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In Child Support, Family Law Blog

Is it Time to Modify Your Child Support? When Circumstances Change After Your San Diego Divorce

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Did you know based on recent data that the cost of raising a child in California has rose significantly over the past 10 years

  • Information gathered from sources like SmartAsset, California is among the most expensive states to raise a child.
  • Specifically, those sources indicate that the annual cost of raising a child in California is roughly around $29,468.
    • Thats more than $500,000 over the course of 18 years   
  • This number includes expenses like:
    • Childcare
    • Housing
    • Food
    • Healthcare
    • Education
    • Transportation.

Raising children is expensive and always a challenge even in the best of circumstances, but for divorced parents, child support can create additional concerns.

For example, what happens when a parent’s income grows, or if a parent loses a job?  Continue Reading

In Estate Planning

Understanding Probate: A Comprehensive Guide

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Navigating the Waters of Probate: A Guide to Understanding the Process

When someone close to us passes away, dealing with their estate might feel like an overwhelming task. Probate, a term that often surfaces during such times, is a process many find intimidating, yet it’s an essential part of handling a loved one’s affairs. While it might not be the most riveting topic, understanding probate can make the task a lot smoother.

What Exactly is Probate?

Probate is the legal process that takes place after someone dies, ensuring that their assets are distributed according to their will, or according to state laws if no will exists. This process covers various tasks such as validating the deceased’s will, appointing an executor, settling debts, and distributing the remaining assets to beneficiaries.

The Steps in the Probate Process

Though the complexity of probate can vary depending on the state and size of the estate, here is a general overview of what to expect:

  1. Filing the Will: The process typically kicks off with filing the deceased’s will with the local probate court. If there’s no will, the court appoints an administrator.
  2. Validating the Will: The court authenticates the will. This might involve a hearing where interested parties can contest its validity.
  3. Appointing an Executor: If not done already, the court appoints an executor—often named in the will or otherwise chosen by the court. This person is responsible for managing the estate’s affairs.
  4. Inventory and Appraisal: The executor must inventory the deceased’s assets, which might involve assessing property, bank accounts, and personal belongings.
  5. Settling Debts and Taxes: Any outstanding debts and taxes must be paid from the estate before distribution to beneficiaries.
  6. Distributing the Estate: Once debts and taxes are settled, the remaining assets are distributed according to the will or state law.

Why Is Probate Necessary?

Probate ensures that an estate is settled fairly and legally. It provides a transparent framework for asset distribution and debt settlement, offering protection for beneficiaries against potential disputes. While the process might appear cumbersome, it serves as a structured approach to handling what can be an emotionally charged task.

Probate Myths Debunked

One common misconception is that probate always involves lengthy and costly court proceedings. In reality, the duration and expense can vary significantly based on factors like the estate’s complexity and the presence of a will. Some states offer simplified procedures for smaller estates, which can expedite the process.

Another myth is that probate can be entirely avoided. While some assets, like those held in a trust or jointly owned properties, can bypass probate, many other assets still require it.

Is Avoiding Probate Beneficial?

While bypassing probate can save time and legal fees, it’s not always necessary. Planning with an estate lawyer can help determine if probate avoidance strategies align with one’s goals. Trusts, joint ownership, and beneficiary designations are tools that can minimize probate’s impact.

Probate might not top your reading list, but having a basic understanding of the process can ease the burden during an emotionally challenging time. By demystifying probate, you equip yourself with the knowledge to navigate these waters with more confidence. Whether you’re planning your own estate or managing a loved one’s, understanding probate makes the journey a little less daunting.

 

••Minella Law Group Can Help••

For expert guidance through the probate process, consider hiring Minella Law Group. Their experienced team can help navigate the complexities of probate law, ensuring that your loved one’s estate is handled efficiently and in accordance with legal requirements. With their support, you can focus on what matters most during this challenging time, knowing that your probate matters are in capable hands.

For more information or to schedule a consultation, call us at 619-289-7948. The team at Minella Law looks forward to helping you.

In Domestic Violence Restraining Orders

When Does Domestic Violence Requires a Criminal Lawyer?

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Accusations of domestic violence are a serious charge that can result in criminal penalties. In fact, in California, serious domestic violence incidents are charged as felonies. If you are convicted of felony abuse, you can spend up to four years in prison. The punishment may be even longer if you’ve been convicted of the same offense within the past seven years. In these cases, probation is unlikely, even without a previous record, and it is recommended you hire a criminal attorney.

Felony Convictions

Felony charges are pursued when the victim’s injuries are severe, such as broken bones, injuries that need sutures, or trauma so serious it causes permanent brain or body damage.

Assault with a Deadly Weapon

Among the more serious of domestic violence charges in California is assault with a deadly weapon. In rendering a sentence, the court will look at the type of weapon used, whether the victim was injured, and the seriousness of the injury. If found guilty of a felony, this conviction is considered a “strike” under California’s Three Strikes law. If convicted, you face the following penalties:

  • Two to four years in California state prison.
  • Fines of up to $10,000.
  • Victim restitution costs.
  • Confiscation of your weapon.

Criminal Threats

Another charge that requires the services of a criminal lawyer is violation of California Penal Code 422 PC: threatening to commit a crime which will result in death or great bodily injury to another person. You do not have to intend to commit the acts threatened – just making them is considered a felony. Criminal threats can be made against anyone, but if they’re made against a family member, they are regarded as crimes of domestic violence.

To obtain a criminal threats conviction against you, each of these facts must be proved beyond a reasonable doubt:

  • You willfully threatened to kill or cause great bodily injury to another.
  • You orally, in writing, or by electronic means communicated that threat.
  • You intended the statement to be understood as a threat.
  • The threat communicated a serious intention and the immediate prospect it would be carried out.
  • The threat caused the other person to be in fear for their own safety or the safety of another family member.
  • The person you threatened had a reasonable fear of your threat.

Obviously, since all these facts must be proved, criminal threat convictions are not easy to obtain, but you will require competent representation if you are accused.

••Minella Law Group Can Help••

If you’ve been accused of committing felony domestic violence, you are best served by consulting with a California family law attorney experienced in such charges. In many cases, it is possible to avoid conviction and the serious consequences that come with such a charge. Reach out to us for your complimentary consultation today at 619.289.7948

In Domestic Violence Restraining Orders

FAQ: Can You Go to Jail for Domestic Violence Offenses?

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Can someone go to jail for domestic violence offenses? Absolutely! Penalties for domestic violence may vary depending on the judge who hears the case, but the state of California has guidelines in place for sentencing. A domestic violence conviction carries the possibility of jail time along with a fine. California law also provides for protective orders for victims of domestic violence.

Which Domestic Violence Offenses Will Send a Person to Jail?

The jail time for domestic violence offenses is affected by a number of issues, including:

  • The seriousness of injuries suffered by the victim.
  • The existence of any previous record of domestic violence.

While not set in stone, courts typically order a minimum of 30 days for a misdemeanor domestic violence conviction. If it is a first offense, some judges allow the perpetrator to serve probation. Depending on the circumstances, a person can be charged with multiple offenses.

  • Jail Time for Domestic Battery. Referred to by the state of California as “battery” or “domestic battery,” battery is a willful, hurtful act that is intended to injure a domestic partner. Domestic partners can be a spouse, child, parent of a child, fiancé, boyfriend or girlfriend. Acts under this definition include grabbing someone’s clothing, punching, and kicking. Under the law, the maximum sentence for this type of offense is one year, or three years’ probation. If given probation, there may also be a fine of up to $2,000 and a requirement to complete a Batter’s Program.
  • Jail Time for Child Abuse. The California Penal Code calls for strict punishment for physical child abuse, including acts of fighting and bruising a child, or beating a child severely enough that marks are left. This abuse is considered willful and the Code can also be used to charge the crime as a felony. Charges depend on the facts of the case and the perpetrator’s history of abuse. Penalties include jail time up to one year and up to $6,000 in fines. Probation and completion of a treatment program are also options the court will consider.
  • Jail Time for Spousal Abuse. Also referred to as corporal abuse, spousal abuse under California Penal Code 273.5 occurs between intimate partners. Any claimed physical injury must be proven and that proof must be presented to the court. Injuries, which can range from broken bones to severe trauma, must have been inflicted willfully. Punishment ranges from probation to one year in jail, and a fine of up to $6,000 is also imposed.

What Determines Domestic Violence Offenses?

The severity of the penalties, including potential jail or prison sentences, varies significantly based on several factors:

  • Severity of the Offense:
    • Misdemeanor domestic violence charges typically involve less severe injuries or threats, and may result in shorter jail sentences or alternative penalties like probation.
    • Felony domestic violence charges, which often involve serious bodily injury, the use of weapons, or repeat offenses, can lead to significantly longer prison sentences.
  • Prior Criminal Record:
    • Repeat offenders, especially those with prior domestic violence convictions, generally face harsher penalties.
  • State Laws:
    • Domestic violence laws and sentencing guidelines vary from state to state.
  • Specific Circumstances:
    • Factors such as whether children were present, whether a restraining order was violated, or whether the victim was pregnant can also influence sentencing.

 

••Minella Law Can Help••

A conviction for domestic violence can result in a lengthy jail sentence. If you are dealing with a domestic violence issue during your divorce, a California family law attorney with experienced in domestic violence issues can explain your rights and guide you through the process. An experienced custody & family law attorney can help. We are ready to assist with all your family needs – we offer a complimentary consultation to discuss your needs.

Reach out to us for your complimentary consultation today at 619.289.7948

In Family Law Blog

When is a Parent Deemed to Have Abandoned Their Child?

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Most people think length of time is the overriding factor in determining child abandonment. Although it is one consideration, it is not the only issue the court considers during a child custody case.

Timeframe and Intent

The test the court applies to the alleged abandonment of a child is the intent of the departed parent. For example, if a custodial parent must leave his or her child for an indefinite period of time due to a verifiable emergency, the court will not likely consider it abandonment, even if weeks have gone by. But if a custodial parent simply up and leaves with no explanation, courts have deemed that departure abandonment after just a day or two.

However, some general principles and common factors are considered:

Key Factors:

  • Failure to Provide Support:
    • This includes both financial support and providing for the child’s basic needs (food, shelter, clothing, medical care).  
  • Lack of Contact:
    • A parent’s failure to maintain regular communication and visitation with the child is a significant factor.  
  • Intent:
    • While some states may consider the parent’s intent, often, the focus is on the parent’s actions (or lack thereof).
  • Duration:
    • A prolonged period of absence and lack of support is usually required. The length of time varies by state.  
  • State-Specific Laws:
    • It is crucial to understand that child abandonment laws are determined at the state level.

Court Procedure

Under the California Family Code, there are three circumstances under which a proceeding may be brought for abandonment:

  1. The child has been left without provision by the child’s parent or parents.
  2. The child has been left by both parents or the sole parent in the care and custody of another person for a period of six months without any provision for the child’s support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child.
  3. One parent has left the child in the care and custody of the other parent for a period of one year without any provision for the child’s support, or without communication from the parent, with the intent on the part of the parent to abandon the child.

If a custodial parent appears to have abandoned a child, the other parent may request the court to change custody, including granting emergency custody on a temporary basis. The court will consider how long the custodial parent has been gone, the expressed intent of the custodial parent in leaving, and where the children have been since the parent left.

Common Misconceptions

If a custodial parent appears to have abandoned a child, it is not always the case that the non-custodial parent will be granted full custody. The court may elect to approve or reject a custody change based on a wide range of factors, including whether there is a case of recurring abandonment. This is when the custodial parent routinely leaves a child for indefinite periods of time without a valid reason.

Some people think that a parent who abandons a child will have criminal charges brought against them. Under California Family Code Section 7822, the parent will usually not be automatically criminally charged. In fact, criminal charges are more often brought against a parent who fails to pay child support. While California does have a crime called “Child Abandonment,” it is not the same as family law child abandonment. In other words, a parent not communicating with a child for an extended period is not committing a crime.

••Minella Law Can Help••

If you’re seeking to terminate parental rights due to abandonment, it’s in your best interests to consult with an experienced California family law attorney who can advise you what steps need to be taken. Reach out to us for your complimentary consultation today at 619.289.7948

In Divorce, LGBTQ

LGBTQIA+ Divorce Legalities and Nuances in California

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Understanding LGBTQIA+ Divorce Laws in California

LGBTQIA+ divorce laws encompass the legal frameworks that govern the dissolution of same-sex marriages and partnerships. These laws can vary from one jurisdiction to another, and it is crucial for individuals going through an LGBTQIA+ divorce to understand the specific regulations that apply to their situation.

One important aspect of understanding LGBTQIA+ divorce laws is recognizing that same-sex marriages are legally recognized in many countries and states. This means that LGBTQIA+ couples have the same rights and responsibilities as heterosexual couples when it comes to divorce proceedings.

However, it is essential to note that legal protections can still vary depending on the jurisdiction. Some regions may have specific provisions that address the unique needs and challenges faced by LGBTQIA+ couples in divorce cases.

Challenges Faced by LGBTQIA+ Couples in Divorce Proceedings

LGBTQIA+ couples may encounter particular challenges when navigating the divorce process. These challenges can arise due to societal biases, discriminatory practices, and legal complexities.

One challenge that LGBTQIA+ couples may face is the lack of legal precedent or established norms surrounding same-sex divorces. This can lead to uncertainty and ambiguity when it comes to issues such as property division, spousal support, and child custody.

Another challenge is the potential for discrimination or bias from legal professionals, court officials, or even family members. LGBTQIA+ individuals may face prejudice or negative attitudes that can impact their divorce proceedings, making it essential to seek out legal representation that is knowledgeable and supportive of LGBTQIA+ rights.

Additionally, LGBTQIA+ couples with children may face unique challenges related to custody and visitation rights. It is crucial for these couples to understand their legal rights and work towards creating a parenting plan that prioritizes the best interests of the child while considering the specific dynamics of LGBTQIA+ families.

Impact of Same-Sex Marriage on Divorce Legalities

The legalization of same-sex marriage has had a significant impact on divorce legalities for LGBTQIA+ couples. Prior to the legalization of same-sex marriage, many LGBTQIA+ couples faced hurdles when seeking to dissolve their relationships, as their unions were not recognized by the law.

With the recognition of same-sex marriages, LGBTQIA+ couples now have access to the same legal protections and rights as heterosexual couples in divorce cases. This includes the ability to seek spousal support or alimony, divide assets and debts, and determine child custody and support arrangements.

However, it is important to note that the impact of same-sex marriage on divorce legalities may still vary depending on the jurisdiction. Some regions may have specific laws or regulations that address the unique needs and concerns of LGBTQIA+ couples in divorce cases.  In California we treat LGBTQIA+ marriages the same as heterosexual marriages, meaning there are no differences.

We will divide assets and debts the same, the divorce process does not care if you are same sex or not.

Navigating Custody and Visitation Rights in LGBTQIA+ Divorces

Custody and visitation rights can be complex issues to navigate in LGBTQIA+ divorces, especially when children are involved. LGBTQIA+ couples may face additional challenges due to societal biases and misconceptions surrounding LGBTQIA+ parenting.

When determining custody and visitation arrangements, the court’s primary consideration is the best interests of the child. This means that the sexual orientation or gender identity of the parents should not be the determining factor in custody decisions.

It is crucial for LGBTQIA+ individuals going through a divorce to gather evidence and present a strong case that demonstrates their ability to provide a loving and supportive environment for their children. This may involve gathering character references, documenting involvement in the child’s life, and showcasing a history of positive parenting.

In some cases, mediation or alternative dispute resolution methods may be beneficial for LGBTQIA+ couples seeking to reach a custody agreement outside of the courtroom. These methods can provide a more flexible and collaborative approach to resolving conflicts and creating a parenting plan that works for both parties involved.

Support Systems Available for LGBTQIA+ Individuals Going Through Divorce

LGBTQIA+ individuals going through a divorce can benefit from accessing support systems that understand and cater to their unique needs and challenges.

One valuable resource is LGBTQIA+-friendly legal professionals who have experience and expertise in handling LGBTQIA+ divorces. These professionals can provide guidance, advice, and representation that is sensitive to the specific legal issues faced by LGBTQIA+ couples.

Support groups and community organizations can also be a valuable source of support during the divorce process. These groups can provide a safe space for LGBTQIA+ individuals to share their experiences, seek advice, and connect with others who have gone through similar situations.

Counseling or therapy services can be beneficial for LGBTQIA+ individuals who may be dealing with emotional or psychological challenges during the divorce process. Mental health professionals who are knowledgeable about LGBTQIA+ issues can provide guidance and support to help individuals navigate the complexities of divorce.

Overall, building a strong support network of professionals, friends, and community members can provide LGBTQIA+ individuals going through a divorce with the necessary resources and support to navigate the process successfully

 

••••••

The attorneys at Minella Law Group are skilled in new or existing cases for the LGBTQIA+ community. Call our family law office today to schedule a complimentary consult with one of our attorneys.   619.289.7948

In Adoptions

Effect of Stepparent Adoptions

Fighting Placement on California’s Child Abuse Central Index

Stepchild Adoption and the Effect of an Adoption Order

If either your partner, or yourself have children from a previous marriage or relationship that currently live with you, you are already part of a step-family. Much of the time, when a stepparent is living with a child, taking complete responsibility for them on a daily basis, they feel the desire to acknowledge their relationship with that child on a more formal level through the process of adoption.

As the partner of the child’s natural parent, a stepparent has the right to apply to adopt that child and the process that you engage in will depend on what is best for yourself, and your family.

What is an Adoption Order in San Diego?

In order for a stepparent to adopt their partner’s child, the legal relationship between that child and their other natural parent must be ended, along with any legal relationship with that side of the family’s extended family network, such as grandparents and aunts. This can be a particularly difficult part of the process, since some children feel as though they are being given the choice to decide between which adults are their favorite, and they may later blame the stepparent for this if they feel they are pushed to hastily into the wrong decision.  As the stepparent, you have the right to allow the child to maintain a relationship with their extended family.  This decision should be made in the best interest of the child, if the child has a great relationship with grandparents it would be detrimental to just deny them the right once the parental rights with the biological parent has been terminated.

One important note to remember, once the adoption process is complete the child loses their inheritance and maintenance rights from the other parent, giving you complete responsibility over them. You may decide whether you would like to change their surname which can be done through the adoption process,  and your stepchild will walk out of the adoption hearing with your name and as your legal child. Even if you and your partner go through a divorce, you will still be the legal parent of his or her child.  The adoption is not terminated or revoked just because the marital status is terminated.  You are officially the parent of that child once the adoption is granted!

What is a Parental Responsibility Order or an Agreement?

There are alternatives to the adoption order, such as the PR order or agreement, which enables a step-parent to gain responsibility for their step-child by court order or agreement if they have become the partner of the child’s parent. If someone’s wife or husband is the only person with parental responsibility for the child, they can formally agree to share that responsibility with you, however, if the child’s other parent also has parental responsibility, they must agree to this share, also.  This may be a great alternative to giving rights where rights cannot be obtained since there are already two parents caring for the child.

What is a Residence Order?

This kind of order names the individual that the child is going to live with on a daily basis. If one of the people named on this order does not have parental responsibility already, the order should give it to that person, allowing them to share parental responsibility with the child’s parents, without giving them the same exact rights.

In this particular case, neither the step-parent nor the parent will be allowed to take the child away from the country of residence for more than a month without permission from the court, nor will they be able to change their surname. With a residence order, a step-parent cannot decide on a guardian to care for a child should they die, and in effect, the order will give you some form of security and stability, but without the permanence, an adoption order allows.

 

 Minella Law Group Can Help

If you need assistance with your stepparent adoption, the qualified staff at Minella Law Group can assist you.  For more information or to schedule an appointment  –  call us at (619) 289-7948. We look forward to helping you.

 

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