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Family Law Blog

Why is Jurisdiction So Important?

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We should start with what is jurisdiction exactly, jurisdiction is the legal authority for the court to hear a case.  If the court does not have jurisdiction, it simply cannot hear the case and you will have to take the case to the appropriate jurisdiction.

Watch Kathy Minella Explain In Depth

How do you know if San Diego court has jurisdiction?

Sometimes it is very obvious to determine where jurisdiction is.  

For example, if your divorce was processed in San Diego and never registered anywhere else, jurisdiction will remain in San Diego.  

Another example would be if your child custody order was made in San Diego and the child still remains in San Diego, of course San Diego would be the appropriate place to litigate custody.  

There will always be times where it is not obvious but as a rule of thumb…

If the child is not in San Diego and neither party is in San Diego, it is highly likely jurisdiction resides somewhere else.  

CHILD CUSTODY JURISDICTION

Any issues concerning child custody are governed by the Uniform Child Custody Jurisdiction and Enforcement Act also referred to as the UCCJEA.

 The UCCJEA requires the action involving the child to be filed in its home state.

This is either where the child has lived for at least 6 consecutive months prior to the case being filed, or if the child is no longer in the state, where the child lived within the six months before commencement of the proceedings.   

If an action has already commenced and a parent is seeking modification, another state can modify the original order only if the new state has jurisdiction as the home state and the original court declines to exercise continuing jurisdiction, or the proposed state is a more convenient forum, or no one including the child lives in the original state.  

It is important to contact an attorney in the proper jurisdiction to hear your case, as if you file a case in the wrong jurisdiction you will have to start all over again in the proper jurisdiction.

CHILD SUPPORT JURISDICTION

Any issues concerning child support are governed by the Uniform Interstate Family Support Act or UIFSA.  

This gives continuing jurisdiction to one state to avoid conflicting orders. Just as with custody, the originating state will always have jurisdiction over support so long as one of the parents remains in the state.

This is important as the guidelines applied will be based on the originating state. As an example, say the child support order was created in San Diego and parent and child move to Nebraska, the child support order will remain at California guidelines so long as the payor lives in California even though parent and child have a lower cost of living in Nebraska.  

Reverse that if the originating order is in Nebraska and parent and child move to California, they will receive child support based on Nebraska standards so long as the payor remains in Nebraska despite the higher cost of living in San Diego.

If you believe San Diego court has the ability to hear your case contact our office.  If you need to find an attorney where your case should be hear you can always contact the bar association in that jurisdiction to find an attorney who specializes in family law to assist you.  

Do I Qualify For Summary Dissolution

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Dissolution is the official term for divorce in California.

There are two ways you can obtain a dissolution in California: standard, which is the most common form of divorce, and summary, which is a shortened version of the divorce process.

Not everyone can use summary dissolution to end their marriage as there are very specific requirements that must be met for the court to approve your divorce.

Watch Kathy Minella Explain More

Who Qualifies for a Summary Dissolution?

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

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

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

How to Obtain a Summary Dissolution

There is less paperwork required for a summary dissolution than there is for a regular one, but you must file with the superior court clerk a Joint Petition for Summary Dissolution that includes a property settlement agreement.

A Judgment of Dissolution and Notice of Entry of Judgment must also be prepared. Six months after filing, your divorce will be final.

You do not have to appear in court and afterwards you are free to remarry. At any time during those six months either you or your spouse can stop the summary dissolution process.

If you are looking for a fast resolution to your marriage, summary dissolutions can be the right option for you as long as you meet the necessary requirements.

To learn more about whether you may qualify, or for help in starting the process, talk to a qualified California family law attorney.

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

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This article has been updated for 2021

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

– Kathy Minella

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Watch Kathy Explain More About Divorce Apps

A Divorce Lawyer’s Take on The New Wave of Tech In Divorce

Technology is becoming a major player in law with a focus on automation.  I think there are good and bad aspects to this new trend, being that law is still so driven by individuals. 

If you have a simple divorce with no custody or very few assets to divide, using divorce apps can be a great way to streamline the process and minimize the expense.  However, I would never recommend it when there are custody issues or major assets to divide such as stock accounts, retirement accounts, or even real property. 

There is a lot of use for applications, however, such as co-parenting communication apps like Family Wizard or Talking Parents.  It keeps all communication in one place and is easy to present to the court in the event it becomes necessary. It also ensures there is no manipulation that can easily occur with texts or emails.

Also, if there is a way to better record keep support payments, I am all for it! It is the payor’s burden to prove payments have been made so you better ensure your record keeping is superb.

Any technology that gives users information at their fingertips can be both a good and bad thing depending on what it is being used for.  The information should be used at your own risk.

Continue reading to find the original blog post and decide for yourself: Is using an app for divorce a good thing?

Original Post: “How Technology Has Changed Divorce”

technology in divorce

Original Content Published on NextAvenue.Org and written by Stacey Freeman

Thanks to technology, we can buy groceries online. We can search online for a job, a pet, even a spouse. And if for whatever reason that spouse doesn’t work out, we can go through the divorce process online, too.

But when you’re divorcing, can a website, or a collection of them, be a substitute for face-to-face interaction? Based on the growing number of users who frequent sites specializing in divorce, the answer appears to be “Yes.”

For Divorce, It Takes a Digital Village

Divorce is disruptive — good and bad. And change, even the good kind, can send even the calmest, coolest and most collected individuals into a tailspin. Not to mention, divorce can also be expensive, stressful and isolating for those going through it.

The good news is that today, separated and divorced people can find a community online with others in similar situations without so much as leaving their home.

Divorce is complicated and emotionally charged, even with the use of these unprecedented and innovative technological improvements.

If it is information you’re after, lawyer Erin Levine’s Hello Divorce site provides a wealth of it. Specializing in California divorce law, Levine’s goal is to make divorce more accessible to those who may not have the knowledge or experience yet, and show them they have options.

Even if you are not living in California, Hello Divorce’s blog is still worth reading for its concise, straightforward articles on topics ranging from what to do if your spouse announces he or she is gay to the unique issues facing boomers who divorce.

The Major Players in Divorce Sites

Divorceify, founded by two divorce attorneys and a lawyer-turned-programmer (all women), offers customized divorce recommendations and matches you with professional help from all over the United States. From mediators and financial advisers to divorce coaches and attorneys, Divorceify can save users time and money and alleviate stress. Having confidence in the people helping to complete the divorce will make the process a little less daunting.

PartUs, created by lawyer Krista Andrews, provides divorce management software to law practices looking to streamline the divorce process in one place. FamilyDocket and dtour.life offer divorce management systems for lawyers, with the added feature of allowing them to communicate with their clients on the site and share documents.

One-stop-shops Wevorce and it’s over easy, also created by attorneys, provide platforms for families going through the divorce process from start to finish, offering monthly plans based on the services you choose from their respective menus.

A Fresh Start After Divorce

Once the divorce itself is over, divorced life comes with its own set of rules and obstacles to navigate.

Apps such as OurFamilyWizard (created by a divorced dad) and Coparently (from a techie son of a divorced couple) are useful for family management when children and teens are involved. They help parents communicate by creating calendars, discussing expenses and sharing important information about their children. Apps like these make co-parenting easier because they offer technology that fosters cooperation and communication.

SupportPay, founded by a divorced marketing exec, is an app that lets divorced parents make automated support payments online, alleviating financial and emotional stress for both spouses because of its reliability and predictability — no more missed payments or confusion.

For divorcées not sure what to do with their diamond ring, Worthy offers a secure online auction platform to sell it to a pre-screened community of buyers. The diamonds are valued before every auction by Worthy’s in-house gemologist and the Gemological Institute of America. Sellers can have a check in their hands in as little as three days.

Has Technology Taken the Emotion Out of Divorce?

With so much knowledge at our fingertips, it is easy to forget that less than three decades ago it wasn’t possible to connect with people from around the world, access information and assemble the best team of people to help us, all within seconds.

Divorce is complicated and emotionally charged, even with the use of these unprecedented and innovative technological improvements. Although technology has automated the divorce process and arguably removed some of the emotion from it for the better, there is still plenty of emotion to go around, which can be positive as well.

 

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

How The New Pet Custody Law Works In California

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This article has been updated for 2021

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

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

Watch Kathy Explain More About It

Pets Are No Longer Just Physical Property

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

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

Putting a Pet First

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

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

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

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

Treating Animals Fairly

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

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

Final Thoughts

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

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

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

How Do You Officially Change Your Name After A Divorce?

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

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

Watch Kathy Minella Explain

If Your Divorce Has Been Finalized in California

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

If Your Divorce is Not Yet Final

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

If Your Divorce was Finalized in a Different State

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

A Family Law Attorney Can Help

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

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

Contact us today to schedule a consultation. 

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

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[This article has been updated for 2021]

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.

 

Divorce During The COVID-19 Pandemic

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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.