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Gina Nicole Policastri
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Gina Policastri’s Answers

10 total

  • I have a court date already set to modify existing child support. What happens if the other (parents) do not show up?

    I have a court date already set to modify existing child support. What happens if the other (parents) do not show up?

    Gina’s Answer

    If the other parent was properly served with the motion to modify child support, the court can make orders for child support based on the evidence submitted in your motion and any live testimony you provide. If there is any question as to whether the other party was in fact served, the court may continue the matter to give you an opportunity to attempt service.

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  • Parent leaving country for four weeks leaving kids with other parent's care. Do I need to get a court order before I leave?

    I have joint physical/legal custody of my kids, 13 and 16 years old. We have been divorced for over 10 years. I want to visit my home country for my personal reasons for four weeks. My going out of city/country is incontinent to both my kids and t...

    Gina’s Answer

    As long as you have a written agreement (email will suffice if you receive an affirmative response) regarding your trip, your travel should not impact custody. Assuming you’ve had primary custody since the divorce 10 years ago (or even just for a few years), that status quo would overcome any argument by your wife that a temporary absence/vacation constituted a valid basis for modifying the order.

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  • Medical coverage for separated spouse

    Both spouses have similar income. After filing for separation can one take the other off from medical coverage through employment?

    Gina’s Answer

    As my colleague indicates, upon the filing and service of the Petition for Legal Separation (or Dissolution for that matter), certain Automatic Temporary Restraining Orders (ATROs) come into effect. One of these ATROs states that there shall be no changes to either party's medical coverage pending the litigation unless there is an agreement between the parties. Should you mutually agree to remove each other from coverage, then you should put that into a stipulation and order, which you each sign, and submit it to the court for the judge's signature and filing (note that unrepresented parties must have their signatures notarized). Once the judge signs it, it becomes a court order. Without a stipulation and order, you may have issues later on if one party changes their mind and alleges there was no agreement.

    Disclaimer: This response is based on the limited facts provided. You should consult an attorney for advice based on your specific situation. Responding to your question does not create an attorney-client relationship.

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  • My ex-husband has repeatedly violated the court-ordered visitation agreement and refused mediation, what next?

    There is a court-ordered visitation agreement as well as schedule, and my ex-husband has repeatedly and deliberately violated it. There are no repurcussions in the agreement if he messes up. He has full custody and I only have visitation. He has d...

    Gina’s Answer

    If the order is specific, you can enforce it by calling the police. However, it sounds like you still need to file a motion to modify visitation as you want to "change the custody situation" (which sounds like you want more time). In order to modify visitation, you need to show there has been a change of circumstances. Here, you might argue that the current order is not working and that you need a new schedule to ensure consisent visits. Assuming that you can show a change of circumstances (or he does not raise that issue), the filing of a motion to modify will automatically result in a referral to custody mediation.

    Disclaimer: This response is based on the limited facts provided. You should consult an attorney for advice based on your specific situation. Responding to your question does not create an attorney-client relationship..

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  • How to amend a filed petition for dissolution of marriage?

    I filed the petition for dissolution of marriage, and this is an uncontested divorce case with no property or children involved. I also filed Form 160, Declaration of Property. However, I just found out now that I missed the check box "property ri...

    Gina’s Answer

    If the other party has not responded to the petition, you can file an amended petition without leave of court (i.e., without getting permission). If the other party has responded to the petition, you will need to either get a stipulation from the other party OR file a motion seeking to amend your petition. If you already paid the first appearance fee of $355, there should not be an additional fee.

    Disclaimer: You should consult an attorney for advice regarding your specific situation, which may different than that described in your question. Responding to your question does not create an attorney-client relationship.

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  • Does ca law allow for legal seperation of financial assets without getting divorced..

    due to medical conditions..arising from am accident - looking at seperating financial assets and seperating but staying married until kids are older...

    Gina’s Answer

    Yes, you can obtain a judgment of legal separation to include division of all assets and debts. You would not be able to remarry unless and until you obtained a judgment of dissolution. However, you would still be considered a "spouse" and therefore would continue to qualify for health insurance benefits on your spouse's insurance plan and be entitled to other benefits. You should consult a family law attorney to help you reach your exact goals.

    Disclaimer: This information is not, nor is it intended to be, legal advice and does not create an attorney-client agreement.

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  • Is it against california law to not allow my childs other parent to see him if there is not a court order in place?

    about a month ago i was giving my child by the other parent on a routine visit. I have not returned the child and I left the state. Am I violating any california laws?

    Gina’s Answer

    With no order, you technically each have 100% custody of your child. However, this does not mean the other parent has no rights and if and when the other parent files for custody rights, the court will not look favorably on you and could impose very strict restrictions on your right to visitation to ensure you do not abscond with the child again. Also, there could be criminal liability for your actions. You should consult with a family law attorney immediately.

    Disclaimer: This information is not, nor is it intended to be, legal advice and does not create an attorney-client relationship.

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  • For the purposes of divorce, how does CA law assess the duration of the relationship?

    My sister is about to get divorce after seven years of marriage, but over 10 years living with her husband. They have two kids and own three properties. I know that 10 years of marriage is some type of watershed in terms of her rights in Californ...

    Gina’s Answer

    The length of marriage is defined as the time between the date of marriage and the date of separation. Ten years is significant because it is considered a "long term marriage" in California and therefore typically the duration of support is longer. In a short term marriage, the duration of support is generally 1/2 the term of the marriage, so 3.5 years on a 7 year marriage.

    Disclaimer. This information is not, nor is it intended to be, legal advice and does not create an attorney-client relationship.

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  • My ex wife is self employed and i dont think she is making what she says she is how do i get the right amount ?

    She is a daycare provider and is claiming she only watches one child but i know for a fact that she watches at least 5 different children how do i get that extra income considered in court for child support purposes.

    Gina’s Answer

    Proving the income of a self-employed spouse is very difficult as income can be easily manipulated. At the same time, spouses owe each other "fiduciary duties" when it comes to providing access to financial or other information that would be helpful in determining support issues. In order to prove that she is earning extra income, you can start by requesting her tax returns, bank statements, client list and any other information she might keep related to her day care. Your can use this information to compare it to her claimed expenses (which are listed on an Income and Expense Declaration); oftentimes expenses will significantly exceed income, creating a question as to how those expenses are covered (your argument is her income is actually higher). In addition, her monthly deposits will reflect actual income assuming she is depositing those funds in the bank (oftentimes not all cash is deposited, but then you can use expenses to show her income must be higher in order to cover those expenses). Finally, if you know these children are coming to the house, you can always hire a PI to investigate. If a pattern of daily drop offs by several parents is shown, now the burden is on her to prove these are not clients. Alternatively, you can argue to the court that she is capable of handling more children and that the opportunity exists for her take on more children and that she has failed to do so; if you can prove this, the court can "impute" income to her based on what she should be making working at her full capacity.

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  • I never got married.....lived with the guy for 6 years... 2 kids... do i need a divorce or what

    WE lived together for 6 years ...separated two weeks. two kids..... never legally married..... hes getitng jealous

    Gina’s Answer

    A divorce action is filed only when the parties were legally married. However, since you have children together, you will need to reach an agreement on custody (paternity action) and and child support, which can be done through your local child support agency. As far as assets and spousal support are concerned, because you were not married, anything accumulated during the relationship would be the property of the party who purchased it and there would be no right to spousal support. However, with respect to assets, the non-owner party may claim rights to those assets if it can be shown that an express or implied agreement was made during the relationship that assets were to be shared. A party who supported the other party can also make claims in equity for the services provided to the other party. This is called a "Marvin" action. When an express agreement does not exist, the court will inquire into the conduct of the parties to determine whether such conduct demonstrates some kind of implied in fact contract or other agreement regarding these matters.

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