How are gifts received prior to marriage treated during a divorce?
Question: Are any gifts I received while married considered to be part of the assets to be divided between me and my spouse?
Answer: Generally, gifts are the separate property of the party who received them. This is true whether the gift was given prior to marriage or during marriage.
How can I collect from my spouses 401k after divorce?
Question: I was awarded monies from spouses 401k in divorce. What forms do need, or how do I go about collecting?
Answer: A Qualified Domestic Relations Order (QDRO) should be prepared, filed and served on the 401K administrator. If your divorce judgment did not provide for a QDRO, you should file an Order to Show Cause motion and ask that the court order one. Your spouse’s employer may have sample language for the QDRO.
Can I choose to give up my rights as father?
Question: I am thinking about giving up my rights to my children. What consequences would I face if I wanted to do so? Would I still be required to pay child support?
Answer: You cannot give up your rights as a father to get out of your obligation to pay child support. However, there are limited circumstances where the child can be adopted, at which point one would no longer have to pay support since they ar no longer the legal parent of that child. The primary question is do you really want to give up all rights to your child and secondly is there someone else willing to step in to adopt the child and assume the financial obligations that go along with supporting the child.
Can I take my children out of the state while divorcing?
Question: My permanent residence is in Washington State with my four minor children. However my husband left to California to live with his parents eight months ago when we began to have marital problems. I recently in January came to California with the two youngest children to try to save my marriage and pursue marital counseling. I was served with divorce papers at the beginning of this month in California, and have recently found out I have ovarian cancer. I would like to go back to my permanent residence with my two children to pursue cancer treatment until the court date. Is it illegal for me to take my children back to our home until the court date? Or do I need permission from the court?
Answer: Because you have been served with divorce documents, you cannot remove the children from the state. On the back of the Summons are ATROS (Automatic Temporary Restraining Orders). These orders state that absent a court order or the written consent of the other party, the children are not to be removed from the state. However, you can file a motion to request permission to move back to Washington with the children. You will need to respond to the divorce documents within 30 days. Given the complexity of your case, you should consult with an experienced family law attorney.
Can the mother of my children move out of California without my permission?
Question: The mother of my three children and I never went to court to decide custody when we split and/or thereafter. We continued to live in the same city and I was in the children’s lives. A couple of years ago she disappeared with the kids. Just recently I found out that she moved to the state of Idaho with the two youngest (now 13 and 11) and left the oldest child (now 16) here in the care of his friends mother. Can she move out of state with them and leave the other with someone else without my permission or knowledge? What are my rights and options?
Answer: You should file a motion with the court to set custody and visitation orders. In order for California to have jurisdiction, the children must have been residing in the state for the last six (6) months. Therefore, it is likely that you may have to file your custody motion in Idaho, if they have been residing in Idaho and Idaho has jurisdiction. Normally when there are court ordered custody/visitation orders already in place, the children cannot be removed absent a court order or the written consent of the other party.
Who has legal jurisdiction in my child custody case?
Question: My boyfriend and I lived in the state of Nevada. Our son was two months old when I came to California. When my son was 4 months old my boyfriend decided to move out to California. Two months later things didn’t work out and my ex moved back to Nevada. Immediately I filed for custody and at the time of filing my son was 6 months. Two weeks later I’m served with papers from Nevada claiming I improperly filed. Who has rightful jurisdiction? California or Nevada?
Answer: California’s jurisdiction requirements state that the child’s home state is the state the child has been living in for the past six (6) months. Because your son was only six (6) months old when you filed the action, and you appear to have lived in California for the majority of his life, California should have jurisdiction. It is likely that your boyfriend will contest California having jurisdiction, so it would be in your best interest to consult with an experienced family law attorney.
Can I still get a divorce after filing a dismissal?
Question: I filed for divorce after being married for only one month. A few weeks later after filing my husband convinced me to stop the divorce and I did. After counseling and trying to work it out I still want a divorce. Come to find out I filed a “dismissal with prejudice” can I still get a divorce?
Answer: Yes, you can still file for divorce even after filing a dismissal. You will need to open up a brand new case with the court, with a new case number. You will file all of the same documents you filed previously.
Can I deny visitation even though we have no child custody agreement?
Question: Me and my ex-boyfriend have no legal custody agreement for our four month old. I am the custodial parent, and he signed the birth certificate and now wants a DNA test. Can I deny him visitation, and if I do will it reflect badly on me in court later?
Answer: If there is no custody/visitation order in place, than visitation should be agreed upon by both parties. The court looks at the “best interest” of the child when making custody/visitation orders. Therefore, if you are going to deny him visitation, you should have a good reason or else it will reflect badly upon you in court. You should help facilitate contact between both your child and the child’s father. You should file a motion with the court for custody and visitation orders. Your ex-boyfriend may request a DNA test, but if you truly believe he is the father, there shouldn’t be an issue with this request.
Can a spouse with a mental disability be granted child custody?
Question: Can a disabled spouse who has a mental disability retain legal joint custody of the children? The father is on SSDI with mental issues and has a recent felony, and the mother is full time employed
Answer: When deciding custody and visitation issues, the court uses the “best interests” of the child standard. If the father’s disability affects his parenting ability and places the children in harm, than he may not be granted primary custody, but he may be granted reasonable visitation or supervised visitation. While you mention legal custody in your question, please note there are two types of custody: legal and physical. Legal custody deals with making decisions for issues such as education, health, etc.
Can a wife get a house after getting a divorce?
Question: If my husband purchased the house and we are going to get a divorce, can I still be entitled to the house?
Answer: It depends on many factors. In California, any assets purchased during marriage is presumed to be community property. If it is in fact community property than you will be entitled to any equity if there is any in the house. One of you can keep the house and buy the other person out or you can put the house on the market and sell the proceeds. If the house was purchased after the date of separation than it is presumed to be separate property. However, depending on what funds he used to purchase the house would come into play. There are a lot of factors to look at and I would suggest talking to an attorney to make sure that all your interests are being met and you get everything that you are entitled to in the divorce.
What should I do if my ex-husband does not comply with our marital settlement agreement?
Question: What can I do if my ex-husband doesn’t comply with the marital settlement agreement? Our case is in California.
Answer: There are many remedies available to you if your ex-husband does not comply with your MSA. Has your MSA been entered as a judgment yet? If not you would want to make sure it is entered as a valid enforceable judgment. Once the MSA is a judgment, you can file a motion to compel his performance, a motion to compel or a motion for sanctions. You can also file for a wage garnishment is he is not paying you your portion of the community property or if he owes your spousal support. There is also a way to file a writ in order to seize his assets or have an asset transferred to your name. You have plenty of options available to you, it is just taking the initiative in order to obtain the remedy you seek.
Can my sister file for a divorce in the US even though she was married overseas?
Question: We are married in the Philippines, and my sister lives in the States right now. She wants to file a divorce here against her estranged husband who abandoned them when their kids were small. They don’t have any communications with him, and many years ago she learned he was living with another woman. Is it possible to have an American lawyer process it and how much it cost?
Answer: Yes, even though you were not married in the United States, you can get divorced here. The process to file for divorce requires that you meet the state’s residency requirement which in California is 6 months and 3 months residence in the county you desire to file in. Once you meet the residency requirement you can file for divorce. Every state has different requirements so you will need to check on your state’s requirements. As far as the cost, every lawyer charges different hourly rates. You will need to come up with a retainer to give to your attorney so they can begin working on your case. A retainer is like a deposit on your account because your attorney will begin incurring costs immediately. Retainers and hourly rates will vary depending on the attorney.
In some cases where you are trying to “lock in” jurisdiction to California but do not meet the required residency requirements yet, you might discuss with your attorney filing for a legal separation which does not have the same residency requirements and an be amended to a dissolution / divorce after you have lived in the state and county for the requisite time.
Is it unethical or against a legal code for her divorce attorney to advocate against reconciling our marriage?
Question: My wife and I are trying to work or marriage out and hopefully not follow through with the divorce. My concern is her attorney is telling her that compared to other men, I have only changed about 5%. And since we are trying to work things out my wife is holding on to his statement as a matter of fact. I do not want the divorce but this and other statements from him seem to me be biased and a conflict of interest. Not only is it untrue but how can he give such advice when he is not a licensed therapist or PhD and how can he assume what my level of change is? Especially when he has only spent about 1.5 hours with me. I have more concerns with these statements but this is mainly what bothers me. Also, if he does violate some code by doing this is there anything I can do? Thanks.
Answer: It depends. While there are ethical implications due to the possible conflict of interest that arises when an attorney gives advice that he or she knows will lead to his or her financial benefit, it comes down to motives. Is the evidence so clear that the motive of financial gain is clearly the dominant force behind the advice? Because of the difficulty of that determination, a finding of an ethical violation is difficult. To help explore all available options, it is important to contact an experienced family law attorney.
Is it hard to do your own divorce in California?
Question: My husband and I were only married about 2 years, and we do not have kids. We have a joint checking account, and he has a separate retirement fund through work. We have a house together, and our cars are in our own names.
Answer: All of the forms required for a divorce proceeding can be found online and in a courthouse, including instructions on how to complete the forms. There are also family law facilitator offices that can provide legal assistance to you at no charge. Because of various procedural rules, having an experienced family law attorney would ensure a swift resolution of your divorce. Mistakes can significantly delay the process.
Do I have to reveal the fact that I have a 401k plan in my California divorce?
Yes, even if the other party is not going to contest it, you have to reveal your 401k during your California divorce. There are consequences if you choose not to disclose all of your assets and debts during your divorce. Such penalties include having your final judgment set aside and financial penalties.
Can I get divorced from my husband who is in a California prison?
Question: I have been married to my husband, who is in a California prison, for 6 years. I want to divorce him, but will this be like a normal divorce? Will an attorney help?
Answer: Yes, you can get divorced from your husband who is in a California prison. The procedure will not be any different but you will still have to have your husband served with the papers in prison. It would be beneficial to speak to an experienced family law attorney who can guide you through the procedure and the difficulties that you may encounter if your spouse contests the divorce.
How Long Does It Take To Finalize A Divorce?
Divorce cases are all unique, and depending on the complexity of the situation and the cooperativeness of the involved parties, they will take different amounts of time to resolve. With the addition of child custody, domestic violence, and property arguments, the situation will become more and more complicated. In general, however, most cases can be finalized within a period of 6 to 12 months.
If you would like to speak with an attorney about your specific situation, contact the Oceanside divorce lawyers of Fischer & Van Thiel today at 760-722-7646.