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

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Divorce Agreement: Subject to change

Currency, Law, Divorce.How has your life changed in the past three years? Perhaps you graduated from college, and are now part of the adult work force. Maybe you’ve had a second child, and you realize you haven’t had a full night’s rest since 2012. You could possibly be like me, and have recently taken on a new position that adds to your work load. In my case, becoming the President of the Carlsbad High-Noon Rotary is surely time consuming considering I also run the office full-time, but the rewards of my efforts to improve our community are certainly worth the time spent. But of course, our lives can also change in ways we never anticipated. For example, a potential client recently approached us with an inquiry regarding changing the divorce agreement from his dissolution of marriage three years prior. He claims the conditions of the divorce agreement have changed. Initially, he waived the right to child support. However, his son now lives with him full time. His question is how best can he go about changing the divorce agreement so he can have the child support necessary for his son’s well being.

The answer to this question is very dependent on whether the waiver of child support included language saying he could never go back and ask for it. It would read something like “The court shall have no jurisdiction to award spousal support to me in the future.” If the agreement is void of a statement like this, he can file a request for order asking for whatever child support he’s entitled to. Before that however, he should look at the official San Diego County Superior Court website for self-help information. After that, he should meet with a family law attorney for advice on what’s the best move.

As I’ve said, a lot can change in a three years. Change is inevitable, so the best thing we can do is arm ourselves with the correct tools to roll with the punches.

For additional information on child support 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

Legal Eagle Podcast from Stan Prowse and The Andrea Kaye Show

Stan-RadioThe Andrea Kaye Financial News and Talk radio show and Carlsbad attorney Stan Prowse have together created these Legal Eagle audio segments focused on Family Law and help for military service members.

With the impact of divorce on families today the segments have sought to cover the wide variety of difficulties couples may face when either contemplating or going through a divorce. Topics such as legal separation verses divorce, contested and uncontested divorce, child custody issues, senior divorce and the expenses of divorce, family law for military, and the issues of PTSD, have all been covered in a helpful informational manner.

Like the rest of the legal article content provided on the stanprowse.com web site, they are intended to help the listener gain a better understanding of the law and the legal system so they will not feel intimidated and helpless should they face a divorce or family issues that require the help of a family law attorney. Each radio show segment has been recorded in a conversation interview style with Andrea Kaye as programming host with insightful questions and easy to understand responses by Mr. Prowse.

“This has been a valuable opportunity allowing us to reach people who might not come across our web site.  Andrea also raises new issues in our conversations.  Everyone learns something every time she has me on the show.  She’s great!” Stan Prowse.

About the Law Office of Stan Prowse.
Attorney Stanley has been practicing law for over thirty years. Stan is a graduate of J.D. Harvard Law School ’73, M.A. Columbia University and B.A. Yale University. Stan has also served as a Mediator, Judge Pro-Tem and is a Certified Family Law Specialist, Licensed to practice in California, Maryland, Washington D.C., & Georgia.

About the Andrea Kaye Show – Financial News and Talk radio
The Andrea Kaye Show is a unique “variety hour show” unlike anything broadcast in San Diego and Southern California.  Andrea Kaye, “Dynamite in a Dress”, is an actor, on camera spokesperson and host. The Andrea Kaye Show combines business, political science and entertainment experience into an exciting hour of hot topics, political debates, celebrity interviews, entertainment reports, topical business discussions, contest prizes and more.

“Divorce is a painful subject that I had no personal experience with until recently through a close family member. Since The Andrea Kaye Show is a forum for both information and entertainment, I wanted to help others who were facing similar situations and didn’t know where to turn. I searched for months until I found the BEST family law attorney in San Diego to help my listeners with advice, tips and encouragement.”
Andrea Kaye

This podcast is coming soon on iTunes

You will find the Andrea Kaye and Stan Prowse Legal Eagle Radio Podcast on Stan’s website:    http://stanprowse.com

Or at these Feed or Podcast Links:

PodCast Legal Eagle Radio Show

Feed Legal Eagle Radio Show

Legal Parallels – Family Law vs Civil Litigation

Divorce-HelpAlthough Family Law is technically part of civil litigation, sometimes the names used for the same things in Family Law and in ‘normal’ civil litigation are different. Family Law is also form driven while normal civil litigation is not.  In Family Law cases there is a form for almost everything, and all but a few are mandatory.  The number of forms used in normal civil litigation is small, and only a few are mandatory.  Using different names for the same thing irritates me.

Lately there have been changes in the Family Law forms.  One of them makes Family Law sound more like normal civil litigation.  When you ask the court in normal civil litigation to make an order of some kind, you make a motion.  There is no form.  Before January 1 of this year, when you asked the court in a Family Law case to make an order of some kind, most of the time you were required to use a form called an “Order to Show Cause.”  Now that form has disappeared.  In its place we have a form called a “Request for Order.”

For historical reasons, the name of the previous mandatory form was more accurate than the name of the new form, but the explanation for that is of no interest to most people, and it’s a long story.  “Request for Order” is shorter and easier for people to understand.  In addition, lawyers usually abbreviated “Order to Show Cause” to “OSC,” which mystified most clients.  “Request for Order” is an improvement and brings Family Law a bit closer to normal civil litigation, but I don’t understand why “Motion for Order” wouldn’t have served just fine.

Another change in the Family Law forms is the appearance of a new mandatory form for status conferences.  A status conference is just what the name implies.  The judge requires the parties to come to court and tell him what’s happening in the case.  In normal civil litigation, the formal name for a status conference is a case management conference, and a mandatory form, called a “Case Management Conference Statement,” has to be filled out separately and submitted beforehand by both sides.

Before January 1 of this year, in Family Law there was no formal name for a status conference and no mandatory form to submit beforehand.  Now there are both.  The formal name is Family Centered Case Resolution Conference, and the mandatory form is called a “Family Centered Case Resolution Conference Order.”  Isn’t that a bit long?  And what’s family centered case resolution supposed to mean?  Aren’t we divorcing people here and taking families apart?  Whatever. If it’s nasty, give it a nice name and you’ll feel better about it.

Furthermore, parts of the form are orders.  You can’t fill them in beforehand, because you don’t know the orders beforehand.  So far I haven’t discovered how we’re supposed to get the correct orders in one version of the two forms and get it signed and filed.  To my mind, the normal civil litigation name for the status conference and the form for it would have been just fine.  In this instance Family Law and normal civil litigation have gone unnecessarily in the opposite direction, further apart rather than closer together.  I don’t think that’s an improvement.

For more information please visit our website:
http://stanprowse.com/family-law-attorney

Stan Prowse