All Posts By

Kathy Minella

social-media

FAQ: How Does Social Media Affect My Divorce

By | Divorce | No Comments

Facebook, Twitter, Instagram, and Pinterest. Social media accounts offer others a fun and interesting window into your world. But if you’re going through a divorce, social media posts can have serious implications and consequences, doing more harm than good. They can adversely affect a wide range of issues: custody disputes, division of property, and spousal or child support decisions. Suddenly, what was once an enjoyable way to pass the time becomes a challenge to be overcome in court.

Social Media’s Impact on Divorce Issues

Keeping secrets in the information age is no easy task. California law allows for the discovery of information that is “not privileged” and is “reasonably calculated” to lead to discoverable evidence. What that means is that, even if you have restricted the privacy settings on your social media accounts, the court may still allow certain posts to be used for or against you. Here’s how you can be affected:

  • Child Custody and Support Proceedings. If your divorce involves issues of child custody and support, you should take extreme care in what you post. Even if they are otherwise innocent, posts referencing alcohol or drug use, brand new cars or homes, trips, dating stories, and new relationships can all affect custodial and support awards. Think twice or thrice before you post to a social media site. If there’s a chance a post could have a negative impact, it’s probably best to not post.
  • Divorce Proceedings. More than 80% of divorce attorneys nationwide have used social media as a valuable tool for collecting evidence to present to the court. And as long as requests can be argued to appear reasonably calculated to lead to the discovery of admissible evidence, courts have allowed them. What can you do? Act as if every social media post – or any other electronic communication like email – can and will be used against you in court. And keep in mind that friends you and your former spouse shared during the marriage may be alerting him or her to posts (or even private messages) you make or send.
  • Restraining and Protective Orders. If you have a restraining or protective order in place, commenting on, liking, or tagging your former spouse may be enough to violate the order. Courts are more frequently viewing social media speech the same way they do “live” conversations. Be incredibly careful in what you post.

Visitation Rights.

Social media and technology is not all bad news for your divorce. For divorced parents living a distance from each other, it can allow children to engage in ordered visitation schedules. Webcams and video chats allow for virtual visits and some states have passed specific laws that allow electronic communication to supplement face-to-face visitations.

Learn More

Many spouses going through a divorce freely text, email and update their status without considering the strategic risks and dangers that come along with these types of electronic communications. Before you post your next social media update or hit that send button, stop and think about the effect it might have on your divorce proceedings. An experienced California family law attorney can explain more about the implications of using social media during your divorce. While it may be an important part of your life, you may ultimately decide it’s best to stay off social media while your case is pending.

file-order

Must Ask Questions Before Filing a Restraining Order

By | Domestic Violence Restraining Orders | No Comments

Divorce often brings to light significant difficulties that may be happening in a marriage, especially abuse. If you find yourself in an abusive situation, a divorce restraining order can literally save your life. The State of California takes requests for domestic violence restraining orders very seriously, as they can be used to:

• Prevent individuals from keeping a gun or ammunition.
• Prevent an abusive partner from going near you and/or others.
• Require the restrained party to obey child support and custody instructions.
• Order the restrained party to move out of a residence.

Should You Obtain a Divorce Restraining Order?

California law defines abuse as any act that puts you, your children, or another person in immediate fear of injury, as well as any act that causes harm to you or your property. If such harm exists, you can file a request for an order to keep the abuser away. Divorce-related restraining orders work differently than those in other situations, as you may file the request through your existing family law case.

A qualified family law attorney can help you fill out and file your restraining order paperwork. The forms are also available on the California Courts website. Depending on your circumstances, you may need to fill out several different forms. Here are the questions you need to consider before filing for a restraining order.

Are you asking for protection for other family or household members?

Has the person made threats against people other than you? The court may grant a restraining order that includes other “protected persons.” If you believe the person you are asking to be restrained could harm someone else related to or living with you, that information should be included in your request.

What is your relationship to the person you’re seeking protection from?

To qualify for a domestic violence restraining order, you and the person you want to restrain must be at least one of the following: 

  • Married or registered domestic partners.
  • Divorced or separated.
  • Dating or previously dated.
  • Currently or previously living together.
  • Parents together of a child.
  • Closely related, such as a parent, child, sister, brother, grandfather, grandmother, or in-law through a current marriage.

What type of order(s) are you asking for?

There are several requests you can make of the court, including personal conduct orders, stay-away orders or move-out orders. You may also ask the court to grant you the right to record communications between you and the other person, ask for sole possession of a pet, and request that the person be ordered to sell, or otherwise give up any guns or firearms in his or her possession.

Speak with an Attorney

An experienced family law attorney can help you file your request for restraining order. The court takes one day to determine if you should be granted a temporary restraining order, which is valid for up to three weeks. It then sets a date within those three weeks for a hearing on your permanent restraining order. An attorney can also help you compile evidence for that hearing, including police reports, medical records, photographs, and emails. Witnesses may also be called.

After the evidence is presented, the court will decide whether to issue a permanent restraining order. If issued, a permanent restraining order can be in effect for up to five years, at which time you may request the court to renew it. A restraining order has huge legal, financial, and emotional ramifications for the party it is issued against. It should not be taken lightly and should only be considered if the circumstances absolutely warrant it.

alimony

FAQ: Are There Ways To Reduce Alimony?

By | Divorce | No Comments

California family law courts order spousal support to ensure that the standard of living experienced during the marriage is maintained to a reasonable extent after the divorce. Regardless of what you may have heard, that doesn’t mean that spousal support is fixed for life. In fact, California law does not favor indefinite spousal support, or alimony. If you or your spouse were awarded spousal support in your divorce, it is possible to have that support reduced.

Ways to Reduce Spousal Support After Divorce

Unless the conditions under which spousal support can be reduced or terminated are specifically addressed in your divorce agreement or court order, the paying spouse can request the court to order a reduction. There are three main steps in determining whether you’re entitled to a reduction.

1. Analyze the Spousal Support Order. There are no shortcuts to winning a spousal support reduction, and it isn’t enough to ask the court for one because you think it’s called for. Make sure you fully understand what the original order calls for. Check what, if any, provisions for modification or non-modifiability are outlined in it.

2. Analyze Your Former Spouse’s Change of Circumstances. One of the top reasons for a reduction in spousal support is the changing circumstances of one or both parties. What does that mean? Simply put, it’s the reason you believe a reduction is justified. Common changes in circumstances include:

• The paying spouse’s income has decreased since the spousal support was ordered.

• The receiving spouse’s income has significantly increased since support was ordered.

• The receiving spouse is now living with another partner. Sharing a home with a roommate, no matter what gender, does not qualify.

3. Prove Your Claim Through Evidence. Once you understand your original spousal support order, and you’ve identified any changing circumstances, you’ll need to produce evidence to the court that backs up your request for reduction. This can be in the form of financial documents, written declarations, oral testimony, or a combination of all three.

What the Court Considers

The court contemplates several factors when deciding whether a reduction is justified. Illness, unemployment, and remarriage are all causes for consideration. So, too, are a party’s age and physical and emotional condition. Keep in mind that the courts do not look kindly on those who voluntarily leave a job or seek a lower paying one simply to avoid paying the ordered support.

A reduction in spousal support can often be more difficult and complicated than obtaining the original order. That’s because in post-judgment divorce orders, the family court has certain conditions for modification and must use a complex evaluation, not a computer program, for determining if a change is warranted

An experienced California family law attorney can help you evaluate your current order and advise whether a request for reduction is proper. If you’re facing a spousal support modification request and want to oppose it, an attorney can tell you whether the request for modification is justified and help you oppose it if necessary.

dissolution

Do I Qualify For Summary Dissolution

By | Divorce | No Comments

Dissolution is the official term for divorce in California. There are two ways you can obtain a dissolution in California: standard, which is the most common form of divorce, and summary, which is a shortened version of the divorce process. Not everyone can use summary dissolution to end their marriage as there are very specific requirements that must be met for the court to approve your divorce.

Who Qualifies for a Summary Dissolution?

There are strict eligibility guidelines for a California summary dissolution and all of them must be met to proceed. In addition to those listed above, it is required that:

  • At least one of you has lived in California for at least 6 months, and in your county for at least 3 months before filing the petition.
  • Both of you must agree to summary dissolution and the grounds of irreconcilable differences.
  • Neither of you may own real estate or hold a lease with an option to purchase.
  • Neither of you has more than $40,000 in separate, or non-community, property.
  • Neither of you has incurred more than $6,000 in debt, excluding car loans, since the date of marriage.

Both of you must also read and sign a summary dissolution booklet that is provided by the state. The booklet explains the entire process and contains helpful worksheets for dividing assets.

How to Obtain a Summary Dissolution

There is less paperwork required for a summary dissolution than there is for a regular one, but you must file with the superior court clerk a Joint Petition for Summary Dissolution that includes a property settlement agreement. A Judgment of Dissolution and Notice of Entry of Judgment must also be prepared. Six months after filing, your divorce will be final. You do not have to appear in court and afterwards you are free to remarry. At any time during those six months either you or your spouse can stop the summary dissolution process.

If you are looking for a fast resolution to your marriage, summary dissolutions can be the right option for you as long as you meet the necessary requirements. To learn more about whether you may qualify, or for help in starting the process, talk to a qualified California family law attorney.

clock-with-hands

5 Unintentional Ways to Prolong a Divorce

By | Divorce | No Comments

One of the most common questions family law attorneys hear is “Why is my divorce taking so long?” The answer is, it depends. Even if you and your spouse believe you’re being cooperative and prompt, you may be unintentionally doing things that are prolonging the process. There are a number of reasons your divorce can drag out. Often, no one person is to blame and it’s a combination of factors causing the delay. 

Here are some reasons your divorce can carry on too long: 

1. Listening to Advice from the Wrong People. Your friends and family are a good source of support during your divorce, but taking their advice on how to handle it is almost never a good idea. If they tell you things like “my friend took her husband for everything he had,” or “don’t settle for less than the house and the pension,” they may be unintentionally setting you up for digging in your heels over what you “deserve.” No two divorce cases are the same, and much of what goes on is mandated by California law. It’s best to seek the advice of a competent family law attorney who will help you set realistic expectations.

2. Misinterpreting What Your Attorney Says. Like listening to advice from family and friends, you may interpret what your attorney tells you as a guarantee of how your divorce will go. Divorce attorneys gather all relevant information about your marriage and then, based on their experience, give you a general assessment of what may happen. Divorce is an emotional time and you may have the tendency to hear only what you want to hear. If you’re convinced your divorce can only go the way you think it should, you could end up with a financially and emotionally draining litigation on your hands.

3. Keeping Secrets from Your Attorney. Your attorney is there to help guide you through a stressful time, but needs your cooperation to do so. If you’re afraid that disclosing something to your attorney – say a hidden bank account – will work against you, you’re right, but not in the way you think. If your spouse finds out about the account before the divorce is final, you destroy your credibility with your attorney and the court. You also suffer financially, as your lawyer must work double time to try and make the most of a bad situation. Honesty is the best policy.

4. Involving Children Too Soon. The ideal way to handle discussing the divorce with your children is to come up with a plan together beforehand. If one parent tells the children without the other, the children may feel forced to take sides. The slighted parent may unconsciously become combative due to feelings of resentment. Most divorcing parents can amicably work out a compromise regarding child custody and support issues. You increase your chances of a friendly agreement if you’re both willing to work together and do what’s best for your children.

5. Believing that Feelings are Facts. Try not to let your emotions get the best of you. Divorces have a way of bringing out all the emotional triggers of a marriage. Couples can argue about assets, bills, custody schedules, or document requests. Is your spouse really being unreasonable, or do you just refuse to give in to his or her demands? A divorce is a legal process, but letting your emotions rule can have long-term effects on your family’s future.

The best divorce is one that is settled quickly and fairly. An experienced and qualified California family law attorney can help you stay on track and avoid any unnecessary delays.

faq-sign

Spousal Support FAQ’s

By | Family Law Blog | No Comments

Spousal support can become one of the most complex aspects of your California divorce. California family law recognizes that, in many marriages, one spouse has a higher earning capacity than the other. And in many families, one spouse – more often the wife – remains out of the workforce to care for the couple’s children. Of course, there are marriages where the wife has the higher income. The law addresses this imbalance by allowing courts to order one spouse to pay spousal support to the other spouse.

Spousal Support FAQs

  1. What is spousal support, and why should I care about it?

Spousal support is the legal term used for the payments one spouse makes to the other after a divorce. It’s intended to help maintain the former spouse’s standard of living during the marriage. When one spouse has either been out of the workforce for an extended time, or lacks the skills to quickly attain a well-paying position, the court awards spousal support to bridge the gap between the divorce and the time it takes for the person to obtain employment that will meet their costs of living needs. For the person paying support, it is often the largest financial duty incurred as part of the divorce. For the person receiving it, it is often a lifeline that helps them get back on their feet.

2. How is the amount of spousal support determined?

When your case is first filed, the court can make what’s called a temporary order for spousal support. These payments tend to follow a simple formula: take 40% of the higher earner’s income and deduct 50% of the lower earner’s income. At the end of your divorce, the court determines if one spouse is entitled to long or short term spousal support. In these cases, California’s Family Code requires the court to take a much more holistic approach and consider factors that include:

  • The marital standard of living.
  • Each spouse’s current income
  • The extent to which the earning ability of the spouse requesting support was harmed by being out of the workforce.
  • The assets, debts, and needs of each spouse.
  • The length of the marriage.

3. What is the 10-year rule?

Under California Family Code Section 4336, marriages of over 10 years are considered of “long duration.” In these cases, the law prohibits the court from setting a definite termination date for spousal support at the time it is ordered. While the court can find that a marriage of less than 10 years also qualifies as a marriage of long duration, spousal support in these instances is typically paid over a period that is equal to half the length of the marriage.

4. Does child support affect spousal support?

California law is clear that the most significant obligation owed by parents is the support of their children. In a divorce, child support has priority over spousal support. It’s not uncommon that once child support is ordered, there is little to no disposable income available to pay spousal support.

5. What happens if someone just stops paying spousal support?

All spousal support orders continue until they are terminated by the court or modified by a subsequent court order. A spousal support obligation cannot arbitrarily be stopped by the person paying. Any modification or termination must be done through proper legal channels. Failure to do so can incur substantial support arrearages, and the law imposes interest of 10% per annum on any unpaid balance. There can be other serious consequences, which a qualified family law attorney can discuss with you.

friend-banner

Why You Should Not Take Divorce Advice From Your Friends

By | Divorce | No Comments

Friends are there for you through thick and thin. They celebrate with you in good times and support you when times get tough. But though your friends may be successful, intelligent, and well-intentioned, their advice about your divorce can be harmful, especially about legal or financial matters.

One of the best pieces of divorce advice you can ever get is this: don’t listen to your friends. Here are five reasons why.

Friends Forget Every Divorce is Different

You are not your friends. You know each other well, and they undoubtedly have your best interests in mind, but your situation is unique. What worked for a divorced friend may not work for you. Don’t make choices during your divorce that could have serious and costly legal or financial consequences down the road. Most of all, don’t take advice that raises or lowers your settlement expectations. It’s an emotional rollercoaster you don’t want to ride. Even if you have a friend who is a legal or financial professional, unless they have specific expertise in asset division or family law, it’s best to talk with an expert.

Friends Don’t Know Everything About Your Situation

No one truly knows what goes on in someone else’s marriage. No matter how close you may be, the only person who knows what you’re going through is you. Friends may know how much you and your spouse make, what your home is worth, or even how much money you have in the bank. But they don’t know how those assets will be distributed in divorce, and more likely than not, they don’t know how to process your financial information legally or objectively. Well-meaning as it may be, a friend’s advice is coming from a different point of view.

Friends Don’t Know the Law

Unless your friends practice family law in California, they don’t know divorce law. Lots of people think they do, but secondhand knowledge or watching Divorce Court is not the same as understanding the actual law. California family law is complicated. You may hear, “it’s a 50/50 state,” but it isn’t that simple. From child support to equitable asset division, every divorce has its own nuances.

Friends are not Objective

Yes, people hire attorneys for their knowledge and expertise, but also for their objectivity. A good family law attorney acts as your advocate and takes an objective view of your situation. Your attorney cares about what you are going through, but is not emotionally involved, something your friends will find difficult to do. Friends just want everything to be okay for you – and that’s a good thing. But it doesn’t get you the best divorce settlement you deserve.

Friends are Worth Keeping

Even the friendliest divorces are stressful and your friends will want to try and smooth things over by sharing stories and giving what they think is helpful advice. But what if that advice turns out to be very bad? How will that affect your friendships? You may be angry that things do not go the way your friends assure you they will. It’s nice to know that friends are on your side, even if they like your spouse! Remember that this is your journey and your experience is different from theirs.

By all means, seek and listen to advice from friends during your divorce and look to them for sympathy and honesty. But be careful about following advice that is often best left to an experienced California family law attorney.

no-fault

What Does a No Fault Divorce Mean?

By | Divorce | No Comments

In 1969, California was the first state to sign no fault divorce into law. No fault simply means that things like extramarital affairs or abandonment are not of interest to the court as it applies to the actual divorce.

The official reason for divorce in California is “irreconcilable differences.” No fault means the court may not punish a spouse for hurtful actions when it comes to things like:

  • Division of martial assets, including the family home, bank accounts or investments.
  • Resolution of outstanding debts.
  • Spousal support.
  • Children support, custody, or visitation of children.

Irreconcilable Differences

The California family law court typically grants a divorce after finding that irreconcilable differences exist in the marriage. The California Family Code doesn’t set out a specific definition of just what constitutes irreconcilable differences, but it does require that the breakdown of the marriage be “substantial” and not “merely trivial.” In simpler terms, the court must rule on whether the marriage is beyond saving.

Exceptions to the Rule

There are instances when the court may consider “fault:”

  • Nullity (which invalidates a marriage as if it had never occurred).
  • Breach of fiduciary duty.
  • Custody.
  • Domestic violence.

Even in these cases, though, the wrongdoing must be relevant, not just an attack on the other spouse’s character. For example, if child custody is an issue, it is appropriate to note that a spouse has an alcohol or drug problem and recently received a DUI.

Breach of Fiduciary Duty

While it’s true California is a no-fault state, there is one area of misconduct that can influence a number of issues. If during the course of your divorce the court finds that one spouse breached their fiduciary duty to the other, there may be serious consequences.

In this case, the law allows the court to award one spouse 100% of a community property asset when the other spouse has not acted in good faith with respect to it. What this means is that neither spouse is permitted to take unfair advantage of the other just because they may have greater control of the community assets and money.

Consult an Attorney

Only one spouse needs to want a divorce to file for it under no fault law. If the other spouse does not want to divorce, there isn’t much he or she can do other than try to delay it through legal means. This often results in greater costs and, sometimes, the court may order payment of the other spouse’s attorneys’ fees for their unreasonable conduct.

Keep in mind that you can still get temporary orders for spousal support and/or child support, custody and visitation while your divorce is in progress. A consultation with a family law attorney will help you determine your best options.

magnify-glass-faq

FAQ: What Can I Do To Prepare For Divorce?

By | Divorce | No Comments

It’s said when you’re going through a tough time, it helps to know you’re not alone. In the U.S., there are approximately 2.4 million divorces per year, and nearly half of all marriages in California do not last. Divorce is often a painful and difficult time in your life, both personally and financially. Careful planning goes a long way in helping you navigate these until now unchartered waters.

How to Prepare for Separation and Divorce

Start by making a checklist. It will not only help you get your thoughts in order, it can be emotionally calming, as well. A sense of purpose goes a long way in instilling confidence. You want to gather together documents that will be used to determine your family’s expenses:

  • Five years of state and federal tax returns.
  • Three years of bank statements.
  • A recent credit report, which you can often obtain online for free.
  • Three years of credit card statements, individually and jointly held.
  • Current balances and monthly payment amounts on other debts, like a mortgage or line of credit.
  • Current pay stubs for both spouses.

Next, assemble all the documents showing the distribution of your assets and debts:

  • Both current and date of separation bank, brokerage, investment, or other financial accounts statements.
  • Both current and date of separation retirement account statements. If any retirement account existed prior to the marriage, include a statement from the date of marriage.
  • Appraisals for real or personal property.
  • Copies of any homeowner’s policies showing value of the contents of any residence.
  • If either or both of you own a business: five years of corporate tax returns, balance sheets, shareholder agreements, and profit and loss statements. You’ll also need copies of all business insurance policies.

Finally, make an inventory of all your marital property. A quick way to do this is by photographing or videotaping all the contents of your home or homes. Don’t forget the outdoors, and include cars, boats, recreational vehicles, etc. If needed, you can always create a list later which shows the actual value of the items.

Consult an Attorney

From separation to final divorce, remember to take your time and don’t create any unnecessary pressure on yourself. Do your research, and don’t make decisions based on what happened to a family member or friend. And most of all, understand the California family law legal process. 

You don’t have to immediately retain a family law attorney, but it helps to consult with one who can give you specific advice on your own issues. It isn’t easy to make sound decisions when you’re in a stressful situation and an attorney can advise you on how to avoid making mistakes that may affect your divorce as it moves forward.

Getting a divorce can be a financial disaster, which is why it is best to hire a lawyer who specializes in divorce or family law. They will know how to best protect your assets and guide you through the process with ease. For more information or to schedule a consultation, click the button below, or call us at 619-289-7948.  We look forward to helping you!

Schedule a Free Confidential Consultation
hands-on-bank

Bankruptcy and Divorce: How These Two Play Together in CA

By | Divorce | No Comments

In California, divorce and bankruptcy sometimes go hand-in-hand. One or both parties may find themselves unable to pay family debts, or one spouse may try to use a bankruptcy to give themselves a financial advantage. Most concerns about divorce-related bankruptcies fall into one of these categories:

  • The payment of joint credit card debt.
  • The payment of alimony or child support.
  • The enforcement of a property settlement.

First, a quick answer on spousal or child support payments. Section 523(a)(5) of the Bankruptcy Code prohibits in all chapters the discharge of any and all support obligations. Here are some other common scenarios where divorce and bankruptcy cross paths.

Spouse Files for Bankruptcy During Divorce

A divorce sometimes trigger a bankruptcy filing by one spouse. Unfortunately, this can prolong the process and complicate property division issues. California is a community property state, so even if only one party files for bankruptcy, all matters relating to community property and debts are frozen until the bankruptcy case is completed.

The only exception might be in cases involving pre- or post-nuptial agreements. Once a spouse files for bankruptcy, a bankruptcy estate is established that includes assets such as the family home, pensions, stock portfolios, or mutual funds that can be used for paying debts owed by the filer. All such debts must be paid before the bankruptcy can be finalized. However, the court can still hear testimony on and decide issues related to support.

Filing for Bankruptcy Before Filing for Divorce

If you know ahead of time that either one or both of you will be unable to pay certain debts after divorce, you might want to consider filing for bankruptcy jointly. Just be sure to do so before you file divorce papers.

Just like community property assets are divided between the parties, so too are marital debts. If only one spouse files, he or she is the only one entitled to have their debts discharged. If those debts were joint, this could leave the other spouse open to creditors trying to get payment from them. To avoid being left responsible for any such debt, it’s worth speaking with an attorney about filing for joint bankruptcy.

Enforcing Judgments

Along with support obligations being non-dischargeable under the Bankruptcy Code, all property settlements owed from one spouse to the other, or to a child, are non-dischargeable in a Chapter 7 bankruptcy. Some debts, however, are still dischargeable in a Chapter 13 bankruptcy, so due caution and consultation with an attorney are in your best interests.

Foreclosure and Bankruptcy

If you’re in the middle of a divorce and are served with foreclosure papers because you can’t keep up the mortgage payments, it can be a frightening time thinking you’ll lose your home. Filing a Chapter 13 bankruptcy will stop the foreclosure and gives your family some time to propose a debt restructuring plan. Even if you are unable to reach such an agreement, filing for Chapter 13 relief can buy you time to find another place to live that is more within your means. It can also give your family enough time to put the home on the market yourself, which is always better than what you’d receive from a foreclosure sale.

Remember, filing for bankruptcy during or after a divorce is not an effective way to avoid basic financial commitments that typically occur between spouses. Above all, if your spouse files for bankruptcy before, during, or after your divorce, do not ignore it. Speak to a family law attorney who will go over all your options to protect your interests in the community assets.

Getting a divorce can be a financial disaster, which is why it is best to hire a lawyer who specializes in divorce or family law. They will know how to best protect your assets and guide you through the process with ease. For more information or to schedule a consultation, click the button below, or call us at 619-289-7948.  We look forward to helping you!

Schedule a Free Confidential Consultation