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Michael Charles Schwerin

Michael Schwerin’s Answers

2,122 total


  • When is the earliest my divorce can be finalized based on this information from my case summary?

    12/22/2014 Notice-Acknowledgement of Receipt Filed by Petitioner 12/22/2014 Judgment-Package Received-2336 Filed by Petitioner 12/22/2014 Request-Enter Default Filed by Petitioner 12/22/2014 Decl For Deflt or Uncontested Jdgm Filed by Petit...

    Michael’s Answer

    The most important question is what was the date the other person was served. The earliest you can be divorced is 6 months and one day, from that date. But, that assumes everything else was done correctly and that is not the case. As the other attorney pointed out, it is impossible to have filed you case on 11/26/14 and then filed a Request for Entry of Default less than 30 days later. Even if the other side was served on 11/26/14, the date of filing, 30 days have not passed. So, expect your papers to be rejected and need correction.

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  • Does parent 1 have to help pay for extra expenses if he is already paying 500 mo for child support?

    (parent 1 has 43% custody)(parent 2 has 57% custody) Parent 1 has full time job parent 2 is getting paid under the table . Has not been reporting wages for about 3 years

    Michael’s Answer

    Child support is calculated based on the gross incomes of each party. Additional expenses (day care, activities, medical) are in addition to child support and may be ordered to be paid equally regardless of the incomes of the parties. The judge also has the discretion to allocate those expenses on a pro-rated basis based on gross incomes. If the other persons income is higher than they are reporting, you have to take steps to prove that. Just saying they are making more money does not make it true. Talk to a lawyer about how to make your case.

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  • In California if me and my spouse are to divorce, who gets the home?

    It is my understanding that if my spouse owned a home before we got married then he would keep the home. But it then is my understanding that if he purchased the home while we were engaged and I helped with the down payment and then since we got m...

    Michael’s Answer

    You are wrong in both of your comments. Who owns what depends on a number of factors. How title was taken on the home, the source of the funds to buy the home, the source of the funds to make the monthly payments, was there any refinancing, did the title change, the date of marriage, the date of separation, the value of the house at time of purchase, date of marriage, date of separation and date of division (trial). There are many factors to determine what may or may not be your share. You need to sit down with an experienced family law attorney for a consultation, go through the facts, have the above numbers or at least a good estimate of those numbers, then then the attorney may be able to help you estimate your interest or your share.

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  • I got married in church but there was a defect which renders my marriage void from religious perspective. FAM CODE 2210-2212?

    When I get married in a church through religious and civil ceremony but there is a defect in a marriage ceremony which renders marriage invalid , is it a separate ground for nulity under state law? It is not listed in the family code but is counte...

    Michael’s Answer

    If you have a valid civil wedding you are married. The religious ceremony is irrelevant.

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  • Does DCSS use actual average incomes or current monthly wages for child support modification

    One party was unemployed half the time in the previous twelve months, and the other party had bonus and capital gains income, but now both are working with a constant monthly salary how can child support court be persuaded to take average annua...

    Michael’s Answer

    Sorry but that is not the way it works. Child support is based on current monthly income. If someone was employed for only 1/2 the year and income was averaged, their income would only be half of what it should be in the support calculation. That is not appropriate. Bonus and/or capital gains income is treated differently and not included in base support calculations.

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  • How can I reverse the child tax exemption ruling in the judgment?

    Got divorced 3 years ago, went to trial for custody issues. In the judgment after the custody trial, it was clearly spelled out that "The mother(my ex)gets to claim the child tax exemption starting the year of 2013." I asked the judge then at the...

    Michael’s Answer

    You may want to have a consultation with an experienced family law attorney on this issue. If you ask for the tax exemption for your child and you are the one paying child support, your child support will likely go up. The judgment stands unless you file a motion to modify it. You need to determine if it is appropriate to file that motion. Why would you want to file a motion to increase the support you pay?

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  • Divorce if it happen property settelment question.

    my home was worth $550 in 2004. it is worth $450 K today. i had roommates that paid $50K of it in the last 10 years. i married in 2004 and now he will divorce me if i dont do a post nup with him. he wants me to agree to not touching his 401k, whic...

    Michael’s Answer

    What you really need to do is go see an experienced family law attorney face to face for a consultation. You need to educate yourself on the law. You are not asking the right questions. Do not sign any agreement until you meet with a lawyer and learn your rights.

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  • Am I in contempt of the court if my ex husband over pay me for spousal support.even there is no motion and order.

    Even if there is no motion and order from the jugde.

    Michael’s Answer

    Only a judge can find some in contempt of court in a hearing. To be in contempt of court means there is a court order you have violated. If you have not violated an order, you are not in contempt of court. If you received an overpayment of support, that does not make you in contempt of a court order. If there is an order requiring you to repay it, and you do not do so, then you may be found in contempt of court. But, until a judge orders that you have violated a court order, you are not in contempt of court.

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  • My ex-wife is not happy with what our mediator says is fair. She now wants her own lawyer. What is fair? Do I need lawyer too?

    We have already agreed on: All Assets. (Stock, cash, sold the house, divided furnishings, 401K, etc). The only sticking points are: 1) Long term spousal support 2) Child support. She has worked for entire marriage (17 years), but took a lo...

    Michael’s Answer

    Your questions are good ones as you have a complicated situation. What you really need to do is sit down with an experienced family law attorney for a consultation on your situation. You have a lot of options or positions you can take on these issues and you need to choose wisely. What happens now will affect you for a long time into the future so it is best you are fully informed and educated on the law before you take a position or reach an agreement. So the basis answer to your question is yes, you do need to at least have a consultation with an attorney. If, after that you you feel you can represent yourself, then do so. If not, hire an attorney. First step, educate yourself.

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  • My spouse wants to give up child rights if i still stay married to her. Is this possible if i agree to her terms.

    She is willing to give me all the rights to property and make me primary caretaker if i stay married to her. So i dont know if this kind of agreement will hold up in court if later she decides to file for divorce. Would a judge have to sign this a...

    Michael’s Answer

    No. This is not a legal agreement.

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