Thursday, May 31, 2007
To begin a paternity suit in Ca, one party must file a petition to establish paternity at the local courthouse. The Petition to establish paternity is then served upon the other party. The person who files the Petition is the Petitioner. The person who is served the Petition is the Respondent.
After the Petition is served, the Respondent has 30 days to file a Response. The Response tells the court that the Respondent intends to participate in the paternity action and wants to be notified of any upcoming court dates.
If the Respondent does not file a Response, the case proceeds by "default." If the case proceeds by default, the Petitioner prepares a paternity judgment and submits it to the court. At this point, the Petitioner will be given pretty much whatever custody, visitation and child support orders he or she requests.
If the Respondent files a Response, the parties have the right to a dna test (genetic test). This is done by taking a cheek swab of each party and each child.
Sometimes the case is resolved through settlement. If a paternity settlement is reached, the parties prepare a Settlement Agreement, which later becomes the Paternity Judgment and the case is concluded– sometimes without ever having to attend court.
If the paternity case goes to trial, each attorney presents evidence and arguments. The judge decides all the unresolved issues, including paternity of the children, child custody, child visitation, child support, and attorney fees. The judgment for paternity is prepared and then signed by the court.
Even after the paternity judgment is entered if the parties’ circumstances change, either party can later return to court to change the child custody, child visitation, and child support in the judgment. This is called a modification proceeding. Orders determining paternity or awarding attorney fees can almost never be changed later on.
The above paternity information is provided as a courtesy of the divorce and paternity attorneys at Famularo & Associates. If you would like more information on this, or any other divorce or family law matter, please visit our websites at: http://www.temeculadivorce.com/ or http://www.familylaw-riversidecounty.com/ or http://www.familylawyerintemecula.com/
If you live in the Temecula, Murrieta or Hemet or Riverside areas of Riverside county, California, you may also call our office for a free consulation at: (951) 587-0505.
Wednesday, May 30, 2007
It is not uncommon for people who live together to own a home. The issues of what will happen to the home, how much the house is worth, and how much money each party has in equity cannot be decided in a family court when the parties are not married. In those cases where parents have children together, own a house together, but were never married, the parents have to file two law suits: a paternity action to settle any issues involving their children, and a civil lawsuit (called a partition action) to settle any issues involving property.
A paternity action is very different than a divorce in other respects, as well. For instance, there is no waiting period in a paternity action, and the process is completed much more quickly.
In order to begin a lawsuite, a Petition must be filed. Usually, an Order to Show Cause will accompany the filing, which will include a request for immediate orders. If the alleged father admits that he is the father of the child, the court will often enter a judgment at the first court appearance. Otherwise, the court will order a paternity test, the parties will return to court after they receive the results, and the court will enter a judgment at that hearing. While the results are pending, the court will generally not make orders for custody or support.
Tuesday, May 29, 2007
In situations involving an abusive spouse the court will issue a restraining order, which would normally order the abusive spouse to move out of the house, to stay at least 100 yards away from the other party's home, job, car and person. It would also prevent the sending of any messages to the protected party, even through a third person, or by way of a gift. The consequences of violating an order are severe, and can include up to one year in jail.
At that point, the alleged abusive party has the ability to tell his or her side of the story. If you are accused of perpertrating domestic violence, beware: anything you say in open court can later be used to prosecute you. If the domestic violence occurred in front of children, the abusive spouse can lose custody of the children.
The other situation would typically be where the parties have children and a true emergency exists. This is called having exigent circumstances and the potential of irreparable harm. Simply put, in order to make a temporary order for child custody the court must find the child is in some sort of immediate and probable danger which is so serious that it cannot be corrected: either one parent is about to flee the state with the child, or the child is in some sort of physical danger.
Tempoary orders that are only good for about three weeks. Some time before the orders expire, the parent requesting the order must return for a hearing where parties have a change to address the court and appear with an attorney. If the court finds good cause, the TRO will be extended. If not, it will be dissolved.
Monday, May 28, 2007
Dear Famularo & Associates:
My husband and I are going through a divorce. I am a recovering drug addict. I will admit, my drug addiction was a very bad thing, but I have changed. I have been sober for over three months now and I go to NA meetings every week. We have a daughter, 3, and a son, 5 and they both live with me. My husband just told me he is hiring a divorce attorney so that he can get custody of our children. Will he be able to?
JP in Lake Elsinore
Whether your husband can will get custody or not depends upon several things. When determining child custody, the court must weigh all facts to determine what the best interest of your children are. First and foremost is how well documented your drug addiction is. If you have a criminal history or have recently participated in several recovery programs, it will be easy to convince a judge that you have not been clean long enough to be have unsupervised visitation of such young children, much less award you custody. However, if you have no documented history of drug use, it is likely the court (located in Hemet) will order you to undergo drug testing to determine whether or not you are currently using.
The court will ask you to take a hair folicle test. This will determine whether you have used drugs at any time within the last 120 days. You have no legal obligation to agree to a hair folicle test and the court cannot penalize you if you refuse. You should refuse to take the hair folicle test and agree to take a urine test. The results will only go back about 30 days. So long as the test is negative and you do not volunteer too much information about your past, you should be okay. Do not lie to the court, but do not volunteer any information, either. Most importantly, hire your own family law attorney immediately.
-- Famularo & Associates
Dear Famularo & Associates:
My husband quit his high-paying job to take a DJ job at some radio station where they pay him nothing. It's his life dream, I know, but we have four kids and now he wants a divorce. I have always been a stay at home mom and now I have to go to work. I still think he should pay child support, even though he makes next to nothing. We own our own home and it's almost paid off after 28 years of mortgage payments. I don't want to lose the house, too! He wants to sell it and divide the proceeds. I want him to give me the house because he is the one who chose to quit his job and the children and I shouldn't have to pay him any money when we divide our property. What do you think?
NM in Lake Elsinore
The court in a divorce proceeding has the ability to "impute income." This means that the court can base a support order (either for spousal support or child support) on your husband's earning ability, rather than on his current salary of zero. The law is that a person cannot voluntarily quit his or her job for a lower-paying job. A spouse's first obligation is to pay child support and spousal suport for the benefit of his or her family. If you husband quit his job very within the past month or two, this would probably anger the court, and the judge would calculate your child and spousal support as though your husband continued to earn his high income.
If you husband quit his job in the more distant past, the situation becomes more complicated. You would then have to prove to the court that there are still high-paying jobs available in your husband's field that he is qualified to take. This is done by hiring a vocational examiner. This is a job counselor who would examine your husband's education and experience and tell the court what he or she believes your husband's current earning ability is.
The issue of the house is trickier. In deciding the division of property, the court must ensure that all assets must be divided fairly and equally, but you could trade another asset for your husband's one-half equity in the house, such as your interest in a stock or pension plan. If your husband had no way to pay you either spousal support or child support, you could also establish a child support account for security of up to one year's worth of child support. Rather than an actual bank account, you could ask the court to deduct his equity in the home from the money he owes you for child support and spousal support.
-- Famularo & Associates
Dear Famularo & Associates:
My husband and I going to get a divorce. We have a 7 year old daughter. We both agree that sharing custody would be the best thing to do, it's just that we can't figure out how to do it. He plans to move to Temecula, so he won't be too far away, but with school and everything I think it might be very difficult on our daughter and us. Do you have any suggestions as to how we can work this custody agreement out?
GL in Murrieta
You are always better off trying to work things out before you divorce. However, if you are worried about joint custody being too difficult on you and your daughter, perhaps it is not the right decision for your family. There are different forms of joint custody, and there are many different schedules. A joint custody arrangement does not even require a true 50-50 split. If you are confused, your best bet is to have someone help you work out a schedule. You can do this by either hiring a private mediator or, if your divorce has already been filed, by attending mediation at the courthouse. Mediation involves sitting down with a court employee (trained in social work or psychology) to help you come up with a child custody schedule that best works for your child. The service is free. You make an appointment by calling the local courthouse.
If you have any questions about a child custody matter or any other family law or divorce related issue and you live in the Temecula, Murrieta, Hemet or Riverside areas of Riverside County, California, please contact our office to set up a free consultation.
Otherwise, for more information, please visit our websites at: http://www.temeculadivorce.com/ or http://www.familylaw-riversidecounty.com/ or http://www.familylawyerintemecula.com/
An ex parte application, also called an emergency hearing, an ex parte, or a request for temporary orders, is a request asking the court to make emergency orders. In California, the court cannot grant an ex parte application unless it finds that there are "exigent circumstance" and "irreparable harm."
Exigent circumstances means that there is some sort of emergency, and if the court does not grant the requested orders, some act is almost certain to occur. Irreparable harm means that what is going to occur is so bad that once it is done, it cannot be fixed.
Most situations do not rise to this level. Examples of emergencies which would require the court's intervention are in child custody and domestic violence situations. For instance, if a child was going to be removed from the state of California, or if the child was in some sort of physical danger, the court would intervene. Temporary restraining orders are routinely granted where one parent is planning to move out of the state or has threatened to kidnap the children. They are also granted where there is physical abuse in the household, one parent physically attacked the child, or one of the parents is a danger to the child.
Being a danger to the child would be an action, habit or state of mind which prevents one parent from properly caring for the child. This includes mental illness, threats of suicide, being homeless, being an alcoholic, abusing controlled substances, or severely neglecting the children.
If there is domestic violence in the home, the court would issue temporary custody orders, as well. In fact, if one parent has perpertrated domestic violence within the last five years, it is assumed he or she should not have custody of the children. Normally, the court will look to some sort of recent actions before issuing a temporary order on this basis.
Recent acts of domestic violence are, in and of itself, a reason for the court to issue temporary restraining orders. These are commonly referred to as CLETS orders, DV orders, or domestic violence orders. If there has been some sort of incident, or a history of domestic violence plus recent threats, the courts will err on the side of caution and give the requesting party a court order preventing the other party from contacting him or her. It will also order that the offending party stay at least 100 yards away from the other party.
Domestic violence orders can include custody orders, visitiation orders, child support orders, and spousal support orders. but they do not have to. It can simply be an order that one side leave the other alone.
Although an ex parte application usually cannot include a request for money, there are exceptions to this general rule. For instance, if one party has hidden money from the other, the court will oftern issue an ex parte order freezing that money. If the parties' home is in danger of imminent foreclosure, the court will often order that it be sold. If the children's daycare or school tuition must be paid or the children will be dis-enrolled, the court will issue an order that the tuition be paid.
The process for an ex parte in the county of Riverside as of the date of this blog is as follows: paperwork is filed in any courthouse in the county by 12 noon. The court notifies the moving party whether the order was granted, denied, or it needs more information. If the restraining order is granted the court sets a hearing within three weeks. If the order is denieds, a hearing date is set about two months away. If th court needs more information, the moving party must notify the other side by that evening, telling him or her they are both ordered to court the next day. The court then asks questions of both sides and makes a temporary order, which is good for about three weeks.
If the ex parte is granted, those temporary orders are only good for a few weeks. Thereafter, the court must grant both parties a full hearing. This allows each side to tell his or her side of the story through witnesses and other evidence. At time of the hearing, the court will make a more permanent order. If the orders involve domestic violence, the court has the power to grant CLETS orders for up to five years.
If the orders involve a divorce or paternity issue, it depends at what stage of the proceedings the case is. If there is not yet a judgment entered, the orders issued at the hearing on the ex parte will only be good until time of trial.
If you live in the Temecula, Murrieta or Hemet areas of Riverside county, California, and you have a family law or divorce related question, please feel free to contact our office to set up a free consultation with one of our experienced family law lawyers at (951) 587-0505.
For additional information, please visit our web sites at: http://www.temeculadivorce.com/ or http://www.familylaw-riversidecounty.com/ or http://www.familylawyerintemecula.com/
An Order to Show Cause, or as it is regularly referred to, an OSC, is simply an appointment to see the judge. An OSC can be filed either before or after a party's trial. Before the OSC each party files court papers telling the judge his or her side of the case and telling the judge what orders he or she thinks the judge should make. At the OSC the parties have the ability to add any new information, answer questions for the judge, provide testimony, and to argue how the law applies to his or her case. The judge in the divorce or paternity matter then makes a decision, or court order, which is binding upon both parties.
If an Order to Show Cause is filed before the divorce or paternity trial date, it is called a temporary order. That order is only good until the trial date. There can be an unlimited number of OSC's, but only one trial date. The trial date is the day on which the court grants your divorce and divides your property.
At a temporary OSC, the court only has the power to address certain issues. These issues are too important to wait until the trial date, which will usually be six months after the spouses filed for divorce. The kinds of things the divorce court will make orders on before a trial date are orders for temporary custody and visitation, orders for temporary child support and spousal support (also called alimony), orders for attorney fees, orders to sell the house, or temporary orders when domestic violence is involved. These temporary orders dissolve on the divorce trial date.
Sometimes, the parties need an emergency hearing. This is called an ex parte, and is designed to provide the parties with immediate, temporary relief. However, a true emergency must exist before the court will help the parties in this situation.
After the trial, the parties can return to court on a new Order to Show Cause. If an OSC is filed after a trial, it is called a request for a modification. The types of things a court will hear after a trial date include requests to change the child custody or child support orders, a request to change the spousal support order, a request to enforce an order made at trial, or a request to divide property that was not divided at time of trial.
It generally takes six weeks to get into court once a spouse files an Order to Show Cause. However, a spouse does have the option of asking the court to make orders sooner. This would be done by filing an Ex parte hearing. An ex parte hearing is not a hearing at all. It is the filing of paperwork in court asking the court to make immediate orders for an important issues involving some sort of danger. Ex parte applications almost always involve either domestic violence or a request for custody and contain an allegation the child is in such danger that the court cannot wait six weeks until it hears the case.
If the court agrees the child would be in great danger if the custody and visitation orders are not changed, it could make orders protecting the child. Those orders would only be good a few weeks, at which time both parents could go to court and tell the judge what he or she thinks is in the best interest of the child. If you think your situation is so grave that an ex parte application is appropriate, you should immediately consult a licensed family law and divorce attorney.
For more information about this topic, or any other divorce or family law issue, please visit our websites at: http://www.temeculadivorce.com/ or http://familylaw-riversidecounty.com/ or http://www.familylawyerintemecula.com/
If you reside in the Temecula, Hemet or Murrieta areas of Riverside County, please feel free to contact one of our experienced divorce and family law lawyers to set up a free consultation.
California is a community property state. When the divorce court divides property, community property is divided equally among the spouses. Community property is anything that is aquired during the marriage through time, effort or skill.
What is not community property in a California divorce proceeding is separate property. Anything not acquired by the time, effort of skill of either party is separate property, including gifts and inheritance.
Division of Debts
Commnity debts in a California divorce are divided equally between the parties. Separate debts are assumed by the party who incurred them as his or her sole and separate obligation.
Friday, May 25, 2007
Going through a divorce with a child is not that different of a process. The first thing you need to know is that unless you and your spouse can agree on child custody, you will probably need to get yourself a good attorney.
A divorce involving a child usually requires the court to make immediate orders. The process is called filing an Order to Show Cause, commonly called an OSC. An Order to Show Cause is simply scheduling time to see the judge in your divorce case so that he can make specific orders about your case. These orders will usually be for child custody, visitation, and child support.
Child custody will usually be resolved through a court mediator. This is a meeting between the parents and a court employee who is trained in helping the parties reach a custody agreement. That person then makes a recommendation to the divorce judge, who may or may not follow the recommendation.
It normally takes about six weeks from the time the divorce is filed until the time the court makes orders about child custody, visitation, and child support. If an issue cannot wait because there is some sort of emergency in your case, you will need to retain a divorce and family law attorney to help you file papers called an ex parte.
As for child support, it is calculated using a computer program based upon a number of factors.
If you have any questions about the contents of this blog, or have any other divorce, paternity, custody, visitation or child support or spousal support questions and reside in the Temecula, Murrieta or Hemet areas of Riverside County, California, please feel free to call our office to set up an appointment for a free consultation at: (951) 816-9543.
Otherwise, for more information about how child support is calculated see our posting on this blog, or visit our website at: http://www.temeculadivorce.com/. Additional family law information can be obtained at http://www.familylaw-riversidecounty.com/ and http://www.temeculadivorce.com/index.html
It is difficult to get specific information about divorce, especially without some sort of legal help. There are various ways that you can obtain help. This blog will give you some idea as to the type of legal help that is available to you.
If you intend on filing for divorce, the first thing you need to decide is whether you want to hire a divorce lawyer. If you do, find yourself a good one and the rest of the process will be much easier. The lawyer will interview you, fill out all the divorce papers for you, file them, have them served for you, advise you and walk you through the process every step of the way.
The best way to find a good attorney is to ask people you know who have gone through the divorce process if they can recommend one to you. The next best way would be to obtain a referral from a legitimate lawyer referral service. Beware of a common mistake: do not hire an attorney because it is convenient or you feel pressured. Only hire someone that you feel comfortable talking to, and one that you believe is able to clearly explain to you what you can expect, as well as what your rights are. Divorce is confusing, and stressful. You need to have someone by your side that you can talk to and trust. Sadly, many attorneys will not take the time it takes to talk to their clients and answer their questions.
Whether you need an attorney depends on how complicated you case is. Chances are if your divorce invovles children, you own a home, there is domestic violence in the marriage, or your spouse gets an attorney, you will need your own attorney, as well.
Some people do not have the option of hiring help. Even if a person cannot afford a lawyer, there are options available to the general public. The next best option would be to hire a paralegal. The difference between a paralegal and an attorney is that a paralegal did not go to law school, cannot give legal advise, and cannot go to court with you. However, a paralegal can help you prepare the papers. He or she will usually file the paperwork for you, and will help you get your spouse served.
In cases where you do not have the money to hire an attorney, or where the parties have already agreed to the terms of a simple divorce, a paralegal is sometimes the best option. Unfortunately, it is difficult to find a good paralegal. The industry has a reputation for being unreliable. There are good, competent paralegals that exist. The trick is to find one. Once again, your best bet is probably to ask people you know who have gone through the process to recommend one.
If hiring a lawyer or hiring a paralegal is not an option, you will have to file the paperwork on your own. There are on-line services that assist in filling out the papers. There are also several good books sold at your local bookstore for a nominal fee. Finally, most courts have a family law help office. This is also a free service. They will be able to tell you what forms to use and they will tell you how to file for divorce.
Our practice is limited to family law and is dedicated to serving the Temecula, Murrieta and Hemet areas of Riverside County)
What is community property?
When the court decides how to divide property during a divorce trial, it must characterize each asset owned by the parties. Anything acquired through time, effort or skill during the marriage is characterized as community property. Community property is divided equally between the spouses.
Anything that is not acquired through time, effort or skill during the marriage is not community property. Examples would be money earned before the couple marriage, money earned by one spouse after the couple separated. Other examples do not depend on when they were received, for instance, a gift, inheritance, or personal injury money is always separate property, despite whether or not it was received during the marriage.
A common misconception is that the court will divide property according to which spouse the name of the property is held in. This is not true. California is a community property state. This means that everything that is owned, and everything that is owed, is community property so long as the asset was acquired through time, effort or skill during the marriage, or the debt was incurred during the marriage. It does not matter who earned the asset. It does not matter who acuired the debt. It does not matter if only one person works. It does not even matter if only one person benefited from the debt. All assets and all debts are divided equally.
If a bank account is only in one person's name, the court will want to know when the money was deposited. If it was deposited during the marriage, the money will be divided equally because the money will be considered community property.
It is sometimes a problem during division of property in a California divorce siutation is that money may have been used to buy a house that was earned before the marriage. Since money earned before the marriage is not community property, the portion of the downpayment that was earned during the marriage would be separate property, and would have to be returned to the spouse when the house was sold.
Another common issue in a California divorce, would be the division property in the form of a bank account held in both parties' names, but containing money earned before the marriage. If the spouse can prove he or she put earnings into that account which was not earned through time, effort or skill, that money would not be community property. The court would order the return of that money.
Finally, spouses often worry about debts the other party is accumulating after they separate. Those debts would be a separate obligation, and so long as the debt has not been incurred in both parties' names, they are of no consequence. If the debts were incurred in both parties' names, they are still a separate obligation, but the creditor will usually not honor this distinction because both parties would have guaranteed payment of the debt regardless of whether the divorce is final. In this instance, both parties' credit could be damaged if the party who incurred the debt does not pay.
If you would like more information on a division of property issue, or any other family law or divorce related topic and you live in the Temecula, Murrieta, or Hemet areas of Riverside county, please feel free to call our office and set up a free consultation with a competent, eperienced divorce attorney: at (951) 587-0505.
For more information, please visit our websites at: http://www.temeculadivorce.com/ or http://familylaw-riversidecounty.com/, http://www.familylawyerintemecula.com/ and riverside legal advice.
How long does a California divorce take?
A divorce in California always takes a minimum of six months. This is called a "waiting period." The waiting period in a divorce action is to make sure you and your spouse do not change your mind about going through with the divorce. The courts want to give you time in case you decide to reconcile. Regardless of the circumstances, you cannot get a divorce in California until the six month waiting period has expired.
When does the waiting period begin in a divorce?
The waiting period begins in a divorce once the divorce papers are filed and served. Thus, even if you are your spouse are separated for years, the waiting period does not start until the divorce action is filed and the papers are properly served upon the other party.
Sometimes parties agree to all the terms of the divorce before the six months has run. In this case, the parties can prepare a divorce judgment and settle the entire case before the six month waiting period expires, but they will not be divorced until the six months had run. Even if a judgment is prepared before the six month waiting period expires, the terms of the divorce agreement are still binding on both parties. They are just not free to remarry until the six months have run.
Other times, people do not resolve all the custody, visitation, child support, spousal support, and division of property issues within the six month time period. In this case, a divorce will take longer than the six month time frame because the parties have a right to litigate the terms of their divorce and resolve the issues before a judge.
How do I decide between a legal separation and a divorce?
There are several differences between a legal separation and a divorce. For instance, there is no waiting period in a legal separation, and you do not have to be a legal resident of the state. All property is divided, child support is ordered, spousal support is orderd, custody and visitation are determined, and a judgment is entered at the end of the case, except that the parties are not given a divorce at the conclusion of the case, both people have to agree to a legal separation.
Do I have to file for legal separation in order to protect my assets?
A common misperception is that the spouses have to file for a legal separation in order to protect their assets. This is not true. For information as to how to protect your assets in a divorce, please see articles on what to do before a divorce and divorce advice.What is a bifurcation?
In situations where litigation lasts more than the six month waiting period, it is possible to "bifurcate the status" of the marriage. This means that the court can award you a divorce as soon as the six months are up even though you have not resolved the remaining issues of division of property, spousal support, child support, child custody, etc. You then litigate those matters at a later date. A bifurcation is not common, and only needed if the divorce is relatively complicated and one party already has plans to remarry.
How long until I get to my divorce trial?
The divorce process begins once the paperwork is filed in court. Nothing happens in the process unless someone moves the case along. The courthouse is simply a large file cabinet that holds, but does not process, your paperwork for you. They simply stamp the documents and keep the records. This means that no one in the courthouse will tell you what needs to be done or how to do it. Either you have to figure it out on your own or hire a lawyer to help you.
The first step in the divorce process is filing and serving the documents. This starts the waiting period. The next step is to determine whether temporary relief is needed. In other words, if you need some type of financial support, an order to sell your house, an order to determine custody of the children, or an order allowing you to move out of the state, you need to ask the judge to make the order. This is done by filing an "Order to Show Cause."
What is an Order to Show Cause (OSC)?
An Order to Show Cause, also called an OSC, is an appointment to see the judge. It is obtained by filing paperwork with the court, and in the paperwork you ask for specific, temporary relief. That relief is only good until time of trial. Normally, the relief would be for child custody, visitation, child support, or spousal support. At the appointment (or court hearing) the judge will decide whether he will give you temporary relief by making court orders which are only good until the divorce trial.
What do I do if I was served with divorce papers?
If you are the one who has been served with divorce paperwork, you need to know that you have 30 days to file a "Response" to the divorce with the court. This is a document which tells the court that you are interested in the outcome of the divorce proceedings, that you wish to be notified of any court date, and that you will be participating in the divorce process by appearing in court to help the judge make his/her decisions.
If a Response to the divorce is not filed, the matter is decided by "default." This means that the court decides the outcome of the case based upon only one side’s versions of the facts. Thus, when there is property or children involved, it is very important to file a Response.What Happens After I File the Response?
After the initial divorce paperwork is filed with the court, each party then has a right to conduct "discovery." This allows each party to ask the other person questions and may require each party to produce written documentation about his/her income, assets and debts, or about any other information which may be relevant to your divorce case.What Happens After Discovery is Complete?
After the discovery process is complete in the divorce, the case is ready to be set for trial. At trial, each party will go in how front of a judge and present evidence. After hearing all the evidence in a case, the judge will make a decision and grant a divorce.
How much does the average divorce cost?
Is there a way to avoid a divorce trial? Yes, if both you and your spouse are able to agree on all issues in your divorce, meaning child custody, child visitation, child support, spousal support, division of property, division of any pension plans, and division of debts, you can avoid litigation. You can simply have someone write up a divorce judgment, sign it, and file it to complete your divorce.
Yes. Child custody and child support are not related. If your husband is not paying you child support, you need to obtain a court order requiring him to do so. If you have a court order and he is not honoring it, there are ways to make him pay. In California, child custody is determined by what is in the best interest of the children. This is based upon a number of factors, including which parent is more likely to allow the other parent to have frequent and continuing contact with the children. If you do not allow your husband to see the children simply because he is not paying you child support, you will risk losing custody of your children.
My husband is not paying me child support, do I have to let him see the children?
If my spouse cheated on me, can I get sole custody of our children?
That depends. California is a no-fault state. This means if your spouse had an affair during the marriage, this is not a basis to deny your spouse visitation, nor is it, in and of itself, a reason to obtain custody of the children. However, if your spouse in usable to care for your children because your spouse is frequenlty not home, comes home late at night, or is otherwise neglecting the children, the court may find that you are best able to care for the children and award you custody of the children in the divorce.
If the judge makes a mistake at the divorce trial, can I fix it?
Not necessarily. Normally, the findings in a divorce trial made by a judge, and the orders contained in your divorce judgment are final and cannot be changed. However, there are significant exceptions to this rule, and you should consult with a family law attorney as soon as you discover any error.
If you have any questions about a divorce issues, or any other family law matter, and you live in the Temecula, Murrieta, or Hemet areas of Riverside County, California, please contact one of our family law attorneys to set up a free consultation: (951) 816-9543, or visit our websites for more information: http://www.temecladivorce.com/, http://www.familylawyerintemecula.com/, or http://www.familylaw-riversidecounty.com/
What is a legal separation?
A legal separation is a lawsuit against which gives the court the power to decide all issues related to your marriage. A legal separation is just like a divorce, except in the end of the lawsuit, you and your spouse are not divorced, and additional paperwork must be filed in order to become single.
What are the differences between a legal separation and a divorce?
There are several differences between a legal separation and a divorce in California. Most importantly, both spouses must agree to a legal separation and at the end of the lawsuit the parties are not granted a divorce.
Who should consider a legal separation?
A legal separation is appropriate if:
You need to remain married a specified number of years in order to obtain your spouse's Social Security benefits; You or your spouse has a medical issue which prevents one of you from obtaining medical insurance; You have not lived in either the state or the county long enough to file a divorce action; Divorce is against your religion and you never plan to remarry.
If I am not living with my spouse, don't I need to file for legal separation protect my asstets?
No, you need only be separated, you do not need to a formal court action for legal separation. Spouses can be separated and live in the same household, or they can be legally married and live apart. The definition of being separated is that one of the parties has decided that the marriage is over and has no hope of being repaired. If that is the case, any money earned and any debts acquired after that is separate.
Child support is money paid to ensure the child shares the lifestyle and living condition of each parent. California calculates support pursuant guideline. Computer programs are used to arrive at the proper figure.
The amount ordered will depend upon how many children you have, each parent’s tax filing status, each parent’s earnings, any "add-ons," and a number of other, miscellaneous factors.
Add-ons are ordered above basic support. This includes one-half of any uncovered medical and dental bills, and one-half of any day care expenses. Add-ons do not include payment for any extracurricular activities; the parent who has custody of the children is expected to bear the entire cost of the children's extracurricular activities, as that is the purpose of the support. The court only considers each parent’s gross and net earnings, not amount of a parent’s car payment, house payment.
The more a parent sees his/her child, the less support he/she pays. Sometimes, if the parents share joint custody, neither parent will be ordered to pay support. The court has the ability to "impute" income to a parent who does not work. This means that the court can base the order, not on what the person is earning, but what that person has the ability to earn.
Child support will take away a significant part of each parent’s income, and must be budgeted appropriately. Except in very rare circumstances, the courts do not have the power to order anything other than guideline. If the amount ordered is more or less than guideline, you must file an Order to Show Cause and ask the court to modify the amount paid. If either parent's income changes, the parent whose earnings have decreased should immediately file and Order to Show Cause. Since the order is based upon the amount of each parent’s earnings, if either parent earns more money than when the order, guideline will change.
You and the other parent can agree to a different amount of support if it is in writing and signed by a judge. Child Support is owed until the child is emancipated, is age 18 years and no longer a high school student, or until the child reaches the age 19 if the child continues to attend high school on a full-time, whichever occurs first. There is no requirement to pay until that child graduates from college.
Once ordered, child support is due forever until paid in full. There is no statute of limitations, and can be enforced by placing a lien on the payor’s home, levying his/her wages, and seizing any assets he/she has in the bank.
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- The Petition for divorce is then personally served upon the other spouse. The person who is served with the Petition is called the "Respondent".
- If the Respondent fails to file a Response to the divorce within 30 days, the case proceeds without the Respondent’s participation. This is called proceeding by "default."
- If the divorce case proceeds by default, the Petitioner prepares a divorce judgment and submits it to the court. The Petitioner will usually be able to get whatever orders he or she requests, including any desired orders concerning custody, visitation, child support, spousal support, attorney fees, and division of property. Once the judge signs the judgment, the case is concluded. However, the divorce will not be granted until the six month waiting period has expired.
- If the Respondent files a Response to the divorce, the parties exchange documents and other information about their property and incomes. This is called "Discovery." By examining this information before the trial, the parties can discuss how to resolve their case.
- Sometimes one or both of the parties will need the court to make orders before the trial date. Either spouse may file an Order to Show Cause at any time before the trial, asking the court to make temporary orders regarding child custody, child visitation, child support, spousal support, attorney fees, or other matters. The judge will make orders on these limited issues after conducting a hearing. These orders are temporary orders, because they are only good until the day of the divorce trial.
- Sometimes the couple can voluntarily resolve all their issues through settlement. If a settlement is reached, the parties prepare a Marital Settlement Agreement, which later becomes the divorce judgment and the case is concluded– sometimes without ever having to attend court. However, the divorce will not be granted until the six month waiting period has elapsed.
- If the parties are not able to reach an agreement, the case will go to trial. Even if the parties must go to trial, they will often be able to resolve some or most of the issues before the divorce trial. The parties prepare and sign a Partial Judgment, which outlines all the issues they have agreed on. This becomes part of the final divorce judgment after the court decides the rest of the case.
- At trial, each attorney presents evidence and arguments. The judge decides all the unresolved issues, including child custody, child visitation, child support, spousal support, attorney fees and property division. The judgment is prepared and approved by the attorneys and then submitted to the court.
- Even after the judgment is entered if the parties’ circumstances change, either party can later return to court and ask the judge to change certain orders in the judgment. This is called an OSC or an Order to Show Cause. However, the court’s power to modify the terms of a judgment is normally restricted to orders concerning child custody, child visitation, child support, and spousal support. The court usually does not have the power to change orders previously made concerning division of property.
For more help about this or any other family law or divorce issue, visit Famularo & Associates on-line at: http://www.temeculadivorce.com or http://www.familylaw-riversidecounty.com or http://www.familylawyerintemecula.com
If you reside in the Temecula Valley, or have a case in Riverside County, California, feel free to call our office for a free consultation with one of our family law lawyers at (951) 816-9543. We serve the Temecula, Murrieta, Hemet and Riverside areas of Riverside, California.