Wednesday, October 17, 2007

Finding Hidden Assets During a Divorce

If you have no independent knowledge of the assets you have accumulated during your marriage, there is no sure-fire way to make sure that your spouse discloses all your assets in the divorce. This is especially true if your spouse receives significant amounts of cash or your husband has diverting money from the family bank account for many years.

In California, is that each spouse has a duty to disclose to the other party everything the parties own and everything the parties owe (either jointly or separately). Each spouse also has a duty to disclose all sources of income. This includes any income from a business venture, a salary, or from investments. If your spouse does not disclose to you all the assets and you later discover the existence of that asset, you may be awarded the entire value of that asset.

In a divorce, you have the right to conduct discovery. This consists of asking your spouse questions, either in writing or in person. Your can also ask questions of other witnesses, if needed. In addition, your attorney may ask your husband to provide copies of financial documents, such as bank statements, tax returns, deeds to property, etc. This will give you a starting point in your quest to find your assets.

If your spouse puts all his money in the bank and if he writes checks for all your bills, you simply need to obtain a copy of records from every bank account that you are aware of. The statements can then be examined to make sure that all sources of income have been disclosed by your husband. They can also be used to determine whether there are any unclaimed assets. Depending upon the size of your estate, a forensic accountant would normally be retained to help you analyze the bank statements. Generally speaking, you would only hire an expert if you believed your estate was worth $1 million or more.

In addition to analyzing your bank statements, a forensic accountant can also learn a great deal about your assets by examining your tax returns. He or she could help you determine what specific items your attorney should request during the discovery process.

Another commonly-used method for determining hidden assets is the use of a private detective. A detective is valuable in examining public records to determine whether your spouse has any undeclared interest in business ventures, corporations or real estate. A private investigator can also help in finding hidden bank accounts.

If you and your spouse are still living together and you are only contemplating divorce, your best bet is to get a copy of every financial document you can before you leave. If you cannot find a copy of your income tax returns, at least make sure you know who your accountant is, so that you can request a copy at a later date. If you and your spouse are still on speaking terms, request a list of all assets and debts even before you file the divorce action. Ask him for a list of all bank accounts with the balances. If you have to hire an attorney to independently investigate the nature and location of each asset, your divorce will be lengthy and expensive. It is best to obtain as much information as you can on your own, before even filing for divorce.

Monday, October 8, 2007

Guardianships in California

Establishing a guardianship in California may be necessary for a number of reasons. However, a guardianship can only be established to obtain custody of a child who is under the age of eighteen years (an adult who is unable to care for him or herself needs a "conservatorship"), and only if that child is one who is not being properly cared for in the custody of his/her parents.

The purpose of a Ca guardianship is to ensure that a child who is not being cared for by his/her parents has someone who is capable of assuming custody and taking care of that child as if that child was the guardian's own. A guardian is responsible for providing financial and emotional support to the child. The guardian assumes all responsibilities for that child, and must make sure all the child's needs are met, including making sure the child stays healthy, gets an education, and has all his/her needs met.

There are two ways in which a guardianship can be established. The first is when Child Protective Services (CPS) steps in and removes a child from the parents' home. CPS must first attempt to place the child with a relative. If a suitable relative is found, the county will help the relative establish a guardianship through a "dependency proceeding." The relative almost never needs his/her own attorney, and the service is free.

The other way in which a guardianship can be established is through a private proceeding in probate court. A private guardianship would necessary if either the parents were unable to care for the child and leaves the child with a relative; or a relative observes the parents are unfit and choose to file a guardianship in order to prevent the child from being placed in the custody of CPS.

If the parents leave the child with a relative for a short period of time, a guardianship is probably not necessary. The parents can simply sign a power of attorney in front of a notary public giving a relative the ability to make decisions for the child concerning that child's health, welfare and safety. Similarly, a guardianship may also not be necessary for a teenager who is almost eighteen years old.

Guardianship advice provided by the law office of Famularo & Associates, family law attorneys serving the Temecula, Murrieta, Riverside and Hemet areas of Riverside County, California. For additional information, please visit one of our websites: temecula divorce, riverside county family law, or family lawyer in temecula.

Annulments in California

An annulment is a legal proceeding in which a marriage is declared invalid. Legally speaking, if an annulment is granted, the marriage never happened. This means that there is no property to divide, and the court does not have the power to award spousal support to either party. The idea that the marriage never existed is really a legal fiction; both the marriage and the nullity proceeding will be public record, and anyone can access the information in the future. Unlike a divorce, an annulment always requires a trial, even if the other party agrees the marriage should be annulled. Also unlike a divorce, there is no waiting period in an annulment. Also, the court can dissolve the marriage immediately, without any waiting period. There are two types of annulments: those based upon void marriages, and those based upon voidable marriages. An annulment based upon a void marriage would be are marriages that can never be valid, regardless of how much time has passed between when the parties were married and when the parties separated. This includes the example of bigamy. If one party is already married at the time he or she attempts to remarry, the second marriage can almost never be valid (there are some exceptions to this rule). Therefore, the marriage would be void, no matter how much time has gone by. Because the marriage was never valid to begin with, for this type of situation, the court will never look at how long the couple was married in deciding whether the marriage should be annulled. The court will grant the annulment at any time based upon the fact that the marriage never existed. The second basis is a voidable marriage. This is the most common situation. This includes: one person being under the legal age when he or she was married, one or both persons being under the influence at the time the parties marry, one or both persons were insane at the time the parties married, or the marriage was based upon fraud. Fraud is by far the most common basis for an annulment. An annulment based upon fraud requires one spouse to prove sastifactorily to the court that (1) your spouse represented something to you before you got married that went to the heart of the marriage, (2) the injured spouse only learned that the representation was not true after the parties married, (3) had the injured party known the truth he or she would not have gotten married, and (4) the injured party separated from the other spouse within a reasonable time after discovering the truth. A misrepresentation going to the heart of the mariage has been narrowly construed. Generally speaking, the misrepresentation must be about one spouse's actual love for the other or a misrepresentation about anything that effects the parties' ability to have children. For instance, a spouse would qualify for an annulment based upon fraud if one spouse representated to the other that he or she wanted to get married because he or she loved the other spouse and the injured spouse later discovered the other spouse actually married the injured spouse to obtain a green card. Similarly, an annulment is possible if one spouse tells the injured spouse before the marriage that he or she wants children, and the injured spouse later found out the other was impotent or sterile, the court would find fraud. On the other hand, one spouse having a hidden addiction does not qualify. For those people who do not qualify, but have only been married a short amount of time, they may qualify for a simple procedure called a summary dissolution. This type of divorce which is designed for people with little or no assets and who have been married for only a short time. The process is much simpler, involves less forms, does not require any court appearances, and can be done without a lawyer. However, your spouse must cooperate, and sign the paperwork.

Saturday, October 6, 2007

How to Serve a California Legal Action

Whether you are file a divorce, a legal separation, or a paternity suit, any time one person files a lawuit, he or she must properly serve the other party to the action. This usually requires you to personally serve your spouse with a copy of the lawsuit. The person who files the paperwork is called the Petitioner. The person who must be served with the paperwork is called the Respondent.

Personal service is the act of placing the paperwork in view of the other party. The purpose of personal service is to place the Respondent on notice that a legal action has been filed. Service can be done by anyone over the age of eighteen years old. However, the Petitioner cannot serve the paperwork upon the Respondent. It has to be someone else. After the paperwork is served, the person who performed the service must fill out a document called a Proof of Service. The Proof of Service is then filed with the court so the judge knows the paperwork was actually served.

Because family law related lawsuits are often emotional, it is not always best to use a professional process server to hand the documents to the Respondent. Each situation is different. As a general rule, however, it is best to diffuse the situation by warning the Respondent that a lawsuit has been filed and arranging service of the documents beforehand. If domestic violence is involved, a competent family law attorney should be consulted before the filing or the service of any lawsuit.

When serving the divorce, paternity or legal separation paperwork, the Respondent does not have to agree to service and does not have to be handed the documents. The server simply has to attempt to hand the documents to the Respondent, and then place the paperwork within the sight of the Respondent.

Although it is the most common, personal service is not the only way to serve a lawsuit. Service can also be accomplished by mail. This is done by mailing the lawsuit to the Respondent's home and asking that he sign and return a form to you. If the Respondent does sign the form, he has been properly served. In some instances, a party will not know where his or her spouse is. In this case, the divorce paperwork must be served by publication.

For more information about this or any other family law related issue, please e-mail us at info@temeculadivorce.com or call us at (951) 816-9543. Famularo & Associates serves the Temecula, Murrieta and Hemet areas of Riverside County, California.

Please visit our web sites at: Temecula Divorce, Family Law in Riverside County or Family Lawyer in Temecula

Friday, October 5, 2007

Uncontested Divorce in California

An uncontested divorce is a divorce where the parties agree to the terms before the filing of the divorce paperwork. The advantage of an uncontested divorce is that the parties can avoid litigation; neither party ever appears in court, and because there is no litigation, the cost of an uncontested divorce is substantially less. The disadvantage of an uncontested divorce is that it requires each party to compromise. In order to obtain a settlement, each party must be flexible and make realistic demands from the other party.

An uncontested divorce is not appropriate for everyone. If you have a large estate, complicated legal issues, have an unreasonable spouse, or you are a victim of domestic violence, an uncontested divorce is not for you.

Since an uncontested divorce is primarily negotiated by the parties among themselves, it is important to seek legal advice early from a family law lawyer. Each party should have an idea as to what his/her rights and obligations are before entering into any negotiations and before filing for divorce.

In order to qualify for an uncontested divorce, the parties must agree on all the terms of the divorce. This includes agreeing on entirely on each of the following issues: child support, spousal support, child custody, child visitation, attorney fees, division of property and division of debts.

The divorce agreement need not be written up in a formal agreement or notarized. One party simply makes an appointment to see a family law attorney (or even a paralegal) and tells the attorney that the divorce will be uncontested. The divorce attorney will then gather the information to file the initial paperwork, all the paperwork required for disclosures, and the terms of the divorce judgment. The attorney will file the divorce papers, serve the divorce papers on the other party, prepare the divorce judgment, arrange for both parties to sign the documents, and then file them with the court. Since the divorce papers are all prepared in the office and then filed with the family law court, there is no reason for either party to ever set foot in court.

Even though the parties never set foot in a courtroom in an uncontested divorce, the divorce attorney who prepares the divorce paperwork can only represent one party. For this reason, we only meet with one party to the divorce and will give unlimited legal advice to that person. Although we prepare the disclsoure documents for the other side as a courtesy, we advise the other party (called the Respondent) that we do not represent him or her and tell the Respondent that he or she must obtain independent legal advice. This avoids any potential conflict of interest and ensures that both sides understand we represent only one party. Later on, if the other side changes his or her mind and tries to set aside a divorce judgment, he or she will have a much more difficult time.

Although the paperwork for an uncontested divorce takes only a few weeks to prepare the process from start to finish is much longer than that. First of all, the initial divorce paperwork must be prepared, signed and filed. Then, the Respondent must be served. The disoclosure documents must be prepared for both sides, and finally the divorce judgment must be prepared and approved by both sides. Once both sides have signed and approved the divorce judgment, and thirty days have run, the final divorce paperwork can be filed with the court. Even after the paperwork is approved by the court, the divorce will not be final. The divorce will not be completed (e.g. final) until the waiting period has expired; this is six months and one day after the Respondent has been served.

If you have any questions about an uncontested divorce, or any other family law related question and you live in the Temecula, Murrieta or Hemet areas of Riverside County, California, please call us at (951) 816-9543 with your family law questions, or simply e-mail us at info@temeculadivorce.com.

You may also visit one of our websites: Temecula Divorce Lawyer; Riverside Family Law Lawyer or Family Lawyer in Temecula.

Thursday, October 4, 2007

Establishing a California Child Support Order

.In order to establish a child support, you must first file a lawsuit. This can either be a divorce, a paternity suit, or a legal separation. At the same time a lawsuit is filed, you file an Order to Show Cause, as well. An Order to Show Cause is basically an appointment to see the judge so that you can request the court make orders on your behalf. In this case, you will be requesting the court issue orders for child support at the hearing. Along with the Order to Show Cause, you must file financial documentation indicating how much money you make. This is done by filing a court form called either a Financial Declaration or an Income and Expense Declaration. Along with the form, you must provide the court with your last three paycheck stubs or a Profit and Loss Statement if you are self-employed. You should also have your state and federal tax returns available at the hearing (do not attach your tax returns to the paperwork or they will become public record). Both the initial lawsuit and the Order to Show Cause will cost money to file. This is called a filing fee. The filing fee is money that goes directly to the court to help the county offset the cost of paying its court staff to process your case. As soon as you file the Order to Show Cause you will receive a court date. This is generally six to eight weeks away. You must then serve the other party. Generally speaking, the Order to Show Cause need only be served by mail-- but beware, the underlying lawsuit must be personally served. Contact a family law attorney for more details. At the court date, the judge will make a court order for guideline child support. This number is based upon a mathematical formula and is usually determined with the help of a computer program. Guideline child support is based upon the number of children you have together, how much time each party spends with the children, each party's tax filing status, each party's income, and a number of other items. Once you receive the child support order, you must then enforce it. This is done by filing a Wage Assignment with the court, and then serving it upon the payor's employer. A Wage Assignment is a court order requiring the employer to directly deduct child support from the payor's paycheck. Child support is then sent directly to you from the employer.

Spousal Support in California

Spousal support used to be known as alimony. This term is no longer used in California. The purpose of spousal support is to help one spouse become self-supporting after separation. There are two types of spousal support: temporary and permanent. Temporary support is ordered during before the divorce becomes final. Permanent support is ordered at time of trial.

Spousal support is dependent upon a number of factors, one of which is whether the marriage was "lengthy" or "short-term." A "lengthy" marriage is any marriage that lasts for ten years or more. A "short-term" marriage is any marriage lasting for less than ten years. The length of the marriage is defined as the period between the date of marriage and the date of separation (not the divorce date). The date of separation is the date that one spouse first realizes that the marriage is over, cannot be repaired, and decides he or she wants a divorce.

In a lengthy marriage, there is a possibility that the payor of spousal support will have to pay support for the rest of his or her life. In a short-term marriage, support is generally paid for one-half the length of the marriage.

Temporary support is generally calculated with the use of a computer program, whereas permanent support is weighed against many factors; such as each party's age, earning ability, education, health, work history, financial need, ability to contribute, personal assets, and the length of the marriage. All spousal support orders are discretionary. The court can make whatever orders it believes are fair under the circumstances.

As a rule of thumb, if only one spouse worked and the marriage was a lenghty one, the working spouse should expect to pay support for a significant amount of time, as well as a portion of the other party's attorney fees. Spousal support orders can be as high as 45% of the working spouse's net income.

Monday, October 1, 2007

California Domestic Violence Restraining Orders

Divorce, division of property, custody, child support, spousal support, and domestic violence information provided by an experienced family law and divorce attorney serving the Temecula, Murrieta, and Hemet areas of Riverside County, California.

Although most people think of domestic violence as a husband hitting his wife, domestic violence is actually a much broader concept. California courts define domestic violence as the use of force or fear to intimidate another person. Domestic violence restraining orders can be obtained in marriages, dating relationships, and among family members. Examples of domestic violence include threats of violence, throwing an object against a wall or hitting the wall in the presence of the victim, taking away the person’s car keys, preventing the person from leaving a room, breaking an object in their presence, grabbing the person’s wrist, or intentionally bumping into the person. These examples are not exhaustive, and usually domestic violence consists of a pattern of activities designed to control the other person through intimidation.

If you are a victim of domestic violence, you can get a “kick out” order. To do so, you should first find yourself a competent family law attorney. Then you need to decide whether you really want to file for divorce. If yes, you would file a divorce lawsuit and a request for the kick out order at the same time. Otherwise, you could file a domestic violence action now, and a divorce at a later time, if desired.

The process to obtain your restraining orders would be through an emergency application, commonly called an “ex parte.” This is a request to the court that it make certain temporary, emergency orders. In your case, you would be asking for temporary orders to protect you. Your paperwork would outline for the judge the type of abuse you have suffered. The judge would then decide whether to issue orders to protect you. Your spouse will not know you have filed the paperwork until you obtain an order from the court. In Riverside county, you are supposed to be able to file a request in the morning and obtain a restraining order by the end of the day. Usually, however, it takes about three to four days to obtain a court order.

If an emergency protective order is issued, it is only good for twenty-one days. At the end of that time, the court will have a hearing to determine whether the orders should be extended. At the hearing on the permanent restraining order, your spouse will be notified. Your spouse will have the right to make you testify, and your spouse will have the right to call his/her own witnesses. If the court finds there was good cause to issue the original court order, it will make those orders permanent for a period of up to five years.

Both the temporary and the permanent restraining orders will prohibit your spouse from contacting you in any way, from being within 100 yards of you, your home, your place of business, and your vehicle. If your spouse violates the restraining orders, he/she will be arrested and criminally prosecuted. Although there is no guarantee that your spouse will not violate the restraining order, it is very rare for anyone to do so more than once. The penalties for violating an order are very severe, and the orders are easy to enforce.

If a restraining order is issued, you should call your local police department and have them come to your home when your husband is present. Do not confront your husband on your own. A policeman will serve the restraining order for you and then escort your spouse through the house so that he/she can obtain a bag of clothing. A policeman will also advise your spouse about the legal consequences of violating the order. As soon as your spouse is out of the home, your next call should be to a local locksmith; change your locks and your garage code immediately. Thereafter, if your spouse attempts to e-mail you, send you a text message, call you on the telephone, send you flowers, drive by your house, or send you a card, it is your job to notify the police.

If you live in the Temecula, Murrieta, Hemet or Riverside areas of Riverside County, California and have any questions about obtaining a domestic violence restraining order, or if you need additional divorce information, please feel free to contact our office to set up an appointment with a divorce lawyer at Famularo & Associates by calling: (951) 816-9543.

For more information, please visit one of our websites: Temecula Divorce Lawyer, Riverside County Family Law, or Family Lawyer in Temecula

Monday, September 3, 2007

How to Find a Competent Divorce and Family Law Attorney

Division of Property information, custody information, and Divorce help provided by an experienced family law and divorce attorney serving the Temecula, Murrieta, and Hemet areas of Riverside County, California.

If you are undergoing a divorce, or if you are experiencing a family law problem, it is likely you will need a divorce attorney. How do you find a good family law attorney? The answer is that there is no sure-fire way to find an attorney who is right for you.

Most importantly is that you find an attorney who will take time to listen to you and answer your questions. Make sure that you trust and feel comfortable with whomever you choose. Most people begin their search for a family law attorney by asking friends and relatives if they have used an attorney for a similar problem. Another common way to find an attorney is to ask for a referral from another expert, such as another attorney in a different field, an accountant, or even a famiy counselor. Other people prefer attorney referral services. However, beware, attorney services do not ensure the attorneys they promote are competent. Referral services are paid memberships that only require the attorney members to meet minimum qualifications.

You do want to make sure that the attorney you hire limits his or her practice to only family law matters; seems interested in your problem; takes time to listen; makes you feel comfortable; is anxious to provide you with information; has the answers readily available; and has been practicing law for a minimum of five years. Hiring an attorney is like buying a pair of shoes. Not every attorney is for every person. The fit has to be comfortable.

In short, there is no sure-fire way to make sure that the attorney you choose will be right for you. Follow your intuition, and choose the attorney you feel the most comfortable with.

If you live in the Temecula, Murrieta, Hemet or Riverside areas of Riverside County, California and have any questions about obtaining property rights or if you need divorce information, please feel free to contact our office to set up an appointment with a divorce lawyer at: (951) 816-9543.

For more infomation, please visit our websites: Family Lawyer in Riverside County; Temecula Divorce Lawyer, Family Law Attorney in Temecula

Tuesday, August 28, 2007

My Husband Just Served Me With Divorce Papers, What Do I Do?

Division of Property information, custody information, and Divorce help provided by an experienced family law and divorce attorney serving the Temecula, Murrieta, and Hemet areas of Riverside County, California.

Dear Famularo & Associates:
My husband of 30 years just had me served with divorce papers. He didn't even tell me ahead of time. He moved out that day. My husband is very successful and our net worth is several million dollars. He thinks he doesn't have to give me anything and that if he retires early, at the age of 62, he won't have to pay spousal support. Obviously, he has his head in the sand (that's the kindest way I can think of to say that.)

Anyway, can he just retire early and get out of paying me spousal support? Also, I'm really not sure exactly what all of OUR assets are because he has several different accounts with stock brokerages, so how can I be sure he will disclose all of our assets when we divide our property as the law requires him to do?

I know I need a divorce attorney, but I don't want to spend tens of thousands of dollars just to get a divorce so I want to be careful about who I hire. No offense, but I know sometimes just an attorney's own style can dictate the cost of a divorce and I'd much rather hire someone with an affordable style.
Thank you.
Emily in Murrieta


Dear Emily,
If your husband served you with divorce papers, you have thirty days from the time you received the documents to file your own papers (called a Response) with the court. The Response tells the court that you intend to participate in the divorce proceedings and it prevents your husband from dividing your estate without your permission. Secondly, California is a no-fault state. So, even if you do not want the divorce, the mere fact that your husband does is grounds for divorce.


California is also a community property state. If your husband is a very successful businessman who has built his wealth during the marriage, that wealth is half yours. Everything that was earned by either of you during the marriage through time, effort or skill is community property, and is divided 50-50, even if your husband was a brilliant businessman responsible for accumulating all of your assets and you were a stay-at-home wife through the entire marriage. Your husband’s head is indeed in the sand if he thinks he will walk away with the entire estate.

Your husband may or may not have to pay spousal support. He certainly has a duty to support you given the length of the marriage, and your age. However, at age 62, he also has a right to retire. Remember though, you are worth millions, and you will be entitled to one-half of any retirement income you and your husband have earned, as well as one-half the estate. If at the end of the divorce process, your retirement income is equal to his and you have also received half of all the assets, there is no longer a need for spousal support. If, on the other hand, your husband continues to work, you will receive spousal support over and above the division of assets.

The tricky part will be making sure you find all of the assets. Obviously, your husband has been planning this for a while, and it is very possible that he has hidden assets somewhere. Your husband has a legal duty to disclose all the assets to you. If he fails to do so, and you can prove that he intentionally hid those assets from you, the court will award you 100% of the asset.

There are various ways to find those assets throughout the "discovery" (or fact-finding) period of your divorce. You can obtain information by hiring a forensic accountant who can examine your tax returns, books and records and bank statements; you can obtain the brokerage records and other financial records directly from the source; and you can even hire a private investigator to search public records for information.

There is really no sure- fire method of finding a good attorney, especially if you make price your major criteria. This is not a time to scrimp on cost. Among the most common ways to find an attorney is to obtain a referral through your local bar association or to ask divorced friends to recommend one. However, the bar association does not police the quality of its members, and because your divorce will be more complicated than most, your friends’ average divorce attorney may not work for you.

You need to make sure the divorce attorney you hire is experienced in high-asset divorce cases, is easy to talk to, takes the time to allow you to talk during the initial interview, and provides you with some type of overall strategy during the initial consultation. I would suggest you get a referral from another professional you trust. Start with your general attorney and your accountant for a referral. Interview three attorneys who you have pre-screened through other sources and who you know are competent. Then hire the one who is most interested in you, and whom you feel most comfortable talking to. An attorney who is a certified family law lawyer is also a plus.

If you live in the Temecula, Murrieta, Hemet or Riverside areas of Riverside County, California and have any questions about obtaining property rights or if you need divorce information, please feel free to contact our office to set up an appointment with a divorce lawyer at: (951) 816-9543.

For more information, please visit our websites: Family Law Attorney in Temecula, Divorce Attorney in Temecula, Riverside County Family Lawyer

Saturday, August 25, 2007

Do I Qualify For an Annulment?

Annument information and Divorce help provided by an experienced family law and divorce attorney serving the Temecula, Murrieta, and Hemet areas of Riverside County, California.

Dear Famularo & Associates:
I need to know if I qualify for an annulment. Here is the situation. My husband and I have been married for six months. Before we married, he was the most attentive, thoughtful man I had ever known. After we got married, he completely changed. I have since discovered that he is addicted to video games. All he does from the time he gets home from work until the time he goes to bed is play games. He completely ignores me. I would not have married him if I had known that he had this addiction. I want out! I do not want a divorce because I know that a divorce will ruin my credit. Please tell me if I qualify for an annulment and how long I have to file.
--Kay in Temecula

Dear Kay:
There are two types of annulments: those based upon void marriages, and those based upon voidable marriages.

An annulment based upon a void marriage would be, for instance, if your husband was already married when he married you. For those types of situations, there is no time frame to file for an annulment. Because the marriage was never valid to begin with, for this type of situation, the court will not ever look at how long the two of you were married. It will grant the annulment at any time based upon the fact that the marriage never existed.

You are inquiring about an annulment based upon a voidable marriage. This is the most common situation. This type of annulment would be as a result of one person being under the legal age when he or she was married, one or both people being under the influence at the time, or even one or both people being insane. In your situation, the person you married was not the person you fell in love with, and had you know the truth, you would never have married.

Your situation is an annulment based upon fraud, and is the most common type of annulment. The definition of this type of annulment is that your spouse represented something to you before you got married that went to the heart of your desire to marry him. It was not true. Had you known the truth you would not have gotten married. The time you have to file for this type of an annulment is within a reasonable time after discovering the truth. You do not qualify for an annulment, though.

In order to qualify for an annulment based upon fraud, the representation made by your husband must go to the heart of the marriage. This has been very narrowly construed to mean any misrepresentations about your spouse's actual love for you or anything that effects your ability to have children. For instance, you would qualify for an annulment based upon fraud if your husband told you he wanted to marry you because he loved you and you later found out that he was an illegal alien and actually married you to obtain a green card. Similarly, if your husband told you he wanted lots of children before the marriage, and you later found out he was impotent or sterile, you could get an annulment. If an annulment is granted, the marriage never existed. This means the court cannot make orders concerning the division of property, not make any orders for spousal support.

In your situation, your husband has an addiction. This does not necessarily mean that he did not love you when you married him. Only that you misjudged his character. The law says that a previously-undiscovered addiction does not qualify as a reason to get an annulment.

Although you do not qualify for an annulment, you can still obtain a divorce. You are wrong in believing that a divorce will effect your credit. It will not. I am sure you have heard many people say that their credit was ruined because they had experienced a divorce. It was not the divorce itself that ruins their credit, it is the financial hardship which often goes along with the process. So long as you take proper measures to protect your credit before you file for divorce, your credit should be unaffected.

On a final note, since you were married for less than five years. You may qualify for a simple divorce procedure called a summary dissolution. This is a type of divorce which is designed for people with little or no assets and who have been married for only a short time. The process is much simplier, involves less forms, does not require any court appearances, and can be done without the need for a divorce lawyer. You can obtain information about this simple divorce process and all the forms you need on-line through your local family law courthouse. If you do proceed with this type of uncontested divorce, make sure your spouse will cooperate, that he also wants a divorce and will sign the divorce paperwork, and that the two of you have an agreement as to division of property and spousal support.

--Famularo & Associates

Tuesday, August 14, 2007

We Own Property Together But Were Never Married

Division of Property information, custody information, and Divorce help provided by an experienced family law and divorce attorney serving the Temecula, Murrieta, and Hemet areas of Riverside County, California.

Dear Famularo & Associates:

Hi. I have a question about custody and visitation of a minor child. I also have a problem concerning division of assets. My boyfriend and I have a child together and we own a home. We are tenants in common. I have paid for everything. I paid for the down payment, supplemental tax bills, and other additions that contribute to the value of the home. My boyfriend has contributed to 1/2 mortgage. He is not willing to accept any offer other than 50% of the home's value.
--D from Murrieta

Dear D:
Since you are unable to file divorce action, you must file two different cases. One is called a "partition action." This must be filed in civil court and will be to divide the family home. In that case, the court can decide what credits each of you may be entitled to for down payments, house payments, etc.


The other case would filed in family court and is a paternity suit. This would be in family court and the court would decide custody, visitation, and child support. The partition action normally takes 1 year. The paternity suit normally takes 3 months.We can handle both. I would suggest you file the paternity suit first, because it is a cheaper and quicker case to prosecute. If he is unwilling to settle the property issues at the same time, then you file the partition action after the paternity suit is completed.
-- Famularo & Associates

If you live in the Temecula, Murrieta, Hemet or Riverside areas of Riverside County, California and have any questions about obtaining property rights, child custody, or if you need divorce information, please feel free to contact our office to set up an appointment with a divorce lawyer at: (951) 816-9543.

For more information, please visit our websites: Family Law Attorney in Temecula, Divorce Attorney in Temecula, Riverside County Family Lawyer

My Husband And I Both Own Property. How Do We Divide It?

Division of Property Information and Divorce help provided by an experienced family law and divorce attorney serving the Temecula, Murrieta, Menifee, and Hemet areas of Riverside County, California.

Dear Famularo & Associates:
I am considering a divorce after 1 year of marriage and the question is about property division. I came into the marriage with a house which was sold 2 months later. After that the money was reinvested into a rental property. I put my husband's name on the deed. He came into the marriage with a house and a commercial building. My name is not on the properties he own. How do we divide the property?
-- K from Riverside

Dear K:
Your property is probably entirely yours. Thank goodness the price of real estate has gone down! You would receive your entire downpayment back from that property right off the top. Since the mortgage is paid for entirely by rental income, there is no time, effort or skill going into the payment of the mortgage. Thus, simply by paying the mortgage on the building there is no community property interest which has been accumulated.

However, you did put your husband's name on the property. When you divide property, your husband will likely receive an interest in the appreciation of the property from the time you placed him on title until the time you divorce. So, let's assume the building is still worth $200,000 today, and that you put $100,000.00 down on the property, and carried a $100,000.00 mortgage.

If so, you get back $100,000.00 off the top because you put down $100,000.00 toward the purchase of the prioperty (this is called a 2640 reimbursement). If the property is still worth $200,000.00, the mortgage is $100,000.00, so there is no community interest in the property.

On the other hand, if the property has appreciated $50,000.00 in the last year, there would be a total equity amount of $250,000.00. You would still get back your $100,000.00. The balance of the equity ($200k - $100k= $50k) or $50,000.00 is then split between you. This means that your husband would get 1/2 of the appreciation, or in this case, $25,000.00.

His property was owned before his marriage to you. He never put you on title, and the mortgage was paid by renters. Thus, no communtiy property was used to pay down the mortgage. This means that this building will be his free and clear. However, even if your husband had put your name on the property, since the market is currently down it is likely that you would not have earned any interest in the building any way.
-- Famularo & Associates

If you live in the Temecula, Murrieta, Hemet or Riverside areas of Riverside County, California and have any questions about obtaining property rights or if you need divorce information, please feel free to contact our office to set up an appointment with a divorce lawyer at: (951) 816-9543.

For more information, please visit our websites: Temecula Divorce Attorney, Family Lawyer in Temecula, or Family Law Info



My Husband Is Threatening To Kidnap My Child

Dear Famularo & Associates:

Custody information and Divorce help provided by an experienced family law and divorce attorney serving the Temecula, Murrieta, and Hemet areas of Riverside County, California.

I have a two year old and my husband is from Iran. I want to file for divorce, but he told me if I did he would take our child and go to Iran and I would never find them. I believe him. He can do this. What should I do?--C. T. in Escondido

Dear C.T.:

You need to obtain a good attorney, and fast. Your question is a very difficult one and would require an extensive interview before I could give you specific answers. However, I can give you some direction. Iran is not a member of the Haugue Convention. If your child was kidnapped and taken to Iran, the United States government would have no way to help you get custody of your child back. You would be on your own, and would likely never see your child again.

It is very important to make sure your child never leaves the country with your husband. You need to hire an attorney to file for divorce and then to secretly go into court for you and get a court order for supervised visitation. This court order who prohibit your husband from being alone with your child without a professional monitor present. This is called supervised visitation. You also need to get a court to seize your child's passport. These types of court orders could be obtained by a good attorney in a day or two.

If there is domestic violence in this marriage, and I suspect there is (domestic violence rarely includes physical abuse), you can further limit your husband's ability to have visitation alone with your child for up to five years. You can also get a court order forcing your husband to immediately move out of the house, and to stay away from you and your child. You need a competent attorney to thoroughly interview you to properly assess your situation and to then advise you of all your legal options.

What you need to know, C.T., is that you do not have to live your life in fear, and that there are laws designed to help you. People in your situation commonly do not work and do not have access to money. If this is true about you, your local courthouse will have a domestic violence center or a legal help center. There will be people there who can give you legal advice and help you obtain court orders to protect you and your child. Act now, before it is too late.

-- Famularo & Associates

If you live in the Temecula, Murrieta, Hemet or Riverside areas of Riverside County, California and have any questions about obtaining child custody or visitation rights or if you need divorce information, please feel free to contact our office to set up an appointment with a divorce lawyer at: (951) 816-9543.

For more information, please visit one of our websites: Temecula Family Lawyer, Divorce Attorney, Family Law Information

Monday, August 13, 2007

Parents Have Joint Custody And Child Is Starting School

Custody information and Divorce help provided by an experienced family law and divorce attorney serving the Temecula, Murrieta, and Hemet areas of Riverside County, California.

Dear Famularo & Associates:
My daughter is starting school and her father and I live in two different counties. We have not been able to come to an agreement about whose home and school she should go to. Her father claims he is filing papers for an emergency hearing. He has already enrolled her in school and took her there for her first day without my consent. We have joint legal custody and joint physical custody.
R from Murrieta

Dear R:
If the two of you share joint legal custody, your ex was not supposed to sign your daughter up for school without your consent. It sounds like the father of your daughter will be filing an ex parte application. An ex parte is an emergency hearing where he is requesting the court make immediate orders. It is unlikely the court will determine which school your daughter will be attending on an ex parte basis. It is more likely that the court will set the matter for a hearing. We call this an OSC, or Order to Show Cause. The court will simply set a date when it can listen to all the evidence and determine which school the child should attend.

This is a very important hearing, because it is likely that the current custody and visitation arrangements will be changed to accomodate your daughter's school schedule. Whichever school the child ends up attending will likely end up with primary custody of your daughter. In determining which school your child should attend, and who should have primary custody of your dauther, the court will look to the best interest of your daughter. In determing whether to change custody, the court will look at a variety of factors, including how much time you each spend with your child, how good each school district is, how long each of you have lived at your current residence, and which school the child is likely to do better at. The court will then likely modify custody. However, the court will do its best to keep the current visitation orders as closely as it can. The court will also ensure that both of you are able to participate in your daughter's school activities.

If you live in the Temecula, Murrieta, Hemet or Riverside areas of Riverside County, California and have any questions about obtaining child custody or visitation rights or if you need divorce information, please feel free to contact our office to set up an appointment with a divorce lawyer at: (951) 816-9543.

For more information, please visit our websites: Family Law in Temecula, Riverside County Family Law, and Temecula Divorce

Establishing Paternity

Good afternoon, I am a single mother of a 6 week old baby. I am looking to find out how to go about establishing custody /visitation or establishing child support for my daughter (the father is my ex-boyfriend who lives in Pennsylvania/works in New York). I think this is a "family Law" issue? Paternity has not yet been established, and the relationship between my ex and I is not good.If my issue is something you can help me with. Thank you for your time and consideration. A.M. Hi, A.M. In order to get custody and visitation and in order to establish child support, you need to file a paternity suit. Any competent lawyer can help you do so. You may or may not be able to file your lawsuit in California, depending upon how long your ex has been living in another state, and where your child was conceived. The process to establish paternity in California, is as follows: file a petition; serve the father; wait 30 days to see if he responds. If the father does not respond, you can then get a paternity judgment against him. That judgment will include provisions for custody and visitation and child support. If the father does respond, he has a right to a paternity test (under certain circumstances) to determine whether he is the biological father. If he is determined to be the biological father, the court will enter a paternity judgment and include provisions for custody, visitation and support. If no, the case will be dismissed. If the father does not ask for a test. The court will find that he is the biological father and a judgment will be issued.

I Was Not Divorced When I Married My Second Husband, What Do I Do?

Dear Famularo & Associates, I just found out that the divorce that my husband filed six years ago was never finalized. The problem is that I remarried five years ago and my new husband and I have two children. Now we are going to get a divorce, but it looks like we were never legally married in the first place. What do I need to do? Thanks. Mary in Perris Dear Mary, Unwittingly, you have commited bigamy, which is grounds for annulment. To dissolve your second marriage, you have two options. It depends upon which outcome is most advantageous to you. Your first choice is to file an annulment of your second marriage. Since you were never validly married, you can ask the court to declare that your marriage was void by entering a judgment for annulment. This is probably not a good idea, especially if you have children or own a house, because there any many legal issues that will have to be resolved. Your second option is to proceed with the case and then ask the court to enter the divorce judgment with your first husband nunc pro tunc. This simply means that the court makes your first divorce final on a date before you married your second husband. Your second marriage then becomes a valid marriage. If you have to file for divorce a second time, the court will then treat the second marriage as a valid one. If you choose to file for divorce rather than the annulment with your second husband, you should know that you may be a "putative spouse." Simply put, you believed you were legally married after you attempted to enter into your second marriage. This gives you all the rights and protections as though you were validly married. Thus, all community property rights apply; i.e. you are entitled to an interest in your second husband's retirement, real property, etc. Your divorce is not going to be a simple one. You should seriously consider hiring a family law attorney to help you determine your best course of action and to help you through the complicated legal issues involved in your case.

Sunday, August 12, 2007

How Do I Finalize My Divorce?

Custody information and Divorce help provided by an experienced family law and divorce attorney serving the Temecula, Murrieta, and Hemet areas of Riverside County, California.

Dear Famularo & Associates:

My name is Elizabeth and I have a question. I filed a response to the divorce papers in 2003 and we are still not divorced. It has been too long, and I am already tired of all this. How can I make my divorce go faster so I can get remaried? I am trying my hardest to get divorced, but don't know what to do. Thank you for your time.
-- Elizabeth from Moreno Valley

Dear Elizabeth:
You have to make the divorce happen. You have to file papers and go to court. You can either hire an attorney to help you, hire a paralegal to help you, or you can go to the court and ask them to help you. Most courthouses have a Family Law Assistance Center. They will have people to advise you as to what forms you need and show you how to fill them out. If you live in Moreno Valley, you need to go to the Riverside County Family Court.
-- Famularo & Associates

A common problem in a divorce situation is finalizing the divorce. Oftentimes, people know how to file for divorce, but they do not know how to complete the process. It is a common misconception that the courts will automatically grant your divorce. This is simply not true. In order to complete a divorce, you must file papers at every stage of the proceeding. This article will give you a general idea as to how the process works.

First, one party must file for divorce. This person is called the Petitioner. The Petitioner must personally serve the other party, called the Respondent, with the divorce papers. The Petitioner must then wait 30 days to determine whether the Respondent files a document with the court (called a Response).

If the document is filed, the Petitioner must set the case for trial, and have the judge make final orders, called a divorce judgment. If the document is not filed, it is up to the Petitioner to move the case to judgment by filing a request for entry of default against the Respondent, and preparing a divorce judgment for the court to sign.

Obviously, this is a simplified version of the process. The point is that at every stage of a divorce proceeding, it is up to the parties to move the case to judgment.

Obviously, the divorce process becomes even more complicated when it involves issues of custody, visitation, child support, spousal support and division of property. If you are uncertain as to how to file for divorce, you should consult an experienced divorce lawyer and family law attorney to help you through the process. Obtaining a divorce is a lengthy and confusing process. Even if you intend to complete the process without the help of an attorney, you should still seek free legal advice to determine your rights and responsibilities, as well as to get a general understanding of the process.

If you live in the Temecula, Murrieta, Hemet or Riverside areas of Riverside County, California and have any questions about obtaining custody rights or if you need divorce information, please feel free to contact our office to set up an appointment with a family law lawyer at: (951) 816-9543.

For more information, please visit our web sites: Family Lawyer in Temecula, Family Law in Riverside County, Temecula Divorce Attorney

Thursday, August 2, 2007

Filing An Uncontested Divorce

Custody information and divorce help provided by an experienced family law and divorce attorney serving the Temecula, Murrieta, and Hemet areas of Riverside County, California.

Dear Famularo & Associates:
I'm in the final stage of my divorce. The only form that I need my soon-to-be ex wife to sign is marital settlement agreement. I been having a hard time trying to get a hold of her, because she has moved out of state before the divorce is final. What are my options? Thank you.
--Oscar from Murrieta

Dear Oscar,
You always only have two otions when you are trying to finalize a divorce: settle or litigate. In your case, settlement is possible if you can contact your wife and she is still willing to cooperate. If, however, you can no longer find your wife, you have to set the case for trial and go before the judge at the Hemet courthouse to get him to divide your property, order support, order custody and visitation, and grant your divorce.
--Famularo & Associates


Dear Famularo & Associates:
The divorce papers have been filed by my spouse and the default packet was filed because I did not respond in the 30 days. My question is if the divorce is uncontested and we are not fighting over anything; no property, no kids; I mean nothing. The default packet was filled on the 3rd of August how long will I take for the divorce to be finalized and is there a way to speed the process up? How long does a divorce take? Is is possible to have an uncontested divorce without having to go to court?
--Adam from Hemet

Dear Adam:

I am very concerned for you. You indicate that a default has been entered and you have not filed a Response to the divorce, but you have not said whether or not a divorce judgment has been signed. If no, it will take quite some time for your divorce to be final. More importantly, your ex can go into court and ask for any orders she chooses. Just because you don't think there is anything to fight about, doesn't mean she will not try to get a divorce judgment which is unfair.

If on the other hand, the two have you have agreed on all issues and you have signed the judgment, it will take about four to six weeks for the judge to sign your divorce judgment. However, there is still a waiting period in California and your divorce judgment will not be final until the six month waiting period has run.

-- Famularo & Associates

If you live in the Temecula, Murrieta, Hemet or Riverside areas of Riverside County, California and have any questions about obtaining custody rights or if you need divorce information, please feel free to contact our office to set up an appointment with a family law lawyer at: (951) 816-9543.

Please visit our websites for more family law information: Family Lawyer in Temecula, Temecula Divorce Lawyer, Riverside County Family Law

Tuesday, July 24, 2007

More Divorce Questions

Real divorce advice by family law attorneys and divorce lawyers serving the Hemet, Murrieta, Temecula and other areas of Riverside County, California.

Dear Famularo & Associates:

My husband and I are going to file for divorce. We bought a house about 10 years ago. All of the money for the down payment ($20,000) was my money before we got married. We agreed that it would remain my money. Now, all these years later we want to sell the house. I think when we divide property in the divorce that I should get the first $20,000 from the sale. He doesn't want to give me that. What do you think?
--Emily in Temecula


Dear Emily:
You are absolutely right; when you divide property in the divorce you get your $20,000.00 down payment back. We call this a "2640" reimbursement, based upon California Family Code Section 2640. However, in order to qualify for this reimbursement, your husband would either have to admit that you put a $20,000.00 down payment on the home from your separate property, or you would have to be able to "trace" the money. To trace the money, you must provide the court with copies of receipts and bank statements showing the $20,000.00 was earned by you before you got married, and that you used that money for the purchase of the home. If you can do so, then you will be entitled to a 2640 reimbursement.

If you qualify for a reimbursement of your separate property, you will recieve your $20,000.00 back-- right off the top-- when the house is sold. You are not entitled to any interest on your money. As an example, if you now have $100,000.00 in equity in the home, you will get your $20,000.00 back before the rest of the money is divided. This would leave a balance of $80,000.00. That $80,000.00 will then be split equally between you and your husband, with each of you receiving one-half of the remaining $80,000.00, or $40,000.00 each. Thus, your total award from the house would be your $20,000.00 down payment, plus the $40,000.00 for your one-half of the remaining equity, for a total award of $60,000.00.
-- Famularo & Associates


Dear Famularo & Associates:

I saw your answer to a question on your divorce website, and I had another if you don’t mind answering. I am seeing someone that had just filed a for divorce. They are going through a 6 month divorce process. If for any reason the soon-to-be ex-wife finds out we are seeing each other, is there any way that she can prolong the divorce? Or if she was being spiteful is there a way she can make him pay monetarily?
--Delila in Stanford

Dear Delilia:

Legally there is nothing the ex can do to stop the divorce, but practically speaking she could file paperwork to take your boyfriend to court and ask for things like support. However, it does not mean the ex will actually win. My advice to you is to lay low. Try not to flaunt your relationship and hope the divorce goes smoothly.
-- Famularo & Associates

If you live in the Temecula, Murrieta, Hemet or Riverside areas of Riverside County, California and if you need divorce information, please feel free to contact our office to set up an appointment with a family law lawyer at: (951) 816-9543.
For more information, please visit our websites: Temecula Divorce, Family Lawyer in Temecula, or Riverside County Family Law