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