Setting Aside Family Law Judgements in Kern County

Setting Aside Family Law Judgements in Kern County

Divorce or legal separation proceedings are already emotionally taxing on the involved parties, especially when a verdict is unfair. Setting aside judgment is a particularly complex process that you cannot handle without an experienced family law attorney.

The Code of Civil Procedure and Family Code has many applicable laws you will need help navigating. An easy way to avoid this situation entirely is by contacting an attorney before you sign any agreements but, assuming you are already in an unfavorable position due to a signed settlement, we will address your options at that point. 

This legal guide will help you understand the process of setting aside judgments and will help you understand how the process is started. 

How Do I File A Set Aside Order in Kern County, California? 

So you signed a settlement agreement in your divorce or separation case, and now you think there is something legally incorrect about it. First, you will need to establish legal ground for your order. Your attorney can assist you in this process. An attorney can scan the agreement and establish permissible legal grounds for your set aside order.

It starts with an RFO. 

After speaking with an attorney and establishing your legal footwork, you will need to file an RFO or a Request for Order. This document is the first part of the process for setting aside a judgment. It contains certain forms and other pleadings. In the RFO, you will address what relief you are seeking and why. Additionally, you can file another declaration that sets forth your testimony as to why the judgment should be set aside. You and your attorney will need to write it on a pleading paper, sign and date it.

You have to file the RFO in the same court which reached the initial judgment in your divorce or separation case. The standard recommendation is that you file a Points and Authority for your motion when trying to set aside a judgment in a family law case. 

What Law Can I Cite For My RFO? 

What laws you reference in your RFO depend entirely on your legal argument for a set-aside judgment motion. In family law, a common procedure for arguing against the judgment is under Civil Procedure 473(b) which is seeking relief from the judgment against you due to your or your attorney’s mistake, excusable neglect, inadvertence, or surprise. If you are claiming it under your own mistake or neglect setting aside judgment is at the court’s discretion. However, if it was a mistake made by your attorney, the court must grant you relief from the judgment. 

There are only two avenues that constitute a mistake or neglect when citing Civil Procedure 473(b) as the argument in your RFO. There is a mistake of fact and a mistake of law. These are defined as the following: a mistake of fact is when you believe the facts are different than what they actually are, and a mistake of law is to misunderstand the legal consequences of known facts.

You can apply a claim of surprise or inadvertence to your proceedings if you are placed in a situation to your detriment through no fault of your own. Considering surprise or inadvertence, the court assesses whether these occurred by determining if an average person under similar circumstances might have made the same error as you. 

Excusable neglect is applied to your pleadings if you suffer from a disability, such as mental confusion, certain illnesses, or if English isn’t your first language. 

How Much Time Do I Have To File My Motion?

You have six months to file your relief motion under Civil Code Procedure 473(b). It is important to note that when you are seeking to set aside a default judgment, the six month period begins from the entry of default, not the entry of judgment. Or in the case of citing your attorney’s mistake as the reasoning for relief, the six-month period begins from the entry judgment date. 

Regardless, It is important that you act fast if you decide to file a motion to set aside a judgment. Six months may seem like a long time, but legal proceedings can take months, not to mention the time it takes finding the right attorney for you.

Contact an Experienced Kern County Family Law Attorney

Setting Aside a judgement requires an attorney’s detailed expertise.
At Azemika & Azemika Law, we are dedicated to providing aggressive and knowledgeable service at an affordable cost. It is a fact that a breakdown in a relationship or marriage can be stressful and traumatic. With a combined total of over 42 years of experience in Family Law Matters, our partners are exclusively devoted to assisting our clients through these difficult times by restoring the peace of mind you and your loved ones deserve.

Father’s Timeshare for Child Support Is Zero Despite Mother’s Interference with Father’s Visitation

sample case about legal custody of Child and child support in california

In a partial reversal, a California Court of Appeals has ruled that a Trial Court was wrong by attributing extra unsubstantiated timeshare to Father to compensate for Mother’s alleged interference with and prevention of Father’s visitation with Child. According to the Appellate Court, actual timeshare must be used in calculating child support, which is not affected by one parent’s deprivation of other parent’s visitation rights.

In the case of County of San Diego v. P.B., Mother and Father were married in 1998; their Child was born in September 2001. In 2006, Mother filed for divorce. Child custody, child support, and visitation became issues of ongoing contention and dispute. Mother and Father had joint legal custody of Child, but Child lived with Mother, and Father had a fifty percent (50%) timeshare.

In 2011, “an incident at a restaurant” caused Father’s timeshare to change from fifty percent (50%) to supervised visitation only. From October 2014, through July 2015, Father had a twenty- nine (29%) timeshare. Meanwhile, in September 2014, Mother filed a motion for increased child support and determination of arrearages in the Family Support Division.

In October 2015, a family court services counselor prepared a report regarding the custody dispute. That report stated that the 2011 incident had caused Child to be seriously afraid of Father and to not want anything to do with Father. The counselor reported Father’s claim that Mother made false accusations against him that detrimentally affected his relationship with Child. Child told the counselor that Mother had told him about examples of Father’s bad parenting in Child’s childhood, but he had no independent memories of them. The counselor concluded that Child was “emotionally stunted” and could not “psychologically see himself as a separate person from his mother.” Child’s memories of the restaurant incident served to validate Mother’s views of Father and made Child oppose any efforts to reunify with Father. The counselor recommended that Mother and Father have joint legal custody of Child, with sole physical custody to Mother and no parenting time for Father.

In September 2016, Mother and Father stipulated to a final custody order that provided for Father and Child to begin reunification therapy, and that after 60 days, Father could have increased parenting time up to fifty percent (50%) unless Child’s attorney or the reunification therapist opposed it on the basis of Child’s best interests. However, reunification therapy did not go well (Child threatened suicide and was taken for hospital evaluation). Father then filed a motion to modify custody, based on Mother’s having “brainwashed” Child and her determination to keep Child and Father apart. As to child support, Father’s attorney argued that Trial Court should attribute a fifty percent (50%) timeshare to Father, per parties’ stipulation, because of Mother’s efforts to thwart visitation. Trial Court made no finding of visitation interference by Mother, applied a zero timeshare, and ordered Father to pay $819 per month for child support, retroactive to October 1, 2014. Trial Court remarked that it might use another timeshare if it found that Mother had interfered with Father’s visitation.

In March of 2017, Father submitted a declaration contending that Mother interfered with his visitation time and failed to support his reunification therapy with Child. At a hearing on child

support in the Family Support Division in May of 2017, Trial Court made an interim order, based on allegations of alienation in the custody dispute, wherein it found that timeshare was 50/50 and ordered no child support. Trial Court reasoned that it would be inequitable to permit Mother to ignore or interfere with the stipulated timeshare and then seek added support on the basis of increased timeshare. Mother objected on the basis of California Family Code Section 3556 [enforcement of child support order not affected by custodial parent’s refusal to permit visitation].

At the next hearing in September 2017, Mother told Trial Court that Father and Child were undergoing conjoint therapy, but Child still refused any visitation with Father. Trial Court updated its interim orders, set child support at $286 per month from October 2014, through July 2015, using a 29% timeshare. For the period from August 2015, through December 2016, Trial Court used a 2% timeshare and ordered child support of $817 per month. From January 2017, forward, Trial Court set timeshare at 2% and child support at $892 per month plus back child support of $200 per month.

At a custody hearing in December 2018, Trial Court noted that Father had had no contact with Child, except for therapy sessions, since August 2015, and their estrangement was virtually total. Trial Court found it unclear that Mother had caused the estrangement, but recognized that Child was then 17 years old, which made a reconciliation highly unlikely. It cautioned Father that estrangement was not a defense to paying child support. Trial Court concluded that Mother and Father would have joint legal custody of Child, with Child to reside primarily with Mother and visit Father only by mutual agreement.

At a final hearing on child support, Family Support Division Trial Court commented that the evidence seemed to show that Mother’s actions were largely responsible for the estrangement between Child and Father and that the estrangement constituted a special circumstance. In a final child support order issued on January 18, 2019, Trial Court made no change to existing support order for the period of October 1, 2014 through July 31, 2015. For the period form August 1, 2015, through December 31, 2016, Trial Court attributed a 29% timeshare to Father and ordered $529 per month for child support. For the period from January 1, 2017, through October 31, 2017, Trial Court attributed the same timeshare, despite no visitation, and ordered Father to pay $649 per month. From November 1, 2017, forward, Trial Court applied a zero timeshare and ordered Father to pay $970 per month. Trial Court acknowledged Mother’s contributions to the estrangement.

Claiming that Trial Court erred by attributing extra timeshare instead of actual timeshare, Mother appealed Trial Court’s ruling, and now California Court of Appeals has reversed Trial Court in part and remanded the case back to Trial Court for further proceedings. According to the Appellate Court, (1) Trial Court stated no valid legal or factual basis for attributing extra timeshare; (2) Trial Court may not modify child support as a means of coercing custodial parent into compliance with custody orders; (3) Trial Court’s method of calculating child support was “tantamount to withholding child support” and was inconsistent with applicable law; and (4) Father’s parents’ payments for Father’s legal fees do not qualify as recurrent monetary benefits that are available for child support calculation. The Appellate Court has reversed the child

support calculation for time period from August 2015, through October 2017, and has remanded the case back to Trial Court for recalculation based on Father’s actual timeshare.

Moving Away: California Child Custody and Relocation

Moving Away California Child Custody and Relocation

Divorce is a tough and emotionally painful process to go through, and when there are children involved, the stakes only increase. What happens when a custodial parent wants to move away with their child in tow? How do you contest it or defend it? 

Having a divorce attorney can help you navigate these grey areas to the letter of the law and  determine the best course of action for you and your family. 

What Constitutes ‘Custody’?

Before we can discuss moving away, it would be helpful to clarify what custody means, and the different kinds of custody a parent or caretaker can have.

When a couple divorces, they reach an agreement on where their children will live and how visitation works between the two households. If a decision can’t be reached, a judge will determine what is in the child’s best interest. From there, custody can be unique based on the conclusions reached by the court and the couple.

Physical Custody

This determines which of the parents the child in question will live with. This is the ‘custodial’ parent, and they have the specific right to have their child in their home. The other parent is the ‘noncustodial’ parent, and although they have visitation rights, they have more limitations than the custodial parent.

Sole or Joint Physical Custody

Joint physical custody” occurs when parents both spend equal time with their child, such as having the child on school nights versus having them on weekends. 

However “sole physical custody” is when the everyday care and nurturing of the child falls to one parent, while the other works within their visitation rights. 

Legal Custody

This refers to whichever parent can make legal decisions for the child. They’re the one who has the final say in regular healthcare, school and education, and religious decisions. 

Joint or Sole Legal Custody

In California, both parents receive joint legal custody for their child unless one parent is deemed unfit to make the necessary decisions, if it’s in the best interest of the child for one parent to make the legal decisions, or if the parents cannot get along to make these necessary choices. 

If this is the case, then the parent deemed fit would have sole legal custody.

Is A Custodial Parent Allowed To Move Away With A Child? 

The custodial parent is allowed to move away with a child as long as this move won’t interfere with the child’s best interests. 

A noncustodial parent in a joint custody situation would need to have an adjusted court order to move out of state with their child. 

Providing Notice and Altering Court Order

In order to move out of state with the child, the custodial parent must provide a written moving away notice if they will be away for more than 30 days. This notice must be sent at least 45 days prior to the move so that both parents can work out their new custody agreement. 

However, if the noncustodial parent disagrees with the move, they can file an objection and request that the court modify the custody as it currently stands. 

What Happens In Court During A ‘move-away’ Situation?

Don’t be caught unaware by what goes on in court, a family law attorney can help get everything in order for this proceeding.

The Hearing

If one of the parents objects to the move, there will be a court hearing to determine if the move is unsafe or not in the best interest of the child. A judge will schedule this meeting in order to make a ruling on any custody changes or allowances. 

Just because a move will be hard on a child doesn’t mean that custody will be adjusted. The noncustodial parent needs to prove that the child will be negatively impacted in a detrimental way by this move. Similarly, in a joint custody disagreement, the custodial parent will need to prove that this change will be in the child’s best interest. 

Factors to Consider 

A court, while determining whether a move is in a child’s best interest, will consider the following factors: 

  1. The child’s current need to maintain continuity, stability, and security.
  2. How far away this move is from the current location.
  3. If there’s a risk of harming the child during the change in custody.
  4. How this move will impact the relationship of the child with both parents.
  5. If moving will negatively impact the child’s relationship with the nonmoving parent.
  6. Why the custodial parent has decided to move.
  7. The parent’s relationship with one another and if they are able to communicate in a civil manner.
  8. How the child’s educational, physical, and emotional needs will be satisfied by this move. 
  9. If there is an extended family for the child in either location. 
  10. Anything else the court decides should be considered in the move-away case. 

You Don’t Have To Face Divorce Alone

A ‘move-away’ order can turn an already difficult divorce into an even more complicated situation. But you don’t have to find your way out by yourself. Kern County family law attorneys Azemika & Azemika can help you and your child move forward and move on with your lives. 

At Azemika & Azemika, we understand family, and are willing and ready to be your rock in this trying process. Contact us now if you or a loved one are considering beginning the divorce process or are facing a ‘move-away’ order. We’ll fight for you and your family.

How Does Legal Separation Work in California?

How Does Legal Separation Work in California?

Even though they share some similarities, legal separation and divorce are not the same thing. They both involve the couple living apart from one another with a specific legal agreement in place but legal separation does not completely dissolve the marriage like a divorce does.

In this article, we will detail how legal separation works in California, and when it might be the right choice for you.

What is Legal Separation?

Legal separation requires court-appointed agreements to be put in place, just like a divorce. The couple and their lawyers must reach agreeable negotiations that will be filed with the court. In a legal separation, the marriage is still intact, but with stipulations.

A legal separation agreement will take on all of the issues that are covered during a divorce proceeding. 

Both spouses need to agree to a legal separation in the State of California in order for it to take effect. If your spouse does not agree, you may have to file for divorce.

Pros of Legal Separation

Deciding to go down the path of legal separation is a personal decision that only you and your spouse can make, and you should put considerable thought into the decision.

If you are considering a legal separation, you should always seek the guidance of a skilled attorney who specializes in divorce and legal separation

For many people, legal separation is the first step to a final divorce. Reasons such as tax benefits and religious convictions can inspire a couple to become legally separated before deciding to completely dissolve their marriage.

Many times, a couple will determine that they may not be able to remain under the same roof, but they have a good reason not to divorce either.

Here are some reasons why you should consider legal separation:

  • You and your spouse will continue to receive health insurance from the subscriber’s plan. 
  • You and your spouse will still continue to benefit from federal tax breaks for married couples.
  • There is still a possibility of reconciliation. With a legal separation, you and your spouse can still decide to keep your marriage intact after some time apart. Many couples go to marriage counseling during a legal separation.
  • You or your spouse may not believe in divorce due to religious convictions.
  • You might be financially unstable and staying legally married will help with living costs. 
  • If you or your spouse are eligible for the other’s social security benefits. This sum of money increases after ten years of marriage.
  • You aren’t ready to negotiate a full-blown divorce agreement. Legal separation will protect your rights and financial interests while you decide if divorce is the right decision. 
  • If you plan to stay separated on a long-term basis, a legal separation agreement will keep your interests legally protected.
  • Legal separation covers all the issues covered in a divorce. This includes child support, custody, asset and property division, marital debts, and spousal support.

California Residency Requirements and Exceptions

Certain residency requirements must be met to get a divorce in California. At least one spouse has to be a California resident for at least six months and a resident of the county where the divorce is filed for at least three months. If both spouses have lived in California for at least six months but have lived in different counties for at least three months, then either spouse can file in their respective county. 

Couples who originally registered their domestic partnership in California do not need to fulfill any residency requirements to get a divorce. They can get a divorce regardless of where the partners are living. However, if their domestic partnership is registered in a state other than California, they will need to meet the same residency requirements as married couples. 

If neither spouse/domestic partner can meet the residency requirements, one of them can file for a legal separation and then file for a divorce after the residency requirements are met.

California Grounds for Legal Separation

California courts do not require either spouse to show fault in order to get a legal separation or divorce. It is a “no-fault” state, where one spouse just needs to allege that the couple has “irreconcilable differences” and that the marriage is no longer sustainable. “Irreconcilable differences” means that there are substantial reasons for the marriage to be dissolved.

To obtain a legal separation on this ground, both parties must agree. This requirement gives the responding party the ability to prevent the legal separation. 

Contact Azemika & Azemika Law for More Information on Legal Separation

Deciding to proceed with legal separation or divorce can be stressful. It is important to have a knowledgeable, experienced attorney at your side. At Azemika & Azemika, we are here to support and guide you through this difficult time. We are well-versed in the areas of legal separation and divorce, and we will fight for you and your family.

Contact us today to learn how we can protect you and your rights during the separation and divorce process.

Understanding Child Custody and Visitation

Understanding Child Custody and Visitation

Divorce is never an easy situation, especially if there are children involved. Understanding how custody and visitation rights are assigned can help make the process smoother. These two arrangements compose a parenting plan, for which you and your former spouse must provide input. In California, a judge will formalize this plan. Let’s take a closer look at child custody and visitation arrangements.

What is Custody?

If you have custody of your child, you hold a set of responsibilities for their care. There are two main types of custody: legal and physical. If you have legal custody of your child, you are responsible for essential decisions in their lives (e.g. medical care decisions, where they attend school, what church they attend), even if they do not live with you. If you have physical custody, the child lives with you for at least part of the year. In general, the parent who spends less time with their child will be ordered to make child support payments to the primary parent. 

Legal and physical custody do not necessarily coincide. A parent may have legal custody even if the child only lives with them part-time or not at all. Both legal and physical custody can be arranged as “joint” (in which parents share responsibilities) or “sole” (in which only one parent holds these responsibilities). In cases where one parent has sole physical custody or primary residence of the child(ren),  the other parent will have visitation rights.

What is Visitation?

If a parent has the child less than half the time, they are considered to have visitation. Visitation may be arranged on a set schedule, e.g. every other weekend, half of all major holidays and shared summer months or it may be called “reasonable visitation as mutually agreed upon,” in which parents work it out between themselves. It is generally not recommended to not have a set visitation schedule and instead leave it as “reasonable visitation as mutually agreed upon.” 

Divorced couples who may get along at the beginning of their divorce case may not get along as time goes by. Therefore, when you leave the visitation order as “reasonable visitation as mutually agreed upon, the party who has physical custody of the child may not agree to any visitation out of spite.

If a judge determines that one parent may cause distress or risk to a child, or if the child has been estranged from that parent for some time, the court will order supervised visitation. In these situations, a professional supervisor will be in attendance while the child and parent interact. Other reasons for supervised visitation include a parent’s recent criminal conviction and proven drug and alcohol addiction or issues.

How Are Custody and Visitation Arrangements Determined? 

During amicable divorce proceedings, both parents can work with the court to determine an appropriate arrangement. For example, if one parent intends to move far away or work long hours, the other parent may receive primary physical custody because they are better able to provide for the child. In many such cases, the parents will split responsibilities as evenly down the middle as possible.

In situations where parents cannot agree on a schedule, the court has reason to suspect that one parent is ill-equipped to care for the child, or if the child of a certain age requests that one parent be their primary caregiver, the judge is required by law to create an arrangement that is in the best interest of the child. 

Factors such as the child’s integration into their school or community, special health needs, and the child’s overall age and maturity are taken into account. A child’s preference will also be weighted according to their maturity level and any input from a third-party child advocate. For example, the preference of a child who wishes to live with the parent who supports their extracurriculars will be considered to have more weight than that of a child who wants to live with the parent who feeds them ice cream and pizza.

The court will also evaluate each parent’s ability to emotionally provide for the child. Per California law, neither parent may be granted custody on the basis of their gender. Rather, both parents will be asked about their emotional connection to the child, care for their home environment, and other factors that impact the child’s well-being.

When Might Custody or Visitation Be Denied? 

If either parent has a history of abusive or violent behavior, or substance abuse, they may be considered less fit to care for the child. In most cases where one parent has been convicted of domestic abuse charges or in which the child was conceived through rape, custody and unsupervised visitation, if any, will not be granted to the offender. 

If a child protective agency has found that one or both parents have engaged in abusive behavior toward the child (or exposed the child to a traumatizing environment), the judge is likely to deny or strictly limit custody and visitation. 

Moreover, a parent who misrepresents the behavior of the other parent in order to gain primary custody will likely be denied custody. Child advocates will investigate the claims, and if found to be a lie, the interfering parent is not viewed favorably by the court.

In general, the judge will seek an arrangement that minimizes stress and risk to the child. That means preserving emotional bonds, a stable home and educational environment, and financial support whenever possible. 

Can The Custody Arrangement Be Changed?

Parents can request modifications to the custody/visitation arrangement if circumstances change. California courts greatly favor stability and continuity, so any parent wishing to change a parenting plan must provide clear evidence that the requested change would be in the child’s best interest. 

By the same token, a parent cannot request modification based on temporary circumstances. For example, if the noncustodial parent is away on a work trip for a few weeks, this cannot be construed as that parent having waived their visitation rights upon their return.

However, if one parent regularly skips out on their assigned visits or shows no interest in maintaining their custody responsibilities, the court may decide to revise the parenting plan and change their visitation rights. (Note that failure to make child support payments does not allow the custodial parent to deny visitation.)

Conclusion

Child custody and visitation arrangements are always developed to serve the child’s best interests. During any divorce proceedings, it’s important to discuss a potential parenting plan. If this is not possible, be honest with the court and any third-party evaluators. Doing so will help the judge order an arrangement that works best for the child. For comprehensive representation in any Child Custody and Child Support matter, call Azemika & Azemika Law. We will fight for and protect you and your family during the separation and divorce process. Contact us today online or by phone 661-322-8166 to arrange an initial consultation with our attorneys.

California‌ ‌Divorce‌ ‌Questions:‌ ‌Direct‌ Tracing‌ Community‌ ‌Property‌ ‌vs.‌ ‌Separate‌ ‌Property‌

a figure representing Direct‌ Tracing‌ Community‌ ‌Property legal process

Getting divorced is stressful and complicated enough. Figuring out how to divide your assets adds a layer of complexity that can seem overwhelming. With the right team on your side, understanding the different ways to separate and identify what property belongs to who can be a much simpler experience. Here’s the difference between direct‌ tracing‌ community‌ ‌property ‌and‌ ‌separate‌ ‌property‌.

Types of Property in a California Divorce

The state of California recognizes generally two types of property in a marriage: separate  property and community property. 

Separate property is property that was owned or acquired before you got married or after you were separated. If you received property by gift, bequest, or devise or descent during the marriage that was specifically gifted to just you and not your spouse, that will also qualify as  separate property. 

Community property refers to all property acquired during the marriage other than property that was acquired by way of a gift or bequest.

When the court says everything, they mean everything. Your salary through your marriage is considered community property even if you keep separate bank accounts throughout your marriage. The home you bought while married is considered community property. Everything you acquired while you were with your spouse is community property.

However, if you used individual assets to improve or acquire community assets during the marriage, you are entitled to the property or reimbursement for the cost of improvements. This can be a tricky thing to argue because the onus of proof is on you, as the court’s default assumption is that everything acquired during the marriage is community property. You have to be able to prove that you used what the court would classify as separate property assets to cover the cost before they will grant you the reimbursement or the actual property.

How to Sort Out Separate Property Claims

One of the most frequent questions we get asked is this: How do I prove that my separate property assets are my separate property assets? There are three methods that you can use to sort out separate property claims from community property claims:

Keep Property Separate

The easiest way to prove a separate property claim is to keep your separate property in a stand-alone account throughout your marriage and avoid adding community funds to this account. You should also try to avoid using separate property funds on community property assets to keep things clear and simple.

Examples of the kinds of property that should be kept in a stand-alone account include:

  • Everything you owned before the marriage.
  • Gifts you received during the marriage to just you.
  • Any inheritances you (and you alone) received.
  • Rent or profits from separate property assets.

Direct Tracing Method

Another method of identifying what is separate property versus what is community property is the direct tracing method. Direct tracing is a way of connecting the dots between separate property accounts and improvements to community property, including community investment or brokerage accounts. 

Direct tracing requires you to have proof of sole ownership of what you are claiming as separate property. These could be things like deeds, bank statements from a stand-alone account, or legal documents from a gift or inheritance naming you as the sole recipient. 

If you are using this method to prove that you used separate property to fund improvements to community property, you need to be able to show the path of those funds from your separate accounts to community accounts. If you are unable to show that through a paper trail, there is one more way to try and prove to the court that you are owed a reimbursement.

Exhaustion Method

Not all of us are meticulous record keepers. Many times in a marriage, separate property funds are used without thinking about how to get reimbursed in the case of a divorce so records just aren’t kept. There is still a way to prove separate property funds were used: the exhaustion method.

In California, the courts assume that when funds are commingled, community assets are spent first on family expenses such as bills, food, mortgage payments, etc. If you can show that there were no community funds to spend at the time of the home improvement or investment account deposit, then the court would acknowledge that separate funds were used for that expense. 

For example, let’s say that you alone received an inheritance and you and your ex-spouse agreed to use part of those funds to renovate your kitchen since your incomes were used to cover your expenses. If you can show the court that there was no way your community property assets would have been enough to pay for the kitchen renovation, the court would have to acknowledge that your inheritance funds were used and would grant you a reimbursement of those funds.

Experts Can Help Simplify the Process

Separating property is a complicated process, but you don’t have to do it alone. Enlisting the help of an expert in family law is the easiest way to ensure that you walk away with your assets intact. Family lawyers and forensic accounts can help untangle any commingled assets and work with you to show the court that your separate property is yours alone. 
Over the past 28 years, our partners at Azemika & Azemika have all successfully handled the most difficult and high asset family law cases in Kern County and we can help you, too. We are family law specialists and we understand that each case is as unique as the clients we represent. For comprehensive representation in a divorce or domestic dissolution, contact us today.

Alimony: Temporary or Permanent?

wooden court gavel over a pile of money regarding moving to another country cases

If you are in the process of filing for a divorce in Kern County, you probably have quite a few questions about spousal support. This blog is intended to explain the factors that affect spousal support decisions as well as the difference between permanent and temporary alimony.

What is Alimony?

Alimony, also commonly referred to as spousal support in California, is payment from one spouse to another after they file for divorce. A written agreement that requires the paying spouse to make their payments to support the other spouse needs to be filed with the court before payments are made. This helps to ensure there is no dispute about the payments.

Who Pays Spousal Support?

During divorce proceedings, typically a judge will determine which spouse is responsible for paying alimony in California. When making that decision, the court will weigh a few different factors including:

  • The length of the marriage
  • Each spouse’s earning capacity
  • Each spouse’s needs, based on their standard of living during the marriage
  • Each spouse’s debts and assets
  • Each spouse’s age and health
  • Whether there was a history of domestic violence against a spouse or children
  • The supported spouse’s ability to become employed without impacting the care of the couple’s children
  • Tax status and impact a divorce and spousal support will have
  • Role each spouse played in the educational or career development of the other spouse
  • The paying spouse’s ability to pay alimony and for how long
  • Any other factors the court chooses to consider

To award alimony, a judge must find that one spouse has a financial need and that the other spouse has the ability to pay.

How Long Does Spousal Support Last?

It depends on the length of the marriage. In California, any marriage that is 10 years or longer is considered a “marriage of long duration” or “a long term marriage.” In long term marriages, the final divorce Judgment will generally provide for spousal support until the death of either party, supported spouse’s remarriage or further order of the court, whichever occurs first. This means that unless one of the parties passes away or the supported spouse gets remarried, spousal support will continue until the supporting spouse takes the supported spouse back to court to modify or terminate his or her support obligation. In California, family law courts expect supported spouses to become self-supporting within a “reasonable period of time” which is generally one-half the length of the parties’ marriage. This, however, does not mean that in long term marriages, the courts cannot order support for longer than or less than one-half the length of the parties’ marriage. In contrast, in marriages that are less than 10 years, spousal support will generally only last one-half of the length of the marriage. In other words, if you were married for eight years, you can generally expect to pay spousal support for four years.

The spouse who is requesting alimony in California can do so as soon as the date of the divorce filing. In California, spouses are able to request the temporary alimony pending their divorce trial and  permanent alimony at the time of their divorce trial.

Permanent Alimony vs. Temporary Alimony

Temporary alimony, which is based on a temporary spousal support guideline, is a payment from the supporting spouse to the supported spouse who earns less or no money. Temporary alimony ends when the judge finalizes the divorce. At that time, typically, a permanent alimony award will be put in place. Essentially, temporary alimony is an order for support during the divorce proceedings. The purpose of temporary alimony is to preserve the status quo in order to try and keep some semblance of what the couple had financially while they were married.

How is temporary alimony calculated?

California divorce laws allow the court to determine the temporary spousal support request by using a guideline calculator. The calculator enables the court to get a fair look and consideration of the needs of both parties and their ability to pay. Each County in California has adopted its own temporary spousal support guideline. Unlike permanent alimony, temporary alimony, as the name suggests, is just a short-term solution.

Depending on the length of your marriage, permanent alimony is pretty standard procedure in Kern County divorce courts. In California, permanent alimony is also called permanent spousal support, post-judgement spousal support and long term support. 

Figuring out permanent alimony in California is more complicated than calculating temporary spousal support. The court must list and consider each factor listed in California Family Code 4320 to determine the length and amount of alimony. These factors include the standard of living during the marriage, income, spouses needs and health and so on. Permanent alimony is typically a lower than temporary alimony.

Just because it is called permanent alimony it does not mean it is a lifetime award. In some permanent alimony cases, a judge will put a termination point on the file. A spouse that is receiving support is expected to get back on their feet and support themselves eventually. Of course there are instances when a supported spouse just may not be able to care for themselves financially or come close to what their standard of living during the marriage was. Some of those instances may be:

  • The marriage was more than 30 years long
  • The financially dependent spouse is age 50 or older
  • The financially dependent spouse is in poor health, handicapped or has a limited earning potential
  • The supported spouse gave up their career to raise the couple’s shared children full-time

Gavron Warning

This is a warning that alerts the supported spouse they are expected to become self-supporting (barring the above special or similar circumstances). The Gavron Warning gets its name from a landmark California case. In that case, an ex-wife received support in the form of permanent alimony. The spouse was not employed. Six years into the payments, the paying spouse argued that his ex-wife had ample time to become self-sufficient. The courts then modified the spousal support arrangement and viewed the supported spouses failure to gain employment as a change in circumstance. So, the burden shifted to her to prove that she did, in fact, need additional support. Today, the Gavron Warning is a way for the courts to warn the supported spouse that they need to make efforts to become self-sufficient and if they don’t, their alimony payments can be discontinued at some time in the future.

Now let’s look at some other circumstances in which permanent alimony can be terminated :

  • The supported spouse gets remarried
  • Death of the supported spouse or supporting spouse
  • The predetermined length of support expires
  • Any change in circumstances of one of both of the parties that impacts the need or ability to pay spousal support

It’s important to remember that just because it is called permanent alimony, does not necessarily mean it is written in stone until the end of time. Permanent alimony can be modified or terminated, unless of course there is language in the divorce settlement that specifically states the alimony is non-modifiable.

If you are in the process of filing for a divorce, we hope this guide can help you sort through the differences between temporary and permanent alimony and understand how the legal process works. Contact us with your divorce or family law needs. Our attorneys are experienced, compassionate family law specialists available to help you understand your rights and navigate you through the divorce and spousal support process.

How Does a Child’s Preference Affect a Child Custody Case?

Fiduciary Duty of father to child support cases

Child custody cases are often confusing and distressing. There’s a lot of misinformation surrounding them online, especially with regard to how custody determinations are made. In addition, laws vary from state to state, and these bear weight differently in certain jurisdictions as a result, especially when it pertains to the preference of the child. Child advocates have worked hard to ensure that children’s voices are heard during the process. Let’s take a look at how a child’s preferences are incorporated into custody proceedings.

Around the nation, children typically don’t gain a voice in custody proceedings until their teenage years. In California, however, progressive laws such as Family Code 3042 have enabled children to express their custody preference even at a young age.

What are the Types of Custody?

Children and parents may be unaware that under both California and Kern County family law, there are two types of custody, and each type of custody may be solely or jointly kept. Physical custody is what most people think of when they hear the word “custody.” It refers to the living situation of the child; the parent with whom the child lives is the “custodial parent,” and the other parent typically has visitation rights. However, if both parents have “joint physical custody,” the child may split their time evenly between the parents’ residences.

The other type of custody is legal custody. The parent with legal custody is able to make decisions about the child’s education, medical care, religion, and other health and lifestyle factors. Under California law, legal custody is usually jointly assigned. Parents may have joint legal custody without having joint physical custody. A parent may achieve sole legal custody if the other parent is deemed unfit to make decisions in the best interest of the child.

What California Law Says About Children’s Custody Preference

The Family Code 3042 broadly defines a child’s ability to express choice, stating “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.” This means that any child deemed mature and intelligent enough to clearly express their preference must have their choice taken into consideration.

The Code goes on to set the age threshold at which children are automatically deemed able to express their preference. While those aged 14 and older are considered mature enough to make a choice, the court shall listen to those younger if an evaluation finds that they are making an informed preference. However, even if younger children are precluded from giving testimony, the court must provide a way to assess the child’s preference, such as through an evaluator.

Finally, a judge may never force a child to testify if they don’t wish to do so. If a child doesn’t want to speak in court, the judge may appoint an evaluator, investigator, or mediator to assess the child’s preference (if any) and find any relevant facts that may help with the determination.

What Types of Preferences Can a Child Express?

The child may tell the court which parent they prefer to have custody, and they may also express preferences for visitation (or lack thereof). Many courts will hear a child’s preference for sole custody with one parent, but order counseling, reunification, and other measures to keep the child in contact with the non-preferred parent.

Children may express the reasons for their preference, and these reasons will be weighted according to their bearing on the child’s well-being. For example, if the child believes that one parent is better able to provide access to their preferred school and extracurriculars, judges will weigh that preference more heavily than if a child prefers to live with the parent who has a big-screen TV and pool.

How Is a Child’s Preference Expressed in Court?

Under California law, children do not necessarily have to give testimony in open court. The court determines the means by which the testimony is gathered. The child may disclose to the judge in chambers, or they may speak through a designated evaluator or advocate. Children are permitted to share their preference without the presence of the parents of their attorneys, although attorneys and the court reporter are usually present in chambers. Wherever the child gives testimony, the court reporter will document it, and the court may also permit a listening device for the benefit of the parents and counsel.

Finally, the child may speak directly to the judge or to the divorce attorneys. It is not common for children to be questioned by the parents if the parents have representation. Judges may limit the line of questioning by the attorneys to protect the child from distressing or embarrassing topics.

The Role of Custody Preference in Proceedings

Of course, a child’s preference is not the be-all-end-all of the proceedings. It is one of several factors that will be taken into consideration. The court will evaluate the situation and may determine that an investigation is necessary to discover if the child’s preference is free of external influence. For example, some children may be alienated from one parent due to manipulation, false information, or abuse by the other parent. Others may be psychologically distressed by the family situation and may be expressing a preference not born of sound mind.

Family Code 3042 and California Rules of Court 5.250 provide multiple courses of action should a court suspect that a child has been unduly influenced. These include the ability to appoint a child custody 730 evaluator or separate counsel to the child. These professionals can assess the information and inform the judge of the weight a given child’s testimony might have in the custody determination.

No matter how the testimony is collected or what it entails, it must be fully documented and released to the judge, parents, and counsel. Some information will be kept confidential and on a need-to-know basis. Ultimately, the judge will make the custody determination based on the best interest of the child.

How Can Parents Express Their Custody Preference?

If a parent seeks custody, they must file a formal request for order with the court. They may state that the child has expressed a custody preference to them. This statement will be compared with any testimony collected from the child. Parents should take care to present the facts and rationale for obtaining custody without seeming to pressure or influence the child’s decision.

How Do Judges Make Custody Decisions?

Judges will draw from the testimony of the parents and children who are deemed mentally and emotionally fit to give unbiased information free of external influence. The results of any fact-finding missions by child custody investigators and divorce attorneys will also be incorporated. While no two judges are alike and each is entitled to their own decision-making process as permitted under California and Kern County law, most courts take the following factors into consideration:

  • each parent’s history of care and attention to the child
  • each parent’s fitness as a caregiver
  • each parent’s household stability
  • any history of abusive behavior, substance abuse, or violence
  • any factors describing the child’s health and safety
  • any manipulative behavior that may cause undue influence on the child, including alienation from the other parent
  • any false allegations or other manipulations to sway the outcome of the proceedings
  • where the child’s siblings reside
  • the child’s custody preference
  • any particular health, financial, or lifestyle needs and preferences of the child

If you are seeking a Bakersfield family law attorney, contact Azemika & Azemika for comprehensive counsel on custody, divorce, and all family law matters. We will fight for your family and help you navigate the complexities of custody hearings and divorce proceedings, keeping the best interest of the child at heart. Contact us today for a free consultation and learn how we can protect you and your family.

Child Support in California: The Need to Know

child support in california childcare costs

No matter the custody situation, both parents of a child usually have financial responsibility for that child. Across the nation, parents must fiscally support a child or face legal consequences. That said, child support situations can be challenging to navigate. Here’s what you need to know about your rights and responsibilities as they pertain to child support.

When is Child Support Needed?

A judge may order a parent to pay child support under three main circumstances. These are:

  • divorce
  • legal separation
  • paternity cases

In each of these situations, there is a separation of the child from the parent that would preclude normal means of financial support. The court assumes that the custodial parent is already fiscally supporting the child by way of food, clothing, hosting, and other costs. If the child is separated from the other parent in any way, child support provides a legal means of ensuring continued fiscal responsibility for the child.

Child support continues until the child turns 18 years old, unless the child is still in high school and resides with a parent, at which point the support may legally continue until the child turns 19. If the child becomes self-supporting in any way, such as through marriage or joining the military, the child support may end. On the flip side, the child may continue to receive child support if they have a disability or other circumstances that prevent them from becoming self-supporting.

How Child Support Is Calculated

Courts determine child support responsibilities by assessing the net disposable incomes of both parents. Rather than creating undue burden on either parent, the court uses a sophisticated mathematical formula to decide how much support a parent is required to provide the child. This formula includes:

  • salary, wages, or other earnings from employment, including self-employment
  • commission income
  • tips
  • benefits from unemployment, disability, or other state assistance
  • workers’ compensation
  • social security income
  • payouts from pensions
  • income from interest or dividends from investments
  • lottery, monetary rewards, or other winnings

To determine the child support amount, both parents will need to provide all documentation of these various sources of income. All these sources are compared with existing financial responsibilities, including housing costs, taxes, union dues, healthcare premiums, retirement contributions, and pre-existing child support arrangements.

The court shall also assess other expenses that may impact the parent’s ability to pay child support, including costs for childcare, healthcare, and transportation for visitation. In some cases, these add-on expenses may be divided equally among parents or proportionately assigned based on their income. Another factor in determining guideline child support is the proportionate time-share that a parent has with the child.

What Happens to Parents Who Do Not Pay Child Support?

Once a court mandates child support, any parent who does not comply will be subject to severe penalties. The law permits for wages to be garnished, driver’s and professional licenses such as medical and law licenses and passports to be revoked or suspended, credit scores to be impacted, and liens to be placed on one’s property. Also, parents who do not pay child support may have their tax refund, unemployment income, and workers’ compensation reduced. If they continue to not pay, they may be subject to fines and even incarceration.

A parent may not evade child support by refusing to work. A court may impute someone, based on their employment history and qualifications, and determine an amount for which they are fiscally responsible to the child.

If the custodial parent struggles to receive child support from the parent who owes child support, they may petition the court to garnish wages or otherwise procure the funds from the parent.

Do Parents Have a Say in What They Pay?

If parents mutually agree on financial obligations, the courts may take that into consideration. Parents may also offer and agree to pay a higher amount of child support. If a parent would like to agree to receive less, they must not receive public assistance and they must affirm to the court that they know their rights and were not coerced into the agreement. As always, the best interest of the child comes first: the child’s needs must be met in any arrangement.

If circumstances change and the child spends more time with the non-custodial parent, or if one parent experiences a sharp decline or increase in their financial stability, the child support arrangement may change. If one parent has another child or becomes incarcerated, the arrangement may change under those circumstances as well. However, the court must also reevaluate both parents’ financial situation and the time they spend with the child in order to make a new determination.

Can A Parent Deny Visitation if Child Support Is Not Paid?

Under California law, any parent who has been granted visitation rights under a custody arrangement can continue to enjoy those rights, even if they are behind or short on their child support payments. It’s important to accommodate visitation rights. If a custodial parent feels that the other parent is using visitation rights without supplying financial support, they may petition the courts for a new arrangement or submit a request for the other parent’s wages to be garnished. However, it is important to note that custodial and visitation rights are separate and apart from child support. Just because a parent does not pay child support, it does not mean that they do not have any custodial or visitation rights. Similarly, just because a parent pays child support, it does not mean that they have more custodial or visitation rights.

Common Mistakes Made in Child Support Cases

Child support is understandably an emotionally stressful and contentious subject. However, it’s extremely important to abide by California law and adhere to all requirements issued by a court. Failure to comply may cause substantial problems down the line. Both parents in a child support determination case must honestly disclose their income and expenses. If they do not, they will be easily found out — and potentially fined or forced to issue back pay to the custodial parent with interest.

It’s also important to send your child support the proper way. Wage garnishment might be the ideal means of collecting child support, because it takes any confusion out of the question. The parent owing child support can rest assured that they are meeting their commitment. However, other methods may be approved by the court or more preferable for the parties involved. No matter which method is decided upon, the parent should ensure that they comply to avoid repercussions.

Both parents should immediately report any income changes, positive or negative, to the courts and request a modification to the child support arrangement. Even bonuses and side job income must be reported so that the courts can make the most accurate determination.

Never assume that you can keep something secret from the court. It’s well worth your peace of mind to be forthright about your earnings. Should you need assistance, a dedicated child support attorney can help you navigate the process.

Wrapping Up

Child support can change swiftly and have lasting effects if not handled properly. Both parents must be vigilant and transparent about their income and expenses in order to best provide for the child. Keeping in contact with the courts is the best way to ensure that child support is fairly apportioned and collected. As with anything, honesty is the best policy to ensure the child’s wellbeing. For comprehensive representation in any Child Custody and Child Support matter, contact Azemika & Azemika Law. We will fight for and protect you and your family during the separation and divorce process. Contact us today by phone at 661-322-8166 to arrange an initial consultation with our attorneys or send us a message now!

Divorce Timeline | Understanding the Guidelines for First Time Divorcees

lawyer talking about divorce timeline to client and divorce lawyers in bakersfield

Going through a divorce can be stressful. It’s stressful for the couple, for their families, and for any children involved. It’s often one of the most stressful events a person can experience in their life. And for those going through their first divorce, the process can seem daunting and complicated. On top of all that, there is an emotional side to divorce. There are ties being cut that have worked their way through many areas of your life and cutting or rewiring those ties is an emotional upheaval. 

As you begin navigating through the process of your divorce, you don’t have to guess and hope that you understand it all. In this guide we will walk you through the different stages, steps, and processes to finalize your divorce in the state of California. Let yourself process your emotions and leave some of the stress on the table by gaining a better understanding of the next phase of your divorce.

Divorce Timeline

Step 1: Deciding it’s time for a lawyer

Hopefully both of you are on the same page and agree that it’s time to start the process of divorce. The first hurdle to cross is admitting that to yourself and picking the right lawyer for you. Once lawyers are involved, one of the parties will need to have their lawyer write a petition – a legal document stating why that side is requesting a divorce and how they want to settle things like finances and custody. This party becomes known as the petitioner. 

Step 2: Making it official with the court

With the petition written up, the lawyer writing it files it with the court. At that point, the lawyer or the court will follow through with informing the other party – the respondent – by serving them the petition along with a summons. This requires the spouse to respond. 

The date the petition is served is important when filing for divorce in California. For California divorce proceedings, there is a six-month waiting period for a filer’s status to change from married to single. Not all divorce proceedings will take the full six months and some can take significantly longer. But you can not file taxes separately or remarry before the six months are over. Once the petition is served to the respondent, the six-month waiting period begins. 

Step 3: Getting the response

At this point, the ball is somewhat in the respondent’s court. Once they have been served the petition and the summons, they have 30 days to respond in the state of California. There are cases where the petitioner’s lawyer can allow an extended amount of time for response. The response will be either their agreement with the petition or their refusal. Either position they take on the petition will count as a response. 

If the spouse doesn’t respond at all, the court will default to the assumption that the respondent agrees with the petition. How the spouse answers regarding the petition will determine how the rest of the divorce process goes. Ideally, the spouse would be in agreement, though that doesn’t always happen. 

If support and custody are an issue to be decided in the divorce filing, then a Request for Order will also need to be filed (RFO). The RFO can speed up the timeframe of the hearing so that custody, support, or restraining orders can be made or resolved. Also specific to custody disputes, a Custody Mediation will be required. The Custody Mediation needs to be completed before the first hearing. If either party does not attend, the court can issue fines, sanctions, or orders against them. 

Once both parties have been notified of the Custody Mediation and the hearing date, they must both confirm with the court. To do this, they must call the clerk at the court they will attend. 

Step 4: The exchange of documents

Now that both parties are aware of the petition and any responses have been received, the spouses are asked to exchange a set of important documents relating to the issues in the petition. These include documents about property and income. It’s with these types of documents that future decisions will be made by the court regarding child support, alimony, and how to divide up property and debt. 

In California, both parties are required to complete the mandatory disclosures, or “Preliminary and Final Declarations of Disclosure,” before settlement or trial. 

Step 5: Mediation and settlement 

In many cases, couples will have the chance to voluntarily enter into mediation and settlement. This would allow them to sit down and resolve their issues regarding property, child support, alimony, and custody without continuing into a lengthier court battle. 

If a couple is able to reach a settlement during mediation, the agreement will be presented to a judge during an informal hearing. During this hearing, the couple will be asked a few basic questions. They will also be asked whether or not they both understand and want to sign the settlement they are agreeing to.

If both parties are able to come to agreement about all areas of concern within the divorce filing, the attorneys will prepare a Settlement Agreement to present to the court. Depending on how friendly the settlement is, the agreement can be made before the end of the six-month waiting period. While this may be the end of meetings, mediations and discussions, the official granting of the divorce will not happen until that waiting period is up.  

If the couple isn’t able to come to an agreement, the case will go to trial.

Step 6: To trial or not to trial

If the judge does NOT approve the settlement agreement – or if the couple wasn’t able to come to an agreement during mediation – the case will proceed to a trial. 

During a trial, the attorneys representing both sides will present arguments accompanied with any evidence (including live testimony by witnesses) they have related to the unresolved issues. This would apply to child custody and visitation, child and spousal support, and any division of the property. After the evidence and arguments are presented, the presiding judge will make their decision and the divorce will be granted, assuming the six-month waiting period is over. 

At this point, the process is complete unless one side chooses to appeal the judge’s decision. Either side can make an appeal which would take the decision to a higher court. It’s important to note that it’s unlikely an appeals court would overturn a judge’s decision. It’s also important to note that if both spouses agree to settlement terms, the agreement usually cannot be appealed. 

Dividing Property

One key issue in a divorce proceeding is the division of property and debt. California law requires that community property and debt are shared equally. This rule can be altered if both parties agree to an unequal split, however it is emphasized that both parties must agree to it. 

Also, the division doesn’t necessarily mean it will be exactly 50/50 on everything. For example, one party could take the proceeds from selling a home while the other receives assets or property of an equal value. The same type of division happens with debt. 

Timeline

The divorce process can take anywhere from a few months to sometimes several years. The length of time that your individual divorce process will take depends largely on how well you and your spouse can cooperate and compromise with each other. The more a couple works together toward a resolution, the faster the divorce proceedings can go. Grievances and other complications may play a role in the length of time it takes for your divorce decree to be issued. 

Additionally, it’s important to remember that regardless of even the most amicable settlement, a divorce can not be officially granted in the state of California until the end of the six-month waiting period. 

For Those Considering A Divorce:

Deciding it’s time to consider divorce is a difficult decision and coming to that conclusion can be overwhelming. Follow the advice of your lawyer and remember your end goal through the proceedings. With the help of family, friends, and a caring legal representative, you can emerge from the process with a new outlook and a new life. 
For comprehensive representation in divorce or domestic dissolution, call Azemika & Azemika Law – Bakersfield divorce lawyers and Kern County family law attorneys. We will fight for and protect you and your family during the separation and divorce process. Contact us today and let us focus on your family so you can focus on the future.