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Kathy Minella

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Restraining Order Rules in California

By | Domestic Violence Restraining Orders | No Comments

Most people are aware that domestic violence victims and people facing civil harassment can be issued restraining orders to protect them from their aggressors. What many may not know is the process of filing for these orders, the burden of proof needed, when (or if) to get one, and the restraining order rules in California.

What is a Restraining Order?

Restraining orders (or protective orders) are court orders that can protect you from physical or sexual abuse, harassment, stalking, or threats. When you take out a restraining order, you become the “protected person” and the one the order is against becomes the “restrained person.” “Protected persons” are any other people included in and protected by the restraining order.

What Do Restraining Orders Do?

Restraining orders can include the following:

Personal Conduct Orders

These orders stop specific acts against you or anybody else named in your restraining order. The person restrained is ordered to stop or refrain from the following:

  • Contacting, calling, or sending any type of messages
  • Sexually assaulting
  • Attacking, striking, or battering
  • Harassing
  • Stalking
  • Destroying personal property
  • Threatening
  • Disturbing the peace of all protected persons

Stay Away Orders

These orders keep the restrained person a stipulated distance away from the person protected, their place of residence, their place of work, their child’s schools and places of childcare, their vehicles, and any other essential places they frequent.

Residence Exclusion (Move-Out or Kick-Out) Orders

These orders require the restrained person to move out or leave your place of residence immediately and take only their personal belongings and clothing until the court hearing. These orders are only issued in domestic violence or dependent adult/elder abuse cases.

Kinds of Restraining Orders:

California has the following four kinds of restraining orders:

Domestic Violence Orders:

The most common reason for getting a restraining order against someone is when they violate domestic violence laws. This includes harassment, burglary, terrorist threats, assault, criminal trespass, stalking, kidnapping, lewdness, false imprisonment, criminal mischief, or sexual assault.

In California, your abuser must be a spouse, former spouse, boyfriend, girlfriend, live-in companion, or a parent of your child to meet the state’s definition of domestic violence.

You can file for these orders if someone has abused you with whom:

  • You have a close relationship with (e.g., Married, registered domestic partners, separated, divorced, dating, used to date, live together, used to live together as more than roommates, or have a child together)
  • You are closely related (e.g., parent, child, sibling, in-law, etc.)

Elder or Dependent Adult Abuse Orders

You can file for these orders if:

  • You are 65 or older, or
  • You are aged 18 to 64 years and have physical or mental disabilities that keep you from doing normal activities of protecting yourself; and
  • You are a victim of physical or financial abuse, neglect, abandonment, physical or mental mistreatment, or deprivation of essential things that you need by your caregiver.

Civil Harassment Orders

You can file for these orders if someone harasses, stalks, abuse, or threatens you but you are not as close to them as is required under California domestic violence cases. For instance, a roommate, neighbor, or distant family members.

Workplace Violence Orders

As an employer, you can file for these orders to protect an employee who has suffered severe harassment, stalking, violence, or credible violence threats at the workplace.

Types of Restraining Orders

There are three types of restraining orders:

  • Emergency Protective Order (EPO): Only a law enforcement officer can ask for an EPO by calling a judge directly. They can last up to seven days, which is enough time to file for a TRO.
  • Temporary Restraining Order (TRO): These orders typically last for 20 to 25 days, which is enough time until a scheduled court hearing date.

Permanent Restraining Order: A judge issues these orders during a court hearing after they are satisfied that you need protection. They last up to five years, and you can ask for another restraining order when yours runs out.

If you need help or want to learn more about restraining order rules in California, you can seek out the services of a family law attorney, local legal aid agencies, shelters, or domestic violence help centers.

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What Is Spousal Support?

By | Divorce | No Comments

Spousal support, also known as alimony, is a legal obligation on a person to provide financial support to their spouse. Spousal support is generally issued in connection with legal separation or divorce cases. One spouse pays the other ex-spouse – whether the husband or wife – a certain sum of money. Courts may require this if one party earns much more than the other, and the other one needs assistance in maintaining their lifestyle close to the marital standard. It is generally awarded to a spouse who makes a lower income or has been out of work during the marriage. The purpose of spousal support in California is to preserve a person’s financial status to the greatest extent possible.

Spousal support is broken down into two types: temporary (pendente lite) or permanent (post-divorce judgment). Temporary spousal support is awarded during divorce proceedings and meant to maintain the living condition of both parties before divorce is finalized. Permanent spousal support is awarded after divorce is finalized and it is to provide the lower-earning spouse with adequate income to ensure that their needs are met and they’re able to maintain their standard of living.

Check Out Our Alimony & Spousal Support Resources Page >> 

Spousal support payments can be made on a monthly basis for a predetermined period of time, but can also consist of a single lump-sum payment. In some cases, spouses can have an agreement on the amount and conditions of support. And if the agreement meets legal requirements, it will be upheld by the court, even if it means that the lower-earning spouse will not receive any support.

Eligibility for Spousal Support in California

Spousal support is issued on a case-by-case basis, but in most cases, only persons who have been married for a longer duration (usually over 5 years) are eligible for support. Other factors that the court will take into consideration when making the support determination include:

  • The assets and property owned by each spouse
  • The earning capacity of each person
  • Whether the parties shared a business
  • Whether one party has significant debt
  • Each party’s contribution to the relationship
  • Physical and mental health conditions
  • Whether the parties had a prenuptial agreement that set forth spousal support provisions

Length of Spousal Support

The length of spousal support is usually tied to the length of the marriage. As a general rule, the court will not order support for more than half the length of a marriage that lasted less than 10 years. However, the court will not set definite spousal support duration if a marriage lasted 10 years or longer. The party who pays will bear the burden of proof to show that spousal support is not needed at some point in time. 

While post-divorce spousal support is often referred to as “permanent,” it is increasingly rare for true permanent support to be awarded, even for longer marriages. California courts require the spouse being supported to make efforts to become self-sustaining. A spouse who claims an inability to become fully employed or inability to work will have to support the claim with evidence. True permanent spousal support generally applies to spouses who cannot become self-supporting due to age or disability.

Spousal Support Modification

Once the court issues a spousal support order, it becomes final and enforceable by the law. The orders can, however, be modified due to unique or special circumstances that occur later on. For example, if one spouse loses their job and cannot pay or the other spouse gets a job or a significant rise in income, spousal support can be altered or terminated.

Hiring an Attorney for Spousal Support Issues

Filing for spousal support in California can require many statements, documents and other items needed to support a party’s arguments. You’ll also need a thorough understanding of the law to avoid hurting your case. A qualified family lawyer can help review the terms and negotiate with the other party to ensure that your needs are covered.

If you’re considering filing for alimony in California, or simply have questions, contact us for a free consultation today!

how do you officially change your name after a divorce

How Do You Officially Change Your Name After A Divorce?

By | Divorce | No Comments

People choose to change their name after or during a divorce for different reasons. For some, it’s a way to restore a sense of independence and help them move on. For others, it’s a matter of practicality. In California, the process is fairly straightforward, depending on whether or not you’re still going through your divorce or you were divorced in another state. Your divorce attorney can advise you on the best course of action and assist you with the legal processes including:

  • Your divorce was granted and finalized in California
  • Your divorce is not final
  • Your divorce was not finalized in California

If Your Divorce Has Been Finalized in California

If your divorce has been finalized in a California court, you must complete an Ex Parte Application for Restoration of Former Name After Entry of Judgment and Order asking the divorce court judge to restore your former name. You can find the form online or visit your county clerk’s office to fill out the form in person. Include a copy of the Notice of Entry of Judgment for your divorce if possible. Your divorce attorney can assist you in gathering all the information you need to change your name. It typically takes the court two to four weeks to process this type of request. 

If Your Divorce is Not Yet Final

If you’re in the process of divorce, you can still ask the court to restore your former name. When you submit your proposed Judgment for Divorce, ask your family law attorney to include a request to restore your former last name. When your divorce is finalized, the decree should include an official order that restores your former name. 

If Your Divorce was Finalized in a Different State

If you were not divorced in California, you should first contact the court that finalized your divorce and ask if there is a simple process to change your name in that state. If not, file a regular Petition for Change of Name with your local superior court clerk in California. 

A Family Law Attorney Can Help

Having an experienced family law attorney help you navigate your divorce and the process of changing your name can help you save time, money and cut down on stress.

Minella Law Group is a full-service family law firm. We can assist you in handling all aspects of family law issues, including divorce, custody, child and spousal support, and more. At Minella Law Group, our motto is service first. Divorce is hard enough; you should not have to struggle with your representation as well. We ensure you are always up to date with your case, presented with all the options available to you, and aim to keep the cost to you reasonable.

Contact us today to schedule a consultation. 

how will divorce affect my children

How Will My Divorce Affect My Children?

By | Divorce | No Comments

Making the decision to end your marriage isn’t easy. There are many people who will be affected – including your family, spouse, and friends. However, your children are among the most sensitive (and will be most affected) by separation. Multiple studies show that kids are more likely to experience stress, lower academic performance, and behavioral disorders after their parents undergo divorce. 

Children typically view their parents as superheroes. In your child’s eyes, you and your spouse should be able to solve even the most complex problems. This is why kids are often confused and distressed when their parents choose to end the marriage and go their separate ways.

It can be challenging to balance between ending your marriage and minimizing the impact on your children. To make this decision and process easier, you should understand how kids are typically affected by divorce, what family law says with regards to ending a marriage, and how you can minimize the impact of separation on children. 

Effects of Divorce On Kids

Children are affected by divorce in many different ways. Because most consequences are emotional, behavioral, and psychological, being aware of (and dealing with) these challenges early will prevent your kids from being affected over the long term. 

Some of the most common effects include:

1. Increased Stress And Depression Levels 

Divorce often comes with lots of instability and uncertainty. Your daily family routine will change, and you may not necessarily have a solid plan for what lies ahead. This uncertainty is what affects kids the most. Your child may need to move to a new location, switch schools, or get used to a new parent (for those looking to remarry). These sudden changes are what increase stress and depression levels in affected children. 

2. It May Affect Economic Stability 

In most divorce cases, the separating spouses experience a noticeable (if not significant) reduction in income. In fact, most divorcees need a 30% increase in income just to maintain their previous lifestyles. Even more concerning is that women are disproportionally affected (economically) during divorce than men. 

The impact of significant economic change is often felt most heavily by children from the marriage. This is because the instability in domestic living and expenses will directly influence your child’s ability to live a life similar to what they had before. 

3. Lower Academic Performance 

Your school-aged child may also experience lower academic performance after your divorce. This is because kids tend to undergo behavioral challenges during this time and it ultimately affects their grades. In more serious cases, the child may be unable to graduate from high school and may even end up falling into drugs/crime (if they don’t receive the support they need).

Reducing the Negative Effects of Divorce On Children 

In an ideal world, parents wouldn’t have to separate. However, there are always cases where a divorce is the best option for the parties involved. You can reduce the negative effects of divorce on your children by taking a proactive approach to the separation process. This involves planning ahead, seeking help and resources for your children, and collaborating with your former spouse to make the divorce proceed smoothly. 

1. Develop A Co-Parenting Plan

Under California family law, co-parenting is the preferred approach to raising kids from separated parents. Former spouses are encouraged to come up with a legally binding co-parenting plan that can be reviewed and approved by a judge.

This plan should be developed with the best interests of the children and not just the parents. In this way, conflict is reduced and your kids will be less likely to experience behavioral disorders. 

2. Avoid Putting Pressure On Your Kids 

Many separating parents tend to put their kids on the spot. For example, asking your kids to choose which parent they prefer can lead to anxiety and depression. You should avoid putting your kids in the middle of any conflict with your spouse. Instead, look for ways of handling such conflict away from your children. 

3. Maintain A Positive Relationship

The stress and uncertainty of divorce may cause you to pull away from your children. You may be pre-occupied with settling financial disputes, custody disagreements, and other legal matters such that you end up ignoring your kids. Strive to maintain a positive relationship with our children throughout the process. Remind them that you still care, and encourage them to open up about how they’re feeling. 

4. Know The Law And How It Can Help With Your Separation Process

California’s family law is constantly evolving to make divorce as smooth as possible. If you’re thinking about separation, consult a family lawyer to explore your options. There are provisions in the law that protect children’s rights, domestic abuse victims, and economically-disadvantaged spouses. 

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How The New Pet Custody Law Works In California

By | Family Law Blog | No Comments

Most people consider their pet a part of the family, so it’s no surprise there are often disputes about who gets the pet when a couple splits up.

In January 2019, a new California law changed the way pet custody is handled in divorce cases. This new law gives judges the power to consider the care and the best interest of the pet (or companion animal) when making decisions in separation or divorce matters. 

Pets Are No Longer Just Physical Property

Up until the new law was enacted, California courts treated pets like other physical, inanimate property such as furniture, cars, and other belongings. The family dog, cat, or another pet would be considered a part of the property to be divided when the marriage ended. Often judges would base their decision on which party purchased or adopted the animal. Judges had wide discretion in determining where the pet would be best placed or in arranging visitation schedules. The legal system, however, offered no official guidance.

Up until this year, only Alaska and Illinois had similar legislation. With the signing of AB2274, California courts must now view pet ownership differently from other possessions.

Putting a Pet First

Courts now have a much clearer direction and will award custody of a pet based on what is deemed best for the animal. They’re also able to create shared custody agreements and may enter orders that require one party to care for a pet prior to final ownership determination.

Pets are still technically classified as personal property, but the new law was crafted to reflect how most people view their pets. The bill’s sponsor, Assemblymember Bill Quirk, was inspired to introduce the bill based in part on his experience rescuing a dog.

The original bill had stronger language, for example, “requiring” rather than “authorizing” courts to act in the pet’s best interests. 

Changes notwithstanding, California’s law is groundbreaking in that it provides courts with much-needed guidance in distinguishing pets from other forms of property. 

Treating Animals Fairly

Family pet custody battles have been on the rise. While they reflect a pet’s important role in the family, they’ve also added conflict to an often already stressful situation. If you’re involved in a custody case involving a family pet, the Animal Legal Defense Fund, which ranked California #3 in the nation for its animal protection laws, may provide an amicus brief

Before getting into a lengthy, expensive battle over the family pet, remember that California’s law does not require a judge to make a conclusion, it merely gives guidance on what can be used to determine such situations.

Final Thoughts

Before this law was enacted, pets were simply treated as any other inanimate piece of property such as a TV or a dining room table. Now, there are much clearer guidelines as to how custody of a pet will be handled and is based upon what the court deems as best for the animal.

For those who have a family pet, this new law may help bring some peace-of-mind as they navigate the already-stressful divorce process.

If you’re concerned about what may happen to your pet during a legal separation or divorce, consulting with an experienced family law attorney who understands the issue and new ruling can help alleviate your worries.

technology in divorce

An App For Divorce? A Divorce Attorney’s Response To The New Wave of Tech

By | Divorce | No Comments

Recently, NextAvenue.Org published a blog on the new wave of technology as it relates to divorce services. As a divorce attorney in San Diego, I am always interested to understand the new trends in the divorce space. Below is my commentary on the article, as well as a reprinted version of the original blog post.

If you have any questions about family law or divorce services in San Diego, please don’t hesitate to contact me.

– Kathy Minella

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How To Apply For Child Support In California

How To Apply For Child Support In California

By | Child Support | No Comments

Child support is the amount of money the court orders parents to pay for the basic living expenses of the children. California follows a specific formula or “guideline” to determine the amount of child support to be paid. 

California guideline child support is based on a complex equation grounded in two basic factors:

  • The difference between the incomes of the parents.
  • The disparity of time spent caring for the child.

Both factors are used in calculating monthly child support, so while the parents may have equal incomes, for example, if one parent is the majority caregiver, the other will likely be ordered to pay support.

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How Much Does it Cost to Retain a Family Law Attorney?

By | Family Law Blog | No Comments

In California, “family law” covers domestic issues. Specific laws vary but generally aim to protect an individual’s rights within the context of family. For example, divorce law addresses how to end a marriage and divide the property.

A family law attorney’s practice is not limited to divorce. Child and spousal support issues, custody matters, and adoption are also handled. Domestic violence often falls under the umbrella of family law as well.

So, how much does it cost to retain a family law attorney? The answer to that question isn’t just a straight dollar number and there are a lot of factors that play into the cost. However, there are some tips to give some insight into hiring a family law attorney.

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lawyer

Do I Need a Lawyer For My Child Support Case?

By | Child Support | No Comments

Under California Family Code section 3900, both parents have a duty to support their minor children until at least the age of 18. There are times the requirement is extended, such as when a child is disabled. A support obligation may also continue until the age of 19 if the child is still in high school and/or unmarried. The code dictates that minor children must be supported “in the manner suitable to the child’s circumstances.”

How to Get a Child Support Order

Whether you are the parent seeking support or the one being asked to pay it, if you’re about to start on a child support case you have several options for handling it. You can contact a local child support agency, hire a family law attorney, or use the services of a family court law facilitator. 

California Code Section 4053 sets out a mandatory formula the court must take into account regarding child support.

  • Both parents have a mutual obligation to support their child.
  • The obligation is based on each parent’s income, time with the child, and ability to pay.
  • Child support may also improve a custodial parent’s standard of living if it improves the child’s standard. This also reduces the disparity between each parent’s standard.
  • There is a presumption that the parent who has the majority parenting time already contributes significant resources to the child’s care.

California’s child support guidelines are meant to reduce conflict between parents and decrease the need for litigation. Above all, they are designed to protect a child’s best interests.

Whichever method you choose for obtaining an order, you will need to supply the court with certain information and documents.

How to Start the Process

Child support cases often, but not always, start during divorce proceedings. Paternity actions are also common. No matter who handles the process, it all begins with a “request for order.” An accurate income and expense declaration must also be included. 

While child support agreements must meet certain legal guidelines (and must gain the approval of child support services, if involved), the court will generally allow parents to create their own agreement if it’s in the interest of the child. 

Keep in mind that if you use Child Support Services to help you obtain a support order, it may prolong the process to obtain the final signed order.

Do You Need a Family Law Attorney?

It is certainly possible to handle a request for child support without the services of an attorney. But California family law can be complicated. An experienced family lawyer can help ensure:

  • Your child or children get the financial support they need.
  • Your financial standing is correctly represented in court.
  • You’re adequately represented for a modification or if you get behind in making court ordered payments.

One of the greatest benefits to working with a family law attorney is she or he is knowledgeable about the most recent changes to the California Family Code. For example, in 2019 there were important changes made relating to parental duty and a child’s right to be supported in light of a parent’s earning capacity. 

The California courts consider many variables when calculating a child support order. Even if both parents agree in advance on the amount of child support, the court will apply conditions like the needs of the children being adequately met. 

A child support agreement can have far-reaching implications for your child and should not be taken lightly. Many family law attorneys offer a courtesy consultation and the time invested in one can be very well worth helping you decide how to proceed.

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Can California Child Support be Changed Without Going to Court?

By | Child Support | No Comments

In California, a change in child support must be approved by the court but it is possible to modify your child support order without stepping foot inside a court room. Parents may come to an agreement outside the courtroom, but they will still need to file a stipulation or request a change to the original order by filing a motion for modification with the court.

Child Support in California

Parents in California have a legal obligation to financially support their children, typically through the age of maturity (age 18). Sometimes a situation arises where the parent ordered to pay support cannot or does not want to continue paying. Some parents simply stop making the payments altogether. 

California law does not look kindly on parents who fail to make their child support payments or who take it upon themselves to make a change in those payments without approval of the court or the person receiving support. If a change is required in child support due to a life event or situation, the law requires the paying parent follow proper legal procedures. If you do not have your order changed properly, this could mean financial ramifications for you down the road including losing your drivers license or passport.

Reasons for a Child Support Modification

California courts recognize there are many reasons why a child support order might need to be changed. The basis for modification is often referred to as a “change in circumstances.”

  • One or both parents has had a change in income.
  • A parent has lost their job.
  • One parent has been incarcerated.
  • There is now another child from another relationship.
  • How much time the child spends with each parent has changed significantly.
  • Costs for the child’s current healthcare, education, and/or childcare have increased.

The court will also consider a modification when any of the factors used to calculate child support have changed.

It’s crucial that anyone who anticipates or has a change in circumstances let the original family court know immediately that they need the child support order modified. If you’re the parent unable to make payments, ignoring the situation can have serious, negative legal consequences.

How to Get a Child Support Order Modified

You have several options for starting the modification process: contact a local child support agency, hire a family law attorney, or use the services of a family court law facilitator. No matter who you choose to ask for assistance, you’ll need the following information when requesting a modification

  • Current income and expenses.
  • Proof of childcare expenses.
  • Medical insurance.
  • Unemployment benefits.
  • Retirement income.
  • Disability information such as SSI, SDI, and SSA.
  • Jail or prison status, if applicable.
  • Current and proposed custody and visitation arrangements.

California courts generally believe a modification is in order when the change is either 20% or $50, whichever is less. Keep in mind that if the request is approved, the court will not apply the change to outstanding back payments. The new amount applies only to future support payments unless you agree otherwise.

If you and the other parent can amicably agree on the changed amount, you can sign an agreement or stipulation and submit it to the court for approval. If you cannot come to an agreement, the court will set a hearing date at which time the judge will review the request and, if she or he agrees with the changes, issue a new order.

Child support is ordered to ensure that children are taken care of after their parents no longer live together. There are many valid reasons for seeking a change in child support including the loss of a job, serious injury, or a change household income. It can be a complicated process, especially when the parents do not agree. A great way to start, even if you have reached an agreement, is to speak with an experienced family law attorney who can guide you through the process.