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In Divorce, Family Law Blog

How to File for Divorce in California

              

How to file for divorce in CaliforniaInitial Reactions: How to File for 

 Divorce in California

 

Divorce is  difficult! The process of divorcing can be extremely painful for a person, and for a couple. Sometimes divorce completely takes you by surprise even if you felt it was a possibility. You have so many feelings tied up together that you are going to have to sort out. You may find yourself depressed, angry, emotional, unable to sleep or any number of feelings. You might have feelings of worthlessness, guilt or shame but it is normal to feel this way. With four simple words, ” I want a divorce, ” your world has changed, you have stepped out of your normal everyday life.. You may feel your world has shattered or broken. You are probably feeling confused and unsure of what to do next or who to go to for help. You instantly begin thinking about how to file for divorce in California. Not knowing the answer to the question how to file for divorce in California can be VERY stressful, but rest assured there are plenty of resources and help available.

Where to Begin When Determining How to File for Divorce in California?

There is so much involved in dissolving a marriage between two people. You are also dissolving the life you had come to know. Money, children, debts and the division of property become huge deals. It can be quite lengthy to divorce and there are many steps along the way. Regardless of your divorce being uncontested or contested there is a lot of time and paperwork involved. All of the paperwork must be prepared and filed in a certain order and in the proper locations. It can really ease the burden of divorce to have someone knowledgeable assist you to fill out all the proper forms that are required, as well as guide you through how to file for divorce in California.

California is considered a No Fault State for Divorce

No fault basically means the petitioner doesn’t have to have a particular reason or prove anything in order to divorce. All it takes is one person wanting out of the marriage. There are different types of divorces. Some are amicable and some get nasty, and everywhere in between. California wants to divide the marital assets and debt equally, family court is a court of equity. Other factors need to be taken into consideration however because it’s not always that simple. Factors such as child support, spousal support, disabilities, stay at home parents and many other issues need to be considered. At times like these it can be really helpful to know where to go and who to ask for help. Thankfully you do not have to do this alone. Here at Minella Law Group, we go through the work with you and for you. We are there every step of the way to ensure your rights and to make the process as easy as possible during this very difficult time.

My Spouse and I are in Complete Agreement to Divorce

If you and your spouse are in agreement over everything, this makes the divorce process much easier and it can save money. Your lawyer can help negotiate the issues that are holding up the settlement and inform both parties of their rights so that you both will be able to decide your total settlement and not have to step foot in a courtroom. This can be extremely beneficial especially if there are children involved since the stress of negotiating settlement will show. In some cases you may still need to make an appearance to agree that the paperwork filed for you is correct. It is important to remember that even if both parties are in full agreement, it will still take 6 months to finalize your divorce.

Couples Not in Agreement in Divorce Process

For couples who can not agree on anything, the divorce will need to be filed contested. These are difficult and can really take their toll emotionally on a person. This is why having Minella Law Group to protect your interests can be so important. We will fight for your rights to ensure that you get your fair share of the marital assets. We want you to experience as little heartache as possible so we will be the ones arguing for you. We will be there with you every step of the way and offer support as only an experienced family lawyer can provide. Divorce is difficult but together we can help you get through this process. We want you to be able to move on to begin the rest of your life with nothing holding you back. Divorce does not have to be the end, only a new beginning.

Summary

No matter your situation, divorce is not a fun process.  Filing for divorce is not something people anticipate but when you are facing divorce,  knowing how to file for divorce in California will help you take the initial steps.

Minella Law Group can help you with your divorce.  For more information or to schedule a consultation, click the button below, or call us at 619-289-7948.  We look forward to helping you.

 

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In Divorce, Family Law Blog

5 Steps to Take When Filing For Divorce

Filing for Divorce

 5 Steps to Take When Filing

Filing for divorce is not an easy decision and then once you make the decision the process is not easy. There are steps to take to ensure the process goes smoothly and efficiently.

1. Consider an Attorney vs. Mediation

Because divorce is a legal action, professional advice is necessary in many cases. Some people represent themselves in a no-fault divorce, but hiring a divorce lawyer can help answer questions, and guard against any problems that may arise during the divorce proceedings. In an amicable divorce case, another option is mediation, which can be less costly but not provide the same safeguards as a lawyer, who is hired to care for the best interests of their clients. Divorce is an emotional process, and the longer the marriage the more there can be to negotiate, especially when there are children involved. This should be one of the first things to consider when filing for divorce

2. File

Divorce proceedings start with filing for divorce, you have to file a petition for divorce. Because of the legal nature of the document, a lawyer can help ensure that the forms are filled out correctly and all questions are answered in a clear, correct manner. The paperwork deals with issues such as joint property, shared assets, support and attorney fee requests. It is important that these documents are filled out properly to ensure that your rights are not waived. However, more forms may be required for couples with children. Once the paperwork is filed, the court assigns a case number and the official process begins.

3. Financial Disclosures

The disclosure portion of a divorce is like a show-and-tell of financial and property holdings. Each party in the divorce has to disclose all assets, debts, incomes, and expenses. Honesty is the best policy here, and a party can get into legal hot water for not disclosing with full factual information. Disclosing more than necessary can be the best policy, so that one party can’t take issue with the information given and draw out an already painful process.

4. Settlement Negotiation

After preliminary disclosures are made, the tough work of settlement negotiation begins. Most divorces can settle out of court with the help of lawyers. There are several types of common divorce settlements, including:

  • Negotiations between lawyers acting on behalf of their clients, who are not present;
  •  A settlement meeting where both lawyers and clients are present;
  • A divorce mediation, which is attended by both spouses and a retired family law judge. While lawyers  may attend, however some couples decide to go without their legal teams; and
  • A court settlement, where the case goes to trial in order to settle.

Regardless of the method chosen for the settlement negotiations, your case will have to end sometime.  You can save a lot of time and money by working together to come to a settlement rather than going to trial.

5. Waiting Period

In some states, such as California, there is a mandatory waiting period between separation, serving the divorce documents and filing the official petition. Even in the best case scenario where spousal support, asset negotiation and child support are agreed upon with no conflict, there is a six month waiting period before the divorce can be finalized.

Summary

If you are in the process of filing for divorce or are thinking about filing for divorce, there are steps to take to ensure an efficient process.  The process can be daunting since there is a lot of paperwork, consider hiring an experienced family law attorney to guide you through the process.

Minella Law Group can help you with your divorce.  For more information or to schedule a consultation, click the button below, or call us at 619-289-7948.  We look forward to helping you.

 

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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 Mediation

How to Oppose Move Away Request

How to Oppose Move Away Request

A legal relocation or move-away situation typically occurs when one parent wants to move with their child or children to another part of the country. In these particular cases, the ruling of a California court can have a serious impact on the child and the parents alike. If you have recently been served with documents in California requesting a move away, your automatic reaction might be to panic. Don’t panic, you can successfully oppose move away request.

Your Influence on Your Child is in Peril

A lot of people find that they feel angry and betrayed, and it can be difficult to contain your emotions, but you must remember that it is important to focus. In these situations, your child’s future with you is likely to be at stake. This is particularly true if the other parent wants to move several states away or completely out of your practical reach. You’re going to need some help.

Bear in mind that move away requests do not always require an order from the court, and some circumstances allow a custodial parent to presume the right to take their children away from a certain location without order from the court. This is why any individual who is concerned that the other parent may take their child to another location should act quickly and speak to a qualified and experienced lawyer.

How to React to a Move Away Request

Perhaps the best thing that a noncustodial parent can do to oppose a move away request is to prove that the relocation would be detrimental to the children involved. This will cause a California court to consider whether a not a move is in the best interest of the child or children. These are just some of the things that a judge will typically consider when it comes to deciding whether to oppose a move away case or not:

  • The distance of the move
  • The age of the children in question
  • The instability of the children and the custodial arrangement
  • The relationship of the children with both parents
  • The wishes of the children if they are at an age that allows inquiries to be made
  • The reasons for the move
  • The relationship that exists between the parents, including their ability to cooperate and communicate with one another
  • The extent to which custody is currently being shared

The Big Picture

By accessing the help of a lawyer that is works in and knows California family law, you may be more capable of proving to a court that the move away request could be detrimental to your child. This is ultimately what you need to successfully oppose a move away request.  Your goal will be to persuade the court that is considering the request that moving is not in the best interest of the child. To do this, you may consider where the child will go to school, and how that school ranks in comparison to their current education.

You could also think about what sort of support system your children will have when they move to their proposed new home, and whether the other parent has planned appropriately for the move in question. Usually, your attorney will be able to help you come up with viable points to argue in your defense.

Minella Law Group Can Help!

If you want to oppose 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 an appointment, click the button below, or call us at (619) 289-7948. We look forward to helping you!

In Mediation

Mediation vs Collaborative Divorce

Mediation vs Collaborative Divorce

Points to Consider

When it comes to finding a peaceful resolution in divorce, neither collaborative divorce nor mediation will be the correct path for everyone. The approach that you choose to utilize will depend on the unique factors within your case, individual preferences, and your ability to access outstanding attorneys and mediators.

It is important to understand the differences in your options. The primary feature of mediation is that a professional neutral party, the mediator, helps you negotiate terms with your partner, but has no authority themselves to decide the outcome of the case. Mediators are typically flexible and informal but they are a neutral and will not give you legal advice.

The primary feature of collaborative divorce is that both spouses will be represented by an attorney, who helps them to come to terms and sign a ‘no court’ agreement. The parties are still negotiating out of court but they are all working together to achieve a settlement.  With collaborative divorce, spouses negotiate through four-way meetings, and attorneys may involve other professionals within the case. Similarly to mediators, collaborative divorce is informal, flexible, and efficient.

Factors that can Lead to Favoring Collaborative Divorce 

Someone who feels as though they need the guidance and support of an attorney throughout their case may appreciate collaborative divorce. In some cases, your circumstances may include complex financial or legal issues that you don’t feel capable of negotiating yourself. In a collaborative divorce, two attorneys help to guide each step of the case, ensuring that you have a professional to confer with, whenever necessary.

Sometimes there are dynamics in a divorce where the parties do not get along.  One spouse may feel that they are being taken advantage of or not being heard, you may feel strengthened by the structure a collaborative divorce can bring. Having a quality collaborative divorce attorney at your side can give you the confidence to voice what’s important to you.

Factors that can Lead to Favoring Mediation

Mediation can be more flexible than collaboration, as there only needs to be three participants present, the spouse, you, and the mediator. Mediation is also more flexible in the procedures that you will be expected to follow, meaning that you could have more input in how and when things happen during your case. With mediation, you work directly with the mediator in deciding the substance and process of your case. Some people regard mediation to be more efficient and inexpensive than collaboration.

The reason for this is that you do not have to co-ordinate the calendars of four different people or more, at least two of whom will be busy professionals. Getting everyone together for meetings during a collaborative dissolution can be a time-consuming endeavor, which may add to the cost of the overall process.

Furthermore, California provides laws that are dedicated to protecting the confidentiality of things that are said during mediation, however no such laws have been put into place when it comes to collaborative dissolution. Although you do share attorney-client confidentiality, the four way meetings you take part in will not be considered ‘confidential’ discussions.

Obviously, there are positives and negatives to both options, and you may benefit from discussing your choices with a legal professional before making any final decisions.

 Minella Law Group Can Help!

It is important to hire an experienced collaborative divorce attorney such as Minella Law Group with knowledge and experience to successfully negotiate your divorce without involving the court. 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 Child Custody & Visitation, Family Law Blog, Military Divorce

Fathers Visitation Rights in San Diego

Fathers Visitation Rights in San Diego

Maintaining fathers visitation rights after a particularly heated divorce or during a separation procedure can be complicated.  It really helps to understand what fathers visitation rights you have as a father under California state law. If you and your ex have recently filed for divorce, the chances are high that you are going to be going through an emotionally fragile situation.  It is very likely that making strategic and sensible decisions may be more difficult, having emotional support through this process is important.

Knowing what fathers visitation rights in San Diego are in comparison to other custody orders, may help to ensure that you are well informed.  This is important so you do not lose any of your entitlements as a Father that you so desperately need in order to be able to continue to provide the care and attention to your child.  It is important to understand fathers visitation rights in San Diego.

What’s the difference between Legal Custody and Physical Custody?

Physical custody refers to the place in which the child will live, whereas legal custody refers to the individual rights of the parent to make decisions in the best interest of the child. This may include a parent deciding which school the child will attend, or whether they will seek certain forms of medical attention. As a father, you have the right to make decisions about your child with the other parent jointly.  Fathers visitation rights includes having joint legal custody to be able to make decisions about your child with the other parent.

The Role of Mediation in Visitation and Custody

Most of the time, when a couple is going through a divorce, the judge in question may order them into mediation in an attempt to resolve the dispute with as little conflict as possible. The idea is that the parents, by working together with an objective individual, will have the best opportunity to create a plan that protects the child’s best interests, and gives them both the results they need. The only threat that a mediator can present to a divorce case takes place if the couple going through the divorce cannot come to a reasonable agreement during their mediation sessions. Fathers visitation rights are addressed in this process, in San Diego mediation is a mandatory part of a custody case.

If an agreement cannot be formed, then the mediator will construct his or her own recommendation for the best options in visitation schedules and custody options. Since mediation is mandatory in San Diego, most judges will automatically give the recommendations of a mediator automatic approval, however if you do not agree with the mediator’s suggestion, you do have the right to contest the decision at court with an evidentiary hearing.

The mediator will take into consideration who has been the primary caregiver, where the parties live, how often the parties work, and the desires of the child.  It is important to fathers visitation rights, that these factors be presented accurately as it can mean the difference between joint physical custody or seeing your child on alternate weekends.

Rights to React Against Slander and Insults

When in the process of a divorce, insults usually go back and forth between the former wife and husband when they are alone and out of earshot, turning the children involved into prisoners that are caught between two important people in their lives. The result of this could be that your ex-wife starts to bad-mouth you in front of your children, which can be highly upsetting for you.

As a father, you have the right to keep the other parent from alienating you from your children through insults, by requesting a hearing that allows you to seek sanctions against your ex-wife. The rights of father’s in custody and visitation cases are more expansive in certain states than others. In California, for example, this may not be case and this is why you need to have a hard working and committed attorney who is walking you through this process so you know what the law is and how this affects you. Every case has different orders, as part of your fathers visitation rights you can make sure the orders include restrictions on communications with any minor children.

Minella Law Group can Help!

The dedicated attorneys as Minella Law Group can help guide you through the difficult and emotional process of seeking custody orders as a father in San Diego.  Minella Law Group is experienced in child custody cases 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 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, Family Law Blog

How To Request a Restraining Order

How To Request a Restraining Order

A judge in San Diego may issue a restraining order as an official order prohibiting a particular action. An individual may seek a restraining order for various reasons, including copyright infringement, domestic abuse, harassment, legal disputes, and employment disputes. Anyone who applies for a restraining order must first send a request to their local court, which will determine the merit of the request by examining the evidence submitted.

Although restraining orders are limited in their duration, restraining orders are typically used as a form of immediate relief if  the petitioning party requires instant action to prevent harm or harassment. Although a permanent order can be possible, this usually takes months to to allow the parties time together evidence for a  full formal hearing. However, the process of obtaining a temporary order can be completed in a matter of days.

What to do First When Requesting a Restraining Order

Your first step in obtaining a restraining order will be to speak to an attorney who is experienced in the area, usually one specializing in family law. If you are concerned about an ex harassing you, or a spouse, then a family attorney could help to handle the details of a restraining order for you as well as the custody or divorce aspect of your case.

Next, you will need to gather as much evidence as possible to support your case. Remember that simply presenting a ‘He said’ or ‘She said’ case in court can be problematic, and ideally you should have more than just an accusation that an individual did something requiring a restraining order. Evidence can be gathered in various forms, you might for example, use threatening texts or emails, pictures, documents or even recordings of harassing phone calls. Police reports or witness statements can also be used to support your position.

Preparing a Request for a Temporary Restraining Order

This is usually a step that you should take with your family law attorney. In simple terms, you will need to prepare a document that will inform the judge what you want, and the reasons why you want it. Usually, these documents come in two types, the first, standard option simply asks for a restraining order temporarily and sets a date to have both parties appear before a judge.

The other document requests an ex parte restraining order, and this refers to a situation wherein only one party attends the court to ask the judge for an order. Typically, if a judge grants an individual an ex parte order, she or he will then set a hearing within fourteen days, allowing the other party to give their side of the story.  There may be children involved in this request, if there are a child visitation request also needs to be included with the request.

What Happens Next

The judge will review your paperwork that day and decide if a temporary restraining order should be granted or denied.  Whether it is granted or denied, a hearing will be set where both parties will have to appear at that hearing.  A notice will be officially served to the opposing party providing them with the date that they must attend the hearing. In this case, your attorney will use a process server that will handle the issue for you, meaning that you should not be asked to serve the notice on anyone’s behalf. Beyond this, all that will be left for you to do is to attend the hearing. Dress smart and do your best to stay calm throughout the proceedings, even if you feel yourself getting emotionally involved. The more clearly you can explain your position, the better chance you have of the process going smoothly.

Minella Law Group Can Help

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 below, or call us at (619) 289-7948. We look forward to helping you.

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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.

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