Wednesday, October 15, 2014

How do we divide the family residence?

My wife and I own a house together, it didn't have equity when we separated, but there is equity now. Who is entitled to it? Do I get credit for any house payments I have made since we separated?

Community assets are generally valued at time of trial. If the home had no equity on date of separation, but does have equity now, that equity would be divided equally. If you are living in the house and making the payments, you are not entitled to any type of reimbursement. The money you pay in mortgage payments is the equivalent to you paying rent. When one party leaves the home, the other parent steps into the shoes of a renter and is solely responsible for making those house payments. Hen the property is divided, each party gets half of that equity, even though only one party was maintaining the property.

Friday, October 3, 2014

What do I do if my ex wife fails to reveal the results of her drug evaluation?

There are two different types of "drug evaluations." Most often the court orders drug testing to screen for drugs in a person's system. This is usually a urine test.  Occasionally, and this would only after a person tests dirty for a drug test, the court would order a substance abuse evaluation. This would be done by a trained professional to determine if someone had a substance abuse problem.

If a person was ordered to take a drug evaluation and does not submit it to the court it is as though she did not take it. Typically, drug evaluations are used when custody is at issue. If you are referring to a drug test, if she does not submit the results of the drug test to the court, the court will treat the test as though it is dirty. If you are referring to a substance abuse evaluation, which is usually done to determine whether the current orders should change, if the results of the evaluation are not submitted to the court, the court will not make any changes to the orders until a satisfactory evaluation has been submitted. If you believe that the results of the evaluation are incriminating, you should subpoena the information directly from the source and submit them to the court yourself.

Tuesday, September 30, 2014

Domestic Violence Cases



Question:
My wife didn't show up for her hearing because we want to get back together, i called the court and they told me it was dismissed, dissolved. Can we get back together?!

Answer:
A temporary restraining order is only good until time of hearing. At the hearing, the court will decide if there is a basis to issue a permanent order. If your wife did not show up for the hearing, the court must automatically dismiss the restraining order. 

However, you must ask yourself: is it wise to get back together when nothing has changed? If domestic violence exists in your relationship, it is easy for it to get out of hand and this could result in your arrest and criminal prosecution. If your wife filed the restraining order and the allegations were untrue, what is there to s top her from doing so again? Domestic violence restraining order are very serious these days. They can prevent you from getting or holding certain jobs, you can never own a firearm, and if you are not a. U S citizen, you could face deportation.

Perhaps the two of your should use this time to get some counseling before jumping right back into the same situation.

Can I keep my house in a divorce?


QUESTION:  I'm getting a divorce next year and my name is not on the deed or mortgage only my husband and my mothers name is on the deed and mortgage. She passed last year but I'm the only one named in the will to receive her 5% of the property. Can I tell the judge that I would like to keep them home in my divorce or does my ex husband automatically gets the home since his name is on it ?? I pay more than half of the mortgage and all of the utilities. 





ANSWER:  This question is more complicated question that it first appears. Normally, once you sign a quit-claim deed and transfer title of a home to your spouse, you give up all ownership in the property. However, this is not always the case.  For instance, if the house was purchased during marriage, even if you signed a quit-claim deed putting only your husband's name on the house, you may have a community property interest in the house.  Also, if you signed the deed and were a victim of domestic violence and were threatened or coerced into signing over the property, you may be able to set aside the deed. Also, if you signed the deed only for financing purposes and were expecting to have your name put back on the property after the house was purchased, you may have a community property interest.
It sounds like almost for sure, the 5% ownership of your mom's is all yours. However, was there a down payment on the house? Where did it come from? You may have an additional money interest in the home depending on how much was put down and where the money came from.

You really need to seek the advice of an attorney before it can be determined what your ownership interest is in the house.

Regardless of your ownership interest in the property, you can buy Husband out of his interest in the property if he is agreeable and if you can qualify to refinance the property. 
           

Tuesday, September 16, 2014

Step parent visitation

My husband is very sick and we are afraid he might not make it. His fear is that his children will not grow up together. Would I be able to take over his custody percentage? We have to young children and the other of his son is not in good term with since I came into the pictures. Is there anything I can do or my husband do so we can have our children grow up together and there's a constant 

A step-parent may be awarded visitation of step-children under certain situations. Where the step-parent is close to the children and the court finds it is in the best interest of the children to maintain that relationship, the court can in theory award step-parent visitation. In reality, it is extremely rare and unlikely the court would make such an order. A natural parent has a constitutional right to raise his/her children as they see fit. If Mom does not want you to have contact with the children after your husband passes it is unlikely the court would grant you a visitation order.

Saturday, September 6, 2014

Question to Attorney

Question:    I have been separated for almost two years. My husband lives in Wyoming and has a girlfriend. Although he has openly said he wants and will pay for the divorce nothing happens, the papers i send him never arrived, he sent me his last two years tax returns i didn't get them, he emailed me scan copy's i didn't get them. This has been going on for two years and now he has been ignoring my calls and texts for about a month. Is there any way i can do this on my own i want to move on with my life.


Answer:  Your ex is not a resident of California. You are not a resident of Wyoming. Neither court has personal jurisdiction over both parties. This means that unless one of you agrees to allow the other state to hear the divorce, you are at a stalemate. Without an agreement or a court hearing, you cannot obtain certain orders in your divorce.

You can, however, obtain a status only divorce. This is done by filing for divorce and serving your husband by certified mail, return receipt requested or by personal service. Husband will then have been 30 and 45 days to file his answer with the court. If he does not, you may proceed with your case by default. In other words, you may obtain a judgment.

As stated earlier, since husband is not a resident of California, the court can declare you divorce, but cannot divide property or award either party any support,

Since you have waited so long to serve husband,, you have another problem, you may have waited too long to serve the summons. You only have three years to serve your summons and sixty days thereafter to file your proof of service with the court. If you wait too long to serve your lawsuit, you will have to dismiss, refile, and start over.

Monday, September 1, 2014

Spousal Support in California



Gina Marie Famularo
Written by 




What is Spousal Support?

There are two types of spousal support: temporary and permanent. The length of a spousal support award is determined by whether the marriage was of snort duration or a lengthy one.What is Spousal Support? Spousal support is money paid by one spouse to the other. The purpose of spousal support is to help maintain the lower earner in the standard of living during the marriage. There are two types of spousal support: temporary and permanent.

What is Temporary Support? Temporary spousal support is calculated differently than permanent support, and the award is generally a higher amount. This is because in a temporary order, the court will take the spouse as it finds him or her. For instance, if one spouse isn't working, the court will not impute income to the non-working spouse automatically. Furthermore, support is calculated with the help of a computer program. This usually results in each party receiving approximately 50% of the couple's total net pay.

How is Permanent Support Different? Permanent spousal support, on the other hand, cannot be calculated using a computer program. It must be calculated using the factors set forth in Family Code Section 4329. These factors require the court to consider a number of facts before making any permanent orders. These factors include each party's age, health, earning ability, separate savings, education level, etc.. Only after considering all the factors may the court make an order. Furthermore, it is more likely the court will impute income to a non-working spousal because that spouse has already been given time to get on his or her feet.

How Long Does Support Last? There are two types of marriages: lengthy and short. A lengthy marriage is one lasting ten (10) years or more. Support for a lengthy marriage only ends after one of the following: death of either party, remarriage of the supported spouse, written agreement of the parties, or order of the court. The court may terminate support if there is a change of circumstances, which would include the supported spouse becoming self-supporting, cohabitation of the supported spouse or reduced income of the supporting spouse. For those marriages lasting less than ten years, support generally lasts no more than half the length of the marriage (i.e. 4 years for an 8 year marriage).

Wednesday, August 20, 2014

Providing Health Insurance for Children

When do I have to provide health insurance for my children?
 
Once an order for child support is made, California law requires both parties are ordered to maintain health insurance on behalf of the minor children IF available at little or no cost to each party.

What are some options for obtaining insurance?

There are multiple options for providing health insurance for your children. The most common are Medi-cal, which is a need-based program, and health insurance through one's employer. Medi-Cal is based upon income. In order to qualify, you must be considered low income. Many employers also offer health insurance with a minimal monthly fee to add one's children to the insurance policy. If neither one of those options are available, consider contacting a health insurance exchange and explore the possibility of subsidized insurance under the Affordable Healthcare Act (Obama Care). Contact your local health insurance agent to help you navigate this process.

What if I am unable to obtain health insurance at a reasonable cost?

If health insurance is not available to you from any source at a reasonable cost, you are not obligated to provide it. If the issue comes up, ask the court to declare that health insurances is not available to you at a reasonable cost. This will protect you from a future allegation that you have not fulfilled your legal obligation to provide health insurance for your children.

Thursday, August 14, 2014

Can I appeal a domestic violence restraining order in once it has been granted?

An 18 year old girl was coming into my home against my will. She would come to see my son and was sneaking in at all hours of the night. I went to speak to her mother after I found her daughter hiding in my closet with a bucket of pee next to her. She brought beer, maijuana, pornography. The mother called the police.NO THREATS...NO VIOLENCE..NO POLICE REPORT. The mother asked for the judge to protect her and her daughter.  The Judge ordered the restraining order. Now she has a protected order against me.

If the mother obtained a restraining order on behalf of her 18-year old daughter, it is likely the mother had no standing to do so on behalf of another adult. Furthermore, it does not sound like there was any contact between you and the mother except for one phone call.

Of course, it would have been best to have an attorney at the actual court trial if this case has already gone to trial. If it has not and only a temporary order has been issue, you should obtain an attorney immediately. However, if a permanent order has been granted, there is a slim possibility to reverse it. Your best bet is to file a motion for reconsideration, which must be done within 15 days of the judgment date. Said motion must be based upon new or different facts. You may also do some sort of motion to modify the restraining order if the court inadvertently included improper orders.

Anything from here on out, though, is an uphill battle. Your slimmest chance of all would be to appeal. This must be based upon an error of law. It sounds like your side of the facts were not presented.

Wednesday, August 6, 2014

 

Can I sue my ex-spouse for cheating on me and hurting me while we were married?

      
 
Gina Marie Famularo
  1. You CAN sue your ex, but you won't win and might even be sanctioned (meaning you may have to pay your ex money) for bringing the lawsuit. This is a no-fault state. You cannot win. Let it go.
  2. Divorce is painful under even the best of circumstances. When there is unfaithfulness, it make things that much more difficult.
  3. However, unless there are children and the person involved in the affair is a danger to the children, the court will not hear testimony about the affair.

 


Tuesday, August 5, 2014

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A divorce can be filed for any reason. The most common reason is "irreconcilable differences," meaning the parties no longer are able to get along.

The divorce process is a 3 step process.
Step 1: File and serve the initial documents.
Step 2: Do the declarations of disclosure and discovery (if needed).
Step 3: Obtain a judgment.

Sometimes people choose to file a request for court before the judgment has been entered. This is typically done in those cases with children or where one party needs support.

For more information, please call our office for a free consultation.