1. Do the answers to the following questions constitute legal advice?
No. These are general questions and general answers for general situations in the state of California only. In no case do the following answers constitute legal advice or create an attorney-client relationship between the reader and the Law Office of Vernon L. Ellicott. Please contact us for answers to specific questions about your case.
2. What is the difference between a legal separation and a divorce?
The legal process is the same. You can divide property and get both spousal and child support in both cases. Divorces cannot be final for at least 6 months, while a legal separation can be final almost immediately. Obviously, you cannot remarry if you are legally separated.
3. Do I have to file for divorce to get child and spousal support? Can I get child or spousal support if we are not married?
You can get child support and spousal support without filing for divorce or legal separation. You can get child support if you were not married, but you cannot get spousal support or, in most cases, an order to divide property unless you were married.
4. How much support can I receive from my husband, wife, or the child's parent?
a. For child support, the answer depends on two things: income (yours and his/hers) and the time share you have with the child(ren). The more income you make, the more support you pay. The more time you have with the children, the less support you pay. You can be ordered to pay child support even if you have a 50/50 time split, if you earn more than the other parent.
b. For spousal support, the answer depends on your incomes. The greater the difference in the two incomes, the more is paid.
c. There is a state mandated formula for both child and spousal support. However, no one, including judges figures support by hand. Every reputable attorney uses a computer support calculation program to calculate support.
5. How does the court determine how much support I can get?
a. There is a state mandated formula for both child and spousal support. However, no one, including judges figures support by hand. Every reputable attorney uses a computer support calculation program to calculate support.
b. The courts do not consider your monthly expenses in calculating support, with a few exceptions. The courts consider the interest expense and property taxes you pay on your house, because that is tax deductible and supposedly ads to your disposable income each month. Health insurance, IRA contributions, and union dues are also considered. Childcare is usually divided equally.
6. How does the court determine who gets custody of the child(ren)?
a. In Los Angeles County, the court has a one-hour conciliation court meeting at the courthouse, where you try to reach an agreement with a mediator at the courthouse. If you cannot reach an agreement, and the judge does not want to decide, then the judge may order some sort of custody evaluation. These run an additional $3,500 to $7,500 and the parties usually divide this cost equally. The judge will make an order after he or she hears from the evaluator.
b. In Ventura County, there is a two to three-hour mediation at the courthouse. If the parties agree on custody, then the agreement becomes an order. If the parties do not agree, then the mediator makes a recommendation. The mediator=s recommendations almost always become the orders the judge makes. Thus, these mediations are extremely important. The first orders made often become permanent orders and can be very difficult to change later on.
c. In Los Angeles County, there is a morning or afternoon mediation that attorneys do not attend. There is no recommendation from the mediator to the court, but agreements are binding.
7. Do I have to go to court?
No. The best solutions are usually reached out of court. I always encourage my clients to try to reach an agreement out of court. That is not always possible, and there are times when I advise clients to go to court immediately. For instance, if your spouse or the child=s parent is about to leave the state with the kids, you should go to court immediately for an order preventing them from leaving with the kids. You should also go to court immediately if someone is about to take a large amount of money from your account or the family business. You should go to court as soon as possible if you do not work and your spouse or the child=s parent refuses to pay support.
8. What happens when I go to court?
Court appearances are fun for me, but not for most people. Going to court usually means sitting for a while waiting for your case to be called, and then having ten to 30 minutes to argue your case before the judge. It is not unusual to have a judge tell you to go out and try to reach an agreement in the hallway and to return with the results. There are often 25 or more cases before a judge every day, so there may be a lot of people and a lot of waiting. In some courts, the judge takes the attorneys back into the judge=s office to discuss the case. In these cases, the attorneys discuss the case informally with the judge and the judge tells them what orders they can expect. The attorneys then discuss what the judge said with their client and either reach an agreement, or have a trial if the client wants to take the risk.
9. Do I really need an attorney?
a. Going through a divorce, custody battle, or support case without an attorney is like driving without a steering wheel. You will get somewhere, but your chances of getting where you want to go are pretty small and you are likely to get hurt along the way. Furthermore, attorneys can steer you away from problems you have not considered that are not problems now, but which will be problems in the future. Most people do not talk well in front of judges. Most people who think they talk well in front of judges do not talk as well as they think they do. Most people who represent themselves focus on things that are not that important at the expense of the really important things. Attorneys are trained to recognize and deal with the most important issues. Not every problem can be solved in court.
b. Paralegals are people who fill out court forms in an independent office or work for an attorney. Some attorneys have paralegals or legal assistants who work for them. Independent paralegals can fill out forms, but they cannot give you legal assistance under the law. They cannot tell you what is a good answer nor what is a bad answer. They cannot even tell you what questions to answer. Some paralegals who work independently of attorneys try to tell you that they are cheaper than an attorney. That is true at first. Paralegals do cost less initially. However, paralegals cannot represent you in court or in negotiating with an attorney. Paralegals are inadequate where there is domestic violence, real estate, a company, children, or a large income. That is because they simply do not have the training to see all the details which need to be covered to protect you. Paralegals will cost more in the long run if you have to try to change an agreement you should never have agreed to, or if a property settlement does not say things the right way.
c. It is worth it to hire an attorney? How much are your children worth? How much is time with your children worth? How much is the pension worth? How much debt is there? Can you fight your spouse or the child=s parent on your own? Can you handle the emotional stress of a custody battle on your own? Can you evaluate the decisions, both financial and custodial, on your own? Can you complete the court forms on you own? Do you know what forms to complete? Can you get all the information you need from the other side? Do you know how to get that information? Do you know how to attach wages or property? Do you know how to complete the case? Do you know how to serve the other side and what file with the court? Do you know how to make the pension plan pay you? I can and I do.
10. How much does it cost?
a. Most attorneys bill by the hour, between $250 to $650 per hour with the better and more experienced attorneys charging more. Most attorneys take a retainer and bill against it. Most retainers run between $3,500 and $15,000. A common retainer is $5,000. The amount of the retainer depends on the complexity of the case. A divorce can be done for $5,000 or less if the parties reach an out of court agreement.
b. Cost is an important factor, but most important is to be comfortable with your attorney. Do you trust them? Do you think they will do a good job for you in court? Do not confuse a mean attorney with a competent attorney. A mean attorney may cost you more because they fight when they ought to talk with the other side. On the other hand, there is a time to fight. Will they fight for you?
11. What is a restraining order, and how do I get one?
a. Sometimes there is violence against you and/or the children. No one should tolerate physical violence. I encourage everyone who has been hit, kicked, punched or threatened to call the police immediately and file a report. This will help you in the future.
b. Call me immediately if you are the victim of physical or sexual violence by your spouse or the child's parent. It is not your fault and you should not accept any responsibility or guilt. Times like this require good legal advice and the ability to quickly get a court order for your protection.
c. Ex parte means without notice. That is, little or no notice is given to the other side before you go to court and get a restraining order. I can get an ex parte a "kick out" order, which requires the other party to leave the house immediately with only their clothing or get temporary restraining orders (TRO) until a hearing that takes place 15 to 25 days later. These are only given if there is a very recent physical or sexual attack on you or one of the children. Sometimes a judge will give a "kick out" order or TRO if there is a history of physical violence and a very recent threat, but these are not given out routinely without a lot of history and a very real threat.
12. He (She) is threatening to leave with the children. What can I do?
a. If you are married, there is nothing you can do short of a court order. Married people have joint legal and physical custody simply because they are the parents. They can leave the state or country without your permission. Married parents should immediately seek an order preventing them from leaving the state, or file a petition for dissolution which has automatic restraining orders preventing the parties from leaving the state. That way, leaving the state becomes a crime.
b. If you are not married, then you should immediately file petition for paternity or a domestic violence petition to determine custody. Again, the automatic restraining orders prevent the other party from leaving California without your permission.
c. DO NOT WAIT UNTIL THEY LEAVE! SEEK ORDERS FROM THE COURT IMMEDIATELY!
13. Does it make any difference if I file first?
Not much, but it does give you some control over how things start out. Normally, the party who files first, the petitioner, prepares the closing documents or judgment for the case as well.
14. We weren't married. Can I still get support and custody?
a. Absolutely. In fact, if you weren't married, the mother should file a petition for support immediately so I can attach his wages as soon as possible.
b. Fathers have very few rights without a judgment of paternity. Fathers should protect their ability to have custody and visitation by filing a petition for paternity. Of course, that opens the possibility that the father would end up paying support.
15. He (She) won't pay support. What can I do?
a. If you have an order for support, I can do a wage assignment and collect directly from his employer.
b. If you do not have an order, then file an Order to Show Cause immediately to get an order.
c. If you are owed a lot of back support, I suggest filing a contempt citation and threaten him with jail.
d. REMEMBER: Past due child and spousal support accrues interest at 10% per year and grows rapidly.
16. Can I move away with the children?
a. Not if there are orders keeping you in California. You can move to a different county unless there are orders not to move.
b. Physical custody makes a big difference here. The parent with primary or sole physical custody can usually move wherever they want, although not always without a court order. The amount of time each parent spends with the children makes a big difference in move away cases.
17. Does it matter if I move out without the kids?
Yes, in a big way!
The party who moves out without the kids loses the custody battle at the beginning. The in house spouse will keep the kids, the house, and get support from the out-house spouse. Do not move out until you consult an attorney!
Thousand Oaks Office
Certified Family Law Specialist*
(*State Bar of California),
Also Licensed in Texas.
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