Family Law Attorney and Family Legal Services for San Diego County
Mediation, Visitation, Paternity and More
Divorce and custody disputes are a difficult time for a family. The divorce process can be a time of trouble and worry, but it is also a time to look toward the future. In helping our clients through this difficult period in their lives, we always work to protect their rights and interests and those of their children.
While some marriages can be dissolved relatively amicably, others present complex and contentious legal issues. Below are just a few of the the cases we have helped our clients with:
Child Custody and Visitation
Child custody and visitation cases matter. We can help you protect your rights and obtain the best possible arrangements for yourself and your children if you have custody or visitation concerns related to separation or divorce, or to children born outside a marriage.
Types of custody: What exactly will legal and physical custody mean in my case, whether it is sole, joint or a combination thereof? What is the difference between having legal custody and actually being able to spend enough time with my kids?
Physical Custody vs. Legal Custody
There are two types of child custody in San Diego Divorce and Paternity cases: legal custody and physical custody.
Legal custody orders of children address decision making power. The party with legal custody has the legal power to make decisions regarding the health, education, safety and the general welfare of the children.
Physical custody orders of children in address the day-to-day physical location of the children and orders specific scheduling for co-parenting. Physical custody orders can be the most challenging and highly litigated area of a paternity, legal separation and divorce.
Family Court Services Mediation
When you ask a family court for court orders for child custody or visitation, the San Diego Family Court’s Local Rules require that the parents of the children attend Family Court Services Mediation. Do not be confused by the term 'Mediation' because it is as much an interview and evaluation, as it is a Mediation. At the Family Court Services appointment, the parents may present information concerning the custody of the children to a court appointed mediator. The mediator will issue a Report and Recommendation to both parents, the attorneys, and to the family court judge. The Report and Recommendation takes into consideration all information obtained during the interview with the parents, review of the file, and contact with other third parties, in certain cases, and includes a recommended parenting plan. Each parent is entitled to receive a copy of the recommendation to review and respond to the information included in the report. Success at FCS mediation is crucial to the success of your child custody case as family court judges place a great deal of weight of the FCS mediator’s recommendation. Preparation by your family law attorney, or other professional, in some cases, is crucial.
A Parenting Plan
Parents going through a legal separation, divorce or unmarried parents looking to separate, can be are faced with the often difficult task of developing a co-parenting relationship that works best for the children involved. The best parenting plans and child custody arrangements are those that ensure the children have access to both parents on a regular basis.
In certain complex child custody cases, high conflict child custody cases, and cases where there are allegations of drug abuse, alcohol abuse, domestic violence, or mental illness, one parent may seek the intervention of a professional that specialized in addressing these issues as they relate to child custody and visitation. Sometimes that is private mediation. Any party seeking a private custody evaluation must have an agreement to do so from the other parent or that party must request the court order the private evaluation. Private mediation may be with or without the professional recommendation.
When a private custody evaluator conducts a professional recommendation, that is called a “730 Evaluation.” This evaluation is given to the court after the evaluator has met with both parents, the children and, has either interviewed or met with other third parties involved with the family. The evaluation is considered to be admissible evidence at the child custody hearing by agreement or court order, and holds a significant deal of weight with the family court judge. Private child custody evaluations can be extremely expensive, but can be worth the extra money in certain circumstances.
Child Custody Modification
Until a child emancipates by turning 18 years of age, or graduating from high school, child custody is always an issue. With few exceptions, once a child custody order is made, in order to request a modification of an order already in place, the requesting party has the burden to prove that there has been a change in the circumstances of the parents or children that would warrant a change to the court order for child custody.
A change in circumstances could be a significant change of a schedule, a change of location of one or both of the parents, or any number of significant changes effecting either parents’ ability to follow the old custody order.
Ex Parte Child Custody Orders
Generally, the Family Court will not order emergency orders relating to child custody unless there is a showing of immediate harm to a child, sexual abuse or the threat of a child being removed from the State of California without the written consent of the other parent. If these is a legitimate threat under any of these basis, then immediately contact the L:aw Office of Alexandra McIntosh at (760) 753-5357.
With regard to custody, in general, California law gives no preference to one parent of a child based on that parent's gender, age, wealth, disability, race, creed, religion or employment status. State law generally says that a court shall award child custody jointly, or if to one parent, it should be to the parent most willing to share the child with the other parent. Serving the best interest of a child is the guiding principle in all custody decisions.
Every situation is different. Developing your case will involve the presentation of facts that show that you properly nourish, nurture and care for your child while generously providing continuing contact with the other parent. If domestic violence is involved, these factors may not apply, and a court's discretion in awarding custody to a person convicted of domestic violence is extremely limited.
Child Support
Child support orders are driven by facts and numbers. Deviations from the formula that takes into account both parents' incomes, the amount of time children spend with each parent and certain other factors are rare but possible under certain circumstances. We assist our clients in:
While child support modifications are the most common post-divorce actions, it is important to recognize that spousal support is also modifiable when justified. We also represent clients who want to modify custody or visitation orders because they suspect domestic violence or substance abuse, and when other circumstances are preventing children from thriving.
Community Property/Asset Division
Property characterization is the process of establishing whether specific funds and other assets will be treated as community or separate property. Many complexities can arise during this crucial step.
Whether property will be treated as community property by the court primarily depends on whether it was acquired before the date of marriage or after separation. Gifts and inheritances are exceptions, however, and many disputes involve valuation of complex assets.
Under California law community property is any property acquired by a husband and wife during marriage with community earnings, accumulations, and profits during marriage. In California a marriage is generally viewed as a partnership where both husband and wife are viewed as having equal ownership of all assets acquired during marriage. Generally these assets include a home, furniture, automobiles, pensions/retirement, stocks, bonds, recreation vehicles, and collections. Likewise, debts incurred during marriage are community debts and both husband and wife are equally responsible for debt repayment.
When spouses separate and divorce, the court has a duty to determine the value of all community property and divide it equally. In most cases the court will determine the balance due on all community debt and order that spouses share equally in repayment of those obligations.
What is separate property?
Under California law separate property is any property owned by one spouse prior to marriage or acquired by that spouse during marriage by inheritance or gift. Additionally, interest or income from those assets are the separate property of that spouse. A spouse has no ownership interest in the separate property of the other spouse whatsoever. The only time a spouse may get an interest in the other spouses separate property is when there has been a commingling of those assets.
California law provides that separate property may be converted into community property by an agreement in writing between spouses. The court will determine if there is any separate property and, if there is, confirm its ownership to the spouse who acquired it.
How do California Courts divide debts?
The general rule is that all debts acquired during marriage are community debts to be divided equally between the parties. Some exceptions apply, however, with respect to characterization of a debt acquired during the marriage as well as the allocation of community debt upon legal separation or dissolution. It is possible to have more than one half of the community debt ordered against one spouse.
What is Asset Valuation?
Unfortunately there are spouses married to business owners who have no idea the value of the community business. What is done to determine the value ? is a common questioned asked. The answer - hire a forensic Expert.
A forensic expert has the credentials in accounting and business to go through the books and records and make a determination on the value of the business. In some instances, the husband hires a separate expert than the wife. In other instances, one expert is chosen between the attorneys in hopes that a fair valuation is determined by the expert.
Often times separate experts are hired if the divorce is heated and the parties are contesting most aspects of the divorce. The benefit is that each party has their own witness if the matter goes to trial.
Are my spouse’s student loans considered community debt?
Generally student loan debt is considered to be the separate debt of the borrowing student spouse. However, depending on whether the or not student loan proceeds were used to pay for household expenses, to acquire property, these debts may be allocated and treated as community debt. The length of marriage can also play a part in the allocation or division of the student loans.
Is a gift between a husband and wife considered community property?
Current case law in California says that whether a gift between spouses is considered to be a “transmutation” of that property from community property to separate property depends on the value of the gift compared to the overall value of the marital estate.
If the gift is substantial compared to the value of the estate, then the gift will probably be deemed community property. However, if the gift is relatively inconsequential when compared to the value of the marital estate then the court will most likely find that the gift is the separate property of the other spouse.
Divorce
Every divorce situation is different and should be approached as a unique matter. There is an option for legal separation, as well as dissolution of marriage. Contact the Law Office of Alexandra McIntosh at (760) 753-5357, and we can help you through this difficult time.
First Step - Filing a Petition for Dissolution
The first step to filing for divorce is to file the Petition for Dissolution of Marriage or Domestic Partnership. This is a three page document that lays out the basics of the relationship including the date of marriage, the date of separation, information relating to the minor children of the marriage, if any, the reason for the divorce, and the request being made to the court for a judgment of dissolution.
Service of the Petition for Dissolution
The party that files the petition is known as the Petitioner and the opposing party is known as the Respondent. The Respondent must be served with the Petition in order for the divorce process to move forward. Once served, the Respondent must file a response within 30 days of personal service. If a Response is not filed by the Respondent, then the Petitioner may choose to request that a default be entered against Respondent.
Once the Petition is properly served, the Divorce proceedings begins and your case either moves toward settlement or trial.
Sixth Month Waiting Period
In California, the parties cannot be officially divorced until sixth months have passed . . . this is six months from the Respondent is personally served the Petition for Dissolution. This does not mean that the case cannot settle within the sixth month waiting period. It only means that the marital status will not terminate until this waiting time has passed.
There are times when a divorce case settles relatively quickly and a judgment of dissolution is entered by the court prior to the sixth month time period lapsing. In such cases, all provisions of the settlement go into effect upon the judgment being entered, but the actual date when the parties are returned to the status of 'Single' is at a later date. .
Automatic Temporary Restraining Orders
Once the Petition for Divorce has been filed and served, there are automatic temporary restraining orders (ATRO's) that go into effect immediately. These orders stop either party from hiding assets, selling assets, or moving assets including cash, stocks, retirement accounts, etc. They also stop either spouse from canceling or changing any health, dental, auto, and life insurance plans without the written consent of the other spouse or an order from the court. It is very important that a party understand the ATROS and abide by them. Violation of the ATROS could result in sanctions and attorney’s fee orders against you.
Fiduciary Duties During Divorce
Each spouse in a Divorce owes a fiduciary duty to the other spouse that he or she would owe to a business partner. Marital assets must be handled business assets and managed and cared for in the same manner. If the parties own a home together, then the house must continue to be maintained by the party living in the house. If the parties own a business together, then the business must continue to be run and maintained with as much responsibility and care as it was during the marriage. Intentional or negligent damage to a marital asset due to one spouse amounts to a breach of that spouse’s fiduciary duty to the community and to the other spouse.
Breach of fiduciary duty is taken very seriously by California Courts. In particularly egregious cases, the court may award an entire asset to the non-offending spouse in a case of breach of fiduciary duty.
Financial Disclosure Requirements
A party cannot obtain a legal separation or a divorce unless there is a full disclosure of all assets and debts. California has very strict requirements when it comes to financial disclosures between parties in a divorce case. Within 45 days of the filing of a petition for divorce, each party is required to make full disclosure of all assets and debts as of the date of disclosure and to serve on the other party with a 'Preliminary Declaration of Disclosure' along with the supporting documents.
Each party must complete a Schedule of Assets and Debts and a Income and Expense Declaration. The Schedule of Assets and Debts is a full list of all assets and all debts including the date of acquisition, the current fair market value estimate, and any money owed on an asset. The Income and Expense Declaration is disclosure of each party’s monthly income and monthly expenses. This document will include information related to earnings, expenses, tax filing, educational background as well as assets such as bank and investment account balances.
Full financial disclosure is one of the most important aspect of the preparation of a divorce case. If one party discovers that the other party has willfully failed to disclosed assets or income, it can have devastating consequences on the non-disclosing party including sanctions, attorney’s fees and the setting aside of an judgment of legal separation or dissolution.
Legal separation is a process that enables spouses to live separate and apart under a separation agreement or judgment. Although spouses do not live together and will have completed property division and established child support, custody, visitation and spousal support, they are not legally divorced and therefore cannot remarry. Legal separation may be an option that a married couple will wish to consider for religious reasons, to maintain health or medical insurance benefits, or for personal reasons when divorce is to final or aggressive an action.
Uncontested Legal Separation or Divorce
Although it may be a complicated process that will require agreements regarding difficult issues, a divorce does not have to be an expensive, adversarial process. If you and your spouse are on amicable terms and agree upon, or believe you can reach agreements regarding, the terms of your divorce, you may be able to complete an uncontested divorce. You can save a great deal of time and money and spare yourself the stress associated with a contested divorce in family court by considering an uncontested legal separation or divorce.
In an uncontested divorce, spouses reach their own agreement regarding all matters involved with the divorce - custody and visitation, child support, spousal support and property division - without the intervention of the court. They may agree on these issues initially or some negotiation may be necessary, but the important thing is that the spouses can agree without needing to involve a judge.
An uncontested divorce may have numerous benefits for a family. Not only is it less expensive and time consuming, but it is also often much less stressful than a divorce completed in court. When spouses reach their own agreements regarding custody, property and support, this also means that they can decide what works for them, rather than be forced to comply with a judge's ruling based upon California divorce laws. The Law Office of Alexandra McIntosh can be reached at (760) 753-5357 and we can take care of every aspect of an uncontested case - start to finish - so that you never need to see the inside of a court room!
High Net Worth Divorce
Some aspects of a divorce involving a high net worth couple are the same as those for a couple of modest means. However, a high net worth divorce presents additional challenges. Issues involving asset valuation, taxation of appreciated assets, and the possible payment of alimony require careful analysis and creative solutions.
The attorneys at the Law Office of Alexandra McIntosh have experience in divorces involving all types of property division issues, including divorces involving family-owned businesses, complex property holdings, dual income couples and high net worth couples. We work tenaciously to protect the property rights of our clients at all stages of the legal process.
In divorces involving complex property issues, we frequently retain the services of financial experts, such as a business valuation specialist, a tax accountant, a forensic accountant, and depending on the assets involved, various types of appraisers. These professionals can provide important insights into key financial issues and can lay the groundwork for the negotiation of a favorable property settlement. However, if necessary, we will be prepared to go to trial.
Our goal in every case is to protect the rights and interests of our client, while obtaining a settlement that is fair, and that enables the client to move forward in his or her life.
Domestic Violence
Domestic violence takes many forms and has serious legal and emotional implications for families. Real and false allegations of violence can complicate divorce proceedings and have a significant impact on child custody and other family law matters. Domestic violence issues call for legal advice and representation.
If you have been a victim of domestic violence and your main concern is safety, you need an attorney who can help you quickly obtain the protection you need. If appropriate, we can help you secure a temporary or permanent order and help you understand the legal consequences of a protective or restraining order.
If you have been accused of violent behavior and your rights are at stake, it is essential to have an attorney who can help you protect those rights. We are highly experienced in representing clients in matters involving restraining orders and protective orders. We can help you understand and address the impact of these orders on support, custody, employment, firearm possession and other important issues. These orders can affect your career, especially active military and professional law enforcement.
Grandparent Visitation
Under California law, a grandparent can ask the court for reasonable visitation with a grandchild. To give a grandparent reasonable visitation with a grandchild, the court has to: Find that there was a pre-existing relationship between grandparent and grandchild that has “engendered a bond.”
Move Away
A divorcing parent's desire to move away with children can lead to an intense custody dispute. When a custodial parent wants to relocate after divorce or resolution of a custody case outside of divorce, modifications of other orders are often necessary.
Paternity
Establishing and documenting the biological father of a child may be an important step for everyone involved. As a mother, you may want to hold the father accountable to his obligation to pay child support and have other important goals driven by the welfare of your son or daughter. As a man, you may want a definitive answer as to whether you fathered a child and to exercise your right to a parental relationship. For the father, if you have any doubt the child is actually your biological child, then you MUST take immediate steps to make the determination, because after two (2) years, that child will be legally presumed as your child and you will be financially responsible.
Post-Judgment Enforcement and Modification
Although your original separation or divorce agreement may have worked initially, there may be a significant change in circumstances that has made compliance difficult, inconvenient or impossible. In these situations, you may be able to pursue a post judgment modification that will allow you to alter your existing child custody, visitation, child support or spousal support arrangement. There may also be the situation where you are owed money from a prior agreement and your former partner or spouse has not paid what you are owed.
Not just any change in circumstances may qualify for a post judgment modification. If you are to pursue a post judgment modification, you will need to prove that the change is significant enough to warrant the time and expense spent in pursu1ing an change of your existing agreement in court. Some examples of situations that may qualify for a divorce modification may include:
Pre-Marital and Post-Marital Agreements
Pre-Marital agreements (also known as Pre-Nuptial agreements) are governed by the Pre-Marital Agreement Act which has been codified in the California Family Code. There are a number of requirements and guidelines that must be met to ensure that the pre-marital agreement is upheld in a court of law, should it ever be necessary. To ensure that your pre-marital agreement is consistent with public policy and meets the requirements necessary to make it enforceable in a court of law, it is best to have a knowledgeable and experienced attorney assist you in the matter.
Post-Marital agreements are also becoming more common, as married couples wish to identify their individual financial rights and
obligations after entering into a marriage.
Spousal Support/Alimony
Spousal support — sometimes called alimony or maintenance — is the subject of many myths and misconceptions. Awards of any spousal support at all are far from automatic, and California judges have broad discretion in determining how much will be paid for how long when they do award spousal support.
Whether you believe you should receive spousal support or may face a demand that you pay it, the lawyer you choose to represent you could prove pivotal for your financial future. As opposed to child support, which is based on relatively clear, consistent statewide guidelines, spousal support outcomes can vary widely based on the approach you take, the court where your case is heard, your attorney's level of preparation and other factors.
What factors does a court consider in deciding on spousal support?
On a temporary basis, between the time of separation and the time of trial, the court has a program that is used to calculate spousal support. On a permanent basis the court looks to the factors contained within Family Code Section 4320:
Under Family Code §4320, the court shall consider all of the following circumstances:
(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the
supported party t acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills of employment.
(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
( c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property of each party.
(f) The duration of the marriage.
(g) The ability of the support party to engage in gainful employment without unduly interfering with the interest of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) Documented evidence of domestic violence.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting within a reasonable period of time applies to a short term marriage. In the case of a marriage of long duration as described in §4336, a ‘reasonable period of time’ for purposes of this section generally shall be one half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, §4336, and the circumstances of the parties.
Divorce Strategy
When hiring a family law attorney there is a difference between a highly skilled family law negotiator and a general practice attorney. Almost any competent lawyer can figure out how to file divorce papers in California. A skilled family law attorney, however, is more than that. He or she evaluates each case based on its merits and strategically determines what is in the client's best interest.
Your divorce lawyer should be your advocate and your counselor from whom you will receive a strategic plan for your case. This strategy is not always seen in law firms but you will see it at the Law Offices of Alexandra McIntosh. This knowledge is usually acquired from years of practice in family law courts, and experience and knowledge of the local courts, judges, and procedures, enables our law firm to see how your case is unique.
Choosing the right attorney to represent you is probably the most vital decision when it comes to your legal separation, divorce or paternity action. With the skill of negotiating, your case may settle and close sooner, which is less costly for you. The additional benefit of a qualified lawyer is the comfort of knowing that if there are strong issues before the court, you have a strong, knowledgeable and aggressive litigator in your court.
Your advocate attorney's advice may not be what you want to hear. However, you should choose an attorney that tells you what you need to hear. The best advice is given by the attorney who has the courage to give you the straightforward truth of what you can expect. You must be aware that in divorce proceedings, there is no win or lose. If the divorce is finalized and is equitable, you have succeeded. As a client of our law firm, you will be provided the facts and the alternatives so that you can make an informed decision with the knowledge and counsel of an experienced family law attorney. You don't always get a second chance to litigate matters that have already been heard before the judge.
Our law firm has a strong referral base. We take pride in clients who refer their friends, family and relative to us. Better yet, we see ex-spouses who were on the opposite side of the case referring their friends to our firm. Aggressive and skilled family law attorneys from the Law Offices of Alexandra McIntosh, have the background and the ability to analyze and advise you on the best strategy for your case.
While some marriages can be dissolved relatively amicably, others present complex and contentious legal issues. Below are just a few of the the cases we have helped our clients with:
- Custody and Visitation
- Physical Custody vs Legal Custody
- Father's Rights Legal Services
- Family Court Services
- A Parenting Plan
- Child Custody Modification
- Ex Parte Child Custody Orders
- Child Support
- Asset Division
- Divorce Attorney
- Domestic Violence
- Grandparent Visitation
- Move Away
- Paternity Cases
- Post-Judgment Enforcement and Modification
- Pre-Marital and Post-Marital Legal Agreements
- Spousal Support
- Divorce Strategy
Child Custody and Visitation
Child custody and visitation cases matter. We can help you protect your rights and obtain the best possible arrangements for yourself and your children if you have custody or visitation concerns related to separation or divorce, or to children born outside a marriage.
Types of custody: What exactly will legal and physical custody mean in my case, whether it is sole, joint or a combination thereof? What is the difference between having legal custody and actually being able to spend enough time with my kids?
- Relocation: Am I going to be allowed to move away with my child? What if my former spouse wants to move? If we can't agree on relocation arrangements, who decides, and how?
- Agreeing on custody and visitation out of court: Can we come up with our own agreement? Will the court honor our agreement? If we cannot come up with an agreement, what criteria will the court use to determine what is best for our child?
- Parenting plans: Do these differ for children of different ages? Should we keep the kids together or should we separate them? Who decides on this and how?
Physical Custody vs. Legal Custody
There are two types of child custody in San Diego Divorce and Paternity cases: legal custody and physical custody.
Legal custody orders of children address decision making power. The party with legal custody has the legal power to make decisions regarding the health, education, safety and the general welfare of the children.
Physical custody orders of children in address the day-to-day physical location of the children and orders specific scheduling for co-parenting. Physical custody orders can be the most challenging and highly litigated area of a paternity, legal separation and divorce.
Family Court Services Mediation
When you ask a family court for court orders for child custody or visitation, the San Diego Family Court’s Local Rules require that the parents of the children attend Family Court Services Mediation. Do not be confused by the term 'Mediation' because it is as much an interview and evaluation, as it is a Mediation. At the Family Court Services appointment, the parents may present information concerning the custody of the children to a court appointed mediator. The mediator will issue a Report and Recommendation to both parents, the attorneys, and to the family court judge. The Report and Recommendation takes into consideration all information obtained during the interview with the parents, review of the file, and contact with other third parties, in certain cases, and includes a recommended parenting plan. Each parent is entitled to receive a copy of the recommendation to review and respond to the information included in the report. Success at FCS mediation is crucial to the success of your child custody case as family court judges place a great deal of weight of the FCS mediator’s recommendation. Preparation by your family law attorney, or other professional, in some cases, is crucial.
A Parenting Plan
Parents going through a legal separation, divorce or unmarried parents looking to separate, can be are faced with the often difficult task of developing a co-parenting relationship that works best for the children involved. The best parenting plans and child custody arrangements are those that ensure the children have access to both parents on a regular basis.
In certain complex child custody cases, high conflict child custody cases, and cases where there are allegations of drug abuse, alcohol abuse, domestic violence, or mental illness, one parent may seek the intervention of a professional that specialized in addressing these issues as they relate to child custody and visitation. Sometimes that is private mediation. Any party seeking a private custody evaluation must have an agreement to do so from the other parent or that party must request the court order the private evaluation. Private mediation may be with or without the professional recommendation.
When a private custody evaluator conducts a professional recommendation, that is called a “730 Evaluation.” This evaluation is given to the court after the evaluator has met with both parents, the children and, has either interviewed or met with other third parties involved with the family. The evaluation is considered to be admissible evidence at the child custody hearing by agreement or court order, and holds a significant deal of weight with the family court judge. Private child custody evaluations can be extremely expensive, but can be worth the extra money in certain circumstances.
Child Custody Modification
Until a child emancipates by turning 18 years of age, or graduating from high school, child custody is always an issue. With few exceptions, once a child custody order is made, in order to request a modification of an order already in place, the requesting party has the burden to prove that there has been a change in the circumstances of the parents or children that would warrant a change to the court order for child custody.
A change in circumstances could be a significant change of a schedule, a change of location of one or both of the parents, or any number of significant changes effecting either parents’ ability to follow the old custody order.
Ex Parte Child Custody Orders
Generally, the Family Court will not order emergency orders relating to child custody unless there is a showing of immediate harm to a child, sexual abuse or the threat of a child being removed from the State of California without the written consent of the other parent. If these is a legitimate threat under any of these basis, then immediately contact the L:aw Office of Alexandra McIntosh at (760) 753-5357.
With regard to custody, in general, California law gives no preference to one parent of a child based on that parent's gender, age, wealth, disability, race, creed, religion or employment status. State law generally says that a court shall award child custody jointly, or if to one parent, it should be to the parent most willing to share the child with the other parent. Serving the best interest of a child is the guiding principle in all custody decisions.
Every situation is different. Developing your case will involve the presentation of facts that show that you properly nourish, nurture and care for your child while generously providing continuing contact with the other parent. If domestic violence is involved, these factors may not apply, and a court's discretion in awarding custody to a person convicted of domestic violence is extremely limited.
Child Support
Child support orders are driven by facts and numbers. Deviations from the formula that takes into account both parents' incomes, the amount of time children spend with each parent and certain other factors are rare but possible under certain circumstances. We assist our clients in:
- Ensuring that child support orders are based on accurate information from both parties — which sometimes requires research and investigation to expose hidden income or other unique considerations
- Developing other divorce strategies based on a clear picture of the likely child support order, in full view of tax consequences and other factors
- Resolving child support issues that arise in paternity cases
- Petitioning for or defending against modifications of child support sought due to substantial changes in either party's circumstances or the child's needs
While child support modifications are the most common post-divorce actions, it is important to recognize that spousal support is also modifiable when justified. We also represent clients who want to modify custody or visitation orders because they suspect domestic violence or substance abuse, and when other circumstances are preventing children from thriving.
Community Property/Asset Division
Property characterization is the process of establishing whether specific funds and other assets will be treated as community or separate property. Many complexities can arise during this crucial step.
Whether property will be treated as community property by the court primarily depends on whether it was acquired before the date of marriage or after separation. Gifts and inheritances are exceptions, however, and many disputes involve valuation of complex assets.
- Disputes that hinge on when and how specific assets were acquired
- Establishment of fair and accurate valuations for family-owned businesses and professional practices, real estate, special collections and other complex assets
- Issues of acquired interests and the right of reimbursement, which may be relevant when, for example, a once-separate asset has appreciated significantly during the marriage or one party's separate assets were used to pay the other's debts
- Potential tax consequences of various settlement scenarios, in order to provide our clients with the information needed for productive consultation with their accountants.
Under California law community property is any property acquired by a husband and wife during marriage with community earnings, accumulations, and profits during marriage. In California a marriage is generally viewed as a partnership where both husband and wife are viewed as having equal ownership of all assets acquired during marriage. Generally these assets include a home, furniture, automobiles, pensions/retirement, stocks, bonds, recreation vehicles, and collections. Likewise, debts incurred during marriage are community debts and both husband and wife are equally responsible for debt repayment.
When spouses separate and divorce, the court has a duty to determine the value of all community property and divide it equally. In most cases the court will determine the balance due on all community debt and order that spouses share equally in repayment of those obligations.
What is separate property?
Under California law separate property is any property owned by one spouse prior to marriage or acquired by that spouse during marriage by inheritance or gift. Additionally, interest or income from those assets are the separate property of that spouse. A spouse has no ownership interest in the separate property of the other spouse whatsoever. The only time a spouse may get an interest in the other spouses separate property is when there has been a commingling of those assets.
California law provides that separate property may be converted into community property by an agreement in writing between spouses. The court will determine if there is any separate property and, if there is, confirm its ownership to the spouse who acquired it.
How do California Courts divide debts?
The general rule is that all debts acquired during marriage are community debts to be divided equally between the parties. Some exceptions apply, however, with respect to characterization of a debt acquired during the marriage as well as the allocation of community debt upon legal separation or dissolution. It is possible to have more than one half of the community debt ordered against one spouse.
What is Asset Valuation?
Unfortunately there are spouses married to business owners who have no idea the value of the community business. What is done to determine the value ? is a common questioned asked. The answer - hire a forensic Expert.
A forensic expert has the credentials in accounting and business to go through the books and records and make a determination on the value of the business. In some instances, the husband hires a separate expert than the wife. In other instances, one expert is chosen between the attorneys in hopes that a fair valuation is determined by the expert.
Often times separate experts are hired if the divorce is heated and the parties are contesting most aspects of the divorce. The benefit is that each party has their own witness if the matter goes to trial.
Are my spouse’s student loans considered community debt?
Generally student loan debt is considered to be the separate debt of the borrowing student spouse. However, depending on whether the or not student loan proceeds were used to pay for household expenses, to acquire property, these debts may be allocated and treated as community debt. The length of marriage can also play a part in the allocation or division of the student loans.
Is a gift between a husband and wife considered community property?
Current case law in California says that whether a gift between spouses is considered to be a “transmutation” of that property from community property to separate property depends on the value of the gift compared to the overall value of the marital estate.
If the gift is substantial compared to the value of the estate, then the gift will probably be deemed community property. However, if the gift is relatively inconsequential when compared to the value of the marital estate then the court will most likely find that the gift is the separate property of the other spouse.
Divorce
Every divorce situation is different and should be approached as a unique matter. There is an option for legal separation, as well as dissolution of marriage. Contact the Law Office of Alexandra McIntosh at (760) 753-5357, and we can help you through this difficult time.
First Step - Filing a Petition for Dissolution
The first step to filing for divorce is to file the Petition for Dissolution of Marriage or Domestic Partnership. This is a three page document that lays out the basics of the relationship including the date of marriage, the date of separation, information relating to the minor children of the marriage, if any, the reason for the divorce, and the request being made to the court for a judgment of dissolution.
Service of the Petition for Dissolution
The party that files the petition is known as the Petitioner and the opposing party is known as the Respondent. The Respondent must be served with the Petition in order for the divorce process to move forward. Once served, the Respondent must file a response within 30 days of personal service. If a Response is not filed by the Respondent, then the Petitioner may choose to request that a default be entered against Respondent.
Once the Petition is properly served, the Divorce proceedings begins and your case either moves toward settlement or trial.
Sixth Month Waiting Period
In California, the parties cannot be officially divorced until sixth months have passed . . . this is six months from the Respondent is personally served the Petition for Dissolution. This does not mean that the case cannot settle within the sixth month waiting period. It only means that the marital status will not terminate until this waiting time has passed.
There are times when a divorce case settles relatively quickly and a judgment of dissolution is entered by the court prior to the sixth month time period lapsing. In such cases, all provisions of the settlement go into effect upon the judgment being entered, but the actual date when the parties are returned to the status of 'Single' is at a later date. .
Automatic Temporary Restraining Orders
Once the Petition for Divorce has been filed and served, there are automatic temporary restraining orders (ATRO's) that go into effect immediately. These orders stop either party from hiding assets, selling assets, or moving assets including cash, stocks, retirement accounts, etc. They also stop either spouse from canceling or changing any health, dental, auto, and life insurance plans without the written consent of the other spouse or an order from the court. It is very important that a party understand the ATROS and abide by them. Violation of the ATROS could result in sanctions and attorney’s fee orders against you.
Fiduciary Duties During Divorce
Each spouse in a Divorce owes a fiduciary duty to the other spouse that he or she would owe to a business partner. Marital assets must be handled business assets and managed and cared for in the same manner. If the parties own a home together, then the house must continue to be maintained by the party living in the house. If the parties own a business together, then the business must continue to be run and maintained with as much responsibility and care as it was during the marriage. Intentional or negligent damage to a marital asset due to one spouse amounts to a breach of that spouse’s fiduciary duty to the community and to the other spouse.
Breach of fiduciary duty is taken very seriously by California Courts. In particularly egregious cases, the court may award an entire asset to the non-offending spouse in a case of breach of fiduciary duty.
Financial Disclosure Requirements
A party cannot obtain a legal separation or a divorce unless there is a full disclosure of all assets and debts. California has very strict requirements when it comes to financial disclosures between parties in a divorce case. Within 45 days of the filing of a petition for divorce, each party is required to make full disclosure of all assets and debts as of the date of disclosure and to serve on the other party with a 'Preliminary Declaration of Disclosure' along with the supporting documents.
Each party must complete a Schedule of Assets and Debts and a Income and Expense Declaration. The Schedule of Assets and Debts is a full list of all assets and all debts including the date of acquisition, the current fair market value estimate, and any money owed on an asset. The Income and Expense Declaration is disclosure of each party’s monthly income and monthly expenses. This document will include information related to earnings, expenses, tax filing, educational background as well as assets such as bank and investment account balances.
Full financial disclosure is one of the most important aspect of the preparation of a divorce case. If one party discovers that the other party has willfully failed to disclosed assets or income, it can have devastating consequences on the non-disclosing party including sanctions, attorney’s fees and the setting aside of an judgment of legal separation or dissolution.
Legal separation is a process that enables spouses to live separate and apart under a separation agreement or judgment. Although spouses do not live together and will have completed property division and established child support, custody, visitation and spousal support, they are not legally divorced and therefore cannot remarry. Legal separation may be an option that a married couple will wish to consider for religious reasons, to maintain health or medical insurance benefits, or for personal reasons when divorce is to final or aggressive an action.
Uncontested Legal Separation or Divorce
Although it may be a complicated process that will require agreements regarding difficult issues, a divorce does not have to be an expensive, adversarial process. If you and your spouse are on amicable terms and agree upon, or believe you can reach agreements regarding, the terms of your divorce, you may be able to complete an uncontested divorce. You can save a great deal of time and money and spare yourself the stress associated with a contested divorce in family court by considering an uncontested legal separation or divorce.
In an uncontested divorce, spouses reach their own agreement regarding all matters involved with the divorce - custody and visitation, child support, spousal support and property division - without the intervention of the court. They may agree on these issues initially or some negotiation may be necessary, but the important thing is that the spouses can agree without needing to involve a judge.
An uncontested divorce may have numerous benefits for a family. Not only is it less expensive and time consuming, but it is also often much less stressful than a divorce completed in court. When spouses reach their own agreements regarding custody, property and support, this also means that they can decide what works for them, rather than be forced to comply with a judge's ruling based upon California divorce laws. The Law Office of Alexandra McIntosh can be reached at (760) 753-5357 and we can take care of every aspect of an uncontested case - start to finish - so that you never need to see the inside of a court room!
High Net Worth Divorce
Some aspects of a divorce involving a high net worth couple are the same as those for a couple of modest means. However, a high net worth divorce presents additional challenges. Issues involving asset valuation, taxation of appreciated assets, and the possible payment of alimony require careful analysis and creative solutions.
The attorneys at the Law Office of Alexandra McIntosh have experience in divorces involving all types of property division issues, including divorces involving family-owned businesses, complex property holdings, dual income couples and high net worth couples. We work tenaciously to protect the property rights of our clients at all stages of the legal process.
In divorces involving complex property issues, we frequently retain the services of financial experts, such as a business valuation specialist, a tax accountant, a forensic accountant, and depending on the assets involved, various types of appraisers. These professionals can provide important insights into key financial issues and can lay the groundwork for the negotiation of a favorable property settlement. However, if necessary, we will be prepared to go to trial.
Our goal in every case is to protect the rights and interests of our client, while obtaining a settlement that is fair, and that enables the client to move forward in his or her life.
Domestic Violence
Domestic violence takes many forms and has serious legal and emotional implications for families. Real and false allegations of violence can complicate divorce proceedings and have a significant impact on child custody and other family law matters. Domestic violence issues call for legal advice and representation.
If you have been a victim of domestic violence and your main concern is safety, you need an attorney who can help you quickly obtain the protection you need. If appropriate, we can help you secure a temporary or permanent order and help you understand the legal consequences of a protective or restraining order.
If you have been accused of violent behavior and your rights are at stake, it is essential to have an attorney who can help you protect those rights. We are highly experienced in representing clients in matters involving restraining orders and protective orders. We can help you understand and address the impact of these orders on support, custody, employment, firearm possession and other important issues. These orders can affect your career, especially active military and professional law enforcement.
- While the process for obtaining a temporary restraining order is often straightforward, the court will look more closely at the situation and hear testimony from the accused person prior to entering a permanent restraining order.
- The issuance of restraining orders not only restricts a person's right to possess a firearm and may have implications on his or her employment, it often has a dramatic impact on orders for custody, visitation, and potentially spousal support.
- Other types of restraining orders come into play when a divorce summons is issued and served, covering issues such as out-of-state child removal and unauthorized transfers of property — and we advise our clients accordingly.
Grandparent Visitation
Under California law, a grandparent can ask the court for reasonable visitation with a grandchild. To give a grandparent reasonable visitation with a grandchild, the court has to: Find that there was a pre-existing relationship between grandparent and grandchild that has “engendered a bond.”
Move Away
A divorcing parent's desire to move away with children can lead to an intense custody dispute. When a custodial parent wants to relocate after divorce or resolution of a custody case outside of divorce, modifications of other orders are often necessary.
Paternity
Establishing and documenting the biological father of a child may be an important step for everyone involved. As a mother, you may want to hold the father accountable to his obligation to pay child support and have other important goals driven by the welfare of your son or daughter. As a man, you may want a definitive answer as to whether you fathered a child and to exercise your right to a parental relationship. For the father, if you have any doubt the child is actually your biological child, then you MUST take immediate steps to make the determination, because after two (2) years, that child will be legally presumed as your child and you will be financially responsible.
Post-Judgment Enforcement and Modification
Although your original separation or divorce agreement may have worked initially, there may be a significant change in circumstances that has made compliance difficult, inconvenient or impossible. In these situations, you may be able to pursue a post judgment modification that will allow you to alter your existing child custody, visitation, child support or spousal support arrangement. There may also be the situation where you are owed money from a prior agreement and your former partner or spouse has not paid what you are owed.
Not just any change in circumstances may qualify for a post judgment modification. If you are to pursue a post judgment modification, you will need to prove that the change is significant enough to warrant the time and expense spent in pursu1ing an change of your existing agreement in court. Some examples of situations that may qualify for a divorce modification may include:
- Involuntary job loss or demotion that has dramatically changed one parent's income
- The relocation of a custodial parent, when the move is far enough to significantly impact the child's life
- Drug abuse, alcohol abuse or domestic violence at the custodial parent's home, placing the child at risk
- The cohabitation or remarriage of a spouse
Pre-Marital and Post-Marital Agreements
Pre-Marital agreements (also known as Pre-Nuptial agreements) are governed by the Pre-Marital Agreement Act which has been codified in the California Family Code. There are a number of requirements and guidelines that must be met to ensure that the pre-marital agreement is upheld in a court of law, should it ever be necessary. To ensure that your pre-marital agreement is consistent with public policy and meets the requirements necessary to make it enforceable in a court of law, it is best to have a knowledgeable and experienced attorney assist you in the matter.
Post-Marital agreements are also becoming more common, as married couples wish to identify their individual financial rights and
obligations after entering into a marriage.
Spousal Support/Alimony
Spousal support — sometimes called alimony or maintenance — is the subject of many myths and misconceptions. Awards of any spousal support at all are far from automatic, and California judges have broad discretion in determining how much will be paid for how long when they do award spousal support.
Whether you believe you should receive spousal support or may face a demand that you pay it, the lawyer you choose to represent you could prove pivotal for your financial future. As opposed to child support, which is based on relatively clear, consistent statewide guidelines, spousal support outcomes can vary widely based on the approach you take, the court where your case is heard, your attorney's level of preparation and other factors.
What factors does a court consider in deciding on spousal support?
On a temporary basis, between the time of separation and the time of trial, the court has a program that is used to calculate spousal support. On a permanent basis the court looks to the factors contained within Family Code Section 4320:
Under Family Code §4320, the court shall consider all of the following circumstances:
(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the
supported party t acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills of employment.
(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
( c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property of each party.
(f) The duration of the marriage.
(g) The ability of the support party to engage in gainful employment without unduly interfering with the interest of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) Documented evidence of domestic violence.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting within a reasonable period of time applies to a short term marriage. In the case of a marriage of long duration as described in §4336, a ‘reasonable period of time’ for purposes of this section generally shall be one half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, §4336, and the circumstances of the parties.
Divorce Strategy
When hiring a family law attorney there is a difference between a highly skilled family law negotiator and a general practice attorney. Almost any competent lawyer can figure out how to file divorce papers in California. A skilled family law attorney, however, is more than that. He or she evaluates each case based on its merits and strategically determines what is in the client's best interest.
Your divorce lawyer should be your advocate and your counselor from whom you will receive a strategic plan for your case. This strategy is not always seen in law firms but you will see it at the Law Offices of Alexandra McIntosh. This knowledge is usually acquired from years of practice in family law courts, and experience and knowledge of the local courts, judges, and procedures, enables our law firm to see how your case is unique.
Choosing the right attorney to represent you is probably the most vital decision when it comes to your legal separation, divorce or paternity action. With the skill of negotiating, your case may settle and close sooner, which is less costly for you. The additional benefit of a qualified lawyer is the comfort of knowing that if there are strong issues before the court, you have a strong, knowledgeable and aggressive litigator in your court.
Your advocate attorney's advice may not be what you want to hear. However, you should choose an attorney that tells you what you need to hear. The best advice is given by the attorney who has the courage to give you the straightforward truth of what you can expect. You must be aware that in divorce proceedings, there is no win or lose. If the divorce is finalized and is equitable, you have succeeded. As a client of our law firm, you will be provided the facts and the alternatives so that you can make an informed decision with the knowledge and counsel of an experienced family law attorney. You don't always get a second chance to litigate matters that have already been heard before the judge.
Our law firm has a strong referral base. We take pride in clients who refer their friends, family and relative to us. Better yet, we see ex-spouses who were on the opposite side of the case referring their friends to our firm. Aggressive and skilled family law attorneys from the Law Offices of Alexandra McIntosh, have the background and the ability to analyze and advise you on the best strategy for your case.
