Category Archives:Family Law

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Divorce Help: Changing Your Name After Divorce

Divorce is very unsettling, to say the least.  It is difficult to think about changing one’s name when there are so many other more pressing issues, and many women decide to continue using their married names, at least for the time being.  Resuming your former name is a significant step. It marks a return to a former SELF, and for many women, this represents a positive step towards recovery and acceptance of the divorce.

Changing your name can be done at the time of divorce or at a later date, and is easy and cost-free.  It is slightly easier to restore your last name or change your current name during the divorce process.  If you are considering this, notify your divorce attorney before the divorce is finalized so it is handled as part of the judgment or settlement.  However, if you were not ready to make a name change at the time of divorce, and now you are, it is neither too late nor too difficult or expensive.

Change of Name Process

If you have to file a Petition for Change of Name in court, the process can take up to 3 months.  After you file your Petition for Change of Name, you will get a court date on your Order to Show Cause for Change of Name that will be between 6 and 12 weeks away.  If your paperwork is correct and you followed all the required steps, on or soon after your court date, the court will give you a court order called a “decree” officially changing your name.  Some courts are busier than others and it may take longer.

In some limited cases, the judge may not agree to change your name.  For example, this can happen if the judge finds that you are changing your name to commit fraud, or if the judge finds that you are changing your name to hide from the law or the police or for some other illegal reason.

Changing your name to your former name if your divorce is final and was granted in California.  Contact the court clerk in the county where the case was filed and give the court clerk the case number, case name (names of the parties), and the date of the order/judgment/filing, if possible. Include a copy of your Notice of Entry of Judgment (Family Law — Uniform Parentage — Custody and Support) (Form FL-190), if possible. Complete an Ex Parte Application for Restoration of Former Name After Entry of Judgment and Order (Family Law) (Form FL-395). Include a self-addressed, stamped, return envelope, if necessary.

If your divorce is NOT yet final. If you are getting divorced in California and the divorce is not final yet, you can ask the court to restore your name to your former name. You can ask for this when you submit your proposed Judgment (Form FL-180) for divorce. Talk to a  Family Law attorney to find out how to do this. If you want to change your name to something other than your maiden name or to a prior married name you used in the past, then you have to follow the steps for filing a Petition for Change of Name.

If you have any questions, contact a Family Law attorney who can review your forms to make sure you filled them out properly.

Once you have your court order changing your name (whether through your divorce or through the regular Petition for Change of Name process), you can use that court order to change your legal name on government-issued identification documents such as your driver’s license, passport, and social security card.  You will generally need a certified copy of the decree changing your name.  The court clerk can provide you with that.  You will have to pay a small fee or qualify for a fee waiver. 

Sharing Your New Name

If you have children, consider the impact of your decision to change your name, and give them a simple explanation for the switch.  The children will likely continue to use their father’s last name after the divorce is completed, so tell them the truth so they feel pride in their birth name.  Telling your family, friends, and acquaintances may require a more in-depth explanation, or none at all depending on if they knew you before you were married.  Be prepared to answer these types of questions.

A name change should not be an impulsive decision, nor is it alone the measure of your recovery from divorce. Before you change your name, make sure you have thought your decision through and it is best for you.

When filing for a California divorce, be sure to let the your attorney know if you wish to change your name.  It is much easier to do it at the time of divorce. When you elect to change names later additional work and costs are involved.

What is a QDRO? How Divorce Affects Retirement

If you are filing for divorce or facing property division, you may have heard of a QDRO. If you have complex assets, including retirement accounts, there are specific legal processes and documents that must be completed to ensure that both parties are protected.
A Qualified Domestic Relations Order (QDRO) directs your pension plan administrator to give a portion of it to your ex-spouse after the divorce is final. 
Retirement (Photo Credit)

The following is a common scenario involving the QDRO:

  • A settlement agreement states that retirement assets will be equally divided between the husband and wife.
  • Three months later with a QDRO in hand, the couple finds out that the 401(k) has gone down in value and the non-qualified pension plan can’t be divided.
  • At this point, it’s necessary to determine the plan’s official division date and whether or not equivalent assets, temporary benefits, or cost of living adjustments in the plan were considered in the divorce decree.
This was an example of a common problem that arises because QDROs have only been around since 1984 and there is still confusion among some family law attorneys regarding splitting retirement plans.
Because QDROs can be complicated, it’s probably wise to consult an attorney experienced in dealing with them. But here is some basic information about QDROs:

What Qualifies as a QDRO? In general, a QDRO is a court-issued judgment, order, or decree that formally approves a property-settlement agreement that involves a retirement plan. 

What Must be Included in the Order? A QDRO must contain the following information:

  • The name and last known mailing address of the participant, and each alternate payee;
  • The name of each plan to which the order applies;
  • The amount or percentage, or method for calculating the amount or percentage, to be paid to the alternate payee;
  • The number of payments, or time period, covered by the QDRO.
How Does QDRO Work? The order will describe how the assets will be divided. The forms can be filled out by participants, but there are very specific legal requirements, so an attorney can be helpful to answer any questions.

Are QDROs Required During Divorce? Yes, a QDRO is required for any retirement plan covered by ERISA, the Employee Retirement Income Security Act. 

Does a QDRO Need Approval? Yes, the QDRO must be approved by an administrator and it must meet certain requirements. 

Are There Early-withdrawal Penalties? No, QDRO transfers from a retirement account do not incur any early-withdrawal penalties

Legal updates provided by the Orange County and Riverside Law firm of Don Ho, LLP.
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Juvenile Crimes Help: My Child Has Been Arrested

One of a parents’ worst nightmares is to find out that their son or daughter has been arrested or detained by the police.  Juveniles make mistakes and most have never been exposed to legal consequences.  Preserving your child’s record, so that their college goals and future employment are not affected negatively, should be the first priority.

If your child is arrested, the police can:

  • Make a record of the arrest and let your child go home.
  • Send your child to an agency that will shelter, care for, or counsel your child.
  • Make your child come back to the police station. This is called being “cited back.”
  • Give you and your child a Notice to Appear. Read the notice and do what it says.
  • Put your child in juvenile hall (this is called “detention”). Your child can make at least two phone calls within 1 hour of being arrested. One call must be to a parent, guardian, relative, or boss. The other call must be to a lawyer.

If the police want to talk to your child about what happened, the police must tell your child about his or her legal rights (called “Miranda rights”), which are: your child has the right to remain silent; anything your child says will be used against him or her in court; your child has the right to a lawyer. You have rights, too.  The police must also tell you as soon as your child is locked up. They have to tell you where your child is and what rights he or she has.

The juvenile justice system is different from the adult justice system.  Juvenile delinquency proceedings involve children under the age of 18 (minor) alleged to have committed a delinquent act which would be considered a crime if committed by an adult.  In Orange County Juvenile Court, the focus is on treatment and rehabilitation for the juvenile while the adult justice system focuses on punishment.

However, depending upon the charge, a juvenile can be prosecuted as an adult and be subject to the same penalties as an adult.  If the minor is over the age of 14 and the alleged delinquent act is a serious offense, such as murder or sex crime, the minor could be tried as an adult in adult criminal court.

The authority of juvenile court is contained within the California Welfare and Institutions Code. The law says the court has to protect the public and minors who are subject to juvenile proceedings. To ensure this, juvenile court judges have to consider the following:

  • How to keep the public safe and protected,
  • How to help the victim, and
  • What orders would be in the best-interest of the minor and victims.

The judge decides if the court will intervene in the minor’s future.  If it does, the judge has to consider the appropriate course of action for the minor, and how to make the minor take responsibility for his or her actions.  The court will then decide how to care for, treat, and guide the minor.  This can include punishment so that the minor learns to obey the law.

If your child is arrested for a crime, it is extremely important that you retain an attorney familiar with the Orange County Juvenile Court. Being familiar with the Judges, District Attorneys, Court Clerks and Probation Department, will help facilitate the best possible outcome for your child.

Legal updates by the Orange and Riverside County Law Firm of Don Ho, LLP.

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California Juvenile Dependency Court: Don't Take My Child

child abuse
(Photo credit: Southworth Sailor)

California dependency law deals with minors who have been abused, neglected and/or abandoned. When minors are mistreated at home, they need someone else to look after them. So the court steps in and makes the minor a “dependent child” of the court.

The objective of the proceedings is to protect children and reunify families when possible. At the start, the court will determine whether the allegations of child abuse or neglect are factual and whether the child should be removed from the home and made a dependent of the court. When it is not in the child’s best interest to be returned to the home, the aim of the court is to place the child with a non-custodial parent, relative, or NREFM (Non-Related Extended Family Member). If none of the above are available, the child will be placed in foster care.
Under California Welfare and Institutions Code 300, a minor can become a dependent child of the court when the minor:
  • suffered serious physical harm inflicted nonaccidentally by the parent or guardian
  • suffered serious physical harm or illness as a result of failure of the parent or guardian to supervise, protect or care for the minor
  • suffered serious emotional damage as a result of the conduct of the parent or guardian
  • has been sexually abused by a parent or othermembers of the household
  • was left without any provision for support
  • has been subjected to an act(s) of cruelty by the parent or a member of the household
The Dependency Proceedings
If you are involved in a juvenile dependency case, time is of the essence and specific actions must be taken. Unlike other court systems, the Dependency court must resolve your case extremely rapidly. If your child becomes a “dependent of the court,” the court will create orders for you, your child, and the social worker. The court creates these orders to protect your child and to preserve the integrity of the case.
  • Can I lose my child? If you are offered Family Reunification Services and fail to comply with the Court-ordered case plan, you may be at risk of losing your child.
  • Why is the court involved? The precise reasons are in the petition and other court papers you may have received. Read the petition thoroughly.
  • Do I need an attorney? You have the right to have an attorney represent you in a juvenile dependency case. You are permitted to reschedule your first court hearing for a short time so that you can  retain a private attorney. If you can’t afford a private attorney, ask the court to appoint one for you. If you have enough money, the court may ask you to pay the attorney’s fees.
  • What will happen in the first hearing? If your child was taken away from you, the judge will come to a decision at the first hearing if your child will be reunited with you until the next court hearing. Tell the social worker or your lawyer about any relatives the child can stay with until the next hearing. If the judge does not permit your child to be returned to you, it is typically better for the child to stay with family.
  • Will I be able to see my child? If your child is not returned to you, unless visits are considered detrimental, the Court will make a visitation order.
The Detention Hearing

Once Children and Family Services (“CFS” or sometimes “CPS”) are involved, this is the initial hearing.  If your child has been removed from you, the Court will determine whether your child should be returned to you under the Court’s supervision until the next court hearing.  If your child cannot be returned to you, you should advise the social worker and your lawyer about any relatives and/or Non-Related Extended Family Members who are willing to have your child placed with them.

The Jurisdictional/Dispositional Hearing
The proceeding at which the Court determines whether allegations of abuse or neglect concerning a child are true or not is called a Jurisdictional Hearing. This hearing provides the basis for state intervention into a family. The parents are entitled to a trial to prove or disprove the allegations as stated by the social worker’s petition. The standard for this hearing is very very low. Unlike a criminal court, where a person is found “guilty” “beyond a reasonable doubt”, the dependency court finds the petition “true” or “false” by a “preponderance of the evidence”.     To meet this “preponderance standard,” CFS is only required to show if the abuse or neglect is likely to have occurred (i.e. 51% likelihood that it happened).

The Dispositional Hearing addresses placement of the child, whether services will be offered to the parent(s) or guardian(s), visitations, etc.  Sometimes, the child is returned home under the Court’s supervision with the agreement from the parent(s) to comply with the Case Plan. Other times the child has to remain out of the care of the parent(s) while the parent(s) works on the case plan designed to address the issues that led to the removal of the child.

The Case Plan
The Case Plan tells the parent(s) what he/she needs to do to resolve the problems that brought the case before the Court. This plan may include:
  • a parenting program
  • a substance abuse program
  • a 12-step program (i.e. Alcoholics Anonymous/Narcotics Anonymous)
  • random drug testing
  • a domestic violence program
  • an anger management program
  • psychological/psychiatric evaluation

In cases involving serious physical, sexual, emotional abuse, torture, or death of a child, CFS may recommend that a parent or guardian not be offered family reunification services designed to reunify the family.

Status Review Hearings

The Court is required to review the status of each dependent child regularly. These Review Hearings are held every six months. Prior to each review, the supervising social worker will prepare a report and discuss the recommendation with the parent. This report describes the services offered so far in the case, the parent or guardian’s progress on the case plan, and what additional services should be provided to the parent (if any are needed) to correct the problems which led to the removal of the child.

If the child was previously returned to the parent or guardian, the recommendation may be to continue the case under the Court’s supervision or dismiss the case.  If the child was not previously returned, the recommendation may be to return the child under the Court’s supervision, continue the parent or guardian’s services while the child remains out of the home, or terminate the parent or guardian’s reunifications services.  If the recommendation is to terminate services, the Court will either establish a Permanent Plan Living Arrangement for the child or set a hearing to establish a permanent plan for the child which may include termination of parental rights or guardianship for the child.

Important Things to Remember

  1. Time is of the essence!  The Court will not make a child wait for the parent or guardian to get their act together.  If there is a child under the age of three (3) at the time of removal, the parent or guardian may be limited to only six (6) months of reunification services.  If all the children were over the age of three (3) at the time of removal, the parent or guardian may receive upt ot twelve (12) months of reunification services.
  2. The social worker can explain how the process works.  But remember that the social worker is not necessarily looking out for your best interests and cannot give you legal advice.  If you have questions about your rights, contact a Juvenile Dependency attorney as soon as possible!
  3. Stay in constant contact with your social worker.  Keep the social worker updated regarding your current whereabouts and your progress on your case plan.
  4. You must tell the court and the social worker where to mail you documents about your child. If you change your mailing address, you must tell your social worker immediately.
  5. This may be obvious, but maintain as much contact as possible with your child!  Make sure to attend all visitations that are offered to you.
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How to File for Divorce

There are three main ways to end a marriage or registered domestic partnership in California: divorce, legal separation, and annulment. It is not necessary for both spouses or domestic partners to agree to end the marriage.  Either spouse or partner can decide to end the marriage, and the other spouse/partner, even if he or she does not want to get a divorce, cannot stop the process by refusing to participate in the case.
After you decide how you want to end your marriage or domestic partnership, you need to plan your case ahead of time.  Think about how you are going to handle your case.  Planning before you start and talking to a lawyer can save you time and money as you go through the court process.
The following chronology will give you a general idea of how the average divorce process works.  Your divorce may be a little different because of specific legal issues which may arise between you and your spouse.

How to File for Divorce:

  • To begin a divorce in California, one spouse must file a divorce petition in his/her local courthouse.  The local family law courthouse in the Orange County area is the Lamoreaux Justice Center in Orange, California.  The person who files the divorce petition is called the “Petitioner.”
  • After the summons and divorce petition are filed with the court, the divorce petition must be personally served.  The person who is served with the petition is called the “Respondent.”
  • After the lawsuit is served, the Respondent has thirty (30) days to file a response to the petition with the court.  The Response tells the court that the Respondent intends to participate in the divorce proceedings and wants to be notified of any upcoming court divorce hearings.
  • If the Respondent fails to file a response to the divorce within 30 days, the case proceeds without the Respondent’s participation.  This is called proceeding by “default.”
  • If the case proceeds by way of default judgment, the Petitioner prepares a divorce judgment and submits it to the court and the case is concluded.  The parties become single after the statutory waiting period has expired.
  • If the Respondent files a response to the divorce, the parties exchange documents and other information about their property and incomes.  This is called “discovery.” By examining important documentation beforehand, sometimes the parties are able to settle their dispute without ever having to go to trial.
  • Sometimes one or both of the parties will need the court to make orders before the divorce case is concluded.  Either spouse may file an Order to Show Cause at any time before the trial.  An Order to Show Cause is a request for the court to make temporary orders. Usually these temporary orders concern child custody, child visitation, child support, spousal support, or attorney fees.  These orders are only good until the trial.
  • Sometimes the parties never have to go to trial because they agree on the terms of the divorce beforehand. If a divorce settlement is reached, the spouses will have a Marital Settlement Agreement prepared. This becomes the divorce judgment and the case is concluded. The divorce is granted after the six month waiting period has elapsed.
  • If the parties are not able to reach an agreement, the divorce will go to trial.  Even if the parties cannot agree on everything, sometimes will be able to agree on some issues.  If this happens, the parties can prepare a Partial Judgment.  This becomes part of the final judgment after the parties have a hearing on the remaining issues in the case.
  • At trial, each side presents evidence and arguments. The judge decides all remaining matters, including child custody, child visitation, child support, spousal support, attorney fees and property division.  The divorce judgment is prepared.
  • Once the judge signs the divorce judgment and the six month waiting period has elapsed, the divorce becomes final, and the parties are single and free to remarry.
  • Even after the divorce judgment is entered if the parties’ circumstances change, either party can later return to court and ask the judge to change certain orders in the divorce judgment.  However, the court’s power to change the orders in a divorce judgment are limited to child custody, child visitation, child support, and spousal support.
Legal updates brought to you by the Orange County and Riverside Law firm of Don Ho, LLP. 
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    Divorce Help: Could Your Husband be Hiding Assets?

    If you’re a woman who needs divorce help, you need to ask yourself those two tough questions:
      1. Could your husband be hiding assets? 
      2. If he is hiding assets, does that mean you won’t get the divorce settlement you deserve?
    Hiding assets during a divorce is sneaky, unethical and illegal—yet, it happens all too frequently.  Even in the best of times, it can be extremely difficult to keep track of your financial portfolio (this list might include your marital residence, rental and/or vacation properties, bank and brokerage accounts, retirement and pension plans, stock options, restricted stock, deferred compensation, life insurance with cash value, perhaps a business or professional practice). When a couple decides to divorce, that task can get significantly more complicated.  
    Unfortunately, as you go through the divorce process, your husband may try to hide income and/or assets to try to take advantage of the situation.  How can you help ensure you have an accurate accounting of your family finances?
    For starters, be on the lookout for certain telltale signs that your husband has some dirty tricks up his sleeve. 
    • Bank and other financial statements are no longer being delivered to your home address. A change in regular delivery could signal that marital assets are being diverted or dissipated.  Check with your bank, credit card companies, etc. to make sure that you receive copies of your statements. You’ll want to start gathering these, as well as tax returns, pension/IRA/401K statements and other financial documents, so that you can keep your own records and be alerted to any unusual activity.
    • A sudden decrease in salary. Any dramatic decrease in salary may indicate that your husband has decided to defer salary and/or hold commissions and bonuses for future distribution.  (That way this income won’t be “on the books” until after the divorce is final.)
    • Intentional overpayments. What happens if your husband overpays the IRS (or other creditors)? He’ll get a refund later –presumably after the divorce is final. I’ve also known cases where people fabricate loans from family members. The idea here is that they can lower their bottom line by listing these debts in their financial statements or sending the family member cash to “pay the loans,” knowing that the family member will return the funds after the divorce. You should also watch for money that might be transferred to your child’s (or his child’s) name.
    • No new clients. But, surprise! New employees. If your husband owns a business, there are many different ways he can “cook the books” in order to make the business appear less valuable than it is.  Maybe he’ll pay employees who don’t exist, or “pay” friends and family who agree to hold the checks until after the divorce is final. He could also delay signing new clients until after the divorce settlement is signed. Remember: The less the business is worth, the less you’ll get.
    • Defensive behavior. A husband who suddenly becomes secretive, controlling or defensive about money could be someone who is diverting or dissipating marital assets. A forensic accountant can help you uncover this type of deceitful activity.
    After that, you also need to be fully aware of the most common unethical practices husbands use.  Here is a small sampling of some of the tactics that can come into play.  If your husband wants to undervalue or disguise/hide marital assets he may:
    • Purchase items that could easily be overlooked or undervalued.  Maybe no one will notice that expensive antique/carpet that’s now at his office? Were you wondering why he recently made several significant additions to his coin/stamp/art collection?
    • Stash money in a safe deposit box, somewhere in the house or elsewhere.  Think through your husband’s recent habits and activities. Does anything lead you to believe he is hiding assets in actual cash?
    • Underreport income on tax returns and/or financial statements.  If it’s not reported, it can’t be used in a financial analysis.
    • Overpay the IRS or creditors. If your husband overpays, he can get the refund later, after the divorce is final.
    • Defer salary, delay signing new contracts and/or hold commissions or bonuses. This sneaky trick means this income won’t be “on the books” during the divorce proceedings.
    • Create phony debt.  Your husband can collude with family members and/or friends to establish phony loans or expenses.  Then, he can make payments to the family members or friends, knowing that he’ll get all the money back after the divorce is final.
    • Set up a custodial account in the name of a child, using the child’s social security number.  He could also use his girlfriend’s social security number, in which case it might be difficult to locate the account.
    • Transfer stock.  Your husband may transfer stock/investment accounts into the name of family members, business partners or “dummy” companies.  After the divorce is final, the assets can be transferred back to him.
    You may be asking yourself, why would a husband do any of these things? Whatever the reason, hiding assets, income and debt is not only unethical; it’s also illegal and subject to severe penalties IF discovered.
    Legal updates brought to you by  Riverside and OC attorneys of Don Ho Law, LLP.
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    Could Social Media Cause You to Lose Custody?

    Social networking has exploded in recent years, with millions of Americans and citizens around the world joining sites like Facebook, MySpace and Twitter, or even starting their own blogs.  In fact, social networks are truly becoming extensions of our everyday lives.  However, as these websites continue to grow in popularity, many users are finding that the sites are affecting their lives in ways they never imagined.

    Image representing Facebook as depicted in Cru...
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    The use of Facebook in family court proceedings is becoming somewhat of a norm.  Unlike criminal or other civil cases where judges remain  fairly strict about discovery, family court judges have to this point been pretty relaxed concerning the allowance of Facebook photos and posts as evidence in family court cases.  In fact, some family law firms are even creating new departments for the sole purpose of controlling their clients’ social media accounts.

    During divorce or child custody proceedings, the seemingly mundane details of your life can be misconstrued and even prove detrimental to your case. Social media posts and comments can provide damaging information for opposing counsel in family court proceedings.  Anything you post may be used as evidence against you, from status updates to pictures and everything in between.

    California child custody laws focus on the best interests of the child.  Such an investigation usually includes an examination at whether one parent is willing and able to help his or her child maintain a good relationship with the other parent.  Therefore, public displays of animosity against another parent on a social media site can be harmful when it comes to determining child custody arrangements.  Additionally, the social life of the parent can be a factor in the custody decision.  Posting pictures of a night out with friends or other social activity may raise questions about a parent’s actions or contradict previous statements which may influence a judicial determination.  Even though it may be completely innocent behavior, comments and images gleaned from these social media sites can paint a deceptive picture.  This is especially true in the courtroom where the only thing the judge has to go on is the evidence presented to him or her–they do not know those in front of them personally.

    Many individuals incorrectly believe that they can keep private information on social networking sites.  That such information will be protected as long as they block their spouse and his or her close friends from seeing what they post.  If you are contemplating or have already filed for divorce or child custody it may be smart to terminate ALL social networking sites, Twitter accounts and blogs to avoid even the possibility of revealing information that may later prove to be harmful.  However, if you choose not to deactivate social media accounts (or at a minimum temporarily abstain from using them), here are some guidelines to follow:

    • Remove your spouse or ex-spouse, his/her friends and family from your “friends” list on Facebook and other accounts.  Even people who appear to be your “friends” may pass along posted information to opposing counsel.  Also, be careful who you “friend,” as it may be a private investigator or someone who is aligned with your spouse or ex-spouse.
    • Do not post any negative, derogatory or slanderous comments about your spouse, ex-spouse or his/her family and friends.  These posts may be taken out of context when read to the judge or jury by opposing counsel,
    • Do not post any negative comments about your children.
    • Do not change your status to “single” or “looking for a relationship” if the divorce is not final.
    • Do not post photos or comments about yourself, family members or friends doing anything illegal, that might appear to be illegal, or is otherwise compromising.
    • Do not post photos or comments about yourself, family members or friends drinking alcoholic beverages or appearing to be intoxicated. To a judge, this is not recreational fun, but irresponsible behavior.
    • Do not post comments that include foul language.
    • Do not post photos or comments about your significant other or anyone you may be dating.
    • Do not post comments about your divorce or custody proceeding.
    • Finally, and perhaps most importantly – NEVER post any comments about what you discussed with your lawyer!
      There are several inherent risks in using social media sites; risks which are elevated exponentially when going through a divorce or child custody proceedings.  For motivated litigants, such sites can provide evidence to use against an opponent and few litigants are more motivated than warring exes.  Therefore, the Orange County and Riverside Law firm of Don Ho, LLP would like to share one piece of advice: If you have a pending divorce or child custody case, simply assume that anything sent in an email or put onto a social media site may eventually be seen by everyone and that it is best if you simply terminate ALL social networking sites, Twitter accounts and blogs for the duration of the case.
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      Divorce Help: Am I Entitled to Spousal Support?

      When dissolving a marriage or domestic partnership, the issue of spousal support or alimony is often a primary concern of the parties.  In general, there are two types of alimony that can be awarded: permanent support, which deals with the support to be received at the conclusion of the divorce going forward, and temporary support, designed to maintain the status quo (as much as possible) during the divorce

      Temporary Spousal Support
      A spouse may have the right to receive temporary support during the dissolution process for the purpose of assisting that spouse with their financial obligations.  Immediately obtaining a temporary spousal support order may be necessary to secure financial security for a spouse who was dependent on the income of the other party.  Calculations of temporary spousal support are generally based upon the needs of the supported party and the ability of the supporting party to pay.  Prior to a judgment for dissolution, calculations for temporary spousal support are similar to calculations for child support and use a judicially recognized “guideline” calculated by a program.

      Permanent Spousal Support
      Permanent spousal support, or support ordered after a judgment for dissolution has been entered, is calculated by a careful consideration of a long list of factors under Family Code section 4320.  Such factors include the respective incomes of each spouse, the length of the marriage, ability of a party to pay, the standard of living during the marriage, the assets and debts of each party and whether there has been any domestic violence.  Permanent spousal support is generally payable for duration of half the length of the marriage, except in cases of a marriage of a long duration, or over 10 years, where the court may reserve jurisdiction over the termination of spousal support.  When calculating permanent spousal support it is important to evaluate the specific factors of the Family Code and also to consider the unique facts applicable to the individual’s case.  For example, the supported spouse may require retraining or education, one of the parties may have paid for one spouse to go to school and obtain additional professional skills, the supported spouse may previously had job skills and is that supported spousal maximizing their earning potential.

      Modifications for Support Order
      Unlike property division orders, an order for spousal support may be modified upon a determination of necessity.  On motion for modification of spousal support, a judge will consider changes in circumstances, such as unemployment or disability.

      When you are going through a dissolution that involves temporary spousal support and permanent spousal support in particular it is important to have an experienced family law attorney because a negative result may not be modifiable and may a long-term financial impact.

      Legal updates brought to you by the experienced attorneys of the Orange and RiversideCounty Family Law firm of Don Ho, LLP.

      Other Resources

      L.A. Dodger Owners Agree to Divorce Settlement

      Early last week, the feuding co-owners of the Los Angeles Dodgers came to an agreement regarding the division of their assets, including the iconic baseball team.  Under the proposed agreement, Frank McCourt would receive an advance of several hundred million dollars to pay off current debts and a sizeable lump-sum payment to his soon-to-be ex-wife, Jamie McCourt

      Unfortunately for the McCourts, the Commissioner of Major League Baseball, Bud Selig, did not approve of the new television deal from Fox Sports that would have financed the entire agreement.  Citing the broad power of the Commissioner’s Office, Selig stated, “[The proposed TV deal was] structured to facilitate the further diversion of Dodgers assets for the personal needs of Mr. McCourt…[such a diversion] would have the effect of mortgaging the future of the franchise to the long-term detriment of the club and its fans.”

      This week, as a last-ditch effort to maintain control of the team, Frank McCourt filed for Chapter 11 bankruptcy protection for the ballclub.

      This case is just the latest example of what can happen to a professional sports franchise when ownership of the franchise is shared between a husband and wife.  The biggest issues in this case are the division of marital property for an equitable division of the assets.  For most couples facing this situation, the biggest obstacle to a successful division of assets is figuring out how and what to divide – Does one party want to sell the marital residence?  What if there are minor children involved?  Do you want to keep the kids in a home they are familiar with?

      Several of the issues that have arisen in this case are prevalent in the majority of California divorce matters, albeit on a larger scale than most cases.  If you are thinking about divorce or have recently been served with a Petition for Dissolution, call the Orange County family law firm of Don Ho, LLP to receive a referral for an experienced family law attorney.

      All factual information provided by the Los Angeles Times

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