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5 Signs You Should Get a Restraining Order Against Your Partner

5 Signs You Should Get a Restraining Order Against Your Partner

The law has not yet created a perfect mechanism to fully prevent domestic violence and other forms of destructive behavior by a partner or spouse, but one of the best ways to take legal action in California (as well as other states) is to obtain a restraining order, which is often called a protective order to reflect the fact that its primary purpose is protection of people. California law provides three types of protective/restraining orders to spouses, partners, children, and other household members of an abuser: Emergency Protective Order: This can be issued by a police officer responding to a domestic violence call who believes a victim of violence needs immediate protection. Temporary Restraining Order (TRO): A court will grant a TRO – usually good for several weeks – without the abuser having a right to a hearing (meaning you can obtain it without his or her knowledge) Permanent Restraining Order: A TRO may later be converted to Permanent Restraining Order, which can be made effective for up to five years. Obtaining this order will require that both parties go before a judge and present evidence. Here are five signs you should speak to an attorney about obtaining a protective/restraining order. The Individual Has Committed Abuse Against You or Your Children You can obtain a restraining order against a family or household member who has committed violence against you or your children, as well as those who engage in verbal abuse. The person need not have acted intentionally in committing the abuse. For example a person who is abusive while intoxicated or is unable to control themselves can have... read more
What is the Difference Between Spousal Support and Alimony?

What is the Difference Between Spousal Support and Alimony?

Most people are familiar with the term “alimony,” a term frequently used in television and movies, and which you may recall a family member or friend discussing in connection with a divorce. In essence, alimony is money that one spouse pays to another spouse after a divorce, and sometimes while the divorce is ongoing. Alimony is separate from any division of property. Thus, you and a spouse may split your property equally in a divorce, and you could still be required to pay the spouse alimony after the divorce for a matter of years, or even indefinitely. A lesser used phrase is “spousal support” or even “spousal maintenance.” Spousal support, spousal maintenance, and alimony are all referring to the same thing, again, the funds that one spouse will pay to the other spouse after a marriage. This is also separate from child support payments, and most states do not require that a spouse have a child to properly demand spousal support. Spousal Support / Alimony Laws Vary Widely By State Like most areas of family law, spousal support and alimony rules are based in state law, and so the law of the state in which you obtain your divorce (generally, the state in which at least one spouse resides at the time that spouse files for divorce) will determine whether spousal support will be paid, how much the payments will be, and how long they will last. States vary widely in all of these areas. Some states will only award spousal support where there is a financial necessity on the part of the person requesting spousal support, e.g. if... read more
Can We Create a Divorce Settlement Agreement If We’re Not Speaking to Each Other?

Can We Create a Divorce Settlement Agreement If We’re Not Speaking to Each Other?

The benefits of creating a settlement agreement in resolving a divorce over litigating those issues in court are huge. First off, both spouses can save themselves the high legal fees that come with going to court repeatedly to present issues before a judge. Second, the spouses can avoid the anxiety, embarrassment, and pressure of having to argue these things in a public courtroom and having personal issues be made public record. Finally, spouses can create particular solutions that meet both of their needs without having issues relating to custody schedules, property division and distribution, and child and spousal support thrust on them by a judge. It is often the case, though, that spouses might not even be able to talk to each other during a divorce – perhaps due to emotional issues or perhaps due to a restraining order in place – which obviously makes communication challenging. But, even in those cases, you can obtain the benefits of a settlement agreement and avoid the higher legal fees and pressures of a contested divorce. Your Attorneys Can Negotiate a Settlement Agreement On Your Behalf The reality is that you may never even have to speak to the other spouse at all during the divorce process, and you might be surprised at how common of a scenario this actually is. Your family law attorney can take over 100% of the process in speaking to either your spouse or his or her attorney in negotiating a settlement agreement. For example, your attorney can speak with you about the outcomes that your are seeking with regard to property distribution, spousal support, custody, and... read more
Why Do People Get Prenup Agreements?

Why Do People Get Prenup Agreements?

There are a number of benefits to prenuptial agreements that make them attractive to those heading towards marriage: the ability to have a level of financial certainty for both parties after a marriage; the ability to avoid having marital and financial issues being brought into the public forum of a courtroom (and ensuing court records); and the ability to create personalized, mutually beneficial solutions at a time when the two parties are willing and motivated to work together. But what are some common scenarios in which prenuptial agreements are frequently sought out? Have Children From a First Marriage A prenuptial agreement can be obtained before a first marriage or any subsequent marriage, but, traditionally they have been somewhat more common in subsequent marriages. One reason is that, where spouses have children from previous marriages, they want to take steps to help preserve wealth for their children, rather than have those assets directed elsewhere by means of state laws relating to estate distribution after a death and/or unintended divorce consequences. Have Gone Through a Bad Divorce Experience In a divorce, there are four primary parties: each spouse and each of their attorneys. Even if three of those parties are reasonable and committed to seeking mutually beneficial and positive outcomes, all it takes is one of them to see the process as a way to enrich themselves by making life miserable for the others through a prolonged, contested divorce action. When a bad divorce experience happens, it is not uncommon for a person burned by the process to not want to enter into marriage again without some assurances that he or... read more
When is the Best Time of Year to File for Divorce?

When is the Best Time of Year to File for Divorce?

For a wide variety of reasons, the start of the year and January in particular are times in which family law attorneys hear from many new potential clients regarding seeking a divorce. Every situation is different, but sometimes one spouse wants to make it through the holiday season before bringing up divorce. Or what was hoped to be a holiday season of rejuvenation and reconciliation for a marriage fell flat. Or a new year with new goals and approaches may spur one spouse into taking action to improve their lives. But is there really a best time of year to file for divorce? Yes and no. There is not a generally applicable time of year that is best suited for all couples seeking a divorce, but there may be a particular time of year for your situation that best fits your needs. Figuring this will often mean speaking with a family law attorney who can provide an assessment of your situation and counsel regarding the relative merits of your timing options. Here are a few additional issues to think about. The Date of Separation is More Important Than the Filing Date In many states, including California, the date of separation, as opposed to the date the divorce is actually filed, is the more important date. In California, the date of separation is defined as the date that at least one member of the marriage decided to end the marriage and made that intent clear to the other spouse.   This date is important because it is the date the court will look at (and, again, not the date the... read more
3 Questions to Ask When Thinking About a Divorce

3 Questions to Ask When Thinking About a Divorce

To call divorce a “game changer” is an understatement. Divorce can upend your emotional and financial life, not to mention the day-to-day life of where you live and who you live with, and can mean big changes for relating to your children going forward. And yet many people find that divorce is the best decision they ever made, giving them a second chance at the life they want for themselves and their children. On the one hand, it can be easy to impulsively jump into the divorce process and make bad decisions that can follow you for years, but, on the other hand, failing to take steps to build your future and protect your finances and family now by pursuing divorce can lead to a much worse outcome. Here are three questions you will want to ask when thinking about divorce, in consultation with friends, family, advisors, and a family law attorney. What Will My Life Look Like 1, 2, 3… Years After the Divorce? If you have been married for some time, or if you have never really lived independently from a spouse or family members, you may not be fully prepared for the obligations and stresses of living on on your own after a marriage ends, especially if there are now children involved. Without a primary or second income, and when expenses are no longer shared (and additional expense may be needed to fill in for a spouse’s lost services), the costs can add up far more quickly than you ever expected. If you do not exercise your rights to property division and spousal support during your... read more

Does Common Law Marriage Exist in California?

The concept of a “common law marriage” is one you might have heard brought up in TV shows and films, and often in reference to people living in isolated areas or in historical times, such as in the 19th century. Basically, a common law marriage is a marriage where there was no legal formalities, or, in other words, no ceremony and/or no valid marriage certificate was filed with the state. The concept of common law marriage can become important when a couple that has been together for a long period separates, and of the individuals is concerned about what legal rights he or she has to the other partner’s property and/or to receive financial support following the separation. California does not recognize common law marriage, but individuals that were in unions not involving a traditional marriage may still have rights under the law.   California Abolished Common Law Marriage in 1895 First off, a word on the definition of common law marriage is in order. Numerous states in the past recognized that two people who lived together and held themselves out as a married couple to others could consider themselves legally married even if they never participated in a wedding ceremony or filed a valid marriage certificate with the state. This meant that those couples had similar rights as couples with valid marriage licenses, at least after a period of time of being together. Only a few states still recognize the concept of common law marriage: Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia. California abolished the concept of common law marriage... read more
How to Determine Date of Separation (DoS) in a California Divorce

How to Determine Date of Separation (DoS) in a California Divorce

No matter how much you may be independent of a spouse – or how much the thought of still being married to a spouse saddens, annoys, or generally feels in the past to you – you are still legally married until the date of a dissolution order signed by a California family law judge ending your marriage. But, of course, the decision to end the marriage comes often long before that date. Even if you file for divorce the day you decide to split up, it will take at least six months for the divorce to become final. But, in some cases, couples separate months and even years before that date, or even before they take any legal action whatsoever. While no lawyers or judges may be involved at the moment you separate, the date of separation – sometimes called the DoS – is actually quite legally significant for your divorce, and understanding what that date is and memorializing it can be important to protecting your financial rights in a divorce. What is the Date of Separation in California? The date of separation in California is essentially the date that at least one member of the marriage decided to end the marriage and made that intent clear to the other spouse. Specifically, California law defines the date of separation as the date there was a “complete and final break in the marital relationship,” evidenced by both of the following: One spouse expressing his or her intent to end the marriage to the other spouse; and Conduct consistent with that intent Thus, merely talking about a divorce or threatening divorce... read more
How Long Do You Have to Pay Alimony After a California Divorce?

How Long Do You Have to Pay Alimony After a California Divorce?

Alimony is a commonly-used term for payments that one spouse must make to another spouse after a divorce ends in order to help the receiving spouse adjust to life on their own following divorce. In California, alimony is technically referred to as spousal support or sometimes spousal maintenance. Before we discuss how long a person has to pay spousal support after a divorce in California, the first step is to discuss when it is available. When Spousal Support is Available in California Spousal support are payments that go above and beyond the 50/50 separation of a couple’s community property (which includes all property that either spouse earned during the marriage or acquired with earnings during the marriage, including retirement benefits later paid out). In fact, the total amount of spousal support payments one spouse pays another may well be worth more than the total amount of community property divided between the spouses, especially when there is a large differential in incomes between the spouses and they are relatively young with limited savings. California courts do not always award spousal support, but, unlike other states, California will award spousal support as a way of maintaining the living standard of the marriage (at least temporarily) and not simply when it is necessary for financial survival. Both men and women may receive spousal support, as well as those spouses in same-sex unions and marriages. The Duration of Spousal Support in California Family courts in California have wide discretion in setting not only the amount of spousal support to be paid on a periodic basis (it is usually ordered to be paid once... read more
Why You Should Keep a Detailed Custody Journal With Your Ex

Why You Should Keep a Detailed Custody Journal With Your Ex

A custody journal is exactly what it sounds like: a log of when you and your ex actually have physical custody and/or visitation of your child after a custody determination. At a very basic level, a custody journal should contain: 1) the time at which your child was handed off from either you to the other parent, or vice versa; 2) any missed custody drop-offs and visitations and the explanations given (e.g. business meeting, doctor visit for child); 3) parental responsibilities that were or were not fulfilled, such as taking the child to basketball practice or a religious service; and 4) any issues that might have arisen that could be notable. The last point could include troubling statements made by the child about the other parent to you, statements made by the other parent you wish to preserve, and any physical, emotional, or other issues the child is facing. You might choose to share this journal with your ex and both sign off on it, or not. Here are a few reasons why keeping a detailed custody journal is important. Enforcing the Custody Schedule Both parents are required to abide by the custody agreement or order signed off by the court, but, for the most part, family courts are not in the business of policing the custody schedules and expect parents to be able to adequately follow the custody schedule without intervention. But when one parent consistently is unable or unwilling to follow the terms of the agreement – either in fulfilling their obligations or in allowing the other parent access to the child – it may be necessary... read more