My husband is a freelance designer and owns his own design business (there are no other associates working for the company). He has been a freelancer for the majority of our marriage. We are preparing to separate and he has moved all income into ...
There are a number of general principles that apply to your question. These general principles do not replace legal advice based on the specifics of your case - you really should speak with a lawyer directly to provide legal advice upon which you can rely.
The standard temporary restraining orders that prohibit transfers of assets without a court order or written agreement between the parties are binding on the petitioner when that person files and on the respondent when they are served or file the response (whichever happens first). Without this, either spouse can act freely without violating any restraining orders.
There are two aspects to the business: the business as an asset, and the income from the business for purposes of support. Again, until the divorce is filed and served, there is not much that can be done. Once the divorce is started (filing and service), you can make a request for support (if warranted) which will preserve the ability to request it retroactively AND will require the disclosure of all income. If there is a value to the business itself (could be sold, owns assets, good will, etc), you can request a business valuation and determine how much of the business is community property. For a freelance designer, there may not be much of a value to the business, beyond assets. But if he has some big accounts, or a staff, or owns a large design company, that may be a different story. Determining the community interest in the business depends on a number of factors, including when the business was started, at what point the profits increased/decreased during the marriage, any separate property contributions to the creation/growth of the business, and so on. Business valuations tend to be quite expensive, with a streamlined analysis typically costing between $2,500 and $3,500 and full analysis costing over $15,000-$150,000+, depending on the type of business.
In a divorce, financial disclosures are required: everything each party owns (together and separate), owes, spends, and earns. Whether you have access to the accounts or not, the disclosures MUST be made. Failure to disclose can result in serious consequences, including loss of the asset itself and monetary penalties.
I strongly encourage you to seek your own lawyer and get the divorce filed and served right away to avoid further transfer of assets. I hope this information is helpful to you. Best of luck.See question
He is hiding how much money he has by claiming all the money he's been using by wealthy family members (aka Business Affiliates) is irregular and loans. Also, he's laundering money via their accounts, but now he got himself a new attorney for some...
You really need to speak with a lawyer to assist you directly - this is not the forum to handle such a situation. In general, however, understand that even when the court grants "exclusive use" of an asset does not mean that the asset has been granted as yours. Also, again speaking generally, a debt incurred by one party after date of separation is that party's separate property. If that debt impacts a community asset, the court can offset the division of assets or order one party to reimburse the community. Attorney's fees are treated differently, so you would have to consider each of your incomes and ability to pay for your own lawyers.
Finally, again speaking generally, unless you reach an agreement with your spouse to designate jointly owned real property to one party, the court will order the sale of the property. In your settlement discussions, if you are able to have any (sounds unlikely in your case), you may propose that you get the property, and reduce any buy out of his equity interest (amount you would owe him, if any, by keeping an asset that has equity) by the amount that he owes, or offset it with some other asset
I know that this may not be the reply you are seeking. It is really sad that you are stuck dealing.with what appears to be a very high conflict person. I would encourage you to speak with someone who has experience in high conflict matters to assist you in managing the legal and financial impacts that such a situation can have. Bill Eddy has some great information available online.
Hoping this is helpful to you. Good luck.See question
I have only been married since 06/21/2014 and my spouse had plans to enter the work force in the nursing field. She has not done anything since I married her. We have had issues soon after getting married and I shouldn't have waited this long. ...
The filing fees in Orange county are $435 for the petition and $435 for a response (if one is filed). Legal fees will depend on the level of conflict and the complexity of the issues.
IF you qualify for summary dissolution, this does tend to be the least expensive way to go. This does, in part, require that neither of you request spousal support.
If you do not qualify for summary dissolution, AND you are both in agreement on all items, you can retain a lawyer on a limited scope, to act as a neutral to prepare your documents. Many lawyers do this on a flat fee basis that usually does not exceed $3,000.
If you do not have agreements, you can work with a mediator (good option if you are both able to negotiate on your own behalf), a team of mediators (working with a neutral legal mediator and a financial mediator and/or a communications mediator), or a collaborative team (good option when you want to negotiate outside of the contested process AND each have a lawyer guiding and advising you, as well as a financial professional and a communications coach helping manage not only the communications but also the emotions). Mediation tends to be the least expensive of the attorney-assisted processes, IF IT IS A GOOD FIT FOR YOU AND YOUR SITUATION.
If you are not able to reach agreements in an out of court process (mediation or collaborative process), or one or both of you are not willing to participate in such a process, you always have the option of litigating (fighting in court). This does tend to be the most expensive in terms of money, time, and stress. Sadly, if one spouse refuses to cooperate, it may be your only option, at least at the outset.
I would strongly recommend that you seek a consult or an orientation to get acquainted with the different options available with the lawyer of your choosing. If you are considering mediation, you may want to talk to that professional together.
I hope this information is helpful to you.See question
My husband had an affair for 9 months, during most of my pregnancy and our baby's NICU stay, and after the baby came home. I found out and wanted to try to work through it. He gave me two months, and then left for the other woman. Our relations...
This is an extremely complicated and sensitive area of family law. You are asking to remove a child from his/her parent. As harsh is this may sound, your relationship with your child's father is not the equivalent of your child's relationship with his or her father. The troubles you have had, the pain you have experienced, and his decision to be with another person have no bearing on whether or not the court should allow you to move to another state, thereby depriving this child of frequent and continuous contact with his/her father.
There are a couple of ways to do a "move away" order: by agreement with the father or by contested court hearing. You can speak with your husband and see if he will agree to the move away, ether by making you the "primary" parent in a parenting plan (custody and visitation agreement), by giving you sole legal custody, or by simply agreeing that the child will live with you, with no designation of "primary" or sole legal custody. As the primary parent or sole legal custodian of the child, you decide where the child will live. Normally, in a request for a move away, the parent making the request must show that it is in the child's best interest to move, given that the child will have less contact with the other parent - better financial opportunities, better access to health care, better access to family and a support system. If you are the "primary" parent, the burden shifts to the parent who is requesting that the child stay. As sole legal custodian, you make the decision and the other parent has an uphill battle that will likely be lost. Simply agreeing without any such designation carries the risk that he may later change his mind. If much time has passed, the court's will likely not disrupt the child. But if he does so shortly after the move, there is no such certainty.
You really should speak with a lawyer directly about this. Obviously, the more cooperative the father is, the easier it will be for you to move away with your child. If, however, he contests the move away, you will need to be ready to present evidence as to why it is better for the child, given that s/he will not have frequent and continuous contact with his/her father.
I hope this information is helpful to you. Good luck.See question
As soon as my 30 days for divorce response were up..my husband filed for default divorce. I sent in my response on the 29th day..however it actually got filed in court by the 31st day. Husband filed default a day before receiving my response. Wh...
Ask your husband or his counsel to agree to set aside the default. If they refuse, you will have to file a motion to set aside the default, but you must do so soon - do not wait. If you request the set aside within 6 months of the default having been entered, the judge will grant your motion. If your spouse or his lawyer refused to agree to set said the default, and if you have incurred legal fees having to bring a motion to set aside the default, the court will grant you fees. It is a waste of court time to fight over such things. The courts do not appreciate it. But do not let your husband or his lawyer delay "negotiation" of setting aside the default. Your motion must be brought timely. And be sure to keep record of your WRITTEN request to stipulate to set aside the default, and your spouse's (or your spouse's lawyer's) written refusal so that you can show the court that you took the proper steps.
I hope this is helpful to you. Good luck.See question
I've been medically diagnosed with severe depression years ago & will be reapplying for SOCIAL SECURITY
Spousal support, in California, tends to be the least predictable and most litigated (fought over) issue in a divorce. There are two types of spousal support: temporary and permanent. "Temporary" simply means that issued while your divorce is in process. You can only get retroactive spousal support to the first time you formally request it. You will have to show that there is a need for it and that the other party has the ability to pay it. "Permanent" means that which the orders at the end of your divorce case. In ordering this support, the court is required to consider California Family Code section 4320. These factors include ability to earn, ability to pay, history during the marriage, age, health, how assets and debts are divided, and whatever the judge deems just and equitable. It is this last factor that makes it difficult to determine some of the critical concerns regarding spousal support: will there be an award and, if so, how much, for how long, and is it modifiable.
The fact that you have been living apart for so long will play in to the extent that have or have not received support from your spouse during that time - is there a history of financial independence and ability to support yourself. The court will also consider what the history was during the marriage (higher income earner, stay at home parent) and how long you were married. Spousal support will be limited based on the marital standard of living. Spousal support can be terminated at a certain point if you were married (before separation) for less than 10 years.
I would strongly suggest that you speak with a lawyer who can assess your situation directly. This can be a very emotional and challenging topic in a divorce. It is important that you have a clear understanding and a realistic expectation going into this process.
I hope this is helpful to you.See question
Me and my partner got our domestic partner license in June 2013. my partner added my name to the title of the house on March 5 2015 and we got married on March 11 2015. Some people say I am only entitled to the appreciated value of the house since...
Unless there is an allegation of "undue influence", you acquired an interest in the house when your name was added to the title. However, any separate property down payment/contribution would remain separate property and your spouse would be entitled to reimbursement. If your spouse made a claim of "undue influence", meaning he claims that he did not understand he was transferring interest of the property to you or did so under duress (learning disability, coercion, threat...), the burden would then shift to you to prove by a preponderance of the evidence that he did know what he was doing and did so willingly.
I hope this information is helpful to you.See question
I'm a stay at home mom of two toddlers. I don't have money or a place to move to in order to leave. What are the steps to talking to some one to get help with coming up with a plan to divorce and child support?
There are many unknowns that can impact your situation. I would recommend speaking with an experienced family law lawyer. Many offer free or low charge consultations/orientations. If you have access to joint funds (credit cards, bank accounts, lines of credit/equity), the law does allow you to tap into those accounts (not more than half of the balance) to secure your family law lawyer. In addition, if your spouse earns an income, there is a legal requirement that the higher income earner provide for his/her children, and possibly his/her spouse in the form of child and spousal support.
If neither of you has any income, there are some local shelters for families in divorce transitions, but I'm afraid the wait list may be challenging. If you have any friends or family, now is the time to call in those favors. This will need to be temporary since not having a place to stay with your children, or adequate living conditions for your children can impact the orders the judge makes as to custody and visitation. The court could, very well, order that you stay in the home and your spouse move out - depending on the circumstances. Or you could both create such an agreement.
The best thing you can do, right now, is speak directly with a lawyer to assess your situation. If you are able to resolve in an out of court process, if it is safe to do so, you may want to see if your spouse will cooperate so as to keep the focus on your children. A contested divorce can get very nasty very fast. But without more information (that you should give to a lawyer directly since this is a public forum), it is difficult to give you more specific direction.
Call a lawyer, or several, and get a feel for the work that they do and who they are. The lawyer can assess your situation and give you a realistic idea of the next steps and what to expect.
Good luck.See question
in a case where there is notary signed agreement between parties, is it still necessary to file a response? Is it quicker/more efficient to respond or wait, if the response documents is basically the same as the original document
If a response is not filed within 30 days of the respondent having been properly served, you can file a request to enter default, or you can file a signed judgment, and the required judicial council forms, and proceed as a default with an agreement. If you proceed without the agreement, your default judgment is subject to being set aside, and the case reopened, if the respondent requests this of the court within 6 months from the date of the default judgment. If you proceed with a default with an agreement, you have a binding, enforceable order and do not have to worry about the respondent attempting to reopen the case or set the judgment aside, unless there is a showing fraud, lack of capacity, undue influence, or other such circumstance that would make the signed agreement invalid or voidable.
If you have minor children, or a spousal support order, you may also run into the problem of later changes that need to be made to your current agreements. If you have not already paid the second filing fee (response fee) - meaning that you proceeded by default (with or without an agreement), and something changes in the future that requires a post-judgment modification (children move in with the other parent, party receiving spousal support is now making a lot more money on their own), when you go to make the change or request a change of orders (by agreement or court hearing), you will be required to pay the then current second filing fee; and history shows that it only increases as the years go by.
Either way, if you file a response or not, the fastest you can be divorced in California is 6 months and 1 day from the date the respondent was properly served. Even if you reach agreements and file those agreements within 3 months of serving the respondent, you will still be married until the 6 month period is up (the court calculates this out for you on your judgment forms). If it takes you longer to reach those agreements (1 or 2 years), the court usually declares you divorced as of the date the judge signs the judgment.
I hope this helps clear things up for you. Good luck.See question
we lived together till a month ago. but when he filed separated from early in February.
What is the goal to be achieve here? If you are both looking at the date of separation to determine how to divide assets and/or debts, or to establish how long spousal support will be paid, you are in for a long and expensive legal battle. My colleagues are correct that recently the court reaffirmed a prior case ruling that "separate and apart" means no longer living under the same roof. The recent case, Marriage of Davis, involved a divorce battle and appeal that lasted more than 4 years! In that case, they were approximately 2 years apart on the date of separation. What happened during those two years? The higher income earner lost his job, and the lower income earner got a new, higher paying job. That person did not want to pay spousal support. They shared a residence (separate bedrooms) all the way through 2 years into the divorce battle. The, now, higher income earner, wanted reimbursement for payments made on the mortgage and other community obligations, dating back to the earlier date of separation alleged. This is a very expensive way to divorce.
If you are able to reach agreements on all financial items, the date of separation really doesn't matter. It is only when you are battling for some advantage that the date of separation becomes a hot issue.
I hope this is helpful to you. Good luck.See question