WILL I HAVE TO PAY SPOUSAL SUPPORT BECAUSE MY EX QUIT HIS JOB?

DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Family Law and Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and Divorce.

I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:

QUESTION: Will I have to pay spousal support because my ex quit his job? Prior to my filing for divorce my husband quit his job. He did not discuss the matter with me nothing, just quit. And now that I have filed for divorce, he claims I owe him spousal support, and child support for our 2 young boys when he cares for them 50% of the time. Is this right? Now he wants his 50% part of my 401K as well. Am I going to keep paying and paying this guy?

ANSWER: If you are working and your husband is not, and your husband files an OSC [Order to Show Cause] for spousal support, the Court would award him spousal support unless it imputes income to him (in an amount sufficient to justify not awarding him spousal support).

The Court bases temporary spousal support [during the divorce process] on your income and your husband's income, and permanent spousal support [upon trial or settlement of the divorce case] on factors set forth in Family Code Section 4320. The Court bases child support at all times on your income, your husband's income, and the custodial timeshare between you and your husband.

Upon appropriate proof, the Court could impute income to your husband, even if he isn't actually earning income. However, merely proving that he quit his job is not enough.

The burden will be on you and your attorney to persuade the Court that income should be imputed to your husband, based on his ability to earn [his education, training and work history] and his opportunity to earn [i.e., job availability in his field(s) of experience, and wages offered by those prospective jobs].

You would be best served by an experienced Family Law attorney, to seek and provide evidence and testimony to the Court. In Marriage of LaBass and Munsie, the Court accepted classified ads as evidence of opportunity to earn, but in my experience, some but not all judicial officers accept or are persuaded by such evidence. It would be best to seek an order for examination of your husband by a vocational expert, to interview and test your husband, perform a labor market survey, prepare a report, and testify in Court if needed.

Under the new Elkins legislation coming into effect on January 1, 2011 [providing that absent a stipulation of the parties or a finding of good cause to refuse live testimony (stating its reasons for its finding on the record or in writing), the court is required to receive any live, competent testimony that is relevant and within the scope of the hearing], it would be appropriate for your vocational expert to be prepared to testify as to your husband's earning capacity.

In terms of division of community property, the Court divides net community assets between the parties, so to the extent your 401K plan was earned during the marriage, is included in the division. Your husband's quitting his job will have no influence on the division of community property.

SPOUSAL SUPPORT IN LONG TERM MARRIAGE

DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Family Law and Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and Divorce.

I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:

QUESTION: In California, will I have to pay more spousal support if I have been married to my wife for over a decade? I have been married to my wife for over 10 years. Since we live in California, will I be required to pay more in spousal support because of this?

ANSWER: I assume from your question that you are in the process of, or facing, a divorce. If there is no divorce or legal separation, you won't have a spousal support obligation.

Family Code Section 4336(a) provides that except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration.

Family Code Section 4336(b) provides that for the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of the separation, is a marriage of long duration. However, the court may consider periods of separation during the marriage in determing whether the marriage is in fact of long duration. A court could even, under certain circumstances, determine that a marriage of less than 10 years is a marriage of long duration.

You can limit the duration of spousal support if you and your wife stipulate in writing during the divorce, or orally stipulate on the record in the divorce court, to a specific limited duration of spoual support.

Family Code Section 4320 addresses circumstances to be considered by the Court in ordering spousal support, and the duration of the marrige is one of the many enumerated factors that the Court would consider. The primary impact of the duration of the marriage would be on the court's determination of the duration of spousal support, rather than the amount of spousal support. In a short term marriage, spousal support is ordinarily awarded for 1/2 the duration of the marriage. In a long term marriage, spousal support is ordinarily awarded until the payee's death or remarriage. Other factors may come into play, so you would best consult with a competent Family Law Attorney about the particulars of your matter.

CAN I GET A DIVORCE IF I DON'T KNOW WHERE MY SPOUSE LIVES?

DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Family Law and Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and Divorce.

I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:

QUESTION: How can I proceed with a divorce if I do not know where my husband lives? We went through separation of property in our legal separation over 3 years ago, and now I want to file for divorce. However, he has moved out of state and I am unaware of his location. Do I need to get in touch with him to move forward with my divorce?

ANSWER: You should contact his friends and relatives in an effort to locate him, so that he can be personally served with the divorce papers after they are filed. Do you know what state and/or part of that state he moved to? If you are unable to locate him, you would best hire a competent Family Law Attorney to handle your divorce to get your husband served through publication, which would first require a due diligence search by a qualified third party in an effort to locate your husband before applying for a court order to permit service by publication.

THE FIRST STEP TO TAKE BEFORE GETTING DIVORCED

Certified Family Law Specialist DONALD F. CONVISER, of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Family Law and Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and Divorce.

I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:

QUESTION: What should I do before getting divorced in California? I want to make sure that I take the right steps before getting a divorce. My wife and I are separated, and she owns her own business and has two homes in two different states. What do I need to do to be set up financially?

ANSWER: The first step you should take is to have a face-to-face consultation with a competent Family Law Attorney, who would ask appropriate questions of you and obtain responses and information to assist in determining what steps need to be taken. From your question, I can't determine whether the business which you call your wife's business is a business which was formed during the marriage, or a business which your wife had prior to the marriage. If it was formed during the marriage, it would be community property. Even if your wife had the business before the marriage, you may be entitled to a "Pereira/Van Camp" interest in her business. Also, from your question, I can't determine whether your wife owned the two homes prior to the marriage, if they were purchased in her name alone during the marriage, or otherwise, but you could have some sort of interest in the homes, depending on the specific facts. Also, from your question, I can't determine who has greater income, or whether you and your wife have children and if so, who has de facto custody, but all of the above comprise matters to discuss with a Family Law Attorney, in person.

WHAT TO DO IF A CONSULTING LAWYER HASN'T PERFORMED SERVICES

DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Family Law and Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and Divorce.

I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:

QUESTION: I paid a lawyer to file my divorce but he is not my attorney on record, and he has not completed forms. It has been weeks and it has been impossible to get a hold of him. My simple divorce has to still be finalized and it has been over a year and a half since I filed. Can I get help from another lawyer?

ANSWER: It sounds as though you hired a lawyer as a consultant to perform "unbundled services" to file your divorce case, and if so, you would be your own lawyer, in Pro Per. If that is the case, you can substitute another attorney to take over your representation from yourself. From your question, I can't determine what forms the first attorney hasn't completed, but the attorney who you substitute in can complete the divorce case. The agreement between the first lawyer and you should define what the first lawyer was supposed to do, and if he was paid to do something and didn't do it, you can sue him in Small Claims Court for refund of the portion of the amount paid that he didn't earn.

DIVORCING AN INCARCERATED PRISONER

DONALD F. CONVISER, a Divorce and Family Law Attorney, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Certified Family Law Specialist serving clients in Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your family law or divorce issues, brings you another blog, responding to questions posed to him by members of the public in areas of Divorce and Family Law.

I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:

QUESTION: Can I get divorced from my husband who is in a California prison? I have been married to my husband, who is in a California prison, for 6 years. I want to divorce him, but will this be like a normal divorce? Will an attorney help?

ANSWER: You can divorce an incarcerated prisoner. After you file your divorce case, you will need to have your husband served by the Sheriff or a registered process server. You should provide your husband's full name, date of birth and CDC number to the prison. Call the prison and ask their personnel for their procedures to get the inmate served with process, ask them what particular process servers have served inmates there, and call and select a process server (or the Sheriff of that county) to do the process service, and follow their instructions. Being a prisoner doesn't entitle your husband to "extra rights"; in fact, he will likely experience additional difficulty because he is imprisoned. It would be a good idea for you to hire a Family Law attorney to handle your divorce case.

HOW LONG DOES IT TAKE TO FINALIZE A DIVORCE?

DONALD F. CONVISER, a Certified Family Law Specalist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Family Law and Divorce Attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, at 818/880-8990, brings you another informative and educational blog, responding to questions posed to him by members of the public in areas of Family Law and Divorce.

I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:

QUESTION: How long will I have to wait in California for my divorce to finalize? How long does it take to get my divorce finalized if I am in California? Will a lawyer speed up the process?

ANSWER: It depends on what happens in your divorce.

The soonest you could get a dissolution of your marriage would be six (6) months from the date your spouse was served with the Summons and accompanying documents.

If the parties enter into a Stipulated Judgment (after exchanging their requisite Declarations of Disclosure), it can be filed long before the six months are up, but in that case, the Court would dissolve the marriage, effective six months after service of Summons.

The time it takes the Court to process Judgments varies from Court to Court.

If there is no agreement, and if your spouse doesn't respond to the Petition within 30 days after service is made, you can file to take your spouse's default, and once granted, you can file for a default judgment, so long as you have served your requisite Declarations of Disclosure and you have complied with the requirements to file for a default judgment.

If your spouse files a Response to your Petition, and you can't settle the case with your spouse, you will need to seek to set the matter for trial, and it depends upon your particular court's calendar congestion as to how far in the future the trial will be set.

It would help for you to hire a competent family law attorney to handle your case, because he/she would know what should be done, how, and when.