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 proce…read more
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. Separa…read more
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 th…read more
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.
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 evidenc…read more
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<…
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 …read more
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 classi…read more
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 require…read more
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 determin…read more
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 …read more
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 j…read more
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…read more
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 th…read more
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 significan…read more
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:
- 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 …read more
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.…read more
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 ot…read more