Tuesday, October 16, 2012
QUESTION: I am in the process of getting divorced. Can my 16 year old son leave the country with his grandmother if we both agree to let him go? ============================================== MY RESPONSE: Yes, but both of you should sign an agreement allowing your son to take the trip out of the country with his grandmother, and each keep copies of that agreement.
QUESTION: My almost 5 year old son's dad has not been in his life since he was 6 weeks old. He has been in and out of prison since my son was born and is a registered sex offender. He has also been charged with drugs. He is currently in prison and is not due to be released until October 2013. My Husband who I have been with since I was 8 months pregnant and married to since my son was 3 months old wants to adopt my son. My son knows him as his daddy and that's all he has ever known. How do I go about terminating his father's parental rights so that my husband can adopt him? =============================================== MY RESPONSE: Your husband would best retain an experienced Adoption Attorney to represent him, if he wants to adopt your son. If the father has not supported or contacted his son for over a year, the Court will likely terminate his parental rights in the adoption process. However, if the father is in prison, the Court will bend over backwards to protect the father's rights, by appointing an attorney to represent the father in the adoption and parental termination proceedings, so your husband would be far better off having his own attorney represent him in the adoption.
QUESTION: Can a judge take custody and visitation away from a parent without proof that the allegations in order to show cause are true? =============================================== MY RESPONSE: It is more complicated than that. The allegations made in the Declaration in support of the Order to Show Cause, if unopposed, will likely be accepted by the Judge as true. If the Order to Show Cause is opposed, the Judge will consider the allegations made in the Responsive Declaration to the Order to Show Cause. If opposed, both parties will likely have the opportunity to testify at an evidentiary hearing on the Order to Show Cause. The Judge will consider the evidence from both sides and make a determination. If the Judge determines that it would be in the best interest of the child/children to change Child Custody, based on the evidence (whether on the legal documents or testimony at the evidentiary hearing), the Judge has the power to change Child Custody.
QUESTION: My ex-wife and I filed an MSA, but before it was final I also had to file bankruptcy. At this point the bankruptcy has been discharged, but my ex-wife and I still have an agreement. So what is now needed to get the divorce off hold at the court. I have filed a copy of the bankruptcy discharge with the divorce court. I have a status hearing coming up. With an agreement in place, and the bankruptcy discharged, will the court issue a final Judgment on the divorce on or before that status hearing date? Does the agreement need to be resubmitted with current dates? ============================================== MY RESPONSE: You can address your questions to the Judge at the Status Conference. If you want to accelerate the process, and if the terms and conditions of the MSA are still valid and acceptable, you could submit a brand new Judgment package to the Court, with a newly signed MSA, and all other appropriate documents needed to complete the divorce (including but not limited to a Judgment, Notice of Entry of Judgment in quadruplicate, Appearance Stipulations and Waivers, Declaration re Default or Uncontested Dissolution, self-addressed stamped envelopes, and extra copies of the documents for the clerk to conform), and your case will be in line for processing by the Judgment Clerk far earlier than it would be if you wait for the Status Conference.
QUESTION: My husband abandoned me and our 12 year old daughter almost 2 months ago and is not helping finacially towards the household or the child. Two weeks later I was laid off from a very good paying job (he knows that). I filed for a divorce. My question is: before the filing date I had sold a vehicle (for money I desperately needed to care for myself and our child) that had been sitting here for over 20 years; it was not running, and it was never registered to me or my husband. There is a document stating the last known owner lived in Tuscon, Az. The vehicle was picked up after the filing date. Can I get in trouble for this? I have absolutley no money to pay my bills and am far behind on them. =============================================== MY RESPONSE: Probably not. If you sold the car before the divorce was filed, you didn't violate the automatic temporary restraining orders [ATROs] on the reverse side of the Summons. The fact that the car was picked up after you filed likely won't make a difference. In any event, if you sold the car to pay for the necessities of life, the sale wouldn't violate
QUESTION: My wife walked out on me over 3 years ago and I am now filing for divorce. Now she says she wants Alimoney are there any statue of limitations now that we were seperated for so long... We lived together for 2 years and 9 months after we were married I live in California. =============================================== MY RESPONSE: There is no statute of limitations against your wife's alimony claim, but you would have a good argument against spousal support - your wife has supported herself for the last three years without spousal support. If she does get a spousal support order, the Court will likely limit its duration to 1/2 of the length of the marriage to the date of separation.
QUESTION: I don't have a retirment plan, but my husband does. Am I entitled to it? =============================================== MY RESPONSE: You are entitled to your 1/2 community share of the retirement earned by your husband from the date of the marriage to the date of separation. The portion of his retirement earned before the marriage and the portion earned by him after separation are his separate property.
QUESTION: I currently have a court order spelling out the custody and visitation of my two sons with their father (we were never married). We have 5-2-2-5 schedule. Their father is now working nights and sleeps days (often 7 days per week). He now lives in another city (local) than where I live and where the boys attend public school. The order states that when one parent is not avilable to be with the boys during their allotted time the other parent is entitled to have the boys.. Their father is never available to them and the time they should be spending with him they are spending with his mother. Do I have a case to modify the custody/visitation order? Due to the current arrangement I do not receive child support. I want to change the order to a standard custody/visitation order of every other weekend and one week night a week with their dad. I would like to maintain joint legal custody. Can I take this to mediation? I can not afford an attorney again. ============================================== MY RESPONSE: Go to your Superior Court's self-help clinic for assistance by a volunteer attorney in preparing the paperwork needed for you to file an Order to Show Cause to modify Child Custody and to seek Child Support. If your ex-husband earns substantially more than you do, you might be able to find a Family Law Attorney who would prepare and file an OSC for you which would seek Attorney's fees, as well as a modification in Child Custody and Child Support. In order to file an OSC which seeks a modification of Child Custody, you will need to arrange an appointment with the Court Mediator.
QUESTION: Do I have to be properly notified of child support? I didn't see this coming so soon! Married for over 20 years, 4 children. MY RESPONSE: Your question is unclear and hard to understand. Did you receive a Child Support Order without being served with any papers seeking Child Support? You are entitled to due process, which constitutes notice and an opportunity to be heard, before any order is issued affecting your obligations. If you were served in a divorce case and you failed to file a Response within 30 days of service, your default could have been taken, after which you may well not have received further notice - and if that was the case, you had received due process and ignored your right to be heard or given further notice in the case. If that occurred, you need to promptly file a Motion to set aside your Default, if your time to do so hasn't yet expired. You should at least consult with, if not retain, an experienced Family Law Attorney to advise and represent you.
QUESTION: My spouse and I went throught all the steps of a contested divorce. We went into mediation and we both signed the agreement with the mediator. However, after the agreement was put in legal format, he refused to sign. What happens now? MY RESPONSE: Talk to him. Ask why he didn't sign. If he refuses to sign, and refuses to further mediate, you should retain an experienced Family Law Attorney and proceed with your divorce through the Court. Even though the agreement was not put in "legal format", it may be sufficient for a Motion under Code of Civil Procedure Section 664.6 to reduce the agreement to a Judgment.
QUESTION: My girlfriend said she got my text transcripts from the DA's office she used to work for. Is this legal? MY RESPONSE: Probably not, unless your girlfriend was the intended recipient of an authorized wiretap.
QUESTION: For years my estranged husband sent only partial spousal and child support payments. We recently agreed on an amount and he was given 15 days to pay that agreed on amount. Can I still file contempt charges even though we settled on the back support and he has sent a check? MY RESPONSE: Deposit the check. See if it was supported with adequate funds. If the money is transferred to your account, be glad you got it. Contempt is used to try to compel him to pay, and he apparently paid. If his check bounces, you can consider Contempt as one of your available options.
QUESTION: I'm in California and my husband is in New Mexico. We got married in Texas and he's trying to tell me I have to fly over to New Mexico to have my divorce papers notarized, when I do not have the money or time to do that. MY RESPONSE: A notary public in California should be able to notarize your signature on the Divorce Judgment or the Marital Settlement Agreement.
QUESTION: I have a garnishment on my wages for alimony. According to the papers, my payroll and I received, it says it is supposed to stop in November. Is there anything I need to do to make sure it stops? It states a date to stop but I want to make sure it does. MY RESPONSE: Bring the garnishment termination date to the attention of the Payroll Department, and get their acknowledgment of the date that the garnishment terminates.
QUESTION: I live in California and have 50/50 (joint) custudy. I am paying a pretty minimal amount for child support right now. My ex is remarried and she does not work but her new husband makes twice my income. She is threatening to take me back to court for more child support just so I will have to work more overtime to make the child support payments and she will get most of "My" time with our daughter. does she have a case? Can her new husbands income be a consideration? I don't want him to pay me child support, I just don't want to pay her more MY RESPONSE: Your ex-wife's new husband's income won't be considered by the Court in child support matters concerning your child. If your wife was working at the time of the last child support order, and isn't working now, your child support obligation could increase, unless you can get the Court to impute income to your ex-wife by providing the Court credible and admissible evidence of her ability to earn (education, training and experience) and evidence of jobs available in the area for which your ex-wife is qualified, as well as what those jobs would pay. You would best retain an experienced Family Law Attorney to represent you in the child support matter.