Monday, May 28, 2007

Family Law Help Given to Real People by a Real Lawyer

Excepts from the local advice column written by Famularo & Associates. We are California divorce and family law lawyers practicing in the Temecula, Hemet and Murrieta areas of Riverside County.

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

Dear JP:
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

Dear NM:
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

Dear GL:
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/

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