Initial Agreement on No-Court Divorce

The process begins with you and your spouse agreeing to try a no-court divorce and each hiring a divorce attorney for advice and assistance.  Then you, your spouse, and your lawyers meet to discuss all the options available. The goal is to design a strategy that will resolve matters peacefully and set a cooperative tone for any post-divorce interactions.  This is particularly helpful where children are involved. 

Agreeing on a strategy for handling the divorce may occur either before or immediately after a Petition for Dissolution is filed.  Once this is followed by the filing of temporary orders, responses, and case management stipulations, the no-court resolution process begins.

Negotiation

Your first option for handling the divorce issues is negotiation.  You and your spouse, with your respective attorneys, attempt to resolve issues through face-to-face meetings and the exchange of written offers and counter-offers.  This process will usually be accompanied by any asset or valuation appraisals needed – for example, of the family home, or of a business owned by one or both spouses.  Each spouse may need a CPA or tax attorney to plot the best financial strategy for property division and support.  The goal is always to reach a mutually acceptable agreement rather than to fight over the various matters in your divorce. 

Mediation

When the spouses are too emotional to resolve issues through negotiation, or when they can’t agree on one or more issues, mediation by a trained divorce mediator may be useful.  In one or more sessions, the mediator typically meets separately with each party and their attorney, and then holds a joint meeting with both parties and attorneys.  The mediator helps to diffuse emotions and bring the parties to the point where they can each make and accept concessions to resolve one or more issues.

Arbitration

Finally, if the parties are still at odds, they can agree to have a trained private arbitrator – typically, a retired family law judge or a family lawyer with years of experience – hold a hearing and make a decision for them.  Although this is not cheap, it is still far less expensive than a court proceeding. 

Finalizing the Divorce

When all of the issues are resolved, and any insurance and tax issues have been handled, the divorce is ready to be finalized.  Legal papers are filed, and the court issues an order dissolving the marriage.

Although the ending of a marriage is never a happy time, the no-court divorce can save money, preserve relationships, make it easier for the divorced parents to communicate comfortably on issues concerning their children, and allow the children a smoother transition into the new family situation.

Call San Diego Law Firm for either Traditional or No-Court Divorce

The experienced divorce lawyers of San Diego Law Firm can help you through either a traditional or no-court divorce, while protecting your rights to a fair resolution on issues of property division, child and spousal support, and child custody.  To set up an appointment, please call San Diego Law Firm today at (619) 794-0243.  We look forward to helping you.

How long do emergency orders last?

Ex parte orders are made quickly and without notifying the other party because there’s an emergency that would permanently harm a party if the immediate order isn’t made.  If a judge issues the ex parte order, then the other side has to get a chance in court to challenge it.  The order will usually last only up to three weeks until the hearing is held to decide whether the order will continue.

When do you need an ex parte order?

Even in a contentious divorce, not everything is an emergency.  You don’t want to hurt your case down the road by seeking an unnecessary emergency order just to try and get the upper hand.  So which situations justify an ex parte order?  Many times, ex parte child custody orders are requested because a parent threatens to move out of state with the child, or because there is child neglect or domestic violence. 

Besides child custody, ex parte orders can deal with many other issues.  For instance, a party may need to request an immediate order prohibiting a house or other assets from being sold or transferred, to freeze a bank account, or to direct the other party to take some other immediate action. 

What are your other options?

If your situation is not urgent enough to justify an ex parte order, there are other temporary orders that you can request before the divorce becomes final.  Keep in mind that although temporary, at a later time, the order could affect your permanent order, which is why we make sure to carefully handle your request (or to oppose the other side’s request at the hearing).  Or, instead, we can work to negotiate an agreement on child custody and other issues and present it to the court for approval.  This is called a “stipulated agreement,” and again, it’s very important to consider the possible future effects and be careful with the language in the agreement and the terms.  Contact San Diego Law Firm’s experienced divorce and family law attorneys as early as possible to discuss the best strategy for your case.  Reach us at (619) 794-0243.

Although the speed and convenience of mediation can lead someone to decide they can represent themselves without getting their own attorney, this is not always a good idea.  A mediator, even if licensed as an attorney, does not function as a “shared” divorce lawyer.  The mediator does not represent either spouse, or give either spouse legal advice.  The resulting agreement may not benefit both spouses equally.  A spouse who has hired a divorce attorney to advise them beforehand, or help them at the mediation, or review the final mediation agreement before it is signed, may have a distinct advantage in obtaining favorable divorce terms for themselves.

If you go through divorce mediation without a lawyer and then later have problems collecting alimony or child support, or obtaining valuable personal property that was supposed to be yours under the final agreement, you may find you no longer have the cooperation of your ex-spouse.  At that point, you will probably need a lawyer to assist you.  Unfortunately, though, the lawyer will be stuck with your divorce mediation agreement, including any legal pitfalls in the agreement that you were not aware of when you signed it.  If you instead have an experienced lawyer advising you throughout the mediation, and making sure the final terms are favorable to you, you are much more likely to end up with an agreement that protects your children, property, and future financial security. 

Divorce is a serious legal matter that can affect you for years, and an experienced divorce attorney is a worthy investment.  If you are considering a divorce or are in the process of divorce and need a good divorce lawyer, meet with one of the knowledgeable divorce attorneys at San Diego Law Firm, and let us protect your long-term interests.  We can represent you before or during a divorce mediation, or in any other type of divorce proceeding.  Please call San Diego Law Firm today at (619) 794-0243 to schedule an appointment.

It’s up to the spouse receiving the money to make sure that the money is being paid and to take action if it is not.  Courts in California will not step in automatically.  If your ex-spouse isn’t paying, then you or your attorney can ask the court to deduct support payments from their paycheck; this is called “wage garnishment.”

Maybe wage garnishment won’t work because your ex-spouse is unemployed or self-employed.  Then the next step would be to seek to collect the amount owed from your ex-spouse’s bank accounts or from a forced sale or his or her other assets, such as stock or real estate.

Spousal and child support awards are given after thoughtful analysis by the court and based on conclusion that you need the support and that your ex-spouse can afford to pay it.  If your ex-spouse is truly unable to make the payments, then he or she can ask the court to reduce the award.   If the payments turn out to be inadequate and your spouse can pay more, you can ask the court to increase the award.  Until the court modifies the award, any missed payments are still due in full, but only in the amount previously awarded.

If your ex-spouse has assets or income, and if you have been awarded alimony or child support but have not been able to collect it, San Diego Law Firm’s knowledgeable and experienced attorneys can help you.  We can seek a court order to let us collect the amount owed you from your ex-spouse’s income or their property.  We can also prepare a financial statement and file for a modification with the court if the payments simply aren’t enough anymore.  If your ex-spouse is falling behind in spousal or child support that they can pay, or you feel that an increase in support is needed, please call San Diego Law Firm today at (619) 794-0243 to schedule an appointment.

California is a community property state.  This means that property acquired during a marriage belongs equally to both spouses.  However, couples can modify their property rights by contractual agreement.  Prenuptial, or premarital, agreements allow couples to decide how property will be divided and/or spousal support paid should the marriage end.  These agreements must be carefully drafted and comply with specific requirements in order to be enforceable.

It is becoming increasingly common for unmarried couples who share a home and expenses to enter into co-habitation agreements.  These agreements govern how expenses will be shared during co-habitation and how property will be divided should the relationship end.  Co-habitation agreements are becoming more popular because many couples now wait until they are older to get married.  By that time, each person often has more assets to bring to the co-habitation arrangement.  Many couples prefer to make an agreement in advance in order to minimize disputes if the relationship ends.

If you are considering a prenuptial or co-habitation agreement, it is important to consult with an attorney who is experienced in drafting these kinds of agreements and who can make sure that your agreement complies fully with all legal requirements.  The attorneys at San Diego Law Firm understand the law regarding property shared by couples in all types of domestic relationships, and can prepare an agreement that is tailored to your specific situation.  Please call San Diego Law Firm at 619-794-0243 to schedule your consultation with an experienced family law attorney.

Grounds for Challenging a Prenuptial Agreement

The method for challenging a prenuptial is to demonstrate that it is defective in some manner and therefore should not be enforced.  This is never an easy undertaking, because much of the evidence will be disputed testimony about what each spouse said or did, or did not say or do – facts that are very difficult to establish without other supporting evidence.  The dispute typically centers on whether the prenuptial agreement was revoked, amended, or invalid from the start because it was entered into as a result of fraud or duress.

For example, fraud might be claimed if one party or the other failed to fully disclose their assets.  Duress might be claimed where one party had exerted emotional pressure on the other to sign the agreement.  In any such situation, a court will make the final decision based on all of the facts.

The Infamous Bonds Case

Barry Bonds, the former major league baseball player, once stood to lose part of a $44 million dollar contract in his divorce.  During the divorce proceeding, his soon-to-be ex-wife argued that she signed the prenuptial agreement under duress, as evidenced by the fact that she signed it just one day before the wedding.

In some situations, a last-minute signing might be evidence that threats were made by the more wealthy party to embarrass the other party by calling off the wedding at the last minute if the agreement was not signed.  However, in the Bonds case, the judge ultimately determined that the wife had actually had time to fully investigate the agreement before the last-minute signing, and so the agreement there was free from duress and enforceable.

The situation of the Bonds spouses illustrates why couples with high income or substantial assets should begin the process of discussing and drafting of the prenuptial agreement with their attorneys months in advance of the wedding. 

Call San Diego Law Firm for Skilled Help with Prenuptial Agreements

The team of experienced family law attorneys at San Diego Law Firm can assist you with all aspects of prenuptial agreements.  We can draft them to fit your specific situation, review agreements drafted by another attorney,  advise you on whether or not an agreement is likely to be enforceable, advise you on whether to sign an agreement or negotiate on your behalf, and assist you in either challenging or defending against a challenge to a prenuptial agreement.  Please contact us at 619-794-0243 for more information or an appointment.

The idea that a husband should financially support his ex-wife in the form of monthly alimony payments after a divorce has remained a tenet in divorce law throughout the United States and in California. According to the U.S. Census Bureau, in 2009, men accounted for 97% of alimony.  Alternatively, the idea that a dissolution order wherein both parties waive any right to past, present, or future alimony is FINAL has been perceived as an absolute in divorce law. Yet, both of these concepts are being challenged as the recession has given rise to greater numbers of unemployment and has depleted retirement and saving accounts.  According to statistics gathered by the American Academy of Matrimonial Lawyers, there has been a “spike” in clients seeking modification of their alimony obligations and attempts to rewrite divorce agreements.

The Taylor Case

The Wall Street Journal’s article “The New Art of Alimony” profiles a number of cases which cause one to question the conclusiveness of court ordered alimony.  For example, consider the case of the Taylors. Paul and Theresa Taylor had been married for 17 years. When they divorced Paul got the family’s vacation cottage, and Theresa got the family home.  Both parties agreed to waive any right to past, present, future alimony payments. Yet, more than 20 years after their divorce Mr. Taylor who had since remarried was ordered to pay $400.00 per week to support his ex-wife for the next 5 years. The circumstances which led Ms. Taylor to sue her ex-husband for support included being diagnosed with cancer, losing her job of 38 years, filing for bankruptcy, and losing her home.  The state probate court said that these “changed circumstances” created a “dire and immediate” need. These “changed circumstances” coupled with Mr. Taylor’s ability to pay resulted in the court ordering Mr. Taylor to pay Ms. Taylor $400 per week for 5 years and $250 per week thereafter for the rest of her life.

The Pierce Case

The Pierce case presents a different scenario.  The Pieces divorced after 32 years of marriage.  In the divorce they equally divided $1.4 million dollars in assets, and the court ordered Mr. Pierce to pay Ms. Pierce annual alimony of $110,000 until she remarried or until the death of either.  After Mr. Pierce retired his income dropped to about half of what he was making at the time of his divorce. The state probate court reduced the annual obligation to $42,000 but refused to terminate it because according to the court, Mr. Pierce had enough earning power to garner more income. The attorneys for Ms. Pierce argued that because Ms. Pierces’ retirement funds had been dwindled down to 50% of what they were once worth and since she no longer worked, that there was a financial disparity between the couple.  Further, it would be wrong to reverse a divorce agreement that had already been made.

Can What Happened in the Taylor or Pierce Case Happen to You in California?

First, one thing you should know is that a spousal support award is not mandatory in California.  Under the California Family Code, the Court has discretion to either deny spousal support or limit it in duration and amount.  Ultimately, the court must base its spousal support award on such factors as the standard of living established during the marriage and the parties’ respective abilities and needs.  The courts in California have to base a decision to award alimony on the facts, the evidence, and the circumstances of each case. There can be no speculation to account for future medical, retirement, or employment contingencies. The factors the court considers are numerous and include everything from the supporting spouse’s ability to pay to whether or not there has ever been a history of domestic violence in the marriage.

Modification of Spousal Support Orders

If you are under a court order to pay, you can petition the court to modify the agreement if the supported party is no longer in need, or there has been a change in the alimony payer’s ability to pay.  Thus, like the Taylor case, proceedings can be brought on the basis of “changed circumstances”.

Termination of Spousal Support Orders

If you are looking to terminate a spousal support order, your ability to do so may depend on the type of order.  Under the California Family Code an order can last for a fixed term or be contingent upon the happening of an event, such as, the death of either party or the supported party’s remarriage.

Spousal support is no doubt a tricky aspect of divorce law in California. There are many factors the court must consider in exercising its discretion.  And, the order must be justified by hard core facts and evidence.   So whether you are in a position where you need to know what, if any, spousal support obligations you may incur in your California divorce, you want to modify a California alimony award, or you want to terminate a California alimony award, you are going to need the advice of a seasoned family law attorney.   The family law attorneys at San Diego Law Firm are able to answer all of your questions about these particular issues. Call the attorneys at San Diego Law Firm for advice at 619-794-0243.

Many married couples in California have spent a lot of money on one spouse’s education.  Despite the steep price of an education, many couples feel it’s worth the cost because of the potential financial benefits they’ll both share down the road.  But what if there’s a divorce?

Assuming there’s no prenuptial agreement on the subject, California law generally gives a right to reimbursement for contributions to another spouse’s training or education (including payments on educational loans).  But only if the education does enough to increase the earning capacity of the educated spouse.  Proving this during a divorce can get complicated.

What Can Be Reimbursed?

For the most part, reimbursements would be for joint money spent on tuition and fees, books, and living expenses.  But if a reimbursement is owed, it might get reduced.  This usually happens when both spouses got an education using joint community money, or because both have already benefited from the degree while married (this can depend on how long you’ve been married after paying for college or training).

What About Future Income?

A reimbursement deals with the money spent during the marriage, but what about the fact that the spouse who earned the degree or license will probably be able to keep earning more money after the divorce.  Should the other spouse get a cut of the future income?  Here in California, a spouse won’t be given a percentage of educated spouse’s future earning ability.  At most, you’re limited to getting a reimbursement.  (Although spousal support could be affected).

With so many issues that come up in a divorce, including education costs, getting a good family law attorney is essential.  Get help from an experienced family law attorney by calling San Diego Law Firm at (619) 794-0243.

For divorcing spouses who have kids, a Divorcesupport.com blog provides advice on how to best meet your children’s emotional needs during a divorce.  It cautions that you shouldn’t be the only one providing your kids with emotional support.  When family and friends aren’t enough, then look for counseling options.  You’re also encouraged to get emotional support for yourself, such as through a local support group, family, and friends.

Even if you don’t have children, there are many essential temporary court orders you can ask for while a divorce is pending.  The long divorce process can give spouses a window of opportunity to do a lot of damage to your finances, assets, and family concerns.  You can either try to deal with the results of a spouse’s harmful actions after the fact, or you can get temporary court orders to help prevent the harm from happening in the first place.  The automatic restraining orders explained in Part One usually can’t meet all of your worries.  Fortunately, we can request additional protections for you in court. 

As you know, a divorce brings about many changes to your day-to-day life.  We’ll seek temporary orders on your behalf to deal with these changes. 

Family-related orders

     ●  If you have minor children with your spouse, you don’t have to wait for the divorce to become final to obtain temporary child custody, visitation, and support orders. 

     ●  A temporary order can also give one spouse exclusive use of property (like the family home or car) while the divorce is pending. 

Financial security-related orders

     ●  You may need to request attorney’s fees during the divorce.

     ●  It may be appropriate to ask for temporary spousal support (or “alimony”) for the lower income spouse.

Businesses and investment-related orders

     ●  When spouses own or partially own a business, a spouse’s wrongful actions can damage your business interests.  A restraining order can help prevent dishonest deals between your spouse and another business partner. 

     ●  Also prevent business assets from being wasted and misused. 

Threats to your personal safety, or your children’s safety

     ●  If there is domestic violence or you are threatened with domestic violence, you can ask for protection through a restraining order that prohibits your spouse from contacting you or coming within a certain distance from you. 

As you can see, your request for a temporary order can cover almost any issue, and violation of these orders can result in serious consequences.  These orders are not automatically granted, but you can get our help early on so we can prepare your requests during the divorce.  This can go a long way in reducing the risk of harm to you, your family, and your financial interests.  If you disagree with an inappropriate request, then contact us right away to oppose it. 

Many problems can be avoided with temporary court orders, minimizing stress and expense for you down the road.  Speak with our divorce attorneys about how we can help you meet your goals and get through the divorce process.  Call San Diego Law Firm at (619) 794-0243.

Even though California did away with common law marriage, couples who live together may still have rights to financial support and property division as if they had been legally married, but only under strict circumstances.  In these cases, if one or both persons in the relationship had a reasonable and good faith belief that they had entered into a valid marriage, but it turned out the marriage was void, then that person can be considered a “putative spouse.”  To be given the status of a putative spouse, it’s legally not enough to say that you simply believed you had a common law marriage.  Instead, the couple must have actually gone through the motions to get married, yet had something go wrong when trying to comply with the legal requirements for marriage (often this happens when one person was in a prior marriage and mistakenly thought that he or she was legally divorced).  Not only that, but this good faith belief that you’re married must continue throughout the marriage, if you find out that the marriage is invalid, then you lose putative status.  Recently, it was also established that these same principles can be applied to couples who were in an unregistered domestic partnership.  A person with putative spouse status will be entitled to share in property acquired during the invalid marriage or domestic partnership under our community property laws, and to any spousal support that’s required once the relationship is terminated.  A putative spouse may also have marital-type rights in other situations as well, such as workers compensation or retirement benefits.

A second category involves the rights of unwed couples who aren’t putative spouses (because they never tried to get married), but had an agreement to treat assets like community property or promised lifetime support, despite the fact that both partners knew they were not married.  Here, no one is entitled to support or property rights under California family law, but there can be rights created under the oral or written contract.  One person may have promised to provide support for the other that’s similar to spousal support (alimony), and this has come to be known as “palimony.”  These palimony actions started in the early 1970s after actor Lee Marvin (think The Dirty Dozen and Cat Ballou) broke up with his girlfriend Michelle Triola who he had lived with for several years.  After the break up, Triola took Marvin to court claiming that he had orally promised to financially support her for the rest of her life in exchange for her giving up her own acting career to take care of him.  Marvin denied he ever made that promise, and in the end, Triola lost her case, but in the process, the California Supreme Court had established the rights of unmarried cohabitants.  The problem for Triola, and many since, is that it can be very hard to prove the terms of an oral agreement.  For this reason, it’s important to put promises into writing and couples who live together without getting married or entering into a domestic partnership should be forewarned.  Many of these troublesome issues can be resolved with a written “cohabitation agreement” to help protect your interests if the relationship dissolves.  As the two of you contribute toward your financial future together, a cohabitation agreement can set out fair arrangements regarding property ownership and division, and any support, similar to how a prenuptial agreement works.  If you lived together before getting married, then both a civil palimony lawsuit and family court divorce (dissolution) action may be necessary, but note that palimony suits must be brought within a certain time period after the agreement is broken to prevent your claim from being barred.  Our skilled family law attorneys can prepare an effective and comprehensive cohabitation agreement, or pursue your rights and protect your assets in a putative spouse partition action or a palimony lawsuit.  To reach San Diego Law Firm, call (619) 794-0243.