How Do Domestic Violence Restraining Orders Work in California?

How Do Domestic Violence Restraining Orders Work in California?

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.

When Does a Child Support Obligation Stop?

When Does a Child Support Obligation Stop?

It’s important that both parents have clear expectations about the amount and payment of child support, and that includes when the duty to pay stops. Termination of child support is governed by state law. For that reason, it’s important to know what California law says on the subject.

The general rule is that the duty to pay child support ends when a child turns 18, the age of majority in California. However, there are many exceptions to this rule.

Perhaps the most notable exception applies when a child is 18 but is still attending high school and living with one of his or her parents. When this happens, child support must be paid until either the child turns 19 or the child graduates, whichever happens earlier. Cal. Fam. Code § 3901.

Other exceptions to the general rule apply when a child gets married, enters into a valid domestic partnership, joins the military, or becomes legally emancipated. In addition, a child support obligation ends when the child dies.

As you might expect, a parent has the power to agree to continue to pay child support even after he or she is no longer legally required to do so.

In some cases, the duty to pay child support may continue well into or throughout adulthood. In California, parents “have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means.” In other words, if a child cannot be financially self-sufficient due to some physical or mental incapacitation, the parents must continue to support him or her if they are able to do so.

It’s important to know that California is not one of the states that requires the payment of child support throughout college. This is sometimes known as “college support.”

The best course of action as child support termination approaches is consultation with a knowledgeable California divorce attorney. The attorneys at the Law Offices of Judy L. Burger  will make sure you successfully navigate the laws that apply in this area. Make the call today to learn how our attorneys can help: (415) 293-8314.

Modification of Child Support in California

Modification of Child Support in California

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.
FAQs Relating to California Child Support

FAQs Relating to California Child Support

California laws that apply to child support are anything but simple. If you’re facing a divorce and have children, you may have many questions about the mechanics of child support. In this blog, we’ll discuss five of the common questions our office receives about this important topic.

What Are the Most Important Factors in Setting Child Support?

Many considerations come into play in setting child support in California. However, the three most important factors are the parties’ income, the number of children, and the parents’ comparative parenting time with the children (often known as “time-share”).

All of the relevant factors are set out in law. However, the factors have been built into a computer program that performs the calculations for the court. Have you ever heard the phrase “garbage in, garbage out”? If so, you understand the importance of making sure the right numbers are provided to the court for input into the program.

What Is Included in Income for Setting Child Support in California?

One of the most complicated factors at issue in setting California child support is the parties’ net disposable income. Almost all types of income are included, such as traditional forms of pay like wages, tips, commissions, overtime, and bonuses, and other forms of earnings, such as interest, dividends, and rental income.

A few amounts are excluded from income, such as CalWORKs payments and supplemental security income (SSI).

In addition, the following items are deducted from gross income, such as these:

  • Income taxes, both federal and state;
  • Mandatory union dues;
  • Mandatory retirement deductions;
  • Contributions for Federal Insurance Contributions Act (known as “FICA” on your pay stub);
  • Health insurance and premium deductions for each parent and any children the parent is legally obligated to support;
  • Child and spousal support paid to a different spouse or child;
  • Certain job-related expenses under California Family Code § 4059(f); and
  • Court-allowed amounts for hardship suffered by a party.

Do California Courts Have to Follow the Child Support Guidelines?

Generally speaking, courts follow the child support guidelines. However, a few factors can change the amount of support.

For example, there are some mandatory and discretionary add-ons to child support. These include uninsured health care costs, certain child care costs, private school costs, extracurricular activities, and travel expenses.

Can a Parent Be Jailed for Failing to Pay Child Support?

Yes, a parent who fails to pay court-ordered child support can be held in contempt of court and even jailed. Criminal contempt of court is a very serious matter that places the payer’s liberty at risk. If found guilty of contempt of court for failing to abide by a court order of child support, both community service and jail time are possible consequences.

Does Interest Accrue When Child Support Is Not Paid on Time?

Interest accrues on any child support amounts that are not paid on time. In California, the applicable annual interest rate is 10 percent per year.

If you are facing a divorce proceeding, especially one that involves 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.

Different Types of Restraining Orders in California Family Law Cases

Different Types of Restraining Orders in California Family Law Cases

An important tool to help a victim of threatened or actual domestic violence is an order of protection from the court. This civil court order, called a restraining or protective order, commands the abuser to stop the abuse or suffer punishment by the court. The type of restraining order entered depends on the process used to get the restraining order.

The restraining order entered in emergency situations is called an emergency protective order. A situation is considered to be an emergency when a police officer responds to a domestic violence call or when someone has made a report of abuse to the police. In such cases, the police can request an emergency protective order under California Family Code § 6250. The court can enter an emergency protective order without first holding a hearing, but this type of protective order is only good for seven days.

If a victim needs a protective order for a longer period of time, or if the victim wants to apply for the restraining order without police involvement, he or she may apply to the court for a domestic violence restraining order. Abuse is considered to be domestic violence if the abuser is related to the victim as a spouse or former spouse; a person the victim is dating or has dated; a lover; the other parent of the victim’s child; anyone related to the victim by blood, marriage, or adoption; or a person who regularly lives in the victim’s home.

However, before entering a permanent domestic violence restraining order, the court must hold a hearing, and the abuser must have notice of the hearing. If, after a hearing, the court enters a domestic violence restraining order, that order may specify what the abuser can and cannot do to the victim or how near to the victim the abuser can be. Such an order may also include orders regarding child support, visitation, and custody orders if the victim and the abuser have children together; orders regarding possession of a shared residence or pet; orders for spousal support; or an order prohibiting the abuser from possessing a firearm. A domestic restraining order may be entered regardless of whether the court has previously issued an emergency protective order regarding the parties. A domestic violence restraining order can last up to five years.

If you are in immediate danger, the court may issue a temporary restraining order after processing the application but before a hearing.

If you or a family member has been a victim of domestic violence, seek help from a qualified family law attorney. The Law Offices of Judy L. Burger are experienced in helping victims of domestic violence get the protection they need. Call today to see how we can help you: (415) 293-8314.

What Is Discovery and How Is It Used in Divorce Proceedings?

What Is Discovery and How Is It Used in Divorce Proceedings
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:

  • interrogatories;
  • request for production of documents;
  • request for admissions; and
  • depositions.

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.

Help! Can I Still Get a Divorce if My Spouse Doesn’t Respond.

Help! Can I Still Get a Divorce if My Spouse Doesn't Respond?
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.

What Is Included in a Petition for Divorce?

What Is Included in a Petition for Divorce?

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.

Who Controls Marital Property During the Marriage?

Who Controls Marital Property During the Marriage?

The assets a couple accumulates during marriage, for the most part, are marital property. This includes money and things of value such as automobiles, furnishings, and real property like the marital home. Each spouse is a 50 percent owner of the assets. There are circumstances under which property owned by one of the parties before marriage may become marital property, but that is beyond the scope of this article.

Marital property may be controlled by either or both parties to a marriage. Both own half of the property, and both have the authority to manage or dispose of the property but with this limitation: the controlling spouse cannot act in a way that diminishes the other spouse’s 50 percent share of the asset’s value.

The underlying concept of control of marital property is that marriage is a contract that imposes a “fiduciary duty” on each party. In the context of this discussion, the duty requires the spouse who exercises control over a particular asset to do so without damaging the other’s 50 percent interest in the property.

A good example of both the power to control an asset and the fiduciary duty is a car owned by a couple. Most married people officially title a car as belonging to John or Jane Doe. This means that in the eyes of the State of California, either John or Jane can assign the title of the car to a third person.

According to California Family Code § 1100, however, the party disposing of the car may not do so for less than “fair and reasonable” value without getting the consent of the other spouse. In the case of the car, the spouse could legally sell it according to state motor vehicle law, but if he did so for $10,000 less than its value without his spouse’s consent, the non-consenting spouse would have a claim against him.

In this example, the spouse selling the car has a fiduciary duty to the other spouse to maintain the value of her 50 percent interest in the fair and reasonable value of the car at the time of its disposition. A failure to do so results in the selling spouse being liable for that loss.

In the case of real property, it is little different. California Family Code § 1102 requires that any sale or encumbrance of real property, or its lease for more than one year, requires execution by both spouses. There is much less room for a spouse to take unilateral action without the other spouse’s agreement. A spouse is, however, authorized to encumber her half of real property for the purpose of engaging counsel once a proceeding for dissolution of the marriage has been commenced.

If you have concerns about your spouse’s management of marital assets, you should consult with an experienced California divorce lawyer. 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.