Family Law - Divorce

Divorce and Custody Mediation

Child Support - Spousal Support

Children and Divorce                                                  Divorce Document Checklist

Before Divorce - To-Do List                                                      Child Abandonment


We view marriage as a permanent and lifelong commitment that should be terminated by divorce only as a last resort. We believe marriage was designed for intimacy, companionship and to serve as a vehicle for raising children. We also believe marriage was designed as a means for a husbands and wives to honor each other.

Unfortunately divorce is a widespread reality that has many negative consequences. Sometimes divorce is justified and necessary because the bonds of marriage have been broken beyond repair.

Before resorting to divorce, we urge you to discuss your situation with your pastor, rabbi or priest. Another alternative is to consider the services of a professional, licensed marriage and family counselor. Please read the section on Family Law Evaluations.

If all else fails and you decide divorce is your only option, we urge you to call us for a no cost initial consultation. We can discuss the option of divorce mediation, which we strongly recommend, as well as other alternatives.


The family law attorneys with Michael T. Chulak & Associates can assist with divorce, support issues, custody and visitation, parental alienation, or any other family law matter including Marvin or Palimony Claims. We understand that family law disputes can be stressful and quite unpleasant. You have our commitment that we will do everything within our power to minimize your stress while providing you with competent and efficient legal representation. We accept Visa and Mastercard.


Here are the Frequently Asked Questions about Divorce and Family Law along with their answers:

Q. What is mediation?
A. Mediation is a fast, confidential and economical way to settle most disputes including those that are inherent in divorce.

Q. What are the benefits of divorce mediation?
A. The most common advantages are that:
   
The mediator, as a neutral third party, can view the dispute objectively and can assist the parties in exploring alternatives that they might not have considered on their own.
 
   
Parties almost always save money by reducing the hours spent by legal counsel.
 
   
Parties increase the possibility of continuing a relationship (if necessary or desired) with each other.
 
   
Documents and testimony presented do not have to become part of public record. In fact, discussions that take place are protected by the confidentiality imposed on the mediator and on the parties by Evidence Code Sections 1152 and 1152.5
 
   
The emotional stress that usually accompanies the more combative, drawn out process of litigation is eliminated.
 
   
The possibility of an adverse court judgment is avoided.
 

 

Q. Are divorce mediations usually successful?
A. Nationally, over 85% of divorce mediations result in a settlement, thus avoiding litigation. Most importantly, since both parties consent to the final agreement, compliance with support obligations exceeds 90%, far exceeding the results following litigation.

Q. How long does it take?
A. Mediations can be conducted in much less time than a lawsuit. Our attorneys are generally available during evenings and on weekends as well as during normal business hours, and will work with the parties to minimize the time required to reach fair settlement. Generally, 10 to 16 hours are sufficient unless complex issues are involved.

Q. Is mediation binding?
A. A mediator does not have the power to render a binding decision. The objective of mediation is for the mediator to assist the parties in agreeing to a settlement. Once the agreement is reduced to writing, it becomes enforceable.

Q. How do I get started?
A. Call us for a no cost orientation.

Q. How do I contact my spouse about divorce mediation?
A. There are several options. The best option will depend upon your circumstances. When you call us, we can discuss the alternatives.

Q. How do you stay neutral as mediators if only one of us contacts you?
A. As mediators we are obliged and dedicated to discussing your case in a neutral way with both sides. This is an important part of our training and we take the responsibility seriously. Normally, we have at least one conversation with each party before the mediation process begins.

Q. Do I need an attorney to represent me in a divorce mediation?
A. It is not necessary for you to have legal representation, but sometimes people feel more comfortable with some level of legal representation. It is your choice.

Q. Will you tell me my legal rights as part of the mediation process?
A. We will provide you both necessary and important information but since we do not represent either party, we do not provide legal advice to either party.

Q. Can I have a friend or relative present with me during the mediation process?
A. Absolutely.

Q. I have already filed for divorce. Can we still mediate our divorce?
A. Yes.

Q. What is the cost of a divorce mediation?
A. Only a fraction of what two divorce lawyers will charge. You and your spouse have the power to keep the cost low by cooperating at all stages.

Q. How is a divorce started?
A. A Summons and Petition are filed with the court (by the Petitioner). Copies are then served on the other party known as the Respondent.

Q. How long does it take for a divorce to be final?
A. Six months from the date the Summons and Petition are served on the Respondent.

Q. What is a nullity (formerly called an annulment)?
A. A court order declaring that the marriage in question never existed.

Q. What is a legal separation?
A. A court order that separates but does not divorce the parties. Similar to a divorce, it addresses custody, support and the division of property. It is used where couples cannot divorce for religious or moral reasons but cannot continue to live together.

Q. What are the residency requirements for a divorce?
A. In order to file, at least one spouse must have lived in California for at least six months and in the county where the Petition is filed for at least three months.

Q. What are the automatic restraining orders?
A.
When a Summons and Petition are served, both spouses are automatically ordered not to:

  1. Remove a child of the parties from the state without written permission of the other spouse or order of the court.
  2. Transfer, sell or encumber (borrow against) any property except in the usual course of business or for necessities.
  3. Cancel, transfer or borrow against any insurance policy held for the benefit of either the other spouse or a minor child.

Q. What is an Emergency Protective Order (EPO)?
A. It is a restraining order valid for only 5 to 7 days that can be issued on the telephoned request of a law enforcement officer. In every county, a judicial officer is on duty 24 hours a day and available to issue EPOs on an emergency basis. It must be a genuine emergency. An EPO is designed to give you the time necessary to obtain a longer term restraining order. Call your local police to obtain their precise policy.

Q. How can I get information about "battered women’s shelters"?
A. Call the local police or the National Domestic Violence Hotline at (800) 799-SAFE.

Q. What is a Domestic Violence Restraining Order or DVRO?
A. A DVRO is a temporary restraining order effective until a full hearing takes place which is held approximately 21 days later. A DVRO can be issued in one or two days. In some cases, it can be obtained the same day the application is filed. After the hearing, the court order is effective for 3 years and it can be extended for an additional 3 years. The order is intended to protect you and/or your children.

Q. Can I obtain a Domestic Violence Restraining Order (DVRO) before filing for divorce?
A. Absolutely. It is preferred that the DVRO be obtained at the earliest possible time, if it is needed.

Q. Who can be restrained with a DVRO?
A. A DVRO can be used to restrain anyone of the following:
  1. Your spouse or former spouse.
  2. Anyone who has ever resided with you.
  3. Someone you have been engaged to.
  4. Someone you have a child with.
  5. Someone you have dated.
  6. A family member by blood, marriage or adoption.

Q. What types of orders can be obtained with a DVRO?
A. A court has the power to enter any of the following orders, if justified:
  1. A kick-out order, removing the person from the residence.
  2. A stay-away order keeping the person away from you, your residence, work, children, children’s school, child care center, and/or your car.
  3. An order not to call, contact, molest, annoy or bother you.
  4. An order that the person not attack, strike or threaten you.
  5. An order restraining the person from removing the children out of the state or county.
  6. Orders for custody of the children.
  7. Orders for visitation, including restricted visitation.
  8. An order that the person surrender his gun to the police and not obtain another.

Q. Is a child support order available under a DVRO?
A. It is available after the formal hearing which should be held within 21 days of filing for the DVRO.

Q. Is a spousal support order available under a DVRO?
A. No. This will require the filing of a family law action.


Q. What happens if I obtain a kick-out order but do not earn enough money to pay the house payments?
A. While not guaranteed, the court may order your spouse to pay or assist in paying the house payments on a temporary basis.

Q. Is it possible to keep my new residence address confidential?
A. Yes. Your spouse can be prevented from receiving this information.


Q. When can I remarry?
A. After the final judgment has been entered and the date specified on the judgment for termination of the marriage has passed. This will be at least six months after the Summons and Petition were served on the Respondent.

Q. Does it make a difference if I am a resident alien?
A. Yes. Resident aliens who are divorced after less than two years of marriage are in danger of losing their resident status and they and their dependent children may be in danger of deportation. The only exception is where there has been child or spouse abuse.

Q. Can I prohibit my spouse from smoking when the children are present?
A. Yes. Courts are increasingly receptive to such orders due to the weight of scientific evidence that second hand smoke has an adverse effect on health and may cause premature death.

Q. Can grandparents obtain visitation rights?
A. Yes. The court has discretion to award visitation to grandparents whenever it would be in the best interest of the child.

Q. How long is child support payable?
A.
Until the child dies, marries, becomes self-supporting or reaches 18. However, so long as the child is in high school, full-time and not self-supporting, support will continue to the completion of the 12th grade or age 19, whichever first occurs.

If the parents agree in writing, support can be ordered to age 21 or through college or job training.

Support for a disabled child who is unable to work can be extended as long as the disability lasts.

Q. How is the amount of child support determined?
A.
The California Legislature has established guidelines that apply to the entire state. All judges must follow these guidelines. The precise amount of child support can be calculated by means of an approved computer program by a family lawyer or a member of his or her staff.

The guidelines take the following factors into consideration:

  1. Both parents are equally responsible for the support of their minor children.
  2. Children are to be supported according to their parents' circumstances and stations in life and the children’s needs.
  3. The actual income of both parents.
  4. The actual time each parent spends with the children.
  5. Children should share in the standard of living of both parents. Child support may therefore improve the standard of living of the custodial household in order to improve the standard of living of the children.

If a parent has intentionally reduced income and suitable income is available, the court may consider earning ability instead of actual income. The court is not limited to the guideline child support where there are "special needs". Unfortunately "special needs" does not have a precise definition, so judges do have some discretion.

Q. How often can child support orders be modified?
A. At any time circumstances have changed sufficiently to justify a modification. However, the law allows one party to serve the other party only once a year with a "Request for Production of an Income and Expense Declaration After Judgment".

Q. Can I receive spousal support?
A.
The answer depends on several factors.

Courts do not favor it where the marriage is very short or where there are no children and both spouses can support themselves. Generally, courts will favor spousal support where the marriage is over five years.

While the parties can negotiate and agree to any length of time, courts commonly set spousal support for a period equal to one half the length of the marriage (not including cohabitation before marriage).

The guideline followed by most courts is that spousal support will equal 40% of the supporting spouse’s net income after child support, less 50% of the supported spouse’s net income not allocated for child support. A judge will usually start with the guideline but will consider the following:

  1. The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
  2. The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
  3. The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
  4. The ability to pay of the supporting party, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
  5. The needs of each party based on the standard of living established during the marriage.
  6. The obligations and assets, including the separate property, of each party.
  7. The duration of the marriage.
  8. The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
  9. The age and health of the parties.
  10. The immediate and specific tax consequences to each party.
  11. The balance of the hardships to each party.
  12. The goal that the supported party shall be self-supporting within a reasonable period of time.
  13. Any other factors the court determines are just and equitable.

Courts have great discretion in this area.

Q. What are the income tax consequences of support?
A.
Child support is not deductible as an expense by the payor nor is it included as income by the recipient.

Spousal support is deductible by the payor and is included as unearned income by the recipient.

Family support (unallocated support) is combined spousal and child support. It is tax deductible to the payor and is included in taxable income to the receiving spouse. Family support (rather than child and spousal support) can result in substantial overall federal and state income tax savings if the payor earns significantly more than the recipient.

Q. Do I have the right to see my spouse’s financial information?
A. Yes. Parties have the absolute right to examine each other’s accounting and bank records, tax returns and pay stubs. If a spouse refuses to voluntarily provide this information, a court can order the delivery of the requested documents, as well as reimbursement of any attorney fees incurred as a result of the refusal. If a spouse refuses to comply with an order, he or she can be held in contempt. The law requires both parties to make full disclosure of all relevant financial information under oath.

Q. What is community property?
A. California follows a system of marital property ownership called "community property". All property acquired after marriage and before permanent separation is considered to belong to both spouses equally, except for gifts to and inheritances by a spouse. Also, income from community property is community property income.

Q. What is separate property?
A. All property which is not community property. See What is Community Property.


Q. What is Palimony?
A. While Palimony law in California did not start with the California Supreme Court’s decision in Marvin v. Marvin (1976), the Court made new law with its decision in this case. In the Marvin case, the Court held that in the absence of an express agreement, a plaintiff may able to establish an implied contract or partnership and sue for monetary damages on such a theory. Since 1976, there have been hundreds of Palimony cases filed and litigated claiming an implied contract.

Since Marvin claims are not extinguished by marriage, every married person considering divorce, who lived with their spouse before marriage, should evaluate whether a palimony claim exists. Marvin claims must be brought in a separate civil action since family courts do not have jurisdiction over these claims. Sometimes these claims are as valuable or more valuable than rights arising from a marriage.


Q. How is harassment defined?
A. Harassment means a knowing and willful course of conduct directed at a specific person that a reasonable person would consider as seriously alarming, seriously annoying, seriously tormenting, or seriously terrorizing the person and that serves no legitimate purpose.


Q. How is stalking defined?
A. A stalking refers to any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking.


Q. How does a divorce affect an estate plan?
A. When a couple goes through a divorce, there are a number of issues to consider. A family law attorney is able to assist with your representation during the divorce process, however, you must also consider whether your estate plan is in order.

An individual usually wants to remove their former spouse from their Will and Durable Powers of Attorney. The Living Trust the former couple had in place is often revoked and the assets divided. A new trust must be created to house the assets of each individual so that probate can be avoided at death. When the individual consults with an estate planning attorney, their unique circumstances will guide the direction of their estate plan. It is also advised that beneficiary designations on bank accounts, retirement accounts, and life insurance policies be reviewed and changed if necessary. It would be unfortunate if a former spouse was named as a beneficiary and received a “pay-out” instead of a current spouse simply because someone forgot to review their beneficiary designations during the process.

Unfortunately, once the divorce is granted, your work isn’t finished. You should make sure that your estate plan is in order and proper for your current circumstances.

Q. As part of my divorce settlement, I am expecting to receive stock in a profitable family owned business. The number of shares will give me a minority shareholder interest. I am not employed by the firm and have limited knowledge about the business. Can this stock be sold?
A. Unless it is restricted, it can be sold at any time. If the stock is restricted, a sale may be delayed. There are buyers who will purchase stock in family owned corporations even if a controlling interest is unavailable. Sometimes the best prices can be obtained from an existing shareholder, but not always. One of our business - corporate attorneys should be contacted for a no cost initial consultation.
   


Don't make one of the Seven Common Mistakes.

For additional information on divorce, family law or other legal
services, please contact us for a no cost initial consultation.

 

 

Security Concerns and Tips

It is an unfortunate fact of life that divorce sometimes results in serious concerns about the need to enhance security. While everyone needs to be concerned about security, living completely alone, or with young children, makes it especially important to carefully evaluate your security needs. For a comprehensive list of security tips, visit CoastSecurityServices.com.

 

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