Articles Posted in Family Law

As part of a divorce proceeding, the family court often issues an award of monthly spousal support to one of the parties. California law sets forth a variety of factors to weigh in determining the amount of support. It is important to keep in mind, however, that in most cases, this court-ordered amount is not necessarily a permanent figure. Either party may request the court to modify the spousal support by pleading and proving a “material change in circumstances” since the order was issued. Since an award of spousal support can have a dramatic impact on both spouses’ finances after divorce, it is important to ensure that your interests are protected as early as possible in the process. An experienced San Diego family law lawyer can assess your case in accordance with local laws.

In order to successfully modify your spousal support order (either an increase or decrease in the amount), it is helpful to understand how courts view the established standard of a “material change in circumstances.” In a recent case, the husband filed a request to modify or terminate spousal support payments to his ex-wife. The couple got married in 1989 and divorced in 2002. Their marriage lasted for 13 years, they had no children, and each party received over $1 million in assets.

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When a divorce or separation case involves children, the parties must address additional considerations that will affect the family down the road. Issues such as legal and physical custody and visitation (or “time-share”) must be resolved, either by mutual agreement or an order of the court. California courts have the authority to issue various kinds of visitation orders in child custody cases. The underlying goal is to find a suitable arrangement that serves the best interests of the child under the circumstances. It is important to understand your family’s rights in a child custody and visitation proceeding. You are encouraged to contact an experienced San Diego family law attorney, who can sort through the legal requirements in order to protect your rights.

“Visitation” is usually part of a custody order and is commonly understood to be the plan for how parents will divide time with their children. Depending on the situation, visitation can take place according to a schedule, or it may be unscheduled (“open-ended”) but “reasonable.” In some cases, courts will order “supervised” visitation, or no visitation at all. In order to be able to enforce a custody and visitation arrangement, the parties must present the plan to a judge. Once the judge signs the document, it becomes a court order, enforceable by either party. If circumstances change, such as the children’s schedules, the location of the parties, or any other item affecting the arrangement, either party may file an application with the court to modify the existing custody and visitation order.
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A divorcing couple with minor children inevitably will have to consider the issue of child support. Either the parties will come to an agreement as to the appropriate amount, or a court will impose upon them a determined figure in accordance with the state’s child support guidelines. Additionally, the State Family Code requires parents to pay “adult child support” under certain circumstances. Whether you will be the recipient of support or the person obligated to pay, it is extremely important to understand your legal and financial rights. The best course of action is first to contact an experienced family law attorney from the San Diego area, someone who handles divorce cases on a daily basis.

While not as common as a typical child support obligation, adult child support requirements do exist. Under Section 3910 of the California Family Code, a parent is responsible to pay for the support of an adult child under the following two conditions: 1) if the adult child is “incapacitated from earning a living” and 2) is without “sufficient means.” A California court recently had the opportunity to review the statute and its applicability to a couple’s divorce case. Here, the parties married in 1993, separated in 2006, and have two children born in 1991 and 1995, respectively. Their stipulated judgment of divorce indicated that the husband was required to pay child support until the children marry, die, are emancipated, or reach 19 (or 18 and are no longer in high school), whichever comes first.
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Under basic California family law, courts have the authority to order one spouse to support the other as part of a divorce judgment. The state code sets forth a variety of factors to review in determining the amount of spousal support. Some of the items include (but are not limited to) the duration of the marriage, the earning capacity of the supported spouse, the age and health of the parties, the couple’s standard of living during the marriage, and the ability of the supporting spouse to pay spousal support. The court’s ruling with respect to spousal support can significantly affect each spouse’s financial standing after the divorce. If you are considering a separation or dissolution of your marriage, it is important to take steps to protect your financial rights. You are encouraged to consult with an experienced San Diego family law attorney as soon as possible.

In a recent California case, the wife failed to seek the assistance of counsel, and the court denied her requests to modify (in this case, increase and extend) the court’s original award of spousal support. Here, the parties were married in 1986 and separated in September 2002. The husband filed for divorce the following month. Throughout the dissolution proceedings, the parties were both represented by counsel. As part of the stipulated judgment, the husband was required to pay $1,000 in monthly support to the wife for seven and a half years, unless there was an application to extend support filed by the end of June 2012.
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After divorce, a parent hoping to change or modify an existing custody order must petition the court and present evidence of a “change in circumstances” that warrants the modification. In California, courts typically favor maintaining an existing custody arrangement, citing the paramount need for continuity and stability in a child’s custody situation. In fact, courts have expressed some reluctance to make changes except for imperative reasons. Disputes over child custody and visitation arise far too often in divorce and separation cases. In order to protect your rights, it is important to consult with an experienced family law attorney from the San Diego area, someone who understands the laws applicable to cases filed in the local area.

One of the grounds for a modification of custody is conduct by a custodial parent that is designed to frustrate the other parent’s visitation and relationship with the children. In a recent California case, the mother appealed a court’s ruling that granted the father’s request for a modification of child custody. Here, the couple got married in 1996 and had four children together. During their divorce in 2010, the court ordered joint legal custody, and the children’s primary residence was to be with the mother. The father was entitled to visitation every other weekend.
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Parents who decide to divorce or separate must address a host of difficult issues, both financial and emotional. Among the most contentious is child support. Fortunately, there are state guidelines that assist the parties in calculating an appropriate amount of monthly financial support for the particular family. If parents do not agree on the amount, a judge will determine the child support payment based on the guideline calculation. Despite these legally prescribed guidelines, parents and ex-spouses often dispute any number of issues related to support. In order to limit or hopefully eliminate any potential arguments over child support, it is important that you address the issue with the help of an experienced family law attorney from the San Diego area.

In a recent California case, the divorced parents disputed whether the husband was responsible to continue paying child support for their 18-year-old son. Here, the parties were married in 1987 and received a judgment of divorce in 2007. The judgment ordered the husband to pay child support for each of their four children until the child reaches the age of 18, except that such support would continue until he or she graduates from high school or reaches the age of 19, whichever occurs first, if the child is a full-time high school student who is not self-supporting. The parents disagreed as to whether the mother was entitled to child support for their 18-year-old son, who had moved to Minnesota to pursue a professional hockey career. The wife filed a statement alleging that the child was in high school in Minnesota. It seems that he was attending high school on a part-time basis (25 hours), online, out of state, and away from both parents.
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A court-issued child custody order typically includes a determination of legal and physical custody, as well as the amount and type of visitation. Under California law, courts will endeavor to craft an arrangement that serves the best interests of the child. Some of the items a court will look at include the child’s age and health, the relationship between the parents and child, each parent’s ability to care for the child, any history of substance abuse or family violence, and the child’s connection to home, school, and the community. Custody and visitation are two of the most important issues to resolve in a separation or divorce proceeding. To protect your family’s rights, it is important to consult with an experienced San Diego family law attorney as early as possible in the process.

It is important to remember that in California, a court can grant either parent custody of the children, or the parents can share custody. For all parties involved, including the children, it is ideal if the parents are able to agree to the custody and visitation arrangement (also known as a “parenting plan”). And while a judge has the authority to make the final decision about custody and visitation, he or she typically will approve the parents’ mutually agreed upon arrangement. If the parents cannot agree, the judge will render a decision at a court hearing. In some unfortunate cases, one parent, or even the children, may fail to heed the court-ordered arrangement.
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Laws governing marriage and divorce vary somewhat from state to state. Most aspects of a divorce proceeding are regulated by the local state’s family code, including procedural and substantive matters. In California, like most states, parties are required to follow applicable provisions from the inception of a case to the final appeal. For example, from the outset, the person who initiates a divorce proceeding must adhere to the state’s rules on how to properly serve notice of the complaint on the other party. It is important to keep in mind that these rules are local in nature and may be different depending on where the parties reside. In order to protect your rights and follow the legal requirements in your jurisdiction, you are encouraged to contact an experienced family law attorney from the San Diego area.

Under California law, the person who serves your divorce papers must be 18 years of age or older and must deliver a copy to your spouse. The server can be a friend, relative, county sheriff, or an official process server. There are two ways that one can accomplish “effective” service: 1) by personal service – i.e., a hand-delivered copy of all the papers, including blank forms, to your spouse; or 2) service by mail with a notice and acknowledgment of receipt.

As with most issues in a divorce proceeding, it is helpful if the spouses are on good terms and cooperating with each other. If one spouse agrees to accept service by mail, it can be a simpler and less costly way to accomplish service. In some family law cases, it may not be so easy to locate your spouse in order to properly serve him or her. In such instances, California law allows you to ask the court for permission to serve your papers “by publication” or “by posting.”
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When a court issues a judgment of divorce, the parties to the case have a legal right to appeal the ruling. But California law sets forth certain requirements that must be met, such as the time period within which one may file an appeal. The law states generally that notice of an appeal must be filed within 60 days after the “Notice of Entry” of judgment is served. While this may seem clear cut, courts have been called upon to interpret the language as it applies to the facts of each individual case. This law, like many others that govern various aspects of a divorce proceeding, must be followed; otherwise, parties stand to lose certain rights. In order to ensure that your rights are sufficiently protected in a divorce-related action, it is important that you contact an experienced family law attorney from the local San Diego area.

In a recent California divorce case, the husband disputed the timeliness of the wife’s notice of appeal of their divorce judgment. Here, the couple got married in 1999, and the husband filed for divorce in 2009. After a six-day trial, the court issued a “tentative statement of decision” on November 28, 2012. As part of this decision, the court ordered the husband to prepare and submit a judgment containing the court’s decision and the couple’s settlement agreement. On March 11, 2013, the court entered the husband’s proposed judgment, and the clerk filed and served the notice of entry of judgment that day. The judgment covered issues such as the division of assets in contention, spousal support, and attorney’s fees and costs.
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Family law cases come in all shapes and sizes; no two divorce proceedings are alike. But certain aspects of divorce are fairly predictable, especially when you know what to expect. The California Family Code, in conjunction with established case law, governs most procedural and substantive issues that may arise. Some of the more common items include the division of marital property, child custody disputes and spousal support. It is important to understand how these laws will impact the circumstances of your case, and particularly, your family’s rights down the road. The best way to ensure that you are adequately represented is to contact an experienced family law attorney who is fully aware of the local laws affecting cases brought in and around the San Diego area.

Of the issues to be resolved, child custody and visitation matters are often the most hotly contested. It is not difficult to understand why. Parents, who are splitting up, typically want to spend as much time with their children as possible — and may not see eye-to-eye when it comes to physical and legal custody. In a recent California divorce case, In re Marriage of Green, the parents were embroiled in a highly contentious custody battle. Once a court issued a temporary custody order transferring “sole physical custody” from the mother to the father, the mother fled to Canada with the couple’s three minor children. Under California law, when a judge issues a child custody ruling, it becomes a court order and has the force of law. Taking children out of the country in violation of a custody order can be considered “child abduction” and a serious crime.
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