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

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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 insisting 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

 

 

 

Abandoned Marriage: Grounds for Divorce?

Bride lets a Balloon with Text burst with a needle

It always seems that when we actually really need something, we can’t seem to find it. When you’re late for a meeting with the boss, you can’t locate your keys. When the pizza man is at the door you realize you haven’t seen your wallet all day. Well, a man recently approached us with a case where he couldn’t locate something (or someone) he really needed. However, for this man, it wasn’t car keys or a crisp $20 for the pizza boy. He couldn’t find his wife.

He relayed to us that they had married in Las Vegas so he could obtain a green card. But, she disappeared before they could finish going through that process. He has no way to contact or locate her. Here’s his main concern: he now wants to marry “for real”. Of course, he first needs to divorce this M.I.A. wife. His question was whether or not he could file for divorce with claim of abandoned marriage, and how quickly he could get through that process.

First things first: he cannot file for divorce based on spousal  abandonment. If he satisfies the residency requirements, he can file for divorce in San Diego County and serve her by publication. Service by publication entails that you publish the Summons or other documentation in a newspaper in the area where your spouse is likely to be. This would require a payment to the newspapers to publish the document. There is also service by posting, where a court clerk posts the Summons or documents in a visible place designated for court notices at the courthouse. To serve by posting, you must qualify for a court fee waiver. This man would then need to file a request for default and then file a default judgement. Still, this is a consuming process, and he should hire a divorce attorney to walk him through it. The soonest he can get a divorce is 6 months after he files.

For more information on divorce and what one should do before filing, please visit our website: http://stanprowse.com/divorce-five-steps-before-filing

Civil Judgement: How to Collect

Past Due billA man was awarded $11,500 by the court in attorney fees after being sued by his ex-wife. As of now, she refuses to pay any of the fees. What’s more, she has also quit her job. This man seeks advice on how he can collect the payments he was awarded. That wasn’t all, however. He brought up the topic of child support. Due to her recent quittance, the amount of money he pays in child support increased. He wonders if there is some sort of paperwork he can file to discontinue his payment of child support until she repays the judgement.

The first thing we made sure he understood: his obligation to pay child support is entirely independent of his ex’s obligation to pay the judgement. He can file a motion to reduce the child support because time share has changed, or his income has gone down, or income should be imputed to her because she has the ability and opportunity to work, but not because she refuses to pay the judgment. Now, the question of enforcing a judgement all together. Collecting a judgment from someone who isn’t working and has no money in the bank is difficult. If she’s collecting public assistance, he can’t get his hands on it. Perhaps she has a car with equity in it, or expensive jewelry. He can send the Sheriff to ‘execute the judgment,’ or ‘levy,’ by seizing things like that, but they may turn out to be exempt if she argues about it. Threatening her with that might get her to start paying the fees, but it sounds as if she’s a tough cookie. This man needs to consult a lawyer and tell the lawyer everything he knows about her assets.

For more information on how to collect payment from a judgement and more, please visit our website: http://stanprowse.com/enforcing-a-judgement

Lease Agreements: What Happens in Divorce?

Mani con chiave sfondo azzurroA man recently approached us with a complicated situation. Though he and his wife mutually agreed that divorce was in their family’s best interest, her reaction was negative to say the least when he served her with divorce papers.  She promptly threatened to give 30 day notice to dissolve the lease agreement on the condo the couple rent, which, problematically for the husband, is leased only in her name. After those 30 days, she plans to move to another town, into an apartment where she has already cosigned a lease with her new boyfriend. To add fuel to the fire, the couple share a 12 year old daughter who wishes to remain with the father because she is afraid of her mother’s boyfriend. Of course, the mother wants custody of the daughter. This man states he can’t afford the rent on his own, and he believes his wife is trying to put him on the streets. His questions: Can she just throw him out? Can she just end the lease?

The leasehold interest, although hers as far as the landlord is concerned, is community property, so it therefore belongs to both the wife and the husband. Legally, her ability to evict him as a subtenant is exceedingly dismal. If she proposes to stop paying the rent and move out herself, that might be prohibited under the automatic restraining orders printed on the second page of his petition, because she’d be disposing of community property without his consent. However, we of course had to give him the honest truth about this situation. This type of discrepancy is highly technical and academic; dealing with it in a divorce case would be time consuming, and the result problematic. The reality is that if no one is paying the rent, he’ll have the landlord evicting him, no matter the status of his wife. The best thing for this man to do for himself and his daughter is to find a place to live that he can afford. That way, he isn’t dependent on the actions of his soon to be ex wife.

For more information on community property, as well as tenant protection, please visit their following respective pages on our website: http://stanprowse.com/community-property and http://stanprowse.com/real-estate-law/landlord-tenant-law

 

Alimony: What’s taken into (or out of your) account?

moneyGoing through a divorce is never fun. There’s no sense in denying that. The best thing you can do is work hard to succeed in other aspects of your life. For example, a potential client recently came forward with some good news despite his in-process divorce. He’s been promoted, and starts a new job with a signifciantly higher salary next week. His concern regards alimony. When he filed for divorce earlier this year, he was making considerably less money. The couple has yet to go before the judge and finalize their divorce; the date is set for later in the month. So, will alimony be calculated from his reported earnings when he initially filled for divorce, or will it be based on the higher salary he is about to receive?

We started by informing this man that he is under a fiduciary responsibility to inform his soon to be ex-spouse regarding his change in income. The question of whether his new income will be the exclusive number considered in setting spousal support is another matter. The average of the last twelve months earnings is statutorily presumed to be a proper basis. Some judges stubbornly stick to that even under situations such as the one this man is in.  Since he will have already started his new job, and if it is likely to be a long term position, I expect his judge will probably use his prospective income when it comes to his ability to pay, one of the factors the judge must consider. However, the primary factor is the standard of living during the marriage, which was undoubtedly based on this man’s previous income. There is no computer formula used for spousal support awarded in a final judgment, so there is in fact no “calculation” to be made by the judge. It’s a matter of weighing a number of factors set forth in Section 4320 of the Family Code.

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