FC 271 Sanctions

A California divorce court is reversed by an Appellate Court when the judge sanctions Mother and her attorney for actions that the Appellate Court found were not sanctionable. The California Court of Appeal has ruled that a Trial Court was wrong by ordering sanctions under California Family Code Section 271 [divorce court may impose attorney’s fees based on conduct of party or attorney that furthers or frustrates settlement] against Mother and her attorney on the grounds that Mother argued that Father should not have overnight visitation with their child until child turns two years old, Mother filed a motion to disqualify the trial judge, Mother submitted a proposed judgment with errors, and Mother argued that Father’s video calls with child should be recorded.

In the case Featherstone v. Martinez (Decided on December 21, 2022), Mother and Father had one child together in 2019. Two months after child was born, Mother filed a parentage petition requesting primary physical and joint legal custody of child. In her supporting declaration, Mother acknowledged that Father was an involved father, but that he traveled frequently for work and was in town only three to four days each month. Mother requested that Father’s initial visitation with child last only three to four hours at a time and take place at her home and that Father provide two weeks’ advance notice before each visit. Mother also requested that overnight visits with Father begin once child turns two years old.

Father filed a response and, in his proposed visitation schedule, requested each visit last eight hours and that overnight visits begin when child turns six months old.

At a hearing in December 2019, Mother appeared without an attorney and Trial Court commented on Mother’s parentage petition stating that “the way you wrote it, it was along the lines of, I control everything, I’m the boss, and, you know, I’ll do him a favor and let him see his child.” When Trial Court asked Mother if she was breast-feeding, Trial Court said “don’t . . . lie” and “don’t exaggerate” before Mother answered. Trial Court finally commented “I’m going to side completely with [Father] today, and I think in the future you’re going to have a really hard time, because although I’ve tried to explain it, emotionally—and I understand—you do not feel like he’s an equal parent and you feel like you need to drag this out and make it slow.”

After this hearing, Mother retained counsel. In March of 2020, Mother’s attorney filed a motion to disqualify the judge under California Code of Civil Procedure Section 170.1 [challenge of trial judge for cause] based on purported bias that the judge demonstrated during the first hearing. Trial Court stated that the motion was “almost by definition untimely under these circumstances.” Mother’s attorney responded that she received the

transcript from the December 2019, hearing only a few days ago. Trial Court struck the motion as untimely and during argument on visitation issues during the same hearing, Trial Court stated that Mother’s attorney was not directly answering its questions and warned that, without improvement, they would “start talking about sanctions.”

In July of 2020, Mother submitted a proposed judgment, to which Father objected on the grounds that the proposed judgment contained several errors, including misstatements of Trial Court’s ruling. Trial Court rejected the proposed judgment.

In February 2021, Father filed a trial brief in which he requested Mother pay $7,000 in attorney’s fees pursuant to Family Code Section 271(a) [divorce court may impose fee order based on conduct of party or attorney that furthers or frustrates settlement] due to Mother’s purported unreasonable litigation, including her motion to disqualify the judge, the proposed judgment that contained misstatements of the Trial Court’s ruling, and her general refusal to settle.

At a hearing on February 24, 2021, Trial Court recounted its concerns regarding Mother’s litigation conduct. Regarding Mother’s motion to disqualify the judge, Trial Court commented “[Mother] has the right to believe I was biased. She always has that right, and I can’t sanction her for that . . .. [But] she does not have the right to file late, improperly noticed, and/or out of context motions.” In response to Mother’s attorney’s argument that Father had not properly noticed a motion for sanctions under Family Code Section 271, Trial Court stated “I think I noticed [Mother] for sanctions on my own motion at one of the earlier hearings when things were not proceeding so well . . .. It’s the court’s own motion.”

At a June 21, 2021, hearing, while the parties were discussing their agreement that Father would have video calls with child, Mother interjected that she agreed to use Zoom only and not any other platforms, since Zoom calls may be recorded. When Trial Court inquired why Mother wanted to record these video calls, Mother said she would like to record the calls because she and Father had disagreed in the past about whether certain statements were made. With regard to Mother’s insistence that Father use Zoom, Trial Court stated Mother had a controlling mindset and that although it was prepared to give “just the tiniest sanctions . . . now sanctions are back, thoroughly back, on the table[.]”

In September 2021, Trial Court held a hearing to impose sanctions. At the beginning of the hearing, Trial Court stated that the motion for sanctions has been “noticed, re-noticed, and repeatedly noticed.”

Trial Court again recounted its issues with Mother’s conduct. First, Trial Court stated that Mother’s declaration was misleading and her attempt to prevent Father from having overnights for two years while also limiting his visits to three to four hours at a time was “in and of itself, sanctionable.” Second, Trial Court stated that Mother’s motion to disqualify the judge was untimely and procedurally deficient and “was written out of context in an intentionally inflammatory and dishonest manner.” Third, Trial Court noted the proposed judgment prepared by Mother that Trial Court rejected “because it was replete with errors and omissions[.]” And finally, Trial Court stated that Mother’s request to use only Zoom for video calls was “alarming, outrageous, unbelievable, tone deaf, counterproductive . . .” and that when Trial Court attempted to note its problem with Mother’s request, Mother’s attorney interrupted “in a rude and abrupt manner.” At the conclusion of the hearing, Trial Court sanctioned Mother in the amount of $10,000 and separately sanctioned Mother’s attorney in the amount of $10,000.

Mother appealed and now, a California Court of Appeals has reversed Trial Court’s decision. The Appellate Court has ruled that there is a question whether Family Code Section 271 authorizes a court to issue sanctions on its own motion. The order for sanctions against Mother’s attorney was improper since Family Code Section 271(c) provides that an award of attorney’s fees and costs as a sanction is payable only from the property or income of the party against whom sanction is imposed. Furthermore, Mother’s declarations, her motion to disqualify the judge, her proposed judgment, and her request that Father’s video calls with child take place on Zoom did not constitute sanctionable conduct. Accordingly, the Appellate Court reversed Trial Court’s award of sanctions against Mother and her attorney.

Substituted Service

Unfortunately, in many legal actions including divorce actions, the Respondent or Defendant inaccurately believes that if they avoid service of the legal papers, they can avoid the legal action altogether. In a recent decision, a California Appellate Court has ruled that substantial evidence supports that substituted service was proper where after several attempts to personally serve the Defendant, process server served the co-resident who stated that Defendant was not at home and where Defendant’s name appeared on the community’s directory.

In the case of First American Title Insurance, Company v. Banerjee (decided on December 29, 2022), Plaintiff One, a real estate broker, filed a lawsuit, in 2017, against Defendant One, a rental property company, and Defendant Two, the president and alleged alter ego of Defendant One, for breach of contract. Plaintiff One also included in its complaint a promissory estoppel cause of action against the escrow agent. In its complaint, Plaintiff One alleged Defendants signed a commission agreement in which Plaintiff One was to arrange for a tenant to lease a property owned by Defendant One that would then pay a three percent (3%) commission fee to Plaintiff One if the tenant decided to buy the property. In 2016, the tenant purchased the property in question from Defendant One for approximately $5 million. Plaintiff One demanded the escrow agent (Plaintiff Two) to hold $145,000, which represented the three percent (3%) commission fee, as well as $6,000 in outstanding lease fees. Although Plaintiff Two initially stated it would hold the funds, it ultimately did not pay Plaintiff One.

Plaintiff One served Defendants the Summons and the Complaint through substituted serviced. In the declaration of due diligence, the process server stated that the service was attempted at an address in Pleasanton on six occasions in March 2017. On the final attempt, a person at the Pleasanton address denied knowing either Defendants. The process server then attempted service at a Dublin address on seven occasions. The Dublin address was listed on the California Secretary of State’s website as the mailing address for Defendant One. This residence was in a gated community and the process server was unable to gain access through the gates during the first seven attempts. No one answered the intercom calls, although Defendant Two’s name was listed on the directory. On an eighth attempt at the Dublin address, the process server served the documents by substituted service on a “co-resident” who stated that Defendant Two was not at home. The process server also mailed the documents to the Dublin address.

In June 2017, Trial Court entered default judgments against both Defendants after they failed to file a response to the Complaint.

In July 2017, Plaintiff Two filed a cross-complaint against Defendants for indemnity and contribution. A proof of service indicted that Defendant Two was personally served the Summons and Cross-complaint by a process server in September 2017.

Plaintiff One subsequently settled its claims with Plaintiff Two and assigned its claims against Defendants to Plaintiff Two. In June 2019, Trial Court entered an order substituting Plaintiff Two as the sole plaintiff in the action. Plaintiff Two then filed a request for default judgment against Defendants in December 2019, and Trial Court entered the default judgment against Defendants in May 2020.

In June 2020, Defendants filed a motion to set aside the default and default judgment, arguing (1) the judgment against them was void for failure to state a cause of action against them; (2) the judgment was void because service of the original Summons and Complaint was improper; and (3) the default judgment should be set aside for mistake, inadvertence, surprise, or excusable neglect, pursuant to California Code of Civil Procedure Section 473(b). In support of this argument, Defendant Two submitted a declaration that he did not reside at the Dublin address when the original Summons and Complaint were served by substituted service. Trial Court denied the motion to set aside the default judgment. Defendants appealed, but California Court of Appeals has not affirmed Trial Court’s decision.

The California Court of Appeals has ruled that substantial evidence supports Trial Court’s decision that substituted service was proper. A defendant challenging a default judgment may seek relief through either a direct appeal from the judgment, a motion to set aside the judgment, or a collateral attack on the judgment but “each avenue has . . . limitations on the type of errors that can be addressed”. Pursuant to California Supreme Court decision in Christerson v. French (1919) 180 Cal. 523, a default judgment is not void if the court has jurisdiction of the parties and the subject matter, whether or not the complaint states a cause of action, so long as it apprises defendant of the nature of plaintiff’s demand. In this case, since Defendants chose to attack the default judgment by a motion to set aside the judgment under Code of Civil Procedure Section 473(d), Defendants must demonstrate that the Complaint did not apprise Defendant Two of the nature of Plaintiff One’s demand. To the contrary, Plaintiff One’s Complaint apprised Defendant Two of the nature of its demand to enforce the commission agreement that Defendant Two signed on behalf of Defendant One and that Defendant Two was being sued as an alter ego of Defendant One. Under Appellate Court’s decision in Vasey v. California Dance Co. (1977) 70 Cal.App.3d 742, in a direct appeal, appellate court reversed a default judgment against individual defendants because the Complaint did not state a cause of action against them where the Complaint did not plead evidence relating to alter ego liability. In this case, had Defendants directly appealed from the default judgment, rather than filed a motion to set aside the judgment based on Code of Civil Procedure Section 473(d), they could have relied on the reasoning of Vasey to attack the Complaint for failure to state a cause of action. The Appellate Court further stated that it is not bound by and disagrees with the decision in Grappo v. McMills (2017) 11 Cal.App.5th 996, [affirming an order setting aside a default judgment and suggesting judgment was void for failure to state a claim] and, thus, Grappo does not apply. Accordingly, this Court affirmed the order denying the motion to set aside the default and default judgment.

What To Know About A Trial Separation

trial separation

Let’s face it, marriage is not always easy, and the idea of divorce can feel scary and overwhelming. If you are going through a rough marriage patch, you may consider a trial separation before filing for a California divorce. 

A trial separation may be a great solution if you and your spouse agree on a timeline, make your intentions and expectations clear, and understand the rules you will both follow during your time apart.

A trial separation is a personal choice; you must decide if it is a good fit for your marriage. This article will discuss trial separations and the benefits for you and your marriage.

Defining A Trial Separation

When a couple chooses to take space from each other instead of going straight to filing for divorce, it is a trial separation. Often when a couple decides to have a trial separation, one party will leave home altogether.

For those who can’t afford this, the best option is for one spouse to move into a spare bedroom.

It is best that a trial separation isn’t a divorce or even a legal separation and doesn’t have a legal impact on your marriage or property rights. This means that all money earned during your trial separation or acquired property will still be divided according to the state’s property laws if you later divorce.

Benefits Of A Trial Separation

Every marriage is unique, and the benefits of a trial separation may vary from couple to couple. Some expected benefits people experience during a trial separation include the following:

  • You Get Time To Clear Your Head. Sometimes you just need space to clear your mind, and a trial separation allows you to work towards creating reconciliation and work through your marital issues with personal space. You may recognize that you are worried about something else, such as money, instead of what your partner doesn’t do or says. It is essential to take time to identify the real issues in your marriage so that you can work on them.
  • Make An Informed Decision. Getting a divorce is a big decision, and it is critical to avoid filing for a divorce prematurely. When you enter a trial separation, you and your partner can decide if your marital issues are repairable or if you need to file for divorce.
  • Get A Fresh Look. Taking space allows both parties to work through personal issues that could indirectly interfere with your marriage. You may find that friends, family, or a therapist can help give you a fresh look at your marital issues.
  • Get A Taste Of Reality. It allows both parties to feel what it would be like to live apart, from taking care of chores and paying bills or experiencing your social life without your spouse.
  • Opportunity To Grow. A trial separation allows you to gather your feelings and thoughts and improve your communication skills before filing for divorce. It also allows you to identify skills you can improve on, such as household chores, communicating, and caring for children if you have any, and you may come to appreciate your partner more. If you are in an abusive or unhealthy marriage, you may find life easier on your own.
  • You Are Improving Your Perspective. When you and your spouse are always together, it can become a habit only to notice the faults or things that bother you. Spending time apart helps you rediscover the parts of your marriage and your spouse that you appreciate. On the other hand, you could also realize that behaviors or issues that you think are normal are cruel, unsafe, or unhealthy and that you are better off apart.

Create A Trial Separation Agreement

Both parties must be on the same page regarding the timeline, rules, and overall goals for resolving marital issues during your trial separation. Depending on your situation, you need to decide whether you need a written agreement. A written agreement will identify your separation date if your marriage ends in divorce. Generally, it is better to have an agreement in writing.

Is A Trial Separation Right For You and Your Spouse?

There’s no crystal ball to know; however, some common indicators help determine if a trial separation may benefit you and your spouse.

  • The challenges in your marriage are situational tarter than deeply rooted issues
  • Your love for each other remains intact, but you are feeling overwhelmed by your marital issues
  • You trust each other when it comes to financial issues and your children, and there has been no significant breach of trust

If you are experiencing domestic violence, emotional abuse, serial infidelity, or ongoing substance abuse issues, then a trial separation may not be the best solution for you.

Family law is complicated, and it is vital to consider all the issues included, such as child custody and visitation, child support, alimony, spousal support, division of property, and more. Choosing the right divorce lawyer is your first step if you file for divorce in California to help ensure you avoid making big mistakes.

Hire An Expert Divorce Attorney

At Azemika & Azemika, we devote our practice exclusively to family law. Our attorneys are highly skilled and have extensive experience navigating California divorce laws, child support and visitations, adoption, paternity, and more. Whether you are considering a trial separation or a divorce hiring an attorney to help support you during this challenging time will make it significantly less stressful and ensure that your family, your rights, and your assets are protected. Contact us today for a consultation!

Understanding California 730 Evaluation

California 730 evaluation

Going through a California divorce is emotionally challenging for parents and children. Focusing on what is best for your children can help ensure the decisions made around their healthy being are in their best interest.

When two people divorce, other issues may convolute or influence decision-making, and you and your ex-spouse may disagree on how your child’s arrangement should be during or after your divorce.

If you are going through a California divorce and are considering requesting a 730 evaluation or if the judge is ordering one to be completed for your case, it is essential to understand what it entails. Hiring an experienced divorce attorney to help you through the process is vital. We will discuss California 730 evaluations, what they are, their purpose, and what to expect.

What Is A California 730 Evaluation?

California Evidence Code Section 730 authorizes these types of evaluations, and a 730 evaluation is an assessment of your family. You, your spouse, or the judge may request one to look into your or your ex’s parenting practices or mental health. The focus of this evaluation is directly related to what would best support your child and what is in their best interest.

When Is A 730 Evaluation Needed?

When the judge, you, or your ex-spouse believes that your child’s best interest is not being served, the court can order a 730 evaluation. Some of the issues that may trigger this type of investigation include the following:

  • Alleged mental health problems
  • Suspected child abuse
  • Concerns about substance abuse
  • If one parent wants to move out of state and the other parent objects
  • Parental disagreement on child custody
  • Possible parenting practices that could have a negative effect on the child

Who Can Conduct a 730 Evaluation?

The court will appoint a qualified mental health professional to conduct the 730 evaluation. You or your spouse may not choose your evaluator specifically; however, in some cases, the judge will ask each party to submit a list of possible evaluators. The evaluator appointed by the court will be:

  • Social worker
  • Psychiatrist
  • Psychologist
  • Marriage or family therapist; however, if any formal psychological testing is necessary, only a trained psychiatrist or psychologist can perform it.

The evaluator chosen must remain objective and protect confidentiality throughout the entire process. They can only make recommendations about either party once that party is evaluated. The evaluators must always keep the child’s best interests in mind and can’t pressure children to say if they prefer to live with one parent or the other.

Who Pays For A California 730 Evaluation?

It is up to the court to determine who will pay for the 730 evaluation. It can be divided and doesn’t have to be 50/50, or the court can require one party to pay for everything.

What Is The Process Of California 730 Evaluation?

Once the court assigns the evaluator to the case, they will assess the family. They will learn about the children’s relationship with parents and other family members and the children’s living arrangements. The evaluator’s goal is to determine what is in the child’s best interest. The evaluator may take some time to complete the process.

  • Observe interactions between each parent and the children or child, both together and separately. In cases of domestic violence, however, the parents will not be interviewed together
  • Review any documents that relate to child custody
  • Review documents such as police or hospital records
  • Interview family members as well as step-parents, siblings, and step or half-siblings
  • Consult with other experts, including psychologists and psychiatrists for psychological testing

The evaluator will compile all the information into a file to develop a recommendation for the court.

In general, the evaluator can’t communicate with the divorce attorney for any one party without involving both parties. One exception will be if the evaluator needs to schedule an appointment or find out if there is any conflict of interest. However, the court can authorize communication between a court-appointed attorney for the child and the evaluator.

If at any time the evaluator believes a restraining order is necessary to protect one party or the child, they can communicate that also. Social workers, psychiatrists, and psychologists are mandatory reporters; if they know or suspect child abuse or endangerment, they must report it to the authorities.

Questions The Evaluator Can Ask During The Interview

The evaluator can ask questions they find relevant to the investigation during the interview. The questions they ask will help them to assess the case and each parent. What the evaluator is looking for is:

  • Each parent’s ability to respond to their child’s needs
  • Each parent’s ability to set age-appropriate limits for the child
  • How or if the parent works towards resolutions
  • How much each parent is or has been involved in the child’s life, or has taken care of the child in the past
  • Whether or not there has been a history of domestic violence, child abuse, substance abuse, or psychiatric illness by either parent
  • Both parent’s social and psychological functioning

What Happens After A California 730 Evaluation?

The evaluator will the report to the court and must: 

  • Summarize their findings and how long they spent on the evaluation
  • Present all relevant information, even if it doesn’t support the conclusion
  • Describe any limitation in the evaluation that comes from them being unable to get information, whether it is a parent’s failure to cooperate or the circumstances of the interview
  • Make visitation or custody recommendations
  • Provide clear and detailed recommendations that reflect the child’s best interest

What If You Disagree With The Evaluator’s Findings?

A judge will decide on the custody arrangement you and your spouse will have. If you disagree, your attorney can ask the court to appoint another mental health professional to review the evaluation and give testimony about their findings.

Working with your ex-spouse to reach an agreement that serves your child’s best interest will usually avoid having a judge order a California 730 evaluation.

What Is A Mini California 730 Evaluation?

In certain circumstances, 730 evaluations can be minimized and only focus on one issue to speed up the process.

Hire An Experienced Divorce Attorney To Help You

If you are going through a divorce involving children and have questions about California 730 evaluation, hiring an experienced family law attorney is vital. Your attorney can answer any questions and help protect you and your family.

At Azemika & Azemika, we are here to help you navigate the complex legal system of family law and support you in ensuring the best interest of your child and family is our top priority. Our partners have a combined total of over 56 years of experience in family law. We can help you with divorce, child custody and visitation, child support or alimony, adoption, or other family law cases. Contact us today for a consultation!

What Are The Advantages Of Uncontested Divorce

uncontested divorce

Uncontested divorce in California has several advantages. While divorce is never an easy choice when both parties can agree on how to divide marital assets, deal with child custody and support issues and handle other family matters, it is a significantly more straightforward process.

California is a no-fault divorce state, and It is essential to understand the laws of a California divorce. There are generally two types of divorce in California: contested and uncontested.

We will examine an uncontested divorce and its advantages and disadvantages to help you understand if it is a good choice for your situation.

What Is An Uncontested Divorce In California?

When two people agree to the terms of their divorce in California, there is no need for a judge to hold a trial.

You can either do your uncontested divorce alone (DIY Divorce) or with the help of a lawyer. If you hire a lawyer, both parties need to hire separate attorneys, as one lawyer can’t represent both of you.

The process for filing an uncontested divorce may vary from state to state. You will need to initiate the divorce by filing a divorce petition, documents proving both parties are aware of, in agreement, and participating in the case, financial affidavits disclosing everything each party has, a settlement agreement, and a proposed judgment. You may be required to attend couples therapy or classes on co-parenting before being granted a divorce, and other paperwork may be required.

Depending on the jurisdiction, your case may be dealt with based upon your paperwork, and you will obtain your judgment in the mail, or you may be required to attend a hearing with your spouse to swear that the divorce paperwork is accurate and true and that you signed it on your own free will.

The Advantages of An Uncontested Divorce

There are several reasons why an uncontested divorce may appeal to you and your partner. However, ensuring that an uncontested divorce is in your best interest is essential.

  • An uncontested divorce is less expensive and faster than a traditional or contested divorce.
  • There is no need for multiple court appearances or a trial which is one of the most significant benefits of an uncontested divorce.
  • The level of conflict between the two parties remains lower, and the relationship can remain more amicable.
  • It is more private, which can be best for you, your partner, and your children if you have any.
  • You are more likely to retain your assets.
  • It is more cost-effective as you avoid more fees for lawyers, account servers, process servers, and the many other financial costs associated with a contested divorce.

When Is An Uncontested Divorce a Bad Idea?

In some situations, an uncontested divorce can create more problems or result in an unfair balance of power, financial gain, or even worse, losing precious time with your children.

  • Domestic Violence Issues. If your partner is abusive, argumentative, or hostile in any way, an uncontested divorce is a terrible idea. Anytime there is a history of domestic violence, emotional abuse, or other disparity in power in your relationship, it usually leads to one person having an advantage over the other party. In this situation, it is ideal to have an experienced divorce attorney to advocate for you to protect your rights.
  • Poor Communication. Be realistic about how well you and your spouse can communicate. When two people can’t talk without a fight, then trying to file for an uncontested divorce is the wrong approach. Difficult communication indicates you must hire an experienced divorce attorney and file for a contested divorce. You want to ensure your rights, family, and assets are protected.
  • Lack of Understanding of California Divorce Law. Even though an uncontested divorce is relatively straightforward, you will still need to read and understand several forms that will include in-depth financial disclosures by each person. Suppose you and your spouse need clarification on California Divorce laws or support filling out the paperwork. In that case, the best idea may be to contact a divorce attorney to ensure everything is done correctly.

Hire An Expert Divorce Attorney

At Azemika & Azemika, we devote practice exclusively to family law. Our attorneys have extensive experience navigating California divorce laws, child support and visitations, adoption, paternity, and more. Whether you are considering an uncontested divorce or a contested divorce, hiring an attorney to help support you during this challenging time will make it significantly less stressful and ensure that your family, your assets, and your rights are protected. Contact us today for a consultation!

How Do You Deal With Divorce Anxiety?

divorce anxiety

Even if you don’t typically have anxiety, going through a divorce is incredibly stressful, and you may find yourself experiencing feelings of anxiety related to your divorce.

Divorce anxiety is relatively common and even expected during this uncertain time. People often experience varying degrees of stress and anxiety due to higher levels of fear, anger and emotional distress, and unpredictability of the future.

Getting a divorce is usually one of life’s major transitions. Below, we will talk about signs of divorce anxiety and ways to help yourself deal with extra stress and anxiety to feel and function better.

Signs of Divorce Anxiety

The symptoms you experience with divorce anxiety may be mental, physical, and emotional. Physical symptoms such as poor sleep, a quick heartbeat, or sweating are shared by many people. Mentally you may find yourself concerned about the future; you may feel overwhelmed or experience a loss of interest in socializing or fun activities. Emotionally you may feel more sensitive or be quicker to react harshly.

Common Feelings and Thoughts During Divorce

As your family transitions into something new and different, some people experience a loss of identity insecurity. If you have children, it may even be that you will only see them half the time. You may have to sell your home and move. Divorce can bring up many feelings, including some that may surprise you. You may experience feelings and thoughts of:

  • Anger and frustration about the divorce process and how things are turning out
  • Loneliness and grieving the end of your marriage, the transitioning of your relationship from companion to co-parent, and possibly even to being combative
  • Embarrassment or shame and feeling as though you have let yourself and other people down
  • The concern about the future and worrying that you will not be able to adjust
  • Worry for your children and how they will deal with the divorce
  • Worry about child custody, child support, and alimony
  • Concerns about California divorce laws and how they will affect you

When going through a divorce, you mourn more than just the loss of your spouse. You’re also mourning the loss of a mutual home, your financial security, mutual friends, and your sense of identity built around being married and who you were with your spouse. You may feel this way even if you initiated the divorce.

9 Ways To Deal With Divorce Anxiety

Finding effective methods to deal with divorce anxiety is essential. Doing so can help you build lifelong skills you can fall back on during challenging times.

1. Grieve

Allowing yourself to grieve is healthy and essential to your mental and emotional health. Make sure you give yourself time and space to process your feelings and acknowledge the challenges of divorce. If you avoid doing this, you may find your feelings resurface later. Leaning on good friends who can give you a supportive ear and a therapist as you go through your divorce is significantly beneficial.

2. Develop A New Routine

Create a new routine and develop healthy habits that you can stick to daily. Ensure that you are eating and sleeping well, and create a rhythm that supports your mental and emotional health.

3. Journal

Beginning a journal or maintaining one if you already keep one is an excellent way to help make sense of your feelings and thoughts. Journaling is the perfect way to work through complex emotional issues.

4. Learn or Do Something New

When you’re going through a divorce, you’re letting go of part of your past. This is the ideal time to take up a new hobby or travel somewhere you’ve always wanted. By switching your focus to the future, you give yourself something to look forward to in your new life. Following your dreams and hope are essential for dealing with anxiety and stress.

5. Exercise

Even though anxiety is a psychological state of mind, it can also develop physical symptoms affecting your appetite, sleep, and overall interest in life. By moving your body, you benefit both mentally and physically, improving your overall health, which will help to alleviate some of your divorce anxiety symptoms. Get outside and move for at least an hour a day in the fresh air.

6. Build A Self-Care System

Self-care looks different for everyone, and it’s a big umbrella under which you make sure you’re doing little things to take care of yourself. This may include taking a bath, turning off your phone, getting a massage, or having a weekly lunch date with a friend. Whatever helps to nurture you and take care of your needs is perfect to put in your self-care toolbox.

7. Practice Gratitude

Whenever your life is stressful or struggling is the perfect time to count your blessings. Start a nightly practice of writing down what you’re grateful for each day, whether it’s in a gratitude journal or you make your gratitude jar. It helps us focus on the good parts that make us happy, not just the challenges in our life.

8. Connecting With Family and Friends

It is the best time to reach out to people you can trust. When going through a divorce, surround yourself with people that can support you, and schedule weekly visits with friends or family doing something fun. Whether you’re going to the movies, a food festival, or an overnight trip to the beach, hanging out with close friends and family goes a long way in helping to turn off the anxiety and stress you are feeling around your divorce.

9. Join A Support Group

Joining a support group or an activity group, whether it’s hiking, running, painting, writing, birdwatching, or even learning to dance, building community is an essential part of thriving through a divorce. Group sites such as meet up, finding a local organization you want to support and volunteer with, or even your local animal shelter provide great opportunities to meet new people. You can also seek a divorce support group to meet other people through the same process.

10. Hire An Expert Family Attorney

The divorce process in California can be complex and overwhelming. Hiring an experienced divorce attorney is essential, and you will ensure that you and your family are protected. A family law attorney can help ensure a proper parenting plan is put in place, fair division of assets and property, alimony, child custody and visitation, and more. Having an attorney you can trust will alleviate a lot of stress and anxiety for you because you have someone watching out for your best interest.

Azemika & Azemika, Devoted To Family Law

At Azemika & Azemika, our law firm’s practice is exclusively devoted to family law. The attorneys at our firm are experts in handling divorce, child custody and visitation, child and spousal support, paternity, adoptions, and abandonment. Located in Bakersfield, California, in Kern County, our primary objective is to provide our clients with knowledgeable, affordable, and aggressive representation. Contact us today for a consultation!

Annulment vs. Divorce In California: What You Need To Know

annulment

Annulment and divorce laws differ from state to state. The State of California has unique guidelines you must follow and specific criteria to meet should you choose to file for a divorce or an annulment.

Opting for an annulment instead of a divorce in California has an entirely different effect on how the relationship is categorized and possible future benefits or consequences.

Suppose you live in California and wonder what the difference is between an annulment and a divorce. This article will outline the fundamental differences and what you need to know.

The Difference Between An Annulment And A Divorce In California

The most common way to end a marriage is through a divorce, defined as the legal dissolution of a marriage. Once a divorce is complete, both people are considered legally single and eligible to remarry legally.

When you go through a divorce, the previous marriage remains on record as having existed. The judge declares that the marriage is dissolved due to irreconcilable differences or one party’s legal incapacity to make decisions.

However, an annulment ultimately states that the former marriage was never permitted in the first place. An annulment completely invalidates the wedding, and the courts will remove all records and evidence of the marriage, which means that the court decrees that the marriage never even happened.

What Is An Annulment In California?

The annulment process in California is very similar to that of a divorce. However, it varies significantly in the final decree. To obtain an annulment in California, one party must first file a Petition for Annulment with the court in the appropriate county. It is essential to file within the applicable timeframe. An annulment in California requires the:

  1. Spouses marriage
  2. Reasons for the annulment
  3. Proposes terms for the annulment

Once the Petition for Annulment has been filed, the filing spouse has 30 days from the filing date to notify the other party of the petition and have them formally served. The other spouse is then allowed 30 days from the time of receipt to file a response or answer to the petition.

Reasons And Statute Of Limitations For Annulment In California

There are several possible reasons why California would allow judges to grant an annulment request, and also a statute of limitations for each circumstance, which includes:

  • They Were Already Married. One party committed bigamy and entered a second marriage while the first marriage was still intact, and you must file for the annulment before the first spouse’s death.
  • Underage Marriage. One party was younger than 18 when the marriage occurred, and you must file for the annulment within four years of turning 18.
  • Forced Marriage. One party was forced to marry against their wishes, and you must file for the annulment within the first four years of marriage.
  • Fraudulent Marriage. One party committed fraud to influence the other person to marry or to get consent for marriage. An example will be if one party marries the other person only to stay in the United States while lying and claiming the traditional reasons for getting married. You must file for the annulment four years from the date that you discover the fraud.
  • Unsound Mind. One or both persons could not consent to the marriage because they are of “unsound mind” at the time of marriage. An example of this will be if someone marries a severely mentally incapacitated person who cannot consent or two people get married while intoxicated. Either party may file for an annulment any time before the death of one person.
  • Physical Incapacity. One or both persons have an incurable physical illness, disease, or incapacitation that will not be resolved soon. If you file an annulment due to your partner’s inability to maintain sexual relations because of physical incapacity, you must do so within the first four years of marriage.

Proof For An Annulment

To obtain an annulment, you must prove to the judge that at least one of the above situations applies. You must also prove that you filed for the annulment within the time allowed for your situation. The requirement of providing proof as a part of the request for the annulment is vastly different from divorce in California, which can be granted on grounds as simple as irreconcilable differences.

Divorce vs. Annulment: Pros and Cons

Annulments have different consequences than traditional divorce. Divorced spouses have specific rights that those who have their marriage annulled will not have, as an annulment concludes that a marriage was never valid from the beginning.

Examples of this include spousal maintenance, pension benefits, community property rights, and other legal rights of divorced spouses that are not generally applicable with an annulment of a marriage. Depending upon your situation, obtaining an annulment could be an advantage rather than a disadvantage.

An annulment can also be a more cost-effective way to end a marriage as there aren’t as many legal issues that need resolution as in a divorce. However, if proving the grounds on which you seek an annulment is challenging, or your spouse may contest it, litigation costs and investigator fees for expert witness expenses can quickly add up.

Sometimes getting a divorce is more straightforward as no proof of fault is required. It can be based on irreconcilable differences making it a more economical choice than going through the annulment process.

The annulment process also does not have the exact six-month minimum residency requirement or waiting period you must meet to get a divorce in California. An annulment in California is effective immediately.

Hiring an attorney experienced in California divorce laws to determine your best course of action is essential to save you time, money, and stress.

Azemika & Azemika Law Is Here To Help

At Azemika & Azemika Law, our law firm’s practice is devoted exclusively to family law. We are experts in handling cases involving divorce, annulment, child custody and visitation, division of property, and other family law-related situations, successfully supporting our clients in Bakersfield, California. Contact us today to learn how we can help you.

Can I Use Text Messages In My California Divorce?

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If you are going through a divorce, you may be wondering what types of evidence you can use that may include text messages, DMs (direct messages through social media), and emails which can potentially provide evidence in court.

These days, communication often happens through text messages which is generally an easy way to talk with anyone, no matter their location, including your spouse.

Text messages are commonly used as evidence during California divorce proceedings, although not all text messages are considered equal. This article will discuss when and what types of text messages can be utilized as evidence in a California divorce.

Relevant Text Messages Between Spouses

California is a no-fault divorce state, so neither side is required to prove that the other person is the one responsible for the ending of the marriage. However, text messages between spouses can be submitted as evidence in a California divorce case. Remember, however, that your spouse has an equal weight to produce all your text messages.

Text messages can sometimes show the ugly side of a marital relationship, especially when the conversation becomes argumentative and when one or both parties send threatening text messages. Text messages can also prove that your spouse is engaged in an extramarital relationship or criminal activity.

Your divorce attorney can help determine whether or not your text messages are relevant, as you don’t want to waste the time of the court just because you are angry. Here are some valid reasons to submit text messages during a divorce and provide evidence that your spouse:

  • Is committing domestic violence, which includes verbal, emotional, mental, or physical abuse
  • Is neglecting childcare
  • Has a substance or alcohol abuse problem
  • Is harassing or threatening you
  • Is abusing or neglecting the children
  • Has chosen social engagements, work, or other personal pursuit pursuits over the responsibility of their child-rearing responsibilities
  • Is trying to hide marital assets

These issues and more can influence child custody, restraining orders, and the separation of assets. Your family law expert in Kern County, California, can help you decide if the content of the text messages is relevant to your case.

Relevant Text Messages Between Your Spouse and Third Parties

Should you have any reason to believe that your spouse has been sending messages to a third party that may be relevant to your divorce, you may also be able to obtain copies of these text messages through the formal discovery process.

For example, suppose your spouse is sending messages to a business partner that show incriminating evidence or having an extramarital affair. In that case, you may need to subpoena the person who is sending or receiving the text messages from your spouse to use them in the divorce proceedings.

However, make sure you avoid trying to access text messages by logging into your spouse’s phone or using any other snooping methods, as you could harm your divorce case. Make sure you discuss your legal options with an experienced family law attorney in Bakersfield, California.

Authentication Of Text Messages

All text messages, DMs, emails, and other electronic messages used as evidence in a California divorce court will be required to be authenticated, and you must prove that your spouse sent them.

The California Evidence Code also determines ways you can authenticate electronic communications. For a text message to be authenticated, it means that:

  •  The other person must admit to sending the message
  •  A witness must testify that they saw the message being created
  • A reply authentication must be shown, which happens when a reply message is sent in response to the original message
  • If a message references something that only the other person would know about or understand

Authentication is necessary to determine if you can utilize text messages in a California divorce if it verifies them as legitimate evidence. Your divorce attorney will be able to tell you how and if you can authenticate the text messages to use them in a California divorce.

To Get The Expert Advice And Help You Need, Contact Azemika & Azemika Law

At Azemika & Azemika, our law firm’s practice is exclusively devoted to family law. Our expert attorneys are here to help clients in Kern County with issues related to family law, including divorce, child custody and support, paternity, and more.

Every case is unique and navigating a divorce is often complex and emotional. We are here to help you and your family using our experience, skill, and expertise as attorneys specializing in family law. Contact us today for a consultation to find out how you can protect yourself and your loved ones during this challenging time.

How Is Retirement Split In A Divorce In California?

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Divorce is typically a complex process, especially if you and your spouse were married for a more extended period. In many divorces, spousal pensions and retirement accounts often have the highest-value assets.

Conversations and disputes around retirement accounts can become heated and complex during a divorce. Often they are subject to special requirements and considerations, and it is essential to understand how to protect your assets and your future.

This article will discuss different retirement accounts and give you a basic understanding of how retirement plans are distributed in a California divorce. Keep in mind that it is in your best interest to hire an expert Kern County divorce attorney to ensure that your retirement assets are protected.

Most Retirement Funds Are Included In Marital Property

California considers any income either party earns during the marriage to be shared marital property. Defined contribution retirement plans such as 401(K), 403(b), or 457 accounts, as well as SEPs or IRAs, are counted as marital property as these accounts are funded by income that is considered marital property.

Suppose one or both of the divorcing parties opened a retirement account before the marriage. In that case, they might be able to claim they are premarital deposits to the account as a separate, non-marital party to avoid dividing the income with a former spouse. Laws differ from state to state, and California law also treats any interest earned on premarital contributions to a retirement plan as separate property.

Defined Contribution Plans In A California Divorce

Federal law governs defined contribution plans, including the payments from these plans, which are divided In the event of a divorce. Divorcing couples with a defined contribution plan included in their divorce decree will need to issue a Qualified Domestic Relations Order (QDRO) in addition to the divorce decree. The QDRO Is necessary to authorize the plan administrator to issue payments to the non-employee ex-spouse and is a particular court order that is required regardless of whether your divorce is amicable.

In addition to permitting the plan administrators to distribute money to the account holder’s ex-spouse, a QDRO also allows the ex-spouse to withdraw money from the account and deposit the funds into other retirement accounts without incurring any of the penalties that are usually charged with early withdrawals from retirement funds.

QRDOs only apply to retirement plans covered by a federal law called ERISA and are not effective for distributing assets from non-qualified plans, including stock options, excess benefit plans, and supplemental executive reimbursement plans.

Certain types of retirement plans that need a QDRO will also require “joining” the plan as a party to your divorce. An experienced attorney can help you with this complex process. Examples of plans that require this “joiner” to obtain a QDRO include:

  • Federal government plans such as Civil Service Retirement System (CSRS), Foreign Service Pension System (FSPS), and Federal Employees Retirement System plans.
  • State government plans such as California State Teachers’ Retirement System (CalSTRS), California Public Employees’ Retirement System (CalPERS0, and University of California Retirement System (UCRS) plans.

Qualified plans covered by ERISA include:

  • Private company pensions
  • 401(k)
  • Deferred compensation plans
  • Employee stock ownership plans
  • Profit-sharing plans
  • Severance plans

It is critical to understand that without a QDRO in place, the administrator of the plan will not be allowed to distribute any funds to the non-employee ex-spouse. Also, ensure you learn how to protect your finances in a California divorce.

Various Other Retirement Benefits

SEPs and IRAs do not need to have a QDRO for the court’s division of assets. However, the divorce decree must contain language that states explicitly that any withdrawals and transfers by the ex-spouse are under section 408(d)(6) of the Internal Revenue Code and, therefore, tax-free to avoid paying early withdrawal penalties and income tax.

Division Of Retirement Plans 

There are several factors to determine who gets what regarding retirement plans. Sometimes the answers are not as straightforward as they may seem.

Essential questions include: 

  • What is the present value of the retirement plan?
  • Is the entire amount subject to distribution as community property? If not, is a portion considered community property while the remainder is deemed separate property?
  • Would one spouse give up their share in the retirement plan in exchange for other community property assets? Is that an intelligent choice based on the long-term projections of both the retirement plan and the support?
  • Are one or both of you military officers? Special considerations under the Uniformed Services Former Spouses Protection Act (USFSPA) apply to military pensions.

While you may be tempted to just split everything quickly in an attempt to finalize your divorce, it is critical to understand that the division of retirement accounts and assets requires a lot of attention to detail. It is essential to consider long-term growth on investment accounts, retirement accounts, and other assets that you and your ex-spouse may have invested. Working with an experienced attorney who can look out for your best interest and ensure the divorce settlement is equitable is critical.

Schedule An Appointment With A Skilled Divorce Lawyer At Azemika & Azemika

Our law firm, Azemika & Azemika, serves Kern County and is exclusively devoted to family law. Our skilled attorneys customize solutions based on the needs of each client. We are experts in cases involving divorce, child custody and visitation, child and spousal support, adoptions, and more. 

We are here to help you; you deserve the best representation to protect your rights and future. Contact us today for a consultation.

California Divorce – Residency Requirements

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Filing for divorce can be a complicated process with varying degrees of complexity depending upon your situation and the state you live in, as divorce laws differ from state to state. When filing for divorce in California, you must determine if you meet specific mandated residency requirements.

You do not have to file for a divorce in the same state you were married, but the length of time you have been a resident in California or another state may make a difference. If you and your spouse are filing for divorce, working with a lawyer can help you to navigate the complex family court system. 

One of the many common questions regarding divorce in California is the residency requirement rule. In this article, we will discuss the residency requirements to file for divorce in California and what your options are if you do not meet them.

Understanding The California Residency Requirement For Divorce

California divorce laws clearly outline the steps for anyone wanting to file for divorce. The first step is for the petitioner (individual filing for the divorce or separation) to file the Petition for Dissolution of Marriage (Form FL-100) with the civil courts in the county they have lived in for the last three months.

When filing for divorce in California, you must meet the strict residency requirements, which mandate that you or your spouse must have lived in California for the last six months and lived in the county where you intend to file the divorce for the previous three months; this is not negotiable. You also must sign the document under oath declaring that you or your spouse fulfills the state’s residency requirement.

If you or your spouse has been a resident of California for a minimum of six months but not a resident of your county for three months, then file in whichever county you lived in previously for a minimum of three months.

You and your spouse are not required to reside together to file for divorce, and you may live in separate counties as long as one of you has been a resident in one county for a minimum of three months before filing for divorce. The courts will accept the petition if you are within the required time frame.

However, if neither of you meets these requirements, the court will deny your request to file, and you must find an alternative route for your divorce; however, you may still file for legal separation. Speaking with a California divorce attorney who can help answer any questions you may have is essential.

Exceptions To The California Residency Requirement Rule For Divorce

The exception to the residency requirement rule is for same-sex couples who were married in California but are currently residents in a state that does not recognize same-sex marriages and will not dissolve them. In this case, you may get a divorce in California regardless of the residency requirements. 

To file for a divorce, simply file in the county where you were married.

The other situation is that if you and your spouse are in a registered domestic partnership in California, you do not need to meet the residency requirement rule as a married couple. However, if neither of you meets the requirement, even though the court could end your partnership, it may not be able to make decisions regarding children, property, or support.

You must meet the residency requirements if your domestic partnership is not registered in California.

Alternative Solutions For Divorce In California

  • Suppose you want a divorce in California but do not meet the residency requirement rule. In that case, you may file for a legal separation until you establish residency in California and can meet the requirements for divorce.
  •  Perhaps you may not meet the requirements, but your spouse does. In this case, you may ask your spouse to file for a divorce; otherwise, you must wait.
  • Should you meet the residency requirements in a different state, you can also return to that stature and file for a divorce. Make sure to check the residency requirements of the State first to be sure.

Getting a divorce can feel overwhelming and stressful. Hiring an experienced divorce attorney can help ease the stress and ensure you cover all your bases.

Hire A Divorce Lawyer With Experience You Can Trust

At Azemika & Azemika, our practice is devoted exclusively to family law, divorce law, adoption, property division, child custody, and support in Kern County. Our attorneys are experts and will ensure your rights are protected, and your needs are taken care of when going through a divorce.

You don’t have to go through your divorce alone; we are here to help. Contact us today for a consultation.