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Questions & Answers

Court Procedures

What should I do if I cannot serve the divorce papers on my husband because he is hiding?

Question Detail: What should I do if I cannot serve the divorce papers on my husband because he is hiding?

ANSWER: A spouse cannot hide from a process server and avoid the divorce. We can get any “hiding person” served with or without their permission. Although this process takes a little longer, and costs extra money in the beginning of the case, the overall case will be shortened will much more than make up for the initial extra expense because there will ne no fighting, and you will get your way ordered in the Judgment.

Can I file for divorce in my county if my husband lives in a different county?

Question Detail: Can I file for divorce in my county if my husband lives in a different county?

ANSWER: Yes, as long as one person has lived in the State of California for the 6 months, and 3-months in the county previous to filing the dissolution of marriage the case can be filed. If you cannot meet the residency requirements, a case can still be filed. This procedure can be obtained using lawful legal tactics. We provide this service.

How can I obtain legal child custody orders?

Question Detail: My daughter is 19 months old. When she was 2 weeks old her father kicked us out of the home thereby ending our 1 year relationship. We were never married, yet she carries her father’s last name. I would like to know, since I let him come and get her on the weekends for visitation, how can I have legal documentation proving that I have sole custody since we never went to court? Does he have the exact same legal rights to her as I do? Could he if he wanted to, decide to keep her and not give her back to me legally?

ANSWER: When there are no court orders, there are no rules. One advantage here is that when parents are not married, the father must have signed a Declaration of Paternity, or a court must make a LEGAL finding that he is the father to have LEGAL rights to custody or visitation. However, the father has complete power to visit with the child, and has NO LEGAL OBLIGATION to return the child to the mother. Often court cases start because there is a disagreement, the child is not returned, and it could easily be a one-month period before the other parent sees the child again. Be safe, obtain enforceable court Orders, or life could become unbearable overnight! When you are dealing with children, competent legal representation should always be sought, as the subject matter of the litigation is so very important. One mistake here could cause the biggest adverse consequence of your life!

Is possible to get an annulment if I found out that my husband has a drug problem?

Question Detail: We have been married less than 30 days. I have since learned of his heavy drug problem. Is it possible to get this annulled?

ANSWER: The valid legal reasons to obtain are statutory and can only be the following:

F.C. § 2210. Annulment, causes for

A marriage is voidable and may be adjudged a nullity if any of the following conditions existed at the time of the marriage:

(a) The party who commences the proceeding or on whose behalf the proceeding is commenced was without the capability of consenting to the marriage as provided in Section 301 or 302, unless, after attaining the age of consent, the party for any time freely cohabited with the other as husband and wife.

(b) The husband or wife of either party was living and the marriage with that husband or wife was then in force and that husband or wife (1) was absent and not known to the party commencing the proceeding to be living for a period of five successive years immediately preceding the subsequent marriage for which the judgment of nullity is sought or (2) was generally reputed or believed by the party commencing the proceeding to be dead at the time the subsequent marriage was contracted.

(c) Either party was of unsound mind, unless the party of unsound mind, after coming to reason, freely cohabited with the other as husband and wife.

(d) The consent of either party was obtained by fraud, unless the party whose consent was obtained by fraud afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife.

(e) The consent of either party was obtained by force, unless the party whose consent was obtained by force afterwards freely cohabited with the other as husband or wife.

(f) Either party was, at the time of marriage, physically incapable of entering into the marriage state, and that incapacity continues, and appears to be incurable.

Can an agreement be changed, even if both parties agree to it?

Question Detail: I am getting divorced, we agreed on joint custody and no child support. We have filled out our own paperwork, but in them I agreed to pay $500/month towards the mortgage based on my wife being approved for a loan modification, we wrote that agreement under spouse l support, once the divorce is final I’m worried she may go after child support also and I’ve been told that once spouse l support is signed off on I can't change that, is that true?

ANSWER: Although you can agree to waive spousal support, IF AND ONLY IF the statutory requirements are met. You may NEVER make any agreement regarding child support that the court cannot later change. An agreement to waive child support is VOID against public policy. It is a common trap by a sly opponent to get a spousal support waiver, based on "no child support" (now), and then turn right around as soon as the Judge's ink signature is wet on the spousal support waiver, and make an application for child support, WHICH WILL BE GRANTED.

How can I become unmarried when I cannot locate my spouse?

ANSWER: When the other spouse cannot be located, you must proceed by serving the Summons and Petition by "Publication." This is a process by which the attorney can process the case without the participation of the missing spouse and bring a case to trial to complete the divorce by default. There is extra time and expense involved, but this is the only way to proceed to become unmarried, and legally single, again.

Can I sue my husband who's planning to leave me?

Question Detail: My husband and I have been married for 20 years and he is currently sneaking on the side, texting, e-mailing an ex and they are planning to move in together, etc. What law protects me? Can I sue him for this? What is that called?

ANSWER: The answer is divorce. He may have to support you while he is living with new mate. You will also be entitled to one-half of the entire community, what ever that consists of. He may also have the privilege of paying some of your attorney fees. All of this to say that “new mate” may be the most expensive decision he ever made. We provide all of the services you will need.

Can you get remarried if you don't have a divorce yet?

Question Detail: My boyfriend that I have been with for 9 years has been trying to locate his wife that I remind you that he has not seen or heard from her in 20 years. So me and him have been trying to locate her so I got on the computer and I was looking up people and her name came up but her last name was changed to the guy she ran off with and so now her last name is different. I guess what I am trying to say is how do you get married again if you're not divorced from your first one yet? He has never received any papers what so ever so now we are trying to figure out if he is married or not so me and him can get on with our lives.

ANSWER: You may NOT become legally married to a person who was previously married, and has not terminated the marriage. In a case like yours when a spouse cannot find the other spouse, a dissolution of marriage may still be obtained through proper legal procedures.

Can I file for divorce on the grounds of having an alcoholic spouse?

Question Detail: Over the years I feel that my spouse has developed a drinking problem. I tried to get him help, but he denies everything. He is constantly getting drunk around our kids and getting angry over small things. He hasn't been abusive, but he does say things around the children that are inappropriate. What can I do in this case? I need to get myself and my children out of this situation.

ANSWER: The grounds for a divorce in California are:

1. Irreconcilable Differences.
2. Incurable Insanity.
3. Incestuous Marriage.
4. Bigamous Marriage.
5. Underage at time of marriage.
6. Prior existing marriage.
7. Unsound Mind.
8. Fraud.
9. Force.
10. Physical Incapacity.


Bar far the most used basis is Irreconcilable Differences. Any excuse will suffice, and no excuse is required to be stated other than the words "Irreconcilable Differences." Therefore anyone may obtain a divorce in California whether the other spouse wants it or not. No consent is required, ever.

I would like to get a mediator for my divorce, but I am not sure if this is the best for my situation. What are the benefits of having a mediated divorce versus a contested divorce? Does it make the process any easier if I hired a mediator?

ANSWER: Mediation can save thousands of dollars in attorney fees, and remove the emotional drain of a contested trial. Both parties MUST have a goal to REASONABLY resolve the case, and leave emotions out of the process. If the parties will remove the emotions, and come to the settlement proceedings with a business attitude, in compliance with the California Family Code, and truly consider the best interest of the children, the resulting benefits cannot be matched. Another benefit is that nothing said in a mediation can later be used in court, so the parties are free to explain their case in an open atmosphere which can help reduce tensions IF, IF, IF the explanation is factual, and not spiteful. At this office we have resolved many cases through mediation.

Can I get a divorce in the US if I was married overseas?

QUESTION DETAIL: I came here from India as a dependent to my spouse who is on student visa. He obviously has a heavy loan to repay. My first question is, if we got married in India, can we still get a divorce here? If I seek divorce will I get any alimony and child support (we have a 6 yr old daughter). If I decide to go back to India with my daughter, can we continue to get the child support and alimony? What kind of remuneration can I expect from my husband, given that he still has loads of student loan to repay?

ANSWER: As long as you were legally married anywhere, you may obtain a lawful divorce in the State of California. All issues in the case including custody, visitation, child support, spousal support, community property, separate property, and any other legal issue will be resolved according to the California Family Code, and relevant other California Codes.

What are the steps I need to take after my spouse has been served with divorce papers?

ANSWER: California requires both of you to exchange a Declaration of Disclosure. Then you need to determine what is community property and what is separate property. Then support must be analyzed to determine rights and obligations. If there are any questions about a spouse hiding assets, then comprehensive discovery should take place with document productions, interrogatories, depositions and subpoenas. Once you have determined what there is, then a division plan be developed. If no agreement can be reached, then an application for a trial date will have to be made, and you will then each place your admissible evidence before the court to make a ruling.


Restraining Orders

My spouse has become impossible to live with. Can I get him kicked out of our home?

Answer: There must be some form of domestic violence to remove a spouse from the family residence. This will require a threat to safety, not just obnoxiousness. However, there is mental domestic violence so it depends on exactly what actions the spouse is taking. A good attorney can take facts and plead them before a court to achieve a kick out order in most instances where there is a true distress.


Spousal Support / Alimony

What can I do about my ex not paying court ordered spousal support?

Question Detail: What can I do about my ex not paying court ordered spousal support?

ANSWER: When a payor spouse does not pay the court ordered support payment there are steps that can be taken to collect the money, and/or encourage compliance. An earnings assignment Order can be obtained and the money taken out of the paycheck. If self employed assets may be garnished. Sometimes the government will help collect the money. Lastly a contempt action can be filed and have the delinquent payor face community service or jail time, and economic sanctions. It is important to stop delinquency right away because all the actions take time to process, and the recipient will be out the income until the result can be achieved.

What is a typical formula for calculating alimony?

Question Detail: I've heard 1/3 of my pay until I retire goes to alimony. Others are saying that I still owe money even after retirement. I am looking into getting a divorce. I need to calculate alimony, but I don't know how.

ANSWER: Spousal support (alimony) is calculated two different ways. First, if the Order is a temporary order during a Dissolution of Marriage, the court will generally use a "Guideline" set by Legislature which requires a complicated mathematical formula but simply calculated by a relevant computer program. Second, for a "permanent" (not meaning forever) there are at least fourteen issues for the court to consider, and the "computer formula" is NOT used. This is where good lawyering comes in. Considerations in part are lifestyle during the marriage, the payor's ability to pay, the payee's need, health of the parties, ability to be self supporting, ability/hindrances to work, education, etc. When you are dealing with fragile economic issues, competent legal representation should always be sought, as the subject matter of the litigation is so very important. One mistake here could cause the biggest adverse consequence of your life!

Will my ex spouse be entitled to financial support?

QUESTION DETAIL: If my wife files for divorce (she found someone else, mid life crisis) and we are both nurses and CAN make the same amount, but she chooses to work part time and even though she said she would go back to work full time but never did is she entitled to financial support?

ANSWER: In this type of case the solution is to prove by admissible evidence the fact that more work is available, thus more income, and that the spouse is purposefully avoiding earning to her capacity. Additionally we must be prepared to rebut any excuses she may have. Then, make a case for the court to impute the available income to the evading spouse and use total income that could be earned as the income available for the purpose of awarding (or not awarding) spousal support. There are other criteria to litigate other than just income; however, in the balancing of ability to pay with need for support, a creative lawyer can be of a great benefit to either obtain support on the one hand, or lessen support on the other hand.


Child Support

Would child support be paid for a part time high school student who is 18?

Question Detail: He is only taking two classes that he failed and was unable to graduate last year and is making these classes up this year. He will be in school for maximum of two hours.

ANSWER: A child who is 18-years old must attend school FULL TIME, for the child support obligation to continue. A part time student will not qualify under the law to create a child support obligation.

What legal actions can I make if my ex is not paying for support?

Question Detail: My ex was court ordered to pay for half of medical expenses, sports fees and school supplies for our three children and he is not paying for it.

ANSWER: The remedy is to either establish an Earnings Assignment Order to deduct the money from the paycheck, and/or file a contempt action if the elements are met. A contempt procedure has a consequence of a minimum of community service, and possibly jail depending on the reprehensibility of the facts.

Do I, as a custodial parent, have to pay for extracurricular activities my ex-wife signs our son up for?

Question Detail: I have 40%. Also does a mental heath therapist count for medical expenses?

ANSWER: Family Code Section 4062 and court case rulings gives the court the power and right to make orders for extracurricular activities, private school, and other costs that are consistent with the best interest of the children. However, a parent may not just choose to enroll children in a costly activity and then demand payment from the other parent. Usually, use choose – you pay. A mental health therapist cost must be shared only if necessary and ordered by the court.

What can I do about my ex not paying court ordered child support?

Question Detail: What can I do about my ex not paying court ordered spousal support?

ANSWER: When a payor spouse does not pay the court ordered support payment there are steps that can be taken to collect the money, and/or encourage compliance. An earnings assignment Order can be obtained and the money taken out of the paycheck. If self employed assets may be garnished. Sometimes the government will help collect the money. Lastly a contempt action can be filed and have the delinquent payor face community service or jail time, and economic sanctions. It is important to stop delinquency right away because all the actions take time to process, and the recipient will be out the income until the result can be achieved.

Should I have to pay child support if we have joint custody?

Question Detail: Should I have to pay child support if I have joint custody with equal amounts of time with each parent and are splitting all bills 50/50?

ANSWER: Child support is based on a complex formula mandated by the California Legislature. 50/50 custody is not the only criteria. In fact, believe it or not, it is possible to have 99% custody and still pay child support to the other parent. In a case like this/yours it takes a creative legal presentation to manipulate the facts and evidence to lower, or increase the amount of support paid or received depending on what side of the argument you are on. When you are dealing with children, competent legal representation should always be sought, as the subject matter of the litigation is so very important. One mistake here could cause the biggest adverse consequence of your life!

Can my fiancés ex wife force him to pay more child support after we marry?

Question Detail: I am making plans to marry a man who has been divorced for 6 years but still pay child support. Can his ex-wife take him back to court for more money citing increased household income after we marry?

ANSWER: A new spouses income is not considered in a child support modification. The case is between the incomes of the "parents". Of course if a case can be made that a new spouse is someway paying the father, then that receipt of many could be considered. This is very rare, and would depend on how money was being transferred between the new married couple. The simple fact that the new household has more income is not relevant to a child support modification.

How would I get the child support adjusted if my income can't afford it? If you pay child support and the amount that you pay on three children is so high that your total monthly income couldn't allow you to pay rent or any other bills, how would you go about getting that adjusted?

ANSWER: If your income has changed significantly since the last support order, child support, or spousal support may be changed by an application to the court, and a hearing on the matter. It does not matter if you can pay your bills for child support considerations as the amount is statutory. For spousal support the court will balance the equities between the parties.

My wife and I agreed that the child support I pay will always be the same and cannot be changed. I gave up other items in the divorce to get this child support payment. Now 2-years later she wants more money for child support. Can she get more money for child support:

ANSWER: No matter what the parents agree upon the court ALWAYS has the ability to change child support. The parents CANNOT take the power away from the court to change child support. Once an Order fore child support has been made, and change to the order is available anytime there is a change of circumstances which can be any of a numerous list of items such as time spent with the child, income increase, or decrease, unemployment, living arrangements, needs of the child, or needs of the parent.


Child Custody & Visitation

The grandparents of our children are threatening to go to court to get visitation with our children. We do not want our children visiting with then because they smoke, use drugs, and drink a lot of alcohol.

ANSWER: The grandparents have no RIGHTS to see or visit with your child. When both parents object, unless there has been a significant bonding in the past, the grandparents are stuck with the decision of the parents.

Is our five-year-old son left to make the decision on either to spend time with the dad or not?

ANSWER: A five year old child will not be able to dictate where he/she wants to spend time. The court will determine the “best interests” of the child either through litigation, an attorney representing the child, a meeting with the child, or a custody evaluator. Which of the options to use will be determined based on the specific facts of the case, and the economic facts in the case.

What can I do if mother is denying me visitation with daughter despite court order?

ANSWER: When a person violates a court Order, the remedy is to file a Contempt action against them. The court does not tolerate people violating court Orders. This is a complex proceeding that is hard to achieve even with an attorney in many cases. Sometimes the Orders are worded ambiguously which adds to the problem of obtaining a conviction. This is a quasi-criminal proceeding, therefore every I must be dotted, and every T crossed so-to-speak. The consequences are severe, including jail time depending on the severity of the violation.

Is it ok for the father to send someone else to pick up the children during his visitation weekend.

ANSWER: As usual it depends. The parent should be providing the transportation. On the Official Form Order, it does provide that the “Parent” provide the transportation. On a custom Order it may not have that provision. Some Orders require the parents to provide transportation, some Orders specifically provide for a named third party to pick up. Trouble starts when new mates provide the transportation and conflict arises. Occasionally a parent needs to have someone else provide transportation and there is nothing wrong with that, if it does not violate a specific order and the person is a licensed, insured driver. If problems develop between people, a stop to the trouble may be Judicially necessary.

What can I do to see my child?

Question Detail: I'm the father of one year old son. I'm on the birth certificates but not married to the mother. The mother won't allow me to see my son.

ANSWER: When there is a child without marriage, a father MUST file a law suit for Paternity in order to visit with, or obtain primary custody of the child. Until this action is filed, and the court makes a judicial finding of parentage he mother has 100% complete control of contact time with the child. Since the process will take a minimum of about 45 days, the sooner you start, the sooner you may have contact with your child when the mother is being unreasonable possessive. When you are dealing with children, competent legal representation should always be sought, as the subject matter of the litigation is so very important. One mistake here could cause the biggest adverse consequence of your life!

If both parents have custody, which one has to pay for child support?

Question Detail: If both parents have shared/equal custody of child, are either parent required to pay child support?

ANSWER: Shared equal custodial time is only one of the factors considered when ordering child support. If the incomes of the parents are significantly apart, the high earner will usually pay some degree of child support, even if there is a true 50/50 time share. There are also other factors that can be discussed with a family law attorney. When you are dealing with children, competent legal representation should always be sought, as the subject matter of the litigation is so very important. One mistake here could cause the biggest adverse consequence of your life!

Can I break the court order agreement for child custody, if I sense that my child is in danger with her father?

Question Detail: My ex and I have a court order agreement and that my child goes with her father. She is currently in danger. Can I break the agreement and not let her go without getting in trouble?

ANSWER: Your remedy is to immediately seek a court order to modify the existing orders. If you willingly disobey a court Order you can be held in Contempt of court, even if there was a danger. You may NOT disobey a court Order without severe consequences. It only takes one day to try to modify the existing order. In fact your choice to disobey the court’s order could cause you to lose primary physical custody.

How do I get child custody if I was never married?

Question Detail: My 12 year old son called me today and told me he wants to live with me. The father nor I have custody because we were never married. How can I get him if his dad refuses him to go? They live in a hotel and I rent a 3 bedroom house.

ANSWER: First, you may somehow obtain actual physical custody of your son, and refuse to allow the father to have visitation or custody. Since there is no court order, according to your information, the father has no legal right to any time with YOUR son. I advise you to have competent legal counsel retained so when the fight starts you are fully prepared to exercise your legal rights. You will be in a far better legal position to have previously prepared for a legal battle, if necessary.

What can I do if my ex will not let me see my kids?

Question Detail: My ex will not allow me to see my kids as ordered so I want to get something more in writing.

ANSWER: If there is a court Order, and a parent violates that Order, then the remedy to get their attention is a Contempt Order To Show Cause, along with attorney fees for doing so. This is a very serious issue. A Contempt action is very technical, very legal, and will not be successful without competent legal counsel. However, it is a very severe remedy, and is usually THE way to teach a parent to follow Orders and stop frustrating visitations.

What can I do if my wife takes my kids away from me during our separation?

Question Detail: My wife and I are not legally separated. Can she with hold the kids from me? And if she does, what can I do?

ANSWER: When a spouse keeps the other parent away from the child(ren) without good cause such as domestic violence, the best way to get control of the issue is a strong demand from an Attorney, and if that does not work seek the assistance from the court. If a parent fails to go to court, and lets substantial time pass without seeing the child(ren) that fact can come back and haunt that parent in the legal proceedings. This is not to mention, BOTH parents should be spending time with the child(ren) because it is in their best interest. Do not EVER let a parent get away with using the child(ren) as a pawn in a divorce, legal separation, or life in general – NEVER-EVER!

Am I allowed to move my children to another state with a different time zone?

Question Detail: Can a parent take a child to a place and time (up north to a family cottage) without the other parents consent? You must assume the parents are married, in the same house, no custody issues pending. What can the parent who objects do in this situation? The same question applies if one parent wishes to leave a location (with child) can the other parent stop them? Which parent has more rights (mother/father) over the child?

ANSWER: As long as there are no present court orders, both parents have full custody and control over the management of the children. A parent may not hide the children from the other parent, or that could be construed as concealing the children, and give the other parent a right to petition the court for return of the children, and a restraining order over the parent who took the children. When the parents do not agree, this is where the court steps in, if requested, and makes orders involving the children, and where they will spend their time. Neither parent has more rights than the other parent. If the court finds that a parent is frustrating the other parent’s right to see the children, the court may award custody to the parent less likely to frustrate visitation. This is a very complex area of Family Law, and competent legal counsel should be sought before removing children from their usual home. The wrong act can cost custody of the children for the rest of their minor years.

What can I do if my wife will not give back my children?

Question Detail: My kids have been living with me for 6 months. My wife took them to visit her parents and is not letting me get them. School starts on Monday and they are registered and have been since June. What can I do legally?

ANSWER: Absent court orders over the children, both parents have a 100% right to make decisions about where the children will go to school, and where they will live. The only way to stop this “tug of war”, is to seek the assistance of the court where the children live. If the other parent lives out of the county where you live, you had better get into court immediately, and by that I mean within two days to establish jurisdiction for the case. Your failure to act immediately may place you in another county to make your legal arguments, and that is usually a disadvantage in many ways. Additionally, the longer you wait, the more difficult it will be to get physical custody of the children back.

Can the other parent refuse to let the child go on vacation if they have joint custody?

Question Detail: My husband and I would like to take his daughter on vacation in November for a family birthday celebration. He asked his ex-wife if there were any scheduling conflicts with this and she said she would not allow her to come. They share joint custody. Does she have the right to do that?

ANSWER: The answer depends on the terms of the existing orders. There are two types of custody. 1. Joint Legal Custody means BOTH parents can decide the health, safety, and welfare decisions. 2. Joint Physical Custody does NOT require joint decisions, but the time periods with each parent are, or should be clearly identified. There should be a custodial time Order form the court dictating when the child(ren) are to be with each parent. When the court orders one parent a particular time period, then the other parent may not interfere with what happens during that time period (absent an order to the contrary). In a deadlock like this, an application to the court is necessary to resolve the issue.

Who has the child custody rights to make decisions about schooling?

Question Detail: I moved away from the father of my child when the child was 5 1/2. Child born out of wedlock. He is now 10 and has been enrolled in my residence school district ever since. Does the father have a right to dis-enroll him from the school I am currently enrolling him in. He has the child every other week, which he requested about 2 years ago, but his residence is not in the school district.

ANSWER: Decisions about school are made by the parent(s) with “Legal Custody.” Normally this will be both parents. If a parent has “Sole Legal Custody” then that parent alone may decide where the child attends school. When there is a disagreement that cannot be resolved, then court intervention is required. When dealing with a school issue it is imperative to make an application to the court for an Order at least three months in advance of the semester beginning because of the delays in getting to trial in a court. This will also avoid the expense of extra court hearings to expedite the process. However in life we deal with time constraints as they arise, and take the steps necessary to complete the task regardless of the hurdles involved.

What can I do to prevent the mother from getting child custody?

QUESTION DETAIL: I married my wife 3 years ago, she wasn't a citizen of US then. Soon after our marriage, we have a baby girl. About a year ago, she went back to her country with our daughter and a month later, she said she cannot stand her life in the US anymore, because it was not “comfortable.” (Her parents are fairly wealthy in her country) I flew over to her country asking if there’s anything I can do to save the marriage, she said no. Her parents tried to talk to her, but she insisted on a divorce. Her parents then told me to just bring the baby back with me to US, since she’s too stubborn and won’t listen to anybody (I personally think her parents think she’s still young (24 year old), why have a baby? She can still find somebody nice and marry him if she doesn’t have a baby). It’s been almost a year, no words from her. Not even a single question about her daughter. The divorce never took place. What I’m afraid now is she coming back to US one day and wants custody of the child. Anything I can do to protect my kid?

ANSWER: You need to hire an attorney, get into court immediately to obtain Orders regarding your child. Your failure to heed this advise could very easily cost you the rest of your child's life without her. You have good facts right now, and to procrastinate could be the worst decision you ever made. Once you set the precedence, LEGALLY, the mother will be significantly prejudiced to ever change it. You need specific terms in your court Order, which is what we provide at this office.

My wife and I are arguing and considering a divorce. My wife has threatened to take our children out of the U.S.A. back to her home country. I do not know what to do.

You should be wise here and immediately file a divorce case, and obtain a restraining order from removing the children out of the State of California, or perhaps the county you live in. As long as you fail to take this precaution, there is NOTHING stopping your wife from fleeing the country, and if she does you may never see the children again. This happens ALL THE TIME. When you are dealing with children, competent legal representation should always be sought, as the subject matter of the litigation is so very important. One mistake here could cause the biggest adverse consequence of your life!

What type of papers do I need to stop my wife from leaving the State of California with our children?

ANSWER: The procedure to stop a spouse or parent from removing your children from the State of California is a restraining Order. A restraining Order must establish irreparable harm. If the “papers” are not sufficiently legal to form a base to make an Order the court must deny the request. This is not the type of procedure that should be done by anyone without legal qualifications to do so. When you are dealing with children, competent legal representation should always be sought, as the subject matter of the litigation is so very important. One mistake here could cause the biggest adverse consequence of your life!

My wife wants to take our child to the country of her citizenship. I believe she will not come back with our child. Should I let her go?

ANSWER: You may let her go if you never want to see your child again. Otherwise, without exception you better hire legal counsel to make sure there is an enforceable way to get your child back if she fails to return. This means you must keep legal control over the child in a foreign country through the Consulate or whatever means are necessary, and available. A California Court Order may be of no value whatsoever. When you are dealing with children, competent legal representation should always be sought, as the subject matter of the litigation is so very important. One mistake here could cause the biggest adverse consequence of your life!

I have an agreement regarding the custody and visitation times each of us spends with the children. My ex-husband has been arrested for drugs and lost his drivers license. Do I have to keep the agreement we have.

ANSWER: Any time there is a “change of circumstances” you can ask the court to modify any existing agreement or court order. Until the court changes the Order you need to comply with the current Orders. If the child(ren) are in danger we can get into court within 24-hours to have the existing order changed.

I recently moved to California from another state. Can I obtain child custody in court for our children.

ANSWER: You can file for custody of a child as long as California is the residence of the child. If there are orders from a different state in effect at this time the case may become somewhat complicated unless the orders are obtained to prevent domestic violence. There may be a hindrance if you want to file for a divorce at this time, but that issue can be resolved with adequate legal planning and representation.

What can I do if the other parent will not return our child. In our Judgment this is my time to be with our child.

ANSWER: If you have a court Order that identifiably states the child(ren) are to be in your possession at this time a police officer may enforce the Order and obtain the child for you. If the police will not intervene (they have no obligation to do so), then you will need immediate court assistance. Many of these problems stem from the fact that the Order is vague, and a police officer cannot find the terms to be specific enough for enforcement.

What can I do if my wife wants to take our baby out of state and we are not divorced?

Question Detail: My wife wants to move out of state with our 8 month old little girl. We are not divorced nor have filed for divorce. She intends to move in the next couple weeks out of state whether I like it or not. What can I do? I don’t agree to her leaving and taking the baby.

ANSWER: It is very important for you to file for divorce immediately, and place a restraining order on your wife from removing the children from California, or the County where you live. The failure to act immediately will enable your wife to move, and file a case in another state where you will be litigating your divorce at an extreme disadvantage. Do not delay this task or you may forever regret that decision.

What happens if a child has lived with me for the past year, and now the other parent has threatened to take our child, and move out of the area. I believe the other parent will try to hide the child.

ANSWER: You need to obtain a court Order to enforce the status quo, and if there is a previous Order for custody-visitation, you need to have that modified. Now is the time to make that application while the facts are on your side. If there is NO court Order at this time, you should not waste another day, as then there are no enforceable rights, and both parents have the power to take and keep the child(ten) away form the other parent until a court can intervene. When you are dealing with children, competent legal representation should always be sought, as the subject matter of the litigation is so very important. One mistake here could cause the biggest adverse consequence of your life!


Community Property

In a divorce settlement if one party doesn't request half of the joint funds can they go back later and get the funds?

ANSWER: If there is a missed asset in the case - not disclosed - the asset may be subsequently divided. If the asset(s) is/were disclosed and part of the Judgment, then the asset has been adjudicated, with finality. Only missed, or non-adjudicated community property may subsequently divided.

Are oversees properties considered community property in a divorce?

Question Detail: I have a house under my name in Colombia. Mi father in-law bought for us. But now my father in-law in asking for his money back. I have a right to say is my house? or I have to divided in half?

ANSWER: Property that is owned outside of the State of California is “Quasi Community Property.” The court has the power, and right to make a division of the value of the property. However, the California Court does not have jurisdiction to make an Order to do something with the property such as a Partition action, or change title to the property. The court can Order that an out of state property be sold, and the proceeds divided accordingly to each parties right to the equity.

Can I file a lien against my husband during divorce?

Question Detail: I have a student loan that I cosigned for my husband and then he abandoned me and defaulted on the loan. A year later he contacted me for a divorce. I would like to know what I can do to file a lien on him so that I can cover myself from being a victim in the future. Please if there is anything you can tell me in this matter; it would help me out so much.

ANSWER: You cannot put a lien on your husband. The procedure is to award the debt to him in the divorce case, and obtain assurances in the divorce case for your husband to reimburse you for any payments the creditor may collect from you. Unfortunately, the court cannot make an order relieving you from the debt with the creditor. The court can only make an order for reimbursement to you. This is why it is so very important to have very specific language in your order from the court. When you are dealing with fragile economic issues, competent legal representation should always be sought, as the subject matter of the litigation is so very important. One mistake here could cause the biggest adverse consequence of your life!

Who is entitled to the funds from our second property in a divorce?

Question Detail: Before our marriage, my girlfriend and I purchased a vacation property by refinancing my home. My question is that I am prepared to sell the property to divide the gain, if need be. Her attorney is suggesting that she might be entitled to half the funds used for the purchase, although it was 100% financed by my separate property. Are there any laws that back their argument at all? And what would be the traditional way of removing her from title?

ANSWER: Based strictly on your information the other attorney is wrong. Prior to marriage your wife does not have the benefit of the California Family Code. Therefore the money used for the purchase was your separate property. Unless you signed a statement that you are transmuting your separate property down payment to now be community property, the down payment remains your separate property. This is a matter of laws, cases and superlative legal representation. When you are dealing with fragile economic issues, competent legal representation should always be sought, as the subject matter of the litigation is so very important. One mistake here could cost you your separate property contribution.

Is a wedding ring considered a marital asset?

ANSWER: Most of the time a court will consider a wedding ring a gift, because that is what it is supposed to be. A physical statement indicating the love one has for another. However, if the ring was given in contemplation of marriage, and the marriage never took place, an argument could be made that it was obtained by trick, or it is implied that marriage would take place, and therefore relied upon to give the gift, and would ne unconscionable to allow the recipient to keep it. There could be an exceptional set of facts such as when an investment quality gem is given, but even in that scenario, one would be hard pressed to argue investment vs. gift.

Can I have equal share with my husband's properties when we get divorced?

Question Detail: I've been married for 25 years and my husband just told me he wants a divorce. He has a business that he runs with a business partner and also has my son work as an employee. This business is worth over a million dollars and he makes very good money at this business. He thinks just because my name isn't on the business I shouldn't be able to have any of the money it makes. I think he's been trying to hide other things from me so he don't have to split up any thing when we get divorced. My question is, doesn't everything get split up equally between us? Please tell me my husband can't screw me over.

ANSWER: You are entitled to one-half of all the community property acquired during the marriage, unless there is a VALID pre, or post -nuptial agreement stating otherwise. The fact that only one spouse is “named” on an asset does not change the character of the property from community property to separate property. On a business, if stock, or some other form of ownership is in one spouses name, that interest is community. This type of issue in a case may take an expert witness and good litigation tactics to develop the spouse’s interest, and it is done all the time. Whether it is a business interest, car, real estate, boat, investment account or otherwise, if acquired during the marriage, from income earned, other endeavor, or time spent it is equally divided between the spouses in value. If property or money owned prior to marriage, the rules are different.

Do I have to move out of the family residence if I file for divorce?

ANSWER: Many divorcing couples remain in the family home. The only way you can be removed during a legal separation, or divorce case is if the landlord has the right, and evicts you, or there is a finding of domestic violence, then the family court can order you (or your spouse) removed. The family court will not remove a spouse unless there is domestic violence.


Pensions & Retirement Plans

My spouse earned a pension during our marriage. I do not have a pension. Am I entitled to any of my spouse’s pension?

ANSWER: Each spouse is entitled to one-half of the amount contributed to pensions during the marriage. It does not matter which spouse earned the pension, and it does not matter whether the spouse or the employer made the actual contribution. If it is "acquired" during marriage, it is community property ands subject to a 50/50 division.


Evidence

I have received a subpoena for my deposition to be taken in a case regarding my spouses custody battle. I know information that could hut my spouses case and want to protect her. What should I do?

ANSWER: At all cost you must have legal representation at the deposition. A competent attorney can protect your rights and make proper legal objections to protect both yourself, and your spouse. This is not an area of law for you to take care of yourself if you value your spouse’s relationship and her case. Without legal representation yourself, you can count on being taken advantage of at the deposition which could have been avoided. Legal representation may either be neutral, or could cost your spouse the custody of the child.


Real Estate Questions

HOA Dues Responsibility

My Homeowner Association wants to charge me for the HOA dues, but my wife was awarded the property in the divorce. How can I get out of the payments?

ANSWER: Normally the contracts and CC&R's, and California law of a HOA require personal liability for HOA fees to any owner of record, for the entire time of ownership. To answer a specific question, on a specific case I must read the governing documents. One fact is sure, and that is nobody should believe any representation from any management person of the HOA. We MUST read the agreement, apply the law, and then come to a legal conclusion.