Service of Process

Judge Reading Documents At Desk In Courtroom

The definition of the word “serve” in terms of the law is as follows: To deliver a legal document, especially a process or notice; to present a legal notice or subpoena to a person as required by law. The actual service of person isn’t nearly as glamorous as some of the TV shows or movies make it out to be- still, the issue of service, and whether it was done properly or improperly, can be a confusing one. Let’s look at one woman’s situation to help us gain a better understanding of the service of process, especially in family law matters.

She starts by telling us this: “I had my ex initially personally served with a motion to set aside our divorce judgment. After that all papers and related motions have been served on his attorney…”. Some of those related motions were need-based motions for attorney fees and costs, a motion to compel discovery, and things of that nature. The attorney whom she served with the motion papers remains her ex-husbands attorney of record through all of this. Her question: Was this service process correct? Or did her ex need to be personally served at the start of every separate motion?

Service on an attorney for a party, rather than on the party himself, is proper if the attorney has made an appearance for the party, either by filing a paper with the court on the party’s behalf, or stating in court that he represents the party.  If she started serving his attorney after he or she filed a paper on behalf of her ex husband, or showed up in court for her ex-husband, service on the attorney was proper. If she started ‘serving’ the attorney with papers before he or she appeared for her ex-husband, service of those papers was improper. However, filing a response to an improperly served motion would generally be considered a waiver of the impropriety. It sounds as if it is too late for her ex-husband to complain about improper service, if there is any to be found.

For more on the process of service, family law, and more, please visit our website: http://stanprowse.com

Child Support Guidelines

Currency, Law, Divorce.Like most law firms, we want nothing more than to provide clients and potential clients with sound and helpful advice and information. However, when given only pieces of the puzzle regarding someone’s current situation, it is very difficult to provide an answer or reach a conclusion that is 100% accurate. Still, when armed with decades of experience, a bit of prior knowledge, and even some bits of the puzzle, we can at least get those seeking help started in the right direction. Here’s an example.

A potential client approached us with questions about estimating child support, and how much she would be likely to receive once her divorce was finalized. Her husband is already paying $600 a month for child support to his ex-wife and one child in Texas. She, on the other hand, lives in California and shares two kids with her husband. She wonders if she will get “anything close” to the $600 a month her husband’s ex-wife receives. We also know that she works part time and her husband works full time.

Again, answering this question completely with only generalities is next to impossible, but when life gives you lemons at least slice them up until you’re ready to make lemonade. So here is our stab at this woman’s case: six hundred is a pretty low number, and sounds like an order that’s been around for a while and never modified to reflect her husband’s current earnings. We also would guess that child support in Texas is less than in CA. Particularly since she only works part time and he works full time, it would be surprising if she didn’t get more than $600. But it depends on his gross income, her gross income, and the comparative time the kids are in her custody or in his. That’s the best we can do with the given information, but it should at least give her some foundation to build from.

For more information regarding child support, please visit our website: http://stanprowse.com/child-support

Property and Divorce

concept of section of property after divorce.

A woman reports that when she and her ex-husband divorced, they agreed to let their family home foreclose. Since then, he has filed for bankruptcy to delay the foreclosure, he began once again to pay the mortgage, and has organized for a friend to become a renter. This woman asks us if she is entitled to half of the rent he receives from the tenant. She states that she was indifferent when she knew that the money was going towards a community debt, but now that she knows it is not she believes she deserves a share of the profit.

Assuming that the property is still in both names, this woman is entitled to half the rent her ex is receiving. We told her it sounds as though she should take him to small claims court, which is a local court where claims for small sums of money can be tried and resolved quickly and inexpensively without legal attorneys. It also sounds as if the home in this situation is not an adjudicated asset (or their judgement doesn’t say who gets it). In that case, if it ever becomes worth anything, she might want to go back to divorce court and ask for it to be sold and the proceeds divided. If the house is in fact an adjudicated asset, there is a possibility that the small claims court has no jurisdiction to deal with who gets the rent, and that a small claims court judge might refuse to hear her case and send the pair back to divorce court. In either case, she should consult with an attorney to develop a plan of action for receiving the profit she is entitled to.

For more information on real estate and property in divorce, please visit our website: http://stanprowse.com/property-division-in-divorce

 

Infidelity and Divorce

AdobeStock_89927467.jpegAs much as some of us wish it would, the law has no sympathetic ear. It is black and white, numbers and figures. There is no special stipulations for unfortunate individuals who simply just were played a bad hand of cards. In a nutshell, the Court doesn’t care if someone “hurt your feelings”.

But that doesn’t stop people from approaching us with their story of how their spouse did them dirty and left them out to dry. And of course, that’s understandable. Everyone wants to be heard. Perhaps that’s what one man really wanted when he sought advice about his “immigrant wife” of two years cheating on him. He informed us that his wife recently filed for her 10 year green card but it has not yet been granted. Based off of his recent discovery of her affair, he no longer believes the marriage was in “good faith”. In fact, he wishes to pass this information along to immigration officials. His question: what would be the best protocol to ensuring a favorable settlement in the divorce process with the current information regarding her falsification of a “good faith” marriage?

This is where we had to break it to him: the divorce court doesn’t care if you’ve been cheated on. They also won’t take into consideration whether his wife is legal or not. All the court cares about is dividing the couple’s community property and whether either spouse gets spousal support (which is highly unlikely). The feds may care if the marriage was phony, but using the threat of reporting her to get her to give up anything she’s entitled to would be extortion. A no-no, although people do it anyway. This man needs to see the matter of divorcing this woman and his vendetta for seeing about her deportation as two separate subjects, or else he will most likely be unsuccessful in both.

For more information on questions in divorce, including those regarding cheating, please visit our website: http://stanprowse.com/divorce-attorney-questions

Domestic Violence and Spousal Support

AdobeStock_73154055.jpegA woman approached us with questions regarding issues with spousal support in her marriage that involved domestic violence. She reports that throughout the couples’ four year marriage she was unemployed. There were several instances of domestic violence and several police reports made, but no arrest of the husband ever occurred. Still, she was granted a DVTRO, or a domestic violence temporary restraining order, by their family court judge. However, she has been unable to locate her ex-husband to have him served with the restraining order. He is now suing her for spousal support. Her question: since she was a victim of domestic violence by him, can he still be granted spousal support and attorney fees? She continues to struggle to find a job and has been living on no income.

We advised her not to worry- because she is unemployed and has no income, no Court is going to make her pay spousal support, so that needn’t concern her until she gets a job. Even then, if he’s employed, chances are he would be making more money than his ex-wife, and he would be paying her spousal support. Nonetheless, she probably would not get more than two years of support from the date the couple separated – they had a short marriage. Unless she knows he’s working and getting a paycheck he can garnish, her first order of business should be to find work for herself.

For more information on domestic violence and spousal support, please visit our website: http://stanprowse.com/spousal-support-california

Self Evident Truths

You can’t spend more than you make without going broke. This is true over the long run for ordinary people, big business, and countries. Continuously borrowing more money is not a solution. Neither is printing it.

There is also no such thing as a free lunch. You may get it without paying for it yourself, but somewhere along the line somebody else footed the bill.

These propositions seem more self-evident to me than Jefferson’s unalienable right to, “Life, Liberty, and the Pursuit of Happiness,” but they’re disregarded day after day, week after week, month after month, and year after year by almost everyone, including most importantly by the people who profess to know what’s best for us – namely the elected public officials we entrust with our common welfare and the supposed experts from academia who advise them.

Our economy is anemic, our national debt is skyrocketing, and the percentage of the population in the workforce has been declining for decades. In the meantime the cost of entitlements goes up and up.

Something has to give. Nobody promised than the high standard of living, freedom, and democratic government we’ve enjoyed for generations would last forever. Civilizations come and go. I sure wish people would start acting as if it will all be lost unless they stop insistng on having their cake and eating it too.

Change of Venue: A How To

Judge Reading Documents At Desk In CourtroomIn divorce, one of the most common questions we hear is howHow do I file? How do I get child custody? How do I come out of the other side of this mess? With so many hows, sometimes our most important job is to find the best of many possible hows for each individual client, because decades in this line of work has shown us that no client is identical to another. In one such case, a woman wanted to know how to file for a change of venue in her divorce. Her estranged husband, whom she’s been separated from for over four years, filled for divorce in Ventura County. However, she and the couple’s seven year old daughter have continued to reside in Los Angeles County, where the child was born. This woman explains that Ventura is just too far for her to travel. She goes on to note that her daughter’s school, doctor, activities, friends and family, and anyone else that she may need to testify on her behalf are all in Los Angeles. Her question: what forms must she fill out to ensure that her divorce case be moved to Los Angeles.

We informed this woman of her ability to request an order to change venue based on the circumstances she described, and that with all things considered the order would likely be granted. We advised her to use the standard RFO or Request for Order form to get this done (FL-300). She then must prepare and file the form when she goes to the hearing, and be aware that there will be a filling fee. We suggested she conduct some research on CA Code of Civil Procedure 397, where she will find the authority for her request for venue change. She will lastly need to file a proof of service proving that she served her husband. A date will be set to hear her RFO.

For more information on planning for divorce, please visit our website: http://stanprowse.com/planning-for-divorce-2