If you're behind on your alimony or child support -- or if your ex is -- you may be wondering whether bankruptcy will make those back-payments go away. It won't.
Alimony and child support payments are not dischargeable in bankruptcy. In fact, under bankruptcy law, spousal and child support payments have to be paid before any other creditor can take a piece of the debtor's assets -- even the tax man.
What Should I Do If My Ex Owes Child Support and Alimony And Is Filing for Bankruptcy?
Just because the law doesn't allow alimony or child support to be wiped out by bankruptcy does not mean you don't need to protect your interests. Just like any other creditor, you should make sure the bankruptcy court knows that you're pressing your claim by filing a "nondischargeability complaint" concerning any alimony or child support you are owed.
Both the bankruptcy trustee and the Child Support Enforcement program should notify you if your ex has filed for bankruptcy, so you should never be taken by surprise. Even if you do nothing, it is unlikely that the bankruptcy court would discharge the back-child support or alimony arrearages your ex owes you, but it's always a good idea to get good legal advice and protect yourself.
I Can't Afford to Pay My Current Spousal and Child Support, Much Less Make Back Payments. What Do I Do?
It never helps to just hope for the best -- it's time to take action. If you can't pay your alimony or child support because you've lost your job or experienced a financial crisis, you should be able to file for a spousal or child support modification through the family court.
A modification of your alimony or child support order will only affect future payments, however. It will not wipe out any arrearages you owe. It might be possible to get hardship relief through the courts, but it's not easy, and you should definitely talk to an attorney. The most likely resolution is for you to set up a payment plan with the court, or through negotiation with your ex, that will help you catch up.
If you are able to make an agreement with your ex, be sure to have it approved by the court. Otherwise, the Child Support Enforcement program will continue to try to collect under your existing order.
Related Resource:
"Bankruptcy doesn't absolve spousal support payments" (To Her Credit blog, CreditCards.com, May 7, 2010) :: via
]]>Camille had just been cast as a member of Real Housewives of Beverly Hills, and it was known that Grammer was opposed to her participation on the show, which likely would have dragged him into the spotlight as well. It is not known how much of a role that disagreement played in her divorce filing, or if it played a role at all.
Of great concern to Kelsey Grammer, and surely his wife, is the fact that the couple did not sign a prenup before they married. Needless to say, Grammer may be handing out quite a bit of money before all is said and done.
He is especially concerned about money made during Frasier's 11-year-run, at the end of which Grammer commanded well above $1 million per episode. However, since Kelsey and Camille were married during the last seven years of the show, a lot of that money could be going to Camille under community property laws.
Camille has also asked for joint legal custody of the couple's two children, aged nine and six. It's a request echoed by Grammer, though he has also asked for joint physical custody.
As for rumors and accusations, they're already flying. TMZ reported that Grammer did not call his children on Father's Day, which the actor has flat-out denied. With things just heating up, and both child custody and Grammer's fortune at stake, this may only be the beginning.
]]> The Sacramento Child Custody Attorneys of Bowman & Associates help clients across California. If you or someone you know has legal questions, contact our experienced Sacramento Family Law Firm to speak to a lawyer today. We offer free consultations.[source]
]]>Further, both parents may not be responsible for all of a child's expenses. Child Support is about covering the necessities in a lump sum. Things like food, clothing, rent or mortgage payments. There are plenty of things that aren't considered necessary expenses, or that are covered by orders separate from a Child Support order. There may be separate provisions for healthcare expenses, or extracurricular activities. Often times, when it comes to discretionary spending that the parents don't agree on (for instance, one parent feels it appropriate to buy the child a brand new car and the other parent doesn't agree), the parent who disagrees may not be responsible for any portion of the purchase.
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]]>When Marc and Scarlet Chopin divorced in 2007, the decree called for Marc to pay Scarlet $2,500 per month, with the amount dropping to $1,000 in 2013.
The agreement called for the spousal maintenance to end if she lives with another man, with the exception of "A.R.," with whom both parties anticipated Scarlet would live.
Instead, Scarlet struck up a relationship with Robert Waddell. They were engaged through most of 2008 before the relationship ended.
Marc petitioned the court to end his spousal support on the basis of the new couple's co-habitation, which Scarlet denied.
The trial court and court of appeals agreed that the proper definition of "romantic co-habitation" was "living together and behaving as a married couple."
However, the appeals court ruled that the lower court improperly applied that definition to Scarlet and Waddell because they did not live together.
"Waddell testified that, during a six-month period, he spent one out of every six days at wife's house, Judge Daniel Barker wrote. "Husband presented no substantial evidence that Waddell spent more time at Wife's home."
Barker overturned the trial court's decision to halt Scarlet's spousal maintenance.
]]> The Sacramento Spousal Support Attorneys of Bowman & Associates help clients throughout California. If you or someone you know has legal questions, contact our experienced family law offices in Sacramento or Folsom. You can speak with a lawyer today.[source]
]]>Dillon, who played 10 seasons for the Cincinnati Bengals and New England Patriots before retiring in 2006, was charged with driving under the influence of alcohol or drugs and driving while having a blood-alcohol level of .08% or more.
Dillon was driving north on Mulholland Drive near Malibu on April 21 when deputies with the Los Angeles County Sheriff's Department pulled him over to check the car's registration. Dillon was arrested after deputies said he displayed signs of intoxication and admitted to drinking earlier in the evening.
While awaiting charges in the drunk driving case, Dillon was arrested on suspicion of domestic violence but prosecutors declined to file criminal charges against the former NFL star, saying there was insufficient evidence to show that his wife, Desiree Antoine-Dillon, was injured at the couple's Calabasas home, officials said Thursday.
Dillon and his wife were arguing over their pending divorce and child custody when she called 911, saying she had been assaulted by her husband, according to a spokeswoman for the Los Angeles County Sheriff's Department.
Antoine-Dillon alleged that Dillon "poured milk over her head, threw water on her and poured soy sauce on her" during the dispute, according to the filing rejection released Thursday. She also told authorities she suffered "a superficial cut on her thumb."
She later told authorities that her husband never hit her and her injury was not caused by physical contact with Dillon. Antoine-Dillon also indicated that she did not want to press charges.
District Judge Mike Norman issued bench warrants for those who failed to appear. The three non-custodial parents for whom warrants were issued are:
--Steven Meskus, who owes $16,433.72 and for whom a cash-only bond was issued;
--Gary Smith, who owes and for whom a $2,547.80 a cash-only bond was issued;
--and Gerald Wyche, who owes $6,457 and for whom a cash-only bond was issued.
The district attorney's child support office asks that anyone with information about where these or other wanted persons can be located should call any local law enforcement officer for immediate arrest.
Other non-custodial parents whose cases are worked through Moore's Sallisaw Child Support Office paid a total of $72,099.98, so far, for the month of June.
Moore said, "The mission of the Office of Child Support Services (OCSS) is to enhance the well-being of children by establishing, monitoring, and enforcing reliable sources of support for families entitled to child support."
The Oklahoma legislature and the U.S. Congress has enacted law to allow the Office of Child Support Services to collect child support owed from non-custodial parents who receive payments from Social Security, Worker's Compensation, and personal injury settlements as well as regular employment paychecks.
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]]>"He just didn't want to be married anymore," says McDowell, now 60. "But he was my best friend, and I expected to spend the rest of my life with him."
That was four and a half years ago. Today, McDowell, of Hayward, is a new woman. She is a grandmother and works for an arts college, a job she loves. She is active in her Fremont church, and says it was her faith that helped her deal with the emotional issues that come with late-life divorce.
"My commitment to forgive was the most important thing for me," she says. "I didn't want to become bitter, and I didn't want my bitterness to poison my children."
Couples divorce every day. Yet it is particularly surprising when a marriage of more than 30 years ends. Take the recent announcement of Al and Tipper Gore's split. As the news spread, we felt a collective sense of sadness. What were they thinking? Why divorce after 40 years of marriage?
Late-life divorce is relatively uncommon. Sociologists agree that most people who have been married for a long time are happy. Nevertheless, some couples still drift. Marriages of 40 years or more account for 4 percent of divorces, according to Andrew Cherlin, a Johns Hopkins University sociology professor who studies families. It jumps to 8 percent for marriages of 30 to 39 years, likely because these couples are closer to life's empty nest stage, when children are grown and out of the house.
Late-life marriages dissolve for the same reasons any marriage does. Sometimes, there is abuse. Or infidelity. More often, the causes are even simpler: They grow apart, develop different goals, or no longer feel fulfilled. Contributing factors to late-life divorce, in particular, include increased life expectancy and longevity and a social acceptance of divorce that did not exist a generation ago, according to Beverly Hills Family Law Attorney Steven Knowles of Knowles Collum LLP.
Given the large size of the aging baby boomer population, this is somewhat new territory for sociologists, like Cherlin. After all, from an evolutionary perspective, the institution of marriage was designed to help you raise kids and put food on the table, he says.
"Only in the past half century have we had people who live long enough that they are together for 20 to 25 years after child-rearing," Cherlin says. "This is a new stage of life, and we're figuring out what to do with it." It used to be the middle aged who asked themselves, 'What should I do with my life?' Now, 60-year-olds do, he says.
Fifteen years ago, Al W.'s wife of 36 years filed for divorce. She was a stay-at-home mother of four sons and once they were grown and out of the house with children of their own, she wanted her independence to focus on a business venture, says Al, a retired pilot who asked that his last name be omitted to protect his family.
"She needed something more in life than coming home to me," says Al, now 70 and living in Pleasanton. "In hindsight, it was devastating. We didn't have a perfect marriage but I certainly thought we had a better relationship than a lot of our friends who stayed married."
Besides the financial aspect of a late-life divorce -- "You're talking about (losing) half your retirement," Al says -- the most difficult part for him was coming home to an empty house. Al eventually remarried and now has a 10-year-old daughter, who was born when he was 60.
"It was kind of late to start over but I wouldn't trade it for anything," he says. "I'm extremely happy." He has also remained friends with his ex-wife.
"Suddenly, you have to go out and get a job," says Talia, author of "How to Avoid the Divorce from Hell (And Dance Together at Your Daughter's Wedding)" (Nexus Publishing Company, 2006). "A lot of the people who are getting divorced late in life have had to reduce their standard of living."
The year following her divorce, Connie Bates of Walnut Creek had no choice but to move in with her son and his family in Patterson. She had been married for 36 years when her husband left. He wanted to be free, she says.... Continue Reading
The Sacramento Spousal Support Attorneys of Bowman & Associates help clients throughout California. If you or someone you know has legal questions, contact our experienced family law offices in Sacramento or Folsom. You can speak with a lawyer today.
]]>What does that mean to you?
Right now in Oneida County, if you are seeking a divorce, you're looking months ahead before even getting into a court room for a grounds trial - a legal journey that can an extremely long process.
Under the current divorce law, one spouse must take the blame for the split, even if both sides agree the marriage can't be saved. To get a divorce, one party must allege cruel and inhuman treatment or adultery or abandonment, or the couple must be legally separated for one year. By eliminating much of the specific criteria that couples must meet before a divorce can be granted, a no-fault divorce would speed up the legal process.
"This way it's not like a separation agreement," said Attorney Julie Giruzzi-Mosca. "But there's no dispute. (one side) wants the divorce, (another side) doesn't want the divorce...you're (still) getting the divorce. There's no trouble getting the divorce and then you're just left with the issues of the custody, such as the child support."
New York State is the last state to adopt a no-fault divorce law.
Governor Paterson is expected to support the bill if both houses of the legislature approve it. The senate has already approved legislation.
Opponents to the bill include the Roman Catholic Church, which objects to making divorce easier.
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]]>Interestingly enough, as a result of the social networking phenomenon, many Sacramento family law attorneys are finding themselves instructing clients on what not to post on social networking profiles, even if those profiles are supposedly private, non-public sources of information. According to the report, it is a good idea to approach social networking as you would approach supplying your local newspaper with information about yourself. That is, unless you're comfortable posting your personal information on the front page of a newspaper, you should be hesitant in posting that information on a social networking profile page.
In the article, clinical psychologist Dr. Erin Alexander reasons that "you may have individuals within the couple who have very different personal boundaries and don't mind sharing personal information but as it affects their partner, that's something that you need to reconcile and be on the same page about." Per fair warning, be careful about the information that you make public, because it may lead to complicated matters that can include divorce.
]]> The Sacramento Family Law Attorneys of Bowman & Associates have helped clients throughout California. Contact our Sacramento Divorce Law Firm if you or someone you know has legal questions regarding family law matters. We offer free consultations.[source]
]]>Between medical bills reimbursements and child support, she is owed more than $180,000.
Because of her ex's violent nature when Heather's son was a child, she had to get several restraining orders. Her son has not seen his father since the child was very young.
Through the years, his father would pay off and on, but the last child support payment received was in 2005.
"I'm livid, so I've gone to the state's attorney's office," said Heather, of Morris.
She has exhausted every outlet, from the Department of Healthcare and Family Services to the Illinois Attorney General, and now is waiting and praying the Grundy County State's Attorney's office can file criminal charges against this deadbeat dad whose last known address is in Alabama.
"We are still investigating. I don't anticipate anything until mid-July," Grundy County State's Attorney Sheldon Sobol said.
In Sobol's time as state's attorney, he has never prosecuted a criminal charge involving child support. The deadbeat dad in question already has an outstanding warrant for his arrest, but he has not been caught.
"He appears to be the poster child (of a deadbeat dad) in Grundy County," Sobol said.
"This is the first time in nine years (a child support case for criminal charges) has come across our desks," he continued.
It can be difficult to file criminal charges in these cases because the state statute for criminal prosecution requires it be shown that the person has the ability to pay and is not. This can be difficult to prove, Sobol said.
But even before this step, the court system has to exhaust all efforts first, he said.
The courts work diligently with both of the parents to make payments doable and get child support on a schedule, he said.
"The goal is to make sure the kid is supported," Sobol said.
In Heather's case, that goal has been extremely difficult to reach.
According to the state, this is probably because of how often her ex relocates.
]]> The Sacramento Family Law Attorneys of Bowman & Associates have helped clients across California. If you or someone you know has legal questions regarding Child Support, contact our experienced Sacramento Family Law Firm for a free consultation. ]]>Not so fast, you with the rose-colored glasses. As wedding season gears up, it may be time for some unsentimental planning before you walk down the aisle.
Demand for prenups is increasing nationwide as more people become aware that they're not just for the rich and famous. Roughly 40 percent of marriages fail, after all, so there's nothing disloyal or cold-hearted about preparing for contingencies.
"If close to half of all marriages are going to end in divorce, it makes sense to plan for it," says Marlene Eskind Moses, president of the American Academy of Matrimonial Lawyers.
A prenuptial agreement is simply a legal document that describes how property and assets brought into and acquired during a marriage will be treated if there's a divorce.
It isn't essential for everyone. A couple entering a first marriage with few assets, debts or other extenuating circumstances can generally forego the expense. With two lawyers recommended -- one for each person -- even an uncomplicated prenup can run $2,000 to $3,000 or more.
The cost goes a long way toward explaining why still only 3 percent to 5 percent of married couples have prenups. They are most popular with baby boomers in the 40-to-60 age range, who have more money and can afford to pay for adequate protection.
Yet it can pay off in the long run.
"It has the potential to save a tremendous amount of legal fees" in the event of divorce, says Robert Maloney, a financial planner in Holderness, N.H.
While awareness of prenups has grown because of high-profile celebrity divorces, it remains the touchiest of subjects for couples to discuss.
If one partner mentions a prenup, the other's reaction is inevitably "You don't love me!", says Carol Ann Wilson, a financial adviser specializing in divorce in Longmont, Colo. People need to view it as a routine part of the business of getting married, she says, along with planning for budgets, spending and children.
"It's just a piece of paper that sits in a drawer and protects them in case they don't have a happy marriage," Wilson says.
To broach the subject in a nonconfrontational way, one partner might propose scheduling a financial discussion for, say, 7 to 9 p.m. one evening, followed by a romantic date afterward. The business chat can include talk about what kind of budget they're going to have, whether they need separate checking accounts, savings goals, spending limits and, yes, a prenup.
So who really must have one?
Here are seven situations in which a prenup is advisable:
-- 1. When significant assets are involved, such as a home, stock or retirement funds.
Both sides need protection from the consequences of any breakdown of the marriage in this instance.
-- 2. When there are children from previous marriages.
Any time children are involved, there's an extra incentive to protect their interests. Most states will give the surviving spouse up to half of an estate, leaving the children no say. That could be at least partially avoided by using a prenup.
-- 3. When one partner owns all or part of a business.
In a breakup, the attorney for the other partner will likely go after a share of the "family" business.
-- 4. When one partner is much wealthier than the other.
A one-sided money situation can easily be cause for jealousy or, later, legal dispute.
-- 5. When one spouse-to-be is much older.
The older partner may not be able to recover to provide for his or her retirement if assets are split 50-50.
-- 6. When one partner will be supporting the other while he or she pursues a degree.
A $100,000 debt for grad school could easily outlast the marriage.
-- 7. When an inheritance is expected.
Even without big money involved, some see a prenup as critical for any marriage that's not the first for either side. "In any second or third marriage, I believe it should be required," Maloney says.
Not so fast, you with the rose-colored glasses. As wedding season gears up, it may be time for some unsentimental planning before you walk down the aisle.
Demand for prenups is increasing nationwide as more people become aware that they're not just for the rich and famous. Roughly 40 percent of marriages fail, after all, so there's nothing disloyal or cold-hearted about preparing for contingencies.
"If close to half of all marriages are going to end in divorce, it makes sense to plan for it," says Marlene Eskind Moses, president of the American Academy of Matrimonial Lawyers.
A prenuptial agreement is simply a legal document that describes how property and assets brought into and acquired during a marriage will be treated if there's a divorce.
It isn't essential for everyone. A couple entering a first marriage with few assets, debts or other extenuating circumstances can generally forego the expense. With two lawyers recommended -- one for each person -- even an uncomplicated prenup can run $2,000 to $3,000 or more.
The cost goes a long way toward explaining why still only 3 percent to 5 percent of married couples have prenups. They are most popular with baby boomers in the 40-to-60 age range, who have more money and can afford to pay for adequate protection.
Yet it can pay off in the long run.
"It has the potential to save a tremendous amount of legal fees" in the event of divorce, says Robert Maloney, a financial planner in Holderness, N.H.
While awareness of prenups has grown because of high-profile celebrity divorces, it remains the touchiest of subjects for couples to discuss.
If one partner mentions a prenup, the other's reaction is inevitably "You don't love me!", says Carol Ann Wilson, a financial adviser specializing in divorce in Longmont, Colo. People need to view it as a routine part of the business of getting married, she says, along with planning for budgets, spending and children.
"It's just a piece of paper that sits in a drawer and protects them in case they don't have a happy marriage," Wilson says.
To broach the subject in a nonconfrontational way, one partner might propose scheduling a financial discussion for, say, 7 to 9 p.m. one evening, followed by a romantic date afterward. The business chat can include talk about what kind of budget they're going to have, whether they need separate checking accounts, savings goals, spending limits and, yes, a prenup.
So who really must have one?
Here are seven situations in which a prenup is advisable:
-- 1. When significant assets are involved, such as a home, stock or retirement funds.
Both sides need protection from the consequences of any breakdown of the marriage in this instance.
-- 2. When there are children from previous marriages.
Any time children are involved, there's an extra incentive to protect their interests. Most states will give the surviving spouse up to half of an estate, leaving the children no say. That could be at least partially avoided by using a prenup.
-- 3. When one partner owns all or part of a business.
In a breakup, the attorney for the other partner will likely go after a share of the "family" business.
-- 4. When one partner is much wealthier than the other.
A one-sided money situation can easily be cause for jealousy or, later, legal dispute.
-- 5. When one spouse-to-be is much older.
The older partner may not be able to recover to provide for his or her retirement if assets are split 50-50.
-- 6. When one partner will be supporting the other while he or she pursues a degree.
A $100,000 debt for grad school could easily outlast the marriage.
-- 7. When an inheritance is expected.
Even without big money involved, some see a prenup as critical for any marriage that's not the first for either side. "In any second or third marriage, I believe it should be required," Maloney says.
The Los Angeles County sheriff's office says deputies went to Dillon's Calabasas home Saturday after his wife, Desiree Antoine-Dillon, called 911.
The sheriff's office says the couple argued over a pending divorce and child custody issues and she had minor injuries. He was booked and released on $50,000 bail.
Corey Dillon had no public telephone listing in Calabasas and couldn't be reached for comment Monday.
]]> He already faces a court hearing after he was arrested last month when police allege he was driving drunk near Malibu.Corey Dillon played for the Cincinnati Bengals from 1997 to 2003 and the New England Patriots from 2004 to 2006.
The Sacramento Child Custody Attorneys and Northern California Domestic Violence Defense Lawyers of Bowman & Associates have helped hundreds of clients. If you or someone you know has legal questions, contact our experienced Law Offices for your free initial consultation.
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]]>They listen to heavy metal music and play cards together. He takes her to meet friends at the movies and proudly calls her an excellent swimmer.
But Gonzalez can't do some things he considers fatherly duties, such as giving Sandra an allowance or taking her shopping.
And after losing his job of 20 years in August, Gonzalez can't afford to pay Sandra's mother the $221 per month he owes in child support.
"It's heartbreaking," said Gonzalez, 42. "I don't want to be known as a deadbeat dad."
Gonzalez's story is a common one heard in Stanislaus County Superior Court's Department 16.
More and more parents, mostly fathers, are crowding the Modesto courtroom to plead with a judge to reduce their child support payments.
They talk about salary cuts and homes in foreclosure. Unemployment rates, which spiked at 19.2 percent countywide in March, make it nearly impossible for some to keep up with their payments.
Three years ago, Stanislaus County withheld $1.5 million in unemployment benefits to cover the child support obligations of parents who don't have custody.
Unemployment benefits now make up $4.8 million of the county's child support take.
In years past, family law attorneys usually heard from parents who wanted more child support taken from their former partners.
Now, it's the reverse.
"It's people who have longtime jobs who are losing 10 to 15 percent of their pay or are on unemployment right now," said E.F. Cash-Dudley, a family law specialist in Modesto. "It's having a profound effect. We see a number of families that are just barely surviving."
"It's been less of the hammer approach," Thomas said.
The "hammer" can be as much as 75 days in jail for repeated failure to pay child support.
Child support payments can vary widely based on a family's unique situation, but a parent can expect to pay up to one-third of his or her income to support one child and as much as half of his or her pay for three or more children.
Nine out of 10 noncustodial parents in Stanislaus County are men, and they have been disproportionately affected by the recession because of the hit to male-dominated jobs in construction and manufacturing.
]]> Trying to be fair On Thursday morning, Court Commissioner Richard Allen listened as a man talked about his trouble looking for jobs installing tile and carpet."I can't find work," said the man, who owed $100 a month in child support. Allen calls this the "can level," the amount a person should be able to scrounge up in child support by collecting and recycling aluminum cans.
Allen, who has presided over child support hearings for nine years, said the recession has sent people of all socioeconomic levels to his courtroom to seek relief.
He's even seen real estate and dot-com employees who once made six figures begging for a break from their payments.
He said his decisions are sometimes "heart wrenching."
"It makes it really tough," Allen said. "You know on one hand you have a child that has needs. That's why we're there. But you still have to be fair."
Outside the courtroom, Gonzalez said he is frustrated by his job search but vowed to keep looking on "every dot-com Web site known to man" to find work. He lives with his parents in Gilroy after a stint living on the street.
"I accepted my responsibility as a father ever since my child was born," Gonzalez said.
After all, he said, "That's my kid."
Contact our Sacramento Family Law Office if you or a loved one have legal questions regarding Family Law or Unemployment Compensation matters.
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]]>Kimberlee Nodine will maintain custody of their 13-year-old son. Steve Nodine has visitation rights and will pay $971 a month in child support payments until his son turns 19.
The papers show that Kimberlee will live in the family home, but Steve will pay the mortgage, insurance and taxes.
The county commissioner will also pay $2,500 a month in alimony payments.
It's a hefty chunk out of his salary. The papers show Steve earns $6,666.66 a month.
But it doesn't end there. Commissioner Nodine agreed to pay for his wife's legal expenses during the divorce, and he'll hand over his retirement pay to her.
In separate papers filed that day, Kimberlee Nodine had a statement which read, "I feel too much has happened between us for things to ever be good again."
The agreement, which both signed, must still be approved by a judge.
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]]>No-fault does not mean no disagreements, though. If you foresee that there may be disagreements regarding how the family assets are going to be handled, or how the kids will be cared for, get professional advice immediately.
Even if you both agree on how to separate your lives, it is important to have the agreement reviewed by a professional. An advisor who has been involved in many divorces can help you spot weaknesses in the agreement and will help ensure that the final agreement is strong and will last for many, many years.
]]> Residency Requirements To file for divorce you must have lived in California for at least six months and be a resident of the county in which you file for at least three months. If the other party lives in another state they have the right to demand that the case be heard in their state. And most likely they are going to request just that. Keep that in mind when consulting with an attorney, you will most likely need one that is located in the state in which the case is going to be heard.Because California is a no-fault state, the party filing for dissolution is not required to state why they wish a divorce and they are not required to provide any documentation regarding their reasoning. In fact, the court will not consider any data having to do with why the divorce is being requested or why it should be denied. The simple fact of a request for a divorce by either party is considered sufficient grounds to grant it.
If you and your spouse have no assets or children, then filing for a divorce can be done with little or no professional assistance and little cost. If there are material assets or if there is any disagreement about how the assets of the marriage are to be divided, or if there are kids involved, then professional legal assistance is very important.
The party that initially files for a divorce is called the 'petitioner'. The papers they file with the court are called a 'dissolution of marriage' or dissolution for short. These papers simply describe that a divorce is desired.
The other party is then officially presented with the dissolution documents, a process which is called 'service of process'. The receiving party is referred to as the 'respondent'. The date of service establishes the start of a 6 month period which California courts require as a minimum time to grant a divorce.
The respondent has 30 days from time of service to file an answer with the court. If the respondent does not file an answer, the court will record a 'default' and simply grant the divorce when the 6 month waiting period is complete. This is often called a 'no contest' divorce and is common practice when there were no assets to divide and no children. If you have been served divorce papers and if there are assets to divide or children involved you must take action within 30 days or you will lose important rights.
When the respondent files an answer, this starts the process of 'discovery' in which the parties each have a chance to describe to the court the assets they feel should be involved in the divorce, present their wishes regarding its distribution and also present their wishes regarding the custody of the children.
In cases where the parties can agree between themselves regarding the assets, their distribution and custody of children, the time and expense of a divorce is greatly reduced. If you are involved in a divorce and there are assets or children involved, it is important that you secure professional help. A professional will help you establish an agreement that is in your best interests and which takes into account the well established standards regarding asset distribution and custody.
If the applicant and respondent do not agree regarding the assets involved in the divorce, their division or on custody matters, then it is up to the parties (through their attorneys) to present evidence to support their wishes and it is up to the court to make a decision based on the evidence presented. A contested divorce in California that involves modest assets can take between one and three years to resolve.
Community property can be divided unequally by mutual agreement. For example, one person may assume all the family debt in exchange for another benefit such as keeping a retirement account. In rare instances, the court may find compelling reasons to divide contested community property unequally. For example, if the court feels that one party is in need of more support that the other, it may award that party a higher share of the marital property.
Agreements made in writing by both parties regarding distribution of assets either before or during the marriage will be held valid and enforceable by the court unless either party can prove that the agreement was made under duress.
It is typical practice to establish one parent as having primary custody. That parent is referred to as the 'custodial parent'. The other parent is referred to as the non-custodial parent. Regardless of the schedule, in most cases the parents are required to make important child care and upbringing decisions together.
In California, any couple which cannot agree on custody or a visitation schedule is obligated to participate in and complete a counseling program prior to their disagreement being taken up by the court.
Judges that are forced to make custody and visitation decisions will base their rulings on evidence provided by the spouses and by professionals, such as psychologists, family service representatives or doctors. The judge will also take into account any history of child abuse, drug or alcohol addictions and any protective orders that may have been issued to help determine what is in the best interest of the child. However, the courts in California tend to grant joint custody, where the parents share in the day to day care and in making decisions regarding upbringing.
Based on the above factors, most spouses come to an agreement regarding custody and visitation schedule for their children rather than depend upon a judge to decree what is best. This is an area where professional legal assistance is a must.
If the parties cannot decide upon a support amount and payment frequency, child support is set by the court and will be calculated based on the California State Guidelines and on any data that the parties may present. The State Guidelines are designed to be fair and equitable to the parents and more importantly, be in the best interest of the children.
You can calculate the child support amount for your case by either contacting an attorney, who has access to a support calculator, or by going to the County Clerk and requesting the official forms upon which you can calculate the amount likely to be set, if left to a judge. This is vital data for you to have before you discuss support with your spouse.
There are several forms of spousal support. The first is temporary maintenance, which is paid during the trial or proceedings and before the divorce is finalized. There is rehabilitative maintenance, most often done in short marriages ( less than 10 years) where one spouse pays for the other to complete an education or training program. And lastly, permanent maintenance, where the court sets a support amount to be paid on a long term basis.
In determining spousal support, fault can play a role. However, only the fault of the party seeking maintenance is considered, not the party who would pay. Special needs, such as a disability, are considered in determining maintenance.
The needs of one spouse and the ability of the other to pay are the primary factors in determining support amounts. Since most spouses work, spousal support (if necessary at all), is usually for finite period of time and modest amount. Spousal support in California can continue for an indefinite period, and it may be increased or decreased if there is a change in either party's circumstances.
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