Divorce can be a stressful and painful experience for everyone involved, but it can be especially hard on children. As a parent, you will want to do everything you can to protect your kids during this difficult time. While you probably won’t be able to completely insulate your children from your divorce, there are measures you can take to support them during the process. Here are 5 ways you can help your kids during divorce: Continue reading
During divorce, parents often establish a schedule that sets out how they will spend time with their kids. Generally, the expectation is that custodial parents will be with their children during their designated care periods. However, there can be situations when a parent may need to leave their children with someone else. Depending on the circumstances, you may or may not be comfortable with a third party watching your kids when your ex is away. If that is the case, you may want to consider adding the “Right of First Refusal” to your California parenting agreement. If you have not heard of this term, you may be wondering: Do I need the “right of first refusal” in my custody order? Continue reading
During divorce, everything you thought you knew about your relationship with your ex will change. Before, you were a couple planning for a future together. Now, you are legal adversaries preparing to live separate lives. It may be that you both started out agreeing to settle your case amicably. However, if your ex hires a divorce lawyer and you don’t have one, the process can suddenly seem less cooperative. In this situation, you may think: My ex has a divorce attorney. Do I need one for my California divorce? Continue reading
A domestic violence restraining order is a civil order entered by the court directing an abuser to stop harassing or abusing the victim. The type of abuse that may be the basis for the entry of a restraining order includes the following:
- causing or attempting to cause the victim physical injury;
- making the victim fear he or she or another person is in immediate danger of being harmed;
- threatening or harassing the victim, in person or through other means;
- stalking the victim;
- destroying the victim’s personal property; or
- disturbing the peace of the victim.
For the court to enter a domestic violence restraining order, the abuser must be related to the victim in one of the following ways:
- a spouse or former spouse;
- a person the victim is dating or has dated;
- a lover;
- the other parent of your child;
- anyone closely related to the victim by blood, marriage, or adoption; or
- a person who regularly lives in the victim’s home.
A domestic violence restraining order may provide protection for the victim’s children as well as the victim. Such a restraining order can also include other orders besides a command to stop the abuse. For example, a domestic violence restraining order may include an order regarding spousal support, custody, child support, or parenting time; granting the victim possession of a pet; removing the abuser from a home shared with the victim; or prohibiting the abuser from possessing a firearm.
A victim seeking a domestic violence restraining order must file an application with the court. The application includes a Domestic Violence Date of Birth Verification (Form FL/E-LP-640), a Notice of Court Hearing (Form DV 109), a Request for Domestic Violence Restraining Order (Form DV-100 and FL/E-LP-613), a Description of Abuse (Form DV-101), and a Temporary Restraining Order (DV-110). Additional forms must be filed if the victim is also seeking an order regarding spousal support, child support, child custody, or visitation.
If the victim is in immediate danger, the court may issue a temporary restraining order after processing the application but before holding a hearing. Regardless, the court will set a hearing, and the victim must have the abuser served with the Notice of Hearing. Service of the Notice of Hearing is usually done through the sheriff’s department of the county where the abuser lives.
The victim may bring a support person to the restraining order hearing, even if the victim also has an attorney. If evidence at the hearing shows the existence of past or present abuse of the victim by the abuser, then the court will issue a domestic violence restraining order. A domestic violence restraining order can last up to five years but lasts only three years if no termination date is stated. During the last three months of a restraining order, the victim can ask the court to extend the restraining order for another five years or permanently.
If you or a loved one has been or is a victim of abuse, consult an experienced attorney experienced in domestic violence law to help you get a domestic violence restraining order. The Law Offices of Judy L. Burger can help you get the protection you need. Call today to see how we can help you: (415) 293-8314.
Many parents are disheartened by the final child support order entered in their divorce, legal separation, or parentage case. Payers often feel that they have been ordered to pay too much, beyond their means; payees, on the other hand, frequently believe they have been shortchanged.
Most of the time, it is difficult to change the amount of support, either upward or downward. In fact, the simplest circumstance is the rare occasion on which a judge ordered less than the amount found by the guideline. In such a case, the amount can be changed without any legal showing at all.
The second simplest way to change the support amount is when the parents agree to change the amount and a judge is willing to sign an order approving the requested change. Of course, the parties rarely agree on an appropriate amount of support.
Aside from these two methods, it can be difficult to change the amount of child support. However, three methods are available: reconsideration, appeal, and modification.
Both a motion for reconsideration and an appeal have strict legal time frames within which they may be requested. Experienced California family lawyers are very familiar with the applicable time frames and mandatory procedures; if your final order is brand new or relatively so, hiring an experienced family lawyer is your best bet for changing the amount through reconsideration or appeal.
The third way the child support amount may be changed is through a motion for modification. For a modification to be granted, it must be based on a significant change in circumstances since the time the final order was entered. Again, a skilled family lawyer understands the legal standard that applies to modification requests and the type of evidence that may be used to support such a request.
Here are some examples of circumstances that may warrant a modification of a California final child support order:
- Significant promotions or demotions;
- Changes in jobs or loss of a job;
- Lengthy prison or jail time;
- Major changes in the parents’ time-share arrangement;
- Major illness or disease of a parent or a child; and
- Military activation or deployment.
The most important thing to remember is that unless and until a new support order is entered, the amount stays the same. In addition, it’s important that you ask for a modification right away. Most of the time, the amount will not be changed retroactively to a date before the modification request was filed.If circumstances have changed since your child support order was entered and you want to pursue a change, consult a qualified family lawyer to discuss your best options. The attorneys at the Law Offices of Judy L. Burger are experienced in difficult divorce proceedings, including disagreements about child support. Call today to see how we can help you: (415) 293-8314.
In a divorce case, the end of your legal relationship includes the division of assets and debts and determination of issues on custody and support. Sometimes, only a spouse may have access to information on property you believe to be subject to division in the divorce, or you and your spouse may disagree on an issue regarding custody or support. To prepare an argument in support of your position, you can request information on relevant issues from your spouse or from a third party. This process of requesting and exchanging such evidence is called “discovery.”
“Discovery” is the legal term that describes a pre-trial procedure for collecting evidence and information in order to prepare a case for negotiation or trial. By obtaining and exchanging information in discovery, you can both build your own case and evaluate your spouse’s case.
There are two main types of discovery. Informal discovery is the collection of information by methods such as interviewing witnesses or asking your spouse for information or documentation without a court order. It often is less expensive and takes less time to complete than formal discovery.
Formal discovery is a legal process governed by the Code of Civil Procedure in which one party requests information from the other party, or even from a third party, and the responses are given under oath. Following are the most common types of formal discovery in a divorce:
- request for production of documents;
- request for admissions; and
Interrogatories are questions to be answered in writing under oath. The questions in interrogatories have a bearing on issues in your divorce. For example, you may send interrogatories asking your spouse to identify all items of property claimed to be community and separate property, to identify property owned by your spouse by held by another, or to state whether you and your spouse have agreements on any issues in the divorce. Interrogatories can be used to identify areas of agreement in a case as well as serve as a starting point for collecting information on the marital estate. Judicial Council Form FL-145 is a form of interrogatories designed and commonly used in family law cases.
Requests for production of documents are just that: a request to produce documents under oath. As with interrogatories, the documents requested to be produced should have a bearing on issues in the divorce, such as the identification or value of property owned by either spouse or financial account records. In some cases, such as where one spouse requests spousal support or maintenance, even a spouse’s medical records may be relevant and requested by the other spouse.
Requests for admissions are statements sent to the other spouse in order to ask him or her to admit or deny the truth of those statements. This discovery tool can be useful in establishing areas of agreement in the divorce. For example, where divorcing spouses agree on the identification and division of property but disagree on child custody and support, one spouse may send the other spouse a request for admissions on the property issues. Once those issues are admitted under oath in a written response by the other spouse, they do not need to litigate that issue at trial.
Finally, a deposition is an oral statement given under oath. The party who scheduled the deposition asks questions relevant to the issues in the divorce. The witness, called a deponent, responds, and the responses are recorded by a court reporter. The court reporter then creates a transcript of the question-and-answer session. A deposition is similar to trial testimony, in which one attorney examines a witness and the other attorney then cross-examines the witness. Depositions can be used to memorialize testimony as well as to gauge the demeanor of the witness while answering the questions.You may use court forms and other resources to conduct discovery yourself, but the discovery and family law rules are complicated. If you are contemplating separation or divorce and you have children, you should consult with a knowledgeable California divorce attorney. The attorneys at the Law Offices of Judy L. Burger will make sure you successfully navigate the discovery rules. Make the call today to learn how our attorneys can help: (415) 293-8314.
Sometimes only one person in a marriage wants a divorce. The other spouse may threaten to put up roadblocks such as not answering the petition for divorce. Can your spouse really prevent the divorce by failing to respond? Fear not. Your spouse’s lack of participation in the proceedings will not prevent you from getting a divorce.
In California, you begin the process to end your marriage by filing in superior court a petition for divorce (form FL-100) and a summons (form FL-110), along with other documents. After you have filed these documents, you must have a copy of each served on your spouse. This is called service of process, and it is done by having someone personally deliver the documents to a spouse living in California or by mailing the documents certified mail to a spouse residing out-of-state. The person or service that delivered, or served, the documents on your spouse files proof of service in the court.
The summons informs your spouse that he or she has 30 days to respond to the petition for divorce. The 30-day time period begins to run on the day your spouse is served with the petition and summons. Your spouse can respond by agreeing to the requests in your petition or by opposing your requests. But how do you move forward with the divorce if your spouse does not respond at all?
Although your spouse has 30 days to respond to the petition for divorce, you are not automatically divorced once that time period has passed without a response. The earliest your divorce could be final is six months from the date the petition for divorce was served, but you may still move your case forward during the six-month waiting period. After the 30-day response period has run, and if you and your spouse do not have a written agreement, you may ask the court to enter a default judgment called a “true default.”
To obtain a true default judgment, you need to file the original and two copies of the following forms:
- a Request to Enter Default (Form FL-165);
- a Declaration for Default or Uncontested Dissolution or Legal Separation (Form FL-170);
- a Judgment (Form FL-180); and
- a Notice of Entry of Judgment (Form FL-190).
Additional forms may be required as well, such as the additional forms required if you are asking for custody, child support, spousal support, or partner support. Each county may require its own forms also.
Once you have filed these forms, the clerk of court will mail a copy to you and to your spouse. If your spouse does not oppose default or respond to the court in any way, the court will enter a default judgment. In the case of a true default, the court will grant the requests in your petition, but the court does not grant the divorce until at least six months have passed since you served your petition for divorce.
At a later date, your spouse may try to oppose the entry of default judgment by arguing surprise, mistake, or excusable neglect. In such a case, you may be required to appear in court for a hearing. After hearing arguments on both sides, the court will either grant default judgment or deny the same, but at least your case is proceeding.
Obtaining a “true default” defeats an opposing spouse’s attempt to stop or slow down the divorce, but it also has some downsides. In a case with a true default, you must also file a property declaration, which is a public record, and the court must divide property equally between the parties.If your spouse is attempting to thwart your divorce by not responding to the summons, consult a qualified family law options to discuss your best options. The attorneys at the Law Offices of Judy L. Burger are experienced in difficult divorce proceedings and what it takes to sort out complexities when your spouse fails to respond. Call today to see how we can help you: (415) 293-8314.
Both parents have a duty to support their minor children. If you and your co-parent have started living separately, you may want or need child support in order to provide for your children. You may ask the court for a temporary child support order in a pending divorce, paternity, or domestic violence case with your co-parent.
A child support order requires one parent to pay to the other parent an amount for the support of the children. To obtain a temporary child support order you must have a pending family court case, but you don’t have to wait until all issues are resolved for the court to order temporary child support. The temporary child support order is a child support order in effect until the court enters a final order resolving all current matters in the case. You may ask for a temporary child support order at the beginning of your case, such as when you file the petition for divorce or your request for a domestic violence restraining order, or you may request temporary child support at a later point while the case is pending.
Under California law, a formula is used to calculate the child support guideline. The child support guideline is the minimum amount of child support recommended by law. Parents wishing to deviate from the child support guideline must state a valid reason for doing so.
In California, the “top priority” in setting child support is the “interests of children.” In fact, under California law, a parent’s “first and principal obligation” is to support his or her children. The guiding principles that California courts must use when determining child support include not only income but also parenting time-share and responsibility, the parents’ standards of living, and the children’s financial needs.
The child support guideline is calculated under California Family Code § 4055. California Family Code § 4055 sets out a mathematical formula that considers each parent’s net disposable income and the amount of visitation with the children. Net disposable income is figured by subtracting from gross income items such as federal and state income taxes, mandatory union dues, and health insurance premiums among others. The court then applies an additional factor to the child support guideline depending on the number of children.
In addition to the child support guideline, the court may also order payment of add-ons. California Family Code § 4062 lists two types of add-ons: mandatory and discretionary. Mandatory add-ons include reasonable uninsured medical, dental, and visions expenses of the children and the childcare costs incurred in order for a parent to work or obtain work-related training or education. Discretionary add-ons include items such as expenses for a child’s private school or special needs or travel expenses for visitation with the other parent.
Online calculators are available for calculating temporary child support, but using the calculator requires an understanding of tax data, such as alternative minimum tax adjustments, and California Family Code provisions, such as whether you qualify for the low-income adjustment or factoring in costs for “hardship children.” Calculating temporary child support is complex. To best serve your needs and the interests of the children for whom you are seeking a temporary support order, contact an attorney experienced in family law.
If you are facing a divorce proceeding, especially one that involves temporary child support, you should consult with an experienced California lawyer. The attorneys at the Law Offices of Judy L. Burger are well-versed in difficult divorce proceedings. Call today to see how we can help you: (415) 293-8314.
In California, the process of ending a marriage or a domestic partnership begins when you file a petition for divorce in your local superior court. The petition, Form FL-100, is a three-page document completed by checking boxes and writing in short answers to questions.
Whether you are ending a marriage or a domestic partnership, the petition for divorce requests the same information. To prepare for completing Form FL-100, gather or have ready the following information:
- The name and contact information of you and your partner in the marriage or domestic relationship.
- Your county of residence for the last three months and your state of residence for the last six months.
- The names and ages of any minor children of the relationship, including the paternity of the children.
Your county and state of residence determine which court has jurisdiction to grant your divorce. For marriages, you must file the petition for divorce in the superior court of the county where you have lived for the last three months.
In addition to the information above, the form petition for divorce also asks the following questions:
- whether you are seeking a divorce due to irreconcilable differences or, instead, due to the permanent legal incapacity of your spouse or domestic partner to make decisions;
- whether you are seeking spousal or domestic partner support;
- whether you or your spouse or domestic partner has separate property, community property, or quasi-community property;
- whether you are ending a marriage, a domestic partnership established in California, or a domestic partnership established outside of California;
- whether you want your former name restored; and
- whether you are asking the court to order your spouse or domestic partner to pay your attorney’s fees.
You should consult with and have an attorney complete the petition for divorce. Form FL-100 may look simple enough to fill out, consisting only of boxes to check and short answers to fill in, but how it is completed impacts you divorce. Along with the petition for divorce, you must file a summons, which is Form FL-110. Yet another form is required if there are minor children. You must also pay a filing fee.
Additionally, the form does not tell whether other law may affect your particular circumstances. For example, if you or your spouse or domestic partner is in the military, your divorce may be subject to the provisions of the Servicemembers Civil Relief Act as well. The filing of a petition for divorce may also affect your immigration status. There are some differences in the divorce process depending on other factors such as whether there are children of the relationship or whether the relationship is a marriage or a domestic partnership.
If you have questions about how to complete the petition for divorce, about divorce in general, or about how your circumstances may affect the divorce process, contact an experienced California divorce attorney. The attorneys at the Law Offices of Judy L. Burger will provide authoritative legal support tailored to your specific situation. Make the call today to learn how our attorneys can help: (415) 293-8314.
One of the golden rules in California divorces that involve children is called “the best interest of the child.” It is therefore no surprise that child support may be awarded during the pendency of a divorce proceeding.
Perhaps the toughest period of time for couples who are divorcing is between separation and the entry of a final divorce decree. Typically, one spouse informs the other of an intent to end the marriage, and then thing start to fall apart. There are many details to address, such as living arrangements and finances. And when children are involved, these issues can be even more difficult.
California Family Code § 3600 authorizes a presiding court to order “either or both parents to pay any amount necessary for the support of the child . . ..” Such an order may be made during the pendency of a divorce or legal separation proceeding. The order continues in force until terminated by the court or until another provision of state law renders the child ineligible for support (e.g. emancipation). In addition, the award would not be enforceable if the couple began living together again.
The decision of whether temporary child support should be ordered depends on the same issues as when a permanent child support award is made. Custody and the incomes of the parties are the primary areas of focus while keeping the best interest of the child in mind.
Many times, the couple mutually agrees to where the child will live during separation and how their finances will be handled. In those cases, no intervention by a court is needed, or the mutually agreed to terms may be submitted for approval by the court. Family Code § 3604 provides, however, that any order for support during the pendency of proceedings does not “prejudice the rights of the parties or the child with respect to any subsequent order which may be made.”
If you are contemplating separation or divorce and you have children, you should consult with a knowledgeable California divorce attorney. The attorneys at the Law Offices of Judy L. Burger will help you make sure your children receive their necessary support. Make the call today to learn how our attorneys can help: (415) 293-8314.