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DEFAULT DIVORCE: WHAT IF MY EX REFUSES TO RESPOND TO MY PETITION FOR DIVORCE?

May 6, 2019 - Bob Nachshin and Heather Saint

Often, when one spouse refuses to respond to the Petition (the initial court forms used to commence divorce proceedings) nor cooperate in reaching a settlement agreement it is because they have no interest in getting divorce. The non-responsive spouse could be hoping for reconciliation or, alternatively, they could simply be trying to avoid the financial consequences of a divorce and instead would prefer to remain married but living separate lives. However, the motivation driving the non-responsive spouse is ultimately of little consequence because, unlike a marriage which undoubtedly takes two to tango, it only takes one spouse to legally dissolve a marriage.

Default divorce proceedings protect against the possibility of one spouse holding the other spouse indefinitely hostage in an unhappy marriage. If one party to the divorce refuses to respond or cooperate in the proceedings then the Court can, at the request of the participating spouse, enter a default divorce judgment in the absence of the other spouse.

Process of Obtaining a CA Default Divorce Judgment

The first step in obtaining a California default divorce judgment is to complete, and ultimately file with the Court, the Petition forms which is used to initiate the divorce proceedings. After reviewing the Petition, the Court typically returns a copy of your forms within a few business days. The returned forms reference your assigned case number that you must designate on the first page of all future documents filed in the divorce.

Once you receive the Petition back from the Court, you then must formally serve your spouse with the Petition and a blank copy of the Response forms. The other party has 30 days to respond to the Petition. If after 30 days you do not receive a Response you may then file with the Court a Request to Enter Default, along with all other documentation and mandatory forms prior to entry of judgment, including, but not limited to a, Proof of Service of Summons, Declaration Regarding service of Declaration of Disclosure, and various default judgment forms containing the proposed orders you would like the Court to render on your behalf concerning matters such as division of assets, spousal support, child support, etc.

If the Court finds that your initiating Petition was detailed and consistent enough with the default orders you are requesting the Court may enter a default judgment without first requiring a hearing or formal court appearance. Alternatively, if the Court finds the Petition to have been deficient in detail and/inconsistent with the orders requested at default the Court will either schedule a hearing or ask that the Petition be amended and re-served on the other party so that they have proper notice of the orders being requested.

Circumstances giving rise to default divorces are often quite frustrating, however, there is one aspect of a default divorce that is often appreciated and that is the accelerated timeline. The typical contested, or litigated, divorce can take several years to complete—some highly contested divorces even last decades. In an uncontested divorce, where the parties are able to reach a settlement agreement out-of-court, the parties may submit their stipulated judgment to the Court whenever it is completed, however, the Court will not enter judgment until after at least 6 months have passed since the Petition was served on the Respondent. In a default divorce, however, it is possible to have a default judgment entered in under two months.

Default divorce proceedings are not only stressful but they can be rather complicated as well since there are strict procedures and requirements that must be followed that differ from the typical divorce. The Law Offices of Robert Nachshin have a great deal of experience in default divorce proceedings. Contact us today at 310-478-4600 and let us help guide you through this process as expeditiously and stress-free as possible.

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How Retirement Accounts and Benefits Are Affected by Divorce

February 9, 2017 - By Heather Saint

A common concern of individuals contemplating divorce is the division of property. Retirement accounts and social security benefits are typically the most valued assets during a divorce. Individuals divorcing after the age of 50 are likely to place an even higher value on retirement benefits since financial concerns tend to increase as the age of retirement approaches. Over the past five years, the amount of persons divorcing after the age of 50 has steadily, yet significantly, increased. This blog will discuss how retirement accounts and social security benefits are treated during a divorce proceeding.

Classification of Both Retirement Accounts and Social Security Benefits

California is a community property state which generally, for purposes of divorce, means that in theory each spouse is entitled to one-half of all property acquired during marriage. Separate property refers to all property or assets acquired prior to marriage, by gift, or inheritance. Separate property is typically not subject to division during divorce. Therefore, the way in which retirement accounts and benefits are affected by divorce depends on whether they are considered community property or separate property.

Oddly enough, and in spite of the fact that both retirement accounts and social security benefits can accrue during marriage, only retirement accounts are considered community property and are thus subject to division. California law considers retirement accounts to be deferred compensation for services rendered, whereas Federal law has, in effect, declared social security benefits to be future income and has statutorily defined the benefits as being separate property.

Division of Retirement Accounts in Divorce Proceedings

Since accrued or vested retirement benefits, such as, but not limited to, pension plans, IRA’s, 401K and 403 plans, and defined benefit plans, are considered community property they are subject to the presumptive 50/50 division. However, it is quite common that an individual contributed towards that retirement plan prior to marriage. In such a case, the non worker spouse is only entitled to half of the community interest in the retirement plan. In other words, the non worker spouse is entitled to half of the benefits that accrued in the plan from the date of marriage to the date of separation.

For example, if you have a couple who has been married for 20 years, but the retirement plan in question began to accrue benefits 30 years ago, then the non worker spouse is entitled to half of the benefits that accrued during those last 20 years.

How the retirement benefits are logistically divided are not set in stone and the parties may get creative if they so choose. For instance, the parties can decide to offset the amount of the retirement plan the non worker spouse is entitled to with a different asset or by adding to monthly support payments. However, there are certain types of retirement accounts where standard division is practical and rather easy.

Dividing retirement plans through divorce requires additional forms to be filed with the court. Specifically, a Qualified Domestic Relations Order (QDRO) is required. A QDRO outlines how retirement assets are distributed to each party in the divorce and must be consistent with the settlement agreement or final judgment that must be completed and filed prior to the filing of the QDRO.

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Suspecting Your Spouse of Wrongfully Disposing of Community Property

January 5, 2017 - By Heather Saint

California is a community property state which generally, for purposes of divorce, means that in theory each spouse is entitled to one-half of all property acquired by either spouse during marriage other than those acquired by gift or inheritance or by funds stemming from gifts or inheritance. Unfortunately, it is quite common for one spouse to hide assets from the other spouse in anticipation of divorce. This post shall address what happens if one spouse wrongfully deprives the other of their fair share of the community property because they either hid the asset(s), sold the asset(s), or transferred the asset(s) to a third party.

A person contemplating divorce may be quite tempted to do this due to the effect it would have on the dissolution proceedings. Imagine that when two people get divorced, the judge throws everything each person has acquired (income, property, etc.) during marriage into one big pot to be equally divided. If a person feels that 50% of the pot is more than what the other spouse deserves, he or she might attempt to hide, sell, or transfer some assets prior to the proceedings.

Common Ways Spouses Hide Assets

There are far too many ways a person may go about hiding or “protecting” assets during or in preparation for a divorce to mention, however, the most common way is likely where the individual transfers title to an asset to a third-person who holds it in trust for them. This is even more common in cases of elder-divorce. In an elder-divorce case, it is quite common for one spouse to transfer property to their children. Even if the child who is receiving the gifted property is the progeny of both spouses, the transfer is still invalid if it was done without the written consent of the other spouse and the property is considered to have belonged to the community.

An individual may also transfer the asset into the name of a corporation. Unfortunately, it is rather easy for an individual to set up a corporation of some sort without having the corporation linked to the individual’s name so it would be difficult to trace.

Unilaterally selling a community asset is also common. A spouse can sell a community asset, other than real property which requires written consent, without written consent of the other spouse if it is for valuable consideration and the funds resulting from the sale go back to the community. However, a spouse may not gift or transfer community property without the written consent of the other spouse.

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What to Do When Your Ex Does Not Pay Child or Spousal Support

May 4, 2016 - By Heather Sain

Many family law litigants rely upon child and spousal support payments from their ex-spouse/partner as part of their financial survival. When those payments are not made, they are often left in difficult and desperate circumstances.   This post addresses several steps that can be taken to ensure compliance with financial support orders and, if necessary, force the compliance.

Wage Assignments

The first (and often most effective) mechanism available is a wage assignment. This is an order from the Court that can be taken directly to the ex-spouse/partner’s employer which will require the employer to pay the court-ordered support payments directly to the recipient. This procedure is highly effective since it removes the ex-spouse/partner as the “middle man” and instead connects the employer directly with the payee.

Most family law courts will grant a wage assignment as a matter of course, particularly when there is evidence available showing that the payor is not complying with his or her court-ordered obligations. In many states, the Department of Child Support Services offers free assistance preparing and enforcing wage assignments. To see if such services are available in your state, you should check the court’s website and/or contact the self-help center at the family law courthouse.

Writs of Execution

Another mechanism which can be highly effective is known as a writ of execution. This is essentially an order from the Court that can be taken to the local Sheriff or other licensed process server who can then take it directly to a bank or financial institution for enforcement. When the bank or financial institution is presented with the document, they must comply with it and issue a payment directly to the support recipient within a period of time that is specified by each state’s laws.

This avenue can be very effective in situations where the ex-spouse/partner may not be earning a paycheck and instead is living off assets or investment income. Writs of execution can be somewhat procedurally complex to obtain, so it is usually worthwhile to consult an attorney before attempting to obtain them.

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5 Ways to Make Your Divorce Financially Possible

May 4, 2016 - By Heather Saint

Unfortunately, many people are dissuaded from pursuing or even considering a divorce purely due to financial concerns. But, a significant portion of such people may actually be able to obtain a divorce if they utilize any of the following options:

1. Request That Your Spouse Must Pay Your Attorney’s Fees and Costs

In many states, there are statutes and case law which can require one spouse to not only be financially responsible for his/her own attorney’s fees and costs, but also to be responsible for his/her spouse’s attorney’s fees and costs.
For example, in California, the Family Code states that “the court shall ensure that each party has access to legal representation…by ordering…one party…to pay to the other party, or to the other party’s attorney whatever amount is reasonably necessary for attorney’s fees….”  See California Family Code Section 2030.

The idea behind such a policy is to level the playing field, so to speak, in order to ensure that the spouse with superior income or assets does not gain an upper hand and to preserve the due process rights of the other party without income/assets. Another interesting component is that the fees can be “whatever amount is reasonably necessary,” meaning that the court is not capped or limited. Instead, the court can take into account the unique facts and circumstances of each case.

To obtain such an award, it is imperative that the party seeking the award provide the court with evidence that the other party has the ability to pay the fees requested. Such evidence can include bank/financial account statements,  tax returns, etc.

2. Hire a Mediator and Split the Costs

Many people are in agreement – or are capable of reaching an agreement with some assistance from a professional – but do not have the income or assets necessary to obtain an award of attorney’s fees from the other spouse. However, such individuals may be able to select a mediator to help them identify and resolve all of the issues.

There are many great professional mediators who offer flexible price options, payments plans, and other programs to help couples divorce amicably without the expense of litigation. In California, mediators can even help spouses reach a “default with agreement,” which allows only one spouse to have to pay the court a filing fee (which can range up to almost $500!).

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3 Things to Consider Before You Move Out of the Family Residence

May 4, 2016 - By Heather Saint

One of the most common questions asked of divorce lawyers by potential clients during the initial consultation is, “Should I move out?” The answer to this question will undoubtedly vary based upon the individual facts and circumstances of each case.

In the tragic situations where the client and/or the children are victims of abuse or domestic violence, the answer is an unequivocal “Yes!” No matter what the legal or financial ramifications of the move out may be, there is no justification or rationalization for a person to expose him/herself and/or his or her children to danger or harm. The only option under such circumstances is to escape to a safe place and immediately seek a restraining order.

But when abuse or violence is not involved, there are three very important considerations to take into account before leaving the family home.

1. Leaving the Family Residence Can Negatively Impact Your Ability to Obtain Child Custody

The Family Law Court will look closely at the current status quo if the parties are unable to reach an agreement regarding child custody. If one party has moved out of the family residence, then the other spouse can claim that the moving spouse has abandoned the family (even if they are actually a committed parent). They can then claim that the status quo is that they are the primary custodial parent.

This can have devastating consequences, which can include one parent losing out on valuable custodial time with his or her children as a direct result of the move out. Keeping this in mind, I generally advise clients with children to postpone the move out until after a written agreement or stipulation has been entered into regarding the issue of child custody.

Furthermore, the emotional impact that the move out can have on the child can be devastating. So, if it is financially feasible, couples should consult with a licensed therapist, social worker, or other experienced mental health professional to come up with a plan for presenting the move-out plan to the child in an appropriate and responsible manner before it takes place.

2. Moving Out Can Strengthen Your Position on Financial Issues in the Divorce

The issue of division of marital property between spouses is often the most intensely litigated issue of the divorce.   Each state has its own approach to this issue. Many states place a great deal of emphasis upon the “date of separation” in connection with the determination of whether property is marital property to be divided among the spouses.

In California, the earnings and property accumulated by a spouse while he or she is “living separate and apart” are that person’s separate property. See California Family Code Section 771. This means that the income earned and the property accumulated while the person is “living separate and apart” is that person’s separate property, which will not be divided with the other spouse.

Therefore, the action of moving out of the Family Residence may lead to financial consequences that will directly affect the division of marital property. The specifics will vary on a case-by-case basis and should be discussed in-depth with an attorney during the initial consultation.

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4 Mistakes Often Made During a Child Custody Battle

May 4, 2016 - By Heather Saint

When two parents separate and they are unable to work out a mutually agreeable parenting for their family, they have no alternative but to go to Court seeking a child custody order. When that happens, the parents are putting the decision of their children’s future into the hands of a family law judge who must now decide what plan will be in the best interests of the children.

As one can imagine, such a determination is very difficult for the judge. Faced with allegations from each parent about how the other is unfit or neglectful, the judge must consider the evidence before him or her and come to a conclusion without having any actual firsthand personal knowledge or prior relationship with either parent or the children. To aid in their analysis, family law courts will often appoint child custody evaluators to assess each party’s claims and to come up with a recommended custodial plan.

Unfortunately, it is all too common that good parents end up being classified as unfit or neglectful based upon the following four simple and avoidable mistakes that are often made by parents who are in the midst of a child custody battle:

1. Getting Arrested

One of the clearest ways in which a custody litigant can show a family law judge that he or she is not a fit parent is by getting arrested while the custody dispute is pending. If a parent is arrested for a violent crime, even if they are not convicted or charged, they provide the other parent with ammunition to claim that the arrested parent has an anger management problem or propensity for violence. Such a finding by the judge will almost ensure that the parent will not be permitted to have unsupervised custodial time with the children.

In turn, if there are allegations of alcohol and/or substance abuse, then a parent’s arrest for a DUI/DWI or possession of narcotics will almost certainly confirm the allegation. And, if any of the children are present in the vehicle while the parent is driving while under the influence or in possession of the narcotics, then the violating parent’s chances of prevailing in the custody battle are lost.

2. Disobeying the Court’s Temporary Custody Orders

A common approach by the Court is to issue temporary interim custody orders at the onset of a divorce or paternity action, which will remain in place until there is a trial. Such interim orders can govern the physical timeshare of the children between the parties, the decision-making power of each parent, and other custody issues.

One of the worst mistakes that can be made by a parent is to disobey or disregard the Court’s temporary orders. For example, a parent may fail to return the children by a specific time on a specific day. Or, a parent may remove the children from the state without the permission of the other party or a court order allowing such removal. In either case, the other party will undoubtedly bring the matter to the Court’s attention to show that the violating parent does not respect the Court’s authority. Such a message is not well-taken by family law judges and will undoubtedly have an impact on their final decision.

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Can Adult Child Support be Ordered by the California Family Law Court?

December 3, 2015 - By Heather Saint

It is common knowledge that parents have an obligation to provide financial support for their children. Once the parents divorce or no longer live together, they may seek an order requiring payment of a specific amount of child support (or “family support” as it is termed in some states).  The issue of child support can often become one of the mostly intensely disputed and/or financially impacting issues of any divorce, paternity, or other family law case.   In California, the calculation of the child support payment, the manner in which it is payable, and duration are assessed by the Family Law Court taking into account the California Family Code, its statewide guidelines regarding child support, and case law on the issue.

However, a common misconception is for parents to think that their obligation will automatically end when their child or children reach the age of 18. As set forth below, there are several situations where a parent may be required to continue paying “child support” or “family support” for his or her children once they are no longer considered minors.

An Older High School Student

The most common situation where child support can continue after the child reaches the age of 18 is if he or she is still in high school after turning 18. In such a situation, the parent who has been ordered to pay child support can be ordered to continue making such payments until the child graduates, reaches the age of 19, or is no longer enrolled as a full-time high school student. Typically, the child support payments for such an adult child will be payable to the other parent.

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What Happens When One Parent Wants to Move Away with the Children?

November 17, 2015 - By Heather Saint

When parents separate or divorce, the entire family is affected by significant changes. In many instances, one parent can no longer continue living in the same place. For any variety of reasons (i.e. new job, out-of-state family support, etc.) one of the parents can be faced with no choice but to relocate. If both parents are agreeable, all that is required is a written custody agreement or stipulation and order. But, what happens if the other parent does not want the children to move to a new place?

This scenario is commonly referred to as a “Move-Away” case. Move-away requests are among the most difficult disputes faced by family law litigants, attorneys and judges. Each state has its own analysis and factors for resolving move-away disputes. Generally, a clear-cut rule or standard is not implement; rather, the court prefers to look at each move-away request on a case-by-case basis, taking into account the unique facts and circumstances of each case. In determining move-away cases, the question is not whether or not the parent is permitted to move, but rather what custody arrangement would be in the best interest of the child if or when the moving party relocates.

What does the court look at in making a move-away determination?

In California, the court begins its analysis by determining whether one parent has already been designated as the primary custodial parent. Under Family Code § 7501, a custodial parent has a presumptive right to relocate with their child, subject to the power of the court to restrain any residence change that would prejudice the rights or welfare of the child.

The primary custodial parent is presumed to be within his or her parental rights when it comes to relocation, so he or she does not need to justify the move as being wise or necessary. On the other hand, if the non-custodial parent can show that the motivation behind the move is simply to break the parent-child relationship, then the primary custodial parent may need to provide such justification. Otherwise, the burden will be on the non-custodial parentto first make a showing that a significant change of circumstances has occurred and it is detrimental to the child for the court to permit the move, thereby warranting a reexamination of an existing custody order. For example, a custodial parent seeking to move across country, thus impairing the non-custodial parent’s ability to maintain a close relationship with his or her child, may warrant denying the request to relocate or a change in custody.

If the non-custodial parent establishes the necessity of a reexamination of the custodial arrangement, the court must then determine whether a change of custody is in the best interest of the children. In doing so, the court will consider the detriment established, as well as additional factors to be later discussed.

On the other hand, if an initial custody determination has not yet been made and neither party is the primary custodial parent, then presumably both parents have a “right to custody” and either may request to relocate the child. Since no custody arrangement has previously been set, the relocation of the child will be considered in the court’s initial custody determination.

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Which State or Country Should Handle My Child Custody Dispute?

October 7, 2015 - By Heather Saint

Child custody disputes are never simple or easy.  Custody disputes where the parents and children are not in the same state (or even the same country) are among the most procedurally complex and emotionally charged issues that any family law litigant and/or attorney can face. Such disputes are becoming more and more common in today’s globalized and mobile world.

Recently, actress Kelly Rutherford has made headlines on this very situation after being locked in a contentious custody battle with the father of her children who resides in France. Ms. Rutherford’s heartbreaking battle demonstrates just how important it is for parents to become familiar with and at least obtain a basic understanding of the rules and procedures that come into play when dealing with a multi-state or international child custody dispute.

Generally speaking, the initial procedural components of these multi-state and international child custody disputes are governed by the Uniform Child Custody Jurisdiction and Enforcement Act  (commonly referred to as the “UCCJEA”) and the Parental Kidnapping Prevention Act of 1980  (“PKPA”; 28 USC §1738A). In the USA, the UCCJEA has been adopted by 49 U.S. States, the District of Columbia, and various other territories. If the case involves an international child custody dispute, the Hague Convention on the Civil Aspects of International Child Abduction adopted on October 25, 1980 and the International Parental Kidnapping Crime Act (18 USC §1204) may also be applicable.

In any multi-state or international custody dispute, the first question is usually “Which court in which state or country should initially handle the case?” In slightly more legal terms, this means that the threshold issue is “Which state or country has initial jurisdiction over child custody and visitation issues under the Uniform Child Custody Jurisdiction and Enforcement Act?”

To answer this question, the UCCJEA requires a determination of which state or country is the child’s “home state.” A child’s “home state” is the state in which the child has lived with a parent (or a person acting as a parent who has had physical custody) for at least the six months immediately preceding the custody action. If the child is less than six months old, then the “home state” can be the state in which the child has resided since birth. The corresponding provision under the PKPA is substantially similar in this regard.

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Tax Considerations Before and After Divorce

October 7, 2015 - By Heather Saint

When people are going through a divorce and/or have just finalized a divorce, they often forget about tax consequences and considerations. That is a critical error on their part that could prove to be very costly. Divorce can take a financial toll, so it is financially prudent to take advantage of any tax benefits that may be available.

The following are a few common topics that should be addressed and considered to avoid adverse tax consequences. (It is also imperative that all of these matters must be discussed with a licensed CPA or other tax professional who has knowledge of the specific financial circumstances.

1. Tax Filing Status

Couples who are separated but not yet legally divorced before the end of the year have the option of filing a joint tax return. For tax purposes, the marital status as of December 31st controls the filing status. Filing jointly may provide both parties with financial benefits. However, if a divorcing couple does elect to file jointly they (and their counsel) should enter into a written agreement about how any tax liability or refund will be allocated/distributed.

2. Medical Expenses

If either parent continues to pay a child’s medical bills after the divorce, then the payor parent may include those costs in his or her medical expense deductions (even if the other parent has custody of the child and claims him or her as a dependent).

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3 Questions a Prenuptial Agreement Should Answer

May 26, 2015 - By Heather Saint

When most people think of prenuptial agreements (aka premarital agreements and/or “prenups”), they envision an onerous, one-sided contract.   “Prenups” are seen by many as a form of “legal handcuffs” insisted upon by a wealthy person to prevent his or her future spouse from getting anything in the event of a divorce.   However, experienced Family Law attorneys will tell you that usually is not the case, nor should it be.

A premarital agreement should be comprehensive, fair, and clear.  Each party should receive some tangible benefit(s) or protection(s).  There should be no surprises and both sides should fully disclose their financial information to one another.   Each party should have his/her own attorney who can ensure that the legal implications and effects of the agreement are fully understood.   And, the document should be discussed, drafted, and finalized long before the wedding takes place (ideally even before the invitations go out or deposits are put down).

A premarital agreement can be a great tool to allow a couple to come together, have a realistic conversation about their financial future, and plan accordingly.  The situation provides engaged couples with a chance to figure out how life is going to be after the honeymoon is over.   Participating in such an exercise can go a long way towards creating an atmosphere of open communication regarding issues that often lead to the demise of a relationship or marriage.

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Must the Family Court Listen to the Preferences of a Child Regarding Custody?

April 17, 2015 - By Heather Saint and Matthew Smurda, Esq.

One of the most common questions that I hear from my clients with child custody issues is “Will the Judge listen to what kind of custody arrangement my child wants?” The answer to that question is: Maybe.

California Family Code Section 3042 provides that the Court “shall consider, and give due weight to, the wishes of a child in making an order granting or modifying custody or visitation.” Sub-paragraph ( c ) of the statute clarifies that the child will be permitted to address the Court if she is 14 years or older, unless doing so is not within the child’s best interests.

I have seen judges interpret this statute in several ways. Some will permit the child to take the stand like any other witness, others prefer to meet with the child “off the record” privately in their chambers. I have also seen judges flat out refuse to hear what the child wishes to say. Such refusal often is very frustrating for both the child (who feels that his/her voice is not being heard) and for the parent who the child prefers.

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But Who Gets to Keep Fido After the Divorce?

January 22nd, 2019 - By Robert J Nachshin and Heather Saint

As of January 1, 2019, California family law courts have a new way of dealing with the family pet in divorce proceedings. Historically, the family pet was treated as property rather than a family member which meant custody over the family pet was given no more consideration than that in which a Court would give to an automobile with the presumption being that each spouse would be entitled to half its value at divorce.

The appropriate approach to post-divorce custody of a family pet has been a long-standing debate due to the fact that a family pet doesn’t fit squarely within the property category as it is not an inanimate object. However, the most practical alternative would be to treat the family pet more akin to a minor child, and while most pet owners would find this to be the more appropriate approach to handling post-divorce ownership of their beloved pet, the majority opinion recognized that no matter how loved and adored a family pet was, there remained significant distinctions between a family pet and a minor child to justify treating the two as one in the same.

However, in September of 2018, California’s governor signed into law AB 2274 (now known as Family Code Section 2605) which many feel reflects an appropriate balance of the two schools of thought on how to treat post-divorce custody/ownership of the family pet.

The new law is Family Code Section 2605. It states:

(a)The court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may enter an order, prior to the final determination of ownership of a pet animal, to require a party to care for the pet animal. The existence of an order providing for the care of a pet animal during the course of proceedings for dissolution of marriage or for legal separation of the parties shall not have any impact on the court’s final determination of ownership of the pet animal.

(b) Notwithstanding any other law, including, but not limited to, Section 2550, the court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal.

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THINGS TO CONSIDER PRIOR TO TELLING YOUR SPOUSE YOU WANT A DIVORCE

December 4, 2018 - By Bob Nachshin and Heather Saint

Perhaps you have recently discovered your spouse is cheating, or have reached the conclusion that you and your spouse have grown apart and/or have fallen out of love, and you are now contemplating divorce. Or maybe you have decided you want a divorce, but anticipate that your spouse will make the process difficult, or even act maliciously. What are things you can do now, prior to confronting them, that will put you at an advantage or proactively protect your rights? Here are some common questions that arise in these situations:

 

  1. Can I kick my spouse out of our home? Or should I be the one to leave?   

 

In hostile divorce proceedings, remaining together in the same home might not be desirable for obvious reasons. But who should stay, and who should leave? The party who feels wronged may want to kick the other spouse out of the home, but can they?

 

In a majority of divorce cases, there is no way to force a spouse out of the family home without a court order. Both spouses are, at least initially, considered to be equally entitled to the home.  If your spouse will not leave voluntarily, then there are essentially three options: continue living together in the home, move out yourself, or seek a court order requesting exclusive use of the residence while the divorce is pending.

 

Moving out on a temporary basis while proceedings are pending should not drastically impact your rights regarding that home, however, there are certain precautions that can be taken to make certain that your spouse can’t use your temporary living arrangement against you in regards to child custody or property division matters. For a detailed discussion on this issue check out the previous blog post ‘3 Things to Consider Before Moving Out of the Family Residence’ as a ‘further details’. [imbed link with title]

     

2.  If I leave, can I take our kids with me?

 

Since, presumably, both children are legal children of you and your spouse, both you and your spouse have equal legal and physical rights to the children. Leaving the family home and unilaterally deciding to take the children along and uproot them from their daily routine is not a decision the court will likely view in a favorable light—although certain circumstances may call for this, such as needing to get away from an abusive spouse/father, which is why all custody matters are considered on a case by case basis. While courts typically prefer that minor children remain in their family home, legally speaking either parent can “leave” with the children, absent a court order to the contrary, but the other parent shouldn’t be denied access to the children, again, absent a court order.

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NEW CALIFORNIA LAW ON PET CUSTODY DETERMINATIONS IN DIVORCE PROCEEDINGS

February 8th, 2019 - By Bob Nachshin and Heather Saint

Historically, family law courts have treated pets as possessions despite the fact that most pet owners view their pets as family members. In most cases, custody (or rather ownership) of the family pet often came down to whomever paid for the initial adoption/purchase fees.

However, effective January 1, 2019 beloved furry family members will no longer be treated in the same manner as an Ikea lamp in divorce proceedings. Now, custody determinations of a pet are essentially based upon the same factors of consideration relied upon in child custody determinations.

Under Family Code Section 2605, courts may now assign sole or joint ownership of a community property pet depending upon the best interest of the pet. In determining the best interest of the pet, a judge would consider factors such as, which party is better suited to fulfill the pet’s basic needs, the bonds each party shares with the pet, and the amount of time each party would be able to spend with the pet.

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Paternity, Child Custody, & One-Night-Stands

February 24, 2019 - By Bob Nachshin and Heather Saint

A casual encounter that has potentially resulted in a child can quickly turn into a complex custody case. If the potential father is interested in being a part of the child’s life, the next course of action would be to consider paternity and child custody rights. Although this post discusses issues from a father’s perspective, it can be applicable to either parent. 

Step One: Establishing Paternity

            The first step is to establish paternity. In California, paternity (“legal fatherhood”) can be established through two main methods: voluntarily signing a Declaration of Paternity, or (2) getting a court order. The Declaration of Paternity is a good option for unmarried parents. Both parents must sign the Declaration for it to be valid. Alternatively, the mother may serve the father with a Summons and Complaint to establish paternity and other responsibilities. Either parent, or the Department of Child Support Services, can first request genetic testing to determine whether the child is the father’s biological child. It may be best to establish a biological connection before legal parenthood for peace of mind and assurance, among other factors. This can be further complicated if the mother was married at the time of birth. In most states, the mother’s husband will automatically be considered the legal father unless proven otherwise.

            If the father’s goal is to eventually obtain some degree of visitation or custody, then paternity is a big step in that direction. However, establishing paternity does not guarantee either visitation or custody, and also has the potential to make the father liable for many costs and responsibilities regardless. The purpose of establishing paternity is to ensure that the child has financial support, access to family records as well as access to the father’s medical benefits. Signing a Declaration of Paternity or otherwise legally agreeing to paternity prior to confirming a genetic match could make that potential father responsible for child support, medical fees, and other costs. However, the court will only make custody orders after paternity is established.

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