Family Law Litigation
There is more to ending a marriage than just filing court papers. There is the complicated matter of devising a cooperative parenting plan in the event you have children, that avoids parental conflict, as well as planning the rest of your life. As a boutique law firm VM works closely with its clients to create those plans. We offer full-service support that anticipates all potential complications and any issues regarding child custody and visitation plans, the division of marital property, asset and business valuation and retirement accounts. A lawyer’s sound advice is critical in family law matters. The lawyers at VM will be by your side every step of the way and guide you through the process.
Divorce actions and child custody cases are the most hotly contested and emotional matters a person can experience in court. Is your wife unlawfully denying you visitation with your children? Has your husband moved out, frozen all the bank accounts and frozen your credit cards? Has he stopped paying child support for months and getting away with it? Have you been falsely accused of domestic violence or child abuse by the other spouse to get the upper hand in a custody action? Does your spouse have a new mate that she/he is introducing to your children as their next parent? These issues are prevalent and require a law firm with decades of experience aggressively preventing and correcting these problems. VM’s knowledgeable and aggressive attorneys are well-known and widely recognized for handling the toughest divorce, custody and family law cases. The firm’s lawyers successfully handle hundreds of divorce, custody, support and family law cases each year, and are equipped to get the best possible results for their clients. If you need the best possible outcome VM’s team of lawyers is ready to fight for you.
The divorce process starts with the filing of a Petition for Dissolution. The Petition, along with a copy of the Summons, must thereafter be served on the Respondent by personal service. A family law Summons contains Temporary Restraining Orders (TRO) which are automatically effective upon both parties; the Petitioner upon filing, and upon the Respondent, immediately upon personal service. This TRO is intended to maintain the “status quo” and preserve property by preventing the transfer, sale or disposition of any property by either party without the express written consent of the other, or court order. This TRO remains in effect until the final Judgment of Dissolution is issued. However, often times a party violates the automatic TRO to gain an unfair advantage and cause undue stress on the other party. It is imperative that you have an attorney representing your interests from the outset to prevent such violations and to preserve your share of the marital assets.
Either party in the divorce or custody proceeding may feel a need for the court to issue temporary orders, i.e. orders between the date the Petition is filed, and the date a final Judgment is granted. Temporary orders allow the parties to establish a status quo which will remain effective while the matter proceeds to Judgment, or until further modification by the court. Temporary orders can include orders regarding the exclusive, temporary possession and use of the family residence, i.e. move-out orders; the payment of community debts; legal and physical custody of the minor children including visitation and travel with the minor children; child and spousal support payments; spousal support; and an order that one party advance monies for the payment of the other party’s attorney fees subject to a future re-allocation.
Other orders, which can be issued by the Court upon request and prior to the final judgment are Domestic Violence Restraining Orders (DVPO) and Civil Restraining Orders (TRO),to prevent acts of violence and harassment, to protect a party, and if necessary the minor children, from imminent harm or danger. If granted, the court will restrain the actions of the offending party, by among other things, ordering them to stay at least 100 yards away from the residence and place of business of the victims, and if necessary restricting or prohibiting contact with the minor children. In the case of a DVPO, the may consider even more restrictive orders, as well as getting law enforcement involved if there is any question about a violation of the order.
VM has extensive experience in both prosecuting and defending DVPO and TRO hearings. If your safety, or the safety of your children is at risk, or you have been falsely accused of threatening or harassing your spouse, VM can immediately take legal action to protect your rights. In addition, even if you are not going through a divorce, or have not yet filed a petition, VM’s attorneys can obtain additional orders for child support, spousal support, a move-out order to kick out the restrained person from a home, and other orders to be included in the request.
The State of California mandates that family courts issue orders to assure the health, safety, and welfare of children, and frequent and continuing contact with both parents. Parents are encouraged to share the rights and responsibilities of child-rearing, consistent with the best interest of the child. The court will also tailor its orders to be consistent with any protective or restraining orders that are in effect and concern the parties or the minor child(ren). The lawyers at VM counsel clients at all stages of the litigation to ensure the client is acting in the best interests of the minor child(ren) so that in crafting a parenting plan that is in the best interest of the child(ren) it will also maximize the custodial time of the client.
Among the factors a court will consider in determining and evaluating the best interests of the minor child(ren) are:
• a history of domestic violence
• parental alienation
• the parents wishes
• the child’s wishes (if the child is of sufficient age to communicate their wishes)
• any mental or physical disabilities
• financial and economic considerations of the parents
• the proximity of the parent’s to each other and the child(ren)’s school
• the parties work schedules and other commitments
Domestic violence was specifically added to the Family code via the Domestic Violence Prevention Act. (DVPA) The DVPA, beginning at Family Code §§6200 et seq. defines abuse as intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, or to place a person in reasonable apprehension of imminent serious bodily injury to that person or another. Domestic Violence is a quasi-criminal action, which has many negative results. Once an individual is found to be liable for domestic violence, the domestic violence presumption against that party having custody of a minor child is attached. The presumption is rebuttable, thereby meaning with the right evidence and facts, the presumption can be overcome. However, as a practical matter it is better to defend against the domestic violence act from the outset, rather than to rebut the presumption at a later hearing. Domestic Violence Restraining Orders are not limited to married persons, but can be obtained by persons who previously had a dating relationship with the restrained person, are related to the restrained person, are parents of a common child, and persons who lived together.
A Domestic Violence Restraining Order grants the protected person protection from the restrained party. This could include protection such as personal conduct orders that restrain the restrained party from doing the following: harass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, etc. Also, the orders could include stay-away orders that limit the restrained person from being within a set number of yards from the protected person, their home, their work, school, and other places listed by the protected person in their restraining order request. Your greatest chance of success in obtaining permanent restraining orders is to hire experienced and aggressive lawyers to handle your case. Failure to successfully prosecute or defend a DVPO hearing can have severe consequences in your case which could include limited custody and visitation rights, implications for spousal support, and legal presumptions which severely impair and restrict your freedoms
“Spousal Support,” also referred to as alimony, means support of one spouse by the other. The contract of marriage is, among other things, a promise between a husband and wife of mutual support, which could extend well beyond the termination of the marriage if circumstances warrant. Generally, a court will order the higher earning spouse to support the non-working or lower earning spouse, with the goal that the supported spouse become self-supporting. Spousal support orders can be both temporary and permanent, but rely on distinctly different and unique criteria.
Temporary spousal support orders are typically need based orders, based solely upon the earnings of the various parties, and little else. The temporary spousal support orders will remain in effect until Judgment has been entered, or until further order of the court. To the contrary, for permanent spousal support orders, California Family Code Section 4320 list numerous factors a court must consider, before determining whether or not permanent spousal support should be ordered, and if so, for what duration and in what amount. It is imperative that you have qualified and knowledgeable counsel representing you at the earliest stage possible, because often times the court’s temporary orders are adopted as the permanent orders, despite the fact that the criteria for temporary versus permanent spousal support orders are very different. The attorneys at VM will vigorously prosecute and defend temporary and permanent spousal support orders, as well as seek modifications or prior orders, to ensure their clients are not being taken advantage of or victimized.
Premarital agreements, also called prenuptial or antenuptial agreements, are contracts between two people who intend to marry each other. These agreements typically address issues relating to the parties’ property and income during the marriage, after the marriage (if it ends in divorce), spousal support waivers, and after the death of one or both spouses. Successful business people, celebrities, and people who have been married previously tend to enter premarital agreements more often than couples entering their first marriage. They are also common when one person brings significantly greater financial assets into the marriage.
Prior to entering into the agreement, both parties must fully disclose their assets, income and liabilities to the other, and they must enter into the agreement in good faith. Premarital agreements are extremely tricky and are often voided and ruled unenforceable unless strict adherence to statutory guidelines and case law is observed. A waiver of spousal support may be enforced only if it is executed by intelligent, well-educated persons, each of whom is self-sufficient in property and earning ability, and both of whom had the advice of counsel regarding their rights and obligations as marital partners at the time they executed the waiver. A party cannot draft or enter into a premarital agreement without experienced and qualified attorneys by their side. The attorneys at VM are highly skilled drafters of premarital agreements, and routinely work with other skilled attorneys to represent the other spouse to ensure that they cannot later claim that important financial information was withheld, or they were coerced into signing the agreement. A well crafted premarital agreement is a very effective legal tool to protect your Investments and bank accounts, home, pension and 401(k), professional practice, and your separate property and financial assets.
Paternity actions arise when a child is born to parties who are not married. A paternity action is similar to a divorce in that the custody and child support are related to each other. One of the distinctions between paternity matter and divorce is that our society allows for the parties to enter into a Voluntary Declaration of Paternity when the child is born. If that agreement is not reached and/or if the father is not included on the birth certificate, then paternity must be established by an Agreement by the parties or by a DNA test.
Most people assume that because they reside in California, which is a community property state, that each party walks away with 50% of all the property. However, the division of property is quite a technical area of family law with numerous exceptions in equitable property division laws. Although the “community” may have gained an interest in an asset or property, it may very well be much less than 50%. The family residence is a perfect example. It is typically one of the largest individual assets that the parties will need to divide. However, simply because it was the family residence, does not mean the “ marital community” owns the property on a 50/50 basis. There are numerous issues to consider when dividing real property, such as how title is held; the source of the down payment; reimbursements; and any issues regarding wasting of the asset. Other assets such as retirement accounts, IRAs, 401(k) accounts, stocks, bonds, personal property, and other items of value also must be divided, and are likewise subject to many exceptions. Debts are treated the same as assets, and must also be divided equally. However, like assets there are exceptions, as well as reimbursements for payments made toward a particular obligation with his separate property funds, which may affect the ultimate division.
It is of utmost importance that your attorney is well versed in the law and propounds the proper discovery to flesh out these issues and protect your interest. The difference between an attorney from VM and non-skilled attorney could literally cost you hundreds of thousands of dollars. The division of such assets can be divided in-kind (each person getting the same number of shares of stock) or equalized (a value is established and the party receiving the asset would pay the other party half of that value).
In dissolution matters involving large community estates, it is necessary to complete a comprehensive accounting of all assets involved in the marriage. This process begins with a thorough investigation during the Discovery phase of the litigation. Using the information gathered, we work with appraisers and forensic accountants to correctly calculate community property and separate property interests. This is necessary for equitable division of the community’s assets upon finalization of the divorce.
If you suspect your spouse may have hidden assets or business relationships, you will need an attorney with the resources to investigate and trace unreported assets and income. Our office uses veteran private investigators to aid in the investigative process when the opposing party is attempting to conceal their income.
POST JUDGMENT MODIFICATIONS
Child Support, Visitation and Spousal Support orders are subject to modification upon request by a party, if it is in the minor child(ren)’s best interests, or there has been a material change in circumstances that warrants a modification. Numerous factual scenarios could support such a request. Among the more common are that one spouse is earning significantly more or less money than when the order was made; one parent wishes to move out of the jurisdiction; or an older child no longer wishes to visit with or reside with a parent.
California law requires mediation whenever there is an issue of custody or visitation with a minor child and when these issues appear on either party’s court papers. Mediation is a process by which the parties informally, i.e. without court order, reach agreement on child custody and child visitation parenting plan that is mutually agreeable to the parties. Often it is really the first opportunity since the separation for both parents to sit down and try to work out an agreement on how to raise their children. If the parties are able to arrive at cooperative “Parenting Plan” for the custody and visitation of their children, the plan will be documented by the mediator and submitted to the court to become a part of a court’s orders. If the parties are unable to reach any agreement, the mediator will simply so notify the court and the Judge will determine what custody and visitation orders the parties will abide by, based upon evidence and argument from the attorneys.
The attorneys at VM advocate for mediated resolutions when possible, as often times the negotiated result mirrors what a court would otherwise order, but the parties are spared the time, stress and expense of litigation. In some instances a mediated agreement is better than a Judge’s order, since a Judge is not concerned with the wishes of the parents, but for the best interest of the child(ren). Parent’s sometimes find that the benefit of a negotiated parenting plan outweighs the risk that the court may be less liberal in it’s ruling. Furthermore, a Judge is simply not familiar with either parent or the family situation. Also, the give-and-take that a mediation agreement results in, an Order that both parents can live with, is beneficial to all involved.
DOMESTIC PARTNERSHIP RIGHTS
While California law currently does not recognize same-sex marriage, registered domestic partnerships fall within the Family Code and afford the same rights to same-sex couples as married parties. They also require similar dissolution proceedings in order to be terminated. Many of the same issues arise during the termination of same-sex domestic partnerships such as the division of assets, custody, and support. Our attorneys are experienced in handling the termination of domestic partnerships and any subsequent legal issues that arise.
Discovery is the pre-trial process by which parties exchange various formal requests in an attempt to uncover relevant information for use during the litigation process. Evidence uncovered during the Discovery process is used to present the parties’ case in settlement negotiation and trial. Our firm employs an entire department dedicated to this essential purpose. Very few boutique-sized law firms have comparable resources to engage in effective and thorough Discovery. Our Discovery Department has extensive combined legal research and writing skills that enable us to apply for court orders when a party or witness refuses to comply with discovery. When forced to seek court intervention in compelling compliance with discovery, we have an excellent track record of not only winning on our motions, but obtaining orders for monetary sanctions and attorney’s fees on behalf of our clients.
Uncontested divorce may have many benefits that may be beneficial to both parties in a divorce action. Uncontested divorces save a great amount of time and attorney’s fees for the parties involved. The parties reach an agreement on all relevant issues which then gets drafted into stipulated judgment and filed with the court. There will be no need for any court appearances and the divorce is generally obtained much more quickly and amicably. It is the efficiency of a much simpler process where couples determine their own outcome and address the needs of their specific situation, whether they regard property settlement, or the establishment of custody and support terms.
Retirement benefits earned during a marriage are considered community property and are subject to an equal division. Claiming or protecting retirement benefits is one of the most critical aspects of property division in California divorce cases. VM has the knowledge and experience to deal with complex retirement claims. Available retirement funds may come from IRAs, 401ks, employee pension programs or other investments set aside as a means of providing retirement income. In cases where both spouses have retirement plans, they may agree to keep their own plan in its entirety by forfeiting any claim to the other spouse’s benefits. Once each parties rights have been determined, a “Qualified Domestic Relations Order” (QDRO) must be prepared and filed to tell a plan’s administrator the amount of benefits that should be paid to the alternate payee.
There is quite a bit of misunderstanding concerning grandparent visitation in California. Grandparents may petition for visitation with their grandchildren pursuant to the Court’s discretion. A Court will only make an order to Grandparent visitation if the Grandparents had an existing relationship prior to petition and the Court determines that the it is in the children’s best interest. There is a presumption that it is not in the children’s best interest to interrupt or interfere with the rights of either natural or adoptive parent. VM has extensive experience both prosecuting and defending visitation claims by Grandparents.