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: My husband and I are going through a divorce. After the petition for dissolution was filed, I changed the beneficiary on my life insurance, pensions, retirement to our children. The beneficiary had been my husband. Do I have to change it back to my husband? Our dissolution has yet to be finalized.
ANSWER: Change the beneficiary on each policy and plan back to your husband, immediately.
Read the Standard Restraining Orders on the reverse side of the Summons in your divorce Case. If you are the Petitioner, they were effective against you when you filed the Petition. If you are the Respondent, they were effective when the Petition was served on you. You face severe penalties for violating those Restraining Orders. You can change beneficiaries only after the divorce judgment has been entered, unless you have a written agreement with your husband or a court order allowing you to change those beneficiaries.
This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. www.conviser.net.
Tuesday, March 29, 2011
Monday, March 28, 2011
HOW CAN I PROVE THAT MY EX-WIFE CAN WORK?
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 file an Order to Show Cause to force my ex-wife to prove she cannot work. She has submitted a doctor's letter saying she cannot work. I say she can work; she says she cannot. I'm forced to pay more than 50% of my full time and part time income through garnishment as Spousal Support. I want to prove she can work even part time, but she refuses to.
ANSWER: You would need to seek to prove that your ex-wife can work. You should file an Order to Show Cause for the appointment of a Vocational Consultant to perform a vocational examination of your ex-wife, and for a Gavron Warning from the Court. Your wife may respond to your Order to Show Cause by claiming that she can't work and by seeking to prove that she cannot work.
The Gavron Warning would consist of the Judge's warning your ex-wife to the effect that she needs to make a reasonable, good-faith effort to become self-supporting, and if she fails to do so, her Spousal Support may be reduced or terminated.
The vocational examination would include an interview of your ex-wife, evaluation of her education, training and experience, a labor market survey for jobs which she is qualified to take, and preparation of a Report setting forth the jobs available to your ex-wife and their wages, as well as education and/or training that she could undertake to qualify for better jobs, the cost and duration of that education and/or training, and the jobs that would be available to her after the education and/or training and their wages, and when she would be available for those jobs. The Vocational Consultant will likely consider the doctor's letter, and may need to consult with another doctor to evaluate your ex-wife's limitations.
The desired result of the vocational evaluation is a report and testimony which persuades a Judicial Officer to impute income to your wife and reduce her Spousal Support.
You might also file an Order to Show Cause or Motion for an Order for a Physical Examination of your ex-wife by a doctor of your (or your lawyer's) choice, to assist in the evaluation of your ex-wife's alleged disability and testify as to her ability to work, her limitations, and her likely malingering.
You should retain an experienced Family Law Attorney to represent you in these matters.
This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. www.conviser.net.
QUESTION: Can I file an Order to Show Cause to force my ex-wife to prove she cannot work. She has submitted a doctor's letter saying she cannot work. I say she can work; she says she cannot. I'm forced to pay more than 50% of my full time and part time income through garnishment as Spousal Support. I want to prove she can work even part time, but she refuses to.
ANSWER: You would need to seek to prove that your ex-wife can work. You should file an Order to Show Cause for the appointment of a Vocational Consultant to perform a vocational examination of your ex-wife, and for a Gavron Warning from the Court. Your wife may respond to your Order to Show Cause by claiming that she can't work and by seeking to prove that she cannot work.
The Gavron Warning would consist of the Judge's warning your ex-wife to the effect that she needs to make a reasonable, good-faith effort to become self-supporting, and if she fails to do so, her Spousal Support may be reduced or terminated.
The vocational examination would include an interview of your ex-wife, evaluation of her education, training and experience, a labor market survey for jobs which she is qualified to take, and preparation of a Report setting forth the jobs available to your ex-wife and their wages, as well as education and/or training that she could undertake to qualify for better jobs, the cost and duration of that education and/or training, and the jobs that would be available to her after the education and/or training and their wages, and when she would be available for those jobs. The Vocational Consultant will likely consider the doctor's letter, and may need to consult with another doctor to evaluate your ex-wife's limitations.
The desired result of the vocational evaluation is a report and testimony which persuades a Judicial Officer to impute income to your wife and reduce her Spousal Support.
You might also file an Order to Show Cause or Motion for an Order for a Physical Examination of your ex-wife by a doctor of your (or your lawyer's) choice, to assist in the evaluation of your ex-wife's alleged disability and testify as to her ability to work, her limitations, and her likely malingering.
You should retain an experienced Family Law Attorney to represent you in these matters.
This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. www.conviser.net.
Sunday, March 27, 2011
WHAT WILL HAPPEN IF I DON'T COMPLY WITH A DISCOVERY ORDER?
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 do not comply to the court's ruling to produce financial documents after a Motion to Compel tentative ruling, what happens?
The judge gave me 10 days to produce documents (nearly impossible being that I had a 7 day biz trip in between and the amount of paperwork is massive).
What is the worst case scenario if I do not produce enough documents? I am already ordered to pay my ex's attorney 1k for monetary sanctions. Thanks.
ANSWER: The worst-case scenario for failure to comply with a Judge's order to produce documents are "Terminating Sanctions", where you would essentially be treated as a defaulting party, and the other party will be able to seek relief without your ability to oppose.
The next worst-case scenario could be "Issue Sanctions", where the Court would rule in favor of the other party and against you on the issues that the documents related to.
The next worst-case scenario would be "Evidence Sanctions", where the Court would order that you could not produce evidence on issues that the documents related to.
The Court would likely also issue "Monetary Sanctions" on a Motion brought by the other side as a result of your failure to comply with the Court's Order.
You are advised to do your best to timely produce as much of the documents that you can possibly produce. If you don't produce copies, I would suggest that you or a trusted friend or employee produce the originals and monitor the inspection and copying of the documents.
You should have advised the Judge of your business trip, and requested a longer amount of time to produce the documents, but the Court made its order, and the consequences of your violation of the order can be severe.
I would recommend that you retain an experienced Family Law Attorney to represent you in your case, without delay.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specialist, owner of Warner Center Law Offices, with offices in Century City and Woodland Hills, an effective and aggressive Los Angeles Divorce Lawyer and Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years; call 888.632.4447 or 818.880.8990 for free confidential consultation to discuss your divorce or family law issues, and see www.conviser.net
QUESTION: If I do not comply to the court's ruling to produce financial documents after a Motion to Compel tentative ruling, what happens?
The judge gave me 10 days to produce documents (nearly impossible being that I had a 7 day biz trip in between and the amount of paperwork is massive).
What is the worst case scenario if I do not produce enough documents? I am already ordered to pay my ex's attorney 1k for monetary sanctions. Thanks.
ANSWER: The worst-case scenario for failure to comply with a Judge's order to produce documents are "Terminating Sanctions", where you would essentially be treated as a defaulting party, and the other party will be able to seek relief without your ability to oppose.
The next worst-case scenario could be "Issue Sanctions", where the Court would rule in favor of the other party and against you on the issues that the documents related to.
The next worst-case scenario would be "Evidence Sanctions", where the Court would order that you could not produce evidence on issues that the documents related to.
The Court would likely also issue "Monetary Sanctions" on a Motion brought by the other side as a result of your failure to comply with the Court's Order.
You are advised to do your best to timely produce as much of the documents that you can possibly produce. If you don't produce copies, I would suggest that you or a trusted friend or employee produce the originals and monitor the inspection and copying of the documents.
You should have advised the Judge of your business trip, and requested a longer amount of time to produce the documents, but the Court made its order, and the consequences of your violation of the order can be severe.
I would recommend that you retain an experienced Family Law Attorney to represent you in your case, without delay.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specialist, owner of Warner Center Law Offices, with offices in Century City and Woodland Hills, an effective and aggressive Los Angeles Divorce Lawyer and Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years; call 888.632.4447 or 818.880.8990 for free confidential consultation to discuss your divorce or family law issues, and see www.conviser.net
Thursday, March 24, 2011
WHAT ARE "UNBUNDLED SERVICES"?
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 are Unbundled Services?
ANSWER: Unbundled legal services (Unbundled Services) are consultation services offered by an attorney to a person handling his or her own case, i.e., a party representing himself or herself "in Pro Per", to counsel and assist, but not to represent that person in the pending case.
Unbundled services are frequently sought and received in Family Law cases when a party seeks to obtain assistance with certain aspects of his or her case.
People who can't afford to pay an advance retainer to retain an attorney for ongoing representation, or who don't want the responsibility to pay the ongoing charges of a retained attorney, can obtain consultation and assistance from attorneys who offer unbundled services, on a "pay as you go" basis.
This form of assistance has become more prevalent in the past few years, following the downturn of the economy.
Unbundled services does not provide the sort of traditional full-service representation that a party would receive by retaining an attorney for all purposes in the case.
Unbundled services can consist of meeting with and interviewing the Pro Per, corresponding with the Pro Per and others, advising, guiding, making recommendations, strategizing, coaching and providing advice and procedural information to the Pro Per, performing legal research, drafting Pro Per documents, contacting or interviewing witnesses, obtaining third party declarations, reviewing and analyzing legal documents and correspondence, preparing discovery (Interrogatories, Requests for Admission, Inspection Demands) and/or discovery responses for the Pro Per, preparing Income and Expense Declarations, Schedules of Assets and Debts, Declarations of Disclosure, serving documents, filing documents, performing public record searches, referring the Pro Per to experts, preparing the Pro Per's testimony, witnesses and exhibits for hearings or trial, among other services, but not being the Pro Per's attorney of record, not receiving documents or correspondence from the opposing side or the court, and not appearing at hearings.
When an attorney is retained to provide traditional full-service representation in a case, the attorney is responsible to handle all tasks reasonably necessary to properly represent the client. The unbundled services provider does not represent the Pro Per, and performs only the piecework consultation services that the Pro Per brings to the unbundled services provider per their written agreement.
There are some benefits to unbundled services. They cost less than retained services. The Pro Pers do most of the work themselves, and visit the attorney only for assistance that they need. They stay in control of their own case instead of relinquishing control to a retained attorney. The other party may be less guarded when an unbundled services provider ghosts documents or correspondence for the Pro Per [California Rules of Court, Rule 5.70 provides that an attorney who ghosts documents is not required to disclose the ghosting] . Unbundling frequently results in more contact between the parties, enabling them to try to work out their issues instead of relying on an attorney, at substantial expense, to do it for them.
Since the Pro Per is the one "on the firing line", representing himself or herself in the case, the Pro Per needs to be diligent in being responsible, promptly opening mail, monitoring deadlines, knowing when to seek assistance, seeking assistance, contacting the unbundled services provider, setting appointments early enough to accommodate the needs of the case and the schedule of the unbundled services provider, seeking the advice of the unbundled services provider, and following the directions of the unbundled services Provider.
If a party should desire or need representation by an attorney for a specific hearing, whether a deposition, a Motion or OSC, or the trial of the case, the party may seek representation for a specific aspect of the case, or on a certain date, via limited scope representation, which would require a separate Limited Scope Retainer Agreement, and a filed and served Notice of Limited Scope Representation, to retain an attorney on a limited scope basis.
Substantial savings can be realized by Pro Pers receiving the benefit of unbundled services, by choosing the limited aspects of their case for which they seek such services, by not incurring the expense of a retained attorney "on the firing line" to receive and respond to correspondence and documents, and by not incurring the expense of a retained attorney present in court for hearings and the unavoidable waiting time for hearings.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Law Attorney
QUESTION: What are Unbundled Services?
ANSWER: Unbundled legal services (Unbundled Services) are consultation services offered by an attorney to a person handling his or her own case, i.e., a party representing himself or herself "in Pro Per", to counsel and assist, but not to represent that person in the pending case.
Unbundled services are frequently sought and received in Family Law cases when a party seeks to obtain assistance with certain aspects of his or her case.
People who can't afford to pay an advance retainer to retain an attorney for ongoing representation, or who don't want the responsibility to pay the ongoing charges of a retained attorney, can obtain consultation and assistance from attorneys who offer unbundled services, on a "pay as you go" basis.
This form of assistance has become more prevalent in the past few years, following the downturn of the economy.
Unbundled services does not provide the sort of traditional full-service representation that a party would receive by retaining an attorney for all purposes in the case.
Unbundled services can consist of meeting with and interviewing the Pro Per, corresponding with the Pro Per and others, advising, guiding, making recommendations, strategizing, coaching and providing advice and procedural information to the Pro Per, performing legal research, drafting Pro Per documents, contacting or interviewing witnesses, obtaining third party declarations, reviewing and analyzing legal documents and correspondence, preparing discovery (Interrogatories, Requests for Admission, Inspection Demands) and/or discovery responses for the Pro Per, preparing Income and Expense Declarations, Schedules of Assets and Debts, Declarations of Disclosure, serving documents, filing documents, performing public record searches, referring the Pro Per to experts, preparing the Pro Per's testimony, witnesses and exhibits for hearings or trial, among other services, but not being the Pro Per's attorney of record, not receiving documents or correspondence from the opposing side or the court, and not appearing at hearings.
When an attorney is retained to provide traditional full-service representation in a case, the attorney is responsible to handle all tasks reasonably necessary to properly represent the client. The unbundled services provider does not represent the Pro Per, and performs only the piecework consultation services that the Pro Per brings to the unbundled services provider per their written agreement.
There are some benefits to unbundled services. They cost less than retained services. The Pro Pers do most of the work themselves, and visit the attorney only for assistance that they need. They stay in control of their own case instead of relinquishing control to a retained attorney. The other party may be less guarded when an unbundled services provider ghosts documents or correspondence for the Pro Per [California Rules of Court, Rule 5.70 provides that an attorney who ghosts documents is not required to disclose the ghosting] . Unbundling frequently results in more contact between the parties, enabling them to try to work out their issues instead of relying on an attorney, at substantial expense, to do it for them.
Since the Pro Per is the one "on the firing line", representing himself or herself in the case, the Pro Per needs to be diligent in being responsible, promptly opening mail, monitoring deadlines, knowing when to seek assistance, seeking assistance, contacting the unbundled services provider, setting appointments early enough to accommodate the needs of the case and the schedule of the unbundled services provider, seeking the advice of the unbundled services provider, and following the directions of the unbundled services Provider.
If a party should desire or need representation by an attorney for a specific hearing, whether a deposition, a Motion or OSC, or the trial of the case, the party may seek representation for a specific aspect of the case, or on a certain date, via limited scope representation, which would require a separate Limited Scope Retainer Agreement, and a filed and served Notice of Limited Scope Representation, to retain an attorney on a limited scope basis.
Substantial savings can be realized by Pro Pers receiving the benefit of unbundled services, by choosing the limited aspects of their case for which they seek such services, by not incurring the expense of a retained attorney "on the firing line" to receive and respond to correspondence and documents, and by not incurring the expense of a retained attorney present in court for hearings and the unavoidable waiting time for hearings.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Law Attorney
Wednesday, March 23, 2011
DO I NEED TO FILL OUT A DECLARATION ON FORM MC-030?
The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: I'm trying to prepare a Responsive Declaration. Do I have to do it on a downloadable MC-030 or MC-031 PDF form? Can I attach something and just put something in like "see attached"? The formatting of those PDF documents is terrible. It's a pain to double space and I can't bold any of my main points.
ANSWER: You can attach a legible attachment to your Responsive Declaration to Order to Show Cause or Notice of Motion, with the heading: DECLARATION OF (YOUR NAME), but make sure that it is legible, and you are best off not bolding any points - the courts are generally offended by bolded text, other than short headings that precede sections of your declaration to give a brief idea of the subject matter of the following paragraphs.
Be careful to ensure that your Declaration is dated and signed - a good way to do that is to date and sign the Responsive Declaration form, check the box indicating that there is an attachment, state something to the effect: See attached DECLARATION OF (YOUR NAME), and at the end of your attachment, state something to the effect that the signature and date for this declaration are contained in the Responsive Declaration to which it is attached.
If the issue addressed in the OSC or Motion or your Responsive Declaration is a significant issue, you should at least consult with an experienced Family Law Attorney, but you would be better off retaining an experienced Family Law Attorney to represent you.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
QUESTION: I'm trying to prepare a Responsive Declaration. Do I have to do it on a downloadable MC-030 or MC-031 PDF form? Can I attach something and just put something in like "see attached"? The formatting of those PDF documents is terrible. It's a pain to double space and I can't bold any of my main points.
ANSWER: You can attach a legible attachment to your Responsive Declaration to Order to Show Cause or Notice of Motion, with the heading: DECLARATION OF (YOUR NAME), but make sure that it is legible, and you are best off not bolding any points - the courts are generally offended by bolded text, other than short headings that precede sections of your declaration to give a brief idea of the subject matter of the following paragraphs.
Be careful to ensure that your Declaration is dated and signed - a good way to do that is to date and sign the Responsive Declaration form, check the box indicating that there is an attachment, state something to the effect: See attached DECLARATION OF (YOUR NAME), and at the end of your attachment, state something to the effect that the signature and date for this declaration are contained in the Responsive Declaration to which it is attached.
If the issue addressed in the OSC or Motion or your Responsive Declaration is a significant issue, you should at least consult with an experienced Family Law Attorney, but you would be better off retaining an experienced Family Law Attorney to represent you.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
Tuesday, March 22, 2011
WHAT REASONS DO I NEED FOR A CALIFORNIA 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 are the reasons that will allow me to legally divorce my husband in California? Are the only reasons adultery or abuse?
ANSWER: California has no-fault divorce. All you need is to want to get a divorce, and the operative words are "irreconcilable differences." If you want a divorce and your spouse doesn't, you have irreconcilable differences which will entitle you to divorce your spouse.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
QUESTION: What are the reasons that will allow me to legally divorce my husband in California? Are the only reasons adultery or abuse?
ANSWER: California has no-fault divorce. All you need is to want to get a divorce, and the operative words are "irreconcilable differences." If you want a divorce and your spouse doesn't, you have irreconcilable differences which will entitle you to divorce your spouse.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
Monday, March 21, 2011
CAN A NON-BIOLOGICAL PARENT GET CUSTODY OF A CHILD?
I frequently receive questions from people regarding family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: My brother married someone while she was pregnant with someone else's child. He signed the birth certificate for the baby and the biological father never came forward. Now my brother and his wife are getting a divorce, and the mother left the state and left the child with friends (who are not related to the child in any way). My brother has raised this child as his own since the day she was born and all he wants is to have her back. Does he have any rights, since he is not the biological father but signed the birth certificate and raised her since she was born?
ANSWER: It is not only possible, but it is likely that your brother can get custody of his non-biological child under the fact scenario that you presented.
Your brother would qualifiy as a Presumed Parent, under Family Code Section 7611(d), which requires that the party seeking presumed parent status 1) has received the child into his home; and 2) openly held the child out as his own.
By signing the birth certificate (obviously with mom's consent) and raising the child as his own, your brother satisfied both requirements.
Your brother also qualifies as a Presumed Parent of the child, under Family Code Section 7611(c)(1), having been named, with his consent, on the child's birth certificate.
Children are not possessions to hand off to friends. The fact that your brother's wife relinquished care of the parties' child to friends should help your brother to gain custody of his child. Your brother has proven to be more than capable of providing care for his daughter, and if his wife was unable or unwilling to care for their daughter, she should have left their daughter with your brother.
The UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act) makes the state where the child has resided for the last six months the child's "home state", so your brother should promptly retain an experienced Family Law Attorney to file a Divorce case and seek custody of his child, before he risks his wife qualifying to seek custody in another state.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
QUESTION: My brother married someone while she was pregnant with someone else's child. He signed the birth certificate for the baby and the biological father never came forward. Now my brother and his wife are getting a divorce, and the mother left the state and left the child with friends (who are not related to the child in any way). My brother has raised this child as his own since the day she was born and all he wants is to have her back. Does he have any rights, since he is not the biological father but signed the birth certificate and raised her since she was born?
ANSWER: It is not only possible, but it is likely that your brother can get custody of his non-biological child under the fact scenario that you presented.
Your brother would qualifiy as a Presumed Parent, under Family Code Section 7611(d), which requires that the party seeking presumed parent status 1) has received the child into his home; and 2) openly held the child out as his own.
By signing the birth certificate (obviously with mom's consent) and raising the child as his own, your brother satisfied both requirements.
Your brother also qualifies as a Presumed Parent of the child, under Family Code Section 7611(c)(1), having been named, with his consent, on the child's birth certificate.
Children are not possessions to hand off to friends. The fact that your brother's wife relinquished care of the parties' child to friends should help your brother to gain custody of his child. Your brother has proven to be more than capable of providing care for his daughter, and if his wife was unable or unwilling to care for their daughter, she should have left their daughter with your brother.
The UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act) makes the state where the child has resided for the last six months the child's "home state", so your brother should promptly retain an experienced Family Law Attorney to file a Divorce case and seek custody of his child, before he risks his wife qualifying to seek custody in another state.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
Sunday, March 20, 2011
HOW IS TRANSMUTED OR COMMINGLED SEPARATE PROPERTY DIVIDED ON DIVORCE?
The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: What will the divorce asset division be under the following fact scenario?
My uncle bought a house 20 years before marriage & is still paying for it. My uncle and aunt's names are both on the title. My uncle also has accumulated savings before the marriage and it's sitting in a joint account he opened with my aunt. Can my aunt claim 50% of the fair market value of the house and 50% of the savings in the joint account? Legally, can my aunt claim any share of the equity/asset that are gained by my uncle before they got married. If yes, how are those pre-marriage equity/asset divided? Also, my aunt can legally claim 50% of the equity/asset gained during their marriage, is that correct?
ANSWER: Your question reads like a bar question.
When your uncle transferred the house to joint names, he converted the house to community property, subject to his Family Code Section 2640 right to reimbursement of the equity in the house as of the date of his transfer. That will require an appraiser's valuation of the house at that date. Any equity the house gained after that date would be community property, divisible 50/50. Your uncle would be entitled to the above-noted reimbursement, and your aunt would be entitled to 50% of the equity in the house remaining after that reimbursement.
If your uncle put his premarital savings into a joint account with his wife, he commingled his separate property with community property - the earnings of either party after marriage that was put into that account. If nothing has been taken out of that account, he'd be entitled under Family Code Section 2640 to reimbursement of his traceable separate property put into that account. If monies were put into and taken out of that account, he'll need to hire a forensic accountant to review the account transactions and interview him, to render an opinion as to the separate property that remains in that account. Your aunt would be entitled to 50% of the community property portion of that account, but none of your uncle's separate property portion of that account.
Your aunt's interest in property or funds owned by your uncle before the marriage is based upon whether it was converted to community property (in which case your uncle would be entitled to reimbursement of traceable separate property converted to community property), whether it was commingled with community property, or whether your uncle or aunt spent money, time and talent during the marriage improving and/or increasing the value of the property or funds.
To the extent that your uncle can trace or prove the value of his separate property prior to marriage, your aunt should not be entitled to a share of that value.
Unless there is a valid and enforceable prenuptial agreement between your uncle and aunt, the earnings and accumulations of both parties during the marriage are community property, divisible 50/50.
How your aunt's community interest can be divided or paid off depends upon whether there is sufficient community property to divide in kind or whether your uncle has sufficient community and separate property to provide her community property portion to her in property or other community assets, or whether your uncle can qualify to borrow funds sufficient to pay her community share with borrowed funds.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
QUESTION: What will the divorce asset division be under the following fact scenario?
My uncle bought a house 20 years before marriage & is still paying for it. My uncle and aunt's names are both on the title. My uncle also has accumulated savings before the marriage and it's sitting in a joint account he opened with my aunt. Can my aunt claim 50% of the fair market value of the house and 50% of the savings in the joint account? Legally, can my aunt claim any share of the equity/asset that are gained by my uncle before they got married. If yes, how are those pre-marriage equity/asset divided? Also, my aunt can legally claim 50% of the equity/asset gained during their marriage, is that correct?
ANSWER: Your question reads like a bar question.
When your uncle transferred the house to joint names, he converted the house to community property, subject to his Family Code Section 2640 right to reimbursement of the equity in the house as of the date of his transfer. That will require an appraiser's valuation of the house at that date. Any equity the house gained after that date would be community property, divisible 50/50. Your uncle would be entitled to the above-noted reimbursement, and your aunt would be entitled to 50% of the equity in the house remaining after that reimbursement.
If your uncle put his premarital savings into a joint account with his wife, he commingled his separate property with community property - the earnings of either party after marriage that was put into that account. If nothing has been taken out of that account, he'd be entitled under Family Code Section 2640 to reimbursement of his traceable separate property put into that account. If monies were put into and taken out of that account, he'll need to hire a forensic accountant to review the account transactions and interview him, to render an opinion as to the separate property that remains in that account. Your aunt would be entitled to 50% of the community property portion of that account, but none of your uncle's separate property portion of that account.
Your aunt's interest in property or funds owned by your uncle before the marriage is based upon whether it was converted to community property (in which case your uncle would be entitled to reimbursement of traceable separate property converted to community property), whether it was commingled with community property, or whether your uncle or aunt spent money, time and talent during the marriage improving and/or increasing the value of the property or funds.
To the extent that your uncle can trace or prove the value of his separate property prior to marriage, your aunt should not be entitled to a share of that value.
Unless there is a valid and enforceable prenuptial agreement between your uncle and aunt, the earnings and accumulations of both parties during the marriage are community property, divisible 50/50.
How your aunt's community interest can be divided or paid off depends upon whether there is sufficient community property to divide in kind or whether your uncle has sufficient community and separate property to provide her community property portion to her in property or other community assets, or whether your uncle can qualify to borrow funds sufficient to pay her community share with borrowed funds.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
Saturday, March 19, 2011
IS MY INCOME EXTRAORDINARILY HIGH INCOME FOR PURPOSES OF CHILD SUPPORT?
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: How much is "extraordinarily high income" in California for purposes of child support? I am divorced and share custody of my 4 children 50% of the time with my ex-wife. She earns about $250k per year and I earn about $600k. Using the California guideline amount leads to a very large payment from me to her, even though our children's needs are already more than being met. Are the courts likely to find that my income is high enough such that per Family Code, Section 4057 (b) the amounts required under guideline could be reduced?
ANSWER: Your income is significant, so it is possible that your court could find that your income is an extraordinarily high income for child support purposes, but you or your attorney would have to adduce evidence to persuade the court that guideline support would exceed the needs of the children. In preparation for a hearing to modify child support, discovery should be performed to obtain admissible evidence of the historical expenditures made for each child's support both prior to and subsequent to separation.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
QUESTION: How much is "extraordinarily high income" in California for purposes of child support? I am divorced and share custody of my 4 children 50% of the time with my ex-wife. She earns about $250k per year and I earn about $600k. Using the California guideline amount leads to a very large payment from me to her, even though our children's needs are already more than being met. Are the courts likely to find that my income is high enough such that per Family Code, Section 4057 (b) the amounts required under guideline could be reduced?
ANSWER: Your income is significant, so it is possible that your court could find that your income is an extraordinarily high income for child support purposes, but you or your attorney would have to adduce evidence to persuade the court that guideline support would exceed the needs of the children. In preparation for a hearing to modify child support, discovery should be performed to obtain admissible evidence of the historical expenditures made for each child's support both prior to and subsequent to separation.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
Friday, March 18, 2011
AM I ENTITLED TO ALIMONY AND MEDICAL INSURANCE AFTER MY DIVORCE?
The following is a question which the inquirer agreed may be publicly revealed, and my answer:
QUESTION: I am entitled to alimony and medical insurance after my divorce? I have been married nine years and we are splitting, I would like to know if I am entitled to both alimony and medical insurance or is it one or the other. He has worked the entire marriage, I have not.
ANSWER: You are entitled to Spousal Support (alimony), based on those facts. You should retain an experienced Family Law Attorney to represent you, to seek orders pending trial or resolution of your case for Temporary Spousal Support (in an amount per your county's Spousal Support Guidelines based on your husband's gross monthly income) and Attorney's Fees, and to seek a Permanent Spousal Support order in the ultimate divorce judgment based on Family Code Section 4320 factors. If your medical insurance is provided through your husband's employment, that medical insurance is only for family members, and will end when your divorce has been granted. You would qualify to purchase COBRA coverage, for a limited period of time after the divorce, from the carrier who provided health insurance through your husband's employment. Your husband won't be required to provide health insurance to you after your divorce.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
QUESTION: I am entitled to alimony and medical insurance after my divorce? I have been married nine years and we are splitting, I would like to know if I am entitled to both alimony and medical insurance or is it one or the other. He has worked the entire marriage, I have not.
ANSWER: You are entitled to Spousal Support (alimony), based on those facts. You should retain an experienced Family Law Attorney to represent you, to seek orders pending trial or resolution of your case for Temporary Spousal Support (in an amount per your county's Spousal Support Guidelines based on your husband's gross monthly income) and Attorney's Fees, and to seek a Permanent Spousal Support order in the ultimate divorce judgment based on Family Code Section 4320 factors. If your medical insurance is provided through your husband's employment, that medical insurance is only for family members, and will end when your divorce has been granted. You would qualify to purchase COBRA coverage, for a limited period of time after the divorce, from the carrier who provided health insurance through your husband's employment. Your husband won't be required to provide health insurance to you after your divorce.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
Thursday, March 17, 2011
CAN I ANNUL A MARRIAGE IF MY HUSBAND MARRIED ME ONLY FOR IMMIGRATION PURPOSES?
The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: Can I annul a marriage if my husband married me to get proper immigration status in California? Are there any grounds to turn my divorce into an annulment? I found out the illegal immigrant I married used me to get his work permit. I made this discovery about three weeks into my marriage. I filed for a divorce the moment I discovered this. I have not seen him since, as he disappeared after immigration denied his applications.
ANSWER: It is certainly possible, but you would be safest if you filed a case for annulment AND for a dissolution of marriage in the alternative, so that if the judge denies the annulment, you can just do a dissolution of marriage prove-up at the same hearing, instead of having to start over from scratch with a separate divorce case.
If your petition sought only divorce, and not annulment, you would have to amend your petition to add annulment to the relief requested, and to have the amended petition served on your husband.
If you already had your husband served with the divorce petition before he disappeared, and if he filed a Response to your petition, you would have to file (and serve) a Notice of Motion requesting court permission to allow you to amend your petition, with a copy of your proposed amended petition attached.
If your husband hadn't been served or hadn't filed a Response to your petition, you could merely amend your petition without the need for a Notice of Motion.
However, you would need to have your husband served with the amended petition, which under your circumstances, may prove difficult. If you get to that point and you and your investigator can't locate your husband, you and/or your attorney can seek an order of the Court to allow you to provide constructive notice to your husband of the amended petition via publication.
Granting an annulment is discretionary, and not guaranteed. The "fraud" must go to the heart of the relationship, and different judges may view your situation differently.
Your chances of getting an annulment would be best if you retain an experienced Family Law Attorney to represent you in your case.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
QUESTION: Can I annul a marriage if my husband married me to get proper immigration status in California? Are there any grounds to turn my divorce into an annulment? I found out the illegal immigrant I married used me to get his work permit. I made this discovery about three weeks into my marriage. I filed for a divorce the moment I discovered this. I have not seen him since, as he disappeared after immigration denied his applications.
ANSWER: It is certainly possible, but you would be safest if you filed a case for annulment AND for a dissolution of marriage in the alternative, so that if the judge denies the annulment, you can just do a dissolution of marriage prove-up at the same hearing, instead of having to start over from scratch with a separate divorce case.
If your petition sought only divorce, and not annulment, you would have to amend your petition to add annulment to the relief requested, and to have the amended petition served on your husband.
If you already had your husband served with the divorce petition before he disappeared, and if he filed a Response to your petition, you would have to file (and serve) a Notice of Motion requesting court permission to allow you to amend your petition, with a copy of your proposed amended petition attached.
If your husband hadn't been served or hadn't filed a Response to your petition, you could merely amend your petition without the need for a Notice of Motion.
However, you would need to have your husband served with the amended petition, which under your circumstances, may prove difficult. If you get to that point and you and your investigator can't locate your husband, you and/or your attorney can seek an order of the Court to allow you to provide constructive notice to your husband of the amended petition via publication.
Granting an annulment is discretionary, and not guaranteed. The "fraud" must go to the heart of the relationship, and different judges may view your situation differently.
Your chances of getting an annulment would be best if you retain an experienced Family Law Attorney to represent you in your case.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
Tuesday, March 15, 2011
WILL OUR DIVORCE COST LESS IF WE HAVE AGREED TO DIVORCE TERMS?
Here is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: If my wife and I have agreed to divorce terms, will our divorce cost us less? We live in California. My wife and I have been married less than 10 years. We do not have children, and have separate property. In addition, we have no joint bank accounts. Does this equate to a less expensive divorce? Also, is this a straight forward process?
ANSWER: What you propose may be less expensive, but may also be less fair.
Merely because a bank account is in one party's name doesn't make the funds in that account the separate property of that party.
Income earned by each party during the marriage is community property (unless a valid and enforceable Prenuptial Agreement states otherwise).
Merely because you don't have joint bank accounts doesn't mean that funds in your or your wife's bank accounts are separate property.
Separate property is property owned before the marriage or acquired by way of gift, inheritance or distribution from a 3rd party trust.
To the extent you or your wife had separate property, and kept separate property separate, i.e., did not commingle it with community property (such as earnings), it can be confirmed as separate property. If commingled, it becomes problematic, requiring tracing to determine whether the monies that remain in the account are separate property or community property based on what was used, when and for what, and if can't be adequately demonstrated that the funds that remain are separate property, those funds could be held to be community property.
Unfortunately, few divorces involve straightforward processes. Each of you is required to provide to the other a Preliminary Declaration of Disclosure and a Final Declaration of Disclosure, updating the information to ensure that when the case is resolved, each party has current updated information to enable the case to be resolved on the real facts. A divorce can be set aside (within certain time limits) if it can be demonstrated that a party defrauded the other or committed perjury in his or her Declaration of Disclosure.
You didn't address whether both parties earn substantially the same income. If they don't, one party may be entitled to receive Spoual Support (alimony) from the other.
The best way to resolve a case where the parties don't know or understand California law regarding Dissolution of Marriage is for each party to retain an experienced Family Law Attorney to advise and represent the party to seek and obtain a fair result in the case.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
QUESTION: If my wife and I have agreed to divorce terms, will our divorce cost us less? We live in California. My wife and I have been married less than 10 years. We do not have children, and have separate property. In addition, we have no joint bank accounts. Does this equate to a less expensive divorce? Also, is this a straight forward process?
ANSWER: What you propose may be less expensive, but may also be less fair.
Merely because a bank account is in one party's name doesn't make the funds in that account the separate property of that party.
Income earned by each party during the marriage is community property (unless a valid and enforceable Prenuptial Agreement states otherwise).
Merely because you don't have joint bank accounts doesn't mean that funds in your or your wife's bank accounts are separate property.
Separate property is property owned before the marriage or acquired by way of gift, inheritance or distribution from a 3rd party trust.
To the extent you or your wife had separate property, and kept separate property separate, i.e., did not commingle it with community property (such as earnings), it can be confirmed as separate property. If commingled, it becomes problematic, requiring tracing to determine whether the monies that remain in the account are separate property or community property based on what was used, when and for what, and if can't be adequately demonstrated that the funds that remain are separate property, those funds could be held to be community property.
Unfortunately, few divorces involve straightforward processes. Each of you is required to provide to the other a Preliminary Declaration of Disclosure and a Final Declaration of Disclosure, updating the information to ensure that when the case is resolved, each party has current updated information to enable the case to be resolved on the real facts. A divorce can be set aside (within certain time limits) if it can be demonstrated that a party defrauded the other or committed perjury in his or her Declaration of Disclosure.
You didn't address whether both parties earn substantially the same income. If they don't, one party may be entitled to receive Spoual Support (alimony) from the other.
The best way to resolve a case where the parties don't know or understand California law regarding Dissolution of Marriage is for each party to retain an experienced Family Law Attorney to advise and represent the party to seek and obtain a fair result in the case.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
Monday, March 14, 2011
DO WE QUALIFY FOR A SUMMARY DISSOLUTION?
The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: We have been married less than 5 years, have no children, owe less than $3,000 for debts during the marriage, have less than $30,000 worth of community property (both of us combined) during marriage, don't have separate property worth more than $38,000 (combined both of us), and we have a martial agreement agree that neither spouse will ever get spousal or domestic partner support. Can my wife or I qualify for a summary dissolution or do we have to go for a regular divorce? Does the court verify separate and community assets that we report in the forms after we exchange those forms?
ANSWER: Read the statutory requirements for a Summary Dissolution - see the Summary Dissolution Information Booklet, Judicial Council Form FL-810, and the Joint Petition for Summary Dissolution of Marriage, Judicial Council form FL-800. If both you and your wife qualify, you qualify. If either of you doesn't qualify, you don't qualify.
The Court does not investigate or verify the separate and community assets that you put in the forms, but if the other party doesn't agree with what you put in the forms [you didn't identify what forms you are referring to, but I assume that you are referring to the FL-800], the other party can contest what you put in the FL-800 by refusing to sign the FL-800 Joint Petition for Summary Dissolution of Marriage, in which case, you would have to file an ordinary Dissolution of Marriage case.
If the other party doesn't agree with your income set forth in your FL-150 Income and Expense Declaration, wouldn't be unlikely that the other party would be willing to sign the FL-800? Your "marital agreement" providing for no spousal support may or may not be enforceable, based on its contents, the disclosures made in connection with it, the circumstances and timing of its entry, whether your spouse consulted with counsel regarding the marital agreement prior to signing it, and whether or not it would be unconscionable to enforce that "marital agreement" based on circumstances at the time enforcement is sought.
If both parties sign the FL-800 and comply with its requirements, it is likely that the Court will grant the Summary Dissolution of Marriage.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices, an effective and aggressive Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
QUESTION: We have been married less than 5 years, have no children, owe less than $3,000 for debts during the marriage, have less than $30,000 worth of community property (both of us combined) during marriage, don't have separate property worth more than $38,000 (combined both of us), and we have a martial agreement agree that neither spouse will ever get spousal or domestic partner support. Can my wife or I qualify for a summary dissolution or do we have to go for a regular divorce? Does the court verify separate and community assets that we report in the forms after we exchange those forms?
ANSWER: Read the statutory requirements for a Summary Dissolution - see the Summary Dissolution Information Booklet, Judicial Council Form FL-810, and the Joint Petition for Summary Dissolution of Marriage, Judicial Council form FL-800. If both you and your wife qualify, you qualify. If either of you doesn't qualify, you don't qualify.
The Court does not investigate or verify the separate and community assets that you put in the forms, but if the other party doesn't agree with what you put in the forms [you didn't identify what forms you are referring to, but I assume that you are referring to the FL-800], the other party can contest what you put in the FL-800 by refusing to sign the FL-800 Joint Petition for Summary Dissolution of Marriage, in which case, you would have to file an ordinary Dissolution of Marriage case.
If the other party doesn't agree with your income set forth in your FL-150 Income and Expense Declaration, wouldn't be unlikely that the other party would be willing to sign the FL-800? Your "marital agreement" providing for no spousal support may or may not be enforceable, based on its contents, the disclosures made in connection with it, the circumstances and timing of its entry, whether your spouse consulted with counsel regarding the marital agreement prior to signing it, and whether or not it would be unconscionable to enforce that "marital agreement" based on circumstances at the time enforcement is sought.
If both parties sign the FL-800 and comply with its requirements, it is likely that the Court will grant the Summary Dissolution of Marriage.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices, an effective and aggressive Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
WHAT WILL HAPPEN TO MY HOUSE 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: What happen to my house in a divorce in CA? I bought the house before marriage. I pay mortgage, insurance and all home expenses. She does not own any real estate assets.
ANSWER: Assuming that your house has remained in your name, unless you paid the mortgage during your marriage with separate property (funds that you had before your marriage, or which you received by way of gift, inheritance or distribution of a 3rd party's trust), your wife would have a "Moore-Marsden" interest in the house if your payments of the mortgage during the marriage was made with community property.
The income of each party during the marriage (absent a valid Prenuptial Agreement providing otherwise) is community property.
The amount of the equity pay-down with community property is factored into the Moore-Marsden equation in determining the community share of your house, of which your wife is entitled to 1/2.
If you refinanced the house during the marriage, there is a significant risk under Marriage of Grinius that the community's share is greater if the lender relied on community income (which could be your income during the marriage) to repay the refinance loan.
If you transferred the house into joint names, the house would be community property, but you would be entitled to reimbursement of its proveable equity as of the date of the transfer.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices, an effective and aggressive Los Angeles Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
QUESTION: What happen to my house in a divorce in CA? I bought the house before marriage. I pay mortgage, insurance and all home expenses. She does not own any real estate assets.
ANSWER: Assuming that your house has remained in your name, unless you paid the mortgage during your marriage with separate property (funds that you had before your marriage, or which you received by way of gift, inheritance or distribution of a 3rd party's trust), your wife would have a "Moore-Marsden" interest in the house if your payments of the mortgage during the marriage was made with community property.
The income of each party during the marriage (absent a valid Prenuptial Agreement providing otherwise) is community property.
The amount of the equity pay-down with community property is factored into the Moore-Marsden equation in determining the community share of your house, of which your wife is entitled to 1/2.
If you refinanced the house during the marriage, there is a significant risk under Marriage of Grinius that the community's share is greater if the lender relied on community income (which could be your income during the marriage) to repay the refinance loan.
If you transferred the house into joint names, the house would be community property, but you would be entitled to reimbursement of its proveable equity as of the date of the transfer.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices, an effective and aggressive Los Angeles Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
Saturday, March 12, 2011
WHAT COULD HAPPEN IF I DON'T RESPOND TO A DIVORCE PETITION?
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 problems can happen if I do not respond to a divorce petition? I live in California. My wife and I have been married less than two years and recently separated. We have agreed on the division of our property. (cars and furniture) All paperwork has been signed transferring vehicles, and car loans etc. to each other as we agreed upon. I do not want a divorce but my wife will most likely file. If she does file and she asks for nothing else in the petition besides the divorce and change of name, do I have to respond? If I don't, I know she will be granted the divorce but could there be other legal ramifications I'm aware of? Will handling it this way cost either of us more money? Thank you.
ANSWER: It is not mandatory that you respond to the Petition, but you should read everything in the Petition, as soon as you are served, to see what your wife is asking for in her Petition for Dissolution of Marriage, to determine whether it would be wise for you to respond to the Petition.
If you don't understand (and agree with) the requests for relief that she made in her Petition (whether by checking a box, or in printed language in the body of the Petition), or if you have any questions about whether or how you should respond to the relief sought in the Petition, you should promptly have an in-person consultation with an experienced Family Law Attorney, to advise you of the consequences of a failure to respond to the Petition in view of the specific relief requested.
You have only 30 days to respond to the Petition (i.e., to file and have someone other than you serve your Form FL-120 Response, along with a Proof of Service), and if you fail to do so, your default will likely be sought and entered, resulting in your inability to contest anything your wife requests and your inability to participate in the divorce case.
Things that your wife could request in her Petition may be attorney's fees (if you don't respond, you could be ordered to pay some or all of her attorney's fees), spousal support, and/or property that you thought that you and she agreed that you could have, among other things.
If all your wife requests in her Petition is a Status Dissolution of your Marriage, and nothing else, it is unlikely that your failure to respond to the Petition would have negative consequences to you, but you would be safest to consult with an experienced Divorce Lawyer regarding the Petition long before your 30-day response time expires. Not responding would be the cheapest way for you, but the cheapest way might not be the best way.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
QUESTION: What problems can happen if I do not respond to a divorce petition? I live in California. My wife and I have been married less than two years and recently separated. We have agreed on the division of our property. (cars and furniture) All paperwork has been signed transferring vehicles, and car loans etc. to each other as we agreed upon. I do not want a divorce but my wife will most likely file. If she does file and she asks for nothing else in the petition besides the divorce and change of name, do I have to respond? If I don't, I know she will be granted the divorce but could there be other legal ramifications I'm aware of? Will handling it this way cost either of us more money? Thank you.
ANSWER: It is not mandatory that you respond to the Petition, but you should read everything in the Petition, as soon as you are served, to see what your wife is asking for in her Petition for Dissolution of Marriage, to determine whether it would be wise for you to respond to the Petition.
If you don't understand (and agree with) the requests for relief that she made in her Petition (whether by checking a box, or in printed language in the body of the Petition), or if you have any questions about whether or how you should respond to the relief sought in the Petition, you should promptly have an in-person consultation with an experienced Family Law Attorney, to advise you of the consequences of a failure to respond to the Petition in view of the specific relief requested.
You have only 30 days to respond to the Petition (i.e., to file and have someone other than you serve your Form FL-120 Response, along with a Proof of Service), and if you fail to do so, your default will likely be sought and entered, resulting in your inability to contest anything your wife requests and your inability to participate in the divorce case.
Things that your wife could request in her Petition may be attorney's fees (if you don't respond, you could be ordered to pay some or all of her attorney's fees), spousal support, and/or property that you thought that you and she agreed that you could have, among other things.
If all your wife requests in her Petition is a Status Dissolution of your Marriage, and nothing else, it is unlikely that your failure to respond to the Petition would have negative consequences to you, but you would be safest to consult with an experienced Divorce Lawyer regarding the Petition long before your 30-day response time expires. Not responding would be the cheapest way for you, but the cheapest way might not be the best way.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
Friday, March 11, 2011
CAN A NAME CHANGE AFFECT CHILD CUSTODY?
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: Can a name change affect child custody? If you change the last name of your child to your own, can the other parent still obtain custody and also does that affect child support in any way?
ANSWER: Changing a child's name is a legal process involving Court proceedings which require that you give notice to interested people, including your child's other parent, who can contest your request, and you aren't guaranteed a name change if the other parent contests the action.
Whatever the child's name is, or is changed to, does not affect the other parent's rights and responsibilities, or yours, or your child's rights, i.e., it does not affect custody rights, support rights, the right of your child to inherit, etc. A name change is simply a name change, nothing more.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
QUESTION: Can a name change affect child custody? If you change the last name of your child to your own, can the other parent still obtain custody and also does that affect child support in any way?
ANSWER: Changing a child's name is a legal process involving Court proceedings which require that you give notice to interested people, including your child's other parent, who can contest your request, and you aren't guaranteed a name change if the other parent contests the action.
Whatever the child's name is, or is changed to, does not affect the other parent's rights and responsibilities, or yours, or your child's rights, i.e., it does not affect custody rights, support rights, the right of your child to inherit, etc. A name change is simply a name change, nothing more.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
Thursday, March 10, 2011
WHAT RIGHTS DO I HAVE IN MY WIFE'S BUSINESS?
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 rights will I have in my wife's business if she divorces me? My wife has a business in her name but I gave her money to start the business. We also file taxes together. If my wife divorces me, what will my rights be in the business?
ANSWER: If the business was started during the marriage, it will likely be treated as a community business by the divorce court unless you entered into a separate property agreement with your wife whereby you and she agreed that the business is her separate property - but in that case, you may be entitled to reimbursement of your share of the community property investment into that business, or if the funds used to start the business were your separate property funds (i.e., funds that you had before the marriage or that you received by way of inheritance, trust distribution or gift), you may be entitled to reimbursement to the extent that you can trace those funds to a separate property source.
The business should be valued by an expert forensic accountant, to determine its cash flow (for support purposes), your community share in the business, and to trace community and/or separate property contributions made to the acquisition of that business in case the business is held to be her separate property.
Given the issues involved in your divorce and their compexity, you should retain an experienced Family Law Attorney to represent you in the divorce.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
QUESTION: What rights will I have in my wife's business if she divorces me? My wife has a business in her name but I gave her money to start the business. We also file taxes together. If my wife divorces me, what will my rights be in the business?
ANSWER: If the business was started during the marriage, it will likely be treated as a community business by the divorce court unless you entered into a separate property agreement with your wife whereby you and she agreed that the business is her separate property - but in that case, you may be entitled to reimbursement of your share of the community property investment into that business, or if the funds used to start the business were your separate property funds (i.e., funds that you had before the marriage or that you received by way of inheritance, trust distribution or gift), you may be entitled to reimbursement to the extent that you can trace those funds to a separate property source.
The business should be valued by an expert forensic accountant, to determine its cash flow (for support purposes), your community share in the business, and to trace community and/or separate property contributions made to the acquisition of that business in case the business is held to be her separate property.
Given the issues involved in your divorce and their compexity, you should retain an experienced Family Law Attorney to represent you in the divorce.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
Wednesday, March 9, 2011
WHAT IS A "NOTICE OF NON-STIPULATION"?
The following is a Family Law Question which the inquirer agreed may be publicly disclosed, and my answer to the question:
QUESTION: What is a notice of non-stipulation? What do I need to do regarding this for child custody papers I was served?
ANSWER: The terminology: "Notice of Non-Stipulation" likely relates to a party's refusal to stipulate to a Commissioner hearing his or her family law case.
People are entitled to have an elected Judge hear their cases.
Commissioners are appointed by the presiding judge, to hear cases, but in order for a Commissioner hear a case, both sides must sign a stipulation for the Commissioner (as opposed to a Judge) hear their case.
If the parties sign the stipulation, the Commissioner sits as the Judge Pro Tempore in their case for as long as the Commissioner sits as the judicial officer in that courtroom.
When a case comes before a Commissioner for the first hearing before that Commissioner in that case, the parties and counsel are offered a Stipulation to have that Commissioner preside over their case for that day and all subsequent hearings.
If either party refuses to sign the Stipulation [frequently referred to as a "non-stip"], the case is assigned to another judicial officer (who could be a Judge, or to another Commissioner - who they would have to stipulate to, or refuse to stipulate to).
No stipulation is required to have a Judge hear the case. If a case is assigned or reassigned to a Judge, either party has 10 days from the assignment to file an Affidavit of Prejudice [known as a "170.6"] in that Judge's courtroom, a peremptory challenge to that judge. Each party is allowed only one peremptory challenge under Code of Civil Procedure Section 170.6 in a case.
Whereas the non-stip is ordinarily done at the first hearing before the Commissioner, I suspect that somebody may have filed a document entitled: "Notice of Non-Stipulation" in advance of the first hearing before the Commissioner, to give advance notice to the court and the adversary that he/she was going to non-stip the Commissioner, to let the Commissioner know that he/she needn't read the filed papers in preparation for the scheduled hearing, and possibly to accelerate the reassignment of the case to the next judicial officer.
You needn't do anything regarding the Notice of Non-Stipulation, other than to be prepared for a non-stip. Nevertheless, be prepared for the matter to be heard on the day of the hearing, whether by that Commissioner or another judicial officer, in case it doesn't get continued. If the other party non-stips the Commissioner, it will be reassigned, and I have provided, in this blog, the options to you to consider if that occurs.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
QUESTION: What is a notice of non-stipulation? What do I need to do regarding this for child custody papers I was served?
ANSWER: The terminology: "Notice of Non-Stipulation" likely relates to a party's refusal to stipulate to a Commissioner hearing his or her family law case.
People are entitled to have an elected Judge hear their cases.
Commissioners are appointed by the presiding judge, to hear cases, but in order for a Commissioner hear a case, both sides must sign a stipulation for the Commissioner (as opposed to a Judge) hear their case.
If the parties sign the stipulation, the Commissioner sits as the Judge Pro Tempore in their case for as long as the Commissioner sits as the judicial officer in that courtroom.
When a case comes before a Commissioner for the first hearing before that Commissioner in that case, the parties and counsel are offered a Stipulation to have that Commissioner preside over their case for that day and all subsequent hearings.
If either party refuses to sign the Stipulation [frequently referred to as a "non-stip"], the case is assigned to another judicial officer (who could be a Judge, or to another Commissioner - who they would have to stipulate to, or refuse to stipulate to).
No stipulation is required to have a Judge hear the case. If a case is assigned or reassigned to a Judge, either party has 10 days from the assignment to file an Affidavit of Prejudice [known as a "170.6"] in that Judge's courtroom, a peremptory challenge to that judge. Each party is allowed only one peremptory challenge under Code of Civil Procedure Section 170.6 in a case.
Whereas the non-stip is ordinarily done at the first hearing before the Commissioner, I suspect that somebody may have filed a document entitled: "Notice of Non-Stipulation" in advance of the first hearing before the Commissioner, to give advance notice to the court and the adversary that he/she was going to non-stip the Commissioner, to let the Commissioner know that he/she needn't read the filed papers in preparation for the scheduled hearing, and possibly to accelerate the reassignment of the case to the next judicial officer.
You needn't do anything regarding the Notice of Non-Stipulation, other than to be prepared for a non-stip. Nevertheless, be prepared for the matter to be heard on the day of the hearing, whether by that Commissioner or another judicial officer, in case it doesn't get continued. If the other party non-stips the Commissioner, it will be reassigned, and I have provided, in this blog, the options to you to consider if that occurs.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
WHO IS LIABLE FOR DEBT INCURRED JUST BEFORE 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: Who is liable for new debt during our divorce in California? I am in the process of divorcing my husband, and on top of the other problems he has caused, I have just found out that he has racked up about $80,000 in credit card and tax debt. I had no idea. From what I can tell, this is all in his name. However, will I have to take part of the debt if I divorce him?
ANSWER: Debt incurred by either party prior to separation is ordinarily classified as community debt, for which both parties are liable, unless you can prove that the debt was incurred in anticipation of separation, or was incurred in violation of your spouse's fiduciary duty to the community, such as debts to pay a girlfriend's rent, etc.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family 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, www.conviser.net
QUESTION: Who is liable for new debt during our divorce in California? I am in the process of divorcing my husband, and on top of the other problems he has caused, I have just found out that he has racked up about $80,000 in credit card and tax debt. I had no idea. From what I can tell, this is all in his name. However, will I have to take part of the debt if I divorce him?
ANSWER: Debt incurred by either party prior to separation is ordinarily classified as community debt, for which both parties are liable, unless you can prove that the debt was incurred in anticipation of separation, or was incurred in violation of your spouse's fiduciary duty to the community, such as debts to pay a girlfriend's rent, etc.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family 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, www.conviser.net
Tuesday, March 8, 2011
HOW CAN I FILE AN UNCONTESTED DIVORCE IN CALIFORNIA?
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 file an uncontested divorce in California?
ANSWER: You file a divorce in California by filing a Petition (FL-100), a Summons (FL-110), if there are minor children, a Declaration under UCCJEA (FL-105), and whatever form your particular county requires for assignment to the correct court district (in Los Angeles, that form is a Family Law Case Cover Sheet, FAM-020).
It is your spouse's (the Respondent's) choice as to whether or not your divorce is uncontested, not your choice.
Your spouse should be served (by somebody over 18 years old, other than you) with a conformed copy of the filed documents (along with a Blank FL-120 response, and if there are children, a blank FL-105), and the server should complete, sign and file a Proof of Service.
If your spouse doesn't file the required Response within 30 days of service, you can file a request to enter your spouse's default, and once entered by the Court, you can proceed in the case by way of default to judgment.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
QUESTION: How do I file an uncontested divorce in California?
ANSWER: You file a divorce in California by filing a Petition (FL-100), a Summons (FL-110), if there are minor children, a Declaration under UCCJEA (FL-105), and whatever form your particular county requires for assignment to the correct court district (in Los Angeles, that form is a Family Law Case Cover Sheet, FAM-020).
It is your spouse's (the Respondent's) choice as to whether or not your divorce is uncontested, not your choice.
Your spouse should be served (by somebody over 18 years old, other than you) with a conformed copy of the filed documents (along with a Blank FL-120 response, and if there are children, a blank FL-105), and the server should complete, sign and file a Proof of Service.
If your spouse doesn't file the required Response within 30 days of service, you can file a request to enter your spouse's default, and once entered by the Court, you can proceed in the case by way of default to judgment.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
Monday, March 7, 2011
CAN MY HUSBAND'S EX-WIFE GET MORE SUPPORT BASED ON MY INCOME?
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:
Hello Mr. Conviser,
I read your blog regularly, it has been extremely helpful during my boyfriend's stressful divorce. It's been almost 16 months now since the divorce was filed and both parties served and there are still property and custody issues being argued. It appears that this may drag on for some time. My question revolves around my potential future with this man. All of the parties reside in California and the matter is being heard in California.
If my boyfriend and I were to get married after his divorce is final, can his ex-wife petition the court to have the child and/or spousal support order(s) changed based on my added income?
Thank you for your time.
ANSWER: Thank you for your e-mail. I'm pleased that you are following my blogs.
In response to your question, new-mate income of a subsequent wife or nonmarital partner is not considered in determining or modifying child support, with very limited exceptions. Family Code Section 4057.5 is the statute which addresses the issue.
An exception may be made only in an extraordinary case where excluding that income would lead to extreme and servere hardship to any child subject to the child support award - but in that case, the court would need to consider whether including that income would lead to extreme and severe hardship to any child supported by the obligor or the obligor's new mate.
For purposes of Section 4057.5, subsection (b) states that an extraordinary case may include a parent who voluntarily or intentionally quits work or reduces income, or who intentionally remains unemployed or underemployed and relies on a subsequent spouse's income.
Unless 1) your fiance is planning to quit his job or to be and remain unemployed and rely solely on your income for your household's costs of living, and 2) that by his doing so, it would cause extreme and severe hardship to the child/children, it is unlikely that the exception to Section 4057 would be available to the child's mother.
REPLY TO ANSWER: Hello Mr. Conviser,
Thank you VERY much for your reply. It is much appreciated.
Good news is that my fiance is NOT planning to change his employment in any negative way.
Please feel free to use my question in your blog.
This blog has been brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, welcoming people to participate in this educational forum by asking him questions about divorce or family law www.conviser.net
QUESTION:
Hello Mr. Conviser,
I read your blog regularly, it has been extremely helpful during my boyfriend's stressful divorce. It's been almost 16 months now since the divorce was filed and both parties served and there are still property and custody issues being argued. It appears that this may drag on for some time. My question revolves around my potential future with this man. All of the parties reside in California and the matter is being heard in California.
If my boyfriend and I were to get married after his divorce is final, can his ex-wife petition the court to have the child and/or spousal support order(s) changed based on my added income?
Thank you for your time.
ANSWER: Thank you for your e-mail. I'm pleased that you are following my blogs.
In response to your question, new-mate income of a subsequent wife or nonmarital partner is not considered in determining or modifying child support, with very limited exceptions. Family Code Section 4057.5 is the statute which addresses the issue.
An exception may be made only in an extraordinary case where excluding that income would lead to extreme and servere hardship to any child subject to the child support award - but in that case, the court would need to consider whether including that income would lead to extreme and severe hardship to any child supported by the obligor or the obligor's new mate.
For purposes of Section 4057.5, subsection (b) states that an extraordinary case may include a parent who voluntarily or intentionally quits work or reduces income, or who intentionally remains unemployed or underemployed and relies on a subsequent spouse's income.
Unless 1) your fiance is planning to quit his job or to be and remain unemployed and rely solely on your income for your household's costs of living, and 2) that by his doing so, it would cause extreme and severe hardship to the child/children, it is unlikely that the exception to Section 4057 would be available to the child's mother.
REPLY TO ANSWER: Hello Mr. Conviser,
Thank you VERY much for your reply. It is much appreciated.
Good news is that my fiance is NOT planning to change his employment in any negative way.
Please feel free to use my question in your blog.
This blog has been brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, welcoming people to participate in this educational forum by asking him questions about divorce or family law www.conviser.net
Sunday, March 6, 2011
AM I DIVORCED YET?
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 determine if I am still legally married in California?
My lawyer states that I am now single even though we have not signed the MSA. He says that since the judgment was read into the record at the MSC and the final DODs have been exchanged, that date will show up on the judgment.
Both parties responded at the hearing that we understand and accept the agreement.
At this point I am very confused since the final MSA is still not 100% complete, so how can we be divorced? There is no FL-180 Judgment and FLl-190 Notice of Entry of Judgment, and there was no required signing. Please give me your advice. Thank you.
ANSWER: Go to the court clerk's office and ask to inspect the file in your case.
If a Judgment has been signed by the Judge and is in the file, look at the language in the Judgment - which should tell you if and/or when your marital status was terminated, if that has been done.
If the file isn't available in the clerk's office, it may be in the Judge's courtroom awaiting his signature, or in processing, pending return to the clerk's office for filing and entry of Judgment.
If the Judgment has not been signed or filed, it may have been rejected by the Court for deficiencies to be corrected and re-submitted, or you may have misunderstood your lawyer, or he may have misunderstood your question.
If the terms of the Judgment were read into the record and one party testified to the effect that irreconcilable differences have caused an irremediable breakdown of the marriage, no MSA would be needed for the Judge to declare that your marriage is Dissolved (i.e., grant a Dissolution of your Marriage) and to accept the terms of the Judgment that were read into the record pursuant to both parties' statements on the record that they understand and accept those terms. In that event, the written MSA that you indicate hadn't been completed would not be needed.
However, even if the Judge pronounced that your marriage is dissolved, it won't actually be dissolved until the Judge signs the Judgment and it gets entered into the record.
Somebody (likely an attorney for a party) would have to prepare and submit that Judgment and a Notice of Entry of Judgment to the Court, for those things to be accomplished.
In order to ensure that a Judgment accurately sets forth the terms of an oral (or written) settlement agreement, the Judgment should contain the signatures of the parties reflecting that they stipulate or agree to the terms set forth in the Judgment.
It is possible, if the terms of the settlement (Judgment) were read into the record at the MSA and reported by the Court Reporter, that the recitation into the record might suffice for the Court to sign the Judgment without the signatures of the parties, but in my experience, it would be unlikely for the Court to dispense with the requirement for the signatures of the parties, even in that event.
Ask your attorney for a copy of the Judgment and the Notice of Entry of Judgment, even if the Judgment hasn't yet been entered, and ask your attorney to provide you a conformed copy of the Judgment and Notice of Entry of Judgment when they are returned from the Court.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
QUESTION: How can I determine if I am still legally married in California?
My lawyer states that I am now single even though we have not signed the MSA. He says that since the judgment was read into the record at the MSC and the final DODs have been exchanged, that date will show up on the judgment.
Both parties responded at the hearing that we understand and accept the agreement.
At this point I am very confused since the final MSA is still not 100% complete, so how can we be divorced? There is no FL-180 Judgment and FLl-190 Notice of Entry of Judgment, and there was no required signing. Please give me your advice. Thank you.
ANSWER: Go to the court clerk's office and ask to inspect the file in your case.
If a Judgment has been signed by the Judge and is in the file, look at the language in the Judgment - which should tell you if and/or when your marital status was terminated, if that has been done.
If the file isn't available in the clerk's office, it may be in the Judge's courtroom awaiting his signature, or in processing, pending return to the clerk's office for filing and entry of Judgment.
If the Judgment has not been signed or filed, it may have been rejected by the Court for deficiencies to be corrected and re-submitted, or you may have misunderstood your lawyer, or he may have misunderstood your question.
If the terms of the Judgment were read into the record and one party testified to the effect that irreconcilable differences have caused an irremediable breakdown of the marriage, no MSA would be needed for the Judge to declare that your marriage is Dissolved (i.e., grant a Dissolution of your Marriage) and to accept the terms of the Judgment that were read into the record pursuant to both parties' statements on the record that they understand and accept those terms. In that event, the written MSA that you indicate hadn't been completed would not be needed.
However, even if the Judge pronounced that your marriage is dissolved, it won't actually be dissolved until the Judge signs the Judgment and it gets entered into the record.
Somebody (likely an attorney for a party) would have to prepare and submit that Judgment and a Notice of Entry of Judgment to the Court, for those things to be accomplished.
In order to ensure that a Judgment accurately sets forth the terms of an oral (or written) settlement agreement, the Judgment should contain the signatures of the parties reflecting that they stipulate or agree to the terms set forth in the Judgment.
It is possible, if the terms of the settlement (Judgment) were read into the record at the MSA and reported by the Court Reporter, that the recitation into the record might suffice for the Court to sign the Judgment without the signatures of the parties, but in my experience, it would be unlikely for the Court to dispense with the requirement for the signatures of the parties, even in that event.
Ask your attorney for a copy of the Judgment and the Notice of Entry of Judgment, even if the Judgment hasn't yet been entered, and ask your attorney to provide you a conformed copy of the Judgment and Notice of Entry of Judgment when they are returned from the Court.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
Saturday, March 5, 2011
HOW LONG DOES IT TAKE TO GET A DIVORCE?
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: How long does it take to get a divorce in California, and do you have to get a lawyer?
ANSWER: The soonest you could possibly be granted a divorce in California would be six (6) months from the date that the Petition and Summons are served on the Respondent.
However, it is unlikely that the divorce process would be completed that quickly unless the parties agree as to the resolution of all issues, exchange their requisite Declarations of Disclosure, and cooperate in expediting the resolution process, but be aware that it takes some time, varying from Court to Court, for the Court to process even a Stipulated Judgment.
If there are disputed issues, it usually takes quite a bit longer to resolve the case.
If you are in a rush to dissolve your marriage, you could seek a bifurcated judgment on marital status, reserving the balance of issues for further trial, but there are "dues" to pay for bifurcating marital status which may make doing so unpalatable. See my earlier blogs regarding bifurcation of marital status.
You don't have to get a lawyer in a divorce case, but you would be far better off if you retain an experienced Family Law Attorney to handle the case, advise you of your options and their consequences, assist you in making informed decisions, resolve issues through negotiation or litigation, and move the case along to its conclusion.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
QUESTION: How long does it take to get a divorce in California, and do you have to get a lawyer?
ANSWER: The soonest you could possibly be granted a divorce in California would be six (6) months from the date that the Petition and Summons are served on the Respondent.
However, it is unlikely that the divorce process would be completed that quickly unless the parties agree as to the resolution of all issues, exchange their requisite Declarations of Disclosure, and cooperate in expediting the resolution process, but be aware that it takes some time, varying from Court to Court, for the Court to process even a Stipulated Judgment.
If there are disputed issues, it usually takes quite a bit longer to resolve the case.
If you are in a rush to dissolve your marriage, you could seek a bifurcated judgment on marital status, reserving the balance of issues for further trial, but there are "dues" to pay for bifurcating marital status which may make doing so unpalatable. See my earlier blogs regarding bifurcation of marital status.
You don't have to get a lawyer in a divorce case, but you would be far better off if you retain an experienced Family Law Attorney to handle the case, advise you of your options and their consequences, assist you in making informed decisions, resolve issues through negotiation or litigation, and move the case along to its conclusion.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
Friday, March 4, 2011
IS A MARITAL SETTLEMENT AGREEMENT BINDING AFTER RECONCILIATION AND DISMISSAL?
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 a marital settlement agreement [MSA] still binding after reconciliation and dismissal? Is a Marital Settlement Agreement still binding if the parties reconciled and then dismissed the entire case with the court?
ANSWER: No - the dismissal of the underlying case ended the enforceability of the Marital Settement Agreement. Whereas Code of Civil Procedure Section 664.6 provides in relevant part: If parties to pending litigaiton stipulate, in a writing signed by the parties... for settlement of the case, the court, upon motion, may enter judgment pursuant to the terms of the settlement. In your situation, the case no longer exists, so judgment cannot be entered in that case, and since the old Marital Settlement Agreement was not entered during a subsequent pending case, it is not enforceable in that subsequent case.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Law and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
QUESTION: Is a marital settlement agreement [MSA] still binding after reconciliation and dismissal? Is a Marital Settlement Agreement still binding if the parties reconciled and then dismissed the entire case with the court?
ANSWER: No - the dismissal of the underlying case ended the enforceability of the Marital Settement Agreement. Whereas Code of Civil Procedure Section 664.6 provides in relevant part: If parties to pending litigaiton stipulate, in a writing signed by the parties... for settlement of the case, the court, upon motion, may enter judgment pursuant to the terms of the settlement. In your situation, the case no longer exists, so judgment cannot be entered in that case, and since the old Marital Settlement Agreement was not entered during a subsequent pending case, it is not enforceable in that subsequent case.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Los Angeles Family Law and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
Thursday, March 3, 2011
DO I HAVE TO PAY FOR MY 18 YEAR OLD'S COURT-ORDERED COUNSELING?
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: Am I responsible to pay for my 18 year old's court-ordered psych counseling?
ANSWER: Your question doesn't provide sufficient details to enable me to provide a more comprehensive response than the following:
Your 18 year old is an adult, but for Child Support purposes, if you have a Child Support obligation it would continue beyond age 18 if your child is a full time high school student and not self-supporting, until the first to occur of your child completing the 12th grade or reaching age 19. See Family Code Section 3901(a).
If you agreed to orders obligating you to support your child beyond the normal child support termination date, you would be bound by those orders. See Family Code Section 3901(b).
Family Code Section 3901(a) provides that the father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated and without sufficient means.
If your child is incapacitated and without sufficient means, it is possible that the order for you to pay for your child's pysch counseling was intended to continue beyond the duration of your child support obligation.
If your child is not incapacitated, and the order for you to pay for your child's psych counseling was made before your child was 18 years old, it is possible that the order was intended to be in force only throughout the period of your court-ordered child support obligation. However, you shouldn't bank on that possibility, because if the order was intended otherwise, you could face contempt proceedings as well as potential liability for harm suffered by your child as a result of lack of counseling.
If there is no termination date on the order requiring you to pay for your child's psych counseling, and your court-ordered child support obligation has ended or is about to end, if you wish to terminate your obligation to pay for your child's psych counseling, it would be safest for you to file an Order to Show Cause or Notice of Motion seeking an order to terminate your obligation to pay for your child's psych counseling, containing a declaration which provides competent facts to justify termination of that obligation.
However, you might consider your child's mental or emotional condition, your child's need for counseling, your relationship with your child, and your desire and ability to asist your child, in determining whether you want to seek an order whose ultimate effect could be the termination of your child's psych ccounseling. Even if you received such an order, nothing would prevent you from voluntarily paying for your child's psych counseling, but your seeking such an order could create a rift in your relationship with your child.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, a creative, aggressive and effective Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
QUESTION: Am I responsible to pay for my 18 year old's court-ordered psych counseling?
ANSWER: Your question doesn't provide sufficient details to enable me to provide a more comprehensive response than the following:
Your 18 year old is an adult, but for Child Support purposes, if you have a Child Support obligation it would continue beyond age 18 if your child is a full time high school student and not self-supporting, until the first to occur of your child completing the 12th grade or reaching age 19. See Family Code Section 3901(a).
If you agreed to orders obligating you to support your child beyond the normal child support termination date, you would be bound by those orders. See Family Code Section 3901(b).
Family Code Section 3901(a) provides that the father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated and without sufficient means.
If your child is incapacitated and without sufficient means, it is possible that the order for you to pay for your child's pysch counseling was intended to continue beyond the duration of your child support obligation.
If your child is not incapacitated, and the order for you to pay for your child's psych counseling was made before your child was 18 years old, it is possible that the order was intended to be in force only throughout the period of your court-ordered child support obligation. However, you shouldn't bank on that possibility, because if the order was intended otherwise, you could face contempt proceedings as well as potential liability for harm suffered by your child as a result of lack of counseling.
If there is no termination date on the order requiring you to pay for your child's psych counseling, and your court-ordered child support obligation has ended or is about to end, if you wish to terminate your obligation to pay for your child's psych counseling, it would be safest for you to file an Order to Show Cause or Notice of Motion seeking an order to terminate your obligation to pay for your child's psych counseling, containing a declaration which provides competent facts to justify termination of that obligation.
However, you might consider your child's mental or emotional condition, your child's need for counseling, your relationship with your child, and your desire and ability to asist your child, in determining whether you want to seek an order whose ultimate effect could be the termination of your child's psych ccounseling. Even if you received such an order, nothing would prevent you from voluntarily paying for your child's psych counseling, but your seeking such an order could create a rift in your relationship with your child.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, a creative, aggressive and effective Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, www.conviser.net
Wednesday, March 2, 2011
HOW CAN I PROTECT MYSELF AGAINST AN ABUSIVE 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: How do I protect myself financially in my divorce? My wife and I have been married less than 2 years and separated after 6 months due to her violent temper and abuse. We sold our house and have been in marriage counseling for over a year. Things were going well and we decided to try again. We signed a year lease on an apartment last month($1200.00 a month), traded my car in a month ago ($4,000.00 trade in credit) and we purchased a new car ($400.00 monthly payments). After only one month, violent temper and abusive behavior began and I had no choice but to leave. I believe this separation will lead to divorce as she refuses to get help, separate from marriage counseling, for her abusive behavior. At this time, she has the new car (2010 Acura) and the apartment. I am driving her old car(2006 Kia) that is in her and her father’s name. She has said I need to pay my half of the rent for the next 11 months remaining on the lease and at that time she will refinance the new car into her name only and sign the other car over to me.
Besides the fact that I do not trust her, I have no way to afford this. I work full time and bring home $2,000 a month and with her new real estate position, she now brings home $4,000 a month. I cannot afford to pay her $600 a month, plus find a place to live and pay those expenses. I also have gas, insurance and student loans to pay. My thought is we need to get out of the apartment lease and come to a compromise on the new car and the older car. She seems to be holding all the cards and says that she will report the car I am driving as stolen if I don't agree. I have no key to the new car and she has all of the contract information for everything. She is 23 I am 27, we have no children and the only financial obligations are the new car and the apartment lease. The only other property is the furniture and belongings in the apartment that we acquired during the marriage. I have no idea what to do next, or how to protect myself financially. If I have no car I have no job. Thank you.
ANSWER: You could report your wife's extortion effort to the police, to avoid the consequences of your wife's threat to report her car stolen.
There could be significant consequences that result from doing so, but there could be significant consequences flowing from a report by your wife to the police claiming that her car was stolen.
You could file a Domestic Violence Restraining Order case, based on your wife's violence, and include her threat in your declaration.
Whereas you could ultimately be held liable for rent on the apartment if your wife fails to pay the rent, and whereas you could ultimately be held liable on the car loan if your wife fails to pay the car loan, those should likely not be your primary considerations at this time.
If you can borrow the funds, you should retain a Divorce Lawyer to represent your interests, to file an Action for Dissolution of your marriage and to seek, among other things, Domestic Violence Restraining Orders, Spousal Support, and Attorney's fees.
The Court could, at time of trial, order your wife to pay all or a larger portion of the community debts, based on her greater ability to pay.
For transportation, you can take the bus for the time being, or purchase an inexpensive car.
Don't make yourself your wife's victim.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices, a creative, effective and aggressive Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 888/632-4447, 818/880-8990. See donald@conviser.net.
QUESTION: How do I protect myself financially in my divorce? My wife and I have been married less than 2 years and separated after 6 months due to her violent temper and abuse. We sold our house and have been in marriage counseling for over a year. Things were going well and we decided to try again. We signed a year lease on an apartment last month($1200.00 a month), traded my car in a month ago ($4,000.00 trade in credit) and we purchased a new car ($400.00 monthly payments). After only one month, violent temper and abusive behavior began and I had no choice but to leave. I believe this separation will lead to divorce as she refuses to get help, separate from marriage counseling, for her abusive behavior. At this time, she has the new car (2010 Acura) and the apartment. I am driving her old car(2006 Kia) that is in her and her father’s name. She has said I need to pay my half of the rent for the next 11 months remaining on the lease and at that time she will refinance the new car into her name only and sign the other car over to me.
Besides the fact that I do not trust her, I have no way to afford this. I work full time and bring home $2,000 a month and with her new real estate position, she now brings home $4,000 a month. I cannot afford to pay her $600 a month, plus find a place to live and pay those expenses. I also have gas, insurance and student loans to pay. My thought is we need to get out of the apartment lease and come to a compromise on the new car and the older car. She seems to be holding all the cards and says that she will report the car I am driving as stolen if I don't agree. I have no key to the new car and she has all of the contract information for everything. She is 23 I am 27, we have no children and the only financial obligations are the new car and the apartment lease. The only other property is the furniture and belongings in the apartment that we acquired during the marriage. I have no idea what to do next, or how to protect myself financially. If I have no car I have no job. Thank you.
ANSWER: You could report your wife's extortion effort to the police, to avoid the consequences of your wife's threat to report her car stolen.
There could be significant consequences that result from doing so, but there could be significant consequences flowing from a report by your wife to the police claiming that her car was stolen.
You could file a Domestic Violence Restraining Order case, based on your wife's violence, and include her threat in your declaration.
Whereas you could ultimately be held liable for rent on the apartment if your wife fails to pay the rent, and whereas you could ultimately be held liable on the car loan if your wife fails to pay the car loan, those should likely not be your primary considerations at this time.
If you can borrow the funds, you should retain a Divorce Lawyer to represent your interests, to file an Action for Dissolution of your marriage and to seek, among other things, Domestic Violence Restraining Orders, Spousal Support, and Attorney's fees.
The Court could, at time of trial, order your wife to pay all or a larger portion of the community debts, based on her greater ability to pay.
For transportation, you can take the bus for the time being, or purchase an inexpensive car.
Don't make yourself your wife's victim.
This educational blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices, a creative, effective and aggressive Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 888/632-4447, 818/880-8990. See donald@conviser.net.
Tuesday, March 1, 2011
DO I HAVE TO PROVIDE FINANCIAL RECORDS REGARDING CHILD SUPPORT?
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: Do I have to provide financial records regarding child support? How long before child support court do I need to provide financial records to the other party? And if I don't, what happens?
ANSWER: If the other party has sought financial information or records from you via discovery, such as interrogatories or a demand to produce records, for a pending trial or OSC [Order to Show Cause] for support (whether Spousal Support or Child Support), you need to respond and produce records within the 30-day response time.
If the other party has subpoenaed records from you, you need to comply with the requirements of the subpoena.
Your responses to any OSC (including your Responsive Declaration and your Income and Expense Declaration) need to be filed and served at least court days (not calendar days)prior to the hearing on the OSC.
Your local court rules should prescribe which documents you need to bring to the OSC hearing, but generally, those rules require production of your last two years of filed Income Tax returns (State and Federal), your loan applications from the last year, and your last three paycheck stubs (or advices of deposit).
If you don't comply with discovery requirements and/or the court rules, the Court can continue the hearing, impose monetary sanctions against you, and impose a temporary order without prejudice to a subsequent retroactive order after you provide the sought records.
This blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices, an effective and aggressive Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
QUESTION: Do I have to provide financial records regarding child support? How long before child support court do I need to provide financial records to the other party? And if I don't, what happens?
ANSWER: If the other party has sought financial information or records from you via discovery, such as interrogatories or a demand to produce records, for a pending trial or OSC [Order to Show Cause] for support (whether Spousal Support or Child Support), you need to respond and produce records within the 30-day response time.
If the other party has subpoenaed records from you, you need to comply with the requirements of the subpoena.
Your responses to any OSC (including your Responsive Declaration and your Income and Expense Declaration) need to be filed and served at least court days (not calendar days)prior to the hearing on the OSC.
Your local court rules should prescribe which documents you need to bring to the OSC hearing, but generally, those rules require production of your last two years of filed Income Tax returns (State and Federal), your loan applications from the last year, and your last three paycheck stubs (or advices of deposit).
If you don't comply with discovery requirements and/or the court rules, the Court can continue the hearing, impose monetary sanctions against you, and impose a temporary order without prejudice to a subsequent retroactive order after you provide the sought records.
This blog is brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specalist, owner of Warner Center Law Offices, an effective and aggressive Los Angeles Family Law Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, responding to questions posed to him about Divorce and Family Law.
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