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Recent Posts in Divorce Category

  • What is the benefit of having a judgment (permanent order) for custody and visitation as opposed to a findings and order after hearing (temporary order)?

    The goal in a family law case is to obtain a judgment on the issues of custody and visitation. The reason being is that to change a judgment custody order requires a substantial change in circumstances which is a much higher burden than the best interest standard (which is the requirement in a pre-judgment order). The court has found that a change of school or work schedule does not meet this ...
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  • When can the Court set aside a fraudulent transfer in a California Family law case?

    In Nautalis vs. Yang, the Fourth District discusses the good faith defense to set aside of a fraudulent transfer. It said that (w)e publish our opinion because of our analysis of the requirements of the good faith defense. Some cases have held that a transferee cannot avail itself of the good faith defense if the transferee had fraudulent intent, colluded with a person who was engaged in a ...
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  • What are the recent developments in military pensions and the parties' various elections to collect these pensions?

    In Howell vs. Howell, the U.S. Supreme Court unanimously held that (a) state court may not order a veteran to indemnify a divorced spouse for the loss in the divorced spouse’s portion of the veteran’s retirement pay caused by the veteran’s waiver of retirement pay to receive service-related disability benefits. This Court’s decision in Mansell v. Mansell , 490 U. S. 581, determines the outcome ...
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  • Can FC 271 Sanctions be imposed against an attorney of record or just the litigants to the case?

    The Court can issue sanctions against either party in a family law case based on their behavior in tacking egregious actions contrary to settlement or otherwise not cooperating with the discovery or disclosure process. This sanction was typically reserved to be imposed against the parties. However, a recent case (Webb vs. Webb) sought to impose such a sanction against the attorney for the party as ...
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  • What are the new developments to Los Angeles County Conciliation Court Agreement for parents to be aware of?

    In Los Angeles County, prior to the Court making orders for Child Custody and Visitation, the parties are required to attend mediation. The proper term for this mediation is Conciliation Court where the parties meet with a MFT to discuss parenting plans in an effort to reach an agreement which is memorialized into a writing and submitted to the Court. The Court has recently inserted language in ...
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  • Can I request that the other parent undergo a vocational evaluation in a post-judgment proceeding without also requesting a modification in either child or spousal support?

    In the highly contentious case of Stupp & Schilders, the First District reversed a San Mateo County trial court’s order requiring W to undergo a vocational evaluation even though there was no pending support motion “and no good cause to order a vocational evaluation. It held that “where there was no support-related motion pending there was no good cause to order a post-judgment vocational ...
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  • How does being a sex offender or living with a sex offender effect a parent's right to custody and visitation?

    The Court may modify or terminate a prior custody order if either a parent is convicted of a felony that requires him or her to register as a sex offender or lives with a person who is required to register as same. There is a rebuttable presumption that the child is at significant risk of harm to either be in the custody of a parent with such a conviction or if that parent's resides with another ...
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  • I exercise more parenting time then is set forth in my judgment, am I in a better position to oppose a move away hearing then someone whose is designated as a non-custodial parent in the judgment?

    As stated elsewhere, where the parties have Joint Physical Custody (both parties have substantial amounts of parenting time), the Court must consider a move away request de novo and with both parents being on a level playing field. This is in stark contrast to one party being the primary custodial parent who would then have the presumptive right to relocate with the child. However, if the ...
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  • What can I do to ensure my visitation rights are preserved if the other parent is permitted to move out of the country?

    The greatest fear of a parent is that, if the other parent is permitted to relocate to another country, that the parent staying behind will not have the court-ordered visitation. One remedy a parent has if the other parent is permitted to relocate outside of the country is to request that the Court order the other parent to post a bond before the actual relocation occurs. The bond functions as an ...
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  • Is there a different standard in a move away case between parties having a temporary vs. a permanent order for custody and visitation?

    Yes, if you have a temporary order that was the result of a Request for Orders or Domestic Violence Restraining Order hearing then the standard is always what is in the best interest of the child and neither parent has a presumptive right to relocate with the child and are on a level playing field. However, when a permanent order is made (such as a Judgment or Dependency Court Exit Order), there ...
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  • In a move away case, does it matter whether I am the custodial or non-custodial parent?

    The custodial parent has the presumptive right to change the residence of the minor child and is not required to show the move is necessary, but rather that the move is not prejudicial to the child's best interest. This presumptive right does not apply to the non-custodial parent and they are saddled with the burden of showing that the move is detrimental to the child's best interest. If the ...
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  • Determining the Date of Separation

    How does the Court currently determine the date of separation in a California family law action? A recent case came down that drastically changed the criteria for determining what the appropriate date of separation is. Previously, had parties objectively acted in such a way that showed others that they were living separate and apart (opening separate bank accounts, filing separate tax returns ...
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  • Wedding Rings & Divorce

    When I get divorced, do I get to keep my wedding ring? In the alternative, if I get divorced, can I get the wedding ring back from my spouse? A frequently asked question that is often raised by clients in the dissolution process is whether I can either keep my wedding ring or get the wedding ring back from my spouse. The answer is quite simple, if a wedding ring is given to fiancée and the ...
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  • How to Ensure You Are Get What's Yours During a Divorce

    Do I have any right to my spouse’s property acquired prior to our marriage? A Marvin action requires the proving of a written contract or implied, oral contract that property acquired prior to marriage would be equally divided. Generally hard cases to win and depend heavily on the facts of each case. However, if successful, a party may change the character of property from separate property to ...
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  • Getting Spousal Support After a Short Marriage

    Can I get long term spousal support if I have only been married for a short time? Typically spousal support is ordered for 1/2 the length of the marriage, unless your marriage is in excess of 10 years. However, you may be entitled to additional support, called Palimony, if you have cohabited with your partner prior to marriage. This is known as a Marvin claim and must be brought as a separate ...
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  • Afraid of Going Back to Court for a Modification Order?

    The other parent keeps threatening to take me back to Court, what can I do to minimize or prevent this from happening? Often times I have clients provide with a mediation agreement or an Order After Hearing telling me they thought the case was done and that the orders they had were permanent orders. This is not the case. In fact, these initial orders are referred to as temporary orders that are ...
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  • Going Back to Court Because of a Child Living Preference

    The other parent has threatened to take me back to Court because our child now says they want to live with the other parent. What should I do? Although the Court shall consider a child's preference, the Court is not bound to make orders solely on that preference. If the Court finds that the child's preference conflicts with what is in the best interest of the child, the Court will not make orders ...
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  • How Your Children Can Express Their Preferences

    How do I alert the Court that my child has a preference and how does the Court inquire as to what the child's preference is? To answer the first question, the child's desire to express their preference to the Court may be brought to the Court's attention by Minor's counsel, Court investigator, mediator or party. Or their attorney indicates to the judge that the child wishes to address the Court or ...
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  • It Really Is All About the Child?

    How about me? Aren't my interests as the parent as equally as important as the interests of our children? The Court's utmost priority and goal is to protect the health, safety, and welfare of the child, while ensuring the frequent and continuing contact of the child with both parents. The parent's interest cannot be considered by the Court EXCEPT as it effects the best interest of the child. In ...
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  • Has Your Child Expressed A Preference in Their Living Situation?

    In a California child custody case, how old does a child have to be to express a preference in living situation? There are two age groups that come into the analysis: 1.Under the age of 14 but if sufficient age to reason as to form an intelligent preference as to custody or visitation 2.14 or older and the child wishes to address the Court. In the former group, the Court must consider and give due ...
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  • Safeguards to Prevent Kidnapping During a Child Custody Dispute

    What are appropriate safeguards that the Court can utilize to keep a party from kidnapping or fleeing the state/country with the child? There are several safeguards the Court can utilize to keep a child safe from kidnapping/abduction. The more practical ones that the Court may order are the following: Again, in theory, these are quite adequate to guard against a parental abduction. However, there ...
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  • Do Allegations of Child Abuse Affect a Child Custody Order?

    Does the Court consider physical and sexual abuse committed by one parent towards the child in making custody orders? If these types of abuse allegations are made during a custody proceeding and the Court has concerns regarding the child's safety, the Court may deny or severely limit the visitation of the children with the alleged abuser. The Court may also refer the matter to the local child ...
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  • How to Prove Substance Abuse

    What kind of testing for substance abuse is available if I suspect the other parent has a substance/alcohol abuse issue? Family code 3041.5 sets forth that the Court is authorized to order drug or alcohol testing if the Court determines by a preponderance of the evidence that the parent engages in habitual, frequent or continual use of such substances. Testing is confidential and the results are ...
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  • The Importance of Specifying Joint Legal Custody

    What is the Law Regarding Joint Legal Custody? Family code 3082 sets forth that to the extent such circumstances have not been specified, either parent acting alone may exercise legal control of the child. For example, if the order agreed to by the parties does not specify that both parent's consent is not required to obtain a child's driver's license or to enroll the child in an extra-curricular ...
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  • Do People Other Than The Parents Have Any Rights to the Child?

    What is the Hierarchy of Custody Preference? In Family code 3040(a), a hierarchy is set forth the order of preference in making custody and visitation orders. The order of preference is as follows: 1) Both parents or either parent; 2) person whose home child has lived in that is a wholesome & stable environment; 3) any other person court deems suitable to provide adequate care and guidance for ...
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