Category Archives: divorce

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What Is Spousal Support?

The phrase ‘spousal support’ basically refers to alimony. It is a fixed payment given to a spouse on a monthly basis after a divorce has been finalized. Why is spousal support necessary? Spousal support helps ensure that the dependent spouse is in a position to enjoy a decent quality of life, one that they have gotten used to during the period of their marriage.

 

It is critical for both spouses to be aware of their rights and obligations with respect to spousal support before the divorce papers are filed. Each partner must know important details such as the exact amount of support to be offered and the duration for which it will be paid. This information will help both spouses be prepared for what is to come.

 

Calculation Of Spousal Support In California

As mentioned earlier, the court orders for spousal support typically instruct one spouse to make a fixed monthly payment to the other for a certain period of time. The time period for spousal support is usually determined on the basis of the duration of which the couple was married and some other relevant factors. An experienced divorce attorney can guide couples with regards to calculation of the alimony money.

 

When the court is determining alimony, it would usually consider the income of the spouse who has received higher earnings as income in the last 12 months. Spousal support is meant for preserving the existing lifestyle and financial situation of a spouse as best as possible.

 

As far as the calculation of spousal support in California is concerned, the Solano Superior Courts follow the “Santa Clara Guideline” for temporary spousal support. LA, Ventura and Santa Barbara also follow the same guideline. The “Alameda Guideline” formula is followed by the Contra Costa and Alameda counties. According to the guideline, the support paid by a spouse should be approximately 40 percent of their total monthly income. This will be divided by half of the total monthly income earned by the receiving partner. In cases where child support is involved, the calculation of spousal support is done after the calculation of child support.

 

Time Duration For Spousal Support In California

Even though spousal support is offered for helping the lower income earning spouse, there are various ways in which it can be misused. Also, there is a common misconception regarding the permanency of spousal support. For those who are involved in a divorce litigation including spousal support, it is vital to have all the necessary information regarding issues which will be important in determining the support duration and amount to be paid or received.

 

In most cases, spousal support is not offered for the entire lifetime of the receiving spouse. The purpose of spousal support is to allow the partner to become independent within a realistic time period. In cases when the marriage lasted for less than 10 years, the court usually considers one-half of the marriage length as a reasonable time period for spousal support. For marriages with a duration that’s less than 10 years, alimony will be paid for half of the length of the time. For instance, if a couple was married for 8 years, then one of the spouses will be offered support for 4 years, that is, half of the marriage duration.

 

Spousal support works a bit differently for marriages that have lasted over 10 years. In such cases, the spouse providing support may continue to pay alimony to the dependent spouse until the time it is needed. The reason why there is no finite time period for spousal support in long-term marriages is because of the fact that the courts do not have a proper system for determining the same. However, this does not imply that California law is in favor of permanent spousal support.

 

 

Shulman Family Law Group

Maya Shulman, Esq.

SFLG

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Divorce in dictionary

DATE OF SEPARATION IN DIVORCE ACTIONS: THE OLDEN DAYS, PROGRESSION, AND THE CURRENT VIEW FROM THE BENCH

 

The Olden Days

“Evidence showed that there was no final parting of the ways or intention not to resume marital relations under the same roof until such time as wife refused to permit husband’s return to their home”–Legislature adopted the Civil Code in 1872.

 

Progression

“The question is whether the parties’ conduct evidences a complete and final break in the marital relationship”. Marriage of Baragry (1977)

 

“The court held that “legal separation requires not only a parting of the ways with no present intention of resuming marital relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship”. Marriage of von der Nuell (1994)

 

Current View From The Bench

In our view, the language in these cases–requiring consideration of ” all of the relevant evidence” regarding ” ‘whether the parties’ conduct evidences a complete and final break in the marital relationship’ ” (Umphrey, Baragry), requiring both a lack of “present intention of resuming marital relations … [and] conduct evidencing a complete and final break in the marital relationship” (von der Nuell), and indicating that “[a]ll factors … are to be considered” in deciding the ” ultimate question” of “whether either or both of the parties perceived the rift in their relationship as final” (Hardin)–must be understood in the context of their facts, which reflect that in each case the parties had moved into separate places of residence. These cases do not address, and therefore are not authority for a conclusion that “living separate and apart” was intended by the Legislature, originally or subsequently, to require, as wife argues, only demonstrated conduct reflecting a subjective intent to part ways with no plan of resuming the marital relationship, which might, but need not necessarily, include physical separation. (Cornejo)

 

We conclude that living in separate residences “is an indispensable threshold requirement for a finding that spouses are living separate and apart”. This interpretation of the statutory language aligns with the common under-standing of the words, the statutory history of the provision, and legitimate public policy concerns.

 

 

Shulman Family Law Group

Maya Shulman, Esq.

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SERVICE OF PROCESS ON A PARTY RESIDING IN A FOREIGN COUNTRY CAN BE A DAUNTING TASK FOR U.S. CLIENTS AND ATTORNEYS.

 

In a general scenario, a plaintiff starts a court case in the United States by lodging a complaint following which a court clerk provides a summons that demands the appearance of the defendant in the court. The complaint and the summons are typically termed as a legal ‘process’. Once the action is commenced, the plaintiff will arrange for the ‘service of process’. Service of process is crucial for establishing authority on the defendant in the case and helps ensure that he/she makes an appearance at the court proceedings.

 

The first step in filing a complaint against a person who lives abroad is to ask the court for an extension on the time period needed for serving the complaint on to the defendant.

 

According to the California Rules of Court Rule 3.110, a defendant needs to be provided with the Summons within two months after the original complaint is filed or 30 days post the filing of an altered Complaint.

 

Over 60 days are needed for serving a foreign defendant. Also, the court will sanction you in case you fail to show good cause with regards to why the foreign defendant was not served. When a defendant resides in a foreign country, it is considered to be a good cause.

 

Methods of Service in California

In California, it is possible to serve a defendant living in a foreign nation using any method listed under the California Code of Civil Procedure (amount of $415.40 for serving an individual living in a different state). Such methods would typically include substituted service, personal service, service via publication, and service via certified mail (return receipt).

 

You could also implement service through the methods allowed by the nation where service is made. This particular method can be used only if it is approved by a court in California.

 

In the first go, service of process on an individual living abroad may appear to be quite simple. But the matter could get complicated if the method of service is restricted by an international treaty. The Inter-American Convention on Letters Rogatory and the Hague Service Convention are the main applicable treaties.

 

The Hague Convention

It was in February 1969 that the Hague Convention came to be implemented for the first time in the United States. The convention offers the most common methods to serve parties in commercial or civil matters in foreign lands, that is, outside the United States. The Hague Convention has been ratified by more than 70 countries, including China, the Russian Federation, and the majority of the Western European nations.

 

Service Methods

The universally accepted service of process procedures is codified by the Hague Convention in commercial or civil matters among signatories. The service methods help eliminate the need for serving process via diplomatic or consular channels.

 

Under the Hague Convention, three key alternative methods of service are listed:

 

1. Using the official Central Authority of the state (Reference: Service through the State’s Central Authority)

 

2. Direct Service via agent in destination state (Reference: Service through an Agent in the Destination State)

 

3. Worldwide postal channels (Reference: Service through Postal Channels)

 

The Inter-American Convention on Letters Rogatory governs the ‘Letters Rogatory’ method for service. You need to send the Letters Rogatory to an official “Central Authority” in the country where the service is being attempted to get effectuated. This needs to be supported by several other documents including a copy of your complaint and information on obtaining legal aid in the US. If a nation has signed the Hague Convention, the service needs to be carried out as per the Convention rules.

 

 

Shulman Family Law Group

Maya Shulman, Esq.

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WHEN MARRIAGES END UP IN DIVORCE, MANY QUESTIONS START TO ARISE. ONE OF THE MOST IMPORTANT QUESTIONS IS TO DO WITH SPOUSAL SUPPORT OR ALIMONY. ALTHOUGH ALIMONY FIGURES IN ONLY ABOUT 10 TO 15% OF DIVORCES, UNDERSTANDING HOW THE LAW LOOKS AT SPOUSAL SUPPORT IS IMPORTANT FOR BOTH SPOUSES.

 

Who Pays The Support?

Litigations are often fought on the issue of who has to pay and how much when couples fail to reach an understanding on their own. Usually, the higher earning spouse pays the one who earns a lesser income or is not earning at all, such as stay at home moms.

 

Is The Support Permanent?

A temporary support is a short term one that is awarded until a final settlement can be made. The Family Court in California has the authority to order one spouse to pay the other, with a pending divorce.

 

The long-term spousal support is the final or permanent support that is awarded by the court.

 

A permanent support that lasts a lifetime is only in cases where one of the spouses is disabled or chronically ill and unable to earn. In all other cases, the amount of support awarded is tapered off, so as to encourage efforts of the dependent to become self-supporting. Courts usually consider half of the duration of the marriage as the time required for the supported spouse to become self-supporting.

 

 

Shulman Family Law Group

Maya Shulman, Esq.

SFLG

 

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Property Division In a California Divorce

According to the State of California, a couple seeking a divorce is allowed to lay down their own agreements and divide their property. As long as the agreement is reasonable and fair enough, courts generally accept it without questions. But if they are unable to do so, a court of law may decide for them through a judge or an arbitrator.

 

There are a few important notes you have to keep in mind while dealing with property in the case of a divorce in California. If you are aware of these points and processes, it will definitely help you in splitting property fairly and equally.

 

Community Property Or Separate Property?

Community property is any property that the couple accumulates in a joint form from the date of their marriage to the day their marriage is cut off. Unless both parties signed a written agreement saying a property is a separate property, the court presumes that it is community property. This also includes all earnings during the marriage and any property purchased using those earnings.

 

Separate property is any property that a spouse has owned before the marriage, or any gift or inheritance given specifically to one party during a marriage. It can also include any item that is bought with or exchanged for a separate property, as long as there is written proof.

 

Any property that is acquired before a divorce, but after separation is also considered a separate property. It is also possible for a couple to change a separate property into community, and vice versa. But make sure that there are written documents which clearly state the reasons and intentions of doing so.

 

Determining & Agreeing On Property Value

If a couple cannot come to an agreement on a property, the court will distribute it equally to both parties. From the total current market value of the community property or asset, subtract joint obligations of both parties involved. This will give the net community estate, which must be split equally, each spouse receiving one half. This is the procedure unless there is a special agreement made.

 

Agreement On Division Of Property

Both parties can divide properties and assets by agreeing to assign involved items to each spouse. They can also buy out or purchase the other person’s share, or agree to sell their community property and divide the money between themselves. Although less common and few desire it, a community property can be shared between two parties even after a divorce. Most couples, especially those who prefer not keep in touch, opt out of this as it requires them to continue a common financial affiliation.

If there are children involved, sometimes the parent with primary custody is allowed to live in the family home and take care of the children. If this is the case, the one who lives here usually pays the taxes, mortgage and insurance. But if he/she does not afford it and the other spouse has a significantly higher income, then they may be required to make these payments. The house can later be sold when the children can take care of themselves, unless there is another agreement.

 

Retirement & Pension Accounts

If either of the spouses acquires monetary profit whether in retirement, pension profit sharing, or any other benefit plan during the time of their marriage, then that is considered as community property.

 

Retirement benefits can be divided into two categories – defined contribution plans and defined benefit plans. On the other hand, pension plans can be divided either by reservation of jurisdiction or through a cash-out.

 

Shulman Family Law Group

Maya Shulman, Esq.

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Protection Of Parental Rights Worldwide

Families form an integral part of the society. And as unbelievable as it might sound, some of the most complex and difficult lawsuits out there essentially deal with conflicts between parents and their children. That being said, it is imperative to understand the very fabric of how a family should legally function in order to minimize disputes. And that is where parental rights come into picture.

 

As the name suggests parental rights all around the world refer to the legal rights of parents over taking important decisions and actions on the behalf of their child. In other words, the family laws in any given country dictate a few important terms that award the parents a legal right to exercise their discretion in the best interests of the child.

What Are The Different Parental Rights?

Regardless of whether they are a child’s biological parents, legal guardians, foster parents or adoptive parents, all parents typically possess the following parental rights:

 

1.  A legal right to acquire both physical and legal custody of the child

2.  A legal right to make important decisions for the treatment of an ill child

3.  A legal right to sign up contracts on the behalf of the child

4.  A Legal right to nominate the child as a legal heir form property   inheritance

5.  A legal right to child visitation in the event of a separation or divorce

 

It is important to note here that although the basic fundamental parental rights are the same worldwide, there might be subtle variations in the clauses depending upon the specific national or state laws.

The Need For Protecting Parental Rights

Active protection and preservation of parental rights are critical to minimizing parent-child conflicts and ensuring peace and harmony within families. It goes without saying that children are spiritually, mentally and emotionally closest to their parents. That being said, it is the responsibility and the right of the parents to invest their greater experience in life in preparing their kids to take on the world fearlessly and with great confidence.

 

It is the parents who essentially have the most comprehensive understanding of what is best for their children. And that is why it is their legal right to not only guide their child towards the path of virtue and success in life but also make critical decisions on the latter’s behalf when he/she is not mature enough to do so, on his/her own.

 

Studies indicate that a strong parental involvement can be extremely beneficial for the healthy development and emotional well-being of a child.

 

Here are a few reasons why protection of parental rights is equally important for the empowerment of the child as the parents:

 

1.  Parents can exercise their rights in guiding the lifestyle choices  (such as education, dietary habits) of their children and ensure that the latter grow up to be healthy and confident adults.

2.  Children who have deeply involved parents are likely to not only   secure better grades at school but also excel in their favorite   hobbies and extracurricular activities.

3.  Parents who exercise their rights in nurturing their child with  their experience and better understanding of the world are likely to have their children develop greater communication skills and be more socially competent in their adulthood.

4.  Protection and enforcement of parent rights has been found to  significantly reduce the chances of the teenage children straying  from the right path and developing addictive habits of drug or  alcohol abuse.

 

Most importantly, the protection of parental rights must be upheld worldwide to ensure that the children are able to benefit from the experience and social exposure of their parents for leading a happy and fulfilling life themselves.

 

Shulman Family Law Group

Maya Shulman, Esq.

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The term ‘child custody’ indicates the rights and duties shared by parents with regards to caring for their children. The term ‘visitation’ on the other hand refers to how both parents will meet their kids and spend time with them.

It is suggested that a couple with children, filing for divorce in California, hire an experienced and reputable child custody lawyer. The attorney can have a detailed discussion with the client and analyze their specific case by focusing on the available facts.

These typically include:

1.  the nature of the relationship between each parent and the children (till date)

2.  a comprehensive analysis of any key issues that relate to the kids’ safety, health, education and overall welfare

3.  proof of neglect or abuse

4.  an assessment of the existing status quo and planning of the future by taking into consideration the best interest of the child

Visitation Orders In California

According to the California Legislature, the state courts shall prioritize the health, welfare and safety of the children while making custody or visitation related decisions. The state also has additional public welfare policy that guarantees consistent and frequent contact between children and both parents. This law encourages both partners to share all rights and duties associated with child rearing. It is important to understand that custody decisions are not dependent on a parent’s lifestyle, marital status, sexual orientation or religious beliefs.

The state of California offers these 4 types of visitation orders:

Scheduled Visitation

According to child custody legal experts, it is a good idea for parents to create a comprehensive visitation plan in order to avoid any confusion and conflicts. This means creating a visitation schedule that has the date/time details for children to meet their parents. These types of visitation schedules generally include vacations, holidays and special occasions such as birthdays, father’s day etc.

Reasonable Visitation

Unlike scheduled visitation orders, reasonable visitation orders may not always have every single detail regarding the visits. These orders will probably be open-ended which means that parents have the liberty to work out timings and dates mutually and as per their convenience. Such plans work quite smoothly when separated spouses share a friendly relationship are comfortable communicating and being flexible with each other.

Supervised Visitation

The employment of supervised visitation is usually done in two kinds of situations. It is commonly used when the court is doubtful about the sincerity of the visiting parent and feels that they cannot be completely trusted as far as the safety of the child is concerned. The lack of trust might be because the parent has previously been charged with a sexual offense or violent crime. Other factors could also contribute to the court taking this decision.

In the second situation, there may have been an estrangement between the visiting parent and the child due to some reasons. For this reason, the two require supervised visitation, at least for a certain period of time, till they get comfortable in each other’s company.

A supervised visitation order may ultimately turn into a scheduled or reasonable visitation arrangement.

No Visitation

The option of no visitation is exercised when a visit to the parent, even under supervision, might prove to be emotionally or physically dangerous for the child. In such cases, the court decides that it is best for the children and parent to be in absolutely no contact.

Besides custody orders, judges also usually draft child support orders. Custody and child support orders are separate. Hence, a parent cannot refuse their partner from seeing the child just because they aren’t providing the child support ordered by the court.

Maya Shulman, Esq.

Shulman Family Law Group

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Restraining orders are also often referred to as “protective orders”  and can help safeguard an individual from all types of physical/sexual abuse or harassment. The individual who files for a restraining order is referred to as the “protected person” and the individual against whom the order has been filed is called the “restrained person”.

Why You May Need A Restraining Order

There is no denying the fact that a divorce has the potential to bring out the worst in people. Typically, the bad/unacceptable behavior related to a divorce not only victimizes the other partner but could also have a negative impact on the children (if any). The actions of a resentful spouse could lead to significant financial and emotional hardship. The good news is that the effects of such behavior can be minimized with the help of a TRO or temporary restraining order.

 

There are certain conditions that qualify you to get a restraining order for domestic violence. You and the individual you wish to restrain should be:

1.   Registered domestic partners or married

2.   Dating or ex-dating partners

3.   Divorce/separated

4.   In a live-in relationship or former live-in partners

5.   Parents to a child together

Types Of Restraining Orders

The California Courts provide four main kinds of restraining orders to civilians. Out of these, two are applicable to spouse-related situations. These are:

Domestic Violence Restraining Order (DVROs)

A person can request for a domestic violence restraining order in case they have suffered abuse from somebody with whom they share an intimate relationship (registered domestic  partners/married/divorced/dating/separated/live-in partner and so on). This type of restraining order can also be filed for other close relations like in-laws, parent, sister, brother, grandfather, grandmother and so on.

 

The court generally considers ‘abuse’ as physical assault, sexual abuse, serious threats of hurting someone, harassment, stalking, hitting and destructing someone’s personal life and peace. If you’re suffering any of these abuses and are afraid or feel controlled by someone (for example, ex-spouse, current spouse, ex-boyfriend, or ex-girlfriend), it might be useful to consult a counselor specializing in domestic violence in order to get a restraining order.

 

There are some key advantages of getting a domestic violence restraining order. The restrained person gets an order from the court with regards to the following:

1.  The restrained person cannot come near you or contact you or your relatives (including your children).

2.  He/she will need to shift out of the common residence.

3.  They would need to avoid your workplace and your kids’ schools besides staying away from the home.

4.  Offer child support and partner/spousal support (if domestic partners or married).

5.  Adhere to the visitation and child custody orders.

6.  Possess no weapons, such as a gun.

Automatic Temporary Restraining Orders (ATROs)

There are some states in the United States, like California, that have adopted a very practical approach to maintaining the status quo between partners from the starting of the divorce proceedings. They use ATROs or Automatic Temporary Restraining Orders that automatically become effective as soon as the couple files for a divorce in the court.

 

What can an ATRO do? An Automatic Temporary Restraining Order is aimed to deal with potentially problematic situations and actions. Such orders could have terms related to whether or not a spouse can sell off a property, make changes to life insurance beneficiaries, take out money from joint bank accounts, move the children to another state before finalization of the divorce, and so on. The terms of an ATRO are equally applicable to both partners, irrespective of who filed for the divorce.

 

Maya Shulman, Esq.

Shulman Family Law Group

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