Some Family Law Issues Discussed?Our Firm practices Family Law, and handles a wide range of Family Law related matters and cases. We will use the term "Family Law" throughout this website, what do we mean? There are many, many issues that fall under the umbrella of the term "Family Law Issues". For simplicity sake, I will bullet point many of the obvious Family Law Issues:
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"I want to file for divorce", or "My spouse just served me with Divorce papers"; What do I need to know?
Careful....A little knowledge can be a dangerous thing!We intend to give you some interesting information, but nothing in this web page is intended to teach you Family Law. The practice of Divorce and other Family Law issues are one of the most dynamic and ever-changing areas of the law. Even 30 year practitioners learn new law every year, if they choose to. In fact, the more serious Family Law Practitioners subscribe to multiple services that supply all the new law on a weekly basis. Please do not expect to read 6 or 7 different web sites and think you can handle your own divorce. YOU CANNOT. I get about 1 call per week from someone who either tried to do their divorce themselves, or they went to a paralegal for their divorce, only to find that they are still married years later. You wouldn't go to a Mechanic if you needed Surgery; don't go to a Paralegal when you need an Attorney. Initial Consultations are always free.
We also realize that we can not "teach" this information to you. To put that much information in one web site would be absolutely impossible. But, we will try to give you a little information, REAL, PRACTICAL information that will assist you in understanding the real "rubber-meets-the-road" type of issues that will help you understand the process of your family law matter, how many Judges think and feel about certain issues, and why things are done the way they are done in the Family Law arena.
THIS IS HUGE!!! You may have heard of this before, but it is very true, "It is not only knowing what to say, it is knowing what NOT to say!" THESE ARE CLASSIC EXAMPLES BELOW.
I call them the "Family Law DOUBLE-EDGED SWORD""It's an old saying, BUT never so true as it is in Family Law. Take this old adage one step further. You also need to know how to say it. You should be aware of HOW what you are saying is being heard by the Judge. Almost everything you say in a Family Law courtroom, or in a declaration that you file with the Court, can be a "Double-Edged Sword." Let me give you a couple classic examples:
"My child needs me."
I hear people say this all the time! Forgive me, but it is often Mothers. They say the following, or something similar to: "I can't believe he is trying to take my baby away from me. My baby needs me." There are few things that will anger a Judge as fast as this will. There are two very bad things wrong with that statement...Don't say it. Judges are under that modern belief that a child needs BOTH parents equally. Additionally, notice how this imaginary person used the term "my child". I can't tell you how many times I have heard a Judge make the joke, "How in the world did you conceive this child alone?" There is always stunned silence throughout the courtroom immediately following this question. And by the way, the Judge is making a joke, but every time I have heard this, the Judge did not think there was anything funny about it. You should NEVER refer to your child as "my child". I realize that some parents are absentee parents, or not involved at all. Some may not even want to be involved in the child's life, BUT, you must realize, that the Judge is under the belief that a child needs BOTH parents equally, even if they don't want to. Remember, it is always, "our child".
ANOTHER EXAMPLE OF A DOUBLE EDGED SWORD!!!
"He is a pig. He can't even keep a job."
Be very careful when saying things like this. Please understand this is a gray area, and this is a very general statement, this is just intended to be informative. If the man really is a pig, and there are serious reasons for him not being able to keep a job, such as alcoholism, drug use or anger management problems, then there may be some very good reasons to say things like this in a declaration, or on the record to a Judge, but you must always watch out for the "double-edged sword," as is here...
When you say the statement above to a Judge, the Judge may hear, "Your Honor, you should give custody of our child to his father since he doesn't have a job, and since he doesn't work, he has all the time in the world to prepare the kids for school, take them to school, pick them up after school, help them complete their homework, feed them dinner and prepare them for bed before I even get home from my full-time job that keeps me away from my kids. And furthermore your Honor, I realize that our children are better off with him than in a day-care where a non-parent is effectively raising our child."
Now, not every judge feels this way, But you should be aware that some absolutely do! Again, where there is a serious reason to say he is a pig, then you must, but you really must be careful of what you say, and how you say it.
Take notice of the last sentence again, "He is a pig, he can't even keep a job." The following is a different issue, but you need to think about what have you just told the Judge about your husband's "ability" to pay any future "Spousal Support" orders the Judge might make. Yes, you just admitted he can't make a steady income. Therefore, you may have just admitted that you make MORE money than your husband, and you just effectively guaranteed that you will be PAYING HIM spousal support. Yes, spousal support goes both ways, it only depends on who makes MORE money, which is you, if your spouse is unemployed. Oops!
This is just a couple examples out of dozens of famous "spoken blunders" blurted out on a regular basis by parties in family court who are not represented by good counsel. You must know that YOU DO NOT KNOW what words can hurt you if you are not careful.
SOME HELPFUL DEFINITIONS...
The Divorce Process:
The following is a list of terms and simple explanations of those terms for you information. Not every divorce deals with all of these issues. For example, some people do not have children, and others do not own a home. But, the following will give you a bit of understanding regarding some issues in Family Law. Obviously, if you have additional questions, or would like additional information on any issue, feel free to e-mail us, or call us anything during normal business hours.
VIRTUALLY ALL DIVORCES; CAN BE MEDIATED OUTSIDE OF COURT!!!"Mediated Divorce" / "Agreed Upon Divorce"
We realize that many people are so angry at one another that they find it impossible to even be in the same room with their spouse, or ex. But, did you know... You can get divorced, & Never see a Judge, & Never see court room. With our Help; Your work can be completed in 20 Days!! Saving Thousands of Dollars!! We do this EVERYDAY!!!
Even if you and your spouse are not getting along, you don't have to get along, to understand the savings, monetarily, mentally and emotionally!
You may find this hard to believe, or very easy to believe, but MOST DIVORCES CAN BE SETTLED OUT OF COURT with little or no fighting, and not a single trip to the courthouse! Let me say that again, MOST DIVORCES CAN BE SETTLED OUT OF COURT! In fact, we at the Law Offices of Douglas S. Pinkham, have a fantastic track record of helping those that want a simple divorce by assisting them outside of court. For experienced attorneys, a divorce, whether it be, a divorce between two people married 37 years, with 7 houses, 2 apartment buildings, a multi-million dollar family business, stock funds, numerous retirement accounts, and an art collection, or a divorce between two individuals married 3 months that own little more than the clothes on their backs, their toothbrushes and two cars that they owe more on than the cars are worth, divorces work the same way, and we know how they work. Some are simply more involved and complicated, but no divorce needs to be tricky, they do not need to take a long time to complete, and they NEED NOT BE A FIGHT.
If you and your spouse like the idea of a Mediated Divorce, call us, we can help you get that done. Click here!
"Divorce / Dissolution"
In California Family Law, "Dissolution" is just another word for divorce. It is actually a word borrowed from Civil Law Practice. The word simply means to dissolve something. In this case, a marriage. One interesting reason for the change is that the parties use to be called "Plaintiffs and Defendants" like in a Civil, or even a criminal case. That was found to be undesirable, so the civil term "Dissolution" was adopted. Also, they changed the terms from Plaintiff and Defendant, to "Petitioner" for the person that files for the Dissolution, and the "Respondent" for the person who files a Response, responding to the Petition.
The title given to the person who files a "Petition" or "Dissolution" or "Legal Separation", or to determine "Paternity" or parentage of a child, or any other Petition. Along with a Summons" and a couple other documents, this is one of the first documents filed in any Family Law case. If this is not filled out correctly, or you write the wrong thing in your Petition, or if you do not write something you should have, you could profoundly harm your case from the very beginning.
The "Respondent" in a family law case is the party responding to the Petition filed by the Petitioner. You typically have 30 days to file a Response to a Petition, and the things you write in the Response are profoundly important from the outset. You can win or lose your case by saying the right, or wrong thing in your Response, so get proper legal help before filing this document.
"Service of Process" or "Personal Service"
At the beginning of any Family Law case, the Petitioner will file their Petition and some other document. Then, those documents must be served on the Respondent. Without service, there will be no divorce. In fact, in most circumstances, the Respondent must be "Personally Served". Personal service means face-to-face. Someone must actually hand the Respondent a copy of all the filed papers, plus a couple papers the Respondent will need to respond to the Petition. Any adult, who is not an "Interested party" in the case can serve the other side. The Respondent does not need to sign anything saying he/she received the documents. The person that serves the Respondent, must then fill out a "Proof of Service of Summons", and that Proof of Service of Summons will then be filed with the court before the case is formally started. After that, the Respondent is on the clock, they have 30 days to respond (file the "Response"), or the Petitioner can take the Respondent's "Default". Additionally, in California you must wait 6 months and 1 day to get divorced. The State calls that a "Cooling off Period". They make sure you have time to really think about the divorce, and make sure you want to go through with it. To get a divorce in California, you must wait 6 months and 1 day after serving the other party to obtain a divorce.
"Default" - VERY LEGALLY DANGEROUS!!!
If the Respondent does not file a Response within 30 days after they are properly served, and continue through the divorce without any further notice to the Respondent. In fact, if a default is taken, the Petitioner can proceed directly to trial and ask the Judge for anything reasonable, like custody of a child, or the exclusive use of the family home, and they would get what they ask for, even though the Respondent isn't even present in court.
In a disputed Divorce, taking your opponent's default can be a very valuable tool, but there is one major Caveat! Generally speaking, Judges do not like to take a person's default, thusly, they are often relatively easy to get a default "Set Aside" (get rid of it) after they have been entered by a Judge. This is because the business of a divorce is very serious, children are often involved. Additionally, child custody, visitation, child support, spousal support, and all property issues are all usually involved. Therefore, Judges want each party to have their rightful chance to be involved in the divorce process if they want to be.
I know, it is almost impossible to talk about custody without mentioning child support, and it is impossible to discuss child support, without mentioning custody. This is also true in court. This is because the amount of time your child spends with you is a huge factor in determining how much child support you will pay, or receive. BUT, everyone who reads this should be aware that even though the amount of child support a parent pays or receives from the other is based largely on the amount of time the child or children spend with you. Judges HATE any argument that smacks of "trading children" for money (support). Remember my earlier warnings about saying things that are a double-edge sword, such as a father requesting more time than he has ever spent with his kids before, just so his child support burden is reduced. Or, a mother (typically) who knows the Father is a good father, and knows the children want to spend more time with their father, but she fights for more time just to get a larger child support award. THIS IS A CLASSIC ISSUE THAT CAN COST $$THOUSANDS $$IN A CONTESTED DIVORCE CASE.
The first thing that MUST be noted with regard to the issue of spousal is this, IT IS NOT A GENDER DRIVEN ISSUE. I have had many, many cases where the wife was the larger wage earner, and thusly, was ordered to pay spousal support to her husband. Obviously, and I feel I can say this without offending, as it is clearly factual, in most relationships, the male partner earns more than their female counterpart. Therefore, if I slip and call the "Payor" the husband, and call the wife the "Payee", I apologize in advance.
That being said, every person that pays spousal support, typically says "That is too much, I can't afford to pay that." Furthermore, almost every receiving party says, "That's not enough, I can't live on that." This leads to soooo many conflicting issues. Here I go.
Who Pays Who?
As stated above, the "larger wage earner" will probably have to pay spousal support to the lower wage earner. It is not a gender issue. Do you make more money that your husband? VERY GENERALLY speaking, if you earn approximately the same income as your spouse, there will be no spousal support paid. But, if you earn 25% more than your spouse, you may have to pay some small amount. If you earn 4 times what you spouse earns, you will probably be ordered to pay a substantial portion of your income to your spouse for spousal support.
How Much Will I Pay or Receive for Spousal Support?! The simple answer to this is we use a computer program to make this determination. Call me, I am happy to run the numbers for you as part of a free consultation.
The intent of "Spousal Support" is to attempt to help both parties maintain the lifestyle they shared during their marriage. Also, to keep the parties at a relatively equal lifestyle. BUT, before you start counting your money, do the math! It is usually impossible. How can you run two separate homes at the same "lifestyle" that you use to run one, especially when you use to share most everything, and now (separated) you need two of everything. The simple answer, YOU CAN'T, and the Judges know it. You also need to realize, that just because your spouse earned more money than you did during your marriage, spousal support is NOT automatic, like child support. There are many, many factors involved in spousal support, and it can be very tricky.
You do not automatically get spousal support in a divorce or Legal Separation case. You have to ask for it. This leads to the most difficult issue in the entire process for people representing themselves. Take a moment, and read the section "FILING DOCUMENTS WITH THE COURT".
How Long Will I Get Spousal Support?
Generally speaking, if you were married for less than 10 years, Spousal Support usually lasts approximately "half the length of your marriage." If you were married for more than 10 years, the State of California has deemed that marriage to be of "Long Duration." As such, the law says that the Court shall maintain jurisdiction over the issue of Spousal Support Indefinitely". No, this does not mean forever, but it definitely means for an uncertain length of time. For example, if you were married for 34 years, and one spouse makes 3 times the amount of the other; you can be pretty sure Spousal Support will be ordered, and will go on for a very long time, possibly decades.
"The Family Home"
The Family Home can either be a very simple item to dispose off during a divorce, or it can be extremely complex, and the most difficult issue to deal with. A full array of issues can arise even if you do not anticipate any and just about every time you will need the help and guidance of a well seasoned Family Law Attorney.
The following are only outlines based on hypothetical questions typically asked by clients. The hypothetical solutions are not intended to be a representation of the laws or a potential outcome of your case. If you feel like you can identify your case with one, two or many of the following issues, call us today immediately so that we may help you asses your situation.
Defining "The Family Home"
The family home is the residence were the spouses resided primarily during their marriage and prior to separation. Thus, the family home can also be a property that is not determined to be community property (definition of community property follows below), but rather the separate property of one or the other of the spouses.
Defining "Community Property"
Community Property is actually quite simple, it is the property that you and your spouse own together. Not always, but generally, all property that is acquired by the parties during their marriage and prior to separation is community property, even if one of you purchased the property on "your own" credit card. All items that are determined (by the Court) to be community property are equally owned by the parties. In other words, each party owns 50% of every item acquired during the marriage and before separation. Of course, certain exceptions do apply.
Defining "Separate Property"
Separate property is, as obvious as it may sound, basically anything that is not community property. More specifically, separate property is an item or items deemed to be owned solely by one of the parties. That is important, because an item can be separate property even though the item was purchased during the marriage. In fact, there are many things that are purchased during every marriage that are deemed "separate property". If something is separate property, the other party has no ownership interest over any items determined to be the separate property of the other.
Will the Family Home Be Divided Equally?
The answer depends on many factors. For this example, we will assume that the home was purchased during the marriage of the parties and prior to separation. Here the answer is generally, YES. Each party is entitled to half of the value in the home. If the home has a negative value, theoretically, you each own half the debt! Again, there are exceptions to this general rule, so I urge you to call us for a consultation.
However, if the home was purchased prior to marriage by one or the other, then the answer is generally, No. However, this does not mean that the person that did not initially purchase the home is not entitled to any value in the home. Quite the contrary, in most instances, the non-purchaser will be entitled to certain contributions made towards or into the home such as payments, taxes and other items. Careful, you do not get "dollar-for-dollar reimbursement. In fact, the amount of money you both share in a separate property home is quite complex, and we use a computer program to determine those numbers.
Additionally, even if the home is "community property", but one or the other party made contributions from their "separate property" towards the acquisition of the home, monthly payments, or payments for taxes or Insurance for the home, then that person may be entitled to a reimbursed for some or all of their separate property contributions. This is a technical area of the law. To determine if any contributions you have made towards the family home are considered separate property, so as to entitle you to be reimbursement, give us a call today.
There are many other scenarios. The above scenarios are only some of the most common scenarios people face each and every day in a divorce case.
The value of the home can be determined by one of various methods. First the parties must determine what the fair market value of the home is. In other words, the amount for which the home would sell if you decided to sell the house. To determine this amount, the parties can agree and stipulate to a value of the home. The parties can also agree to have the home appraised and can stipulate (agree) that the fair market value of the home will be the amount determined in the appraisal. Finally, the parties can agree from the outset to sell the home and agree to accept an offer, which automatically sets the fair market value of the home. Lastly, if the parties are unable to agree on a value, are unable to agree on an appraiser, and simply can't discuss it, then you both end up hiring your own appraiser, and try to prove your appraiser's value at trial. If the appraisers are both reputable, the Judge is likely to pick a number close to the middle of both parties' values. Sounds like an awful large expense to do what you could have done outside of court doesn't it? Mediate your divorce! Call us now.
Once the fair market value is determined, the parties must also determine what is owed on the home. This includes a first trust deed, seconds, thirds, and any other liens or encumbrances recorded on the property. To determine this amount the parties may consider a title search if they are uncertain as to what is or may be owed on the home.
Finally, the value of the home is the fair market value minus the total of all amounts owed on the home.
Is it true that I may be awarded more than half the value of the home?
As stated before, there are many exceptions to the general rule. Separate property contributions, timing of the acquisition of the property, payments made after separation, other contributions, and distribution of other assets can ultimately "tip the scale" up or down causing one party to be entitled to more or less than half the value of the home.
I've heard that I can keep the house, is this true?
Sometimes, absolutely! But, what happens when you both want to keep it. How would the judge decide who keeps the home? The Court will allow either party to attempt to retain the home if they are financially capable of doing so. However, this does not mean that the other party will not receive his/her share of the home.
Can you both afford to keep it, keeping in mind not only the present house payment, but also the new payment that you will have when you take money out of the home to buy your spouse out of their portion of the equity. In other words, if you wish to keep the house, in addition to showing ability to retain and pay for the house, you must buy out the ownership interest of the other party, whatever that may be. Keeping the house will usually result in the need to take money out of the equity of the home, but is not necessary. Other assets and debts may be used to offset the amount you are required to pay to the other party.
Do you have children? Are the children going to stay in the home with the primary custodial parent? That is a strong factor is deciding who gets to keep the house.
We have minor children, can I continue to live at home with our minor children and defer the sale of the home to a later time?
This question is very complex and is based on a case by case scenario. However, there is a method for deferred sale, which allows the custodial parent to remain in the home after separation, after all other assets and debts have been divided among the parties, and even after the divorce is finalized. BUT, remember, if the home is community property, you both have an equal right to take your money out of the home. If you want to keep the home, but are unable to buy your spouse out of the home, he/she will be able to force you to sell. However, remember, you can always agree outside of court to allow one party to stay on the home for some time to allow the children to finish a school year, or longer. The Court will allow you both to make almost any agreement you want on this issue.
However, if a deferred sale is actually implemented, the specific issues will vary from case to case and the legal issues involved in such deferment of the sale are complex. We live together in the Family Home. I want to separate, but neither of us can move out, what happens.
Believe it or not, it is very common for individuals to "separate" (end their marriage) but continue to live together in the family home. Most people do not own multiple homes, but rather, only have the family home. If both persons continue to live in the home during the divorce process and continue to share equally or as customarily in the expenses of the home, the Court will not usually make any "support" orders until the either of the parties moves out. In most instances the parties will continue to live in the family residence until one buys the other person out of their share in the home or until the home is sold.
However, if there has been any form of "Domestic Violence" in the home, we urge you to call an attorney immediately. If you are the victim of violence, you may be able to obtain a "Restraining Order" against the other person, which often includes a "kick-out order" forcing the violent person to move out of the home.
I have moved out of the home. The home is in my spouse's name only, how do I protect any interest I may have in the family home?
Again, this is very common, but dangerously tricky. Fortunately, there is something called "lis pendens". The most literal translation means, "Litigation Pending". This is a document that is prepared by attorneys and recorded with the County. A lis pendens simply gives notice to everyone that there is pending litigation with regard to this property. Why is this important? The lis pendens can keep a persona from selling the home, or taking any further liens against the property. Simply put, it keeps the property at "status quo" during the litigation process. FILING A LIS PENDENS IS VERY TRICKY, IF YOU DO IT WRONG, YOU WILL PLACE YOURSELF IN A LEGALLY DANGEROUS POSITION. DO NOT ATTEMPT TO FILE IT YOURSELF.
Preparing, serving, filing, and recording the Lis Pendens requires that very specific, and not flexible, procedures be followed. If the Lis Pendens is not properly prepared, not properly served, or not properly filed or recorded, you will be in one form of trouble or another. Again, DO NOT attempt to file this on your own, call us today. We will ensure that you are protected.
What happens to property we own that is situated in another State?
The Court in California can make orders as to how the property is to dispose off, which the parties must follow. However, if you want to record a Lis Pendens or you want to enforce the order in the other State, certain procedures must be followed both in California and in the other State. The procedures change and vary from State to State.
Filing Documents with The Court:
This is one of the most difficult parts of the process for people representing themselves. So many people go to the courthouse, get the divorce packet, or the packet for obtaining child support, or a custody and visitation order, or whatever, and think, "It is just forms, I can fill them out, file them, and go tell the Judge what I want." Good luck! We get at least one call per week from someone that attempted to start their own divorce, or do their own paperwork, or even asked some independent paralegal to "fill out" their paperwork, and now their case is screwed up, badly, or worse, or they lost custody of their kids, or they are only getting $210/mo. In child support, and now need our help to UNDO what they messed up.
The first thing you need to know is, those forms are "Legal Documents". Everything you put on them, every box you check, or DON"T check, can profoundly affect the legal outcome of your case.
Example: On the back of a Petition for Dissolution, called the "Petition," is a section that simply asks you to list your community property. Do you literally list everything? Do you have to go through your house/apartment listing every plate, bowl, fork, spoon, pillow, sheet, TV, other TV, the third TV, VCR, stereo, blah, blah, blah? Then you realize there is not enough room on the form for that. So you realize that can't be what they are really asking for.but then see a note that reads if you need more room, use an attachment. YIKES, maybe they do want you to list every plate, spoon and sheet. One answer is you have to give the other party "notice" of any item of property you want the Court to divide or disburse. "What the heck does that mean, right?" The truth is, the real answer to this is somewhere in between everything you own, and just the big items. You need to realize that these are the very things we learn after doing this for years and years. Call us, we can help you.
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