Saturday, October 18, 2008
Thursday, October 16, 2008
In 2000, my husband and I got married. I had assets, he had none. Since that time, I have invested in real estate and received a substantial inheritance. All my separate assets were placed in a trust, and I had my spouse sign interspousal grant deeds granting me all my real property as my sole and separate assets.
I completely kept all my expenses separate from the community. My question is, are these assets my sole and separate property if I ever choose to divorce my husband?
L.A. in Murrieta
Yes. Since the money you received was not earned during the marriage, but was inherited, it is your sole and separate property. You were smart to keep all your assets in a separate account and have your husband sign quit claim deeds. Since no community property was invested in your separate property, all your investments will be awarded to you in the event your husband and you someday divorce.
Famularo & Associates
When I first got divorced back in 2001, my husband and I had a 50-50 custody arrangement of our young son. As part of the terms of the divorce judgment, we had a week-on, week-off arrangement, and we were each given our son as a tax deduction every other year. For the past two years, my ex-husband has not exercised the joint custody order, and has only seen our son every other weekend. My ex has not paid me any child support in over three years, either. Even though the divorce judgment says that I can only claim my son on my taxes every other year, is there any way I can claim my son in all years since I am the only one supporting him?
L.M. in Hemet
The Internal Revenue Service tax code allows a parent to claim a child as a tax exemption if the parent provides more than 50% of that child's support, or the child lives with the parent more than 50% of the time. It sounds like you provide both for your child. The IRS will allow you to claim your son as a dependent on your income tax returns even though there is a conflict with the judgment. However, to avoid any confusion, you should go back to court and get an order allowing you to claim your son on your taxes in all years.
Famularo & Associates
Attorneys in Temecula
I have an eleven-year-old daughter. She has never known her father. Legally, she goes by my maiden name. Her father was never even placed on the birth certificate. She has been raised by her step-father since she was three years old. She has asked me if she can go by my new last name, which is the same as her step-father's. I do not know how to contact the father of my child. Can I legally change my daughter's last name? If so, how do I do it?
R.E. in Murrieta
Yes, you can change your daughter's last name. However, since you do not know how to contact the father of your daughter, you will probably need a lawyer. In order to change your daughter's last name, you will have to file an application for a name change in your local courthouse. After you file the application, you will need to publish the name change in the newspaper and serve the father of your daughter.
Since you do not how to contact the father, you will have to get permission from the court to dispense with notice. This is done by filing a declaration stating that the father cannot be found and outlining the steps you took to contact him. Once the name change has been published, the court will give you a court date. At the hearing, the court will issue an order changing the last name of your daughter.
FAMULARO & ASSOCIATES
Attorneys in Temecula
I am 65 years old and I live on Social Security. I have been divorced for more than ten years and have been paying spousal support to my ex-wife since our divorce. We were married for more than fifteen years. During the divorce, my ex-wife and I sold our home. We each received one-half of the money. I invested mine, and have been partially living off the investments I acquired. I remarried about six months ago, but my ex-wife has not. My new wife will be retiring at the end of this year.
My question is am I required to pay spousal support while I am living on Social Security and any income that I make off the investments I acquired since our seperation?
E.S. in Hemet
In that your marriage was a lengthy one- one that lasted for ten years or more- the court does not have the ability to terminate your spousal support. Even so, the court can reduce your current spousal support order to zero, thereby leaving the possibility of raising your spousal support at a later date, if appropriate.
Since you have been paying spousal support since before you retired, it is highly likely your spousal support should be reduced, if not to zero, then substantially. In awarding spousal support, the court must look at a number of factors. These include your ex-wife's need, your current ability to pay, your ex-wife's attempts to become self-supporting, and separate assets you each have available for support.
You have a right to retire. The court cannot penalize you because your income has decreased after your retirement. Furthermore, you are not expected to decrease the principal on your investments in order to pay your support, nor is your current wife's income considered when calculating spousal support for your ex-wife.
The court has great discretion in awarding spousal support to your ex-wife. In doing so, the court will weigh your current income, which consists of Social Security and dividends on your investments, against your ex-wife's need. The court will examine how much money your ex-wife reasonably needs by looking at her expenses and then deducting her income from those expenses. If there is a shortfall, that is her need. If you have the ability to make up that shortfall, you may be ordered to pay the difference.
Before the court can order you to pay the difference, it usually must look at what steps your ex-wife took to support herself. If she failed to take adequate steps to become self-supporting, the court can reduce her support to zero even if she has a financial need.
Since you are living on a fixed income, chances are your ability to pay support is greatly diminished. Usually in these situations, the court will drastically reduce the amount of spousal support you are ordered to pay or cut it to zero. The bottom line is you need to return to court to modify your spousal support.
Famularo & Associates
My wife and I were married three years ago in another state. We lived together for a full year before we got married. We have no children and no property to divide. My wife and I discussed having children before we married, and I informed her that I had a vasectomy and was unable to father any children. Before our marriage, my wife stated numerous times that although she desired children, she was okay with us never having children.
Since our marriage, we have never had sex. When I asked her why, she stated that she did not want to have sex with me unless I had my vasectomy reversed. My wife often states that that before marrying me she fully expected me to reverse my vasectomy and the only way she can be happy is to have children with me.
As soon as I learned my wife was attempting to pressure me to have my vasectomy reversed, I left her. We have not lived together for more than two years. Do I qualify for an annulment?
N.B. in Hemet
In order to qualify for an annulment, you must have married your wife upon a mistaken belief that goes to the heart of the marriage. You must also take steps to end the marriage within a reasonable time after learning the truth. It sounds like you qualify to have your marriage annulled based upon fraud.
A disagreement about children certainly goes to the heart of a marriage. There is nothing more fundamental than a couple's choice to reproduce. You do not want children and your wife does. Your wife misrepresented her desire to have children before your marriage. She told you that she was okay with never having children with you and you married her only after this representation. However, once you were married, your wife told you that she secretly desired to have children all along, and even refused to have sex with you unless you agreed to have your vasectomy reversed. Finally, as soon as you discovered that your wife mislead you and was attempting to force you to have children, you left her. Although you still have not filed any legal documents to end your marriage, you separated from her within a reasonable amount of time and the court will likely grant your annulment.
Famularo & Associates
My husband and I have been married for almost eight years, and we are now in the process of getting a divorce. While we were married, we bought a house together. My husband used money he inherited from his mother to put a $50,000.00 downpayment on our home. We purchased the house four years ago for $500,000.00. Unfortunately, the housing market has since crashed and there is no longer any equity. I do not believe the house is even worth $350,000.00 today, and we still owe $450,000.00 on the home.
We purchase the house in both our names. Now, my husband says that since the downpayment came from an inheritance, I owe him half of the downpayment. Is this true?
D.B. in Wildomar
What your husband is referring to is something called a 2640 reimbursement. The name comes from Section 2640 of the California Family Code. A spouse who uses separate property to purchase a community property asset is entitled to have his or her separate property downpayment repaid during a divorce. Since your husband acquired the $50,000.00 from an inheritance, which is not the result of either spouse's time, effort or skill, the $50,000.00 would be characterized as separate property. However, there are several limitations to being reimbursed under this law.
First, your husband would have to prove through written documentation that the $50,000.00 was acquired through inheritance. This is called tracing. He could do this by producing a will, a copy of a court order, bank statements reflecting the transfer of the money, or any combination of documents which show the money was an inheritance. On the other hand, if you admitted the downpayment came from an inheritance, no tracing is required.
Second, your husband is not entitled to any interest on the money. He is entitled to be repaid the principal on the downpayment, and no more. If your husband used some of his inheritance money to pay the homeowner's insurance or property taxes, he is not entitled to have that money repaid. The answer is more complicated if he used his separate property to make improvements or pay the mortgage payment.
Finally, recovery of the $50,000.00 comes off the top of any equity in the home, and repayment of the $50,000.00 is limited to there actually being equity in your house. Since you owe more money on your house than it is worth, there is no equity from which the $50,000.00 may be repaid. Therefore, your husband will not be able to recover his downpayment from your home.
If, on the other hand, the two of you had $100,000.00 in equity in your home, the 2640 reimbursement would work as follows: your husband would be reimbursed for his separate property downpayment by receiving the first $50,000.00 in equity. Any remaining monies would be divided equally. Thus, your husband would not only receive his $50,000.00 downpayment, but also one-half of the remaining equity, for a total of $75,000.00, while you would receive $25,000.00.
Famularo & Associates
Friday, September 26, 2008
My husband and I live in Murrieta. We will be married for a year this month. It just seems my husband only wanted me for his green card process. We have no kids and no joint property. He does not work and during the immigration process, I promised to support him. I am worried about him requesting spousal support. Can I file for an annulment, or do I have to file for divorce? If I must file a divorce action, can he get spousal support from me?
T.F. in Murrieta
Since your husband only married you to obtain a green card, the court will grant you an annulment based upon fraud. Once the annulment is granted, your husband will not be able to collect spousal support from you. The paperwork you signed at the immigration office does not apply to situations like yours; your husband commited fraud in order to obtain his green card. You need not worry about any negative consequences from the immigration department after your separate from your husband.
In divorce situations, spousal support is normally paid for one-half the length of the marriage if one spouse is unable to support himself or herself. However, in very short marriages, such as yours, the court has the discretion to deny a request for spousal support altogether. However, if you file for an annulment, your husband will not be able to receive spousal support under any circumstances.
Famularo & Associates in Temecula
Wednesday, September 24, 2008
I have a daughter who is almost 16 (December) and is frustrated with the visitation schedule currently in place between her father and I. She would like more say in how often she is required to see him if possible. The current agreement has been in place for approx. 4 years with the following basics: Father on 1st, 3rd, 5th weekends, one week at winter and spring break, plus 3 total weeks (in a one week and a two week time spread). This equals approx. a 25% / 75% split.
My issue is can my daughter get a job that would most likely require her to work weekends and summers in the future. She is also very involved in high school activities that require after school and weekend participation. I have and will continue to have to switch my 2nd and 4th weekends with her father if she has activities on his 1st, 3rd or 5th weekend as he often refuses to allow her to participate unless I agree to a switch of time.
Do I have any potential to get visitation revised now that my daughter is older and wishes to be involved with school, and soon a job? Her father is inflexible to changes as I have tried to discuss this matter in the past. I want my daughter to have a great relationship with her father and am not looking to stop visitation, just modify it. Our original divorce and visitation occurred in San Diego and finalized April 1999, along with the revision 4+ years ago, with the provision that I have physical custody of my daughter in Riverside County. Please let me know if you have any insight.
R.A. in Riverside
Your daughter is of an age that her desires carry great weight with the court. Once a child is of sufficient age and maturity, the court will listen to the wishes of the child. Since your daughter is nearly 16 years old and in high school, I honestly would not spend the money to go back to court. At this point in her life, she is old enough to take control of her own relationship with her father. She should dictate when she sees him, not you and not him.
I would tell your daughter that she is now a young adult and you will no longer force her to go to her father's house. You should require her tomake plans directly with her father. Encourage her to see her during her free time, but let her know it is okayto have a life outside of her parents. She will have to be the one to tell her father she is busy, though.If her father asks, tell him that he needs to start making plans with his daughter directly, but that she is a busy, normal teenager, who doesn't want to be with either one of you and it is time for him to work around her schedule, not the other way around.
If her father will not honor your daughter's wishes, and causes trouble for your daughter by physically attempting to force her to visit, or calling the police and embarrassing your daughter, you will have no choice but to file paperwork with the court requesting a modification of visitation. Since your divorce took place in San Diego, you will have to file your court papers in San Diego, even if you are currently living in Riverside.
Famularo & Associates
My divorce was recently final. Included in the terms of the divorce judgment was the provision that I did not have to pay child support. Can my ex-wife ever get child support against me in the future? Is there any way to protect myself if she does?
The short answer to your question is, your ex-wfie can get child support against you in the future, if she files the proper documentation with the court requesting support.
The court always has continuing jurisdiction (power) to award your ex-wife child support. It is not something the two of you can agree not to pursue in the future. If your ex-wife promised today never to sue you for child support, but then changed her mind tomorrow, the court would award her child support.
The reasoning is that child support is for the child, and a parent does not have the right to refuse something which will benefit the child. The good news is that for every day your ex does not request child support, you will not owe that support payment in the future. Put another way, for every day your ex-wife does not file court documents requesting child support from you, you will not owe her any money. Your ex cannot recover money for any period of time before she files formal documents with the court requesting the court to award her child support.
If you want to know how to protect yourself from paying a high child support award, see your children as much as possible. Child support is linked to visitation, so the more time you spend with your children, the less child support you will pay.
Thursday, September 18, 2008
My father-in-law has an attorney and has been trying to finalize his divorce for the past two years. Last week he went to court and the intentions were to get his wife to agree to a sale price for their home. Instead she offered to buy him out. He didn't accept because the offer was about $20,000.00 lower than he would receive if they put the house up for sale. My father-in-law can't get his wife to agree on anything and he would even be willing to take the lower amount if she would agree to waive spousal support and to not touch his retirement. Is this possible to do?
My father-in-law is filing bankruptcy tomorrow and is barely getting by financially. He needs to sell the house so he can move on. They have had three offers in the past year, but they have lost every sale because his wife won't respond to the offers in time. The first offer a year ago would have given them around $50k more each. She also has the family pictures and will not part with them. My husband would like his childhood pictures and she won't give them to him. Is there any way to get them legally?
-CS in Temecula
It sounds like your father-in-law has multiple issues he is dealing with in this divorce. First of all, your father-in-law needs to get his lawyer to request a trial date if his attorney has not already done so. Riverside county is one of the fastest growing counties in the nation, and, as a result, there are not enough judges to hear all the cases in this county. If a divorcing couple cannot resolve the terms of their divorce on their own, they must wait many months for a trial date. There are only ever two ways to resolve a divorce action: either the parties settle or they litigate. This case will have to be litigated, which means waiting for that trial date.
In the meantime, the real estate market is falling. An asset such as a house will be valued at time of trial. So, even though the house was worth an additional $50,000.00 a year ago, the value of the house will be calculated on the day of the court trial, unless your father-in-law requests an "alternate valuation date." Your father-in-law can make a motion claiming that he and his wife had the ability to sell the house for more money a year ago, but his wife refused to cooperate with the sale of the house. If your father-in-law can show that he lost money as a result of his wife's failure to cooperate in the sale of the home, the court can force his wife to buy him out of the house at the higher amount.
When your father-in-law decides whether he should allow his wife to buy him out of the home or list the house for sale, he must keep in mind that if he sells the house on the open market he will have to pay realtor fees and escrow costs. If his wife buys the house from him instead, she must pay to him his full share of the equity. His wife cannot deduct realtor fees or escrow costs from the purchase price just because the parties would have had to pay that money if the house was sold to a third party.
You ask whether your father-in-law and his wife can agree that he will not pay spousal support or that she will not touch his retirement. The answer is, "yes." The parties can, among themselves, agree to almost anything. The court will not interfere with the parties' agreement unless it is against public policy or the parties cannot reach an agreement by themselves. Even though the law may require your father-in-law to pay his wife spousal support and give her half of the community interest in his retirement (one-half of the amount he earned in retirement monies during the marriage), if the two of them agree to something else, the court will not interfere with that agreement.
If the wife requests spousal support and will not agree to waive her right to receive it, the court must determine whether she is entitled to receive spousal support by examining a number of factors. The two most important are your father-in-law's ability to pay spousal support, and his wife's financial need. If your father-in-law filed bankruptcy, it may indicate his inability to pay support.
When a spouse separates in anticipation of a divorce, it is always smart to take all precious and irreplaceable items with him or her. Otherwise, that spouse runs a huge risk the items will never be returned. As for your husband's childhood photographs, the court will certainly order the wife to return those irreplaceable items to the family. Unfortunately, things have a way of getting "lost" or "stolen," or of even never existing in the first place. If the wife has not already returned those items to your husband on her own, chances are she has not done so out of spite. She will probably deny she has any pictures if she is asked. Your father-in-law should have his lawyer ask for them back, however, if she claims she does not have them, the photos will be nearly impossible to recover.
-- Famularo & Associates
Thursday, May 15, 2008
Is there an age at which a child's wishes are considered in a custody dispute? I have a 16 year old daughter, and for the past several years since my divorce she has lived with me 99% of the time. My daughter sees her dad several times a week after school and on weekends. She spends an occasional night at his home. She is a well adjusted, straight A student and an all around good kid. She is very happy with the current custody arrangement.
My ex has recently begun threatening to take me to court for more time with our daughter. She does not want her current arrangement to change. If my ex takes me back to court for more time, will the judge consider my child's wishes? My daughter has tried to talk to her Dad, but he isn't listening. She is very upset over this and she insists that I fight and says she is prepared to say how she feels to a judge. . .
I hope she doesn't have to, but if she does, will the court listen?
California law requires the courts to take into consideration a child's wishes in a custody dispute, so long as that child is "of sufficient age and maturity." Gernerally speaking, courts interpret this to mean that achild should have some say in where they will beginning around age 13. However, your daughter has nearly reached adulthood, and is unusually mature. She is also a good student. Because of this, your daughter's wishes will be given greater weight.
Although the law favors frequent and continuing contact with both parents, the courts general concern is stability and continuity for your daughter. The courts do not want to "rock the boat," so to speak. Your daughter does see her father, anyway, and it sounds like they have a good relationship, just on your daughter's terms. If this case was to go to court, the judge would order your daughter to be interviewed by a trained court professional, so that she could be given the opportunity to explain her reasons for not wanting to change the schedule. This would also give the court the ability to assess whether your daughter was being pressured by either parent to take a certain position about visitation. Once the court was convinced your daughter was doing well; mature enough to have some imput in her life; and that your daughter was satisfied your daughter was happy with the current arrangement, the court would not change the current visitation schedule.
Don't worry, Mom, everything is going to be okay!!
-- Famularo & Associates
Thursday, May 8, 2008
I do not want a divorce, by my wife does. We are still living in the same house, but my wife promises that she is going to file for divorce soon. I want to try to work on our marriage, and I have begged my wife to go to marriage counseling with me. My question is: how can I protect myself in case my wife files for divorce without actually having to get a lawyer?
--G.T. in Temecula
If your wife wants to get a divorce, you cannot stop her from obtaining one. In California, anyone can obtain a divorce for any reason, even if one spouse does not want one. This is the concept of a "no fault" state. This does not mean that you should be the first to file for divorce if you do not want one. You should not help your wife dissolve your marriage being the one to pursue the divorce. However, if your wife does decide to file for divorce, you should take some simple precautions to make sure you are prepared.
Namely, you need to separate your finances from your wife's to protect your assets in a divorce. You need to make sure you obtain a separate bank account, and begin depositing all your paychecks in the new account. You should cancel all joint credit cards and open up new ones in your name only. Also, separate your cell phone plans, your car insurance policies, and any other joint accounts that you might have.
Make sure that you begin gathering financial information. Keep copies of your income tax returns, your spouse's W-2 forms, monthly statements, retirement accounts, bank accounts, loan information, insurance policies, and other important documents in a safe place. You will need this information if you do actually end up getting divorced.
Unless there is domestic violence in your relationship or you are afraid of being falsely accused of domestic violence, you should not move out of the family residence. Let your spouse be the one to move out of the house if she is the one determined to get the divorce. This is especially important if you and your spouse have minor children together.
Finally, if you do have children and your spouse is intending to move out of the house with the children, make sure that you have a satisfactory custody and visitation schedule.
The general rule is that the person who wants the divorce should be the one to file. However, there is one exception to this rule. If you and your spouse have children together and your wife is denying you visitation or intends to move away with your children, you will need to file for divorce immediately.
Many people believe that the person who files for divorce has a legal advantage over the other spouse. This is not true. If you choose to take these simple precautions, you will be in a favorable legal position if your wife does, indeed, decide to separate or file for divorce.
-- Famularo & Associates
Tuesday, April 22, 2008
My husband and I separated two years ago. Approximately one year ago, I filed for divorce. My husband never filed any court documents, but my divorce is still not final. We do not own anything, all the debts have been paid off, and all we have is one daughter, who he never sees. Hos much longer do I have to wait until my divorce is final? I was told the divorce would be final after six months, but it has already been way longer than that.
A divorce in California requires a waiting period of six months. This simply means that six months from when your husband was served with the divorce papers you will qualify to obtain a divorce. However, the divorce does not happen automatically. It is up to you to move your case along by filing the proper paperwork at the proper stage of the proceeding.
Although you indicate that you have filed a divorce, you do not indicate whether your husband was ever served. If he was not, you need to serve him. The waiting period does not even begin to run until your husband is personally served with the divorce proceedings.
After your husband is served, you must file a proof of service with the courthouse. Your husband will have 30 days to file a Response with the court once he has been served with the divorce lawsuit. If your husband has been served and has not filed a Response, the next step is to take his default. This is simply a paper filed with the court that informs the judge that your husband will not be participating in the court proceedings.
Once the default is filed, you may obtain a divorce judgment. This is filed in court and once it is signed the terms of your divorce will become final. Since your husband will not be participating in the court proceedings, you may ask for whatever orders you desire, including sole custody of your child and child support. It is highly likely the court will make those requests the terms of the final order.
--Famularo & Associates
Thursday, April 17, 2008
I live in California, but I married my wife in Las Vegas a month ago and I have found out that she is already cheating on me. We only knew each other only six weeks before we got married. On a whim, after a whole day of drinking, we got married. I have regretted the marriage ever since and want out. I heard that I can get my marriage annulled because we were together for less than six months? Is this true? Can I get my marriage annulled or do I have to file for divorce? Also, even though I was married in Vegas, can I file here?
First of all, since you and your wife are both residents of California, you must file here even if you were married outside of this state.
Many people believe there is a time limit on how long a couple can be married before they will no longer qualify for an annulment. This is a myth. There are a number of reasons that a couple will qualify for an annulment, some of them require you to file within a "reasonable" amount of time; while other grounds for annulment have no time limitation. The law has no set timeframe that allows a couple to either file for an annulment or not, and simply being married for a short period of time is not sufficient grounds. Instead, the court will look at the specific set of facts surrounding your marriage before it makes a decision as to whether a couple qualifies for an annulment.
In your case, it sounds like you will qualify to have your marriage annulled due to "incapacity." Incapacity simply means that you were unable to make a reasoned decision to enter into the marriage because you were under the influence of a controlled substance when you made the decision to do so.
In order to obtain an annulment, even if both you and your spouse wants one, there must be a court trial. This requires one spouse to testify in court about the facts which qualifies you for an annulment. For this reason, an annulment is usually too expensive to be practical.
Since you and your spouse were only married for one month, perhaps the better solution is to file for a summary dissolution. A summary dissolution is a simplified uncontested divorce proceeding. Not everyone qualifies for this form of divorce as there are strict filing requirements: your marriage date must have been less than five years prior to the filing of the divorce; you cannot own any real estate; you must have no children together; you can only have minimal assets and debts together; and you both must cooperate in the filing of the paperwork.
Although there is a six month waiting period for a summary dissolution (just as in a regular divorce), the process is very simple, and it is designed for a non-attorney to be able to file without help. The only legal advantage to filing an annulment is that it can be completed in less than six months (there is no waiting period).
Although legally, an annulment means that the marriage never happened, the proceeding will still be part of the public record. Thus, even if you have your marriage annulled, the fact that you were married will not be secret, and anyone will be able to get a copy of your annulment paperwork from the court just as though you had filed for divorce. Since the process for a summary dissolution is so much cheaper and easier, you might want to consider filing a simplified divorce proceeding, instead.
--Famularo & Associates
Tuesday, April 8, 2008
I am a mother of two children whose divorce was final last year. Their father has no visitation with the kids, because he is too busy with his new life. I have a court order that he is supposed to pay me child support, but he either pays me late, or not at all. Is there any way that I can force him to pay his child support automatically without having to beg him for the money every month? My divorce was in San Diego county, but I now live in Riverside County? Does this make any difference? Do I have to take him back to court to get my money?
If you already have an order for child support, you do not need to go back to courts to get his to pay you. What you need to do is collect the child support you are already owed- both the past due support and future child support. To collect future support, all you need to do is file a wage assignment with the court (it does not require a court appearance, it only requires you to prepare and submit a form to the court for its signature), and then serve it on your ex-husband's employer. The employer must then pay you your child support before your ex-husband gets paid. Collecting the past due child support is a little more complicated and requires the help of a family law lawyer. By the way, because your case was originally filed in San Diego county, you will always return to the same courthouse in that county should you ever need to return to court.
-Famularo & Associates
Wednesday, April 2, 2008
I want to get a divorce and have been separated many years. I want to get remarried. I know there is a waiting period of six months. Is there any way to avoid the waiting period? Can the judge waive the waiting period so that I can speed up the divorce?
The waiting period for a divorce in California is "jurisdictional." This means that the court does not have the power to grant you a divorce unless the waiting period has expired. Even though you have been separated for many years, the waiting period has not even begun to run. The waiting period only begins once the divorce paperwork has been filed and your spouse has been properly served. Once the divorce paperwork is filed and served, you will be eligible to become divorced six months from then.
-Famularo & Associates
Tuesday, April 1, 2008
My husband and I have a judgment for legal separation. I no longer want to remain married to him, and want to get a divorce. How do I turn my judgment for legal separation into a divorce?
A legal separation in the state of California is similar to a divorce in that it is a court action which alters a parties' legal relationship. A lawsuit for legal separation includes orders for child custody, child support, visitation, spousal support, division of property and division of debts. All of the same orders in a divorce are made in a legal separation, except at the end of the lawsuit the parties are not divorced. All property and all debts accumulated after the date of separation are not shared by the parties, but are owned solely by the party who accumulated that asset or debt.
After a judgment for legal separation has been entered, you can still obtain a divorce. However, that divorce judgment is obtained depends on the terms of the legal separation. If the judgment for legal separation specifically reserves jurisdiction over the status of your marriage, you can simply file a motion to terminate your marital status and submit a divorce judgment to the court. If, however, status was not reserved in the judgment for legal separation, you must file a whole new divorce action. The new divorce action will be for status only, and you will not have to relitigate the terms of the legal separation. Thus, all orders made in the judgment for legal separation will not be affected by the filing of a request for a status only divorce.
Friday, March 28, 2008
I just married my husband a month ago. We did not have a prenuptial agreement. I had intended to enter into a contract with my husband before marriage which stated that whatever money he borrowed during the marriage was his sole and separate obligation and I would not be responsible for the debt. I still want to enter into some type of agreement, but I do not know if it is too late. I also hope to buy a house in the near future. My husband does not work, so I do not think it is fair for the house to become community property. Is there anything I can do to keep our assets and debts separate in the event we divorce?
--H.L. in Murrieta
According to California community property laws, all assets and debts accumulated during the marriage are divided equally unless the parties agree to a different arrangement. It sounds like you desire to enter into an arrangement with your husband whereby any and all assets and debts acquired in his name remain his sole and separate property, and any assets and debts acquired in your name remain your sole and separate property.
This agreement can be entered into at any time, even after the parties marry. If the agreement is entered before a marriage, it is called a prenuptial agreement. If the arrangement is made after the parties are already married, it is called a post nuptial agreement.
If you and your spouse both agree that all assets and debts acquired in each of your names should be your sole and separate property, then you need to put that agreement in writing. Make sure you clearly spell out the intention that any debts in your husband's name are his sole and separate obligation and any debts in your name are your sole and separate obligation- even if they are incurred during the marriage. Make sure you also specifically state that any assets accumulated in your husband's name only are his sole and separate property, and any assets accumulated in your name only are your sole and separate property. Your best bet is to hire an attorney to draft the agreement if you want to make sure it will be enforced in divorce court.
Famularo & Associates
Thursday, March 27, 2008
My millionaire husband used fraud, perjury and intimidation to keep all of our community property and to dispose of me during our divorce in 1992. After a ten year marriage, I only got $35,000. My husband also got custody of our young children, our co-owned two million dollar Malibu mansion, all of the cars and kept his millions. He tried to kill me twice. When his brother tried to help me legally, he threatened to have his brother's wife and children killed. My first, second, and third attorney all quit suddenly.
I was a victim of domestic violence during our marriage. I suffered three concussions and damage to my spine. My husband began bringing various young women home with him, ignoring my presence. My husband would often come home late, very drunk and would grab me by the hair, throw me down to the floor and start kicking me in the spine. I sought help shortly after our divorce and was diagnosed with post traumatic stress disorder.
I cannot understand how the divorce court failed me. Now, I want to expose him for what he is and claim all the money I should have received during the original divorce. I heard that I can file for a modification of the original divorce judgment. Is this true?
Unfortunately, you have waited too long to be able to change the terms of your original divorce judgment. Your divorce was final nearly sixteen years ago, and no divorce court will reopen the terms of your divorce settlement after all those years. It is true that everything your husband earned all those years ago would have been community property and you would have been entitled to it. Also, since your marriage was more than ten years, it was a "lengthy" one, making it likely that you would have also received some sort of spousal support.
Normally a divorce judgment cannot be set aside if it is more than six months old, and in extreme cases it can be set aside for up to two years. Your divorce has been final for sixteen years now. California has a strong public policy that once a judgment is entered, it should be final. Courts discourage parties from trying to go back and relitigate a judgment years later.
Too much time has gone by. It is time to put the past behind you. Be glad that you are no longer married to that man, and concentrate on starting over.
My wife left me for another man approximately two years ago and I haven't had contact with her since, nor do I know where she is living. I have been paying her credit card bills all of this time because I don't want my credit to be damaged by her not paying them. Am I responsible to pay them if she doesn't? I am not a co-signer on the cards nor are they joint accounts.
Also, we own a house in joint tenancy. Can I still file for divorce without knowing her whereabouts?
J.L. in Temecula
Yes. You can file for a divorce even if you do not know the current whereabouts of your spouse. In order to finalize your divorce, you will have to serve the divorce by publishing the summons. You must tell the judge what efforts you have made to locate your spouse in order to get an order for publication. Once you serve your wife by publication, you can then take her default and then get a divorce judgment entered without her participation in the court proceedings.
If your wife has credit card debt in her name only, your credit will not be damaged if your wife does not pay her debt. Do not worry that something bad will happen to you if the debt is not kept current.
If you and your wife own a house together and you cannot find your spouse, it is highly likely the court will award you the house in the divorce as your sole and separate property.
Tuesday, March 25, 2008
-JL in Santa Rosa
Your marriage is invalid if your husband was married to someone else while married to you. This is called bigamy and means you were never properly married. While bigamy is a crime in the state of California, it is rarely prosecuted.
More importantly, your marriage is void and you need to file an annulment. You, however, are what is called a "putative wife." This means that because you attempted to marry your husband in good faith, you are still entitled to one-half of any property aquired during the marriage, and you are still entitled to spousal support if you need it. You should contact a family law attorney in your area!
-- Famularo & Associates