Divorce and Remarriage: Just when you thought it was over

Mann sitzt verzweifelt über Papierflut am Arbeitsplatz

You’re recently remarried after divorcing your first husband or wife three years ago. You’re happy and excited to be starting fresh. You decide to buy a new house with your new spouse, and the lender asks for a copy of your divorce decree, but you can’t find it in your documents at home. No big deal, you’ll just go to the court house and get a copy. Shockingly, when you arrive, you’re told that there is no divorce decree on file. Surprise! Your divorce was never finalized, and according to the court, your case is still active. Imagine going home to the person you just married, and having to tell him/her that on paper, they’re not the only wife or husband you are legally married to. Talk about cutting the honeymoon period short!

That’s the exact situation a potential client was in when he went to buy a house and along the way discovered his dissolution of marriage was never finalized. He was the respondent, and currently pays child support every month as ordered by the judge. His question was whether or not his lawyer had the responsibility to “see the case all the way through”, especially considering the fact that he was given the impression that everything was taken care of. And, if so, what recourse could he take considering the economic and emotional stress this newfound discovery places upon his and his new wife’s head.

Now, despite the considerable carelessness of this man in his divorce and remarriage, a lawyer has a fiduciary duty to his/her client. That being said, he should contact his lawyer and demand the situation be remedied. A threat to report the incident to the State Bar should grab their attention. Of course, the nature of the last communication between this man and his lawyer could be of importance. It’s possible there is a letter in file asking for him to contact his attorney and he failed to do so, or something along those lines. No matter the circumstance, the first step is to meet with his lawyer and find out how this colossal mistake occurred. Going from there with the legalities, from now on he should remember to dot his i’s, cross his t’s, and double knot his shoelaces.

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

 

Military Divorces: camouflage and complexities

military divorceMilitary divorces are different than civilian cases, and often times more complicated. That’s why the confusion was understandable when a potential client approached us with questions regarding how she should go about divorcing her husband who is an active-duty serviceman.

In this specific woman’s case, her biggest question was where. Though the couple has a home of record in Texas, the family is currently stationed in San Diego, California; she didn’t know which state would be best to file in.

We advised her to file here in San Diego so as to gain court-ordered spousal support and child support immediately. However, once filed here, and assuming the children have been here for over six months, the San Diego court will have continuing jurisdiction over the children. This means if she wished to move back to Texas (or to any state for that matter), she should do so immediately, hoping that her husband doesn’t file in California before the children have lived in Texas for over 6 months. If he did, the woman could be forced to return the children to their father. With this in mind, if she so wishes to move back to Texas, she should tell her husband where she will be reached, how she can be reached, and allow for him to visit their children- in writing. That way, there is zero room for an accusation of parental kidnapping.

Divorce is hard. It can be even harder for a family in the military. For more information on military divorce, visit our website: http://stanprowse.com/military-divorces-are-different

Child Custody: One father’s rights

A hand cutting paper chain of a family, divorce and child custody battle

We were approached with an interesting story. A recently divorced man maintains “partial” custody of his daughter, but that custody is being seriously controlled by his ex-wife. The mother will not allow her ex-husband to take their child anywhere except the park or his house. She refuses to allow any type of contact between her daughter and her ex-husband’s family; the uncle of this child relayed that his own daughter isn’t allowed to have play dates with her cousin. You might ask how the mother is controlling where her ex takes their child. This is the eyebrow-raiser: the mother placed a tracking device necklace on her daughter. She threatens to stop letting him see her if the tracker is removed or tampered with.  There are no stipulations in his custody rights, and his family reports that he’s a responsible man and father. The question is, can the mother legally track her daughter while she’s in her father’s custody? Is this something worth fighting in court?

To completely understand this story, we have to make two assumptions. First, we assume that by “partial custody”, the father has a significant time share with his daughter; presumably every other weekend and an overnight during the week. Second, we assume that by “no stipulations” there are no restrictions in the custody order in regards to where this man can go during his time with his daughter. With those two assumptions, the mother has no right to tell her ex where he can and can’t go during his time with their daughter. The tracking device, in my opinion, is an unreasonable intrusion into his custodial rights – it’s as if the child’s mother is always there looking over his shoulder and interfering with the intimacy of his father-daughter relationship. This man should get a lawyer, go to court, and defend his parental rights.

For more information on child custody, please visit our website: http://stanprowse.com/child-custody-fundamentals

 

Divorce papers: have you been served?

Petition for divorce paperSeparated from his wife of 18 years of marriage, a man goes to pick up his children for a weekend visit. She wants a divorce; he does not. Upon his arrival at his spouse’s home, a friend of the wife attempts to hand him divorce papers while he’s in the car. He claims he “didn’t accept them”. He wants to know if he has really been served properly if his wife’s friend threw them into his car after he refused to accept them.

The answer is simply yes. That is a valid service of process. It doesn’t matter if you don’t “accept” the papers. There is no signature necessary or legalities with being served. The best thing for this man to do is accept the realities of the situation and realize that there is no stopping the process if his wife truly wants a divorce.

For more information on the process of divorce, visit our website: http://stanprowse.com/divorce-five-steps-before-filing

Contested vs uncontested divorce

HarassmentThough it may be hard to imagine, there is such thing as a civil divorce settlement. In simpler terms, not every divorce is as messy as the rest, not all divorces are contested. Some people peacefully come to terms with a fractured marriage, and agree to split with as little legal involvement as possible. So, when approached by a potential client inquiring about whether or not she and her husband could “just agree on the terms of divorce and have it written out”, our answer was yes.

In this case, the couple had mutually agreed upon how to split the debt and other financial issues. The wife understood that by law her husband was entitled to half of her 401k plan. He, in turn, agreed to waive that right in lieu of the wife taking on the financial burden of the couple’s shared debt. With that being said, the couple could certainly have their divorce written out in the form of a marital settlement agreement. This would be considered an uncontested divorce. However, they should still have it done by an attorney, and one who is willing to act merely as a scribe rather than as an advocate for either of the spouses. What’s more, it shouldn’t be very expensive.

For more information on uncontested divorce and marital settlement agreements, please visit our website: http://stanprowse.com/contested-uncontested-divorce

Child Support: erroneous bank statements for avoidance

Recently, we were approached with inquiries regarding a difficult, normally expensive, and often impossible situation to deal with. A womPropertyDivision-17972913an wanted to know what could be done for her daughter, whose ex-husband was lying about his income in order to avoid paying child support. What’s more, the ex-husband’s employer agreed to verify his false wages. The family knows for certain, however, that he is receiving cash “under the table”.

In this case, the daughter’s best plan of action would be to subpoena all of her ex-husband’s bank records. Of course, this means she would have to know where he banks, and with his current track record, he may well lie. Plus, it’s possible he was smart enough to know to not deposit the cash in the first place. On the other side, she could subpoena all his payroll records from his employer, but the money most likely won’t show up their either. The kinks in the armor lay with the guy who’s paying the ex-husband under the table and his bookkeeper. The only way to get to them, is again, through a subpoena.

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

Can you receive retirement benefits from an ex-spouse that is still in the workforce?

Senior-DivorceA potential client inquires about her ability to receive retirement benefits from an ex-husband. Though her ex-spouse is eligible to receive pension benefits at age 50, he plans to work for an additional 10 years.  Can she collect her share of benefits when he becomes eligible, or will she have to wait until he officially retires?

We responded with information regarding a Gillmore election; a method during a divorce in which one spouse receives the present value of his or her half of the other spouse’s retirement benefits. In this particular case, the judgement of the divorce was entered some time ago, leading us to believe it’s now too late to change the matter of retirement benefits. Her best bet would be to take her concerns to a family law attorney to have her question researched further.

For  more information on retirement benefits during divorce, please visit our website: http://stanprowse.com/divorce-rights

Divorcing a spouse with Narcissistic Personality Disorder

FamilyFightOur client writes, After 30+ years of mental abuse, she finally feels safe enough to divorce her husband. She is the sole bread winner and he is convinced she is hiding money from him. His attorney claims he is unable to work and appears to be on a fishing expedition, looking for money that isn’t there. She is looking for a lawyer who can handle NPD and fair spousal support negotiations.

Our Answer:

By fishing expeditions, I trust you mean they are bludgeoning you with document production demands, interrogatories, and subpoenas. Many attorneys are famous for this. One way to deal with it may be to overwhelm them with a mountain of paper. The usual way to begin overcoming the ‘unable to work’ routine is to start with a motion (RFO) for an order that he go through a vocational assessment. You have to prove that he has the ability and opportunity to work. As to NPD, “Narcissistic Personality Disorder” you see a lot of it in Family Court. We have extensive experience with this and are able to help.

For more information on Divorce and Narcissism please visit, Please visit our website: http://stanprowse.com/child-custody-and-child-visitation

Rental Income on Community Property

Is an ex-spouse entitled to half of rental income on a community property asset?

Property-Presumption5777583A divorcing couple decides to let their family home foreclose. The ex-husband was living on the property at the time. The husband filed for BK to delay the foreclosure and rented the house. Then the husband decided to start paying the mortgage again in an attempt to keep the property. Is the ex-wife entitled to half the rent the ex-husband is receiving?

Our Answer:

Assuming the property is still in both names, the wife is entitled to half the rent her ex is receiving. Sounds as if the wife should take him to small claims court. It also sounds as if the house is an “unadjudicated asset” (the divorce judgment doesn’t say who gets it). In that case, if it ever becomes worth anything, you might want to go back to divorce court and ask for it to be sold and the proceeds divided. If the house is an unadjudicated 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 your case and send you back to divorce court.

For more information on Community Property during Divorce, Please visit our website: http://stanprowse.com/community-property-law-california

A Childs Right to Testify in A Divorce

Sad-BoyOften during a divorce one or both parents will attempt to use the child against their ex-spouse. When this is the case legal counsel is necessary for the best outcome for the child. This next paragraph is an actual answer to a father’s inquiry of this type.

A 14-year-old child has the right to testify in a custody hearing or trial unless the judge makes a preliminary finding that it would not be in the best interests of the child. I doubt that finding would be made here based on what you’ve said. Given your income disparity and the apparent fact that your son lives with you, I would expect you to get some (not much) spousal and child support. However, your wife will try to force you to get better and full-time employment. Try to find free legal help. Here in San Diego County, we have a Family Law Facilitators Office which helps people in your situation fill out the forms. See if there is one in your county.

For additional information on this subject please visit this specific article on our website:     http://stanprowse.com/child-witnesses-in-divorce