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In Divorce

Minimize Conflict and Expense: How You Can Avoid a Contested Divorce in California

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No one who is about to go through a divorce wants to be subjected to the type of spiteful and hostile divorces that are routinely portrayed in movies and television, but many feel that an adversarial contested divorce is inevitable to the process.

A “contested divorce” means that the parties can’t agree on all the issues, such as property division, custody and visitation with children, the amount of spousal support (alimony), how to divide debts, or payment of attorney’s fees. 

In these cases, a family court judge will ultimately have to decide these questions after divorce litigation.  The reality is that a contested divorce is usually not inevitable, and although a divorce will always be difficult, for many divorcing couples in San Diego much of the emotional and monetary cost of a contested divorce can be avoided.  Continue Reading

In Divorce

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 2022

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”

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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.

In Divorce

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.  

In Domestic Violence Restraining Orders

What to Do About Domestic Violence During COVID-19

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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.

In Family Law Blog

Website Ideas for Kids During COVID-19 Distancing

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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.

In Domestic Violence Restraining Orders

Restraining Order Rules in California

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

What is a Restraining Order?

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

What Do Restraining Orders Do?

Restraining orders can include the following:

Personal Conduct Orders

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

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

Stay Away Orders

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

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

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

Kinds of Restraining Orders:

California has the following four kinds of restraining orders:

Domestic Violence Orders:

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

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

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

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

Elder or Dependent Adult Abuse Orders

You can file for these orders if:

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

Civil Harassment Orders

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

Workplace Violence Orders

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

Types of Restraining Orders

There are three types of restraining orders:

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

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

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

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In Divorce

What Is Spousal Support?

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

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

Check Out Our Alimony & Spousal Support Resources Page >> 

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

Eligibility for Spousal Support in California

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

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

Length of Spousal Support

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

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

Spousal Support Modification

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

Hiring an Attorney for Spousal Support Issues

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

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

In Child Support

Can California Child Support be Changed Without Going to Court?

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

Child Support in California

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

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

Reasons for a Child Support Modification

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

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

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

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

How to Get a Child Support Order Modified

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

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

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

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

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

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