QUESTION: My wife and split up in April. On Sept. 2 she dropped our son off with me said she couldn't take care off him anymore. Since then she has moved out of county/state and only seen him 2 times and called 5. About 2 hours ago she calls and says she is in town and wants him for his winter break. I fear she will take and run. Can I stop this as she is coming to get him in the morning she said?
MY RESPONSE: You should immediately file a divorce case (an action for dissolution of marriage), and when your wife shows up, have somebody other than you over the age of 18 years serve her with a copy of the filed papers (including the Summons, Petition, and Declaration under UCCJEA). The reverse side of the Summons contains restraining orders against either party taking the minor child out of the state of California, and will be effective and binding on your wife only after your divorce papers have been served on your wife. You don't have to give your son to your wife if you fear that she'll take them out of the state, but your wife will have the opportunity to seek custody and/or visitation orders from the court.
Wednesday, January 25, 2012
IS MY DIVORCE FINAL AFTER I FILE A REQUEST TO ENTER DEFAULT?
QUESTION: If the Court enters a request to enter default that I filed in my divorce case, does that make my divorce final?
MY RESPONSE: No, your divorce is not finalized until a Judgment of Dissolution of Marriage has been entered. If you do nothing, the Court will ultimately dismiss your divorce case. You will need to file a request for a default hearing, and prepare appropriate documents for the divorce hearing, addressing the issues involved in the divorce case (such as child custody, child support, spousal support, attorney's fees, or division of community property or community debts). You would best retain an experienced Family Law Attorney to represent you for the balance of your case.
MY RESPONSE: No, your divorce is not finalized until a Judgment of Dissolution of Marriage has been entered. If you do nothing, the Court will ultimately dismiss your divorce case. You will need to file a request for a default hearing, and prepare appropriate documents for the divorce hearing, addressing the issues involved in the divorce case (such as child custody, child support, spousal support, attorney's fees, or division of community property or community debts). You would best retain an experienced Family Law Attorney to represent you for the balance of your case.
HOW CAN I PREVENT MY EX-HUSBAND FROM STOPPING MY ALIMONY PAYMENTS?
QUESTION: My ex husband wants to stop alimony. How can I stop this?
MY RESPONSE: If your ex-husband has retired, lost his job, or suffered a substantial change of circumstances, if your circumstances have improved, or if you haven't complied with a Gavron warning previously given by the Court, your ex-husband may be entitled to a modification of his Spousal Support obligation. Your best chances in opposing your husband's quest would be by retaining an experienced Family Law Attorney to represent you.
MY RESPONSE: If your ex-husband has retired, lost his job, or suffered a substantial change of circumstances, if your circumstances have improved, or if you haven't complied with a Gavron warning previously given by the Court, your ex-husband may be entitled to a modification of his Spousal Support obligation. Your best chances in opposing your husband's quest would be by retaining an experienced Family Law Attorney to represent you.
HOW CAN I GET A DIVORCE IF MY HUSBAND WON’T FOLLOW THROUGH WITH ANY OF THE REQUIREMENTS?
QUESTION: My husband refuses to sign the divorce papers, he won’t go to the classes, and he won’t do anything else that is required for our divorce. How can I get a divorce under these circumstances?
MY RESPONSE: Have your husband personally served with the divorce papers by somebody other than you over the age of 18, and have the server complete, sign and date a proof of personal service, and file the original of that proof of service with the Court Clerk. If your husband doesn't file and serve his Response on you within 30 days of the date that he was personally served, you can proceed to request that the Court enter his default, and when entered, you can proceed to get a default hearing to get the divorce completed. You would best retain an experienced Family Law Attorney to represent you and handle your divorce, since the documents and requirements to accomplish your goal are fairly complex.
MY RESPONSE: Have your husband personally served with the divorce papers by somebody other than you over the age of 18, and have the server complete, sign and date a proof of personal service, and file the original of that proof of service with the Court Clerk. If your husband doesn't file and serve his Response on you within 30 days of the date that he was personally served, you can proceed to request that the Court enter his default, and when entered, you can proceed to get a default hearing to get the divorce completed. You would best retain an experienced Family Law Attorney to represent you and handle your divorce, since the documents and requirements to accomplish your goal are fairly complex.
CAN I LEGALLY ASK MY HUSBAND FOR A SEPARATION, BUT STAY IN OUR HOME?
QUESTION: My husband’s name is on all of our household bills. I want to separate but remain in our home. I have a 17 year old son. Can I ask my husband for a separation, but still remain in our home?
MY RESPONSE: You don't need to move, and you don't need to "ask for a separation", but if you want to separate from your husband, you need to manifest to your husband that the marriage is over and that you have no intention to resume the marriage - best to do so with a letter that you keep a copy of, and sleep in a different room from the room your husband sleeps in. The letter will establish the date of separation. An important consideration for you to be aware of is that after the date of separation, each party's earnings will be the separate property of the party earning those earnings, whereas during the marriage and prior to separation, each party's earnings are community property. If you separate from your husband, yet continue to live in the same house with him, why don't you divorce him? It generally takes about a year or so to complete divorce proceedings, and your question makes it fairly apparent that the marriage is over. I assume that the reasons why you wish to remain in the family home would include economic reasons and continuity of your son’s lifestyle for the balance of high school. Unless there is domestic violence, you and your son can continue to reside in the same home with your husband during the divorce proceedings. If there is domestic violence or any threat of harm, you may qualify for Domestic Violence Restraining Orders, which could exclude your husband from your home.
MY RESPONSE: You don't need to move, and you don't need to "ask for a separation", but if you want to separate from your husband, you need to manifest to your husband that the marriage is over and that you have no intention to resume the marriage - best to do so with a letter that you keep a copy of, and sleep in a different room from the room your husband sleeps in. The letter will establish the date of separation. An important consideration for you to be aware of is that after the date of separation, each party's earnings will be the separate property of the party earning those earnings, whereas during the marriage and prior to separation, each party's earnings are community property. If you separate from your husband, yet continue to live in the same house with him, why don't you divorce him? It generally takes about a year or so to complete divorce proceedings, and your question makes it fairly apparent that the marriage is over. I assume that the reasons why you wish to remain in the family home would include economic reasons and continuity of your son’s lifestyle for the balance of high school. Unless there is domestic violence, you and your son can continue to reside in the same home with your husband during the divorce proceedings. If there is domestic violence or any threat of harm, you may qualify for Domestic Violence Restraining Orders, which could exclude your husband from your home.
WHERE CAN I VERIFY IF THERE IS A DOMESTIC VIOLENCE RESTRAINING ORDER AGAINST SOMEONE ELSE?
WHERE CAN I VERIFY IF THERE IS A DOMESTIC VIOLENCE RESTRAINING ORDER AGAINST SOMEONE ELSE?
QUESTION: My son has a child with his ex-girlfriend who had since remarried. They share joint custody. He just learned his ex-girlfriend’s husband beat her up, and now there is a restraining order keeping his ex-girlfriend’s husband away from his wife and my granddaughter. Can I go anywhere to verify there is a restraining order against him?
MY RESPONSE: If you have the case number of the Domestic Violence case, you can look at the case file in the Superior Court clerk's office of the court which granted the restraining orders, to view the restraining orders. If you want a copy of the restraining orders, you can purchase a copy from the clerk. Alternatively (especially if you don't have the case number), your son should ask his child's mother for a copy of the Domestic Violence Restraining Order that she has against her husband.
QUESTION: My son has a child with his ex-girlfriend who had since remarried. They share joint custody. He just learned his ex-girlfriend’s husband beat her up, and now there is a restraining order keeping his ex-girlfriend’s husband away from his wife and my granddaughter. Can I go anywhere to verify there is a restraining order against him?
MY RESPONSE: If you have the case number of the Domestic Violence case, you can look at the case file in the Superior Court clerk's office of the court which granted the restraining orders, to view the restraining orders. If you want a copy of the restraining orders, you can purchase a copy from the clerk. Alternatively (especially if you don't have the case number), your son should ask his child's mother for a copy of the Domestic Violence Restraining Order that she has against her husband.
CAN I WAIT A COUPLE OF MONTHS AFTER I SERVE CUSTODY DOCUMENTS BEFORE PROCEEDING?
QUESTION: I have filed for full custody of my son. His father and I were never married. His father has been served in prison. I was advised by the legal help center at the courthouse that I am to come back in on the 31st day to receive a case summary and then proceed based on whether or not he responded. I just started a new job and will be unable to take days off in the near future to proceed. How much time after he responds or fails to respond do I have to continue the legal process? Do I have to go in on the 31st day or can I wait for a couple of months or so? Will anything happen if I wait?
MY RESPONSE: I trust that the service was done by somebody over the age of 18 other than you, since a party can't serve documents in his/her own case. If the service was improperly done, have service properly done ASAP. If the service was properly done, you should file the Proof of Service right away. If you can't do that yourself, have a friend do that, and have the friend bring an extra copy of the Proof of Service for the court clerk to conform and return to your friend so that you can have a court-stamped copy of the Proof of Service. If the Respondent fails to respond to the Paternity papers served on him within 30 days of service, you should wait at least a week beyond those 30 days to make sure that he hasn't responded, due to potential mailing delays. However, you should not wait a couple of months before proceeding to request that the Court enter his default. Some courts dismiss cases where the Petitioner does not diligently proceed. If you can't personally file the request to enter default, have a friend file it for you and get a copy conformed by the clerk. You would best retain an experienced Family Law Attorney to represent you and handle your case, if you can afford to do so and/or borrow the funds to do so.
MY RESPONSE: I trust that the service was done by somebody over the age of 18 other than you, since a party can't serve documents in his/her own case. If the service was improperly done, have service properly done ASAP. If the service was properly done, you should file the Proof of Service right away. If you can't do that yourself, have a friend do that, and have the friend bring an extra copy of the Proof of Service for the court clerk to conform and return to your friend so that you can have a court-stamped copy of the Proof of Service. If the Respondent fails to respond to the Paternity papers served on him within 30 days of service, you should wait at least a week beyond those 30 days to make sure that he hasn't responded, due to potential mailing delays. However, you should not wait a couple of months before proceeding to request that the Court enter his default. Some courts dismiss cases where the Petitioner does not diligently proceed. If you can't personally file the request to enter default, have a friend file it for you and get a copy conformed by the clerk. You would best retain an experienced Family Law Attorney to represent you and handle your case, if you can afford to do so and/or borrow the funds to do so.
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