QUESTION: Can a party sue for alimony 2 years after a divorce is finalized when both parties waived alimony at the time of the divorce?
MY RESPONSE:
If the waiver of spousal support was properly done, any attempt to seek spousal support two years after the Judgment of Dissolution of Marriage was entered will likely be unsuccessful.
Family Code Section 2122 sets forth the grounds and time limits for a Motion to set aside a Judgment, i.e., actual fraud, perjury, duress, mental capacity, mistake in connection with a stipulated judgment, and failure to comply with the disclosure requirements, but many of those grounds have a one-year statute of limitations.
In particular, Section 2122(e) requires a Motion based on mistake as to a stipulated or uncontested judgment (whether mutual or unilateral, mistake of law or fact) to be brought within one year after the date of entry of judgment.
However, if the waiver of spousal support was not properly done, the issue of spousal support may remain a viable issue after the divorce.
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 | www.conviserfamilylaw.com |
Tuesday, August 9, 2011
Friday, August 5, 2011
HOW LONG DO YOU HAVE TO BE SEPARATED BEFORE YOU CAN FILE FOR DIVORCE?
QUESTION: Do you have to be separated a certain number of days to file for divorce?
MY RESPONSE:
No.
The signature of the Petitioner on the Petition for Dissolution of Marriage constitutes separation sufficient for a Divorce case to be filed.
The earnings and accumulations of each spouse following separation are the separate property of each respective spouse.
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 | www.conviserfamilylaw.com |
MY RESPONSE:
No.
The signature of the Petitioner on the Petition for Dissolution of Marriage constitutes separation sufficient for a Divorce case to be filed.
The earnings and accumulations of each spouse following separation are the separate property of each respective spouse.
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 | www.conviserfamilylaw.com |
CAN A MOTHER HIRE AN ATTORNEY FOR THE CHILDREN WITHOUT THE FATHER’S APPROVAL?
QUESTION: My mother has 100% physical custody and joint legal custody. Can my mother hire an attorney for minors without my father’s approval?
MY RESPONSE:
The mother can hire an attorney to represent her (but not the children) without the father's approval.
Only the Court can appoint an attorney to represent the minor children, and that can be accomplished on either party's request (if the Court finds need for minor's counsel) or on the Court's own motion.
If the mother has retained an attorney ostensibly to represent the children, the father can file a Motion to recuse that attorney, since the retention was in violation of the father's joint legal custodial rights, creates a conflict of interest, and was done without the approval or order of the Court.
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 | www.conviserfamilylaw.com |
MY RESPONSE:
The mother can hire an attorney to represent her (but not the children) without the father's approval.
Only the Court can appoint an attorney to represent the minor children, and that can be accomplished on either party's request (if the Court finds need for minor's counsel) or on the Court's own motion.
If the mother has retained an attorney ostensibly to represent the children, the father can file a Motion to recuse that attorney, since the retention was in violation of the father's joint legal custodial rights, creates a conflict of interest, and was done without the approval or order of the Court.
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 | www.conviserfamilylaw.com |
CAN I GET A DIVORCE IF I CAME TO THE U.S. ON A FIANCE' VISA?
QUESTION: We got married a few months ago, I am not a citizen yet. Can I get a divorce if I am here because of engagement visa?
MY RESPONSE:
If you have complied with California's minimum residency requirements for a divorce (6 months in the state, and 3 months in the county), you can file for a divorce in California.
The fact that you came here on a fiance' visa does not prevent you from getting a divorce.
However, you would be wise to consult with an immigration attorney before filing a divorce case, to determine whether filing a divorce case would jeopardize your immigration status.
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 | www.conviserfamilylaw.com |
MY RESPONSE:
If you have complied with California's minimum residency requirements for a divorce (6 months in the state, and 3 months in the county), you can file for a divorce in California.
The fact that you came here on a fiance' visa does not prevent you from getting a divorce.
However, you would be wise to consult with an immigration attorney before filing a divorce case, to determine whether filing a divorce case would jeopardize your immigration status.
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 | www.conviserfamilylaw.com |
HOW CAN A PERSON DIVORCE A FOREIGN SPOUSE?
QUESTION: My boyfriend would like to divorce a woman he married 14 years ago. They lived together briefly in CA while she was visiting here from Sweden. Right after they married, she accused him of abuse, which caused a lot of legal problems for him, and somehow secured her green card status, even though they never lived together after that. They had no contact since then. Apparently, they may still be married. She may also have returned to Sweden - we found her Facebook page. We would like to find out if she already divorced him, or, if not, how he can divorce her in the simplest way. Thanks.
MY RESPONSE:
Had she divorced him, he undoubtedly would have had to have been served with her divorce case.
He should try (or have a private investigator try) to locate her in Sweden, and find out her residence address, and ask if she will agree to accept service by mail and return a dated and signed Notice and Acknowledgment of Receipt.
If she agrees and complies with her agreement, service will be simple, and your boyfriend can proceed to get a divorce.
If she either doesn't agree, or doesn't return a dated and signed Notice and Acknowledgment of Receipt, service will have to be done in accordance with the requirements of the Hague Convention re Service of Process, in order to proceed with the divorce.
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 | www.conviserfamilylaw.com |
MY RESPONSE:
Had she divorced him, he undoubtedly would have had to have been served with her divorce case.
He should try (or have a private investigator try) to locate her in Sweden, and find out her residence address, and ask if she will agree to accept service by mail and return a dated and signed Notice and Acknowledgment of Receipt.
If she agrees and complies with her agreement, service will be simple, and your boyfriend can proceed to get a divorce.
If she either doesn't agree, or doesn't return a dated and signed Notice and Acknowledgment of Receipt, service will have to be done in accordance with the requirements of the Hague Convention re Service of Process, in order to proceed with the divorce.
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 | www.conviserfamilylaw.com |
WILL MY WIFE GET CHILD SUPPORT FROM ME?
QUESTION: For the last year my wife and I have been on unemployment. I pull in $1,100.00 and she gets $400.00. She moved out June first and has left the marriage. We have 3 children. Does she have dibs on my potential earnings as far as child support goes or does it stay where it was when she decided to leave?
MY RESPONSE:
After filing her divorce case, your wife can file an Order to Show Cause for a Guideline Child Support order retroactive to the date of filing of her Divorce case based on your income, her income, and your percentage of custodial time-share of the children.
If and/or when you become re-employed, your wife can file an Order to Show Cause to modify Child Support to the guideline figures, based on your new income, her income, and your percentage of custodial time-share of the children, retroactive to the date of her filing that OSC for Modification or the date it is served upon you, at the Court's discretion.
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 | www.conviserfamilylaw.com |
MY RESPONSE:
After filing her divorce case, your wife can file an Order to Show Cause for a Guideline Child Support order retroactive to the date of filing of her Divorce case based on your income, her income, and your percentage of custodial time-share of the children.
If and/or when you become re-employed, your wife can file an Order to Show Cause to modify Child Support to the guideline figures, based on your new income, her income, and your percentage of custodial time-share of the children, retroactive to the date of her filing that OSC for Modification or the date it is served upon you, at the Court's discretion.
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 | www.conviserfamilylaw.com |
WHAT SHOULD I DO IF A SPOUSE WON’T PROVIDE FINANCIAL INFORMATION FOR A DIVORCE?
QUESTION: My boyfriend is trying to file for divorce in California. Part of the requirement is to disclose financial information. His ex will not provide this information, so how should he proceed in filling out his FL-141 (Declaration Regarding Service of Declaration of Disclosure) Forms?
MY RESPONSE:
Assuming that your boyfriend has already filed and had his Dissolution of Marriage Action served on his wife, he should prepare his Preliminary Declaration of Disclosure, his Income and Expense Declaration, his Schedule of Assets and Debts, and his Declaration re Service of Preliminary Declaration of Disclosure and Income and Expense Declaration, and those should be served on his wife, and his Declaration re Service of Preliminary Declaration of Disclosure and Income and Expense Declaration should be filed with the Clerk of the Court (not the other documents).
He should request, in writing that his wife prepare and serve the same documents on him, and advise her that unless he receives them within 30 days, he will need to seek the assistance of the Court to compel her to do so and to pay monetary sanctions to him.
If she doesn't comply, he should file (and serve) a Motion to compel preparation and service of those documents, and for an Order compelling his wife to pay a certain dollar amount of monetary sanctions to him.
If the Court grants his Motion, and his wife fails to comply with the Court's order within the time limit specified in the order, he should file another Motion to compel preparation and service of those documents, and for "Terminating Sanctions", i.e., for the Court to enter his wife's default, which, if granted, will enable him to proceed to get a judgment against his wife without her participation in the case.
If your boyfriend can afford to retain an experienced Family Law Attorney to represent him, he would be wise to do so, because there are technical requirements for the procedures addressed above which he may not know and/or which may be difficult for him to comply with.
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 | www.conviserfamilylaw.com |
MY RESPONSE:
Assuming that your boyfriend has already filed and had his Dissolution of Marriage Action served on his wife, he should prepare his Preliminary Declaration of Disclosure, his Income and Expense Declaration, his Schedule of Assets and Debts, and his Declaration re Service of Preliminary Declaration of Disclosure and Income and Expense Declaration, and those should be served on his wife, and his Declaration re Service of Preliminary Declaration of Disclosure and Income and Expense Declaration should be filed with the Clerk of the Court (not the other documents).
He should request, in writing that his wife prepare and serve the same documents on him, and advise her that unless he receives them within 30 days, he will need to seek the assistance of the Court to compel her to do so and to pay monetary sanctions to him.
If she doesn't comply, he should file (and serve) a Motion to compel preparation and service of those documents, and for an Order compelling his wife to pay a certain dollar amount of monetary sanctions to him.
If the Court grants his Motion, and his wife fails to comply with the Court's order within the time limit specified in the order, he should file another Motion to compel preparation and service of those documents, and for "Terminating Sanctions", i.e., for the Court to enter his wife's default, which, if granted, will enable him to proceed to get a judgment against his wife without her participation in the case.
If your boyfriend can afford to retain an experienced Family Law Attorney to represent him, he would be wise to do so, because there are technical requirements for the procedures addressed above which he may not know and/or which may be difficult for him to comply with.
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 | www.conviserfamilylaw.com |
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