QUESTION: Is there any way to get child custody determined without a court order or at least without an expensive attorney? If both parents agree on a parenting plan and sign and have it notarized, is there any legality to it? Or is there any other document that I can use in that manner?
MY RESPONSE: It is best to have a court order regarding custody, but it isn't always necessary to have a trial or hearing to establish custody and obtain a child custody order.
If you have a pending Paternity case, if you and the other parent agree on a Parenting Plan, you and the other parent can prepare, sign and file a Stipulation and Order and/or Judgment setting forth your Parenting Plan, the Order on which the Judge can sign.
If you don't have a pending Paternity case, you need to file one and have it served on the other parent, and then prepare, sign (and have the other parent sign) and file a Stipulation and Order and/or Judgment, as noted above.
If you and the other parent cannot agree on a Parenting Plan, the child custody matter will need to be submitted to the Court by way of an Order to Show Cause in the Paternity case, to get a child custody order.
If you file an Order to Show Cause, you and the other parent will be required to mediate the child custody matter in an effort to resolve it, and if you are unable to accomplish a mediation result that is acceptable to both parents, the issue of child custody will be heard by the Court.
You would be wise to at least consult (if not retain) an experienced Family Law Attorney regarding any proposed Paternity case, Stipulation and Order, or Judgment before you prepare any such case or document.
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 |
Thursday, June 30, 2011
Wednesday, June 29, 2011
CAN I GET CHILD SUPPORT AND ONE OF OUR THREE HOMES IN OUR DIVORCE?
QUESTION: We have been married 15 years. We have two boys. We have our family home, plus three ( 3) other homes that are just in my husband's name. If we get a divorce, will I be able to get child support plus one of our other homes?
MY RESPONSE: Your question is difficult to answer because I would need more detailed information, including the circumstances under which your husband received sole title to the three other homes, information about the purchase loans on those homes and any refinances, information about the fair market value and obligations due on each of the homes, and well as information about your income, your husband's income, and your and your husband's custodial timeshare, in order to provide you a measured response.
Your question implies that your family home is community property.
Depending on the facts, the three other homes may be your husband's separate property, community property, or mixed separate and community property.
Whether you can receive one of the homes in a divorce depends upon whether it is community property and whether there is sufficient offsetting community property that your husband can receive to equalize the equity you receive in the home that want to receive.
Child support will be based on on facts specific to your situation, including your husband's income, your income, and the custodial timeshare of your children that you and your husband receive.
In addition, based on your husband's income, your income, the marital lifestyle, and other facts specific to your situation, you may be entitled to an order for spoual support and attorney's fees. Due to the length of your marriage and the fact that you and your husband have two children, spousal support would likely be payable until either party's death or your remarriage.
You would best consult and retain an experienced Family Law Attorney to represent you in your 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: Your question is difficult to answer because I would need more detailed information, including the circumstances under which your husband received sole title to the three other homes, information about the purchase loans on those homes and any refinances, information about the fair market value and obligations due on each of the homes, and well as information about your income, your husband's income, and your and your husband's custodial timeshare, in order to provide you a measured response.
Your question implies that your family home is community property.
Depending on the facts, the three other homes may be your husband's separate property, community property, or mixed separate and community property.
Whether you can receive one of the homes in a divorce depends upon whether it is community property and whether there is sufficient offsetting community property that your husband can receive to equalize the equity you receive in the home that want to receive.
Child support will be based on on facts specific to your situation, including your husband's income, your income, and the custodial timeshare of your children that you and your husband receive.
In addition, based on your husband's income, your income, the marital lifestyle, and other facts specific to your situation, you may be entitled to an order for spoual support and attorney's fees. Due to the length of your marriage and the fact that you and your husband have two children, spousal support would likely be payable until either party's death or your remarriage.
You would best consult and retain an experienced Family Law Attorney to represent you in your 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, June 28, 2011
CAN I GET CUSTODY OF MY HUSBAND'S DAUGHTER?
QUESTION: Can I get child custody if the child chooses to stay with me? I was married for 7 years and never adopted my husbands 2 children from a previous marriage. Now we are divorcing. Can I get custody of the 13 year old if she chooses to stay with me?
MY RESPONSE:
That is a difficult and sensitive issue to deal with.
I recognize that there may have been significant bonding between you and your husband's children, but if you did not adopt his children, you would not have the rights of a parent.
The children's mother and father have parental rights regarding the children.
Also, courts are reluctant to separate children from a marriage - they typically leave all the children with one or the other parent.
I am not saying that you should not seek custody of the 13 year old, because there may be a longshot chance that if the facts strongly support your getting her custody and her parents not getting her custody, you might possibly get her custody.
You would best consult with and retain an experienced Family Law Attorney to represent you in your 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:
That is a difficult and sensitive issue to deal with.
I recognize that there may have been significant bonding between you and your husband's children, but if you did not adopt his children, you would not have the rights of a parent.
The children's mother and father have parental rights regarding the children.
Also, courts are reluctant to separate children from a marriage - they typically leave all the children with one or the other parent.
I am not saying that you should not seek custody of the 13 year old, because there may be a longshot chance that if the facts strongly support your getting her custody and her parents not getting her custody, you might possibly get her custody.
You would best consult with and retain an experienced Family Law Attorney to represent you in your 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 |
Monday, June 27, 2011
WHAT HAPPENS TO SPOUSAL SUPPORT WHEN A CHILD IS EMANCIPATED?
QUESTION: When a supported child becomes emancipated, does spousal support increase, if so, why, and by how much? We were married fo 25 years. Also is there a set time limit as to when receiving spouse should resume normal work?
MY RESPONSE: Until January 1, 2014 (the "sunset date" of the applicable legislation - unless the legislature extends the cutoff date), if child support terminates pursuant to Family Code Section 3901(a) [i.e, if your unmarried child turns 18, or is a full-time high school student, is not self-supporting, and completes the 12th grade or attains the age of 19, whichever occurs first], then pursuant to Family Code Section 4326, the supported spouse can file a Motion to modify spousal support upwards no later than six (6) months from the date the child support order terminates (with certain statutory exceptions).
That code section may later be extended, or it may expire on December 1, 2013, as the legislature deems appropriate.
If your use of the word "emancipated" refers to the child coming of age as addressed hereinabove, the supported spouse can timely seek and obtain relief pursuant to Family Code Section 3901(a).
Whereas that Section does not address the emancipation of the supported child occurs in another manner, i.e., through proceedings for emancipation, marrying, joining the military service, or becoming self-supporting, in the event that child support payments are ceased as a result of such emancipation, it would be wise for the supported spouse to file a Motion or Order to Show Cause to modify Spousal Support, within the six (6) month period after child support ceased, and argue to the Court that Family Code Section 4326 should, by analogy, be applicable to allow modification of Spousal Support based on cutoff of child support due to emancipation, as it is based on cutoff of child support because of a child coming of age.
There is no particular time limit as to when your ex-wife should become self supporting, but you could request that the Court issue a Gavron warning, if one has not been issued to your ex-wife already.
Your terminology "should resume normal work" implies that your ex-wife previously had a normal job.
At such time as you deem that your ex-wife should have "resumed normal work", you could file a Motion to terminate or modify spousal support (downwards), to have the Court issue a Gavron warning (if she wasn't so warned previously), and to have your ex-wife examined by a Vocational Training Consultant, in an effort to adduce evidence that income should be imputed to your ex-wife by the Court, with the intended result of minimizing or terminating her spousal support.
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: Until January 1, 2014 (the "sunset date" of the applicable legislation - unless the legislature extends the cutoff date), if child support terminates pursuant to Family Code Section 3901(a) [i.e, if your unmarried child turns 18, or is a full-time high school student, is not self-supporting, and completes the 12th grade or attains the age of 19, whichever occurs first], then pursuant to Family Code Section 4326, the supported spouse can file a Motion to modify spousal support upwards no later than six (6) months from the date the child support order terminates (with certain statutory exceptions).
That code section may later be extended, or it may expire on December 1, 2013, as the legislature deems appropriate.
If your use of the word "emancipated" refers to the child coming of age as addressed hereinabove, the supported spouse can timely seek and obtain relief pursuant to Family Code Section 3901(a).
Whereas that Section does not address the emancipation of the supported child occurs in another manner, i.e., through proceedings for emancipation, marrying, joining the military service, or becoming self-supporting, in the event that child support payments are ceased as a result of such emancipation, it would be wise for the supported spouse to file a Motion or Order to Show Cause to modify Spousal Support, within the six (6) month period after child support ceased, and argue to the Court that Family Code Section 4326 should, by analogy, be applicable to allow modification of Spousal Support based on cutoff of child support due to emancipation, as it is based on cutoff of child support because of a child coming of age.
There is no particular time limit as to when your ex-wife should become self supporting, but you could request that the Court issue a Gavron warning, if one has not been issued to your ex-wife already.
Your terminology "should resume normal work" implies that your ex-wife previously had a normal job.
At such time as you deem that your ex-wife should have "resumed normal work", you could file a Motion to terminate or modify spousal support (downwards), to have the Court issue a Gavron warning (if she wasn't so warned previously), and to have your ex-wife examined by a Vocational Training Consultant, in an effort to adduce evidence that income should be imputed to your ex-wife by the Court, with the intended result of minimizing or terminating her spousal support.
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 |
Sunday, June 26, 2011
CAN I WRITE MY OWN PREMARITAL AGREEMENT?
QUESTION: Is it legal for me to write my own premarital agreement or do I need an attorney?
MY RESPONSE:
It is legal for you to write your own premarital agreement, but for many reasons, it would be unwise for you to do that, unless you are a California Family Law Attorney or at least well educated and/or versed in California Family Law, but even then, you may lack the objectivity needed to prepare an adequate or enforceable premarital agreement.
You may not be familiar, or sufficiently familiar, with, among other things, the statutory and appellate case law relating to things that your premarital agreement addresses or should address and/or relating to how and when the premarital agreement should be presented to your prospective spouse, with a cover letter saying what, resulting in either a premarital agreement that is unenforceable, or a premarital agreement that has provisions against your own interests, and you won't be able to use your own ignorance as a defense to a premarital agreement that you write badly.
Also, your fiance' will need to consult with a California Family Law Attorney regarding the premarital agreement, and if she doesn't, it will more than likely render the premarital agreement unenforceable.
If you have assets and rights worthy of protecting with a premarital agreement, you should seek the services of an experienced California Family Law Attorney to advise and counsel you and to prepare the premarital agreement on your behalf.
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:
It is legal for you to write your own premarital agreement, but for many reasons, it would be unwise for you to do that, unless you are a California Family Law Attorney or at least well educated and/or versed in California Family Law, but even then, you may lack the objectivity needed to prepare an adequate or enforceable premarital agreement.
You may not be familiar, or sufficiently familiar, with, among other things, the statutory and appellate case law relating to things that your premarital agreement addresses or should address and/or relating to how and when the premarital agreement should be presented to your prospective spouse, with a cover letter saying what, resulting in either a premarital agreement that is unenforceable, or a premarital agreement that has provisions against your own interests, and you won't be able to use your own ignorance as a defense to a premarital agreement that you write badly.
Also, your fiance' will need to consult with a California Family Law Attorney regarding the premarital agreement, and if she doesn't, it will more than likely render the premarital agreement unenforceable.
If you have assets and rights worthy of protecting with a premarital agreement, you should seek the services of an experienced California Family Law Attorney to advise and counsel you and to prepare the premarital agreement on your behalf.
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 MARITAL AFFAIRS AFFECT MY DIVORCE?
QUESTION: What will happen if I was at fault for divorce? I have been married 17 years. We have 2 children, a 10 year old son and a 14 year old daughter. Over 17 years we had 2 affairs. We should have divorced a long time ago but due to the kids and bills stayed married. W just went thru bankruptcy and have spent the last 1 month living apart. My son lives with me and my daughter with my wife at her parents. A couple of weeks ago wife decides she was going to keep my son, allowing me to see him when she decides. My son wants to be with me! So the question is: what happens in a divorce if I was at fault (affairs)? I will not contest divorce. I am scared nervous and lost. Thank you
MY RESPONSE:
Don't be scared. California is a no-fault divorce state.
If your wife wants a divorce, the Court will give it to her based simply on a generic claim of "irreconcilable differences". Fault is not an issue in a divorce. Whatever affair(s) you may have had should not impact the issue of child custody.
California determines child custody based on the quality of the relationship and parenting of the respective parents with the children.
Protect yourself, your rights, and your relationship with each of your children by timely and properly responding to the papers that were served and actively participating in the divorce proceedings, to avoid becoming their victim.
You would best retain an experienced Family Law Attorney to represent you in your divorce/custody case.
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:
Don't be scared. California is a no-fault divorce state.
If your wife wants a divorce, the Court will give it to her based simply on a generic claim of "irreconcilable differences". Fault is not an issue in a divorce. Whatever affair(s) you may have had should not impact the issue of child custody.
California determines child custody based on the quality of the relationship and parenting of the respective parents with the children.
Protect yourself, your rights, and your relationship with each of your children by timely and properly responding to the papers that were served and actively participating in the divorce proceedings, to avoid becoming their victim.
You would best retain an experienced Family Law Attorney to represent you in your divorce/custody case.
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 |
Friday, June 24, 2011
CAN A BIPOLAR FATHER GET CUSTODY IN A DIVORCE?
QUESTION: Detail: My wife knows that I was diagnosed with bipolar disorder and will mention this in court. Will this affect my custody of my daughter?
MY RESPONSE: Many factors are involved in the Court's determination of child custody, including the quality of parties' respective relationships with their children and each other, and the parties' respective parenting abilities.
Testimony about your bipolar disorder might influence the Court's determination of child custody.
There are likely valid evidentiary objections that a seasoned Family Law Attorney could make to your wife's (or her attorney's) attempt to get evidence regarding your bipolar disorder before the Court.
In the event that those evidentiary objections are not sustained by the Court, if you are taking medication prescribed for your condition and your condition is under control, you could testify to those facts, and if your testimony is believed by the Court, your bipolar condition should not affect your ability to get custody of your daughter.
It would be preferable to interpose evidentiary objections in an effort to prevent your wife's evidence regarding your bipolar condition from getting before the court in the first place.
If that evidence is excluded by the Court, you wouldn't need to defend against it.
If that evidence comes in and you testify that your condition is controlled by medication, you risk the possibility that your wife (and/or others) could controvert that defense, and the Court would have a dilemma as to whom to believe as to whether or not your condition is controlled, potentially affecting the Court's determination of child custody.
You would best retain an experienced Family Law Attorney to represent you in your divorce/custody matter.
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: Many factors are involved in the Court's determination of child custody, including the quality of parties' respective relationships with their children and each other, and the parties' respective parenting abilities.
Testimony about your bipolar disorder might influence the Court's determination of child custody.
There are likely valid evidentiary objections that a seasoned Family Law Attorney could make to your wife's (or her attorney's) attempt to get evidence regarding your bipolar disorder before the Court.
In the event that those evidentiary objections are not sustained by the Court, if you are taking medication prescribed for your condition and your condition is under control, you could testify to those facts, and if your testimony is believed by the Court, your bipolar condition should not affect your ability to get custody of your daughter.
It would be preferable to interpose evidentiary objections in an effort to prevent your wife's evidence regarding your bipolar condition from getting before the court in the first place.
If that evidence is excluded by the Court, you wouldn't need to defend against it.
If that evidence comes in and you testify that your condition is controlled by medication, you risk the possibility that your wife (and/or others) could controvert that defense, and the Court would have a dilemma as to whom to believe as to whether or not your condition is controlled, potentially affecting the Court's determination of child custody.
You would best retain an experienced Family Law Attorney to represent you in your divorce/custody matter.
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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