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

 

 

 

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Spousal Support: A Case of Waived Rights

Couple problem

Is a piece of paper sufficient protection? Are words signed in ink adequate defense against an ex-spouse going against his or her word?

Let’s take a look. A woman recently approached us with the following question: can a spousal support ruling be reversed despite the fact that both parties signed the waiver? In her specific case, she and her ex-husband signed that they “voluntarily, knowingly and intelligently” waived their rights to spousal support. It was specifically stated that neither party could change his or her mind, even if circumstances changed.  But then, the issue of child support arose.  This woman’s ex-husband threatened to return to court for spousal support if she seeks out child support for their children. Is this threat a water gun spray painted black, or can he actually reverse their agreement?

When this couple mutually agreed to forever waive their rights to spousal support as part of their divorce agreement,  the court’s ability to order spousal support was terminated. This woman need not fear; the court would not be able to grant her ex-husband’s request if he files a Request for Order.

For more information on spousal support and possible modifications to spousal support, please visit our website: http://stanprowse.com/modifying-child-support

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

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