Saturday, May 16, 2015

We Have a New Location


Family Law Matters is pleased to announce the opening of our new office at 27349 Jefferson, Suite 112. Our new office is larger and much more user friendly. As always, we offer free consultations. We hope you don't need us, but if you do, please call for a free consultation at (951) 587-0505

Friday, October 10, 2014

Fiduciary duty between spouses

Question:  My husband is self-employed and doesn't disclose all his income on his income taxes.new have separate bank accounts and he keeps a lot of his money in cash. I also know he owns some real estate in his name only, but he refuses to tell me what he owns. Is there some way to force him to reveal to me all his assets? What happens if he doesn't?

Answer:  California law imposes a fiduciary duty on each spouse. It is the same financial duty owed to you by your bank. As part of this fiduciary duty, each spouse make act fairly and honestly with the other when dealing with financial matter. Additionally, each spouse must disclose everything they make, everything they owe, and everything they own. Failure to do so can result in sanctions, and, in extreme cases, forfeiture of the entire undisclosed asset. 

There is a famous case that happened about ten years ago where the wife bought a lottery ticket while married to her husband. She won the lotto after they separated and didn't tell her husband. Her was awarded the entire lottery winnings. However, you have to prove the asset exists and that the other party knowingly concealed he asset. It sounds like you will need to hire at least one expert to help you, perhaps more. This may include a private investigator, an accountant, and an attorney.

Thursday, October 2, 2014

Bigamy

Question:  I was legally married in Mexico but have been separated for the last 10 years. Do I need to get divorce in Mexico first before I marry someone in CA?


Answer:
No! It does not matter what state or country you were  arrived in. If you were married anywhere in the world, you must obtain a divorce before you can marry another person. The new marriage would not be valid. It does not matter how long how long you have been separated, you cannot marry someone else until the first marriage is dissolved. Doing so would be bigamy and it is a crime.

Saturday, September 27, 2014

Use of Family Home


Where two parties are living in the same home, the court can only order one of the spouses to leave under limited circumstances. For instance, where there is domestic violence, the court can order the aggressor to immediately vacate the home, even without notice to the other side. Secondly, where the situation is too stressful on the parties or their children to remain living together, if the court finds good cause, the court can order one of the parties to leave after giving that party appropriate notice. Otherwise, unless one party leaves voluntarily, the court will not order one of the parties to leave when they are both living together until time of trial. However, if only one party is living in the home and not paying the mortgage, the court has the power to evict that party before trial.

Award of the Residence

The court will typicall not require a family home to be sold. It will first determine whether the house is community property. If separate property, the court determines that one party owns the home, it will allow that party to buy out the other. If the home is held jointly, the court will allow one party to buy out the other, giving priority to the party who is still living in the residence. If neither party can afford to buy out the other, the house will be ordered sold.

Buying the Residence

In order to be awarded the family residence, one party must buy out the other party's equity in the home. Where both parties are on title, the court will generally require the party who is buying the residence to refinance the property in his or her name only.

How Do I Defend a Domestic Violence Case.

Question:
My ex boyfriend intentionally issued me a TRO, hoping to give me a bad record in background check during employment. I was tricked. He did a lot of extremely bad things to me previously (a lot of controlling behavior, verbal abuse, threatening, cheating, threatening to my parents) to make me have to start a fight. Then he kept all the evidence (that I "harassed" him, "defame" him) and issued a restraining order. I need to prevent this TRO from becoming permanent as this will give me a bad record. However, he left little evidence (when he did bad things and pretended to be a gentleman and a victim). What can I do to make the judge believe in my story?


Answer by Gina Famularo:
If you believe that a temporary restraining order is likely to be issued against you, your best bet is to avoid court altogether. Think about hiring an attorney. The court will usually require both sides to meet and confer before the trial. Often times, a person without an attorney will want to settle once he or she the other person is ready to put on a trial. 

If you do go to trial, you will need to overcome those text messages. Bring witnesses to court. You said your parents had witnessed some of the behavior. Ask them to testify. If your ex has ver thrown things, broken things, gone through your purse, gone through your cell phone, followed you, prevented you from leaving a toon, prevented you from making a phone call, prevented you from sleeping, prented you from leaving the house, took your personal. Items without permission, or followed you room to room, tesify about those things.

Have witness's tesify about those things they have heard the ex say. Try to show that the arguing was mutual. If the exchanges were all verbal, you will have a pretty good shot of overcoming the evidence. It is not against the law to simply call someone names.


If you believe that a temporary restraining order is likely to be issued against you, your best bet is to avoid court altogether. Think about hiring an attorney. The court will usually require both sides to meet and confer before the trial. Often times, a person without an attorney will want to settle once he or she the other person is ready to put on a trial.

If you do go to trial, you will need to overcome those text messages. Bring witnesses to court. You said your parents had witnessed some of the behavior. Ask them to testify. If your ex has ver thrown things, broken things, gone through your purse, gone through your cell phone, followed you, prevented you from leaving a toon, prevented you from making a phone call, prevented you from sleeping, prented you from leaving the house, took your personal. Items without permission, or followed you room to room, tesify about those things.

Have witness's tesify about those things they have heard the ex say. Try to show that the arguing was mutual. If the exchanges were all verbal, you will have a pretty good shot of overcoming the evidence. It is not against the law to simply call someone names.

Thursday, September 18, 2014

Award of House in a Divorce

I'm getting a divorce next year and my name is not on the deed or mortgage only my husband and my mothers name is on the deed and mortgage. She passed last year but I'm the only one named in the will to receive her 5% of the property. Can I tell the judge that I would like to keep them home in my divorce or does my ex husband automatically gets the home since his name is on it ?? I pay more than half of the mortgage and all of the utilities.

Gina Marie Famularo
 

This is a much more complicated question that it first appears. The first question is whether you have a community property interest in the home. If the house was purchased during marriage, even if you signed a quit-claim deed putting only your husband's name on the house, you may have a community property interest in the house.

If you signed the deed and were a victim of domestic violence and were threatened or coerced into signing over the property, you may be able to set aside the deed. Also, if you signed the deed only for financing purposes and were expecting to have your name put back on the property after the house was purchased, you may have a community property interest.

Secondly, the 5% ownership of your mom's is all yours. Also, was there a down payment on the house? Where did it come from?

You really need to seek the advice of an attorney before it can be determined what your ownership interest is in the house.

Regardless of your ownership interest in the property, you can buy Husband out of his interest in the property if he is agreeable and if you can qualify to refinance the property.          

Friday, September 12, 2014

Custody of teenaged child

I have 50/50 custody of my 16 year old son. I currently pay all of my ex's expenses Rent, food, phone etc. However I can no longer can do that seeing as I just found out that my ex is using drugs and the money I am giving her is not being used to care for him. Do I have to go to court, or can I exercise my right as his father to remove him from her care? I want to care for my son and do not want to support a drug addict.

Since your son is 16 years old, he is what we call an 800 pound gorilla. Do you know the old adage, where does an 800 pound gorilla sleep? Anywhere he wants. So, practically speaking, if your ex is using drugs and your 16 year old doesn't want to go over there any more, he will not be forced to do so, either by the court system or local law enforcement.

The child support is another thing. If you have an order to pay chile support , it is due until paid in full and there is no statute of limitations on collecting the past due money. However, you can discharge your child support by having the child 100% of the time under a case named Marriage of Jackson. This does not help you if you pay support by way of a wage assignment. The only way to get the wage assignment stopped is by going to court. Also, if you want support from your ex, you must go to court for that order.

The long answer is you do not necessarily have to go back to court to obtain custody of your 16 year old child. The short answer is if you want to avoid any potential future problems, keep your son with you, do not send him back to Mom's, and them play it safe and get a court order modifying custody and support.

Wednesday, August 20, 2014

ALTERNATIVES TO A CONTESTED DIVORCE

Gina Marie Famularo
 

Before filing for divorce, you may want to consider some of the alternatives to going straight into a contested divorce situation, where the parties are going into court multiple times and fighting over each issue. Set forth below are a few of the alternatives:

Summary dissolution

This is a type of divorce proceeding. However, it is a simplified divorce process, so easy it can be filed by a non-attorney. Although the divorce process is simple, few people qualify. To qualify for this type of divorce proceeding, both parties must agree to sign the divorce papers, each spouse must have a limited number of assets and debts, neither party can own real property, there can be no children of the marriage, the date of marriage must be within five years of the filing for a divorce, and neither party is requesting spousal support. This type of divorce can usually be filed on line, through the local family law courthouse.

Annulment

this act cancels out away the marriage, and, in the eyes of the law, the parties were never legally married. There is no waiting period, but a trial is required in family court. A party cannot qualify for an annulment simply because they were not married very long or the marriage was not consummated. In order to qualify for an annulment, the parties must meet very specific requirements.

Uncontested Divorce

An uncontested divorce is where the parties agree to the terms of the judgment even before the paperwork is filed.  The advantage of this process is that the parties can avoid litigation; neither party ever appears in court, and because there is no litigation, the cost  is substantially less. The disadvantage  is that it requires each party to compromise. In order to obtain a settlement, each party must be flexible and make realistic demands from the other party.

Legal Separation

Most people who consider legal separation do so because they are not sure whether they really want  a divorce. They often are looking for ways to protect themselves from being financially responsible for their spouse's debts. Furthermore, both parties must agree to a legal separation in order for the court to grant this relief. For this reason, legal separations are rare and are not normally recommended for people in these situations.

Tuesday, August 5, 2014

Modification of Child Custody

Child Custody orders can be changed where there is a showing that something new or different has happened since the last order. This generally means that someone's schedule has changed, someone has moved or is moving, the children's needs have changed, or the children are old enough to have some say in their own schedule.

To file a modification, a Request for Order must be filed. The court will then send the parties to mediation in an effort to help them work out a schedule on their own. In the event they are unable to do so, the court would then make orders.

It typically takes about two months from the time the Request is made until the court hearing.



Monday, April 6, 2009

Out of State Custody Orders

Dear Famularo & Associates: I was married in California about 10 years ago. About 5 years ago, I moved to Texas. After I learned that my husband had a drug problem, I filed for divorce in the state of Texas and the case is still pending. Even though the court ordered my husband to obtain professional help for his drug addiction, the court awarded him joint custody of our 2-year-old daughter. The divorce process has been so stressful for me that I lost my job and my apartment. I am now living in my sister's guest bedroom. I have been offered a job in California, and my parents will allow me to live with them in Temecula until I get on my feet if I move there. What would happen if I just got on an airplane with our daughter and filed for sole custody in California? Thank you for your time, S.F. from Houston Dear S.F.: Thank you for your question. Since you already have a divorce pending in the state of Texas, that state has jurisdiction (the power to make orders in your case). If you were to file a new request for custody in California, the California court would have to deny your request because previous custody orders were by the state of Texas. Once a court makes an order for custody, any desired changes to that custody order must be made by the same court (i.e. the Texas court). California does not have the power to change another state's order. Furthermore, since your daughter has lived in the state of Texas for the last six months, your daughter is a resident of the state of Texas. Even if you were to move to California and even if the court had the power to modify a Texas order, the request for a custody order would still have to be denied because your daughter is not a resident of this state. California only has the power to make custody orders concerning children who have lived in this state for at least six months before the filing of your request. Otherwise, custody must be decided by the last state where the child lived contiuously for six months. The only exception to this rule is for babies under the age of six months. The state with jurisdiction is the state where the child was born. I am sorry, but if you do not like the current custody and visitation order, you must file your request to modify the order in the state where the original order was made- the state of Texas.