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Family Law Blog

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The Truth About Common Law Marriage & “Palimony” in California

By | Domestic Partnerships

What is Common Law Marriage?

Many potential clients will call my office and ask what their rights are when they have been living with someone for years, 7 years and more, and they were asked to leave the house with nothing.  I have to kindly explain since you are not married, you have no rights.  They are stunned to find out they don’t have rights under California Family Code and the protections afforded to married couples.  Your rights fall under civil law which are minimal.

It may surprise you to know that there is no such thing in California as common law marriage, or to be more accurate, a common law marriage can never be created in California.  It’s widely believed that if a couple lives together for at least 7 years and holds themselves out to the world as a married couple, then the couple will be considered to be legally married.

While this can be possible according to the laws of a few states, this is NOT possible in California as California abolished common law marriages over a hundred years ago.  California will, however, recognize common law marriages that were created in states which do recognize them.  It must be a legally formed marriage in that particular state for California to recognize as a legal marriage.

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benefits of child adoption - picture of a baby playing and smiling | Minella Law

10 Benefits of Adopting A Child

By | Adoptions

If you are choosing to adopt a child as your own, you are positively changing more than one life in the process. Adoption, when handled with the correct care, is an opportunity for both the child and parents to fulfill a life they truly deserve. There are many benefits of adopting a child, some you may not even realize.

What is adoption? It is establishing a parent-child relationship, legally, with someone else’s child.

When you adopt, you are taking all responsibility for the child which include emotional and financial.  There are many different types of adoptions including stepparent, relative, agency, or non-agency adoption.  Adoptions can be open where the birth parents keep in touch with the parents and get updates on the child, or it can be closed where all information is kept confidential.  No matter what type of adoption you choose, there are so many positive effects for the child and the potential parents alike.  Read More

child-school

Can I Change My Child’s School During a Divorce? (even if the other parent does not agree)

By | Divorce | No Comments

One issue that often comes up during a divorce is the dispute over where the children will attend school after the parents have moved in their separate directions. Sometimes, one parent wants to change the school their child attends, even if the other parent opposes the idea

Whether you can move your child to another school without your former spouse’s approval depends on the custody order issued by the judge:

  • If you were given sole legal custody, then you have the right to choose which school your child will attend without the other parent’s approval.
  • If you share joint legal custody, you and your former spouse must agree on which school to send your child to.

This post addresses issues that come up when parents share joint legal custody.

Parental Consent on School Issues

If your joint custody/parenting plan doesn’t already spell out which school your child will attend, then you and your former spouse must either come to a mutual agreement, agree in mediation, or file a motion asking the court to make the decision for you. If you ask the court to decide, it will base its ruling on what it things is in the best interests of your child. Factors the court considers include:

  • The desires and educational needs of your child.
  • The desires of both parents.
  • Where your child previously attended school.
  • The commuting time from each parent’s home.
  • The associated costs to each parent.

Should You Change Your Child’s School?

School choice issues are complicated. Even if your parenting plan allows for your child to go to school anywhere within a certain district or mile radius, is it the right thing to do? Of course, there are at times very good reason for switching schools: it’s a better environment for your child, economic circumstances have changed, or you have had to move to another district after the divorce. Some experts urge parents – who may not be aware of how stressful it is – to not change their child’s school after a divorce. Attending the same school often offers your child the stable support of friends and teachers he or she knows and loves.

If after careful consideration you feel it’s in your child’s best interests to move to another school, it’s always preferable to come to an agreement with the other parent.

If you’re worried that no matter what the reason, your former spouse will simply not agree to a change, it’s best to talk with your family law attorney who can advise you of your options and help facilitate an arrangement that everyone can agree on.

girl-in-yard

10 Factors Used to Determine if a Parent is Unfit for Custody in 2019

By | Child Custody & Visitation | No Comments

Determining an Unfit Parent in 2019


Custody disputes can be the most challenging part of a divorce or breakup.  Both parents will want as much time as possible with their child or children. When determining custody the court will always make a decision on what is in the child’s best interest.  No parent is perfect so little imperfections will not strip a parent of their rights, however, being an unfit parent will cause the court to reduce or limit the interaction between that parent and the child or children.

What exactly is an unfit parent? The legal definition of an unfit parent is when the parent through their conduct fails to provide proper guidance, care, or support. Also, if there is abuse, neglect, or substance abuse issues, that parent will be deemed unfit. Most cases where a parent is deemed unfit, Child Welfare Services has been involved and there may be a safety plan or an open active investigation against the parent.

During a divorce, parents might not agree on custody issues, or one parent might not trust the other with the children. On the order of a judge or at the request of a parent, a child custody evaluation may be held. The purpose is to determine if allowing one or both parents custody is in the child’s best interest, or if the child’s health, safety, and welfare are at risk. The evaluator will consider the following ten factors when making a determination.

1. Setting Age-Appropriate Limits

  • Is a 5 year old child allowed to watch R-rated movies on a regular basis?
  • What kind of curfew does the parent set for a teenager?

Parents will not always agree about what is age appropriate limitations, but when you have one parent who is allowing extreme situations, this may be a red flag.  When parents share joint legal custody, they should jointly make decisions about what is age appropriate but this does not include little things such as bed time.  This is when co-parenting comes into play and you have to trust your co-parent is making appropriate decisions in their household.

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

By | Divorce | No Comments

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.

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.

 

social-media

Can Social Media Prove an Unfit Parent?

By | Divorce | No Comments

Beware of what you post on social media during divorce and child custody proceedings. That may sound like a dire warning, but as reported by the American Academy of Matrimonial Lawyers, 75% of family law attorneys are using social media evidence in divorce and child custody cases. That means if one or both parents fail to exercise restraint when posting on their Facebook page, Twitter feed, or any other online social media platforms, it could be used against them in a child custody matter. Just one wrong post can cause more trouble than it’s worth.

Social Media is Not the Problem

It’s not uncommon for a parent’s fitness to raise a child to be called into question during a custody dispute. Social media has added fuel to the fire for proving unfitness, but social media itself is not the problem.

It’s the behaviors and comments of the poster that can influence the court. Even seemingly innocent posts can be misinterpreted or misrepresented to paint a parent in an unflattering light. Long gone are the days of charts, letters, and documents being the sole source of evidence. Today’s courts also accept text messages, emails, and screen shots of social media content in child support and custody dispute hearings.

Family Court and Social Media

In many cases, the information obtained from social media accounts is not as inflammatory as one parent may think. But posts about spending habits, irresponsible behavior, and personal relationships can be used to call into question a parent’s character. California family law courts focus on what is best for a child. They look to establish whether the child is safe, and if a parent’s lifestyle is in any way negatively affecting the child’s well-being. Posts about excessive partying or illegal activity (such as drug use) will most certainly be taken seriously by the court. Even what friends post about the other parent could be used as evidence.

What Can I Use Against My Spouse?

It’s a good idea to check your spouse’s profiles during a child custody dispute. If you believe your spouse is posting things that could have a negative effect on – or be downright harmful to – your child, take a screen shot of the content and share it with your family law attorney. Don’t stalk your former partner on social media; monitor him or her without obsessing.

Things that might be considered by the court include:

  • Tweets or Facebook posts about a wild night out on the town when the parent is supposed to be home caring for your child.
  • Posts that cast you and/or your parenting skills in a negative light.
  • Posts that could be construed as harassment or threats.
  • Posts about any litigation, the custody proceedings, or the judge.

Be Social Media Savvy Yourself

Many people have a false sense of anonymity when they’re surfing and posting on the net. But rest assured, if you’re checking out your former spouse on social media, they’re also looking at your accounts and printing out posts for their attorney. Be careful about what you post and take the time to think about whether it could come back to haunt or harm you. When in doubt, don’t post at all. It will help you avoid additional emotional turmoil during your child custody dispute.

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Why is Jurisdiction So Important?

By | Family Law Blog | No Comments

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.

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.  

income

How Can I Impute Income To The Other Parent?

By | Child Support | No Comments

Under California law, both parents are equally responsible for the financial support of their children. When computing how much child support is owed or received, the court considers each parent’s income to be a key factor. Some parents choose to deliberately reduce their income to avoid the responsibility of paying support, or to increase the amount of support the other parent is ordered to pay.

Unfortunately, the children become the victims of this behavior. The court is invested in doing what is in the best interests of a child, so often it will attribute – or impute – income to one or both parents before ordering support.

Imputed Income Defined

If the court imputes income to one or both parents it is, in effect, saying that is the amount the parent could be earning. The court then bases its award of child support on that income, not what the parent claims to be earning. Judges do this to make sure children are receiving an amount that ensures their needs are met – and to prevent a parent avoiding child support altogether. For example, if a parent up until the divorce has been earning $75,000 per year and then suddenly claims they’re earning minimum wage, the court will ask for information to determine if the decrease was due to a parent trying to minimize his or her child support obligation.

When Courts Impute Income

If the court finds that the parent ordered to pay child support voluntarily quit work or deliberately lowered their income, the court may decide to ignore that change and use the most recent amount ($75,000 in our example) they were earning. The order for child support would then be based on that figure. California family courts look at three main factors when determining if income imputation is called for:

  • The ability of the unemployed or underemployed parent to earn income.
  • The opportunity for the unemployed or underemployed parent to earn income.
  • The willingness of the unemployed or underemployed parent to earn income.

If the court finds the parent has a legitimate case of job loss or pay reduction, it will not necessarily or immediately impute income to him or her.

How Do Courts Arrive at an Imputed Income Amount?

Courts look to a parent’s “earning capacity” when deciding how much income to impute:

  • Willingness to work is decided by looking at whether the parent is looking for a job, sending out his or her resume, or going for job interviews.
  • Opportunity to work looks at what, if any, appropriate jobs are available in the area.
  • Ability is usually determined by looking at a parent’s educational level, works skills, and employment history.

As evidence of a parent’s ability and opportunity to work, the court will look at various evidence.For example, it may use a vocational expert’s report or testimony and/or the most recent salary the parent was earning. If the court cannot arrive at an amount using these methods, it may impute minimum wage.

If you’re divorcing and believe your spouse should be imputed income for the purposes of child support, you may want to consult with an experienced and qualified California family law attorney to help you better understand your options.

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Is All My Income Considered In Child Support Calculation?

By | Child Support | No Comments

In California, child support is mandated by law, and every child is entitled to financial support from both parents. If the parents divorce, child support is generally required. Once the court orders child support, it must be paid or there are serious consequences, including possible jail time. Child support can also be required in cases where the paying parent has no visitation rights with the child or children.

Determining Income for Child Support in California

The court cannot enforce child support payments until it makes an order for support. When parents separate, one of them must ask the court to make both an order establishing paternity and an order for child support. Once granted, the court can also award retroactive child support to the date the petition was filed.

For the purposes of determining child support, California law defines income as:

  1. Salaries, wages, commissions, and bonuses.
  2. Rents, typically from rental properties.
  3. Dividends and interest income.
  4. Pensions.
  5. Income from a trust or annuity (unless the annuity is connected to a non-income source such as personal injury proceeds).
  6. Monies received as the result of a worker’s compensation case.
  7. Unemployment and/or disability insurance benefits.
  8. Social security benefits.
  9. Spousal support received from an unrelated case.

There may be exceptions that apply to your situation. A qualified California family law attorney can tell you more.

The Statewide Child Support Guideline

 

California Family Code Section 4050 sets forth the guidelines the court must follow in applying child support rules. They include:

  • Each parent’s primary obligation is to support his or her minor children according to her or his situation and financial station in life.
  • Both parents are equally responsible for supporting their children.
  • It’s assumed the guideline is correct in all cases. Only in special instances should child support orders fall below the amount mandated by the guideline formula.
  • Child support orders must provide children with fair, timely, and sufficient support. The ordered support should also reflect California’s high standard of living and high costs of raising children compared to other states.

The Statewide Child Support Guideline is a complex algebraic formula that uses both parents’ incomes, deductions, and time spent with each child to determine a dollar amount for support (CS = K (HN – (H%) (TN)). What this means in simpler terms is that the greater the gap between income, and the less time the higher earning parent spends with the children, the more child support that parent will owe. Again, under California law, the amount of child support determined by the formula is presumed to be the correct amount owed. Unless there is a good reason why a different amount should be paid, the court is required to order the guideline figure

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Child support is a serious matter, and determining what is and is not income can be complicated. Whether you are the parent paying or the one receiving the child support payments, an experienced family law attorney who is knowledgeable on such issues can be very helpful. Remember, the goal is to guarantee that your children are well taken care of and that they receive everything they need to lead happy and healthy lives

Schedule a Free Confidential Consultation
social-media

FAQ: How Does Social Media Affect My Divorce

By | Divorce | No Comments

Facebook, Twitter, Instagram, and Pinterest. Social media accounts offer others a fun and interesting window into your world. But if you’re going through a divorce, social media posts can have serious implications and consequences, doing more harm than good. They can adversely affect a wide range of issues: custody disputes, division of property, and spousal or child support decisions. Suddenly, what was once an enjoyable way to pass the time becomes a challenge to be overcome in court.

Social Media’s Impact on Divorce Issues

Keeping secrets in the information age is no easy task. California law allows for the discovery of information that is “not privileged” and is “reasonably calculated” to lead to discoverable evidence. What that means is that, even if you have restricted the privacy settings on your social media accounts, the court may still allow certain posts to be used for or against you. Here’s how you can be affected:

  • Child Custody and Support Proceedings. If your divorce involves issues of child custody and support, you should take extreme care in what you post. Even if they are otherwise innocent, posts referencing alcohol or drug use, brand new cars or homes, trips, dating stories, and new relationships can all affect custodial and support awards. Think twice or thrice before you post to a social media site. If there’s a chance a post could have a negative impact, it’s probably best to not post.
  • Divorce Proceedings. More than 80% of divorce attorneys nationwide have used social media as a valuable tool for collecting evidence to present to the court. And as long as requests can be argued to appear reasonably calculated to lead to the discovery of admissible evidence, courts have allowed them. What can you do? Act as if every social media post – or any other electronic communication like email – can and will be used against you in court. And keep in mind that friends you and your former spouse shared during the marriage may be alerting him or her to posts (or even private messages) you make or send.
  • Restraining and Protective Orders. If you have a restraining or protective order in place, commenting on, liking, or tagging your former spouse may be enough to violate the order. Courts are more frequently viewing social media speech the same way they do “live” conversations. Be incredibly careful in what you post.

Visitation Rights.

Social media and technology is not all bad news for your divorce. For divorced parents living a distance from each other, it can allow children to engage in ordered visitation schedules. Webcams and video chats allow for virtual visits and some states have passed specific laws that allow electronic communication to supplement face-to-face visitations.

Learn More

Many spouses going through a divorce freely text, email and update their status without considering the strategic risks and dangers that come along with these types of electronic communications. Before you post your next social media update or hit that send button, stop and think about the effect it might have on your divorce proceedings. An experienced California family law attorney can explain more about the implications of using social media during your divorce. While it may be an important part of your life, you may ultimately decide it’s best to stay off social media while your case is pending.