The attorney, Don Glass, prepared each batch of documents and mailed them to me ready to sign and file. All the documents were accepted by the court and I got a divorce judgment. Fantastic legal services.
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As you might expect, pregnancy is a potentially dangerous issue during a divorce case. Read through the following factors regarding pregnancy in divorce. They are designed to keep the considerations as simple as possible – without ignoring the legal practicalities of pregnancy in divorce:
1. If the wife is pregnant and both spouse/partners agree that the pregnancy is a pregnancy of this marriage/partnership, there is no problem here.
2. However, if the wife is pregnant and the spouse/partners do not agree that the pregnancy is a pregnancy of this marriage/partnership, that’s a big problem. If there is a current pregnancy AND a dispute regarding the paternity of that pregnancy, you and your spouse/partner MUST resolve that dispute through medical tests before proceeding. That could involve considerable delay dependent upon the extent of the pregnancy.
3. If the wife is pregnant and there is good reason to believe that the husband is not the father, that is an even bigger problem for the divorce process than if there was a simple dispute about paternity. It is a bigger problem because of the strong presumption in law that the pregnancy of a married woman is the child of the husband. Medical evidence can rebut that presumption of course, but medical tests cannot always be performed. What are your practical options here? You can obtain medical proof, when that is available, that the pregnancy is not a child of the marriage/partnership and then decide that the presumption has been rebutted on the factual strength of your medical evidence. You could then answer “no” to the pregnancy question (the divorce Petition asks for “minor children of the marriage/partnership” – not whether there is a pregancy, so if you have determined that the pregnancy is not a child of the marriage/partnership, it is not a problem if you answer “no” to the pregnancy question). If you don’t want to bother with medical evidence, you can wait until the pregnancy no longer exists and answer the question “no.” Or if you don’t want to bother with medical evidence AND you do not want to wait, you can answer the question as “yes” right now. If you do so, you must list the unborn child as a child of the marriage/partnership because of the strong legal presumption that you have not rebutted with medical evidence. Then later in the case, depending upon how fast you move in your case, you would either have to file an amended Petition to remove the child from the Petition after the child is born or you would have to provide the court, probably during a court hearing, and always providing that the medical evidence supports you, with proof that the unborn child originally listed in the Petition is not in fact a child of the marriage/partnership.
4. If your current answer to the pregnancy question changes before the date on which your divorce case is first filed at court, you MUST modify your answer before printing or re-printing the first set of legal documents to be filed at court.
5. If your current answer to the pregnancy question changes after the date on which your case is first filed at court, you MUST modify your answer. Then you will have to print out and file at court an amended Petition to reflect that change.
You should also bear in mind that there are limitations on filing amended paperwork at court. Generally speaking, but this is not a hard and fast rule, the court will permit one “free” amendment without you having to provide a reason for the amendment. So you should not “waste” your free amendment if at all possible.
From client Dave B.
” Don Glass filed my divorce papers on Dec 20th and 9 weeks later I had a Divorce Judgment and court orders. WOW”
Opposite Sex Marriage or Same Sex Marriage or Domestic Partnership Registered in California or Domestic Partnership NOT Registered in California.
WHY IS THIS IMPORTANT?
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If your spouse/partner is in the military service of the United States, s/he is immune from being served with any civil lawsuit, including a divorce case. This protection is afforded to all military personnel by the Servicemembers Civil Relief Act.
Therefore, if your spouse/partner is either active duty US military or in a Reserve unit that has been called up, parties are in agreement is particularly important. In a military spouse/partner case, instead of serving divorce papers upon him or her in the traditional manner, you need your spouse/partner to sign a particular document that waives his or her military protection and allows the divorce court to proceed in your case.
If your military spouse/partner will not sign that waiver document, you can only proceed in your divorce case by a complex procedure in which you serve divorce papers upon your spouse/partner’s legal officer. That is a procedure in which you definitely need legal advice.
Bear in mind that ‘active duty military’ does not include those on reserve status or those in the National Guard who have not been called up to active status. If there is any doubt as to whether your spouse/partner is on active duty, you can determine whether s/he is or is not on active duty, and therefore protected by the Servicemembers’ Civil Relief Act, by contacting his or her legal officer.
The critical time for the determination of whether your spouse/partner is in the active military service of the United States is immediately after your divorce case has been filed. Right now, only you know when that will be. If your spouse/partner is about to leave active duty military service, you may be able to delay your case until s/he no longer has the immunity provided by the Servicemembers’ Civil Relief Act.
Also bear in mind that your spouse/partner’s active duty military status is not a bar to the filing of your divorce case. It is only a bar to the service of those divorce papers upon your spouse/partner. So you can proceed as soon as you are ready to file your case. That will at least get your case on record and provide you with the protection of the automatic restraining orders that are granted in every California divorce when the case is filed.
Finally, you can of course negotiate with your spouse/partner at any time, before or after you file your case, to try to resolve whatever issue(s) are preventing your military spouse/partner from cooperating by signing the military waiver document.
WHAT IS BASIC CHILD SUPPORT in CALIFORNIA ?
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Basic child support is traditional child support. It is what the layman thinks of as child support. It is a fixed periodic sum of money that is paid by one parent to the other parent for the support of their minor child(ren). It is paid on a specified date or dates each calendar month. Either parent can go back to court any number of times to obtain a court ordered adjustment of basic child support upon proof of some change in circumstances since the prior amount was ordered.
Basic Child Support does not include what is referred to by the state as additional child support. Additional child support includes child care costs, reasonable uninsured health care costs of the minor child(ren), educational or special needs costs of the minor child(ren) and travel expenses incurred by or on behalf of the minor child(ren) for the purposes of visitation.
WHAT DOES WELFARE HAVE TO DO WITH THIS in California ?
When a custodial parent signs up for Temporary Assistance for Needy Families(TANF or more commonly, “welfare”) that parent legally assigns his or her child’s right to receive child support to the County that pays the TANF.
That means the custodial parent won’t get any child support from the non-custodial parent (because s/he will get support for the child from the County) and the County will essentially sue the non-custodial parent for every dime that the County pays to the custodial parent for support.
If the child has been receiving TANF for some time, the County has probably already gone to court to get a child support order against the non-custodial parent. Whether the County has done so, it MAY now try to take a ride on your divorce case either to initiate the court order for child support or to modify it if circumstances have changed since the County obtained the order. The problem with this is that often the County is not ready to proceed when you are and delays will occur in your case for no fault of your own. More on that later.
The main point to realize right now is that if you indicate that any eligible child of the marriage/partnership is presently receiving TANF/welfare, it doesn’t matter what figure you entered above for basic child support for that child. Nor does it matter what you have agreed with your spouse/partner as to basic child support for any minor child receiving TANF/welfare. The County will have its own idea as to what basic child support should be – namely, every dime it pays to the custodial parent.
For Child Support questions for California, Call us at (951) 501-3554
WHAT IS SPOUSAL/PARTNER SUPPORT?
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Spousal Support (sometimes called alimony or maintenance) is simply financial support paid by a spouse/partner or ex-spouse/partner for the support of his or her spouse/partner or ex-spouse/partner. It is intended to pay the living expenses of the recipient spouse/partner. It is intended, as far as is practical, to maintain the same standard of living as a spouse/partner enjoyed during the marriage/partnership. Spousal support is separate and distinct from child support. Spousal support terminates upon the death of either party, the remarriage/partnership or cohabitation of the recipient or upon a fixed date ordered by the court. Either party can apply to the court for modification of an existing spousal/partner support order at any time during its existence.
You can also put Spousal Support “on the shelf” for Later : Reserving (sometimes called “retaining”) jurisdiction over the issue of spousal/partner support simply means that the court is asked not to make an actual dollar figure order but instead to place the issue of spousal/partner support “on the shelf” for either party to come back to court at a later time. The court will want to place a time limit on how long it will retain jurisdiction. The longer the marriage/partnership, the less restrictive that time limit will be. Just like with an actual dollar order for spousal/partner support, the court’s reserved jurisdiction on spousal/partner support will always cease upon the death of either party or the remarriage/partnership of the party for whom spousal/partner support is reserved. Reserving spousal/partner support is a good way to provide a safety net, particularly after a longer marriage/partnership or when one spouse/partner has health problems. Perhaps at the time of the divorce both parties are self supporting, but perhaps the financially weaker of the two has only just gone back into the work force after many years out of it. That party’s interests would not be served by a complete and final waiver of spousal/partner support. Reserving jurisdiction on spousal/partner support usually occurs in long term marriage/partnerships of 10 years or greater duration, although no judge will reject the proposal in any situation – if the parties agree.
Marriage of Long Duration: It is mandatory for the court to reserve jurisdiction indefinitely on the issue of spousal/partner support for either party in a marriage/partnership of long duration when requested by either party to do so. A marriage/partnership of long duration is generally one of 10+ years between date of marriage/partnership and date of separation, but a court can find a shorter marriage/partnership to be one of long duration for this purpose. This basically means that if you have a marriage/partnership of close to 10 years duration or longer, then unless you and your spouse/partner agree in writing (in the written agreement SmartTrackDivorce will prepare for you [see below on this interview page]) that there will be no spousal/partner support and no reserving jurisdiction on spousal/partner support, the court will reserve jurisdiction when requested to do so.
If you have a long marriage/partnership and you cannot provide the court with a written agreement to waive spousal/partner support for both of you, you can still request that neither of you is awarded spousal/partner support or has his or her spousal/partner support rights reserved, but Family Code 4336 is clear that the court does not have discretion. Such a request may result in rejection of your proposed judgment and/or setting a court appearance where you will have an opportunity to explain to the judge in open court. As in so many other areas of divorce, having a cooperative spouse/partner and a written agreement to prove that cooperation is good and usually results in getting what you want.
Spousal Support is taxable and tax deductible: Child support is not tax deductible or taxable. Spousal support is generally taxable to the recipient and tax deductible to the payer (though consult your tax adviser for your particular situation). The IRS is extremely aware of efforts to make child support look like spousal/partner support, and there are rules in place to prevent it. Definitely consult a tax preparer/accountant before proceeding if you have any questions on this issue.
Spousal support is not division of property or debt: Spousal support is also to be distinguished from sums paid to equalize the division of property. Let’s say that you and your spouse/partner agree that you will buy your spouse/partner’s 50% interest in your community property Toyota Celica, which has a net fair market value of $1000. To close the deal, you pay your spouse/partner $500 and your spouse/partner signs over the pink slip. The payment of that $500 is a tax-free payment made between spouse/partners or ex-spouse/partners in order to complete an agreed division of community property. It is not the tax deductible payment of spousal/partner support. Be careful and definitely consult a tax preparer/account before proceeding if there are any questions on this issue.
Welfare: If the intended recipient of spousal/partner support receives TANF (formerly AFDC) or Food Stamps for the support of any minor child of this marriage/partnership, do not proceed without discussing the spousal/partner support issue with your county agency welfare caseworker. When you signed up for welfare, you signed over to the county all right to your spousal/partner support from this marriage/partnership, as well as your child support rights. The county may or may not want to pursue spousal/partner support. Your case worker may tell you that you should “reserve jurisdiction” (see above) on the issue of spousal/partner support.
Mandatory Wage Assignment: Just as with child support, a Wage Assignment is now mandatory in all cases in which spousal/partner support is ordered. A Wage Assignment is a court order directed at the employer of the party ordered to pay the support. It directs that employer to commence, within 10 days of being served with the Wage Assignment, deducting an amount sufficient to meet the court ordered amount from the wages of the paying spouse/partner and pay that amount to the court ordered recipient of the court order. The employer is ordered to continue to so deduct and pay until the term of the support order is satisfied, until the paying spouse/partner no longer receives wages from that employer or until a further order of the court, whichever event occurs first.
But the Service of the Wage Assignment can be Postponed: However, the legislature not only recognized the need for such wage assignments but also that some couples would prefer not to invoke the wage assignment for reasons of amicability, practicality or perhaps even a desire to avoid employment embarrassment for the party ordered to pay the support. Accordingly, a partial “loophole” was built into the law. The Wage Assignment was still made mandatory, but its service upon the employer was not mandated if the parties agreed. The service of the Wage Assignment can be stayed or postponed, even indefinitely, providing that the paying party does not default (become late on any payment or portion of a payment) on the support order. If the service of the Wage Assignment is stayed and the party ordered to pay support becomes delinquent on any support payment, the other party can file simple paperwork at court, have the stay of service of the Wage Assignment lifted and then serve Wage Assignment on the employer of the party ordered to pay the support.A Wage Assignment can be served on most employers, even self-employeds. Military personnel and federal government workers have been immune from state court Wage Assignments, but that protection is in jeopardy. There are new potential law changes affecting this area.Again, you and your spouse/partner must agree on this issue. Service of Wage Assignments is not automatically bad. The Wage Assignment becomes just like any other deduction from income, and it’s taken care of without the support payer having to remember or do anything further.
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Divorce marks a giant change in your home life, but it also means change in your financial life. Whenever a divorce takes place you must change how you file for your federal, state, and local taxes. Taxes are a complicated matter, but when a divorce takes place a person’s tax issues become even more complicated. who will pay for taxes, who will receive the tax refund, who will claim any children as independents, and future tax issues. The institution of marriage intertwines a couples’ finances, which makes detangling a couples’ finances during a divorce that much more difficult. This is why it is important to discuss and draft a divorce settlement agreement. You can find new tax laws and guidelines on the IRS website at www.irs.gov. The IRS has a publication with current federal tax laws called “Publication 504: Divorced or Separated Individuals.”
Up until 1979, alimony was only awarded to (ex) wives, and not to husbands. Now, you may think that the times were different and women didn’t really have the rights or means to be able to fully support their husbands once divorced. This is partially correct, but this was also the time in which women’s rights were making large moves in the courts and out in society. So doesn’t this seem a little unfair and reversed? William Orr certainly thought so, and he set out to do something about it. On March 5th, 1979 the Supreme Court ruled that a statute authorizing spousal support for wives but not husbands was unconstitutional. The significance of this judgment is that it rejected the premise that married women are necessarily dependent upon their husbands for financial support. finding that what had been done in the past was an unconstitutional equal protection violation, changed the face of marriage and divorce forever.
Deciding to get a divorce is the first step in a particularly unpleasant process, but who says your divorce has to be painful? True, your soon-to-be-ex-spouse may have been a lying, cheating, condescending waste of space, but an amicable, uncontested divorce makes the process easier on you and any children you might have by that waste of space. An amicable divorce just means that you and your ex-spouse sit down and discuss how to divide your property and assets, spousal support, child support, child custody, and everything else the courts would usually discuss. Basically, an amicable divorce cuts out the middleman. Even if things just didn’t work out with your spouse, an amicable divorce is the way to go.
Precision in Division
One major bonus of an amicable divorce that isn’t related to the family unit is the control you and you’re ex will have over the division of assets. In a regular fault-based, or even no-fault, divorce, the judge will be the one to decide which spouse retains which properties and assets. By having an amicable divorce you and your spouse will be the ones to decide who gets what and collaborate on the outcome of your divorce instead of leaving your fates to the courts. As an extra bonus, amicable divorces are usually less expensive and are resolved faster than divorces settled in court.
Meditate on Mediation
Not convinced you can suppress your rage or hurt enough for an amicable divorce? Don’t worry; there are a few ways to go through an amicable divorce even if you’re boiling underneath the surface.
One great resource to help your amicable, or not so amicable, divorce is mediation. Mediation is just the term used when spouses seeking a divorce contract a neutral third party to assist in the divorce. You and your spouse can contract a mediator alone, or contract a mediator as well as hire your own lawyers.
Remember: Amicable Means Acting Amicably
Always remember when you go the amicable divorce route that you and your spouse must be on the same page before beginning the divorce. Amicable divorce will only work if both spouses acknowledge and act amicably. This means no hiring cut-throat attorneys, no battling for the majority of the assets, and no seeking revenge.
However, if you decide to hire you own lawyers as an extra buffer make sure your lawyers are made aware of the amicable part of the divorce as well. As in any divorce, you should communicate every thought or wish you have regarding your divorce to your lawyer so they are fully aware of your expectations and goals.
Divorce is a harrowing business simply because it signifies a turning point in your life, whether or not you’re ready for it. From this point forward you could choose to turn down a positive, happy path, or down a negative, gloomy path. An amicable divorce could be that segue way you need to find the path that leads to your bright future.
The divorce process presents many areas in which discrepancies can arise between a separating couple. Some people can amicably come together to discuss their divorce and how to appropriately divide their assets. Many couples, however, cannot constructively discuss and readily agree to the division of their property and assets.
Mediation can be an option to help further the process by bringing the couples together with a mediator to appropriately discuss and amicably agree on key decisions that are stalling their divorce from moving forward. A mediator cannot give advice to either party nor can they act as a lawyer in each discussion. This frees up an open, honest exchange between spouses, and allows them to confidently and freely discuss the terms they cannot agree upon. On the other hand, litigation ultimately takes the decision out of the couples’ hands and puts it into someone’s hands who may not know them very well. Mediation can also take far less time to reach a conclusion than the process of litigation.
Less Expensive, More Control
This is one of the most common reasons for mediation. Both spouses will hire one individual to assist in the mediation between the spouses. Litigation can often times be an expensive and trying process, whereas mediation is more flexible and confidential. Freeing up a notion of complete trust can be crucial for each spouse to have the confidence to speak freely and clearly, which helps to get everything on the table. The divorce process can be difficult, not only for obvious reasons of separation and the ending of a marriage, but also because some things can feel out of your control. This is already a hard phase to go through as an adult, but when your life is being divvied up by a court system and judge you can feel helpless through the process. Mediation allows you the control to negotiate and express yourself and keep the final decision on your own things, whether it is property, money or other assets.
Mediation Minimizes the Emotional Toll
Divorce always emotionally affects children. The outcome for them will be traumatic enough, but when the parents are bickering visibly and being petty over the children it can cause even more irreparable damage. Mediation can halt the emotional trauma and allow the parents to come together. Seeing this, the children can know their parents can work together when it concerns them, eliminating the notion that their parents are fighting and maybe divorcing because of them.
The emotional toll of divorce is both trying for the children and the parents. Making the divorce process a muddy and mud-slinging affair does no good for anyone involved. Mediation can help lessen the emotional toll on everyone involved in the process, allowing for peace and moving forward.
Mediation obviously is not the only option in divorce, and in some cases it may not be a viable option, but it certainly can be a helpful tool. The way your marriage ends can have a significant effect on how you continue to move forward. If you allow yourself to be dragged down by the process, or allow the process to unnecessarily drag on, it will only hurt you and your children in the long run. Divorce mediation can be a peaceful way to negotiate towards the end of your marriage on a positive note.
You and your spouse may be thinking of divorce, or may be starting the divorce process, and are unsure of what it will mean for your family. Each family is unique in structure, size, and style, but when divorce is brought into the picture one thing is certain: the family will be affected. So how can you and your family try to make the divorce process easier? By learning about relevant things like visitation rights. American courts, from state to state, encourage both parents to be highly involved in their child’s life. Due to this unanimous sentiment, the courts will usually decide in favor of awarding visitation rights to the non-custodial parent on weekends, holidays, school breaks, and more. The courts try not to disrupt the child’s schedule and life style by encouraging a healthy relationship with both parents.
In some cases, however, the courts will either prohibit visitation or order supervised visitation. These cases usually are because of previous incidents of abuse, whether inflicted upon the child or upon another family member. Supervision is conducted by an appointed court officer.
Visitation agreements or rulings are not set in stone, though. If situations change or issues arise, modifications can be made to the visitation agreement. The court will also change the visitation agreement if the court feels that the visitation is not in the child’s best interest.
There are many factors and unpleasant situations involved in divorce, but when children are involved it is especially important to not let your hostility dictate the outcome of a divorce. Instead, try to be as educated about the divorce process as possible, so you can move on with your life. Because each state is different, the visitation rights and divorce process may vary slightly; so make sure to research family law in your state. For more information about visitation rights, and our video series, visit our YouTube channel.
It hasn’t changed overnight, but the evidence is now wide spread. The contrast and make-up of the modern family has vastly changed in the last 50 years. The modern relationship make-up has also vastly changed. Many factors can contribute to this change in structure. From the economy to careers, we are seeing more relationships between men and women extend a longer period of time before they decide to marry. Cohabitation has been on the rise since the 1980’s. Many thought this was a sign that it could deeply hurt the institution of marriage in this country. While that turned out to be false there are individual reasons why people are cohabitating before marriage and reasons why people are still getting married. How does this affect their relationship? Is one clearly a better path then the other?
Affects of Cohabitation
A recent government study determined that nearly half of marriages break up within the first 20 years. A statistic that is similar to the largely popular sentiment that half of all marriages will not last. Knowing those odds along with that popularly spoken marriage statistic, some people have taken to cohabitation before they decide to marry. For younger people this has become increasingly more common to the point where it is almost part of the process leading up to marriage. No longer thought of as taboo, cohabitation has become a normal part of the pre-marriage routine. So, does cohabitation have an effect on the future potential of divorce? Apparently not, according to the new study. The new research, made up of a marriage survey that included 22,000 men and women, suggests that living together has not affected the divorce rate either way.
Results of the study
In 1960, only 10% of couples were reported to have lived together before marriage. Today around 60% of couples live together before they marry. Researchers in the Centers for Disease Control and Prevention were looking for trends with couples who were in their first marriage. Interviewing both men and women between ages 15 to 44 from 2006 to 2010, they discovered around 40% were married. Results found from the research showed that couples who were engaged and living together before the wedding have about the same chance of their marriage lasting at least 15 years as couples who hadn’t lived together.
The study also showed that marriage was less likely to survive to the 10-15 year mark among couples who weren’t engaged when they lived together. Factors thought to explain the increase in cohabitation range from lax attitudes about commitment, lower education levels, previous family history, or just pessimism about marriage.