Married 20 years, separated now, no assets, 2 minor children, does it matter who files first, both in same county,

Asked about 1 year ago - Costa Mesa, CA

neither employed, however, husband started own business making medical marijuana edibles, but keeps no records. am i entitled to part of that business? he is 50 50 partners with his brother and he will say he has no job when we go to court as to avoid paying child and spousal support. any advise?

Attorney answers (4)

  1. Gregory Paul Benton

    Contributor Level 20

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    Answered . It does not matter who files first. On the business, you have a claim to a community property interest in his half of the business. He will be required to provide a profit and loss statement from the business regarding his income. He can't say he should not pay any child support because of his unemployment. The court has the option of imputing income to him and then ordering child support on this imputation of income. Seek legal assistance on these matters.

  2. Sanjay Augustine Paul

    Contributor Level 10

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    Answered . Generally speaking, it does not matter who files first. There are some discovery related procedural advantages to filing first; but nothing that can't be overcome. Proving business income is always a tricky matter; you will have to resort to bank statements, profit and loss from the business and possibly even an expert to opine on the value of the business and the income he is making. However, the court often sees business owners claiming very little income, so there are tricks of the trade a competent attorney can guide you with.

    Best of luck,

    -Sanjay A. Paul

    This is not legal advice. No attorney client relationship exists between us.
  3. Anneshia Miller Grant

    Pro

    Contributor Level 18

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    Answered . There should not be any advantage or disadvantage to either party for filing first. As for his income, there are multiple ways to prove income (tax returns, business records, payroll records, etc.). Contact a local attorney regarding your rights to the business and to discuss your circumstances.

    I am licensed to practice law in VA, not your state. As such, I may be unaware of certain state laws; therefore, my response may be wrong or irrelevant. Please use my response for informational purposes only and contact a local attorney for legal advice.

    Good luck.

    Be sure to mark the "Best Answer" or Helpful" to your questions. Attorneys on AVVO donate their time and your feedback is appreciated.

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  4. Lawrence Hindin Geller

    Pro

    Contributor Level 10

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    Answered . I agree with both of my colleagues. Filing first, or responding makes no difference to the court. When a spouse files a Petition, the court gains jurisdiction over that spouse. When the second spouse is served (given copies of the Petition and other court filed pleadings) the second spouse is then also under the court’s jurisdiction. Put simply, jurisdiction means the court has the authority and power to make orders that effect that person’s rights.)

    According to California community property law, whatever interest your husband may have in the business, you own ½ of that interest. The difficult task ahead will be proving what the business is worth.

    As to child support, every parent has an obligation to provide support for his/her child. The difficulty you will face is being able to prove how much he earns to enable the court to set the amount of both child support and spousal support.

    If you have friends and/or relatives to help you hire private counsel, I suggest you contact the Orange County Department of Child Support Services to help you with child support (you can find them on line) and also the Self Help Center at the Court house.

    Disclaimer: I am licensed to practice law in the state of California. Therefore if your case in not in California,... more

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