Friday, September 26, 2008

Qualifying for an Annulment

Dear Famularo & Associates:

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

Dear T.F.
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

Visitation and Teenagers

Dear Famularo & Associates:

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

Dear R.A:

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

Child Support Agreements

Dear 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?

Dear S.T.:
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

Dividing a House

Dear Famularo & Associates:

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

Dear CS:

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