Infidelity and Divorce

AdobeStock_89927467.jpegAs 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

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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

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

 

 

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

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 service man.

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 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

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

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