not spelled out in the divorce judgment, I would suggest that the Order to Show Cause that your brother files include a request for a modification of Child Custody, to spell out particular days and times each week (plus alternate holidays, birthdays, etc.) for your brother's physical custody of the children - and in his supporting declaration, he should set forth the problems he has experienced with his ex-wife about his time with the children, and set forth a "parenting plan" providing the days and times he wants his children to be with him, and the days and times he wants his children to be with his ex-wife.
Thursday, January 20, 2011
DON'T PLAY TUG-OF-WAR OVER YOUR CHILDREN
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 an informative and educational blog, responding to questions posed to him about 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 enroll my children in a school of my choosing if I am separated from my wife? My wife and I have 5 kids. A month ago she left and moved across town. The 3 older kids (teenagers) stayed with me she took the 2 younger kids, ages 10 and 8. She then removed them from their school and enrolled them across town at another school against my objections. I want to do what is best for my kids and was wondering since we are still married and no papers have been filed, is there anything stopping me from picking my 10 and 8 year old up from school and enrolling them in their old school where they want to be?
ANSWER: You shouldn't play tug-of-war with your wife about the children. You should promptly retain a Family Law Attorney to file a divorce case and an Order to Show Cause regarding Child Custody and Visitation, in which you request the Court to make orders pertaining to the schooling of the two youngest children (among other things). Were you to re-enroll the children in their old school, your wife may likely file a divorce case and an Order to Show Cause, and a Court might penalize you for playing tug-of-war. If your wife is granted custody of the two youngest children, the Court might see the sense of putting those children back in their old school to the end of the semester (but then let your wife move the children to the new school), or alternatively, the Court might look at the geographical convenience of the new school and permit her to keep the children in their new school. The Court could, but is not required to, consider the childrens' desires. It may be a good idea to request, in your Order to Show Cause, to have minors' counsel appointed to represent the interests of the children, so that their desires can be conveyed to the court.
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 enroll my children in a school of my choosing if I am separated from my wife? My wife and I have 5 kids. A month ago she left and moved across town. The 3 older kids (teenagers) stayed with me she took the 2 younger kids, ages 10 and 8. She then removed them from their school and enrolled them across town at another school against my objections. I want to do what is best for my kids and was wondering since we are still married and no papers have been filed, is there anything stopping me from picking my 10 and 8 year old up from school and enrolling them in their old school where they want to be?
ANSWER: You shouldn't play tug-of-war with your wife about the children. You should promptly retain a Family Law Attorney to file a divorce case and an Order to Show Cause regarding Child Custody and Visitation, in which you request the Court to make orders pertaining to the schooling of the two youngest children (among other things). Were you to re-enroll the children in their old school, your wife may likely file a divorce case and an Order to Show Cause, and a Court might penalize you for playing tug-of-war. If your wife is granted custody of the two youngest children, the Court might see the sense of putting those children back in their old school to the end of the semester (but then let your wife move the children to the new school), or alternatively, the Court might look at the geographical convenience of the new school and permit her to keep the children in their new school. The Court could, but is not required to, consider the childrens' desires. It may be a good idea to request, in your Order to Show Cause, to have minors' counsel appointed to represent the interests of the children, so that their desires can be conveyed to the court.
Wednesday, January 19, 2011
WHAT SHOULD THE FIRST STEP BE TO GET AN AGREED 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 an informative and educational blog, responding to questions posed to him about 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: What should our first step be in California if we are getting divorced? What is the cost of a divorce in California? My husband and I have been separated, though not legally, for over 18 months. We want to begin the divorce process, but do not know what to do. We are on good terms and share custody of the kids. Would mediation be the way to go?
ANSWER: It is unusual for me to receive a question from a party asking what should "we" do. Usually, one party asks a Family Law Attorney: "What should I do?"
What you and your husband should do depends on the issues in your divorce, and the cost of a divorce depends on what you and your husband do. If you and he prepare file your own documents, the cost of the divorce could be just the filing fees (on the order of $400 for a Petition and $400 for a Response). If one party agrees to default, the cost of the divorce could just be the filing fee for the Petition, and the cost of a Notary Public to acknowledge the defaulting party's signature on a Marital Settlement Agreement or Stipulated Judgment. If you hire private attorneys, you would each incur attorney's fees at the respective attorneys' retainer fee rates. If you engage the services of a Mediator, you and your husband would incur mediator's fees at the mediator's retainer fee rate.
If you are both informed as to your rights and responsibilities, and both of you are in agreement regarding child custody, property division and support, you can enter into a Stipulated Judgment after complying with the requisites to do so (including exchange of Declarations of Disclosure).
I would suggest that you and your husband each at least consult with independent Family Law Attorneys, to learn of and discuss your potential rights and responsibilities.
You can certainly mediate contested issues, but to the extent that you both agree, after your respective consultations, regarding certain issues, your agreement regarding those issues can be made part of a Stipulated Judgment.
A mediator neither represents, nor counsels, the parties to a mediation. As a result, you would best retain or at least consult with a Family Law Attorney prior to and throughout the mediation process, so that you can avoid entering a mediation settlement or parts of a mediation settlement that might be against your interests.
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 our first step be in California if we are getting divorced? What is the cost of a divorce in California? My husband and I have been separated, though not legally, for over 18 months. We want to begin the divorce process, but do not know what to do. We are on good terms and share custody of the kids. Would mediation be the way to go?
ANSWER: It is unusual for me to receive a question from a party asking what should "we" do. Usually, one party asks a Family Law Attorney: "What should I do?"
What you and your husband should do depends on the issues in your divorce, and the cost of a divorce depends on what you and your husband do. If you and he prepare file your own documents, the cost of the divorce could be just the filing fees (on the order of $400 for a Petition and $400 for a Response). If one party agrees to default, the cost of the divorce could just be the filing fee for the Petition, and the cost of a Notary Public to acknowledge the defaulting party's signature on a Marital Settlement Agreement or Stipulated Judgment. If you hire private attorneys, you would each incur attorney's fees at the respective attorneys' retainer fee rates. If you engage the services of a Mediator, you and your husband would incur mediator's fees at the mediator's retainer fee rate.
If you are both informed as to your rights and responsibilities, and both of you are in agreement regarding child custody, property division and support, you can enter into a Stipulated Judgment after complying with the requisites to do so (including exchange of Declarations of Disclosure).
I would suggest that you and your husband each at least consult with independent Family Law Attorneys, to learn of and discuss your potential rights and responsibilities.
You can certainly mediate contested issues, but to the extent that you both agree, after your respective consultations, regarding certain issues, your agreement regarding those issues can be made part of a Stipulated Judgment.
A mediator neither represents, nor counsels, the parties to a mediation. As a result, you would best retain or at least consult with a Family Law Attorney prior to and throughout the mediation process, so that you can avoid entering a mediation settlement or parts of a mediation settlement that might be against your interests.
Monday, January 17, 2011
SHOULD I IGNORE DIVORCE PAPERS SERVED ON ME?
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 about 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: If I am served with divorce papers, can I simply ignore them? Can I simply refuse to appear in court?
ANSWER: While you can ignore divorce papers served on you, it is unwise to do so. If you ignore them, your default will be taken, and you will likely become your own victim: you won't be allowed to oppose requests for relief by your spouse which may be contrary to your interests, you won't be allowed to participate in the case, and orders will be made and a Judgment entered by the Court which will be binding on you, which, if you violate, could result in significant economic and potentially criminal (contempt of court) consequences to you.
Whereas it might otherwise be possible to prevail on a promptly-filed Motion to Set Aside Default under Code of Civil Procedure Section 473 for mistake, inadvertence, surprise or excusable neglect, if you intentionally ignore divorce papers served upon you, it is unlikely that the Court would set aside your default on a CCP Section 473 Motion.
You should consult, in person, with a Family Law Attorney as soon as possible, to enable you to learn the value of your participation in the divorce case before that option becomes unavailable, and to timely participate and potentially make a difference in the outcome of the case.
If the reason for your question is that you don't want the divorce, you need to know that you can't prevent the divorce by not participating in it. You should seek psychological counseling to assist you in making rational decisions so that your interests can be protected in the divorce case instead of just letting the dice fall where they may.
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 am served with divorce papers, can I simply ignore them? Can I simply refuse to appear in court?
ANSWER: While you can ignore divorce papers served on you, it is unwise to do so. If you ignore them, your default will be taken, and you will likely become your own victim: you won't be allowed to oppose requests for relief by your spouse which may be contrary to your interests, you won't be allowed to participate in the case, and orders will be made and a Judgment entered by the Court which will be binding on you, which, if you violate, could result in significant economic and potentially criminal (contempt of court) consequences to you.
Whereas it might otherwise be possible to prevail on a promptly-filed Motion to Set Aside Default under Code of Civil Procedure Section 473 for mistake, inadvertence, surprise or excusable neglect, if you intentionally ignore divorce papers served upon you, it is unlikely that the Court would set aside your default on a CCP Section 473 Motion.
You should consult, in person, with a Family Law Attorney as soon as possible, to enable you to learn the value of your participation in the divorce case before that option becomes unavailable, and to timely participate and potentially make a difference in the outcome of the case.
If the reason for your question is that you don't want the divorce, you need to know that you can't prevent the divorce by not participating in it. You should seek psychological counseling to assist you in making rational decisions so that your interests can be protected in the divorce case instead of just letting the dice fall where they may.
Saturday, January 15, 2011
WHO HAS CUSTODY OF THE CHILDREN DURING 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 about 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: When going through a divorce, who has custody of the children in California? Will an attorney help figure that out?
ANSWER: Before there is an Order or Judgment (or a Stipulation and Order) determining legal and physical custody of the children, custody is undetermined. A Family Law Attorney can help resolve custody issues, by negotiating with the other party or attorney in an effort to enter a Stipulation and obtain an Order on the Stipulation for physical and legal custody, or through a legal proceeding known as an "Order to Show Cause" during the pendency of the divorce case. At trial or settlement of the case, the Judgment will set forth the orders for legal and physical custody of the children.
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: When going through a divorce, who has custody of the children in California? Will an attorney help figure that out?
ANSWER: Before there is an Order or Judgment (or a Stipulation and Order) determining legal and physical custody of the children, custody is undetermined. A Family Law Attorney can help resolve custody issues, by negotiating with the other party or attorney in an effort to enter a Stipulation and obtain an Order on the Stipulation for physical and legal custody, or through a legal proceeding known as an "Order to Show Cause" during the pendency of the divorce case. At trial or settlement of the case, the Judgment will set forth the orders for legal and physical custody of the children.
Friday, January 14, 2011
CAN I OBTAIN A DIVORCE WITHOUT MY SPOUSE'S SIGNATURE?
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 about 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 obtain a divorce from my spouse without her signature?
ANSWER: Yes.
You don't need your wife's signature to have her personally served by a process server. A party is not allowed to serve documents in his/her own case, so somebody else, at least 18 years old, must personally serve her, and that person must complete and sign a Proof of Personal Service, to be filed with the Court.
However, if you try to have your wife served via Notice and Acknowledgment, she would have to sign the Notice and Acknowledgment of Receipt and return it to you, in order for service to be completed. If you fear that she won't cooperate, it would be best to have her personally served.
If your wife fails to respond to the Petition within 30 days after she was served, you can seek to take her default, but you need to comply with the requirements set forth on the Judicial Council FL-165 Form (Request to Enter Default) to seek to have her default entered, and you need to have her served with your Preliminary and Final Declarations of Disclosure before you can seek a Default hearing to have the Court hear the Divorce case and render a Divorce Judgment.
If your wife responds to the Petition, she will need to sign her Response for it to be acceptable to the Court for filing. If she responds to the Petition before the Court enters her default, the case cannot proceed by way of default.
You would best be served by retaining a Family Law Attorney to represent you in your 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 obtain a divorce from my spouse without her signature?
ANSWER: Yes.
You don't need your wife's signature to have her personally served by a process server. A party is not allowed to serve documents in his/her own case, so somebody else, at least 18 years old, must personally serve her, and that person must complete and sign a Proof of Personal Service, to be filed with the Court.
However, if you try to have your wife served via Notice and Acknowledgment, she would have to sign the Notice and Acknowledgment of Receipt and return it to you, in order for service to be completed. If you fear that she won't cooperate, it would be best to have her personally served.
If your wife fails to respond to the Petition within 30 days after she was served, you can seek to take her default, but you need to comply with the requirements set forth on the Judicial Council FL-165 Form (Request to Enter Default) to seek to have her default entered, and you need to have her served with your Preliminary and Final Declarations of Disclosure before you can seek a Default hearing to have the Court hear the Divorce case and render a Divorce Judgment.
If your wife responds to the Petition, she will need to sign her Response for it to be acceptable to the Court for filing. If she responds to the Petition before the Court enters her default, the case cannot proceed by way of default.
You would best be served by retaining a Family Law Attorney to represent you in your divorce.
Thursday, January 13, 2011
WHAT IS THE STATUTE OF LIMITATIONS ON A 664.6 MOTION IN CALIFORNIA?
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 about 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: What is the statute of limitations for a 664.6 Motion in California? When does the statute of limitations begin? When the agreement was agreed upon? OR do the limitations begin the year the other party did not uphold the agreement?
ANSWER: Code of Civil Procedure Section 664.6 applies only to agreements entered during a "pending action". If there was no pending action at the time the agreement was entered, CCP Section 664.6 is not applicable.
If parties to a pending action stipulate orally on the record in the court in which the action is pending, to settlement or partial settlement of the pending litigation, or if they enter into a written stipulation for settlement or partial settlement of the pending litigation, CCP Section 664.6 allows the Court, on Motion of a party, to enter Judgment pursuant to the terms of the settlement, and if requested by the parties, the Court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.
If the settlement stipulation were in writing, the 4-year Statute of Limitations of CCP Section 337 would begin to run from the date of entry into the written stipulation.
If the settlement stipulation were orally made in Court, it would seem that a 2-year Statute of Limitations of CCP Section 336 would begin to run from the date of that oral stipulation. However, in the civil case of PIETROBAN v. LIBARLE (2006) 137 CA4th 992, an Appellate Court affirmed the trial court's holding (made under unusual circumstances) that because the oral settlement agreement in that case had been reduced to writing that accurately set forth the agreement [in a manner not described in the court's opinion - perhaps in the minute order of the court, or perhaps in the court reporter's transcript, or otherwise - we don't know], the writing did not need to be signed in order to fall within the scope of the 4-year statute of limitations for breach of a written agreement. The unusual facts of that case included testimony by the party sought to be charged, admitting the making of the agreement on the court record in the enforcement proceeding. Whether such an admission at enforcement proceedings is needed to extend the statute of limitations to 4 years remains unanswered. Best to file your Motion under 664.6 within 2 years of the oral agreement made on the record.
Code of Civil Procedure Section 583.310 provides that the time limit for bringing an action to trial is five (5) years (unless extended by written stipulation or oral stipulation in Court; and the 5-year limit does not apply if there is an existing order for Child or Spousal Support). In the PIETROBAN case, under the particular local court rules which required dismissal within 45 days of settlement, the initial case was dismissed, so the Plaintiff in that case had to file a separate civil lawsuit in an effort to enforce the agreement.
If a Divorce case isn't resolved by the time the Court dismisses the case, the Divorce case can't be subsequently revived to allow a 664.6 Motion. However, under the philosophy of the PIETROBAN case, it may be possible (but certainly not guaranteed) that a civil action to enforce the oral stipulation, filed within 4 years of the oral stipulation, may work to enforce the oral stipulation if the Divorce case is dismissed.
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 is the statute of limitations for a 664.6 Motion in California? When does the statute of limitations begin? When the agreement was agreed upon? OR do the limitations begin the year the other party did not uphold the agreement?
ANSWER: Code of Civil Procedure Section 664.6 applies only to agreements entered during a "pending action". If there was no pending action at the time the agreement was entered, CCP Section 664.6 is not applicable.
If parties to a pending action stipulate orally on the record in the court in which the action is pending, to settlement or partial settlement of the pending litigation, or if they enter into a written stipulation for settlement or partial settlement of the pending litigation, CCP Section 664.6 allows the Court, on Motion of a party, to enter Judgment pursuant to the terms of the settlement, and if requested by the parties, the Court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.
If the settlement stipulation were in writing, the 4-year Statute of Limitations of CCP Section 337 would begin to run from the date of entry into the written stipulation.
If the settlement stipulation were orally made in Court, it would seem that a 2-year Statute of Limitations of CCP Section 336 would begin to run from the date of that oral stipulation. However, in the civil case of PIETROBAN v. LIBARLE (2006) 137 CA4th 992, an Appellate Court affirmed the trial court's holding (made under unusual circumstances) that because the oral settlement agreement in that case had been reduced to writing that accurately set forth the agreement [in a manner not described in the court's opinion - perhaps in the minute order of the court, or perhaps in the court reporter's transcript, or otherwise - we don't know], the writing did not need to be signed in order to fall within the scope of the 4-year statute of limitations for breach of a written agreement. The unusual facts of that case included testimony by the party sought to be charged, admitting the making of the agreement on the court record in the enforcement proceeding. Whether such an admission at enforcement proceedings is needed to extend the statute of limitations to 4 years remains unanswered. Best to file your Motion under 664.6 within 2 years of the oral agreement made on the record.
Code of Civil Procedure Section 583.310 provides that the time limit for bringing an action to trial is five (5) years (unless extended by written stipulation or oral stipulation in Court; and the 5-year limit does not apply if there is an existing order for Child or Spousal Support). In the PIETROBAN case, under the particular local court rules which required dismissal within 45 days of settlement, the initial case was dismissed, so the Plaintiff in that case had to file a separate civil lawsuit in an effort to enforce the agreement.
If a Divorce case isn't resolved by the time the Court dismisses the case, the Divorce case can't be subsequently revived to allow a 664.6 Motion. However, under the philosophy of the PIETROBAN case, it may be possible (but certainly not guaranteed) that a civil action to enforce the oral stipulation, filed within 4 years of the oral stipulation, may work to enforce the oral stipulation if the Divorce case is dismissed.
Tuesday, January 11, 2011
IS IT POSSIBLE IN CALIFORNIA TO KEEP MY WIFE FROM LEAVING THE STATE WITH MY CHILD?
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 about 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: Is it possible in California to keep my wife from leaving with my son? My wife and I are getting a divorce in California, and we have a son together. She is threatening to leave the state with my son. Do I have to go to court to stop her?
ANSWER: It is possible that you could prevent your wife from moving your son out of the state. You should promptly retain a Family Law Attorney who is knowledgeable about the complex laws and cases relating to "move-aways" to file an Order to Show cause to prevent the move-away. The existing custody and visitation orders, "de facto" custody and visitation, the quality of your relationship with your son, as well as your proving "detriment" to your son from the move-away, are important factors that will need to presented to the Court for its consideration of your Order to Show Cause.
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 it possible in California to keep my wife from leaving with my son? My wife and I are getting a divorce in California, and we have a son together. She is threatening to leave the state with my son. Do I have to go to court to stop her?
ANSWER: It is possible that you could prevent your wife from moving your son out of the state. You should promptly retain a Family Law Attorney who is knowledgeable about the complex laws and cases relating to "move-aways" to file an Order to Show cause to prevent the move-away. The existing custody and visitation orders, "de facto" custody and visitation, the quality of your relationship with your son, as well as your proving "detriment" to your son from the move-away, are important factors that will need to presented to the Court for its consideration of your Order to Show Cause.
Monday, January 10, 2011
IF I EARN MORE THAN MY WIFE, DO I HAVE TO PAY SPOUSAL SUPPORT?
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 about 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: In California, do I have to pay spousal support to my wife after our divorce because I make more money? I have been separated from my wife for a year and a half, and we have no problem sharing custody of our child. She pays for the daycare, and I do not ask for childcare support beyond that. However, do I need to pay to support her if I make more than she does?
ANSWER: If you earn significantly more than your wife earns, you will likely be ordered in a divorce judgment to pay Spousal Support to her. However, if she earns only a bit less than you (i.e, up to 20% less than you), such an order would be fairly unlikely. If your wife waives Spousal Support, you would be free from a Spousal Support order. If you can demonstrate with appropriate evidence that your wife is "underemployed", you could have income "imputed" to your wife, as was done in the Marriage of LaBASS and MUNSIE, where the husband's evidence comprised classified ads showing available full time employment for the wife, who chose to work as a part-time professor and devote more time to the children, instead of working full time.
Even though you have a "good deal" regarding Child Support now, that may change in a divorce judgment. Child Support is calculated under the California Child Support Guideline based on your income, your wife's income, and your percentage of custodial timeshare. Regarding daycare for your child, that would normally be treated as a Child Support add-on, with each party responsible to pay 1/2 of that add-on. If your wife agrees to non-guideline Child Support pursuant to Family Code Section 4065(a) and both of you set forth in the judgment the required declarations for a non-guideline figure or no child support, your wife could subsequently return to court on an Order to Show Cause to obtain an order for Guideline Child Support without having to demonstrate changed circumstances, pursuant to Family Code Section 4065(d).
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, do I have to pay spousal support to my wife after our divorce because I make more money? I have been separated from my wife for a year and a half, and we have no problem sharing custody of our child. She pays for the daycare, and I do not ask for childcare support beyond that. However, do I need to pay to support her if I make more than she does?
ANSWER: If you earn significantly more than your wife earns, you will likely be ordered in a divorce judgment to pay Spousal Support to her. However, if she earns only a bit less than you (i.e, up to 20% less than you), such an order would be fairly unlikely. If your wife waives Spousal Support, you would be free from a Spousal Support order. If you can demonstrate with appropriate evidence that your wife is "underemployed", you could have income "imputed" to your wife, as was done in the Marriage of LaBASS and MUNSIE, where the husband's evidence comprised classified ads showing available full time employment for the wife, who chose to work as a part-time professor and devote more time to the children, instead of working full time.
Even though you have a "good deal" regarding Child Support now, that may change in a divorce judgment. Child Support is calculated under the California Child Support Guideline based on your income, your wife's income, and your percentage of custodial timeshare. Regarding daycare for your child, that would normally be treated as a Child Support add-on, with each party responsible to pay 1/2 of that add-on. If your wife agrees to non-guideline Child Support pursuant to Family Code Section 4065(a) and both of you set forth in the judgment the required declarations for a non-guideline figure or no child support, your wife could subsequently return to court on an Order to Show Cause to obtain an order for Guideline Child Support without having to demonstrate changed circumstances, pursuant to Family Code Section 4065(d).
Sunday, January 9, 2011
CAN I DIVORCE AN ILLEGAL IMMIGRANT AND REQUEST ALIMONY?
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 about 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 divorce an illegal immigrant and request alimony? I married my husband who is an illegal immigrant. It has become very clear that he only married me to become a US citizen. Can I divorce him and request alimony?
ANSWER: You can divorce your husband. It makes no difference whether or not your husband is an illegal immigrant. You will need to have him served with process after your divorce case is filed.
You can request alimony (spousal support) in your Petition, but whether you receive orders for spousal support depends upon your husband's provable income and your income, among other factors.
If you desire temporary spousal support pending trial or settlement, you would need to file and serve an Order to Show Cause along with your Income and Expense Declaration; temporary spousal support is ordinarily awarded in accordance with the temporary spousal support guidelines applicable in your county, based on your and your husband's incomes.
If you desire "permanent" spousal support, i.e., spousal support after trial or settlement, permanent spousal support is based on factors set forth in Family Code Section 4320, including the marital standard of living.
The duration of permanent spousal support is based primarily upon the length of the marriage. If the marriage was under 10 years in duration, spousal support is generally awarded for 1/2 the duration of the marriage, whereas if the marriage was over 10 years in duration, spousal support is generally awarded until the recipient's death or remarriage.
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 divorce an illegal immigrant and request alimony? I married my husband who is an illegal immigrant. It has become very clear that he only married me to become a US citizen. Can I divorce him and request alimony?
ANSWER: You can divorce your husband. It makes no difference whether or not your husband is an illegal immigrant. You will need to have him served with process after your divorce case is filed.
You can request alimony (spousal support) in your Petition, but whether you receive orders for spousal support depends upon your husband's provable income and your income, among other factors.
If you desire temporary spousal support pending trial or settlement, you would need to file and serve an Order to Show Cause along with your Income and Expense Declaration; temporary spousal support is ordinarily awarded in accordance with the temporary spousal support guidelines applicable in your county, based on your and your husband's incomes.
If you desire "permanent" spousal support, i.e., spousal support after trial or settlement, permanent spousal support is based on factors set forth in Family Code Section 4320, including the marital standard of living.
The duration of permanent spousal support is based primarily upon the length of the marriage. If the marriage was under 10 years in duration, spousal support is generally awarded for 1/2 the duration of the marriage, whereas if the marriage was over 10 years in duration, spousal support is generally awarded until the recipient's death or remarriage.
Saturday, January 8, 2011
IS THERE A STATUTE OF LIMITATIONS ON DISCLOSURE IN CALIFORNIA DIVORCES?
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 about 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: Is there a statute of limitations on disclosure in California divorces? Is there a statue of limitations on the disclosure of assets and liabilities in a California divorce settlement?
ANSWER: There are Statutes of Limitations on "Disclosure" in California, but each Statute of Limitation is based on the remedy sought and the grounds upon which the Motion is based.
Family Code Section 2122 addresses the Statutes of Limitations on a Motion to set aside a Judgment (or a portion of a Judgment) based on particular grounds, as follows:
a) Actual fraud: within one year after the date when the aggrieved party discovered, or should have discovered the fraud;
b) Perjury in Disclosure Document(s): within one year after the date the aggrieved party discovered, or should have discovered the perjury;
c) Duress: within two years after the date of entry of judgment;
d) Mental Incapacity: within two years after the date of entry of judgment;
e) Mistake as to a stipulated or uncontested judgment stipulated by mistake of fact or law, mutual or unilateral: within one year after the date of entry of judgment; and
f) Failure to comply with the disclosure requirements: within one year after the date on which the aggrieved party discovered or should have discovered the failure to comply.
With respect to a Motion for Sanctions and Attorney's Fees for breach of the fiduciary duty to disclose [as was brought in Marriage of Feldman (2007) 153 Cal.App.4th 1470, resulting in sanctions and attorney's fees totaling $390,000, affirmed on appeal], it would appear that Code of Civil Procedure Section 343's four year Statute of Limitation would be the applicable outside limit for the filing of such a Motion (but there was no Statute of Limitations issue in the Feldman case).
My recommendation is to make candid disclosure and to update your disclosures in accordance with the requirements of Family Code Section 2100 and its subsequent related sections.
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 statute of limitations on disclosure in California divorces? Is there a statue of limitations on the disclosure of assets and liabilities in a California divorce settlement?
ANSWER: There are Statutes of Limitations on "Disclosure" in California, but each Statute of Limitation is based on the remedy sought and the grounds upon which the Motion is based.
Family Code Section 2122 addresses the Statutes of Limitations on a Motion to set aside a Judgment (or a portion of a Judgment) based on particular grounds, as follows:
a) Actual fraud: within one year after the date when the aggrieved party discovered, or should have discovered the fraud;
b) Perjury in Disclosure Document(s): within one year after the date the aggrieved party discovered, or should have discovered the perjury;
c) Duress: within two years after the date of entry of judgment;
d) Mental Incapacity: within two years after the date of entry of judgment;
e) Mistake as to a stipulated or uncontested judgment stipulated by mistake of fact or law, mutual or unilateral: within one year after the date of entry of judgment; and
f) Failure to comply with the disclosure requirements: within one year after the date on which the aggrieved party discovered or should have discovered the failure to comply.
With respect to a Motion for Sanctions and Attorney's Fees for breach of the fiduciary duty to disclose [as was brought in Marriage of Feldman (2007) 153 Cal.App.4th 1470, resulting in sanctions and attorney's fees totaling $390,000, affirmed on appeal], it would appear that Code of Civil Procedure Section 343's four year Statute of Limitation would be the applicable outside limit for the filing of such a Motion (but there was no Statute of Limitations issue in the Feldman case).
My recommendation is to make candid disclosure and to update your disclosures in accordance with the requirements of Family Code Section 2100 and its subsequent related sections.
Friday, January 7, 2011
CAN I GET OUT OF MY LOAN OBLIGATION THROUGH OUR 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: Can I get our of my loan obligation during our divorce? We refinanced a home during the marriage. My husband is keeping the home. Is there a way I can get out of the loan obligation through divorce?
ANSWER: If your husband refinances the home after the divorce (or during the process of settlement), he can take the loan in his own name. Without his doing so, the current lender won't relieve you of your obligation on the currently existing loan because the lender relied upon your and your husband's joint credit to extend the existing loan. Even if a debt or obligation is assigned to one party in the divorce judgment, the creditor may be able to collect from the other party if the party ordered to pay the debt fails to do so. If your husband doesn't refinance the house to pay off (and get you off) the existing loan, that loan will show up on your credit report and affect your ability to borrow money. If you have not yet signed a marital settlement agreement or a stipulated judgment in your divorce case, you should negotiate for your husband to refinance the home as his sole obligation as a condition for him to receive the home in the settlement, and if he does not or cannot refinance the home, the home should be sold.
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 our of my loan obligation during our divorce? We refinanced a home during the marriage. My husband is keeping the home. Is there a way I can get out of the loan obligation through divorce?
ANSWER: If your husband refinances the home after the divorce (or during the process of settlement), he can take the loan in his own name. Without his doing so, the current lender won't relieve you of your obligation on the currently existing loan because the lender relied upon your and your husband's joint credit to extend the existing loan. Even if a debt or obligation is assigned to one party in the divorce judgment, the creditor may be able to collect from the other party if the party ordered to pay the debt fails to do so. If your husband doesn't refinance the house to pay off (and get you off) the existing loan, that loan will show up on your credit report and affect your ability to borrow money. If you have not yet signed a marital settlement agreement or a stipulated judgment in your divorce case, you should negotiate for your husband to refinance the home as his sole obligation as a condition for him to receive the home in the settlement, and if he does not or cannot refinance the home, the home should be sold.
Thursday, January 6, 2011
WHAT DO I DO IF MY EX IS BEHIND ON SPOUSAL SUPPORT PAYMENTS?
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: What do I do if my ex is behind on spousal support payments? In our divorce my ex agreed to pay a monthly amount for the debt he left me with. After some time he got several months behind, I hired a lawyer and went to court to get the money, plus interest, attorneys fees, etc. He was ordered to double up payments until caught up and the interest and fees were added to his balance. He is behind again. Do I have to hire a lawyer again or can I contact the courts and inform them he is behind again?
ANSWER: From your question, it would appear that what is owed to you is not Spousal Support, but instead, a monthly installment payment obligation on a debt. There is a significant difference between the two.
Were your ex-husband employed and not paying Court ordered Spousal Support, you could file and serve an Order to Show Cause for Contempt against him, a quasi-criminal proceeding, potentially leading to jail time.
However, we don't have "debtors' prison" for failure to pay debts other than support, so if the order is for a monthly installment payment on a debt, you can't seek Contempt remedies against your ex-husband.
You can't contact the courts and inform them that your ex-husband is behind again, without using an appropriate, recognized legal process.
You may file an Application for Issuance of a Writ of Execution with the Court, and have the Sheriff levy the Writ that is issued upon your husband's bank account or employer, to collect the amount that is overdue.
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: What do I do if my ex is behind on spousal support payments? In our divorce my ex agreed to pay a monthly amount for the debt he left me with. After some time he got several months behind, I hired a lawyer and went to court to get the money, plus interest, attorneys fees, etc. He was ordered to double up payments until caught up and the interest and fees were added to his balance. He is behind again. Do I have to hire a lawyer again or can I contact the courts and inform them he is behind again?
ANSWER: From your question, it would appear that what is owed to you is not Spousal Support, but instead, a monthly installment payment obligation on a debt. There is a significant difference between the two.
Were your ex-husband employed and not paying Court ordered Spousal Support, you could file and serve an Order to Show Cause for Contempt against him, a quasi-criminal proceeding, potentially leading to jail time.
However, we don't have "debtors' prison" for failure to pay debts other than support, so if the order is for a monthly installment payment on a debt, you can't seek Contempt remedies against your ex-husband.
You can't contact the courts and inform them that your ex-husband is behind again, without using an appropriate, recognized legal process.
You may file an Application for Issuance of a Writ of Execution with the Court, and have the Sheriff levy the Writ that is issued upon your husband's bank account or employer, to collect the amount that is overdue.
Wednesday, January 5, 2011
A JOINT CUSTODY DILEMMA REGARDING A CHILD'S PREFERENCE
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: When parents have joint custody, do both need to approve of a child moving out of state for school? When parents are divorced and have equal and joint custody of their child, does a child need both parents approval in order to go away to something like a private school or college prep school? it is a boarding school scenario. If the child does need the approval of both parents, then can the child appeal to a judge? Will the child need to hire a lawyer? What can be done? (The child in question is nearly 16 years old and wishes to spend their last two years of high school at an advanced private school, but one parent will not agree to let the child go.)
ANSWER: Under the circumstances that you relate, you would best file an Order to Show Cause seeking an order modifying physical and legal custody to permit you to send your son to the boarding school he wants to go to, and you should file and serve a witness list of nonparty witnesses comprising your son and any other person (other than you) whose testimony would be relevant to the issue - including a brief description of the anticipated testimony of each nonparty witness. Your son can't appeal to the judge independently of your Order to Show Cause, but may be allowed to directly or indirectly present his desires to the Judge, as indicated below. The Court may, if you request in your Order to Show Cause, appoint Minor's Counsel to represent your son, but is not required to do so.
Look at the Judgment or Order awarding "joint custody", and read its provisions regarding joint legal custody, to determine whether the court specified that the consent of both parties is required with regard to your son's education, and then read its provisions regarding joint physical custody, to determine whether sending your son to the out-of-state boarding school would be inconsistent with the physical custody order.
I would assume that sending your son to the out-of-state boarding school would be inconsistent with the physical custody order awarding joint physical custody, insofar as it relates to your wife's physical custodial rights.
Family Code Section 3002 defines Joint Custody as joint physical custody and joint legal custody.
Family Code Section 3003 defines Joint Legal Custody to mean that both parents shall share the right and responsibility to make the decisions relating to the health, education and welfare of a child.
Family Code Section 3083 provides that in making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parties 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.
Family Code Section 3150 provides (a) If the court determines that it would be in the best interest of the minor child, the court may appoint private counnsel to represent the interestsof the child in a custody or visitation proceeding, provided that the court and counsel comply with the requirements set forth in California Rules of Court Rules 5.240, 5.241 and 5.242. (b) Upon entering an appearance on behalf of a child pursuant to this chapter, counsel shall continue to represent that child unless relieved by the court upon the substitution of other counsel by the court or for cause.
Family Code Section 3042 provides that (a) if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody; (b) In addition to the requirements of Evidence Code Section 765(b), the court shall control the examination of the child witness so as to protect the best interests of the child. The court may preclude the calling of the child as a witness where the best interests of the child so dictate and may provide alternative means of obtaining information regarding the child's preferences. [As of January 1, 2012, an amended version of Family Code Section 3042 will come into effect].
Family Code Section 217, effective January 1, 2011, provides in relevant part: (a) At a hearing on any order to show cause or notice of motion, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), 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. (c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.
Your Order To Show Cause should be supported by 1) a declaration by you addressing the change you seek and detailed facts relating to your research of and dealings with the boarding school and your son regarding his request to go to the boarding school, along with your proposed custodial plan; 2) a detailed declaration by your son regarding his desire to go to the boarding school, his reasons why, and demonstrating his intelligent preference and his capacity to reason, and 3) a declaration of any other person with relevant testimony (such as his principal, counselor, or teacher) relating to and justifying your son's desired educational (and physical) move.
Your witness list should include your son and a brief description of his anticipated testimony.
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: When parents have joint custody, do both need to approve of a child moving out of state for school? When parents are divorced and have equal and joint custody of their child, does a child need both parents approval in order to go away to something like a private school or college prep school? it is a boarding school scenario. If the child does need the approval of both parents, then can the child appeal to a judge? Will the child need to hire a lawyer? What can be done? (The child in question is nearly 16 years old and wishes to spend their last two years of high school at an advanced private school, but one parent will not agree to let the child go.)
ANSWER: Under the circumstances that you relate, you would best file an Order to Show Cause seeking an order modifying physical and legal custody to permit you to send your son to the boarding school he wants to go to, and you should file and serve a witness list of nonparty witnesses comprising your son and any other person (other than you) whose testimony would be relevant to the issue - including a brief description of the anticipated testimony of each nonparty witness. Your son can't appeal to the judge independently of your Order to Show Cause, but may be allowed to directly or indirectly present his desires to the Judge, as indicated below. The Court may, if you request in your Order to Show Cause, appoint Minor's Counsel to represent your son, but is not required to do so.
Look at the Judgment or Order awarding "joint custody", and read its provisions regarding joint legal custody, to determine whether the court specified that the consent of both parties is required with regard to your son's education, and then read its provisions regarding joint physical custody, to determine whether sending your son to the out-of-state boarding school would be inconsistent with the physical custody order.
I would assume that sending your son to the out-of-state boarding school would be inconsistent with the physical custody order awarding joint physical custody, insofar as it relates to your wife's physical custodial rights.
Family Code Section 3002 defines Joint Custody as joint physical custody and joint legal custody.
Family Code Section 3003 defines Joint Legal Custody to mean that both parents shall share the right and responsibility to make the decisions relating to the health, education and welfare of a child.
Family Code Section 3083 provides that in making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parties 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.
Family Code Section 3150 provides (a) If the court determines that it would be in the best interest of the minor child, the court may appoint private counnsel to represent the interestsof the child in a custody or visitation proceeding, provided that the court and counsel comply with the requirements set forth in California Rules of Court Rules 5.240, 5.241 and 5.242. (b) Upon entering an appearance on behalf of a child pursuant to this chapter, counsel shall continue to represent that child unless relieved by the court upon the substitution of other counsel by the court or for cause.
Family Code Section 3042 provides that (a) if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody; (b) In addition to the requirements of Evidence Code Section 765(b), the court shall control the examination of the child witness so as to protect the best interests of the child. The court may preclude the calling of the child as a witness where the best interests of the child so dictate and may provide alternative means of obtaining information regarding the child's preferences. [As of January 1, 2012, an amended version of Family Code Section 3042 will come into effect].
Family Code Section 217, effective January 1, 2011, provides in relevant part: (a) At a hearing on any order to show cause or notice of motion, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), 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. (c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.
Your Order To Show Cause should be supported by 1) a declaration by you addressing the change you seek and detailed facts relating to your research of and dealings with the boarding school and your son regarding his request to go to the boarding school, along with your proposed custodial plan; 2) a detailed declaration by your son regarding his desire to go to the boarding school, his reasons why, and demonstrating his intelligent preference and his capacity to reason, and 3) a declaration of any other person with relevant testimony (such as his principal, counselor, or teacher) relating to and justifying your son's desired educational (and physical) move.
Your witness list should include your son and a brief description of his anticipated testimony.
Tuesday, January 4, 2011
CAN PARENTS AGREE TO NO CHILD SUPPORT?
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: Can parents agree that no extra child support is needed during the divorce? If both parents agree during the divorce that no extra child support is needed, is this allowable? Father has agreed to pay childs insurance.
ANSWER: Parents can agree to such a provision, but before agreeing to it, they should reveal their respective incomes to the other, exchange Income and Expense Declarations, and each parent should seek advice from his or her attorney as to what child support should be according to the California Child Support Guidline formula, and whether it would be wise to enter such an agreement.
Child support is based on the income of each parent and the custodial timeshare.
Hypothetically, if both parents have substantially the same amount of monthly income, and if actual physical child custody is split 50/50 between them, child support would be $0.
Family Code Section 4065(a) sets forth specific provisions which must be set forth by the parties in a stipulated agreement for child support below the Child Support Guideline formula amount, as follows: 1) They are fully informed of their rights concerning child support; 2) The order is being agreed to without coercion or duress; 3) The agreement is in the best interests of the children involved; 4) The needs of the children will be adequately met by the stipulated amount; and 5) The right to child support has not been assigned to the county pursuant to Section 11477 of the Welfare and Institutions Code, and no public assistance application is pending.
Even if the parties agree/stipulate to no child support, or child support below the Guideline formula amount, Family Code Section 4065(d) provides that no change of circumstances need be demonstrated to obtain a modification of the child support order to the applicable guideline level or above.
If one of the parties has health insurance available for the child through his/her emploment at no cost or reasonable cost, that party is ordinarily required to provide such health insurance for the child, and the cost of the health insurance is factored into his/her Income and Expense Declaration and the Guideline calculation, and the child's health costs that are not covered by the health insurance (such as co-pays) are normally split 50/50 between the parents, unless there is a substantial difference between the parents' incomes. If neither parent has health insurance available for the child through his/her employment, the cost of the child's health insurance should be factored into an adjustment of Guideline support, or split between the parties 50/50 or in a manner appropriate to their relative incomes.
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 parents agree that no extra child support is needed during the divorce? If both parents agree during the divorce that no extra child support is needed, is this allowable? Father has agreed to pay childs insurance.
ANSWER: Parents can agree to such a provision, but before agreeing to it, they should reveal their respective incomes to the other, exchange Income and Expense Declarations, and each parent should seek advice from his or her attorney as to what child support should be according to the California Child Support Guidline formula, and whether it would be wise to enter such an agreement.
Child support is based on the income of each parent and the custodial timeshare.
Hypothetically, if both parents have substantially the same amount of monthly income, and if actual physical child custody is split 50/50 between them, child support would be $0.
Family Code Section 4065(a) sets forth specific provisions which must be set forth by the parties in a stipulated agreement for child support below the Child Support Guideline formula amount, as follows: 1) They are fully informed of their rights concerning child support; 2) The order is being agreed to without coercion or duress; 3) The agreement is in the best interests of the children involved; 4) The needs of the children will be adequately met by the stipulated amount; and 5) The right to child support has not been assigned to the county pursuant to Section 11477 of the Welfare and Institutions Code, and no public assistance application is pending.
Even if the parties agree/stipulate to no child support, or child support below the Guideline formula amount, Family Code Section 4065(d) provides that no change of circumstances need be demonstrated to obtain a modification of the child support order to the applicable guideline level or above.
If one of the parties has health insurance available for the child through his/her emploment at no cost or reasonable cost, that party is ordinarily required to provide such health insurance for the child, and the cost of the health insurance is factored into his/her Income and Expense Declaration and the Guideline calculation, and the child's health costs that are not covered by the health insurance (such as co-pays) are normally split 50/50 between the parents, unless there is a substantial difference between the parents' incomes. If neither parent has health insurance available for the child through his/her employment, the cost of the child's health insurance should be factored into an adjustment of Guideline support, or split between the parties 50/50 or in a manner appropriate to their relative incomes.
Sunday, January 2, 2011
HOW CAN I MOVE MY DIVORCE ALONG?
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 move my divorce along? My ex husband-to-be filed for our divorce as the petitioner. After I got the papers served on me, I did not respond, expecting that he would file a default and complete the process. Only later did I find out that he never followed through, and it has been 5 years since he served me! Needless to say, I wanted to take care of this matter, so I filed my response with the court, along with the income statements and related materials. That was in April 2010. The response was mailed to him back in April, but he has still never responded! I am trying to find out what action I can take as the respondent to get this marriage dissolved. I cannot file a default because I am the respondent. Please help!
ANSWER: The Court can dismiss a case that hasn't gone to trial or been resolved within five years of its filing, so you run a risk of dismissal, but in my experience, the Courts haven't been very diligent in enforcing the 5-year statute. Your best bet would be to retain a competent Family Law Attorney to represent you, prepare and serve your Declarations of Disclosure, do whatever discovery may be appropriate, and set the matter for trial, if unable to settle the case with your husband.
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 move my divorce along? My ex husband-to-be filed for our divorce as the petitioner. After I got the papers served on me, I did not respond, expecting that he would file a default and complete the process. Only later did I find out that he never followed through, and it has been 5 years since he served me! Needless to say, I wanted to take care of this matter, so I filed my response with the court, along with the income statements and related materials. That was in April 2010. The response was mailed to him back in April, but he has still never responded! I am trying to find out what action I can take as the respondent to get this marriage dissolved. I cannot file a default because I am the respondent. Please help!
ANSWER: The Court can dismiss a case that hasn't gone to trial or been resolved within five years of its filing, so you run a risk of dismissal, but in my experience, the Courts haven't been very diligent in enforcing the 5-year statute. Your best bet would be to retain a competent Family Law Attorney to represent you, prepare and serve your Declarations of Disclosure, do whatever discovery may be appropriate, and set the matter for trial, if unable to settle the case with your husband.
Saturday, January 1, 2011
WILL I HAVE TO PAY SPOUSAL SUPPORT BECAUSE MY EX QUIT HIS JOB?
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: Will I have to pay spousal support because my ex quit his job? Prior to my filing for divorce my husband quit his job. He did not discuss the matter with me nothing, just quit. And now that I have filed for divorce, he claims I owe him spousal support, and child support for our 2 young boys when he cares for them 50% of the time. Is this right? Now he wants his 50% part of my 401K as well. Am I going to keep paying and paying this guy?
ANSWER: If you are working and your husband is not, and your husband files an OSC [Order to Show Cause] for spousal support, the Court would award him spousal support unless it imputes income to him (in an amount sufficient to justify not awarding him spousal support).
The Court bases temporary spousal support [during the divorce process] on your income and your husband's income, and permanent spousal support [upon trial or settlement of the divorce case] on factors set forth in Family Code Section 4320. The Court bases child support at all times on your income, your husband's income, and the custodial timeshare between you and your husband.
Upon appropriate proof, the Court could impute income to your husband, even if he isn't actually earning income. However, merely proving that he quit his job is not enough.
The burden will be on you and your attorney to persuade the Court that income should be imputed to your husband, based on his ability to earn [his education, training and work history] and his opportunity to earn [i.e., job availability in his field(s) of experience, and wages offered by those prospective jobs].
You would be best served by an experienced Family Law attorney, to seek and provide evidence and testimony to the Court. In Marriage of LaBass and Munsie, the Court accepted classified ads as evidence of opportunity to earn, but in my experience, some but not all judicial officers accept or are persuaded by such evidence. It would be best to seek an order for examination of your husband by a vocational expert, to interview and test your husband, perform a labor market survey, prepare a report, and testify in Court if needed.
Under the new Elkins legislation coming into effect on January 1, 2011 [providing that absent a stipulation of the parties or a finding of good cause to refuse live testimony (stating its reasons for its finding on the record or in writing), the court is required to receive any live, competent testimony that is relevant and within the scope of the hearing], it would be appropriate for your vocational expert to be prepared to testify as to your husband's earning capacity.
In terms of division of community property, the Court divides net community assets between the parties, so to the extent your 401K plan was earned during the marriage, is included in the division. Your husband's quitting his job will have no influence on the division of community property.
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: Will I have to pay spousal support because my ex quit his job? Prior to my filing for divorce my husband quit his job. He did not discuss the matter with me nothing, just quit. And now that I have filed for divorce, he claims I owe him spousal support, and child support for our 2 young boys when he cares for them 50% of the time. Is this right? Now he wants his 50% part of my 401K as well. Am I going to keep paying and paying this guy?
ANSWER: If you are working and your husband is not, and your husband files an OSC [Order to Show Cause] for spousal support, the Court would award him spousal support unless it imputes income to him (in an amount sufficient to justify not awarding him spousal support).
The Court bases temporary spousal support [during the divorce process] on your income and your husband's income, and permanent spousal support [upon trial or settlement of the divorce case] on factors set forth in Family Code Section 4320. The Court bases child support at all times on your income, your husband's income, and the custodial timeshare between you and your husband.
Upon appropriate proof, the Court could impute income to your husband, even if he isn't actually earning income. However, merely proving that he quit his job is not enough.
The burden will be on you and your attorney to persuade the Court that income should be imputed to your husband, based on his ability to earn [his education, training and work history] and his opportunity to earn [i.e., job availability in his field(s) of experience, and wages offered by those prospective jobs].
You would be best served by an experienced Family Law attorney, to seek and provide evidence and testimony to the Court. In Marriage of LaBass and Munsie, the Court accepted classified ads as evidence of opportunity to earn, but in my experience, some but not all judicial officers accept or are persuaded by such evidence. It would be best to seek an order for examination of your husband by a vocational expert, to interview and test your husband, perform a labor market survey, prepare a report, and testify in Court if needed.
Under the new Elkins legislation coming into effect on January 1, 2011 [providing that absent a stipulation of the parties or a finding of good cause to refuse live testimony (stating its reasons for its finding on the record or in writing), the court is required to receive any live, competent testimony that is relevant and within the scope of the hearing], it would be appropriate for your vocational expert to be prepared to testify as to your husband's earning capacity.
In terms of division of community property, the Court divides net community assets between the parties, so to the extent your 401K plan was earned during the marriage, is included in the division. Your husband's quitting his job will have no influence on the division of community property.
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