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.

Mutually choosing to have and co-parent a child as an unmarried couple is a choice many people are happily making.  However, even is cases where a couple agrees to co-parent, paternity may play an important role in ensuring that the actual goal of co-parenting is achieved with ease, respect, and success. Failure to establish paternity could result in a father being denied a right to custody or visitation; or, in the alternative, deny a mother the right to receive child support.

The “Voluntary Declaration of Paternity” in California

Under California law when both unmarried parents sign a “Voluntary Declaration of Paternity” they are declaring that they are the legal parents of the child.  Once a “Voluntary Declaration of Paternity” is signed each parent has an equal responsibility to support the child and an equal right to custody of the child.  A declaration of paternity not only ensures for each parent rights to custody, visitation, and support, but it also protects the rights of the child to obtain benefits through the father including social security, military, or survivors benefits.  However,  a “Voluntary Declaration of Paternity” may be difficult or impossible to reverse, so it is important that it not be signed if there is a dispute over paternity.

The Paternity Lawsuit

If the parents of a child born outside of marriage do not sign a “Voluntary Declaration of Paternity,” or if parentage is in dispute, the parent who wants a confirmation of identity can file a court action. Ultimately, the court can order that all parties – parents and child – submit to a DNA blood test to resolve the issue.

The Complexity of Paternity Cases in California

The Case of Tate v. Wilburn

The California case of Tate v. Wilburn is interesting because it illustrates the far reaching effects of failing to follow certain procedures when challenging a claim of paternity.  In the Tate v. Wilburn case, the California Court of Appeal upheld a decision that ordered a homeless man to pay child support from his inheritance. In the Tate case, Hari Wilburn was named as the father of Cathy Tate’s daughter, Alexis, in a court proceeding during which Wilburn was ordered to pay child support.   Seventeen years later, Cathy Tate asked the Court to take money that Hari Wilburn was going to receive through an inheritance to pay the court ordered child support.  The court granted Cathy Tate’s request despite the fact that DNA test excluded Hari Wilburn as being Alexis’ father and had never established a father child relationship.   The court held that under California Family Code 7551, Wilburn waited too long to challenge the court’s finding of paternity. 

Clearly, the facts of the Tate case are unique.  However, the facts of any paternity case where the parents fail to sign a “Voluntary Declaration of Paternity” can be just as unique and complicated.  It is important to know what your rights are even when both parents of a child are in full agreement about co-parenting outside of marriage.  Also, if you are a parent who wants to establish paternity there are complex steps that need to be undertaken. The experienced family law attorneys at San Diego Law Firm can help you understand your rights and ensure that you and your child are protected legally and financially.  Please call us at (619) 794-0243 for a consultation.

Did you know that over 1 million children in the United States are being cared for by a grandparent with no parent present?  Or that over 3.2 million children in the United States live in their grandparents’ home?  Given these statistics it’s clear the role of a Grandparent in a child’s life is often invaluable. 

It can be devastating for all parties involved when a nuclear family has to be restructured due to divorce or legal separation and that disconnect results in the end of a relationship a grandparent has established with a grandchild.  Today, grandparents’ rights are a growing issue in family law throughout the United States and in California. While grandparents’ rights are not constitutional, the law is evolving.

The History of Grandparents’ Rights

Currently, all 50 states have some type of “Grandparent Visitation Statute” through which grandparents can petition a court to grant them the legal right to visitation.  Some states will grant visitation only if the child’s parents are divorcing. Other states have less restrictive laws that allow the courts to consider a request for visitation even without the dissolution of a marriage as long as the visitation would serve the best interests of the child. Under California family law a grandparent can request reasonable visitation rights when the parents divorce, even if both parents object. 

The facts of the U.S. Supreme Court decision which have shaped the current laws afforded to grandparents in the United States are sad and unfortunate.  In that case, Troxel v. Granville, a father, Brad Troxel, left behind two daughters and their mother Tommie Granville at the time of his death.  The two parents were estranged. But Brad’s parents still maintained a strong relationship with their grandchildren and visited their grandchildren regularly after Brad’s death.  After Tommie remarried, she limited the grandparents’ visits.

Ultimately, Brad’s parents went to court.  The trial court agreed that the state law which allowed for grandparent visitation applied to the Troxels’ as long as they were able to prove that visitation was in the best interest of the child.  However, the U.S. Supreme Court disagreed by stating that the applicable state law was “too broad” and that it infringed on a parent’s fundamental right to make decisions for her children. In the end, the U.S. Supreme Court struck down the trial court’s decision that granted the Troxel grandparents’ right to more visitation. 

Seeking Visitation or Custody in California

California law gives grandparents the right to petition for visitation in one of many circumstances.  For example, a grandparent can file for visitation when the grandchild’s parents are divorced, not married, or separated.  It also allows a grandparent to make a claim for visitation when the grandchild is not living with either parent.  However, one of many factors that may have to be proven is that a relationship between the grandparent and child existed prior to the grandparent’s petition seeking visitation rights.

Under California law, one situation that would allow a grandparent to file for custody of a grandchild would be one where both parents have died or parental rights have been terminated due to a number of reasons.  There are many more circumstances in which custodial rights could be granted if it can be shown that it would be in the child’s best interest to take custody away from a parent.

Do Parents in California Have Rights When a Grandparent Petitions for Visitation?

The answer to this question is yes. Unlike the evolving laws regarding grandparents’ rights, the right of parents to make decisions about raising their children is fundamental.  In the wake of the Troxel case, groups such as the Coalition for the Restoration of Parental Rights and the American Civil Liberties Union have championed the rights of parents and the U.S. Supreme Court’s decision.  This is primarily because the decision affirmed the right of a fit parent to have the final say on how to rear their children.  This is so even if such decisions include limiting or excluding grandparent visitation based on the parents’ own belief that it is in the best interest of his or her child to have no visits, or only brief visits, from grandparents.

As mentioned at the beginning, having to restructure the family unit during or after a divorce is not an easy task.  Every family is different, but every parent, every child, every grandparent will no doubt feel loss when relationships change due to dissolution.  Whether you are a parent trying to figure out the best way to maintain the stability of relationships that your kids have with the parents of an already, or a soon-to-be ex-spouse, or a grandparent who feels alienated from a grandchild, it is important to seek good legal advice.  The family law attorneys at San Diego Law Firm have much experience dealing with the many issues that face families upon divorce.  Call our attorneys at 679-794-0243 if you are a parent or grandparent who needs help understanding or protecting your rights.   The procedures for seeking visitation and or protecting your rights are complicated; we can help you.

In the Los Angeles Times, Manya A. Brachear reports on a bitter divorce battle in Illinois between two parents, one Jewish, one Catholic.  After getting married, husband Joseph Reyes had converted to Judaism.  According to wife Rebecca Reyes (who is Jewish) she and her husband had agreed to raise their daughter Jewish.  Meanwhile Joseph Reyes, a second year law student, claims they had agreed to expose their daughter to both Catholicism and Judaism and let their daughter decide which religion to adopt. 

Things became more heated last year when Joseph sent his wife photos of their daughter’s baptism.  Rebecca went to court, and the court issued an order that temporarily barred Joseph from exposing their daughter to any religion other than Judaism during his visitation time with her. 

Afterwards, Joseph was charged with allegedly violating that order by taking his daughter to mass.  He calls the order unconstitutional, believing the court order violated his First Amendment right to freedom of religion.  At least for now, an Illinois judge has refused to make any changes to the temporary order.

It’s not very common for a judge to prohibit a parent from exposing his child to his own religion.  It remains to be seen what will happen after the divorce, since the current order will be in place only until the end of the divorce trial. 

Religion in California child custody and visitation cases

The law is different from one state to the next.  If you and the other parent haven’t been able to make your own arrangements on your children’s religious upbringing, then in California, a judge will make the decision on a case by case basis. 

      ●    Two types of child custody

A parent can be given either “legal custody,” “physical custody,” or both.  A parent with legal custody makes the final decisions on the child’s upbringing.  This includes decision making about your child’s religion, education, and medical care.

Physical custody is about daily child care, because the child lives with the parent who has physical custody.  If the court orders joint custody, then both parents share legal and/or physical custody, depending on the order.  If not, then the non-custodial parent is often given visitation rights. 

      ●    Restrictions on visitation rights

For the most part, a parent’s visitation rights can’t be restricted because of a parent’s religious beliefs.  That means that even if one parent has sole custody, the other parent can usually share his or her religious practices with the child.  The only time a judge can place limits on visitation rights for religious reasons is if there’s evidence that the child is actually harmed by the religious beliefs. 

When it comes to child custody and religion, California law can continue to change.  Religion is a deeply important issue for many divorcing spouses, and it’s not always easy to avoid conflict when deciding how to raise your children if you each have different religions.  If you’re in this situation, we can help you work with the other parent and the court.  Your approach to this sensitive issue matters, so get the guidance you need by contacting San Diego Law Firm’s knowledgeable child custody and divorce attorneys 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.

First, it’s important to understand the basics of how child support is determined.  Under California’s guidelines, child support is calculated using a complex formula that typically considers both parents’ incomes, the number of children, the child’s custody and visitation time with each parent, and other factors.  When the parent paying the child support has more custody time with the child, the child support payments will be lower.  This formula is used only to calculate the child’s daily living expenses, but the court has the ability to order additional support if needed to cover other expenses such as child care, special education, health insurance, and so on.  To determine what the paying parent’s income is, the court will look at more than just wages, since the parent may receive moneys through other sources, including dividends from stocks and bonds, rents, insurance awards, worker’s compensation, unemployment benefits, disability or social security benefits, or income earned through self employment.  Certain deductions from income can also be taken into account.  If the paying parent is unemployed and has no other income, until that parent is able to modify the child support order, payments will still be due. 

Even when modification is requested, the family court may decide that income should be “imputed” to the paying parent despite the fact that the paying parent doesn’t have any actual income.  Imputed income means that the court will attribute income to the paying parent based on that parent’s earning capacity.  In other words, how much can that parent be reasonably expected to earn?  Using that number, the court will calculate how much child support the paying parent will be responsible for.  Imputed income can be applied not only to unemployed parents, but also to underemployed parents who could potentially be earning more money.  The parent seeking to have the court impute income on the other parent will have to give proof that he or she has the ability to work, and also that there’s opportunity to work.  Whether there’s the opportunity to work in a given situation may be questionable in the current economy, but if proven, it will be up to the paying parent to challenge those findings.  In these cases, the court will calculate child support either by declaring that the paying parent could at least earn minimum wage, or by calculating the support amount based on what income that parent could earn based on skills, history, or education.  A family court judge can often impute income if a parent intentionally stops working or refuses a promotion to avoid paying the support, but even if the parent is not deliberately avoiding payment, the court can still impute income.  This is because in promoting the child’s best interests, California family law gives the court discretion in deciding whether to calculate child support using either actual income or earning power.  Similarly, the paying parent may have assets and investments that could be generating more income but are being wasted. 

Missing child support payments can lead to collection actions, 10% interest on back payments, a potential contempt of court action that can carry jail time, and sometimes paying the other parent’s attorney’s fees.  If for the time being you can’t afford to make the same child support payments, then you must ask the court to modify the payments (even if just temporarily) right away.  If you delay, it will be too late to reduce the payments that were owed during any months that were missed before your modification request.  For these reasons, no time should be wasted, and don’t rely on an informal arrangement between you and the other parent.  Even if you are employed, you may find yourself unable to pay the full child support because of other hardships, such as a medical condition or other circumstances justifying a modification.  California law is clear that both parents have a joint obligation to support their children, but at times a child support modification order is needed to reflect changed circumstances.  Also note that you have the right to request income and expense declarations along with income tax returns every year after a divorce or paternity judgment.  If you are the custodial parent who is owed child support payments in arrears, we’ll take immediate action to oppose an unjustified request for modification and collect the support owed.  Remember that if you are owed child support, you should address the problem in court, and never violate other family law orders to gain compliance (such as by preventing visitation).  We’ll gather the evidence that will be important to present or oppose a motion to modify a child support order.  Whenever possible, we’ll help you reach a mutual agreement with the other parent so we can resolve the matter quickly.  For immediate help with child support or any other family court order, meet with our skilled family law attorneys by contacting San Diego Law Firm at (619) 794-0243.

With so much hinging on whether paternity has been established, it’s important to realize that under certain circumstances, California law will automatically presume someone to be the father of a child.  For example, usually, a man is considered the legal father when:

- The child is born during the marriage, or when the child is born within 300 days of the marriage being terminated.

- The man and the child’s mother get married after the child’s birth (or in certain situations if the two attempt to marry).

- Both parents sign a Voluntary Declaration of Paternity, either at the hospital when the baby is born, or afterward.

- The man receives the child into his home, openly holding out the child as his own biological child.

Some of these presumptions can be challenged in court.  If a voluntary declaration of paternity was signed, it may become necessary to seek to have the declaration overturned.  In other situations where paternity is in dispute, either a mother or father can choose to start a legal action and require blood testing, but note that if certain legal presumptions apply, the blood tests can’t be admitted as evidence during the paternity suit.  If someone refuses to submit to the blood test, then the court can resolve paternity against that person.  Paternity law always raises critical questions of child custody and visitation and child support that can be handled as part of the paternity lawsuit.  Our family law attorneys can help ensure that your child will receive the support that he or she is legally entitled to, or help secure your rights as a father.  We’ll take the proper legal actions to establish parentage and seek the best custody and support arrangements possible.  We recognize that the steps you take right now can affect you and your child for years to come, and we’ll work to resolve these issues fairly and properly.  Contact San Diego Law Firm’s family law and paternity lawyers at (619) 794-0243.

As part of Brazil’s online divorce, you’d be able to divide assets.  While this seems like it should be simple enough, many of the most difficult issues in a divorce come up when figuring out who gets what.  For example, under California law, do you know what happens if one spouse started a business before getting married (making it separate property), and continued working in the business during the marriage?  As a general rule, separate property stays with the spouse it belongs to and isn’t divided when divorcing.  So does the other spouse have an interest in the business?  Well, assuming there was never an agreement to change the ownership of the business, the business is generally still that spouse’s separate property…but that’s not the end of the story.  If the business has grown during the marriage, part of that increased value is often shared by both spouses.  This is because under California’s community property system, once you’re married, each spouse’s labor is considered a community effort.  After all, had that spouse not spent the community’s time improving his or her own business, and instead had earned a salary by working for someone else, then that salary would have been community property. 

Once it’s determined that at least part of the business is community property, then you have to figure out what the business’s value is, and how much the community is owed.  Depending on the circumstances, it may be that the business earned well over what’s considered to be a fair return on the investment, and so any earnings beyond a “fair return” could be considered a community asset to be divided upon divorce.  While at other times, a better approach may be to set a reasonable value on the services of the spouse who worked in the business, and this salary would be the community’s interest in the business.  The community may have already received part of this value during the marriage, such as when the money earned is used to pay family expenses.  Those payments would be deducted from the salary, and whatever amount remains would be divided at divorce.

Every divorce is different, and many more factors need to be evaluated to fully determine a business’s value.  We’ll assess these factors to determine how to fairly value and divide a business and other marital property.  Valuation methods vary, and we’ll always work to protect your interests as assets are divided.  It may be true that at first glance, a do-it-yourself divorce is tempting for obvious reasons, e.g. speed and cost.  But even when couples are on good terms with each other, tough questions come up.  You need to know your rights under California law to help ensure you get a fair divorce, and you must fully understand what you’re agreeing to.  Otherwise, you may wind up having to deal with dreaded surprises later on if mistakes were unknowingly made during the divorce.  Instead, consider cost-effective alternatives such as collaborative divorce and mediation.  We’ll discuss your options with you and help you get through the complex property division and divorce process.  Reach San Diego Law Firm’s experienced divorce attorneys at (619) 794-0243.