It’s the first of the year crunch, and with the kids back in school and parents back to business as usual after the holidays, it’s time to look forward to the next chance at a respite: spring break. For one mother, however, it isn’t looking like blue skies just yet. When she and her ex-husband divorced in Texas many years ago, they agreed upon alternating who gets child custody of the kids during school breaks. For example, Winter Break with Mom and President’s Week at Dad’s. But now they are both living in California, and their children get two weeks for Spring Break instead. So, the ex’s have agreed on splitting it. The mother in the story is planning a family reunion in Hawaii so her children can spend quality time with their sick grandfather. But, the only possible time for her whole family to make the trip is during the second week of her children’s spring break, which was supposed to be the father’s week.
When she and her ex-husband divorced in Texas many years ago, they agreed upon alternating who gets child custody of the kids during school breaks. For example, Winter Break with Mom and President’s Week at Dad’s. But now they are both living in California, and their children get two weeks for Spring Break instead. So, the ex’s have agreed amongst them on splitting it by week. The mother in the story is planning a family reunion in Hawaii so her children can spend quality time with their sick grandfather. But, the only possible time for her whole family to make the trip is during the second week of her children’s spring break, which was supposed to be the father’s week. The woman tells us that her ex-husband has a history of being needlessly inflexible for spite. She asks: what can she do to ensure that her kids will be able to come on this once in a lifetime family vacation?
Child Custody Rights and Visitation
Our first tip is to not jump the gun. Start by sending him a very polite letter asking him to switch weeks, send it via US Mail, and keep a copy. The purpose of this letter is to make her look good if she were to wind up in court. If this doesn’t do the trick, she has two options. Miss out on the vacation and go through the long legal process to change the child custody agreement. Or, ignore the spoken agreement herself, take her children to Hawaii and send the father a postcard. I can’t advise you to violate a court order, but this spring break schedule isn’t a court order. Will her ex-husband be mad? Sure. But she’ll be too far away and far too tan to be bothered!
For more on child custody and visitation, visit our website: http://stanprowse.com/child-custody-and-child-visitation
Mum is the word- sometimes, unfortunately. That was the case for one woman, who ran into multiple questions regarding the condo she and her hopefully soon to be ex-husband share. The catch, however, is that the loan for the condo is carried under his mother’s name.
In detail, she and her husband have lived together in this condo since 1999. Her name is not on the title or the loan of the condo, which is carried, again, by her husband’s mother. The couple make the house payments and claim them on their taxes together. They both also pay the property taxes. She wants to know how she can ensure that she gets “her half” in the property division of the condo property after they divorce.
Let’s be blunt. Based on what she’s told us, there’s probably no way to “make sure” she gets “her half” of the condo. It sounds like the husband’s mother bought the home for him, and left her daughter-in-law intentionally off of the deal. If that’s true, “her half” doesn’t exist so there will be no property division. What she can do: talk to a lawyer and give him or her all the facts she knows. She should bring a copy of the deed with her. If she doesn’t have a copy of the deed, she can get one at the recorder’s office. I expect the only way to create a half interest in the condo in her favor would be for the husband to deed half of it to her. She might ask him to do so and see what happens- it couldn’t hurt if that’s the only option.
For more information on property in divorce, please visit our website: http://stanprowse.com/property-division-in-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
As 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
A 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
In divorce, one of the most common questions we hear is how? How 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
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