Temecula Divorce and Family Law Lawyers

Adoptions in Temecula: Adoption Information for Step-Parents

2008-10-18T07:52:00.000-07:00

An adoption action the legal process whereby an adult who is not biologically related to a child acquires all the rights and responsibilities as if the child was naturally that parent's. Once an adoption is finalized, the adopting parent is obligated to love and support the adopted child as the child was that parent's own biological child. There are two types on adoptions: step-parents adoptions and independent adoptions. The most type of adoption is when a step-parent assumes the role of the natural parent. This is commonly called a step-parent adoption. In these types of cases, one of the parents is already the natural parent of the child, and only the step-parent is adopting the child. At the end of the adoption process, one of the natural parents still has rights over the child, one parent's rights are terminated, and the step parent steps into the shoes of the parent whose rights were terminated. If the step-parent later divorces the natural parent, both parents are treated equally, and neither parent will be given preference in awarding custody. Each parent must also support that child. A step-parent adoption requires the filing of a lawsuit in either Riverside or Hemet. Once the lawsuit is filed, a home study will be conducted, and the natural parent whose rights are being terminated have a chance to object. If the natural parent objects to the adoption, there is a trial. If the court determines it is in the child's best interest to be adopted, the step-parent's petition will be granted. Generally speaking, the process takes six to nine months. Adoption proceedings should not be attempted without the help of an experienced adoption attorney. If you are considering an adoption, please call our office to set up a free consultation.

Waiting Period in an Amended Petition

2008-09-19T21:08:00.000-07:00

Dear Famularo & Associates Hello, I have been reading the information your website has to offer, but I am unable to get an answer there. So, I am writing to find an answer tothis... I filed my divorce in March of 2008... the respondant was served 5 days later. My husband did not respond within 30 days, and then I filed and re-served him with an Amended Petition for a divorce. My question is this... I know there is a required waiting period of six months. Is my final date six months after original service or does my waiting period STARTED OVER again from the time I re-served him with the Amended Petition? Thank you, E.J. in Murrieta Dear E.J. Unfortunately, once you file and serve the Amended Petition, it is as though the original Petition was never filed. Thus, your waiting period starts over again from the time the Amended Petition is served. -- Famularo & Associates

Asset Protection in a Marriage

2008-04-14T18:44:00.001-07:00

Dear Attorney: I just got married two months ago. I forgot to ask my husband to sign an agreement that doesn't allow him to ask me (if we divorce) for half of whatever I earn. I also do not feel that I should have to pay spousal support. I currently own nothing, but I will shortly because I am in the process of buying a house. I am the only person in the marriage who earns money, because my husband is a full-time student. Is there any way that I can still get something signed that will protect my assets? -- H.M. Dear H.M.: In California, when a couple files for divorce, there are certain rules the court must follow in resolving issues surrounding spousal support and division of property. These rules include the general principle that anything acquired during the marriage through time, effort or skill is community property and must be divided equally. However, the parties can agree at any time to settle their disputes in any way they believe is fair. It is only if the parties are unable to settle the terms of their divorce without the help of a judge that the court must apply California family law when making court orders. Sometimes a couple decides that they do not want the general principles of California family law to apply to them. Perhaps one party has a large estate, or sometimes they just think it is practical to keep their assets and their debts separate. Other times, one party has already experienced a bitter divorce and wants to avoid a costly legal battle by making sure as many terms as possible are agreed to beforehand. If they both desire, a couple may agree in advance how many things will be decided in the event they divorce. These agreements generally include how property is to be divided, how debts are to be divided, and the amount and duration of spousal support (if any). If the couple enters into such an agreement before marriage, it is called a prenuptial agreement. Moreover, these types of agreements may be entered into at any time. If a couple enters into such an arrangement after marriage it is called a post-marital agreement. If you desire to keep your property separate from your husband's, and if you do not want to pay your husband spousal support in the event you divorce, you need to have an agreement drawn up setting forth those terms. If your husband refuses to sign the agreement, then the general principles of family law will apply, including the rules concerning community property and spousal support. If your husband does sign the agreement, unless the agreement specifically states otherwise, the agreement will only be effective from the date the agreement was signed forward. So long as the agreement is properly drafted and signed by al the parties, the court will be bound by the terms of your agreement and not by the general rules of California family law. Even if your husband changes his mind during the divorce and decides to pursue spousal support and a community property claim, the court will be unable to make that award so long as the agreement is valid. For this reason it is important that you make sure you have the agreement drafted by a competent family law attorney. These types of agreements are tricky because the law in this area changes quickly. If the agreement is not drafted properly, it will not be enforceable in court, and the general rules of California laws will be applied. -- Famularo & Associates

Step Parent Adoptions

2008-03-28T08:21:00.000-07:00

A step parent adoption is a form of adoption where the new spouse steps into the legal role of the parent. After the process is completed, the adopting step parent has all the rights and all the responsibilities of a biological parent. If the marriage later ends in divorce, the adopting step parent will be obligated to pay child support, could petition the court for sole custody of the child, and will be allowed visitation if not successful.

In order to complete a step parent adoption, the parent will be replacing the role of one of the child's natural parents. If the natural parent is deceased, the step parent must simply produce the death certificate. If the natural parent is alive, however, that parent's rights must be terminated before the court will allow the step parent to adopt the child. This requires the filing of two lawsuits, one for termination of parental rights, and a second one for permission to adopt. The spouse of the adopting step parent must consent to the adoption. Additionally, if the child is age twelve years or older, that child must consent to the adoption.

When the lawsuits are filed, the natural parent and any other relative of the first degree must be notified. This includes the child's adult siblings, grandparents, aunts, uncles, and of course, the natural parent whose rights may be terminated. The court then orders a home study to determine the child's best interest, and includes a background check of all parents. Eventually, if there is an objection, there will be a court trial. The entire adoption process generally takes approximately six to nine months from start to finish.

Visitation in Califorina

2008-02-10T19:51:00.000-08:00

The following is a real question concerning child visitation published in the Temecula Valley Newspaper, and answered by the family law and divorce attorneys of Famularo & Associates:

Dear Famularo & Associates:
My husband and I separated about 2 weeks ago, and he has since moved to Tennessee. We have two small children ages 3 and 4 years. There is no dispute about child custody. We both agree the children should continue to live with me in California. Although we haven't filed for divorce yet, we have agreed on the amount of child support and spousal support he will be paying me. My husband wants visitation with the children in Tennessee for two weeks. I don't know if I should send them. He is a great father, but what if he doesn't give them back to me after two weeks?

--GH in Murrieta

Dear GH-

Your fear about your husband not returning custody of your children to you after two weeks is a valid one. While it is likely the court would order your husband to return the children if he failed to do so, the outcome of any court hearing is always unpredictable. There is simply no guarantee the court would order your husband to return custody to you if you to allowed visitation in the state of Tennessee without first obtaining a court order. In theory, you could write up a visitation agreement on a piece of paper and insist you both sign it before sending the children to Tennessee. However, this, too, is risky. Quite frankly, if you send your children to Tennessee without an actual court order, you risk losing custody of your children forever.

You should not send the children to visit their father until after a divorce has been filed and custody and visitation orders have been made. Until you file for divorce, the court does not have power over custody of your children. Until the court makes custody and visitation orders, you have no guarantee you will get your children back from Tennessee. You need a court order for custody and visitation in your hand before you put your children on an airplane. Once a divorce is filed, you can either type up a custody and visitation agreement, sign it, and then have the court sign and file it; or attend a court hearing and have the judge make orders in open court. Either way, until you obtain a court order for visitation, you should not send your children to Tennessee.

Once a divorce is filed, the court must decide visitation for your husband. In deciding visitation, the court will try to establish a court order that ensures frequent and continuing contact with both parents. The court will likely order you to send your children to visit their father in Tennessee at some point in the divorce proceeding. A two week visit for your children is reasonable. Unfortunately, your children are not old enough to travel on their own, so someone will have to escort them on the airplane. Since your husband is the one who moved away, he may have to pay the children's airfare to and from the visit (but not always). As for who pays for the airfare of the escort, and which parent will be ordered to escort the children on the airplane, this will depend upon you and your husband's relative circumstances. For instance, if you are a stay-at-home mom, and your husband is working full time, the court might order you to escort the children (because you have the time), and your husband to pay for your airfare (because he has the money). If your husband's mom lives in Tennessee and frequently visits California, perhaps the visits can be timed so Grandmother escorts the children on the plane. In short, when making visitation orders, the court will do what it thinks is fair. In addition to periodic visits in Tennessee, your husband will have liberal visitation whenever he visits California.
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If you have any questions about custody or visitation, or any other divorce or family law related issue, please do not hesitate to contact the family law lawyers at Famularo & Associates to set up a free consultation. Famularo & Associates serves the geographical areas surrounding Hemet, Temecula, Murrieta and other parts of Riverside County, California.

You may also visit one of our web sites for additional information: http://www.temeculadivorce.com/index.html or http://www.familylawyerintemecula.com/

Child Support and Spousal Support in California

2008-02-09T08:07:00.000-08:00

The following excerpt is a real family law question and answer which was recently published in the local paper, the Temecula Valley News:

Dear Famularo & Associates:
I have a question about child support. 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

If you live in the Temecula, Murrieta, Hemet or Riverside areas of Riverside County, California and have any questions about obtaining a child support order, spousal support 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, or e-mail us at info@temeculadivorce.com.

You may also visit one of our web sites: http://www.familylawyerintemecula.com/ or http://www.temeculadivorce.com/ or http://www.familylawyerintemecula.com/

Alienation of Affection- Real Child Custody Questions

2008-01-10T07:31:00.000-08:00

Dear Famularo & Associates: My wife and I divorced a couple of years ago and it wasn't very amicable. We didn't agree on anything and our children were right in the middle of this. We ended up with joint custody of our son (12) and our daughter (10). We see each other frequently because of the kids. I love our kids just as much as she does and I make a point not to speak poorly of her in the presence of the children. I think she should do the same, but she doesn't. I recently got engaged and I'm going to get married in February. My fiance is a decent person and she is interested in having a meaningful relationship with the kids. My wife is constantly saying horrible things about me and my fiance to our kids to the point that it's upsetting them as well as me and my fiance. I have heard that I might be able to obtain full custody of the children if I can prove alienation of affection. I am not sure this is something I should do. -- Mike C. in Temecula Dear Mike: Unfortunately, when two people have a child it binds the parents together for the rest of their lives. Virtually every court order contains a clause which states neither parent should make disparaging remarks about the other in the presence of the children. This is what we call an "unenforceable order." In order to enforce this type of order, there would have to be a policeman monitoring every word your ex-wife said. The policeman would then have to arrest your ex if she made any negative comments about you. Since no one is monitoring the mother of your children, she can say pretty much anything she wants without many legal ramifications. The only thing you can do it to try to obtain sole physical custody of your children based upon alienation of affection. However, it is a lose-lose situation for you. If you are not successful getting custody, your wife will try to ruin your relationship with your children even more. If you win, the children will probably resent the fact that you took them away from their mother. Sadly, it is almost impossible to completely protect a child from his or her own parent. You need to know that you are doing the right thing, though. Do not take your ex-wife's bait and make negative comments about her simply because she is making them about you and your fiancee. Your children are of an age now that they know exactly what is going on. They can see for themselves that their mother is the problem, and usually this type of behavior will backfire against. No matter what you ex-wife says, your fiancee should stay out of it. Any comments she makes, anything she does will usually be met with resentment by your children. Since the divorce, your children are struggling with only being able to see you half the time. They are also undoubtedly struggling with their mother's constant negative comments about you. Any attempt by your fiancee to "fix" the problem will make the children feel that she is either picking on their mother or forcing them to compete with her for your affection.Your children will soon be old enough to have a say in custody and how often they see each parent. The good news is that teenage children almost always end up with the parent who takes the higher ground. So, be patient and hold your tongue. Show respect for your children by not disparaging their mother. Your children will not be young forever, and once they are a little older your behavior will pay off in a the form of a close, lasting bond with your children. --Famularo & Associates

Finding Hidden Assets During a Divorce

2007-10-17T16:55:00.000-07:00

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.

Guardianships in California

2007-10-08T18:37:00.001-07:00

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

2007-10-08T17:49:00.001-07:00

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.

How to Serve a California Legal Action

2007-10-06T09:09:00.000-07:00

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

Uncontested Divorce in California

2007-10-05T23:26:00.000-07:00

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.

Establishing a California Child Support Order

2007-10-04T14:35:00.001-07:00

.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

2007-10-04T10:13:00.000-07:00

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.

California Domestic Violence Restraining Orders

2007-10-01T20:56:00.000-07:00

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

How to Find a Competent Divorce and Family Law Attorney

2007-09-03T18:05:00.001-07:00

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

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

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

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

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

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

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

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

2007-08-28T22:07:00.000-07:00

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

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

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

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

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

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

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

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

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

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

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

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

Do I Qualify For an Annulment?

2007-08-25T08:11:00.000-07:00

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

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

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

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

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

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

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

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

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

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

--Famularo & Associates

We Own Property Together But Were Never Married

2007-08-14T21:34:00.001-07:00

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

Dear Famularo & Associates:

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

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

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

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

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

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

2007-08-14T21:14:00.000-07:00

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

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

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

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

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

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

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

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

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

My Husband Is Threatening To Kidnap My Child

2007-08-14T08:15:00.000-07:00

Dear Famularo & Associates:

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

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

Dear C.T.:

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

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

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

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

-- Famularo & Associates

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

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

Parents Have Joint Custody And Child Is Starting School

2007-08-13T20:18:00.000-07:00

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

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

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

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

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

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

Establishing Paternity

2007-08-13T19:54:00.000-07:00

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

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

2007-08-13T19:33:00.000-07:00

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

How Do I Finalize My Divorce?

2007-08-12T16:57:00.000-07:00

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

Dear Famularo & Associates:

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

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

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

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

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

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

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

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

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

Filing An Uncontested Divorce

2007-08-02T08:00:00.000-07:00

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

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

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

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

Dear Adam:

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

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

-- Famularo & Associates

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

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

Child Custody Battles: Grandparents' Rights

2007-06-14T06:46:00.000-07:00

California child custody information provided by experienced divorce and family law lawyers serving the Temecula, Murrieta, Hemet and Riverside areas of Riverside County, California.

Grandparent rights is one of the most confusing and emotional areas in family law. Parents rightly feel they should be able to raise their children as they deem appropriate. Grandparents feel that when they have invested significant time and love into their grandchildren, the custody should not be ripped away. These two central and opposing philosophies form the basis for the California law on grandparents' rights.

There are three different ways that a grandparent can acquire legal rights of his or her grandchild. The first, and most common, is through a guardianship action. A guardianship replaces the parental role. When the family court establishes a guardian in a child's life, it takes away all custody rights from the child's mother and father and gives those same powers to a third person, called a guardian. A guardianship gives all custody rights and responsibilities to the guardian, and the parent is given the custody rights of a stranger.

A guardianship action is an extreme measure. California courts will only establish a guardianship as a last resort. The court must find that awarding custody of a child to either parent is detrimental to the child. Normally, the guardian must prove satisfactory evidence that the child is abused or neglected in some way. In addition, if the child is over the age of 12 years, that child must approve the guardianship. The older the child is, the more voice that child has in who will care for him or her. Although the courts must always find that placing the child in the custody of a parents will be detrimental to the child, sometimes this can be established simply by showing to grant custody to a parent will cause a traumatic disruption in the child's life.

For instance, a few years back, we had a case where the child was 14 years old. She had lived here entire life with her step father. The mother was in and out of the child's life and the biological father had no relationship with the child. When the child entered high school, the mother decided the step father was no longer a positive influence on the child. Mother removed the child from the step-father's custody, who provided the only home the child ever knew. Mother assumed sole custody and cut off all contact between the child and her step-father. The child nominated the step-father for a guardianship. The step-father received guardianship based upon the child's strong desire to live with him. The court found that is was psychologically detrimental for the child to remain in the custody of her mother.

In addition to obtaining custodial rights through a guardianship, a grandparent can obtain visitation rights through a family law court action. While a guardianship is litigated in probate court, a grandparent visitation action is litigated in family, sometimes called divorce court. However, in family court, a grandparent can only obtain visitation rights, and cannot obtain full-time custody of his or her grandchild.

There are two different ways that a grandparent can establish a visitation schedule in a family law action. The first is by filing his or her own independent lawsuit, and the second is by obtaining visitation rights while a divorce or paternity action is being litigated between the parents. Although the legal procedures are different in establish grandparents' rights in each action, the basic requirements are the same.

First, the grandparents must show that they previously played a significant role in the grandchild's life. This can be easily shown where the grandchild lived in the home of the grandparents for a significant period of time. It can also be done where the grandparents provided significant emotional support to the grandchild by taking on some of the parenting duties for the child. Essentially, the grandparents must show that an emotional bond between the child and the grandparents has been established.

Secondly, the grandparents must show that a continued relationship between the child and the grandparents is in the best interests of the child. However, if the parents have joint legal custody of the child and object to the grandparent visitation, it is presumed that visitation is not in the best interests of the child. Where one parent has sole legal custody of the child and that parent objects to the grandparent visitation, it is again presumed that visitation is not in the best interests of the child.

Thirdly, there has to be some reason that the grandparents cannot visit with the child while the child is in the physical custody of the grandparents' natural child. For instance, one parent is deceased, one parent is incarcerated, or one parent has no contact with the child, or one parent is otherwise prevented from having a relationship with the child.

Finally, if grandparent visitation is established, it cannot be a basis to prevent the parents from relocating his or her residence in a move away case.

This is a very simplified version of the rights of a grandparent when it comes to custody and visitation of a grandchild. The bottom line is that if a grandparent wishes to obtain custody or visitation rights of his or her grandchild, it may be possible under California law. However, the grandparent should first consult with an experienced family law or divorce attorney before proceeding. The custody laws in this area is complicated and confusing, and is filled with many pitfalls.

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

Otherwise, for more information, please visit our websites at: Temecula Lawyer, Family Law in Temecula, and Riverside County Family Lawyer

How to Establish A Child Support Order

2007-06-12T14:04:00.000-07:00

The information set forth below is provided by divorce lawyers and family law attorneys serving the Temecula, Murrieta, Hemet and Riverside areas of Riverside County, California.

Dear Famularo & Associates:
The father of my child got out of prison about a year ago and he was in school for a while. He lives in Washington State and that's where my support order is. He is supposed to pay me $50 a month. I don't even get that. I know he is working for his uncle and living with his parents and that he can pay more. I am a single mother. I go to school and I don't make much money. I need to get my child support order modified and I need to get it enforced. I only want what is fair. Is there anything someone with limited resources like me can do to get this done? I can't afford a child support attorney and the county agency I went to for help was able to get arrears owed to them enforced, but they aren't going to pursue my portion of it because he told them he doesn't work and they took his word for it.
KG in Temecula

Dear KG:
Unfortunately, you have a number of problems with your case. You really need to consult with an experienced divorce or family law attorney to sort things out for you. The first issue is that your child support order is in Washington and you live in the state of California. You need an attorney to review your child support orders and to help determine whether a new child support order can be established in California, or whether you have to return to the state of Washington to attempt to increase your child support.

The second issue is that it sounds like your ex is working under the table. If this is the case, and your ex is receiving payments in cash, it is virtually impossible to prove what he is actually earning. I do not know the child support laws in the state of Washington, however, in California the family court would impute income to your ex. This simply means that the family law court would base your child support, not on what your ex is actually making, but on his ability to hold a full-time job at minimum wage. Thus, the court would order him to pay you at least some child support (guideline child support in California would only be about $270.00 per month in a situation similar to yours).

The third issue is that the local child support agency does not seem willing to help you. Normally, in a case where the custodial parent (i.e. the parent who has custody of the child) has limited financial resources, that parent would look to the local child support department to help obtain a fair court order. For whatever reason, the local child support agency does not seem willing or able to help.

Finally, you have limited financial resources. You do not have the funds to hire a family law attorney in Washington, and you probably don't have the ability to travel to Washington to file the court documents yourself and then attend court on your own. The question you need to answer is whether you will be able to collect child support over time to make it worth your while to pursue an increased child support order?

In the state of California, there is a free office at the courthouse, called the court facilitator, who can help you fill out any court paperwork associated with obtaining a child support order. I do not know what resources are available to you in the state of Washington, and even if you were able to get help filling out and filing Washington child support paperwork, it would still require you to travel to the state of Washington for the court appearance.

It seems to me that you need to see if there is some basis to file a new lawsuit in the state of California which will allow California to establish a new child support order. It sounds like you and your ex were never married. If that is the case, you should be able to file a new paternity suit here. If so, you could have the court facilitator in Riverside County help you fill out the paperwork to start a new paternity suit, you could then serve your ex by certified mail, return receipt requested in the state of Washington, and go to court here in either Hemet or Murrieta to obtain a new child support order. Once you get a new child support order, though, you have to enforce it. If your ex is working under the table, this will be difficult to do, and will require the cooperation of the state of Washington Department of Child Support Services.
Famularo & Associates

If you live in the Temecula, Murrieta, Hemet or Riverside areas and have any family law related issue, including any questions concerning divorce, child support, child custody, visitation, paternity, annulment, legal separation, division of property, domestic violence or spousal support, please call our office to set up a free consultation at: (951) 816-9543.

Otherwise, please visit our websites at Temecula Divorce, Riverside Divorce, or Temecula Family Law

Child Custody Battles: What to Expect in California

2007-06-09T18:22:00.000-07:00

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

Custody battles are difficult. Whether custody includes a divorce or a paternity matter, the process and choices are same. This blog is written to help parents understand the court process in child custody cases. Set forth below is the general information about a California custody battle:

Get a Good Family law Attorney: Not every case requires an attorney. However, if you know you are going to be involved in a custody battle, it is necessary to get a competent, experienced child custody attorney. An attorney will file your custody paperwork quickly and help you avoid the pitfalls of the custody process. Since custody battles are time-sensitive issues, it is important to get your case to court quickly. Lost time often means lost custody.
File a Lawsuit: Before the court has the ability to make any orders which are binding on the parties, one person must file a court action. The court action can a paternity suit , a legal separation (if the parties are married and are not intending to divorce), or a divorce action.
File an Order to Show Cause: One parent must an Order to Show Cause (or OSC). An Order to Show Cause is essentially an appointment to see the judge. In a custody matter, the party would request orders for custody, visitation and child support.
Get a Court Date: After the paperwork is prepared, it is filed with the court and a court date is issued. Generally, it takes eight weeks to obtain a court date in Riverside County.
Get a Mediation Date: At the same time the OSC is filed, the parent must obtain a mediation date. Mediation is a court-ordered process which is required before judge has the power to grant custody or visitation orders in any paternity, divorce or legal separation action. Mediation occurs in the courthouse by a court employee and is free. No lawyers or third parties are allowed in mediation. Mediation tries to resolve and custody and visitation disputes without the need for lawyers and judges. The parents are not allowed to bring up child support or spousal support issues, or anything other than where the child will live, and when the child will see the other parent. the role of mediation is to help the parties' establish a workable custody and visitation agreement.
Attend the Court Hearing: Regardless whether you and the other parent have reached a custody and visitatation agreement, you must attend the court hearing. If the parties cannot reach a custody agreement, then the judge will read the mediation recommendation and then make orders for custody and visitation.
Evidentiary Hearing: If one party does not like the court's custody and visitation orders, he or she can have a full hearing and put on evidence in an effort to change the court's mind.
730 Evaluation: Another way to change the court's custody order is by participactin in a 730 evaluation (custody evaluation). This is a home study of both parents conducted by a psychologist who makes a detailed report, including custody recommendation to the judge. Although the custody recommendation does not have to be followed by the court, it will carry great weight in helping the court make a decision.
Minor's Counsel: If the children are older, minor's counsel can be appointed. Minor's counsel is a lawyer who is appointed to represent the children in court. This attorney must express the children's custody wishes to the judge.
3111 Investigation: A 3111 investigation is similar to a 730 evaluation, except that it is conducted by a court employee, who will typically only investigate one issue.
Attend the custody trial: Eventually the case will go to trial. At trial, the parties has one last time to present evidence to try to convince the court that a particular custody order is best for the children. The court will then issue a final court order for custody.
Follow the Court Order: After the custody order is issued, there will be some things about the custody and visitation order that both parents do not like. Follow the court order any way. If both parents agree later on that the court's orders for custody and visitation should be permanently changed, put those changes in writing.

If you live in the Temecula Valley, including the Temecula, Murrieta, Menifee, Lake Elsinore, Hemet and Riverside areas of Riverside county, California, and you have any questions about child custody and visitation, child support or other questions relating to divorce, paternity, legal separation, annulment, or any other family law issues, please call our office for a free consultation at (951) 816-9543.

Otherwise, if you would like more information, please visit one of our web sites at: http://www.temeculadivorce.com/ or http://www.familylaw-riversidecounty.com/ or http://www.familylawyerintemecula.com/

A Day in the Life of a Temecula Family Law Lawyer

2007-06-08T21:52:00.000-07:00

Written by a family law lawyer and divorce attorney serving the Murrieta, Temecula, Hemet and Riverside areas of Riverside County, California.

I pride myself on being a good divorce and family law attorney. This blog is to give my clients an idea of how very difficult this job is, and to what lengths our office will go to help our clients.

Thursday evening. I worked until 5:30pm, and had just gotten home. I was preparing to go to a family function when my cellular phone rang. I publish my cell phone number on the internet and all my current and prospective clients have my number.

Anyway, the telephone call was from a stranger with an emergency. She lives in Pennsylvania, and her husband lives in California. Her husband had just called her and told her that he had filed for divorce and he would be in court at 8:30am the next morning to ask for custody of their two-year-old son. The couple had been living apart for a year, and the husband had only seen the child once in all that time. Naturally, the mother was distraught, and begged me to help her. I got in my car and drove back to the office. I prepared the court paperwork for the mother, and finished up about 7:30pm that evening. I missed most of my family event. The next morning I was in court bright and early with opposition to the custody request. The lawyer on the other side wanted to know how I was able to act so quickly. Hard work, and persistence, I guess. The father lost, the mother won, and she was very grateful.

On my way out of the courtroom, I received a phone call from a man who needed a divorce. I set up an appointment for him to come in and see me for a free consultation the next Friday morning.

That same morning I had two other hearings. The second hearing involved a mother with a husband who is an alcoholic. They have a child together, and he gets so drunk he is unable to stand up on some days during his visitation time when the child is in his custody. She was requesting child and spousal support. The parties own a multimillion-dollar business and he is attempting to starve her out by not paying my client any child support or spousal support. The judge ordered that a forensic accountant review the corporation's books and records, and the judge ordered he pay her some child support and spousal support until the audit is completed. That client was also very happy with the outcome.

Walking out of the second case to the third case, I received a call from a very nice client who is a staty-at-home mom with three kids. She told me her husband, who make $8,000.00 per month, had cancelled all her insurances. I must file emergency court papers (also called an ex parte) on Monday to have the insurances reinstated.

The third case involved a husband whose wife had left him for another man (my second client thought he was cute, by the way, and wanted to meet him). The parties had agreed they would share joint physical custody and now the wife wanted to move more than 50 miles away so that she could move herself and the children in with this new man. Mom's lawyer was also asking that Dad pay one-half of the children's private school tuition. By this time it was 12 noon, and since we could not reach a custody agreement on our own, the court told us to come back at 1:30pm for a hearing.

Since I had not eaten breakfast and had a little free time, I decided to get a quick bite to eat. As soon as I got in my car I realized that I left my wallet at the office the night before, and had no money and no credit cards. I did not even have enough change in my car for a bottle of water, so I went back into the courthouse and waited for my next hearing. As I was walking back into the courthouse, I got a call from a close friend, wondering I why I had stood her up for our lunch date. This reminded me: I was supposed to take my 86-year-old dad to a follow-up appointment with his eye surgeon at 2:00pm. I called my father and told him we would have to reschedule.

While waiting for the family law courtroom to open up again, I got a call on my cell phone from the girlfriend of a man who agreed that he was the father of a child in a paternity case who is not biologically his. The family law judge gave him 5% visitation and ordered him to pay 25% of his paycheck to the mother. "Dad" fell behind on his child support and is now facing a contempt charge, meaning that he could be sentenced to five days in jail for each month he fell behind in child support payments (three months). "Dad" is now re-thinking his decision to step up to the plate, and now wants a DNA test. The contempt trial is Monday, so if they want me to help, they will have to come in to see me on Saturday. I had plans to take my daughter shopping for a new outfit as a high school graduation present, but that may just have to be postponed...

At the third hearing, the judge denied both of the adulterous wife's requests. So, Dad will keep joint custody and will not get totally soaked financially. I think he, too, was happy with the outcome.

I had a fourth case, actually, in Orange County for an old client. She is trying to get her divorce recognized in Peru and needs the court to sign off on a document indicating the divorce in California has not been appealed. My law partner and husband went on that matter. Not only would the court not sign the paper, but he was absolutely EVIL about it and was quite abusive. Unfortunately, first thing Monday morning I will have to figure out a new way to get this poor lady the divorce paperwork she needs because I make a promise to myself each time I take a client's money that I will do everything in my power to help, and I take that commitment very seriously. I am very tired today, so I will get the family law document signed, sealed and delivered somehow on Monday.

After court that Friday afternoon, I asked my husband to go shopping with me because I was in need of some suits for court. It was about 4:00pm by this time, and I knew if I was needed that clients or attorneys would call us on my cell phone. While I am in the dressing room trying on clothes, my cell phone rings. By this time, it is almost exactly 5:00pm. I learn that one of my clients, who is a cop, discovered his ex-wife has a warrant for her arrest, and is refusing to return custody of his kids to her. After several phone calls back and forth between myself and Mom's family law attorney, we negotiate a visitation deal. My client will take the kids to the house, call the police, and allow them to have visitation with Mom as long as the police confirm there is no warrant outstanding for her arrest (there was not).

We arrive back at the house about 6:30pm. More divorce business is awaiting. I have an e-mail from a client who paid $8,500.00 to another attorney in a divorce, but did absolutely NOTHING for him. He is afraid to continue on with the divorce case because he has run out of money, and does not know what to do. We set up an appointment for Monday.

A client calls about 7:00pm. She had just been served with child support papers after a lengthy custody battle with her ex-boyfriend, which she won. She wanted to know what to do about the child support hearing. I told her to come in on Monday.

At 9:00pm, I send some instructions to our assistant by e-mail regarding some of my other family law cases so that they are waiting for her first thing Monday morning. Most importantly, we need to address the insurance issue of our divorce client by getting her insurances reinstated; we need to get those divorce papers filed in Peru; we need to finish a legal brief for a mom who got her 5-year-old son back after 1-1/2 years and is now fighting for custody with her son's grandmother to keep the boy (our argument is that the grandmother needs to file for guardianship); we need to finalize an appeal that must be filed on Thursday morning for a client in Texas whose wife is trying to sue him for divorce in California; and we need to get the paternity file and get some trust money returned for a new client whose attorney illegally used the trust money to pay his own attorney fees while doing absolutely nothing for her (he may end up being disbarred over the whole incident). No wonder family law attorneys have such a bad reputation.

Afterwards, I start on this blog, which is finished at 11:00pm on a Friday evening.

Bottom line: sometimes being a divorce and family law attorney is stressful. Many times the job just outright sucks. We are punching bags. Sometimes I feel blessed to have this job; most of the time I feel stressed out. I keep on going because this job is usually extremely rewarding, and sometimes I am actually able to change people's lives. That is a humbling feeling.

So, if you have any divorce or family law matters, including any matters concerning paternity, child support, spousal support or child custody and visitation, and if you live in the Temecula, Murrieta, Hemet and Riverside areas of Riverside County, California, I hope you will consider giving us a call. We offer free consultations, and I promise we will do our best to help. Our phone number is (951) 816-9543.

Otherwise, you are welcome to obtain more information by visiting our web sites at: http://www.temeculadivorce.com/ or http://www.familylaw-riversidecounty.com/ or http://www.familylawyerintemecula.com/

Setting Aside a Default Judgment

2007-06-07T21:25:00.000-07:00

Family Law and Divorce Help from lawyers serving the Temecula, Murrieta, Hemet and Riverside areas of Riverside County, California.

A default judgment is an order which was obtained without one person being present at a court hearing. This can occur in a number of ways. The most common reason a default is taken against a person is because that person fails to file the divorce paperwork with the court after he or she is served. Often times, a party receives paperwork and does not understand the significance of it. Rather than consult an attorney right away or file family law paperwork with the court, that person fails to take any action through the family law court.

In either case, if a default judgment in a family law case results in a court order that is unfair, the party who was default can set aside the order. The law in the state of California is that a party may set aside a default if he or she did not participate in the family law case through his or her own inadvertance, mistake or surprise. He or she normally has six months to set aside the divorce or paternity judgment or order.

Once a lawsuit is filed and the person is served (the person who is served is called the Respondent), the Respondent has 30 days to file an answer. This is a document filed with the family law court which tells the court that the Respondent intends to participate in the case and wants to be present in court any time the judge is going to make a court order. If the Respondent fails to file the answer to the paternity or divorce matter for whatever reason, the Respondent's default is taken and the case proceeds without the Respondent's participation.

It is relatively easy to set aside any orders made in a family law or paternity matter by a court while a Respondent is in default so long as the Respondent has a good excuse for not filing. Examples of what the family law court would consider a good excuse include the Respondent believing the parties had a prior agreement, the Respondent not understanding the paperwork, the Respondent not receiving the paperwork, the Respondent being out of town and unable to file a response, or the Respondent paying someone to prepare the divorce or paternity paperwork, but the paperwork wasn't completed in time.

Not every divorce or paternity judgment or order needs to be set aside. Only those that are unfair.

The procedure for setting aside a family law default is to file a motion with the court, commonly called a 473 Motion (named after Civil Code Section 473). This motion explains to the court why the Respondent did not file a paternity or divorce answer when he or she was supposed to, contains a copy of the answer, and includes a copy of the law which tells the judge on what basis the Respondent is seeking to set aside the order. If the court grants the motion to set aside the default and/or any subsequent orders, it is as though the hearing never took place. Any orders made at the hearing are vacated, or wiped away, and a new hearing takes place at which the Respondent is allowed to participate.

California courts have a strong public policy to hear cases based upon the merits. Default divorce and other family law judgments and orders are disfavored. So long as a party acts as soon as he or she learns of the situation, it is highly likely the family law court will grant the Respondent's 473 Motion and allow the Respondent to participate in the proceedings.

Finally, a 473 Motion is complicated. A party has only one chance to request this relief. It is highly recommended that if you are in default or an order was made without your presence that you seek immediate legal advice from a competent divorce and family law attorney.

If you reside in the areas of Temecula, Murrieta, Hemet, or Riverside, and you have a family law matter, please telephone our office for a free consultation with one of our lawyers at (951) 816-9543.

Otherwise, please visit one of our websites for more information: http://www.temeculadivorce.com/ or http://www.familylaw-riversidecountyc.om/ or http://www.familylawyerintemecula.com/

How to Decide Where to File for Divorce When the Spouses Live in Two Different States

2007-06-07T07:47:00.000-07:00

Divorce and family law help by lawyers serving the Temecula, Murrieta, Hemet and Riverside areas of Riverside County, California.

Normally, when a couple gets a divorce, they live in the same county and same state as one another. Deciding where the divorce matter should be filed in just a matter of determining where the local courthouse is located. In the Temecula Valley, the family law courthouse is located in Hemet, California. In Riverside, it is located at the family law court in Riverside, Cal.

For a party to file a divorce in a particular county, one of the parties must have lived in that county for at least three months. This is called venue.

For instance, a couple separates. While living together, they both lived in Riverside County for three months before the separation. The wife then moves to Los Angeles County. If wife lives in Los Angeles County for less than three months before the divorce case if filed, the divorce must be filed in Riverside County. If wife lives in Los Angeles County for more than three months before the divorce is filed, the divorce can be filed in either Los Angeles or Riverside County. Either county would be proper, and the person who filed the divorce first would be able to choose which county the divorce was filed in.

Things become even more complicated when the parties live in different states. In order for a case to be filed in California, one of the parties must have lived in the state for at least six months before filing the divorce. This is called residency.

For instance, a couple separates. Before they separate, both parties lived in the state of California for at least six months. Upon separation, wife moves out of California. As long as the parties file the divorce action within six months of separation, California is the proper place to hear the matter, and the divorce should be filed in California.

Another common scenario is when the couple previously lived in another state, moves to California, and then separates in California shortly after the move. For instance, the parties had lived in Texas for six months before moving to California. They live in Calif for three months before separating. Both parties remain in Cal. Technically, Texas is the correct state to decide the divorce. However, there are ways to allow Ca to hear the case, and the parties in this type of situation should seek the help of a competent divorce and family law lawyer.

Yet another situation is where the parties live in the state of Calif for six months before separating. Upon separation, wife moves out of California. The parties do not file for a divorce for more than six months. Wife has established legal residency in another state. The proper place to hear this divorce would be in the state of Cal.

Finally, the parties both live in California for more than six months. The parties separate. Wife moves to Texas. Husband moves to Oklahoma. Neither party files for divorce within six months. The parties either have to agree where the divorce will be heard, or the court needs to decided which state should have power over the divorce.

The above rules only apply to situations where the divorce includes the division of property, the award of attorney fees, spousal support, or child support, or involves child custody or visitation. In those rare situations where the only issue before the divorce court is a request to dissolve the marriage and make both parties single again, the state either party lives in can make that order without regard to where the other party lives.

Obviously, when two parties live in different states and are seeking a divorce, the legal issues surrounding where, or even how to file a divorce action are complicated. Please be sure to consult with a competent divorce and family law attorney before taking any action.

If you reside in the Temecula, Murrieta, Hemet or Riverside areas of Riverside County, California, and have questions about this, or any other family law or divorce related issue, please contact our office for a free consultation with one of our lawyers at (951) 816-9543.

Otherwise, please visit our websites for more information: http://www.temeculadivorce.com/ or http://www.familylaw-riversidecounty.com/ or http://www.familylawyerintemecula.com/

Obtaining an Offset for Child Support Arrearages

2007-06-06T21:43:00.000-07:00

Non-payment of child support is a serious matter. Child support payments can only be discharged if they are paid in full, if there is a mistake made in the calculation of child support arrears, the order contains a legal mistake, or the child support was satisfied in another way.

If a parent cannot prove the support was paid when due, the court will order that parent to repay the child support, with interest. Sometimes there is a mistake in the amount alleged as arrearages.

Child support can discharged by satisfying the obligation in other ways. For instance, if the parent had custody during a period when support was ordered, the obligation will be satisfied for that time period. Sometimes expenses paid for the children can be used to offset arrearages. Normally, monies given directly to the child are not support, but, rather, they are a gift.

Finally, support can be discharged if the parties agree reach some sort of agreement. However, no monies can be owed for welfare arrears, and the agreement must be placed in a court order and signed by the court.

What to Expect in a California Paternity Suit

2007-05-31T07:36:00.000-07:00

Legal help from experienced family law and paternity lawyers serving the Temecula, Murrieta and Hemet areas of Riverside County, California.

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.

Paternity Suits: We Were Never Married, Now What?

2007-05-30T23:18:00.000-07:00

A paternity suit is an action filed in court when two people were never married, but have children together. A paternity suit is filed in the same court as a divorce action. This court is called the family law court. Unlike a divorce action, which can divide property, a paternity case can only deal with a limited number of issues. These include who the parents of each child is (paternity), who each child should live with (custody), how much time each child should with each parent (visitation) and child support). The court can also award attorney fees.

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.

Obtaining Emergency Relief Through an Ex Parte

2007-05-29T16:29:00.001-07:00

Ex parte relief commonly used in situations involving domestic violence or where there is some sort of danger to the children.

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.

Domestic Violence: When is Separation Necessary?

2007-05-29T16:21:00.000-07:00

Advice about divorce and separation in a domestic violence situation provided by an experienced Temecula family law and divorce attorney, serving the Temecula, Murrieta, Riverside and Hemet areas of Riverside county.

Domestic violence can be subtle. Most victims of domestic violence are not even aware that they are victims. This is because most relationships do not start out violent; domestic violence creeps up on a relationship. One spouse (or signifcant other) begins to "push the envelope" during arguments. Every time there is an argument, one party slowly becomes more aggressive during Another reason domestice violence is increasingly more common in relationships is because the definition of domestic violence has changed. Domestic violence no longer just includes physical assault.

Generally speacking, the test of whether you are a victim of domestic violence is whether you have ever been physically afraid or intimidated by your partner-- even if he or she has never hurt you, or even touched you. If the answer is yes to this question and you are a parent with children, you are risking custody of the children. If police are called during an argument and they determine the situation involves domestic violence, Riverside county child protective services may be called.

If you are in a domestic violence situation, you do have options. These include getting a restraining order. A temporary restraining order, or TRO, is only good for about three weeks. Within that time, you must return to court and obtain a permanent restraining order.

No one can tell you when seperation(sp) or divorce is appropriate, or when you should get a divorce. If your spouse is physically abusive and you have children, you are risking custody of your children.

For more information about this subject, or any other divorce or family law issue, please visit our other websites, located at: http://www.temeculadivorce.com/ or http://www.familylaw-riversidecounty.com/ or http://www.familylawyerintemecula.com/

Family Law Help Given to Real People by a Real Lawyer

2007-05-28T22:19:00.000-07:00

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/

What is an Ex Parte Application?

2007-05-28T15:04:00.000-07:00

Written by a Temecula divorce and family law lawyer practicing in the Hemet, Murrieta and Temecula areas of Riverside County

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/

What is an Order to Show Cause (OSC)?

2007-05-28T14:41:00.000-07:00

Written by a Temecula divorce and family law attorney practicing in the Hemet, Murrieta and Temecula areas of Riverside County, California

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.

Division of Property in a California Divorce

2007-05-28T13:54:00.001-07:00

Community Property
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.

Separate Property
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.

Divorce with a Child as Explained by a California Child Custody and Child Support Lawyer

2007-05-25T19:28:00.000-07:00

Child Custody and Child Support information provided by an experienced Divorce and Family Law Attorney serving the Temecula, Murrieta and Hemet areas of Riverside County, California.

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

How to Get A Divorce in California

2007-05-25T18:45:00.000-07:00

How to get a divorce in California

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.

Division of Property: What is Community Property?

2007-05-25T15:07:00.000-07:00

Division of Property as Exlained by a Temecula family law and divorce attorney.
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.

Important Legal Terms in Custody Disuptes

2007-05-25T14:50:00.000-07:00

The Information provided here is to help you to become familiar with the terms which will be used in any California custody proceeding.

730 Evaluation Any investigation conducted by an expert, appointed by the court, to help the judge decide child custody.

3111 Investigation An investigation to help the judge determine in custody situations whether one party is a detriment to the children.

Change of Circumstances Once the court establishes a custody and visitation schedule, it will usually not change the schedule unless the situation of the parties or the children has somehow changed. Custody Evaluation Either a 730 Evaluation or a 3111 Investigation

Detriment A finding that one parent is harmful to the children’s welfare.

Ex Parte A request for immediate court orders based upon some danger to the child.

Joint Legal Custody The parties have to meet and confer regarding major decisions and allows both parents equal access to information about the children.

Mediation A court-ordered meeting wherein the goal is to help the parties settle custody issues without the necessity for court intervention. Mediation is required before the court can make orders.

Minor’s Counsel A court-appointed attorney for the children.

Order to Show Cause The scheduling of a court hearing.

Parent Orientation Program An on-line video about the affects of divorce on children. The video must be viewed before attending mediation.

Physical Custody How much time the children spend with each parent.

Primary Parent The parent who spends the most time caring for the child.

Primary Physical Custody The parent the child spends the most time with.

Sole Physical Custody The parent having exclusive responsibility for the children, and usually with the other parent only having limited contact.

Divorce: Frequently Asked Questions

2007-05-25T14:01:00.000-07:00

Divorce help by a Temecula Valley divorce and family law attorney serving the Temecula, Murrieta and Hemet areas of Riverside County:

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.

What Happens if I do not File a Response to the divorce?

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?

There is no way to accurately predict the cost of a divorce. The reason for this is every case is different. Specifically, the cost of a divorce depends on two factors: how complicated the issues are and how much the parties litigate. The two most expensive issues to litigate in family law are child custody and determination of cash flow in a business. If you and your spouse are able to resolve custody and visitation issues before ever filing the divorce action, and if you hire a competent divorce and family law attorney, you will probably be able to get through the divorce process with relatively little expense, time and stress.

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.

My husband is not paying me child support, do I have to let him see the children?

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.

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?

2007-05-25T10:56:00.000-07:00

Legal Separation Information by a Temecula Family Lawyer serving Temecula, Murrieta, and Hemet areas of Ca

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.

For more information about legal separation, please contact the family lawyers at Famularo & Associates serving the Hemet, Temecula, Murrieta, and Riverside areas of California.

Visit our websites at: http://www.temeculadivorce.com/ or Riverside County Divorce or http://www.familylawyerintemecula.com/

Calfornia Child Support Rights

2007-05-25T07:08:00.000-07:00

How much child support am I going to pay?

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.

Divorce Help: How To Get A Divorce in California

2007-05-24T20:43:00.000-07:00

How to Get a Divorce in California: As explained by the lawyers at Famularo & Associates, Divorce and Family Law Attorneys serving the Temecula, Murrieta, and Hemet areas of Riverside County, California.

The following chronology will give you a general idea of how the average divorce proceeds. Your divorce may be a little different because of specific issues between you and your spouse.

To begin a divorce in the state of California, one spouse must file a Petition in his/her local courthouse. The local courthouse in the Temecula and Murrieta area is in Hemet, California. The person who files the Petition for divorce is called the "Petitioner".

The Petition for divorce is then personally served upon the other spouse. The person who is served with the Petition is called the "Respondent".

After the Respondent is served with the divorce petition, he or she has 30 days to file a document with the court called a Response. This document tells the court that the Respondent wishes to participate in the divorce proceedings and wants to be notified of any upcoming court dates.

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.

Once the judge signs the divorce judgment and the six month waiting period has elapsed, the divorce becomes final.

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.