I'm a domestic violent victim. My husband hit me on 07/14/2016. I called the police on him but unfortunately, they didn't arrested because they didn't find any enough evidence of struggle. I got a restraining order on him and my two children. I'm ...
My colleagues are correct. The restraining order in and of itself will not be enough. You do have other items that should be addressed, though. If he is working below his potential, a court has discretion to reduce or deny support. This sometimes requires a vocation evaluation of the spouse requesting support. Often, the court will impute an income to the no/lower income earner, meaning they will apply a certain wage (sometimes minimum, sometimes other) to the no/lower income earner. In setting a temporary support, the court could order some level of support, but it would be temporary pending more information as to earning ability. For the final order ("permanent"), the court will consider health, age, history during the marriage, ability to earn, ability to pay, education, etc. (See Family Code Sec. 4320).
You should consult legal counsel who can best analyze your situation and advise you accordingly.See question
If someone purchases a used phone (for personal use) after marriage. Is that phone community property? and if it is, how does the court divide it? does it go by the purchase price or the market value? and finally, the phone would probably have p...
Any assets purchased during marriage or with funds earned during marriage, unless they are separate, are community property. Separate property are any assets acquired before marriage, after date of separation, or as inheritance or gift (at any time).
If the phone was purchase before you married, it would likely be separate property. If one spouse took the phone, the court could order that spouse to reimburse the owner spouse 50% of the current fair market value, or turn the phone back over to the owner spouse, and/or order the contents (photos, contacts) be copied and transferred to the owner spouse.
Most courts do not like to entertain what they deem to be minor challenges. So you should expect the court to express some frustration with your request, or to simply not consider it. You would have to prove not only that your spouse took the phone, but also the current fair market value of the phone. Most phones have the ability to sync with your computer - did you back up your photos and contacts? This gets you back some of what you want, even though it doesn't prevent him from continued access to both.
I hope this is helpful to you. Best of luck.See question
My husband has informed me he is removing my belongings from one of the two homes we own. Neither of us has been denied access or granted exclusive use to either home. We both have belongings in both of the homes. I asked him not to remove my belo...
If you have not already filed for divorce, he is free to do what he wants. Once you file the divorce, and serve him, page 2 of the summons has some standard temporary restraining orders that will result in court imposed penalties if violated. You can file a request for orders at the same time you file your petition, but depending on the court's availability and how quickly you can get him served, it may take over a month to get to that hearing. In the mean time, I would strongly encourage you to go to the other property, record (on video and in writing) all items located in the home. Take what is of greater importance to you, document what you have taken, and disclose it to him. This way he is kept informed, you have a visual of the condition of the item when you took and the condition of the property after you left. You also avoid losing items later on and facing the struggle of PROVING what was taken or locating where it may be. A judgment that he has to give something back to you isn't worth the paper it's written on if he SWEARS it wasn't there in the first place or he gives it back to you damaged. Start reducing your future regrets. It's not FAIR, it's not right, but it is your current reality. It's great if the law is completely on your side later on. The reality is that the item may be lost forever. That's a very hollow satisfaction to being right.
I hope this is helpful to you. Best of luck to you.See question
My ex husband said he will take me to court if I won't allow him to see my child. i told him before he needs to file legal adoption first before he can sign on his birth certificate but he said nobody will know anyway. He's suffering from depressi...
This is more a divorce question, than an adoption related issue. I have moved your question to divorce so that you get more appropriate replies.
This information is general in nature. You should consult a lawyer to review the details of your individual case.
If he is on the birth certificate, this is a very strong factor that the court will treat him as the father. In addition, if he was involved in your son's life as his father, and is the only such person, the court will deem him the father, even if it is proven (DNA) that he is not the biological father. If there is no other parent challenging your ex, it is likely that he would be deemed the "presumed father". If the child was born while you were married to your ex, the court will very likely determine that he is the presumed father and grant him all parental rights.
It is likely this is not the answer you were looking for. If there is a risk or danger to your son, you will want to put in place as much safety as you can to ensure that any contact will not result in harm to your son. I would strongly encourage you to seek legal counsel and, perhaps take steps to ensure that there is a child specialist working with you, your son, and your ex.
Best of luck to you both.See question
I was married to my wife for 27yrs she has recently cheated on me and left the house for 6 months already. I signed over the grand deed to my son and moved out myself. My name is still on the loan but my wife signed over ownership to the house abo...
This is a complicated question that requires a more in depth legal review than can be done in this forum. We can really only address general principles. I would strongly recommend the you consult a lawyer, experienced in family law, to address your individual case with you directly. I know you put this under real estate, but you will likely get more replies if you put it under Divorce. Unless, of course, you do not believe this will become a divorce matter. I have left it under Real Estate since I do not know your intention here.
In general, when one spouse signs a Quite Claim or Inter Spousal Transfer to the other spouse, and does so knowingly (s/he knows that this gives all rights, title, and interest to and over the property to the other spouse), this is a clear indication to the court that there was an intent to change the character of the property from Community to Separate. If the aggrieved spouse were to later claim, say in a divorce proceeding, that the transfer was the result of fraud, the burden of proof shifts to the spouse who benefited from the transfer to show that it was a knowing and intelligent transfer. There are two cases on point. In one case, the spouse who benefited from the transfer was a paralegal and the aggrieve spouse had a form of autism. The court found in favor of the aggrieved spouse. In the other case, both spouses confirmed that the aggrieved spouse transferred title solely for a refinance, and both spouses confirmed that the intent was to add the aggrieved spouse back on title upon completion of the refinance. Upon divorce, it was discovered that the aggrieved spouse was never added back on to the title. So she argued that because she was Japanese and did not have full facility of the English language, she did not understand the impact of the transfer. Unfortunately, given the facts in that case, the Court disagreed and ruled in favor of the spouse who benefited from the transfer, even though both admitted the aggrieved spouse was unintentionally not added back to the title.
The other concern in your fact patter is that of a possible fraudulent transfer to your son. If no funds exchanged hands, the court may be suspicious of the timing of the transfer. This will boil down to proof that the transfer was fraudulent.
Finally, given that the property was transferred to you 10 years ago, and that your wife left for 6 months, if those 6 months was just recently, arguably there may be 9.5 years of you using your income to pay for your separate property during marriage. Under California law, 50% of all income earned by either spouse during marriage, belongs to the other spouse. If one spouses uses his/her income earned during marriage to improve or pay down his or her separate property, s/he would owe those funds back to the community - would owe the other spouse 50% of those funds used. This doesn't change the property from separate to community, but it does give the other spouse a claim for reimbursement.
There are other concerns, but these are the main items that you would want to discuss with a competent lawyer. Best of luck.See question
My wife inherited property in India during our marriage and now she is divorcing me, is that property considered part of community property during divorce proceedings in ca.
As you have seen, the unequivocal answer is NO. Inherited property is always separate property under California law... UNLESS the spouse who inherited the property added the other spouse's name to the title of that property, thereby indicating, under California Law that s/he wishes to gift an interest in the property to his/her spouse.
In addition, although it would not change the character of the property (community vs. separate), if either spouse contributed funds from his/her income during marriage to improve or pay down the inherited property, the community would be entitled to a reimbursement ("to the community") of the community funds used towards that separate property asset. This means that the non-owner spouse would get 50% of any sums (from funds earned during marriage, such as wages... NOT further inherited money or gifts of funds s/he had before marriage in a separate account) contributed towards the separate property during marriage.
I hope this gives you a better understanding of this topic. There are many complexities and exceptions and technicalities in a divorce. You really should consult legal counsel experienced in this area of law for an accurate and reliable analysis of your situation.
Best of luck to you.See question
Thirty days have passed (more like fifty) since my deadline to respond to divorce petition, but I am definitely contesting (there was confusion with attorney). My question to my attorney is: "Am I in default?" and his answer is "We haven't missed ...
If you have not received a notice of request to enter default, a notice of default judgment, AND it's not appearing on the online case summary, it's very likely default has not yet been entered. When you go to file your response, they will either accept the filing (no default filed) or reject it (default filed). If the filing is rejected, at that point you could notify your spouse (or his attorney if he has one), in writing, of your request to set aside the default. If they refuse (they shouldn't), you/your attorney would then file a request to set aside the default. If you are doing so within 6 months of the default having been entered, the judge WILL set aside the default, And if the other side, despite written request, refused to stipulate (agree) to set aside the default, he could be responsible for your legal fees in having to bring a formal motion (use court time) to set aside the default (which is automatically granted if done within 6 months of the default being entered).
If your lawyer is not communicating this to you, you need to schedule a time to see him/her, or put in writing that you are concerned about the lack of communication. Often times, litigation counsel (those who appear in court) are very focused on the cases that require immediate attention ("active" - hearings, trials, and the like). This is not an excuse. It is, however, important to understand that, when the time comes, your case will also receive that same focus - it is how litigators have to balance their time: they are in court often and not always immediately available. There are also instances where they are just overwhelmed or, rarely, not interested in the case at that moment. Again, not an excuse, but definitely a call for you to be more active in your case and get in front of your lawyer to address any concerns.
I hope this helps. Best of luck to you.See question
Are selling costs and realtor commissions factored in? What about capital gains? Buy-in spouse may end up paying capital gain taxes if the house is sold at a later date, but the selling spouse gets that money tax free.
Edna is correct. I have seen spouses resolve the buyout including a reduction to the buyout count the selling costs and realtor commissions (which can be significant), but this often leads to a discussion about "necessary repairs" to make the home sellable (could be termite, could be paint, could be plumbing, etc). If the house is being bought out as is, some couples decide to just do a split based on the equity itself, not factoring in costs of sale (since the home is not being sold - this is typically the default) or the "necessary repairs". The capital gains is also not typically split in any way, since there are too many variables to calculate (what will the future sale cost be, will the owner have remarried, increasing the exempt amount, will they refi, thereby reducing the overall gains...). I would confirm with a financial/real estate professional as I do not have the information in front of me at the moment, but I also believe that the greater deduction for a married couple will also apply if the home is sold with a short period of time from the date of divorce. You might want to confirm this as well (I want to say it's two years, but I may be off on that).
What may be of far GREATER importance and impact could be the prop 60/prop 90 tax base carry over. This is only an issue if you either or both of you are over age 55. The propositions DO NOT allow for a share of this benefit if the parties divorce. And if you do not address in your judgment (most courts do not, and many parties who settle do not), it will be first come, first served - you wouldn't even know your spouse already took the carry over until your request is rejected. Again, this would only apply if either or both of you are over age 55. There are other qualifying factors, so you will want to review the propositions. I've written a blog about it and you are welcome to review it.
I hope this is helpful to you. Best of luck in your resolutions.See question
Note: I asked this question yesterday, but I didn't word it in a way to get the answer I was looking for. I don't like the idea of strangers staying at my house, using my things and engaging in intimate activities with my husband in our home w...
I don't think you're going to get the answer you seek in this forum. My colleagues who have replied are speaking from both a practical and (primarily) a legal perspective. Legally, for any property to which you both hold title, you are both entitled to use the property in any way you wish (so long as it does not violate the LAW). From a practical perspective, the same holds true - it is his property just as it is yours. You may not like who he invites to the property, just as he may not like who you ride-share with in your car, for example.
From a moral perspective, it's really a personal judgment call: you may find it improper, he may feel that it is entirely proper if he feels the relationship with you is over (just a guess... based on years of experience working with couples facing these difficult circumstances). Either way, it will not feel better to you, it will, likely, increase the conflict between you both, which will, very likely, result in a more volatile relationship moving forward, higher legal fees in a divorce, and really bad decisions made by either or both of you that can ultimately cost you the property itself and much more.
Please understand, this is not a judgment of you or him. I have seen truly wonderful and well-meaning people, do really hateful, vengeful, and downright stupid things, because of the emotional tornado in which they find themselves when a relationship ends. For this reason, back in 2007, I started incorporate marriage and family therapists and child specialists into the legal services that I provide for separating and divorcing couples. It has made all the difference for the families with whom I work.
For your own health and well-being, and to avoid creating more regrets moving forward, I would strongly encourage you to consult with a therapist who can help you manage the extreme emotional trauma that you are under, and will continue to experience during this chapter of your life. And it is just one chapter - it may feel never ending, but you do have the ability to bring it to conclusion sooner rather than later.
You may also want to consult a lawyer who is aware of, and able, to assist you through the legal and practical impact of this process, and also work with your therapist to make sure you are making sound, forward-looking decisions. There are a number of excellent workshops that you an attend for no charge or very little charge throughout the state. Divorce Options Workshops provides education about the legal, financial, and emotional aspects of a divorce/separation. And you get to meat the professionals (legal, financial, and mental health) who do this work regularly.
I know this may not be the affirmation you seek. I hope it is, none-the-less helpful to you.
Best of luck for a speedy and meaningful resolution.See question
My husband wants to end our marriage of 40 years and he wants to provide for me with survivor benefits from PERS if he were to die first even if it means remaining legally married. As I understand it Cal Pers does not pay survivor benefits to divo...
My colleague is correct. And, if the pension is not yet in pay out status, you will want to consider what the survivor benefit does to the amount paid out - if there is a big age difference, there could be a significant reduction. And I cannot stress enough making sure you work with a reputable lawyer who specializes in Qualified Domestic Relations Order - if there is an error, if it is not properly done, this is not one of this situations that can be corrected later on.
Good luckSee question