Children & Separation or Divorce

February 5th, 2016 | Posted by admin in Family Law - (0 Comments)

Parents who separate will need to have a plan for deciding how their children will be cared for and where they will live or spend time. This plan can be called a parenting plan, a time-share plan, or an agreement (“stipulation”) about child custody and visitation. Children react differently to the separation of their parents, and you know your children best. But here is some information to help you understand what could be going on with your children. It is important that you remain open to talking to your children and that you give them a lot of understanding and nurturing during this time.

Many children go through different stages in dealing with the grief they may feel around their parents’ separation:

  • Shock and denial that their parents are separating;
  • Anger because their parents are separating;
  • Depression — children may become overwhelmed with feelings of helplessness and sadness when significant changes are happening in their lives;
  • Bargaining — when children try hard to make things the way they were, promising themselves or their parents anything to get their parents back together; and
  • Acceptance — when children begin to talk more openly about the separation and get their energy and own interests back.

Helping your children cope with your separation

Explain to your children that you and the other parent will be living in separate homes. If it is appropriate in your situation, reassure your children that they will still have contact with both parents even though the 2 of you live in separate homes.

Try to avoid arguing with the other parent in front of the children and put off a difficult discussion until later, when your children are not around.

Avoid putting your children in the middle by using them as messengers or spies between the 2 parents. Show your children that you respect their other parent, and support the time that they spend with each of you.

It may help to have your children talk to a counselor or to other children who have gone through their parents’ separation.

For those families parenting together after separation

  • Give your children the stable and predictable routine they need.
  • Figure out how you and the other parent can each make time to be with your children.
  • Get the information you need to make good decisions about what your children need at each age.
  • If possible, find a way to parent well together and separately.
  • Take care of yourself. Find ways to feel good about yourself and to understand your confusing feelings.
  • Set goals. Try to stay calm in difficult situations.

Children benefit when their parents:

  • Avoid conflict and any physical violence or emotional abuse.
  • Handle rules and discipline in similar ways.
  • Support appropriate and safe contact with grandparents and other extended family so the children do not experience a sense of loss.
  • Are flexible so the children can take advantage of opportunities to participate in special family celebrations or events.
  • Give as much advance notice as possible to the other parent about special occasions.
  • Provide an itinerary of travel dates, destination, and ways that the children or parent can be reached when on vacation.
  • Establish a workable “businesslike” method of communication.
  • Plan their vacations around the children’s regularly scheduled activities.

Children are harmed when parents:

  • Use physical violence.
  • Make their children choose between each parent.
  • Question their children about the other parent’s activities or relationships.
  • Make promises they do not keep.
  • Put down the other parent in the children’s presence or range of hearing.
  • Discuss problems they are having with the other parent with the children or in the children’s range of hearing.
  • Use the children as a messengers, spies, or mediators.
  • Withhold access to the children for reasons unrelated to safety concerns.

From California Courts

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The Basics of Divorce

January 29th, 2016 | Posted by admin in Family Law - (0 Comments)

There are 3 main ways to end a marriage or registered domestic partnership in California: divorce, legal separation, and annulment. It is not necessary for both spouses or domestic partners to agree to end the marriage. Either spouse or partner can decide to end the marriage, and the other spouse/partner, even if he or she does not want to get a divorce, cannot stop the process by refusing to participate in the case. If a spouse or domestic partner does not participate in the divorce case, the other spouse/partner will still be able to get a “default” judgment and the divorce will go through.

California is a “no fault” divorce state, which means that the spouse or domestic partner that is asking for the divorce does not have to prove that the other spouse or domestic partner did something wrong.  To get a no fault divorce, 1 spouse or domestic partner has to state that the couple cannot get along. Legally, this is called “irreconcilable differences.”

After you decide how you want to end your marriage or domestic partnership, you need to plan your case ahead of time. Think about how you are going to handle your case. Planning before you start and talking to a lawyer can save you time and money as you go through the court process. And keep in mind that, normally, it does not matter who is the first to file the divorce or separation case. The court does not give any preference to the first person to file or a disadvantage to the person who responds to the case.

If you want to end a registered domestic partnership, domestic partners must also file for dissolution (divorce), legal separation, or annulment to end their relationship.  There is a limited exception where domestic partners can end their relationship in a summary process through the Secretary of State if they have been registered for less than five years and they have no children, no real property, very few assets or debts, and a written agreement on dividing their property, in addition to other restrictions.

Federal law does not recognize domestic partnerships for most purposes, such as Medicare, immigration law, veterans’ benefits, and federal tax laws. Domestic partners may be recognized for some federal purposes, such as Social Security. In addition, domestic partners may not have the same rights if they leave California because other states may not recognize domestic partnerships.  Talk to a lawyer if you are ending a domestic partnership and any of these issues may apply to you. You may also want to talk to an accountant who is knowledgeable about these issues.

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Calculating Child Support

January 22nd, 2016 | Posted by admin in Family Law - (0 Comments)

California has a statewide formula (called a “guideline”) for figuring out how much child support should be paid.

If parents cannot agree on child support, the judge will decide the child support amount based on the guideline calculation.

The guideline calculation depends on:

  • How much money the parents earn or can earn;
  • How much other income each parent receives;
  • How many children these parents have together;
  • How much time each parent spends with their children (time-share);
  • The actual tax filing status of each parent;
  • Support of children from other relationships;
  • Health insurance expenses;
  • Mandatory union dues;
  • Mandatory retirement contributions;
  • The cost of sharing daycare and uninsured health-care costs; and
  • Other factors.

The child support order may also require the parents to share the costs for:

  • Child care to allow the parent to work or to get training or schooling for work skills;
  • Children’s reasonable health-care expenses;
  • Traveling for visitation from 1 parent to another;
  • Children’s educational needs; and
  • Other special needs.

The guideline amount is presumed to be correct.  The judge can only order something other than the guideline amount in very limited situations.
Figuring out “income” to calculate child support
The court bases child support on a parent’s “net disposable income.” This means the parent’s income after state and federal taxes and other required deductions. The court may order support based in part on bonuses, commissions, overtime, and other supplemental or non-wage income if the court determines that this income occurs regularly.

Certain income is NOT counted when determining a child support obligation. For example, the court cannot consider income from:

  • CalWORKs,
  • General Assistance/General Relief, or
  • SSI (Supplemental Security Income).

Figuring out “time-share” to calculate child support
The court will calculate “time-share” (how much time each parent spends with the children) by comparing the amount of time that each parent has primary physical responsibility for the child. In general, this means that the court will count the numbers of hours or other portions of the day a parent spends with his or her child.

Usually, child support payments will decrease as time-share increases.

From California Courts

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When someone is being abused or harassed, he or she needs to decide on the best way to get legal protection from the abuse or harassment. To do that, several things need to be looked at, like: what type of relationship there is between the person being abused or harassed and the person doing the abuse/harassment; the age of the person being abused or harassed; and the type of abuse or harassment. Then, the law says what type of protection someone can ask for and what he or she has to prove to get it.

There are 4 types of abuse or harassment cases in civil court:

Domestic Violence

Domestic violence is abuse or threats of abuse when the person being abused and the abusive person are:

  • Married or registered domestic partners,
  • Divorced or separated,
  • Dating or used to date,
  • Living together or used to live together (but more than just roommates), OR
  • Closely related (like parent, child, brother, sister, grandmother, grandfather, in-law).

The domestic violence laws say “abuse” is:

  • Physically hurting or trying to hurt someone intentionally or recklessly;
  • Sexual assault;
  • Making someone reasonably afraid that he or she or someone else is about to be seriously hurt (like threats or promises to harm someone); OR
  • Behavior like harassing, stalking, threatening, or hitting someone, disturbing someone’s peace, or destroying someone’s personal property).

Keep in mind that abuse and domestic violence do not have to be only physical. Abuse can be verbal (spoken), emotional, or psychological. You do not have to be physically hit to be abused. Often, abuse takes many forms, and abusers use a combination of tactics to control and have power over the person being abused.

If you are being abused in any of these ways or you feel afraid or controlled by your partner/spouse or someone you are close with, it may help you to talk to a domestic violence counselor, even if you do not want (or are not sure if you want) to ask for legal protection.

Elder or Dependent Adult Abuse

Abuse of an elder or a dependent adult is abuse of:

  • Someone 65 years old or older; or
  • A dependent adult, who is someone between 18 and 64 that has certain mental or physical disabilities that keep him or her from being able to do normal activities or protect himself or herself.

The law says elder or dependent adult abuse is:

  • Physical abuse, neglect, financial abuse, abandonment, isolation, abduction (taking you out of the state against your will), or other behavior that causes physical harm, pain, or mental suffering; OR
  • Deprivation by a caregiver of things or services that the elder or dependent adult needs to avoid physical harm or mental suffering.

 

Civil Harassment

In general, civil harassment is abuse, threats of abuse, stalking, sexual assault, or serious harassment by someone you have not dated and do NOT have a close family relationship with, like a neighbor, a roommate, or a friend (that you have never dated). It is also civil harassment if the abuse is from a family member that is not included in the list under domestic violence. So, for example, if the abuse is from an uncle or aunt, a niece or nephew, or a cousin, it is considered civil harassment and NOT domestic violence.
The civil harassment laws say “harassment” is:

  • Unlawful violence, like assault or battery or stalking, OR
  • A credible threat of violence, AND
  • The violence or threats seriously scare, annoy, or harass someone and there is no valid reason for it.

“Credible threat of violence” means intentionally saying something or acting in a way that would make a reasonable person afraid for his or her safety or the safety of his or her family. A “credible threat of violence” includes following or stalking someone or making harassing calls or sending harassing messages (by phone, mail, or e-mail) over a period of time (even if it is a short time).

Workplace Violence

For a workplace violence situation, the harassment is defined in the same way as for civil harassment. The difference is that the harassment happens primarily at work AND it is the employer of the harassed employee who asks for protection for the employee (and, if necessary, for the employee’s family).

For an employer to get a workplace violence restraining order on behalf of an employee, there needs to be reasonable proof that:

  • The employee has suffered unlawful violence (like assault, battery or stalking) or a credible threat of violence;
  • The unlawful violence or the threat of violence can reasonably be construed to be carried out or to have been carried out at the workplace;
  • The conduct is not allowable as part of a legitimate labor dispute; and
  • The person accused is not engaged in constitutionally protected activity.

 

From California Courts

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Conservatorship

January 8th, 2016 | Posted by admin in Elder Law - (0 Comments)

A conservatorship is a court case where a judge appoints a responsible person or organization (called the “conservator”) to care for another adult (called the “conservatee”) who cannot care for himself or herself or manage his or her own finances.

There are various types of conservatorships depending on the needs of the conservatee:


1. Probate Conservatorships
These conservatorships are based on the laws in the California Probate Code. They are the most common type of conservatorship. Probate conservatorships can be:

  • General Conservatorships — conservatorships of adults who cannot take care of themselves or their finances. These conservatees are often elderly people, but can also be younger people who have been seriously impaired, like in a car accident, for example.
  • Limited Conservatorships — conservatorships of adults with developmental disabilities who cannot fully care for themselves or their finances. Conservatees in limited conservatorships do not need the higher level of care or help that conservatees in general conservatorships need.

When a conservatorship is needed right away, the court may appoint a temporary conservator until a general conservator can be appointed. The request must be filed as part of a general conservatorship case, and can be filed either at the same time or soon after the general conservatorship case is opened with the court. The main duties of a temporary conservator are arranging for the temporary care, protection, and support of the conservatee, and protecting the conservatee’s finances and property.

2. Lanterman-Petris-Short (LPS) Conservatorships
LPS conservatorships are used to care for adults with serious mental health illnesses who need special care. These conservatorships are used for people who usually need very restrictive living arrangements (like living in locked facilities) and require extensive mental health treatment (like very powerful drugs to control behavior). Conservatees in LPS conservatorships cannot or will not agree to the special living arrangements or treatment on their own. LPS conservatorships must be started by a local government agency.

 

from California Courts

 

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