Dissolution of Marriage – Part 4

DivorceThe Wilson Law Firm, A Professional Corporation, has been helping people through divorce proceedings for over 40 years.

This is the last of four installments about how divorce proceedings work in California.  The information shared in these blogs should not be construed as legal advice, but if you are contemplating divorce, it should provide you with a road map.

When is the Divorce Final?

Under California Law, the earliest that your divorce can be finalized is 6 months and 1 day after the petition for the Dissolution of Marriage was served on the opposing party or the opposing party formally appeared in the proceeding, whichever is first., Your marriage, however, is not automatically dissolved on that day.   Many divorce proceedings, especially marriages of longer duration, those that involve children, and those that involve family businesses or other complex property division questions, can last well over a year.  Your divorce is officially final once the court enters the divorce judgment.  At that point, the court clerk will notify you by mailing a Notice of Entry of Judgment each party in the divorce.  The date that the judgment was entered will be stamped in the upper right corner of the judgment.

Once your divorce is final, you are legally single again and can remarry when and if you choose to do so.  You will want to keep a copy of the filed divorce judgment in a safe place where you keep all your important documents.

Yet, even though the marriage is officially terminated, you may still need to have interaction with your former spouse, and your legal proceedings may not be over.  If either party is required to pay spousal support or child support and fails to do so, you may need to file a lawsuit.  If one party claims responsibility for community property debts, but then fails to pay them, the creditors may come after the other party, and you may need to employ legal means to resolve the situation.  If children are involved, then there may be future custody hearings to determine what is in their best interest as the personal conditions of each party change over time. There may be hearing so modify child support or spousal support, or hearings to terminate spousal support.

In short, divorce is often a messy legal matter that can require legal action for many years.  It is in your best interest to work with an experienced family law attorney who can help create a legal plan that will protect your best interests.  If you are going through a divorce or contemplating doing so, please contact The Wilson Law Firm, A Professional Corporation, today for your initial consultation. We will help you put the pieces of your life back together.

Dissolution of Marriage – Part 3

DivorceThe Wilson Law Firm, A Professional Corporation has been helping people through divorce proceedings for over 40 years.

This is the third of four installments about how divorce proceedings work in California.  The information shared in these blogs should not be construed as legal advice, but if you are contemplating divorce, it should provide you with a roadmap.

During the Dissolution of Marriage Proceeding

Once the Petition for Dissolution of Marriage has been filed with the court and served on the opposing party, a number of steps have to occur before the divorce is final. At the outset, either party may request a hearing to establish certain temporary court orders.  A judge may issue temporary orders to resolve conflicts regarding child custody, visitation, support, restraining orders, and control or use of property for the time the proceeding is before the court.  Once your divorce is final, these issues will be resolved on a more permanent basis in your divorce judgment, although custody and support issues may go on for many years after the entry of the judgment of dissolution.

California is a community property state.  To determine what property the parties have an interest in, what property and debt is community property or community debt, and what property is separate property, both parties will be required to exchange Preliminary Disclosure Declarations and Final Disclosure Declarations.  In these documents, the parties disclose the income they make, their ongoing expenses, their separate assets, their separate debts, what community property they know about, and what community debts they know about. If these disclosures are not adequate or if either party has additional questions, then interrogatories can be issued, depositions can be taken, and documents can be subpoenaed to ensure full and fair disclosure of all financial issues. The parties may waive the Final Disclosure Declaration, under certain circumstances, but they may not waive the Preliminary Disclosure Declaration. Once the marital assets and debts have been ascertained, the court can then properly characterize and award them to the parties.

Another main issue to be resolved during this time involves children.  If the parties had children during the marriage, then child custody and child support issues will also be discussed and resolved. To determine the child custody arrangement, the court will look at what is in the best interests of the children involved.  The court presumes that it is in the best interest of the children to have ongoing relationships with both parents unless there is evidence to the contrary.

To determine child support obligations, the court will look at the income of each party and how much time the children will be spending with that party.  Both parties are required to financially support the children.  In determining the child support amounts, the state has specific guidelines that it follows, unless there is a compelling reason to do otherwise.

If you are going through a divorce or contemplating doing so, please contact The Wilson Law Firm, A Professional Corporation, today for your initial consultation.

Dissolution of Marriage – Part 2

divorce attorney California

The Wilson Law Firm, A Professional Corporation has been helping people through divorce proceedings for over 40 years.

This is the second of four installments about how divorce proceedings work in California.  The information shared in these blogs should not be construed as legal advice, but if you are contemplating divorce, it should provide you with a roadmap.

Preparing for the Dissolution of Marriage Proceeding

The filing of documents in the divorce proceeding should set forth some key facts including:

  • The date of the marriage
  • The date of separation
  • The number of years from marriage to separation
  • The number of children of the marriage, if any
  • The age and birth date of each minor child of the marriage, if any
  • The separate property, if any, and to whom it should be awarded
  • The community property and community debts

 

The parties must use forms prepared by the California Judicial Council.  The petition has places to provide the information that is required.

 

The date of separation is a key element and should not be overlooked. As we have noted in previous blog posts, California is a community property state.  Any property acquired by a couple during the time that they are married (unless it is by gift or inheritance) is considered community property and will typically be divided evenly during the dissolution of marriage, unless there is a prenuptial agreement or other settlement that indicates otherwise.  Any property acquired by either party before marriage, after the date of separation, or by gift or inheritance is the sole and separate property of that party, so it is important that the exact date of separation be documented accurately to properly characterize property and to avoid excessive litigation.

If you are going through a divorce or contemplating doing so, please contact The Wilson Law Firm, A Professional Corporation, today for your initial consultation.

Dissolution of Marriage in California – Part 1

Divorce

When two people get married, they never do so with the intent to eventually get divorced.  Even with the best of intentions, however, divorce is frequently the result.  In fact, recent statistics suggest that just over 40% of all marriages will end in divorce.

When a couple gets divorced, the proceedings can be very complex, especially when the couple was married for a long time or had children together. Because of the complexity of divorce, you should always seek the counsel of an experienced family law attorney to help you through the process and ensure that your rights are protected.  The Wilson Law Firm, A Professional Corporation has been helping people through divorce proceedings for over 40 years.

This is the first of four installments about how divorce proceedings work in California.  The information shared in these blogs should not be construed as legal advice, but if you are contemplating divorce, it should provide you with a roadmap.

Initiating Divorce

The first thing to keep in mind is that California is a “no-fault” divorce state.  This means that the party who files for divorce does not have to prove that the other party did anything wrong (e.g. committed adultery, abandoned them, etc.).  The party filing for divorce can simply state that “irreconcilable differences” exist.  Irreconcilable differences exist when one party indicates that the party can no longer get along with the other party and does not want to be married any longer.

A divorce proceeding is initiated when one of the two parties files a Petition for Dissolution of Marriage with the Superior Court in the county in which they reside.  According to California Family Code §2320(a), you must be a resident of the state of California for at least six months, and a resident of the county where the dissolution of marriage papers were filed for at least 3 months before a divorce can be granted.  If you do not meet the residency requirements, you may want to discuss with your attorney the option of filing for a legal separation prior to seeking a divorce.

If you are going through a divorce or contemplating doing so, please contact The Wilson Law Firm, A Professional Corporation, today for an initial consultation.

 

What is community property?

community propertyWe have mentioned in previous blog posts that custody issues are often the most contentiously contested issues in a divorce proceeding.  Not far behind on the acrimony scale are issues involving the division of property.  You have probably heard that California is a community property state, yet you may not understand exactly what that means or how that affects you.  While community property becomes increasingly important for those involved in divorce proceedings, the law of community property affects all citizens of the state and a general knowledge of what it is and how it impacts your life can help you make effective planning decisions.

The law of community property generally means that all assets acquired by a married couple during the marriage are owned equally by the husband and wife regardless of how it’s titled (unless it’s acquired by gift or inheritance), and all debts are incurred equally. Assets that were owned by either of the spouses prior to the marriage or those that were acquired during the marriage through gift or inheritance are deemed separate property. There are 11 community property states, most of them in the western half of the U.S.

Community property states are contrasted with “separate property” states where spouses can show their proportionate ownership of property by tracing where contributions came from and any property that is titled in one spouse’s individual name is presumed to be that spouse’s own separate property.

Issues regarding the division of property during a divorce proceeding can be very complex in California.  If you are currently going through a divorce, please contact the Wilson Law Firm, A Professional Corporation today for an initial consultation.

 

Challenging A Trust

Tough

September, 3, 2013

When a new successor trustee is appointed to administer a trust, that person has 60 days from the date of appointment to notify all interested parties, including beneficiaries, of the change.  Under California law, once an interested party has been properly notified, they have no more than 120 days to contest the trust.  If they do not bring suit within those 120 days, they forfeit the opportunity to bring suit.

A beneficiary or other interested party may challenge the trust for a number of valid reasons.  The most common grounds for challenging a trust include: lack of capacity, undue influence, and fraud.

In order for a trust to be binding, the settlor, or person who created the trust must have been of sound mental capacity at the time the trust was established.  This can be especially problematic for elderly people who suffer from mental illness or other debilitating ailments.

Another reason for challenging a trust is when undue influence was exercised in order to induce the settlor to establish or modify the trust.  Undue influence is the allegation that the settlor was pressured or coerced into establishing or modifying the trust to benefit a certain party.

A trust can also be invalidated if fraud was involved in its creation.  For example, it would be fraud if the settlor was told to sign a document, not knowing that he was creating a trust by doing so.  The sad truth is that the elderly are often susceptible to these types of tactics.

Please be aware that many trust documents contain a “no-contest” clause stating that anyone who challenges the trust loses their interest in the trust.  Yet, if you have legitimate grounds for challenging and invalidating a trust, you should pursue your claim.  To help you determine if you have grounds for challenging a trust, please contact The Wilson Law Firm, A Professional Corporation.

 

Automobile Accidents with Teenage Drivers

 

Traffic

September 2, 2013

Many of us have heard that teenage drivers present a higher risk to cause automobile accidents than other drivers. Yet, is that statement really true or just an old wives tale used to scare teenagers into driving more responsibly? Statistics posted on the California Department of Motor Vehicles’ (DMV) website reveal that teenage drivers really do present a greater danger to cause accidents.

The DMV’s website has a portion of their website dedicated to notifying the public of the increased dangers that teenage drivers pose.  The website notes that teenage drivers, those between the ages of 16-19, are 2.7 times more likely to be involved in an automobile accident than drivers of all ages.  Even more alarming, the accident rate for 16 year-old drivers is even higher, as they are 3.7 times more likely to be involved in a crash. That incident rate gradually decreases with each year of driving.

In addition to reporting the accident statistics, the DMV’s website also discusses the major factors that contribute to the increased incidence of automobile accidents among teenagers.  The leading factors include:

  • Poor hazard detection
  • Low risk perception
  • Risk Taking
  • Not wearing seat belts
  • Lack of skill
  • Alcohol and drugs
  • Carrying passengers
  • Night driving

Although not specifically noted as one of the leading factors on the website, texting while driving is also a major concern among teenage drivers and continues to contribute to a rise in accidents among that age demographic. If you have been involved in an automobile accident involving a teenage driver, please contact the Wilson Law Firm, A Professional Corporation today for your initial consultation.

 

Loan Modification Services: Just Bill Me Later

Money2

September 1, 2013

In a previous blog post, we discussed a fraudulent real estate scheme that sought to defraud lenders.  Illegal real estate practices continue to filter through the media.  A recent article about the disbarment of a California attorney highlights another prevalent real estate practice that, while not considered fraud, is certainly illegal.

A southern California attorney was recently disbarred for illegally accepting advance mortgage modification fees from clients.  The thoughtful observer may ask why that is a crime.  After all, most attorneys are paid for their services up front.

The problem with accepting advance mortgage modification fees from clients is that it was specifically outlawed in 2009.  At the height of the mortgage crisis, when real estate fraud was rampant, a number of attorneys and others involved in real estate created schemes to bilk gullible homeowners and investors by promising them that they would take care of the modifying their home loan in exchange for a fee.  Once the fee was paid, however, the attorneys would fail to complete the loan modification.

The problem became so bad that in 2009, then Governor Schwarzeneggar, signed into law SB 94 that prohibited attorneys from accepting advance fees to perform loan modifications.   The law also required attorneys to notify prospective clients that they did not need to pay a fee for loan modification services at all as the Department of Housing and Urban Development maintained a list of non-profit organizations who performed the same service at no cost.

The recent disbarment of the attorney in Southern California just goes to show that illegal real estate practices still exist years after the mortgage crisis hit.  In you or someone you know has been a victim of illegal real estate practices, please contact the Wilson Law Firm, A Professional Corporation for an initial consultation.  We have extensive experience in real estate litigation and can help you to protect your rights.