Can I do my own Divorce without any attorney?

Approximately 70% of divorce cases in California have at least one party who is self-represented, meaning they do not have an attorney. When you appear in a case without an attorney, you will be considered “pro per” which means you are representing yourself and you are your own attorney.

Why are so many people in California self-represented in a divorce case? Money and being able to pay for an attorney is a big factor. Divorcing spouses will often also have one spouse hire an attorney who will handle all the paperwork for an uncontested, agreed upon divorce matter.

Do I need to hire an attorney to get divorced? The simple answer is no, it is not required, and a Court will let you represent yourself in your case. Attorneys are usually not appointed in family law cases. Usually the only time the Court appoints an attorney for a person is when there is a contempt of court charge in a divorce case, and the person defending themselves cannot afford an attorney and requests the Court to appoint a public defender. California also has tried to simplify the legal process for divorce, with mandatory forms being used in Court and available for free online (see Judicial Council website here).

If your divorce is not complicated, and you and your spouse agree on the terms of the divorce,  you can prepare your own forms and get a divorce Judgment yourself. If you cannot afford an attorney, many Courts have self-help centers to help you prepare the paperwork needed for your case and will walk you through the process. Many local bar associations may also have contacts for legal aid groups who provide free or low cost legal advice. Judges are also very familiar with self-represented parties appearing in Court, and while they cannot give you legal advice in your case from the bench, it is my experience that most family law Judges are more forgiving of a self-represented party who makes mistakes in their filing papers or in procedural requirements (though you still have to correct mistakes). However, if you are self-represented and your spouse has an attorney in a contested matter, you can easily find yourself in over your head.

There are options besides hiring an attorney to handle your entire case, such as paying an attorney for a limited consultation to advice you in your case or to prepare legal documents for you, or hiring an attorney for a limited scope representation, such as appearing at just one hearing on your behalf. In considering whether or not you can or want to hire an attorney for your divorce matter, some things to think about are the value of your own time trying to figure out the legal requirements of getting divorced, the consequences of making mistakes in your divorce court filings that may delay and/or seriously prejudice your case, and most importantly, understanding what your legal rights and options are in a divorce matter.

I have seen people be able to successfully resolve their divorce matters without hiring an attorney, and I have also had clients come to me at a certain point in their divorce case realizing they cannot do it themselves. Unfortunately, I have also met with people after a divorce Judgment, who were not represented nor sought the counsel of attorney before agreeing to the terms of a divorce, and realized too late they may have given up rights or lost out on property and/or support.

To sum up, when considering self-representation in a divorce matter, ask yourself if you feel capable of handling the matter yourself, and if in doubt, it never hurts to have an initial consultation with a family law attorney to discuss your case.

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Kobe Bryant and a reminder about California’s six-month waiting period in a divorce.

An article on the Los Angeles Times website today mentions that basketball star Kobe Bryant and his wife Vanessa Bryant may be putting their divorce proceeding on hold to attempt to work out their marital issues and reconcile. The timing for this discussion is based on the fact that California requires anyone filing for divorce to wait at least six months before the marriage can be dissolved, and the Bryants are at the six month date of the divorce filing.  There is a slight error in the article by the LA Times, in that the six month period is not from the date of filing, but from the date of service on the other spouse, which can possibly be the same day as filing, but sometimes can be weeks or months after filing for divorce.

This is also a good reminder of how strict the California law is regarding the  six months waiting period, even celebrities have to abide by the waiting period, and there are no exceptions or ways to expedite the date of dissolution for the marriage.

The reasoning behind a six month waiting period, which is longer than many states require, is that it is to insure that the spouses are truly determined to end their marriage and there are no second thoughts or possibility of reconciliation. The Kobe Bryant case is a great example of why the law is in place. Apparently, the reason for the divorce filing may have had to do with Kobe possibly cheating on his wife, and if California allowed a quick divorce, the divorce would have been granted while Vanessa Bryant was still mad at her husband and hadn’t “cooled” off from the divorce filing. But since they are required to wait six months, they have been given time to simmer down and work on reconciling and making the marriage work. This is exactly the type of situation the law was created for, to give a “cooling off” period so that couples can be sure they want to proceed with the divorce, and aren’t acting on an impulse to quickly end the marriage.

It’s also important to remember that you can’t get remarried until the divorce is final, since sometimes a divorce judgment may be signed by a Judge, but the date of dissolution may be at a future date if the six month waiting period has not yet passed. For more information or assistance with a divorce case, contact a Burbank Divorce Attorney.

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Closing of Burbank Family Law Department

On April 1, 2012, the family law courtroom located in Department C of the Los Angeles Superior Court located at 300E Olive Ave, Burbank, California, 91502 was closed down. The closing of this courtroom, which was presided over by Judge R. Carlton Seaver, was due to ongoing budget cuts in California, which have hit the judicial branch especially hard.

As an attorney who frequently appeared in Burbank and before Judge Seaver, and with my office not far from this Courthouse, I will especially miss the option to have family law matters filed locally in Burbank.

All current cases will be heard at the Pasadena Courthouse, and all new filings within the former area that the Burbank family law department covered will now be filed either in Pasadena or Van Nuys. The closing of this family law courtroom and the ongoing cuts to judicial staff have increased delays in family law matters, and with further cuts expected, now is a good time to consider resolving your divorce, custody dispute, or other family law matter outside of Court to avoid the increasing logjam.

For a copy of the full notice regarding the courtroom closing, look here.

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Termination of Parental Rights in California

For various reasons, there may come a time when a parent’s rights are terminated under California law. What this means is that the parent is no longer considered the minor child’s legal parent, and all rights and obligations of being a parent end.

The issue of terminating parental rights most frequently comes up as part of the adoption process. For example, in a stepparent adoption where the stepfather is adopting the child, the biological father can either consent to the adoption and voluntarily waive his parental rights, or the Court can determine that the biological father is unfit and terminate the biological parent’s rights without consent. Failure to provide child support can be a basis for terminating parental rights in a stepparent adoption.

Another scenario where parental rights are terminated is during a juvenile dependency court proceeding. If one or both parents are found to be abusive, have substance abuse problems, or certain criminal problems, the Juvenile Court can  terminate one or both parents’ rights, and the government becomes the legal custodian of the minor child. This allows the minor child to be placed for adoption without the biological parent’s consent.

One way you are not likely to have parental rights terminated is when a parent is trying to avoid paying child support or to resolve custody disputes. You cannot “give up” your rights as a parent to avoid paying support unless there is a stepparent willing to take over the responsibility and obligations through adoption.

Termination of parental rights should not be taken lightly, and if you are facing having your parental rights terminated without your consent, you need to make sure you have legal counsel to protect your rights.  Likewise, a parent will not be successful in having parental rights terminated just because they are upset with the other parent or don’t want them to be a part of the minor child’s life.

If you need assistance with the issue of termination of parental rights or stepparent adoption, please contact our office.

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Getting a Move Away Order for Child Custody in California

When one parent wants to move out of the area with the minor child in a custody case, they will usually need either the consent of the other parent, or they will need a court order granting the move away request. This issue comes up often when one parent wants to move out-of-state for a new job or because they are getting remarried.

Issues that come up in a move away request are how the move would affect the minor child or children involved, how visitation and/or custody would be affected by the move, the reason for the move, and like all child custody matters, whether it is in the best interest of the child to make the move.

If a parent wants to move, it is not impossible to simply get the other parent to consent to the move. The law usually requires notification to the other parent of the proposed move before a court action is filed, and it is important to offer a reasonable visitation schedule to the other parent, since a move will usually make it harder for the parent not moving to maintain the current visitation schedule.

If the other parent does not consent to the move away request, then you will usually need to file a request with the court to be able to move with the minor child or children, unless a prior order already gives you the right to change residence without the consent of the other parent. In a court hearing, there are some presumptions that favor the parent with primary custody of a child. However, those presumptions can be overcome, s it is important to make a clear case to the court why the move will benefit the minor child or children.

One of the most important factors is which parent has been providing a stable environment for the child. Other important factors are comparing the schools, for example is the new school better for the child than the old school, and also community statistics. A judge is more likely to grant a move away where the parent is moving somewhere with a lower crime rate and better schools, than the other way around.

An important caveat to remember is that a move away request is not automatic, even if you are the primary custodial parent. A request should be made with plenty of time, this is not something to request at the last minute. A court may not allow you to move with the child, which means you could still move, but custody would switch and the child would stay with the other parent.

Also, a move away court dispute can be very costly, so it makes better financial sense for parents to try to work out an arrangement that allows the move but maintains sufficient contact with the other parent. With modern technology, that is made even easier, with parents able to video chat with their children over the internet from anywhere in the country, or even the world. Also, often the parent who doesn’t have as much visitation time during the school year after the move could have most of the time during summer and holidays.

Last caveat, don’t try to move away just to get an advantage in a custody case. If you aren’t doing something with the child’s best interest in mind, that could really come back to hurt you in a custody case.

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Hardship Factors in Child Support case in California

A question that often arises in child support cases in California is whether or not a parent can claim a child from a different relationship as a hardship on their income when figuring in the guideline amount of support. The short answers is yes, you can claim a minor child from a different relationship as a hardship deduction if you meet the requirements.

Hardship deductions from income for supporting other children only apply to a child who is either a natural or adopted child of the party involved in the child support case. For example, if you were married and had two children from the marriage, then get divorced and later have another child form a second marriage, the child from the second marriage could potentially considered as a hardship on your income when calculating support for the two children from your marriage.

However, it is important to note that stepchildren cannot be considered as a hardship deduction, only natural or adopted children. The reason is that it only applies to children where there is a legal obligation to provide support. Also, the hardship child needs to reside with the parent. A child from another relationship that doesn’t reside with the parent involved in the child support case would not qualify, although child support paid for other children can be considered separately from hardships in calculating guideline child support.

Another important element to understand is that the maximum hardship deduction for a hardship child cannot exceed the amount of support allocated to each child covered by the child support order. This puts a limitation on how much hardship can be claimed, with the intent to protect the children who already are due support by the parent.

California Family Code sections 4070-4073 regulate the hardship claims that can be made in a child support case. Something to keep in mind is that the hardship deduction for another child may not affect the amount of support as much as the parent thinks it will. For a person paying support, a hardship child deduction will lower the support, but since there usually is also a benefit from the extra tax deduction that another child provides, it often does not lower it as much as people expect.

Many courts, such as the Los Angeles County Superior Court, use a computer program when calculating support called Dissomaster. A Dissomaster report is often attached to any child support order, and shows the breakdown of each parent’s income, and automatically calculates the guideline support. If using this software, the hardship child would usually be given either a factor of .5 or 1.0 in the hardship deduction section, depending on if the hardship child is fully or partially supported by the parent. When the factor is entered, the program will automatically calculate the amount of the hardship deduction, and apply it to the child support guideline calculation.

Because getting a hardship child to be figured into the child support amount can be complicated, it may be necessary for a parent to obtain the assistance of a family law attorney to ensure that the parent gets the proper deduction credited to them.

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What is Guideline Child Support in California?

If you are involved in a child support case in California, you are going to come across the term “guideline support” frequently. What guideline support means is that child support is calculated based on a state guideline formula that is intended to cut down on litigation and facilitate the resolution of child support disputes. The practical effect is that having a guideline support amount gives all parties an idea of what the amount of support will be, and really encourages people to settle on the guideline amount instead of unnecessarily fighting over the amount of child support due.

US Federal law is the basis for mandating all states receiving certain federal funds to establish a guideline formula for child support. The law is found at 42 USC section 667. California’s adherence to this federal law’s requirement to create a statewide guideline support formula begins in California’s Family Code section 4050.

The actual formula used to calculate support is found in California Family Code section 4055, and is CS = K [HN — (H%)(TN)]. Section 4055 breaks down what that formula actually means, but for most of us, it is easier to use computer software that will calculate the guideline amount for us. Most courthouses handling family law matters have computers available where child support can be calculated. There is web site online that can help you get an idea of what your child support will be with a calculator available, and can be found here.

The California Family Code also breaks down how the court is supposed to implement the guideline rules for child support, as follows from section 4053:

(a) A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life.

(b) Both parents are mutually responsible for the support of their children.

(c) The guideline takes into account each parent’s actual income and level of responsibility for the children.

(d) Each parent should pay for the support of the children according to his or her ability.

(e) The guideline seeks to place the interests of children as the state’s top priority.

(f) Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children.

(g) Child support orders in cases in which both parents have high levels of responsibility for the children should reflect the increased costs of raising the children in two homes and should minimize significant disparities in the children’s living standards in the two homes.

(h) The financial needs of the children should be met through private financial resources as much as possible.

(i) It is presumed that a parent having primary physical responsibility for the children contributes a significant portion of available resources for the support of the children.

(j) The guideline seeks to encourage fair and efficient settlements of conflicts between parents and seeks to minimize the need for litigation.

(k) The guideline is intended to be presumptively correct in all cases, and only under special circumstances should child support orders fall below the child support mandated by the guideline formula.

(l) Child support orders must ensure that children actually receive fair, timely, and sufficient support reflecting the state’s high standard of living and high costs of raising children compared to other states.

For most child support cases, a Judge will not deviate from the guideline amount. The only questions to be decided are what each parent’s disposable income is, how much time each parent spends with the children, and what is the tax filing status and exemptions of each parent. After that information is ascertained, the formula will provide how much child support should be paid. Because the guideline amount is difficult to dispute, the issues that get most disputed in child support cases are what a parent’s income is and how much time each parent spends with the children.

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Community Property and Separate Property in California

In a California Divorce, property division is based on the concepts of community and separate property. Community property is property that was acquired during marriage by the parties, and is equally split at the time of divorce.

The way to determine if something is part of the community is whether either party acquired it after they were married and before they separated. It does not matter whose name an asset was acquired in, but only whether it was acquired during the marriage.

Some property, even if acquired during marriage, is exempt from being part of the community, and is not divided by the parties. This is called separate property. Any property that a person acquired prior to marriage would be considered separate property. Also, any property acquired through gift or inheritance by a person would be their own separate property, as would any property that they acquire after the spouses’ separation.

Generally speaking, separate property is kept by the spouse whose property it is, and it is not considered in the division of community property. Separate property assets may, though, be a factor in other issues of a divorce, such as spousal support.

The same concept also applies to debt, so both spouses would normally equally be liable for debt acquired during marriage, and debt acquired before marriage or after separation would be separate debt owed by the spouse who incurred it. Because of debt, sometimes a spouse who takes on more debt will be given more property to balance out the actual worth of the assets each party receives.

This is a general overview of the issues of community and separate property in California divorce law, and a family law attorney should be consulted for more detailed and specific information in your particular case.

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What Not To Do In A Child Custody Dispute

In Family Law, child custody disputes can be the most emotional types of cases. Parents involved often allow their emotions towards each other to dictate what direction they take the case in, which often leads to unnecessary court appearances and a long, drawn out case.

OBEY COURT ORDERS

Judges don’t like their orders to be ignored. Remember, they are the ones who will be making the decisions in your case, so even when you aren’t happy with what has been ordered, you should follow it until it is further modified or changed.

AVOID SELF-HELP

Self-help is where a person takes action without legal authority, such as taking the kids when it is not your custody time without the other parent’s consent, or moving away with children without getting consent. If a problems arises, it is usually best to get legal help before taking the law into your own hands. If there is an emergency problem, contact law enforcement, or get emergency orders from the court, such as a restraining order. But taking matters into your own hands can significantly hurt your overall case, and can cause you to lose custody.

DON’T MAKE FALSE ACCUSATIONS ABOUT ABUSE

Sometime parents believe that if they accuse the other parent of abuse, it will benefit their case. When there is real abuse, that is a serious concern and should be brought up, but making false accusations to leverage a custody case will only cause delay, unnecessary expenses and costs, potentially put the children through uncomfortable investigations, and will in the long run hurt the case of the false accuser.

Another thing to keep in mind, such accusations can often backfire. When abuse allegations are made, the Department of Child and Family Services may become involved, and when they do an investigation, they will be looking for any abuse or negligent by either parent. What this means is an accusing parent may find themselves under the spotlight instead of the other parent.

DON’T INVOLVE THE KIDS IN THE CASE

Children go through enough with separated households, and a parent should avoid speaking directly about case problems with them or trying to sway the kids to benefit their case. Children don’t want to disappoint either parent, and trying to use them to benefit your overall case can cause emotional trauma for them. Avoid also arguing or discussing problems with the other parent in front of the children.

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There are many things that affect a chid custody, but the temptation to do dishonest acts or take matters into your own hands can have a detrimental impact on your custody case. If you aren’t sure about what to do, consult an attorney, or file your petition to the Court before taking action without a court order. Keep your emotions in check, or they could unravel your entire case.

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A Worst Case Scenario for a Child Custody Case

In Family Law, child custody matters can be the most difficult emotionally, and unfortunately, some parents will go to great lengths to cut the other parent out of the child’s life.

A recent story in the Los Angeles Times ( part 1 is here, and part 2 is here) describes the story of Louis Gonzalez III of Nevada, who shared custody of a son with his ex-girlfriend Tracy West. Mr. Gonzalez was accused of violently and brutally assaulting Ms. West prior to one of the custody exchanges, and was put in jail. While at first all the evidence seemed to indicate he was the attacker, doubts grew and he was eventually completely exonerated of involvement, but not after he spent considerable time in jail and away from his family and son.

The twist in the story is that Ms. West may have fabricated the whole situation, just to leverage the custody case. Unfortunately for her, she lost primary custody of her son, and Mr. Gonzalez ended up with custody of the boy. A happy ending for the father, but a possible complete backfire for mother going to extremes to separate a parent and child.

A lot of people know that domestic violence, even when not directed at the children involved, can affect and limit custody and visitation with minor children in a divorce or paternity case. And while there are a lot of valid domestic violence claims, there are also people willing to make false or misleading accusations to try and get an upper hand in a custody dispute. It can create a drawn out and messy dispute, that does little to advance the best interest of the children.

And the lesson to learn from Louis Gonzalez case is for a parent who is falsely accused to not give up hope, that with patience and time the truth can come to light and they can be exonerated, and for a parent who would make a false accusation, a warning that you may end up in the exact position you want to put the other parent in.

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