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Kathy Minella

In Military Divorce

Understanding Military Divorce

Understanding Military Divorce

Military divorce is usually considered to be significantly different from a non-military divorce. These differences generally make themselves known in the process of obtaining personal service, complying with rules and regulations set by the military, and dividing a military pension.  Military divorce has special procedures that need to be followed especially if the member is active duty.

In order for any court to assert its jurisdiction over a military divorce, the Petitioner will have to serve the active member with a petition for the dissolution, as well as a valid summons. Because of this, if the service member in question is currently deployed overseas, the process of completing a military divorce can be somewhat challenging.

The Military and Divorce

Divorce is not a simple process for anybody. Military divorce can be especially taxing within California because of the requirements the state imposes on service members that are deployed, living overseas or currently existing outside of the California jurisdiction.  Parties who are considering divorce with an active duty military member will often benefit from learning more about the path that is ahead of them before they start this trying process.

If you are the Petitioner in the case and your spouse is a service member who has been deployed overseas, completing service becomes extremely difficult.  The Servicemembers Civil Relief Act (SCRA) will be a factor in your case.  SCRA will postpone or suspend certain legal matters that are pending in court while the servicemember is located. The law states service members cannot be held responsible for not replying to a divorce petition when they are deployed, but it does not allow the military spouse to neglect the papers. If the service member fails to respond to the divorce, then the court may choose to appoint a reserve, civilian natural or active duty person as an officer of the court to serve the papers on their behalf.

The SCRA will appoint an attorney to located the military member and report to the court on his location and ability to participate in a divorce. During that time, there will be a stay in the case meaning the court cannot make any orders for support or division of assets.  If you are in need of support and your spouse is not paying, you should immediately contact their command to enforce military regulations for family support.  The court cannot make any orders while the stay is in place.

Federal Laws Regarding Military Divorce

Recently, federal laws and regulations have undergone some changes that should make personal service much simpler for military couples with children when the spouse is stationed overseas. Regardless of the location of the spouse in active duty, uniformed service members and federal agencies will be required to take on the responsibility of facilitating the legal process.

Military assets, including military pension of the service member, are valuable, and can be divided between spouses much like the standard assets within a regular divorce case. However, it is necessary for both spouses within a military divorce to understand how the court deals with dividing military pensions.  Not all servicemembers will be entitled to a pension, it does depend on the years of service.  If there is a pension, it will be divided by the time rule which looks at the length of service while married.  The portion that was acquired during marriage wil be split 50/50.

There other assets that are only issues in military divorce that need to be give special care. There is the Survivor Benefit Plan (SBP) election that needs to be discussed.  SBP needs to be ordered in order to be received and there are different levels of election, not all the elections will be covered by support payments.  There is also the Servicemembers Group Life Insurance (SGLI) that needs to be divide.

There are assets that need to be divided in military divorces that are not present in a non-military divorce.  It is important to understand what you are entitled to and what needs to be included in your divorce judgment.

Residency Requirements

In order for the court to have the ability to properly divide a military pension, the court must have the military spouse’s legal consent, or legal residence within a state. A spouse simply being stationed within a state for a temporary period of time does not constitute residency.  If the military member has maintained residency in a different state, California may not have jurisdiction to divide the military member’s pension.  Consent of the spouse does not have to be verbally expressed, as long as the court has proper jurisdiction it has the ability to divide military retirement, regardless of the overall length of the marriage.

Minella Law Group can Help!

As the article expresses, there are very specific rights involved in a military divorce.  An amicable military dissolution can be reached, but should be done with an experienced attorney who knows what to look for.

If you are facing a divorce and the United Stated Military is an employer, the qualified staff at Minella Law Group can assist you.  For more information or to schedule an appointment for a no cost consultation, click the button below, or call us at 619-289-7948. We look forward to meeting with you!

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In Child Support, Family Law Blog

Tips to Calculating Child Support

Calculating Child Support in California 

Every parent has an obligation to care for their child, even if their marriage falls apart. California law imposes guidelines on the local courts that help judges determine the appropriate amount of child support to award a family. Calculating child support in California is based on a calculation that takes both the parties income and how much time they spend with the child into consideration.

It’s important to note, California law requires all sources of income to be included with calculating child support.  This is outlined in Family Code Section 4058, it includes but is not limited to the following: commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest,  and trust income.

The process of gathering and assessing all of the information that is needed in order to provide an accurate decision is time consuming and frustrating.  However, it is important to ensure the continued stability of the child following a separation. Each parent should feel confident about the amount that has been ordered by the court to benefit their child.

1.  Make sure you are well organized!

One of the first steps in dealing with child support effectively and efficiently is to ensure that you are well organized. In the state of California, child support amounts will be calculated using a number of factors that are entered into a child support calculator.

Like any other form of data, the calculator will only be able to provide your judge with an accurate number if you provide accurate information. This means that you will need to ensure you have access to all necessary documents that contain information on your taxes, deductions and monthly income, including:

  • Wage stubs
  • Tax returns
  • Childcare expenses
  • Unemployment or disability benefits
  • Premiums for health insurance
  • Spousal support that is being paid into other relationships
  • Necessary expenses related to your job that are not reimbursed by an employer
  • Retirement contributions that are mandatory
  • Uninsured losses
  • Health care expenses
  • Child support paid for children within other relationships

You have to be able to prove, with documentation, the expenses and income that you list on your income and expense declaration.  Gathering up your information ahead of time will save time and money.  The court requires your last two month of paystubs if you are a W2 employee and you should be able to produce your last years taxes if asked.  If you are self employed, you will have to produce a profit and loss statement for the last 2 years.

2.  Has there been a change in your situation?

There are some instances in which an order for child support can be altered or changed if there is a change in circumstances for the individuals involved. A change in circumstances can be recognized in a variety of different forms, but some of the most common options include:

  • The incarceration of a parent
  • The loss of a job
  • One parent having a child in another relationship
  • A change in income
  • A significant change to the child’s needs which may increase the costs of healthcare, childcare, or education
  • Change in the amount of time a child spends with each of his or her parents

It is important to have your request pending immediately as it does take time to get into court.  Sometimes it can take months before you will be able to have your case heard.  Filing right away will reserve the retroactivity date.

3. Work with a professional attorney in your area!

Although it is possible to access free child-support calculators online, it is easy to call their accuracy into doubt. Calculating child support on your own can be done however you will usually find this will only lead to confusion and frustration. There is no way to ensure that you are taking all the deductions that you can or using the right figures.  Usually, working with an experienced and professional family lawyer will ensure that you have all the information you need regarding child support payments.

You may still get along with your former spouse but this is a legal matter now and you want to have someone who knows this arena on your side.

Minella Law Group can Help with California Child Support Issues

If you think you need assistance with calculating your child support, or you feel your support order is too high, we can help. We can take a look at the order and determine if there is a way to reduce or increase support based on the needs of the child and income of the parties. For more information or to schedule an appointment, click the button below, or call us at (619) 289-7948. We look forward to helping you.

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In Child Custody & Visitation

Move Away Requests in San Diego

The Facts About Move-Away Requests in San Diego

If someone were to ask a family law judge about the most difficult type of case they have to preside over, most of the time, the answer would be a move-away request.  A move away is where one party seeks to relocate themselves, and their child, to another geographic area. The destination could be 50 miles away, or 2,000 miles, making it difficult for the other parent to maintain a relationship with their child.

If the court does grant the move away request, the non-custodial party will no longer be a significant part of their child’s day-to-day life. However, if the court denies the move away request, and the custodial parent has no choice but to move away, then the child will be separated from the parent they may have the closest bond with. Either way, the circumstances are tough on the child.

What the Court will Consider

In move away requests, the court will consider various different factors, including:

  • The distance of the move away, if a move away is only a couple of hours away, it may be considered as less disruptive to the life of the child, and that child’s relationship with the non-custodial parent. However, a move away that takes the child across country, or to a different part of the globe, could require greater scrutiny. Usually, in international cases, the court will need to consider cultural differences, including potential, language, and dangers within the country where the child will be raised by the custodial parent.
  • The age of the child. Sometimes, a  move away that is far away from the other parent can be seen as more detrimental to a younger child who has a strong attachment to both parties.
  • The reason for the move away. In California, the parent does not have to justify their reasons for moving, but if there is evidence that the purpose of the move away is in bad faith, for example to interfere with the relationship between the child and non-custodial parent, the court will consider this in their decision.
  • The child’s relationship with each parent. The court will examine the relationship of the child with each parent and consider the attachment that may be present. If there is conflict between a parent and child, the court may appoint a child custody evaluator to make a decision.
  • The relationship between the parties. Do the parties engage in a healthy co-parenting relationship or is one parent undermining the other? If there is a significant distance between the parties there needs to exist a healthy co-parenting relationship or the noncustodial parents relationship with the child will suffer.
  • Where the child wants to live. In some cases, the child may be able to make a statement about where he or she wishes to live. In California, the law requires that children over the age of fourteen must be allowed to testify unless the court believes it will be harmful for the child.

Critical Decisions to Make

Whether you are the parent seeking a move-away request, or the non-custodial parent, you should seek the assistance of an experienced move-away request attorney when it comes to dealing with an issue that can determine how much time you spend with your child. Your lawyer should be able to give you advice on the factors within your case that may influence the court, as well as what you could do to strengthen your position and effectively present your case.

Minella Law Group can Help!

If you are facing a move-away request it is important to have an experienced move-away request attorney by your side.  Minella Law Group is experienced in move-away requests and can give you immediate hands on representation that you need.  For more information or to schedule a no cost consultation, click the button below or call us at (619) 289-2748.  We look forward to helping you!

 

 

 

 

In Domestic Violence Restraining Orders

Obtaining a Domestic Violence Restraining Order

Obtaining a Restraining Order as a Victim of Domestic Violence

In San Diego, it is possible to obtain a domestic violence restraining order from the legal judicial system, which will effectively prohibit an individual from performing any actions that may harass, or harm you in any way. Although it is intended to protect the individual for whom it is taken out, a restraining order is a civil order, meaning that it will not provide an abuser with a criminal record unless they violate the order.

Who can Apply for a Domestic Violence Restraining Order?

In some cases, domestic violence restraining orders are issued by judges in particularly heated legal situations, such as a custody battle or ongoing divorce that is causing a potentially dangerous or threatening situation between certain individuals. However, victims of domestic abuse, or violence can also obtain a restraining order if they have been the subject of abuse by their spouse, family member or any previously present individual, so long as the victim is either an emancipated minor or over the age of 18. The term ‘domestic violence’ can refer to any of the following acts that have been committed against a victim:

         o   Sexual assault

         o   Assault

         o   Terrorist threats

         o   Stalking

         o   Kidnapping

         o   Homicide

         o   Criminal trespass

         o   Harassment

        o   Criminal sexual contact

        o   Burglary

        o   Damaging personal property

What can a Domestic Violence Restraining Order do for Victims of Domestic Violence?

As a victim of domestic violence, an individual can request a judge to sign a document called a ‘Domestic Violence Restraining Order’, which demands that the abuser obey the law and follow rules regarding what they can, and cannot do. For example, the abuser may be required to have no contact with the victim either at home, via phone or email, at work, or anywhere else you might ask the court to place on the order.

The order may also work to protect other individuals within your family if you believe that they are at risk. The court could demand that the abuser in question leaves your family home, shared apartment, or domicile in which you live, even if that particular piece of real estate is in the abuser’s name.

In San Diego, a court may rule that the abuser must pay any financial costs that may have arose as a result of the abuse. For example, any medical or dental treatment, household bills that are immediately due, loss of earnings or expenses caused by moving home. The judge may also demand that your abuser pays for any fees that must be paid to an attorney on your behalf as a result of having to seek a domestic violence restraining order.

How Long will a Domestic Violence Restraining Order Last?

When you initially file to obtain protection from the law, it will only be on a temporary basis. The order that you receive will indicate a specific date at which point you must return to the court alongside the abuser to endure a formal proceeding. If your abuser does not arrive as expected at the hearing, then you may find that the judge either enters a final order if you have proof as to the abuser being served a notice to appear, or continue the temporary order until the individual can attend.

Remember, the courts will take domestic abuse very seriously, and you will not be asked to serve papers to the abuser on their behalf. So you do not have to worry about that. The local sheriff will serve the restraining order as soon as possible so they are aware that there is an order in place.  Once they have been served, they are on notice and must obey the orders or they can be arrested.

Minella Law Group Can Help!

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If you or someone you know is the victim of domestic violence and need assistance obtaining a domestic violence restraining order the qualified staff at Minella Law Group can assist you. For more information or to schedule an appointment, click the button above, or call us at (619) 289-7948. We look forward to helping you.

In Family Law Blog

May Victories!

The staff at Minella Law Group is still buzzing over the recent victories we received on behalf of our clients.  May was a busy month at MLG with 4 contested cases and 4 successful outcomes!! We could not be more proud.

First, we successfully opposed a renewal to a domestic violence restraining order for a father of 3 minor children.  At the time the Domestic Violence Restraining Order (DVRO) was issued Father was unrepresented and was not aware of how impactful a restraining order is on your life.  The DVRO was issued for a period of 3 years for no contact with the mother.  Father is a military veteran who left the military on disabled status and was living in Canada with his family.  As a result of the restraining order every single time he crossed the border to access his medical appointments which were extensive he would be held for hours and it was a huge burden on him.  Additionally, he is a Native American Tribe leader and was not able to own or operate any weapons and therefore could not hunt for his tribe.  We had a 3 hour hearing at which point the judge found that Mom did not have proper motives for filing the renewal and her request was denied.  It was a long-awaited victor for Father!

Next, we represented Mother in a custody battle with her ex husband who was recently in a domestic violence altercation with his current wife in front of the son, which step-mom was ultimately arrested for.  We filed an ex parte request to suspend all visitation with Dad due to the fight that occurred in front of the son which resulted in the son calling 911 for help.  The judge suspended all visitation until a further investigation could occur.  Father missed his Family Court Services appointment and at the next hearing did not give any valid reason why. During that hearing, Father also lied repeatedly under oath and penalty of perjury about the circumstances surrounding the event.   We requested the court deny any and all visitation until further court order because of Dad’s actions.  The judge agreed and Mom was awarded sole legal and physical custody of the child until further court order. This was a wonderful outcome for the child and for his mother, our client, as well.

We also successfully opposed a move away request which allowed the child to stay in Dad’s care full-time.  Dad and Mom had a very contested custody case where Dad had a 23% timeshare with the minor child and was working on gaining joint legal custody against Mom’s objection.  In late 2013 we filed a request to modify custody to change the custody arrangement to joint legal and allow the child to spend equal time with both parents.  When Mom caught wind she began looking for jobs in different states and ultimately secured a job in Utah and she filed a request to move the child with her.  We opposed the motion and the parties participated in Family Court Services Mediation where it was recommended that the child move with Mom.  We decided that we would fight this recommendation and we had an evidentiary hearing on the issue.  We showed Mom’s unwillingness to allow any additional time with child when Dad would ask, we showed Mom’s email communication which was hostile and belittling, we also showed that the reasons for Mom’s move were vindictive and done with the motivation of keeping the child out of Dad’s life.  The judge agreed and ordered that the child would remain in Dad’s care full-time and Mom would have visitation rights.  This was a long overdue victory for this father!

Finally, we closed out the month with a contested termination of parental rights for a pending step parent adoption.  Bio Dad had not been in his son’s life for over two years, but when he heard about the pending adoption decided to contest the termination request.  The facts were very clear in this case, what was not clear was the active case in Indiana where the child was originally from.  Bio Dad claimed to have filed multiple custody modification cases in an active effort to see his son.  When the parents met with the social worker assigned to investigate the stories told were complete opposite.  Bio Dad lied repeatedly to the social worker about facts and events that took place over the last two years.  As a result, the recommendation was not in our favor.  We were lucky in managing to get the entire Indiana case file overnighted to us in time to file all the records with the court to verify Bio Dad’s lies.  We had a one day trial with 4 witnesses and 40 pieces of evidence to admit.  It was shown through testimony that Bio Dad was lying about several facts and had in fact not seen or communicated with his son in over two years nor had he made any attempts to do so.  After review of the evidence and testimony submitted, the Judge agreed with our position and ultimately terminated Bio Dad’s parental rights.  This will allow the child to eventually be adopted by his step-father who has been a constant in his life for the past 3 years and is the only father the child has known.  This was a wonderful outcome for the whole family and we were so proud to be apart of it!

We love to be able to share these success stories of our clients and are so proud to be a part of every one.  If you think you have a case that you need assistance with please call 619-289-7948, or click the button below,  to schedule a consultation at no cost. We look forward to helping you.

 

In Domestic Violence Restraining Orders

Domestic Violence Restraining Order Renewals

Domestic violence restraining order renewals (DVTRO’s) should not be taken lightly as criminal and civil penalties attach to the orders.  During the existence of the orders the restrained party needs to adhere to the orders to make sure there have been no violations.  Having a domestic violence restraining order on your record can seriously impact your life.  A DVTRO will show up on background checks and might prevent you from getting a job or coaching a sports team.  If the restrained party needs to cross the border, this can cause detainment as well as a more thorough search of belongings.  Most importantly, the restrained party cannot possess any firearms while there is a DVTRO.  A restraining order can last up to five years, however upon the expiration of the order the protected party can file a request for a  Domestic Violence Restraining Order Renewals up to three months before the expiration of the order.  The judge will consider their request and has the authority to grant a permanent restraining order which would be in existence until further court order.  The potential is there for the DVTRO to remain in place for the restrained party’s entire life!

Can I Contest A  Domestic Violence Restraining Order Renewal?

Absolutely! California Family Code § 6345 states “In the discretion of the court, the orders may be renewed upon the request of the party, either for five years or permanently, without a further showing of abuse since the issuance of the order.  If the restrained party does contest the renewal, the protected party is not entitled to a renewal merely due to desire. Family Code § 6345 does not provide the trial court shall automatically renew the existing protective order, it only states the court may do so in the proper discretion of the court.   In exercising its discretion, the court must inquire beyond only the petition party’s subjective desire to have the protective order extended.  Just because a judge found sufficient grounds to grant a protective order three years earlier does not necessarily mean sufficient grounds remain.

What Does the Court Examine When Determining Renewal?

In a 2004 California Court of Appeals case Ritchie v Konrad (2004) 115 Cal.App.4th 1275, the court laid out the factors the court considers when determining whether or not to renew a DVTRO.  Here are the factors:

  1. A trial court should renew the domestic violence prevention restraining order, if, and only if, it finds by a                preponderance of the evidence that the protected party entertains, a ‘reasonable apprehension’ of future abuse.
  2. The existence of the order itself often will be less telling than the facts supporting its issuance. ,The trial judge ordinarily should consider the evidence and findings on which that initial order was based in appraising the risk of future abuse should the existing order expire.
  3. It is relevant to the court to examine any significant changes in the circumstances surrounding the initial protective order as it may be that the opportunity and likelihood of future abuse has diminished to the degree that they no longer support a renewal of the order.
  4. If the abuse is not physical, it is also relevant to consider the burdens the protective order imposes on the restrained party.

 Who’s Burden Is It?

The burden of proof is on the protected party to prove to the court by a preponderance of the evidence that there is a reasonable apprehension of future abuse. It should be noted that the burden is very low.   The protected party only has to demonstrate it is more probable than not there is a sufficient risk of future abuse to find the protected party’s apprehension is genuine and reasonable.

If the protected party can meet their burden of proof, the restrained party will have to show there is NO reasonable apprehension.  This is done by demonstrating the factors the court can consider do not prove a reasonable apprehension.  For example, have the restrained and protected parties moved on with their lives so far that the opportunity and likelihood of future abuse has diminished to the degree they no longer support a renewal of the order?

Minella Law Group Can Help!

If you need assistance with a  Domestic Violence Restraining Order Renewal the qualified staff at Minella Law Group can assist you.

For more information or to schedule an appointment, click the button below, or call us at (619) 289-7948. We look forward to helping you.

 

In Divorce

Defining “No Fault” Divorce

In 2010, New York became the last state in the country to become a “no fault” divorce state. (California was the first to eliminate all fault grounds for divorce.) “No fault” means that it doesn’t matter why either party wants a divorce. All you need to get a divorce is for one spouse to say that the marriage is broken beyond repair. To translate that into legal terminology, the spouses are experiencing “irreconcilable differences.”

What is “At Fault” Divorce?

“At fault” (or “fault”) divorce refers to a legal system that only grants divorce if one spouse can show that the other spouse did something wrong. In other words, one spouse must be at fault for the failure of the marriage. Continue Reading

In Divorce

My Spouse Filed for Divorce: A Step-by-Step Guide of What’s Next

In California, it only takes one spouse to end a marriage, and your spouse does not have to prove you’ve done something wrong. If you’ve received a petition and summons for dissolution, your spouse is seeking a divorce. This can be a stressful and confusing time. The whole process takes at least 6 months to complete. Knowing what to expect can help ease the burden.

Responding to the Petition and Summons

In the petition, you can see what your spouse is asking of the court, including child custody preferences and support payments. The petition will also contain some restrictions on what you can do while the process moves forward, such as selling property or moving your children out of state. Continue Reading

In Family Law Blog

December 2013 Family Events

Here are a few family-friendly events happening in San Diego in the coming month. As always, if you know of an event you think the families we work with should know about, please let us know so we can pass it along.

 

San Dieguito Heritage Museum

Hands-on Activities for Families

December 7, 2013, 12pm – 4pm

450 Quail Gardens Drive Encinitas, CA 92024

 

City Ballet of San Diego

Sugar Plum Fairy Luncheon

December 14, 2013, 12 noon

Bristol Hotel, 1055 First Avenue, Downtown San Diego

 

 

Campfire San Diego

New Years Eve Kids Count Down & Overnight

December 31, 2013, 5pm

3101 Balboa Drive San Diego, CA 92103

 

 

In Family Law Blog

Where do You and Your Kids Connect?

According to tradition, the first Thanksgiving holiday became a monumental occasion marketing the intersection of two cultures—the Native Americans and the Pilgrims settling in the New World. The Native Americans helped the Pilgrims survive particularly harsh times, helping them understand how to farm the land, trap food, and many other critical techniques that would’ve cost many more lives if the Pilgrims had been left to their own devices.

Despite their difference and many ongoing challenges, these two unique cultures were able to connect and communicate in valuable ways. Let’s take this larger idea and bring it over to the challenges that parents can have trying to connect and communicate with their kids. Aside from the obvious age difference, there are many other variables that can impose a seemingly impassable divide between adults and children—but it doesn’t have to be that way!  Continue Reading

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