DONALD F. CONVISER, a Certified Family Law Specalist, of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Family Law and Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and Divorce.
The following is a question posed to me which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: What can I do if my wife and her attorney are not complying with our California Marital Settlement Agreement? My wife and I filed for a divorce and have an MSA. We both have attorneys. I signed the MSA and also paid 90% of equalization payment that was agreed upon to my wife and she accepted it. My wife and her attorney now seem to be dragging their feet on signing it. What would be my next steps to have her comply?
ANSWER: It is impossible to turn back the clock, but you shouldn't have paid your wife before the MSA was fully executed and submitted to the Court with a Judgment to sign.
Since your wife hasn't signed the MSA, you might file a Motion for 1) refund of the amount paid, and/or 2) entry of judgment pursuant to the MSA, alleging 90% performance by you in reliance, addressing the facts. However, it is unlikely that the Court would enforce an MSA that has not been signed by one party.
If you are unable to get the other side to sign an MSA, you may need to have a trial set to resolve the case.
See my December 16, 2009 Blog, entitled: "BEWARE GOING PRO PER [representing yourself] IN A FAMILY LAW CASE. THE DEAL YOU NEGOTIATE MIGHT NOT BE THE DEAL YOU GET" [addressing Marriage of DELARIA and BLICKMAN]. That Blog reveals how an appellate court dealt with a case having facts similar to yours, where a party partially complied with an oral MSA. Unfortunately, the Court in that case held that if the parties didn't have a signed agreement or an oral agreement recited into the record of the Court as required under FAMILY CODE Section 2550 (and Code of Civil Procedure Section 664.6), the Court would not enforce the agreement.
Thursday, December 23, 2010
Wednesday, December 22, 2010
MOVING OUT FOR DAUGHTER'S MENTAL WELL-BEING
DONALD F. CONVISER, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, a Certified Family Specialist,an effective and aggressive Family Law and Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and Divorce.
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: Can I move out with my daughter before the divorce in California? My husband and I are going to divorce, but we have not filed yet. We are always fighting, and my daughter, who is 7, is very stressed with the way we are living. Can I move out with her, if I do not move far away and let him see her all the time? He is not happy with my choice. Is this legal?
ANSWER: Yes, you can move out of the home argument environment with your daughter. Your reason for your move, as well as your proposals regarding the proximity of your move and allowing your husband frequent and continuing contact with your daughter are reasonable. Actual physical separation of the parties frequently occurs before a divorce case is filed.
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: Can I move out with my daughter before the divorce in California? My husband and I are going to divorce, but we have not filed yet. We are always fighting, and my daughter, who is 7, is very stressed with the way we are living. Can I move out with her, if I do not move far away and let him see her all the time? He is not happy with my choice. Is this legal?
ANSWER: Yes, you can move out of the home argument environment with your daughter. Your reason for your move, as well as your proposals regarding the proximity of your move and allowing your husband frequent and continuing contact with your daughter are reasonable. Actual physical separation of the parties frequently occurs before a divorce case is filed.
Tuesday, December 21, 2010
"CAN THE COURT MAKE MY HUSBAND SHARE DIVORCE FEES?"
Certified Family Law Specialist DONALD F. CONVISER, owner of Warner Center Law Offices, located in Woodland Hills in the San Fernando Valley, an effective and aggressive Family Law and Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, brings you another informative and educational blog, responding to questions posed to him in areas of Family Law and Divorce.
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: Is there a way to make my husband pay for half of the divorce fees in California? After only months of being married, my husband abandoned me. He was abusive, manipulative and cheating. I left him all of the assets, including the furniture. I just want the divorce and for him to pay half of the fees. Can the court make him pay for them, or do I need a lawyer?
ANSWER: From your question, it appears that you are referring to filing fees. The current filing fee for a divorce case in California is $395, but if you qualify due to no or low income, you can apply for a waiver of the filing fees. Hiring a lawyer for a divorce will cost far more than $395, but you would receive the benefit of the lawyer's education, training, experience, advice and skills, and depending on the facts of your matter, could result in orders awarding you domestic violence restraining orders, spousal support, child custody and child support (if there are children), your share of the community property, your share of retirement and other deferred employee benefit plans, and attorney's fees and costs. You should consult with a knowledgeable Family Law Attorney about the particular facts of your matter.
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: Is there a way to make my husband pay for half of the divorce fees in California? After only months of being married, my husband abandoned me. He was abusive, manipulative and cheating. I left him all of the assets, including the furniture. I just want the divorce and for him to pay half of the fees. Can the court make him pay for them, or do I need a lawyer?
ANSWER: From your question, it appears that you are referring to filing fees. The current filing fee for a divorce case in California is $395, but if you qualify due to no or low income, you can apply for a waiver of the filing fees. Hiring a lawyer for a divorce will cost far more than $395, but you would receive the benefit of the lawyer's education, training, experience, advice and skills, and depending on the facts of your matter, could result in orders awarding you domestic violence restraining orders, spousal support, child custody and child support (if there are children), your share of the community property, your share of retirement and other deferred employee benefit plans, and attorney's fees and costs. You should consult with a knowledgeable Family Law Attorney about the particular facts of your matter.
Monday, December 20, 2010
DON'T MISS A HEARING IN YOUR DIVORCE CASE
DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Family Law and Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and Divorce.
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: If I reshedule my custody hearing court date, will that hurt my case? I am a father and I have legal custody of my girls. Yesterday my spouse did not show to court becuase she had to reschedule. She does not work, but I do. If i miss my custody hearing, and I reschedule for the following week, is that bad for my case?
ANSWER: Don't miss a hearing.
Any time a party doesn't show up for a hearing, the hearing could go forward without that party's participation, possibly or likely causing a result adverse to that party.
Whether or not a hearing gets continued based upon a party's unavailability (or supposed unavailability) can depend on what facts are presented to the Judicial Officer, how and when, whether there has been a prior continuance of the hearing, the reason given for seeking the continuance, whether the parties agree to the continuance, the local rules, and the particular Judicial Officer's policies, practices, discretion and prejudices.
If you seek to continue a hearing, you should contact the Judicial Officer's clerk in advance to inquire about those matters, find out whether the Judicial Officer would continue the hearing if both parties agree to the continuance, how to get the continuance, and what dates the Court has available for the continued hearing. If the Court would allow the continuance and both parties are agreeable, the matter would need to be continued to a date available to the Court and both parties.
Courts usually require a continuance to be arranged in advance so that the Court can control its calendar.
Courts generally require either a Stipulation for Continuance, a Stipulation and Order for Continuance, or a Notice of Continuance to be filed and served, if they will allow the continuance, so make your inquiry first. The Court will likely charge a filing fee for such filing.
Due to calendar congestion, most courts won't reschedule a hearing for the following week - some courts would continue the hearing for months, in which case, if it is your OSC, it may be a good idea to re-file your OSC to get an earlier hearing.
If you need a continuance due to exigent circumstances and the other party refuses, file an Ex Parte Application and have an Ex Parte hearing on the matter in advance of the scheduled OSC hearing so that you will find out whether or not the Court will continue the hearing - Courts don't always grant Ex Parte applications.
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: If I reshedule my custody hearing court date, will that hurt my case? I am a father and I have legal custody of my girls. Yesterday my spouse did not show to court becuase she had to reschedule. She does not work, but I do. If i miss my custody hearing, and I reschedule for the following week, is that bad for my case?
ANSWER: Don't miss a hearing.
Any time a party doesn't show up for a hearing, the hearing could go forward without that party's participation, possibly or likely causing a result adverse to that party.
Whether or not a hearing gets continued based upon a party's unavailability (or supposed unavailability) can depend on what facts are presented to the Judicial Officer, how and when, whether there has been a prior continuance of the hearing, the reason given for seeking the continuance, whether the parties agree to the continuance, the local rules, and the particular Judicial Officer's policies, practices, discretion and prejudices.
If you seek to continue a hearing, you should contact the Judicial Officer's clerk in advance to inquire about those matters, find out whether the Judicial Officer would continue the hearing if both parties agree to the continuance, how to get the continuance, and what dates the Court has available for the continued hearing. If the Court would allow the continuance and both parties are agreeable, the matter would need to be continued to a date available to the Court and both parties.
Courts usually require a continuance to be arranged in advance so that the Court can control its calendar.
Courts generally require either a Stipulation for Continuance, a Stipulation and Order for Continuance, or a Notice of Continuance to be filed and served, if they will allow the continuance, so make your inquiry first. The Court will likely charge a filing fee for such filing.
Due to calendar congestion, most courts won't reschedule a hearing for the following week - some courts would continue the hearing for months, in which case, if it is your OSC, it may be a good idea to re-file your OSC to get an earlier hearing.
If you need a continuance due to exigent circumstances and the other party refuses, file an Ex Parte Application and have an Ex Parte hearing on the matter in advance of the scheduled OSC hearing so that you will find out whether or not the Court will continue the hearing - Courts don't always grant Ex Parte applications.
Sunday, December 19, 2010
SEPARATION in DIVORCE CASES
DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Family Law and Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and Divorce.
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question, as well as information which may be educational about the subject matter of the question:
QUESTION: Is it necessary to be legally or officially separated before you get a divorce? We just decided to get a divorce. We have been married and living together for 2 and a half years. We never decided to separate legally, though my husband has been staying with friends lately. Do we need to be legally separated before we can get a divorce?
ANSWER: You don't need to live separately to get a divorce. All you need to qualify for a divorce is to have irreconcilable differences that have led to an irremediable breakdown of the marriage. Just file a divorce case, have the papers served by somebody over 18 other than you, and proceed.
MORE ABOUT SEPARATION:
In some cases, "separation" becomes a significant factor. In "long term" marriages (usually marriages of 10 or more years in duration before separation), the Court generally awards Spousal Support until the death or remarriage of the payee [Family Code Section 4336], whereas in "short term" marriages, the Court generally awards Spousal Support for a period equivalent to 1/2 the duration of the marriage to the date of separation. Because the earnings and accumulations of a spouse while living separate and apart from the other spouse are the separate property of the spouse [Family Code Section 771(a)], the date of separation can be of considerable consequence to the parties' property rights, and may affect property division.
Although Family Code Section 771(a) does not define "date of separation" or specify a rule for determining it, and although there is no definitive authority setting forth a single standard to be employed or a comprehensive list of factors to be considered, a number of courts have attempted to enunciate guidelines.
MAKEIG v. UNITED SECURITY BANK & TRUST COMPANY (1931) 112 Cal.App.138, 143 refers to separation as that "condition where the spouses have come to a parting of the ways and have no present intention of resuming the marital relations and taking up life together under the same roof."
Marriage of BARAGRY (1977) 73 Cal.App.3d 444, 448 inquires "whether the parties' conduct evidences a complete and final break in the marital relationship."
Marriage of VON DER NEULL (1994) 23 Cal.App.4th 730, 736, construed BARAGRY to hold commencement of the separation period "requires not only a parting of the ways with no present intention of resuming martial relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship."
Marriage of NORVIEL (2002) 102 Cal.App.4th 1152, 1159, 1162 reiterates BARAGRY's formula, but adds, "By at least one creditable definition, 'living separate and apart' means 'residing in different places and having no intention of resuming marital relations.'", and concludes, "Spouses must be 'living separate and apart' in order to separate. Many attorneys take issue with NORVIEL, and most trial courts do not require the additional requirement addressed in NORVIEL.
Marriage of MANFER (2006) 144 Cal.App.4th 925, 930, 934 rejected the trial court's requirement of a public revelation of the parties' separation in a case where the parties concealed from their friends and family their intention to divorce, and cites as useful authority the standard articulated in Marriage of HARDIN (1995) 38 Cal.App.4th 448, 451-453: "The date of separation occurs when either of the parties does not intend to resume the marriage and his or her actions bespeak the finality of the marital relationship. There must be problems that have so impaired the marriage relationship that the legitimate objects of matrimony have been destroyed and there is no reasonable possibility of eliminating, correcting or resolving these problems." "All factors bearing on either party's intentions 'to return or not to return to the other spouse' are to be considered. " No particular facts are per se determinative. The ultimate test is the parties' subjective intent and all evidence relating to it is to be objectively considered by the court." Stated differently, "The ultimate question to be decided in determining the date of separation is whether either or both of the parties perceived the rift in their relationship as final. The best evidence of this is their words and actions. The husband's and the wife's subjective intents are to be objectively determined from all of the evidence reflecting the parties' words and actions during the disputed time in order to ascertain when during that period the rift in the parties' relationship was final."
If there is a controversy as to date of separation in an action for dissolution of marriage and it affects whether or not the marriage was of "long duration" or if one party had significant earnings and/or accumulations during a period of time in which separation of the parties is questionable, you would be wise to seek the services of a competent Certified Family Law Specialist.
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question, as well as information which may be educational about the subject matter of the question:
QUESTION: Is it necessary to be legally or officially separated before you get a divorce? We just decided to get a divorce. We have been married and living together for 2 and a half years. We never decided to separate legally, though my husband has been staying with friends lately. Do we need to be legally separated before we can get a divorce?
ANSWER: You don't need to live separately to get a divorce. All you need to qualify for a divorce is to have irreconcilable differences that have led to an irremediable breakdown of the marriage. Just file a divorce case, have the papers served by somebody over 18 other than you, and proceed.
MORE ABOUT SEPARATION:
In some cases, "separation" becomes a significant factor. In "long term" marriages (usually marriages of 10 or more years in duration before separation), the Court generally awards Spousal Support until the death or remarriage of the payee [Family Code Section 4336], whereas in "short term" marriages, the Court generally awards Spousal Support for a period equivalent to 1/2 the duration of the marriage to the date of separation. Because the earnings and accumulations of a spouse while living separate and apart from the other spouse are the separate property of the spouse [Family Code Section 771(a)], the date of separation can be of considerable consequence to the parties' property rights, and may affect property division.
Although Family Code Section 771(a) does not define "date of separation" or specify a rule for determining it, and although there is no definitive authority setting forth a single standard to be employed or a comprehensive list of factors to be considered, a number of courts have attempted to enunciate guidelines.
MAKEIG v. UNITED SECURITY BANK & TRUST COMPANY (1931) 112 Cal.App.138, 143 refers to separation as that "condition where the spouses have come to a parting of the ways and have no present intention of resuming the marital relations and taking up life together under the same roof."
Marriage of BARAGRY (1977) 73 Cal.App.3d 444, 448 inquires "whether the parties' conduct evidences a complete and final break in the marital relationship."
Marriage of VON DER NEULL (1994) 23 Cal.App.4th 730, 736, construed BARAGRY to hold commencement of the separation period "requires not only a parting of the ways with no present intention of resuming martial relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship."
Marriage of NORVIEL (2002) 102 Cal.App.4th 1152, 1159, 1162 reiterates BARAGRY's formula, but adds, "By at least one creditable definition, 'living separate and apart' means 'residing in different places and having no intention of resuming marital relations.'", and concludes, "Spouses must be 'living separate and apart' in order to separate. Many attorneys take issue with NORVIEL, and most trial courts do not require the additional requirement addressed in NORVIEL.
Marriage of MANFER (2006) 144 Cal.App.4th 925, 930, 934 rejected the trial court's requirement of a public revelation of the parties' separation in a case where the parties concealed from their friends and family their intention to divorce, and cites as useful authority the standard articulated in Marriage of HARDIN (1995) 38 Cal.App.4th 448, 451-453: "The date of separation occurs when either of the parties does not intend to resume the marriage and his or her actions bespeak the finality of the marital relationship. There must be problems that have so impaired the marriage relationship that the legitimate objects of matrimony have been destroyed and there is no reasonable possibility of eliminating, correcting or resolving these problems." "All factors bearing on either party's intentions 'to return or not to return to the other spouse' are to be considered. " No particular facts are per se determinative. The ultimate test is the parties' subjective intent and all evidence relating to it is to be objectively considered by the court." Stated differently, "The ultimate question to be decided in determining the date of separation is whether either or both of the parties perceived the rift in their relationship as final. The best evidence of this is their words and actions. The husband's and the wife's subjective intents are to be objectively determined from all of the evidence reflecting the parties' words and actions during the disputed time in order to ascertain when during that period the rift in the parties' relationship was final."
If there is a controversy as to date of separation in an action for dissolution of marriage and it affects whether or not the marriage was of "long duration" or if one party had significant earnings and/or accumulations during a period of time in which separation of the parties is questionable, you would be wise to seek the services of a competent Certified Family Law Specialist.
Saturday, December 18, 2010
DISMISSING A DIVORCE CASE FOR IMMIGRATION PURPOSES
DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices inWoodland Hills in the San Fernando Valley, an effective and aggressive Family Law and Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and Divorce.
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: Can you withdraw a divorce petition for immigration purposes in California? My husband filed for my green card almost 2 years ago but we were later denied because he was arrested when it was time for our interview and therefore we could not attend. After this we separated, filed for divorce and being out of status I had to return to my national country. However, we have now reconciled and decided to give us another chance, so my question is, is it possible for us to withdraw the divorce petition, (we are yet to file for a judgment, we filed uncontested divorce), so my husband can begin the petition all over again? If possible, could you represent us and how much would this cost? Thank you
ANSWER: If you and your husband are agreeable to dismiss the divorce case, then both of you should sign a Request for Dismissal [Judicial Council Form No. CIV-110), and file it with the Court, and the Court will dismiss the case. If you and/or he had an attorney in the case, the attorney would need to sign the Request for Dismissal in lieu of the client.
As to filing or refiling a Petition with INS, you will need to deal with an Immigration Attorney.
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: Can you withdraw a divorce petition for immigration purposes in California? My husband filed for my green card almost 2 years ago but we were later denied because he was arrested when it was time for our interview and therefore we could not attend. After this we separated, filed for divorce and being out of status I had to return to my national country. However, we have now reconciled and decided to give us another chance, so my question is, is it possible for us to withdraw the divorce petition, (we are yet to file for a judgment, we filed uncontested divorce), so my husband can begin the petition all over again? If possible, could you represent us and how much would this cost? Thank you
ANSWER: If you and your husband are agreeable to dismiss the divorce case, then both of you should sign a Request for Dismissal [Judicial Council Form No. CIV-110), and file it with the Court, and the Court will dismiss the case. If you and/or he had an attorney in the case, the attorney would need to sign the Request for Dismissal in lieu of the client.
As to filing or refiling a Petition with INS, you will need to deal with an Immigration Attorney.
Friday, December 17, 2010
LOW COST DIVORCE OPTIONS
I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: How do I begin the process of filing for divorce at a reasonable cost? I need to file a divorce but do not have a lot of money to put out on it at this time. How do I begin the process in the first place and what is the easiest way
ANSWER: Most courts have self-help clinics to assist self-represented parties prepare and file documents in divorce cases. Also, if you qualify financially, the Court might grant an application by you to waive filing fees. Those are your least expensive options. Depending on the issues in your divorce case, using the self-help clinic may or may not be your best option.
Generally, the best option is to retain, or at least consult with, a knowledgeable family law attorney, so that you can be informed regarding of your rights and responsibilities and what needs to be done in a divorce case.
Some Family Law Attorneys offer "unbundled services", i.e., consultation services where you represent yourself, but get information, guidance, advice, and preparation of documents (in your name) from the attorney. That option is less expensive than retaining the attorney to represent you, but then you will be the person who receives and has to respond to documents in the case, and if you receive documents, it would be a good idea to promptly schedule another consultation with the "unbundled services" consulting attorney.
QUESTION: How do I begin the process of filing for divorce at a reasonable cost? I need to file a divorce but do not have a lot of money to put out on it at this time. How do I begin the process in the first place and what is the easiest way
ANSWER: Most courts have self-help clinics to assist self-represented parties prepare and file documents in divorce cases. Also, if you qualify financially, the Court might grant an application by you to waive filing fees. Those are your least expensive options. Depending on the issues in your divorce case, using the self-help clinic may or may not be your best option.
Generally, the best option is to retain, or at least consult with, a knowledgeable family law attorney, so that you can be informed regarding of your rights and responsibilities and what needs to be done in a divorce case.
Some Family Law Attorneys offer "unbundled services", i.e., consultation services where you represent yourself, but get information, guidance, advice, and preparation of documents (in your name) from the attorney. That option is less expensive than retaining the attorney to represent you, but then you will be the person who receives and has to respond to documents in the case, and if you receive documents, it would be a good idea to promptly schedule another consultation with the "unbundled services" consulting attorney.
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