Articles Posted in Divorce

While all family law cases are unique, many fact patterns are similar. Attorneys who practice in divorce, paternity and legal separation encounter similar fact patterns which have similar questions. An attorney should always be consulted for any divorce, legal separation or paternity case no matter whether the issues are just child legal and physical custody or alimony and child support and division of debts and assets or all of these together. The more issues, often, the more complex the case can be. These are a list of some of the frequently asked questions a San Diego family law attorney can be asked in a consultation. A free consultation is a very good way to obtain accurate information as well as realistic expectations.

CAN I FILE FOR DIVORCE OR LEGAL SEPARATION IN SAN DIEGO COUNTY?

Always, there is an issue regarding jurisdiction of where the case should be filed. To file for a legal separation or divorce in San Diego, either you or your spouse must have been a resident of the State of California for at least six months and a resident of San Diego County for at least three months prior to the filing of the petition and summons. This does not mean, however, that all issues would be heard in San Diego. For example, if you have minor children, the jurisdiction for custody and visitation orders would be where the children have lived for the last six months. It is possible to be legally able to file your family law case in San Diego however not have the requisite jurisdiction for any orders [absent emergency] for legal and/or physical custody per the Uniform Child Custody Jurisdictional Enforcement Act. An individual analysis of the case must be made to determine where the family law action should be filed. Sometimes, when concurrent cases in different states, the Judges have a UCCJEA Conference Call to determine where the proper venue is for the case. Also, as is common in San Diego Military Families, one spouse may be on deployment for more than six months however they could still be considered residents of San Diego County depending on the documentation.

man aloneThe chances are that you are good at the job you do. Whether you are a plumber or a podiatrist, a kindergarten teacher or a chemical engineer, it is reasonably likely that there are things about your job and your industry that are well within your personal sphere of knowledge that would be outside that of the average “person on the street” who hasn’t done your job. The same is true for the law — all types of law. While family law matters may seem more manageable as a layperson than, say, patent law or international business transactions, thinking that there isn’t a cost to be paid when you forego counsel can very often be dangerous. In one recent case, a father managed, as a result of the way he mishandled his appeals case, to block the First District Court of Appeal from reviewing either his divorce judgment or his post-judgment child support case.

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gavelA helpful way to reduce the length of a divorce proceeding is for the parties to agree on and stipulate to some of the significant issues to be resolved. Such a stipulation may address matters such as property division, spousal support, and child support, among many other items. While it is not always possible for the separating spouses to reach an agreement on all major issues, the ability to enter into a stipulated divorce judgment will likely result in a more acceptable and less costly process. To help ensure that you are doing everything in your power to reach a mutually satisfactory agreement, you are encouraged to consult with an experienced family law attorney from the local San Diego area.

It is extremely important for the spouses to be forthcoming and honest about the issues addressed by any stipulation. Engaging in dishonest behavior or fraud during the divorce proceedings may serve to invalidate your stipulated judgment and all that it contains. In a recent California divorce case, the ex-wife brought an action to vacate the stipulated divorce judgment — eight years after it was entered by the court. According to the facts, the couple got married in 1974 and separated in 2004. At that time, their two children were adults. In August 2005, the parties reached a settlement, resulting in a formal stipulated judgment that determined the division of property, among other things.

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happy familyThere are state laws applicable to every aspect of a family law case. The California Family Code governs actions for divorce, spousal support, child custody, and many of the attendant issues to be resolved. Courts interpret such laws in light of the facts and evidence presented in each case. For this reason alone, it is important to understand how these myriad legal provisions may affect your family’s rights now and in the future. An experienced family law lawyer from the local San Diego area would be able to guide you through the California divorce process as seamlessly as possible.

One of the highly regulated areas of family law concerns the physical and legal custody of children. Courts are guided by the following principle:  which arrangement promotes the best interests of the child. Under the law, custody orders may be modified if the parent seeking the modification can show that there has been a “change in circumstances” sufficient to warrant the modification. In a recent custody case, the father lived in California, and the mother lived in Virginia. The court entered a permanent custody order giving the father (a Bay Area resident) physical custody of the child during the school year and the mother physical custody during the summer.

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USA MapsOne of the lesser-known legal hurdles in a family law case concerns the appropriate jurisdiction within which to bring your claims. Whether it is an action for divorce, child custody, spousal support, or any other related matter, parties must ensure that the court has jurisdiction to hear and decide the case. In considering the question of jurisdiction, courts often look at whether one location is a more “convenient forum” than another. Before couples are able to address the substance of their family law case, they must establish the appropriate jurisdiction. In order to move your case along as efficiently as possible, it’s important to contact a local San Diego family law lawyer who would be able to quickly identify the most suitable court for your case.

Issues concerning the appropriate forum often arise when the parties live in two different states. Section 3427 of the California Family Code provides that a court that has jurisdiction to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.

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Glossy FamilyIn most divorce cases involving children, the family court will order the amount of monthly child support to be paid to the supported spouse. That amount will remain in effect for as long as the court decides, or until one party can show a “change of circumstances” sufficient to modify the order. Under California law, there are no official guidelines governing when circumstances have changed enough to warrant a modification. The determination is typically made on a case-by-case basis and often rests on one’s ability to pay or one’s financial status. Child support is an extremely important issue in any divorce or separation case. An experienced San Diego family law attorney would be able to analyze your situation and determine the financial options for your family and you.

Courts often step in when a parent fails to make support payments or alleges that he or she is unable to meet the obligation. The California Family Code authorizes a court to require a parent who alleges that the parent’s default in a child or family support order is due to the parent’s unemployment to submit a list of at least five different places the parent has applied for employment. This is known as a “seek-work” order. In a recent California case, the ex-husband and father claimed that the court should not have issued a seek-work order and that the actual form was arbitrary. He also alleged that the family court abused its discretion by denying his request to modify the child support order.

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dollar armyParties are encouraged to reach agreement on as many issues as possible in divorce cases. When the couple is able to do this, they tend to be more in control of the ultimate outcome. Furthermore, such an agreement or stipulation typically leads to a shorter, less costly, and more amicable resolution. For the most part, courts look to approve such agreements in order to resolve the case as efficiently as possible. But the stipulation must adhere to applicable legal standards. In order to ensure that any agreement you enter into in divorce protects your rights and will stand up to court approval, you are encouraged to contact a local San Diego family law attorney as soon as possible.

A recent California divorce case involved the trial court’s rejection of a stipulation entered into by the parties prior to trial. Here, the wife filed for dissolution of the marriage in June 2009. The husband moved out of the family home in April 2010. There were two trials. The first took place in April 2011, dissolving the marriage and allocating support and child custody. The second addressed the division of assets, which is the subject of the matter at hand.

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law seriesThe California Family Code devotes an entire section to the regulation of child support. Under the law, a parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life. Therefore, when a couple seeks to separate and divorce, the court will attempt to fashion a child support arrangement that suits the family’s circumstances. In order to do so, courts are required to consult and apply the Family Code’s Statewide Uniform Guideline. This is a crucial part of a divorce case that will ultimately dictate the parties’ financial interests going forward. To protect your family’s legal and financial rights, you are strongly encouraged to contact a local San Diego family law attorney as early in the case as possible.

Under the mandatory formula for calculating child support, courts will look at each parent’s “income from whatever source derived.” This includes a host of sources, including but not limited to “commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, and workers’ compensation benefits,” among many other items. The statute clearly contemplates additional sources of income not identified therein. In fact, at least one California case has pointed out that the codified items are “by way of illustration only.”

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old courthouseIn most divorce cases, one party will seek some amount of monthly spousal support. However, it is not automatically granted to the requesting spouse. In fact, eligibility for spousal support is dictated in large part by statutory provisions. Under Section 4320 of the California Family Code, courts are required to review a list of specified factors in order to determine whether (and to what extent) spouses are entitled to financial maintenance in divorce. Since the judge’s decision as to support will likely affect the parties’ financial status going forward, it is extremely important that you consult with an experienced San Diego family law attorney who will work to protect your interests and legal rights.

A recent case illustrates the significance of understanding how the Family Code applies to a party’s request for spousal support in divorce. Here, the couple began living together (in the wife’s home) prior to their marriage. While they both contributed to living expenses, the wife owned the house separately. The husband had given the wife a wedding ring valued at $40,000, and the couple got married in January 2006. She is a physician, and he worked, until 2007, as a human resources manager at Home Depot. He was laid off from his job in 2008. Once the parties were married, the wife signed a deed granting title to the house to the husband, for the alleged purpose of refinancing the home at a better interest rate. He later re-conveyed the house to himself and the wife as “joint tenants.”

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InvestingCalifornia divorce law explicitly states that as a general rule, property acquired by couples during a marriage is community property, subject to division. And while this rule seems fairly straightforward, virtually no divorce case is without complications when it comes to the division of property. As the parties are separating and beginning to consider their new future, each spouse will most certainly try to preserve and protect their separate financial interests moving forward. To be sure your rights are protected throughout your divorce proceeding, it is imperative that you contact a local family law lawyer from the San Diego area.

Property subject to division in divorce includes bank accounts, the marital home, other real estate interests, investment accounts, and many other items. In order to allocate assets and debts in divorce, courts must determine what is separate versus community property. While the timing of the acquisition is of primary importance, additional factors may affect the characterization of property. For instance, assets may have been accumulated during the marriage, but what happens if one spouse used their own, separate funds initially to acquire that jointly held property?

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