Category

Family Law Blog

box-on-bed

California Move-Aways: Can “Virtual Visitation” Be Part of a Divorce Solution?

By | Child Custody & Visitation

[this article has been updated since 2009 when it was originally published] 

New jobs and remarriage are two common reasons why divorced parents move out of San Diego or California. This may be on the rise with the increase of remote work due to the pandemic, but did you know virtual visitation has been around for years when it comes to move away scenarios.

Relocating or Move Aways

If you’re seeking to relocate with your kids, you’ll need the court’s permission first, or else you’ll be in violation of your court order.  Not that long ago a parent with sole custody had an almost unrestrained ability to relocate with the child, but California child custody law in move-away cases has gone through many changes in the past several years.  To decide whether to allow the move, the family court now looks at many factors, including whether the move would harm the child and how the child’s relationship with the non-custodial parent will likely be affected.

Read More

Legal Separation vs Divorce

By | Divorce, Family Law Blog, Legal Separation

Legal Separation and Divorce: What’s the Difference?

When you and your spouse file for a divorce, you are essential asking for a judge to end your marriage, allowing you to legally separate and divide your finances and assets between yourself and your spouse. In contrast, when you apply for a legal separation, you draft a settlement agreement with your spouse that will explain the responsibilities and rights each spouse maintains despite living apart. During this time, you will still remain legally married, however, you will be choosing to live separately.

What is a Legal Separation Agreement?

Many financial professionals suggest that if a spouse is looking to spend time apart from their husband or wife for a period of time that extends beyond a typical trial period, they should probably obtain a legal separation agreement, which will help to resolve issues such as alimony and spousal support, division of assets and debt, and child support and visitation rights.

In some cases, a legal separation agreement can help you to reduce some financial risk. Since if you decide to live separately from your spouse without one, you could still remain liable for any debts and legal issues your spouse is involved with, despite the fact that you may not be living together. A written agreement regarding your separation would limit your liability for debts incurred by your spouse during the time in which you are separated.

Will California Recognize your Legal Separation?

The laws on divorce and separation can vary from one state to another, but each state will typically fall into one of three categories, including:

  • Those which require a legal separation before partners can file for a divorce.
  • Those which neither recognize nor require a legal separation.
  • Those which recognize a legal separation, but do not require one.

Here in California, the state will not only recognize your legal separation but it also does not require one.  It is a choice that you and your spouse will have to make depending on what is best for your situation. Some parties choose to have their marital status remain intact for insurance reasons, others for financial.  It is best to weigh the pros and cons of both before making a decision that can impact your estate.

The Impact of Legal Separation on a Divorce

It is essential to remember that once you have decided to legally separate from your spouse, the decision must be taken seriously. It is a binding, legal contract which some states do recognize to be just as important as divorce. In California, the terms which you may agree to within a legal separation agreement could set a precedence that is difficult to get out of at a later stage. For example, if you agree to your wife living in the home the two of you bought while you were married as part of your legal separation, and continue to make the mortgage payments for that house or home, a judge may demand that you continue doing so after you file for divorce.

This is why many professionals suggest that you should never agree to anything within your legal separation agreement that you would not consider in the process of negotiating for your divorce settlement since you may regret it later. It is also a magnificent and salient idea to speak to a lawyer before you attempt to come to terms with your partner alone. You certainly do not want to sign anything without an attorney’s approval. If you can work things out amicably with your spouse with getting other people involved that is wonderful but you have to be very careful about what you sign and agree to.  It is always best to consult an attorney to make sure that you are fully aware of your rights and the consequences to any provision that you sign.

Minella Law Group Can Help

Our experienced San Diego legal separation attorneys are here to advise and protect your best interests throughout the legal separation process, both in court and through negotiations. If you’ve decided to legally separate, we can advise you and file the necessary legal papers with the court. Contact us today to schedule your no-cost consultation at Minella Law Group.

low-cost-divorce

I Can’t Afford a Legal Retainer, Can I Still Get Divorced?

By | Divorce | No Comments

[This article has been updated for 2020]

Many people going through a divorce feel helpless, their first instinct is to reach out to an attorney. Family Law attorneys however, can be expensive and not everyone can afford to hire a divorce attorney.

San Diego has plenty of resources at everyone’s disposal to help in these instances. This is important now more than ever as many people have been impacted by global events this year.  Here’s a breakdown of options for affordable divorce resources.

Low or No Cost Divorce Options

All of the courthouses in San Diego have Family Law Facilitators. They cannot give you legal advice, but they will walk you through filing all of the paperwork you need, based on your situation. They provide assistance on a first come, first served basis, so it’s always beneficial to get there early.  

If you are looking for an attorney but cannot afford the sometimes $5,000+ for a retainer, there are attorneys who work on a volunteer basis. You can find those individuals here.

There are also pro bono attorneys, who work for no cost, in addition to legal aid. Both of these resources will have attorneys who can assist you, if you cannot afford one.

The Modest Means Program is designed to assist clients who are having a family law dispute and are able to pay for legal services but have limited financial resources available.

If none of these programs interest you or are the right fit, the San Diego court website has a full list of resources to assist in your Family Law matter.

 

photo-of-woman

Divorce During The COVID-19 Pandemic

By | Divorce | No Comments

If there is one thing this pandemic has taught us is to survive, we must adapt.  When I speak of survival, I don’t just mean survive the virus, I refer to all facets of life including home life, parenting, work, or running a business.  Every aspect of our life has to adapt to this new way of life. 

THE CHANGING FACE OF DIVORCE: WATCH VIDEO FOR LATEST

For work, we were forced to learn how to work from home literally overnight.  Working from home requires a level of personal motivation and discipline that not everyone has.  However, we didn’t have a choice and now our living rooms have become our office.  Those same living rooms have been turned into a classroom and parents have become teachers.  Now not only we are juggling working from home and parenting, now we have to also manage schedules, distance learning, and homework.   To survive, we adapt.  We adapt because we have to. 

This same philosophy applies to businesses.  Businesses can either shutter and potentially not reopen, or you adapt to survive.  You have restaurants becoming grocery stores, bakeries selling at home cookie kits, restaurants modifying their menu to purely takeout, bars selling at home margarita kits.  Everyone has to adapt to survive because the reality is, this situation is not changing anytime soon.  

The same goes for divorce or the other issues that come with divorce such as custody disputes or division of assets.  We need to adapt to survive.  The San Diego Superior Court has provided information that tells us it will remain closed so long as the Shelter in Place order remains in effect, and right now it is closed until at least June 1, 2020.  Another 6 weeks at minimum without access to a judge who can make orders to resolve disputes.  This leaves us with a conundrum, do we sit and wait for the eventual reopening of the court or do we adapt?

I view myself as a professional problem solver, a client comes to me with a problem and I find ways to solve it.  The problem now is how do we move a divorce forward while the court is closed?  There are many ways to move a divorce forward by utilizing resources such as mediation, arbitration, settlement conferences, and custody evaluators.   Each of these options will push the process along and allow dispute resolution to continue.  

For example, let’s say Husband and Wife are arguing over custody and cannot come to a conclusion.  The parties can utilize the assistance of a parenting coordinator or a retired Family Court Services counselor to assist them by recommending a parenting plan just as if the court was open.  This can all be done remote using Zoom or Microsoft teams, no one needs to leave the comfort and safety of their home.  From there, we can work out a plan using the recommendation as a guide and draft a stipulation to be filed once court is accepting filings.  Now this process only works if both parents are committed to dispute resolution, but if they are this is a means to an end.  

Another example, parties disagree over division of assets, support calculation and payment of attorney fees.  The parties can utilize the services of a retired judge to act as an arbitrator and provide to us their opinion using the law to say what they would do as the judge.  This again can be done remote using any of the platforms available.  Arbitration is non-binding, but an informed decision can be made on whether to settle or wait and have the same outcome.  Armed with the opinion of a judge who sat on the bench for years, the same bench your current judge sits on, will give you informed insight and may help you reach an informal resolution.  

These are just a few ways your divorce can move forward despite the court being closed.  What is important is you have options that do not require sitting and waiting, you can take action to better your living situation, you can take action to resolve disputes, and you can take actions to end the conflict.  

adult-alone

What to Do About Domestic Violence During COVID-19

By | Domestic Violence Restraining Orders | No Comments

While Coronavirus has changed our lives with sheltering in place, restrictions on our day to day activities, and causing health concerns for many people, staying home has created unintended consequences including a rise in domestic violence.

With increased stress and potential increased substance abuse, this can lead to increased risk of domestic violence.   

To victims of domestic violence, these restrictions can be life threatening.  Alarmingly, since the start of the pandemic, there has been a rise in reports of domestic violence.  There are no escapes or ways to cool off and people are forced to quarantine together which can make an already dangerous situation even more dangerous.

During this shelter in place, many victims of domestic violence may be too scared to seek help or with so many closures of public resources and a limited access to justice, victims of domestic violence may feel as though there is nowhere to turn.

The San Diego District Attorney’s office has created special resources online in both English and Spanish for victims to seek help. Although San Diego Superior Court remains closed for most functions, all four courthouses in the county remain open Monday-Friday for restraining order requests.

The court will review your request remotely along with any evidence you submit and issue a restraining order if the court finds you have met your burden of proof. The restraining order can include move out orders forcing the domestic violence perpetrator to leave the residence, so you are protected.  The restraining order can also include temporary custody orders, if children are involved, and orders for one party to continue making monthly financial payments such as cell phone bills or rent.

If you are a victim of domestic violence or are in immediate danger of further violence, the attorneys at Minella Law Group, can help.  We offer remote services to meet with you and prepare your case for filing, the shelter in place restrictions do not prevent us from continuing to serve our clients to the best of our abilities.

ask-a-divorce-lawyer

Ask a Divorce Lawyer: 10 FAQ’s

By | Divorce, Family Law Blog | No Comments

When facing a complex family legal issue like divorce it’s natural to have a lot of questions. Learning the basics about proper proceedings, laws, and what to expect, can go a long way in helping you deal with this often emotional and difficult time.

We often get asked the same questions by potential clients in our initial consultation and though the specific facts of your case may vary, these commonly asked questions generally apply to most, if not all, divorce matters in California. We hope you find them useful!

1. How much will my divorce cost?

Beyond the $435 filing fees each for a complaint and first response, it isn’t possible to come with an exact figure, though there are some factors that control what it may cost. An uncontested divorce is almost always less expensive. If there are disputed issues over child and/or spousal support or division of property, there will be a greater time commitment on an attorney’s part which translates to higher costs.

2. How do I start the divorce process?

It begins with the filing of a summons and petition for dissolution of marriage. The forms have both boxes to be checked off and narrative sections. Once the paperwork is accurately completed it’s submitted to the proper county court.

People often ask, too, if it matters who files first. The short answer is no. There can be exceptions, such as gaining an advantage in jurisdiction, you need immediate custody or support orders, and/or if there is a potential risk to community assets.

3. How do I apply for temporary child or spousal support?

Once the petition is filed and served you can file a request for order with the court asking for temporary child and/or spousal support. The court will set a hearing date at which time the judge will determine if such an order is necessary.

4. Can the custodial parent move to another state or country?

The court must decide on the matter and it will always depend on the child’s best interest. If you’re a non-custodial parent who find themselves in this situation and opposes it, it’s important to take steps as early as possible so the court understands you want to continue visitation with your child.

5. How long will my divorce take?

Simple divorces can be finalized in a short period of time, sometimes days or weeks. A contested divorce can drag on for years. Working with an experienced family law attorney can help minimize the time your divorce takes as well as how much it will cost, all while protecting your rights and interests.

6. How is property divided in California?

In California all property is considered either “community” or “separate.” At your divorce, the court will divide community property (property acquired during the marriage), equally between the parties. Separate property, or property that’s acquired before marriage, after separation, or by gift or inheritance (even during the marriage) is deemed to be the sole property of the person who acquired it.

7. Can I handle my divorce myself?

Yes, it is possible to handle your own divorce. But divorce proceedings in California can be complicated and you may not be aware of all your rights. To make sure they’re protected, it may be in your best interest to work with a qualified divorce attorney.

8. Can I get my spouse to pay for my attorney fees and costs?

To ensure both parties have access to equal quality legal representation, the court has the authority to order one spouse to pay some or all of the other spouse’s fees and costs. Talk to a family law attorney about the ways you may be able to obtain funds from your spouse, so you have adequate representation.

9. What are the grounds for divorce in California? What if my spouse cheated on me?

California is a no-fault divorce state and most divorces are granted on the grounds the marriage bond has been broken. Citing wrongdoing of your spouse, no matter how egregious it might be, isn’t required or even permitted. The only other “ground” for divorce in the state is incurable insanity and the burden of proof is high.

Divorcing couples in California must also meet a residency requirement with at least one of them being a resident for at least six months and a county resident for at least three months before filing for divorce.

10. What is the difference between legal separation and divorce?

California is one of the few states that allows legal separation as an alternative to divorce. You still go through a legal process, but you remain married while living separately. This option is typically chosen for financial reasons.

While this list is not exhaustive, it certainly touches on the most commonly asked questions. If you have additional questions and would like to set up a time to speak with one of our experienced San Diego Divorce Attorneys, please give us a call..

kid-learn-win

Website Ideas for Kids During COVID-19 Distancing

By | Family Law Blog | No Comments

You just found out your kids are out of school for a whole month due to Coronavirus protective measures. Now what?

Your kids might want to spend the next month sleeping in or watching YouTube videos but self-isolation isn’t a vacation. This sudden closure of schools is disruptive to a child’s education and they may not understand what is going on. As parents you may have concerns about your children falling behind in school, boredom, or you would like to prevent endless hours of television watching.

Thankfully, the internet has many ideas, schedules, curriculum, and activities to keep your children busy during Coronavirus self-isolation.

Here are a few websites to help keep your sanity during the next couple of weeks:

  1. San Diego Unified School District – Instructional Resources This resource provides curriculum from San Diego Unified Schools to help keep your children from falling behind with their courses. They even have ideas for P.E. and wellness during this time off from school. 
  2. The Monterey Aquarium – Live Cameras A live look at several exhibits at the Monterey Aquarium, including the Jellyfish Cam, Kelp Forrest Cam, and Penguin Cam.
  3. Khan Academy A non-profit educational website with free schedules and curriculum resources for all grade levels for use during the school closures. 
  4. PBS Kids This website has children-friendly videos and games for fun yet educational screen time. You can also sign up for a newsletter that provides daily ideas for at-home fun and education.
  5. Red Ted Art Tutorials Easy and creative follow along craft and art tutorials for preschool and elementary aged children.

At Minella Law Group we know these are difficult times and we remain working on your cases remotely, ready to assist you with any family law issues that may arise.

How Can I Prevent My Tax Refund From Being Intercepted For Outstanding Child Support?

By | Family Law Blog | No Comments

If you are ordered to pay child support under California Family Code section 3900, the parent receiving the payment has the right to have the order enforced through interception of tax refunds.

If you are the parent paying support and have or fear you are about to fall into arrears on paying, it’s important to know that since 1993 the State of California Franchise Tax Board (FTB) has been given the authority to enforce child support orders through state and federal tax refund interception.

Other consequences for falling behind include having your wages intercepted, being charged with a misdemeanor, revocation of your driver’s license, and an increase in monthly ordered support.

How the Law is Applied

The FTB currently manages all child support collection in California. If you’re a state resident and fall behind in child support payments, the FTB and IRS will work with one another to ensure you contribute the court-ordered monies. If you receive a “Demand for Payment” from the FTB, you have 10 days to pay the past-due amount before the IRS gets involved. If you do not pay, you risk losing your tax refund.

There are several ways the FTB identifies and reports child support arrears:

  • Your state refund is intercepted as soon as you’re $100 past due.
  • When you fall behind by $500 the IRS is notified.
  • If your child receives public assistance from the State of California, the law allows the FTB to notify the IRS when the arrearage is $150.

Notice of Demand

The FTB’s Demand for Payment requires that you pay the entire outstanding amount within 10 days. It is not enough to make a partial payment. If you’re unable to make full payment, a notice will be sent to the IRS to intercept your refund. You’ll then receive a notice from the IRS explaining why you won’t receive your tax refund or how much will be taken out to cover the amount in arrears.

If you’ve already received your refund for last year’s taxes, the FTB continues to send monthly notices regarding your account. If you’re able to pay your arrears before you file your next tax return, nothing will happen. Otherwise, once you file, your IRS account will be flagged, and all refunds will be used to satisfy your outstanding debt. There is no statute of limitations.

What You Can Do

Please keep in mind that it is not true that if you are late in your child support payments you will not be permitted to see your child.

If you’re behind in child support or believe you will be, your first step should be to talk to an experienced family law attorney who understands that child support obligations can become an overwhelming problem that can hurt both your financial standing and the welfare of your child. You do have options, including requesting a modification in child support or setting up an affordable payment plan.

What is Domestic Violence?

By | Domestic Violence Restraining Orders | No Comments

Domestic violence has been called an epidemic in the United States and includes physical, sexual, emotional, and economic abuse. Each year over 12 million women and men in this country are victims of what’s referred to as “intimate partner violence.”

California is a no-fault state on divorce but there are instances where fault can be a factor, including a domestic violence conviction. Domestic violence can influence property division and child custody matters, too. It’s important to understand how California courts view domestic violence and how it is handled during a divorce case.

What is Domestic Violence?

In California, domestic violence as defined by the courts involves a minor or serious injury against a close family member or intimate partner. Under California’s Domestic Violence Prevention Act, special rules apply when dealing with domestic violence charges, including spouse and abuse and child endangerment.
“Violent actions” can include:

  • Physical and/or sexual assault.
  • Threats of harm, or threats to harm someone else.
  • Harassment and/or stalking.
  • Destroying the other person’s property.

Two people do not need to live in the same residence for domestic violence to occur. Any abuse by a spouse, former spouse, current or former cohabitant, someone the abuser has or is having a child with, or someone in a past or current dating relationship is considered a crime.

How the Courts View Domestic Violence

Not only is domestic violence considered a serious crime in California, it is aggressively prosecuted. Any violent or threatening act, even if the alleged abuser did not intend to harm the other person, can be grounds for prosecution under California’s domestic violence laws.

If police believe domestic violence has taken place they are mandated by California law to arrest the perpetrator. That is, if the officer has probable cause to think one person has abused a partner, spouse, or other family member, an arrest must be made regardless of gender or other factors like sexual orientation, and even if the person who was allegedly attacked says they do not want to press charges.

Domestic Violence Restraining Orders

In order to protect someone from physical abuse, harm, or threat of abuse or harm, courts will issue domestic violence restraining orders. There are four such orders in California:

  • Domestic Violence Restraining Order
  • Workplace Violence Restraining Order
  • Civil Harassment Restraining Order
  • Elder or Dependent Adult Abuse Restraining Order

Depending on which order is obtained, there will be actions the restrained person must comply with including not contacting the alleged victim, paying certain bills, moving out of a shared residence, and being denied the right to carry a gun. Violation of a restraining order comes with severe penalties.

Domestic Violence and Child Custody

Physical and legal child custody can be affected by domestic violence charges. California law has strict guidelines that determine how the law will apply in a specific case. In all cases, the courts strive to put a child’s safety first, devising a parenting plan that keeps everyone safe.

The Benefits of a Domestic Violence Attorney

If you or someone you know is facing domestic violence charges, or if you and/or your child are the victims of domestic violence, an experienced family law and criminal defense attorney can help you understand how the laws apply to your case. Talk to them about your concerns with respect to visitation, restraining orders, and other matters so they can fully represent your interests in court.

grayscale-court

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.

Schedule a Complimentary Consultation