Hi, Thomas Ferreira here, your attorney and mediator here in Carlsbad California for divorce cases and child custody cases. And this is part two of my blog series of “Five Things You Must Do When Appearing in Court”.  And this series is for people who, let’s face it, it’s nerve-wracking to appear in court. It’s a formal setting, people are watching, and they put the Judge way up on this high dais, and in a way, the surroundings are meant to say, “hey, this is a formal setting, this is serious”. And of course, you want it to be that way.

At the same time, you have to understand who the Judge is. The Judge is a human being, he or she is flesh and blood, just like you are. And he or she has problems that they want to solve in every case. And as a little tip, it’s always helpful to go and watch your Judge in action, go to the hearings, before your hearing is scheduled, go to a request for order hearing, and just watch. Watch the things that please the Judge and watch the things that tick him or her off. You’d be surprised what you can learn. But todays blog is on being proactive.

Be Proactive

If you react to the other sides’ arguments, it’s not as persuasive as if you have a plan going in and you’re are proactive. What does it mean to be proactive? It means to know what you want going into that hearing, and then ask the Court for what you want and provide reasons why the Court should give you what you want. The Court has read your declaration, they have the basic facts. Ok, so when you approach the Court, you have to see the Court in the context of “what problems is this Judge trying to solve?” You go into Court, you want to win, you want a certain result, right? And maybe you want to humiliate your ex too, I don’t know. That by the way is not a good motivation, and it will pull you off track. But you have to see the problem from the Judges point of view.

The Court, the Judge, sometimes we call the Judge the Court, and so forgive me if I do that. The Court wants to make the right decision in your case. The Court wants the parties to be problem solvers, the Court wants the parties to get along and cooperate in the solving of problems and when you have a divorce case, you have this set of problems. You have children, you have the house, you have the property, you have the support and so forth. Let me give you a very simple example to explain what I mean, by being proactive.

Sometimes people can’t agree on who should move out of family homes. So, you’ve got dad living on the couch. Sometimes I still live on the couch, but only when I tick off my wife. But anyway, maybe you’ve moved down to the couch as a permanent thing, and you’re thinking, “wow, this is my house, I’m on the mortgage, I’m on the title, I should be able to live in my own house.” And that may well be true.

So, you file a request for order, asking that she move out of the family home. And you come into Court, you’ve given the facts, and now you’re ready to make your argument, and what are the problems, as this Court, this Judge, looks over the top of their eyeglasses down at you from the dais, what is on their mind. Well, for one thing, they are concerned about your property rights. The Court doesn’t want to take away the right of somebody to enjoy the use of their own property. At the same time, in divorce cases, there are ways of reimbursing a party, which is beyond the scope of this and I won’t get into it. But essentially, the biggest concern the Court has in this situation, is they don’t want to read about this case in the newspaper.

They want to prevent an incident of domestic violence. And you’d be surprised how often this dispute over who should move out erupts into violent episode that gets someone arrested. So basically, the best argument is, if mom or wife doesn’t move out of the marital residence, there could be conflict. And that conflict could escalate, so it’s best for all parties.

The Court is also concerned, however, that that person has a place to live. So, the problem is, we live on a planet that has gravity, and everybody has to stick somewhere. And in California you have to pay a considerable amount of rent to stick somewhere. So, if you really want to get the other person moved out, have a solution to that problem in your hip pocket. Tell the Court “look, we have a fund, we have an IRA that we can get a loan from, or we have a cash asset, or we have something we can easily cash out that would give her first and last months’ rent. And some furniture and so forth.”

Problem Solve

 I remember when I was going through my divorce, I was hoping that my ex wife would move out of the house. And the problem was, she didn’t have any place to go. So, without knowing anything about family law, I knew that to get her out of the house, one of the things that would make it really easy, is if I provided the first and last months’ rent, since I was the monied spouse. If I also provided some furniture, because she had the kids half the time and she needed bunk beds and all this stuff. So basically, I didn’t know how much support I was going to pay, but I wrote her a check, this is for, you didn’t get furniture and all the things that you need to get set up. If you tell the Court that you are willing to do that, the Court is going to look at her and say, hey why don’t you move out?

 On the other hand, the Court wants to be fair to the parties, so if you’re the one that’s creating the problem, lets say that you are in her shoes and you want the Court to let you stay in the marital residence. An argument you can make is, hey he’s been violent in the past and I’m concerned for my safety and the safety of the children. The Court is very concerned about child safety. The Court is very concerned about child welfare. So, these are arguments that will ring true. And you want to make them proactively, instead of just reacting to what they are saying. And you want to solve that problem for the Court. Show in your argument how giving you the relief you want makes sense. Ok, here’s another example. You go to Family Court services and you get a lousy report. And let say you’re dad and the report says the custody in this case will be every other weekend and a weekday overnight, Friday to Saturday. Well, you want more time.

Fairness Isn’t a Good Argument

 First of all, “I want 50/50 because its fair” is not a persuasive argument in Family Court, it’s just not a persuasive argument. Again, one of the problems that the Court wants to solve, well first of all, the Courts concerned primarily about the safety of the children. So, if there’s some issue there, you can move the dial. Secondly, the Court wants to ensure that this trial has two parents. That these children will never feel abandoned by one of their parents. If one parent has all the parenting time, and the other parent is just a visitor, the children can sometimes feel abandoned. So, if you hit that point, it’s going to be persuasive to the Court. Because the Court wants to make sure that the kids have two parents that love them. And that they have lots of time with both parents.

Another thing that the Court really, really, really wants is for the parents to cooperate. Cooperation is something that most freshly separated people have a hard time doing, lets face it. But if you are the one that’s willing to cooperate, and willing to solve problems, and all the other party can do is just attack you and be a nay-sayer, and call you a liar and so forth, you’re probably going to win. Because you’re solving the problem that the Court has. You’re cooperating with the other side. Here’s a tip, if the other side’s being a jerk, you’re winning. Let them be a jerk, you bring your halo to the Courthouse. And make sure that you are willing to cooperate and be a problem solver in Family Court. Ok, so what have we learned?

We want to be proactive, we want to be prepared. We want to make specific arguments, that are going to help the Court to solve the problems, which in most request for order situations are temporary problems. Where are the parties going to live, how are they going to be supported, where are the children going to live, how are we going to make sure that they have a relationship with both parents? Let the other side be a monkeys-butt, and you bring your halo. Ok, so next time, we are going to talk about how not to be reactive. That’s kind of the opposite of being proactive. So, until next time, I’m Thomas Ferreira, and I’ll see you on the flip side.

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This series assumes that you have already filed and served your responsive declarations or your request for order—that you’ve done the written paperwork and presented all the documentary evidence that you need to present.

Your task now is to persuade the judge once you’re in court.  There are certain “do’s and don’ts,” a certain secret sauce, and when you see attorneys doing this you can tell that they’re being effective.

But it’s like anything else—you can do it and do it well, and I’m going to teach you how to do that.

PREPARING BEFORE THE HEARING:

You want to prepare for the hearing in advance so that you know what you’re going to say.  Read through your declarations and your evidence.  Look at the photos and other items that you are offering to the court.  Tease out those facts that support the result you want.

MAKE PROACTIVE STATEMENTS.

Work backward from the result you want to the facts that support that result.  And be proactive in your arguments.

Being proactive means that you ask for what you want and you don’t react to what the other side is doing.  They’re going to ask for what they want.  Don’t worry about them.

Write down the three major points you want to make.  For example:

1.  I want more time with our children in the parenting plan.

2.  I want to reduce my support payment.

3.  I want to have unsupervised visits with the children.

Next, set out the child-focused facts that support these positions.  It’s okay to write out your your remarks in advance if you’re nervous.

The opposite of being proactive is focusing on the other party’s arguments, things like “she constantly withholds the children from me,” or “he says bad things to me in text messages, and etc.

Or, the simple phrase of “gal darnit, it’s just not fair.”  As an aside, “it’s not fair” is almost never a good argument in family court.

A better way to approach that is to make your arguments through the eyes of the child.  Something like this:

Your honor, this child has a warm, tight relationship with me and it’s clear that he misses me.  And it’s really important to him as he getws older that this child have a father in his life

Now I know that this court has ordered supervised visits.  What I’m asking this court to do is to remove that supervision because it taints the interaction that I have with the child and makes everything more difficult.

And, your honor, I have done my anger management class, I have entered a 12-step program.  I have done (fill in the blank) that the court wants me to do.

I’ve been doing this supervised visit for three months and I believe it’s time to have unsupervised visits with our kids.

That’s a more persuasive argument than “mom is withholding them,” and she’s manipulative, and she’s always nasty in text messages and the like.

Make your arguments in a positive way and this will be more persuasive to the court.

The court wants to see that you “get it,” which means that you see the case the way the court sees it, that is, through the eyes of the child, and through the problems that court is trying to solve, such as support.

Next time I’m going to talk about how to be proactive rather than reactive when you are speaking in front of the judge.

Thomas D. Ferreira, Esq.

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In today’s economy, many separated and divorcing people face being their own lawyer at a California child support, child custody or alimony (spousal support) hearing. Learning how to write declarations for divorce court is an important skill for any lawyer or anyone trying to represent themselves and persuade their judge. Whether your case is set in Vista, San Diego, El Cajon or Riverside, You may wonder, “how do I get support or child custody if I don’t have a huge war chest?” Increasingly, fathers and mothers in divorce cases must learn how to write their own declarations or affidavits for divorce court in support of their positions on child custody, child support, alimony and property issues.

Here’s the rub: Family Court judges are lawyers, trained to understand legal arguments. Even if you are before the court In Pro Per (literally “on behalf of myself”), you are expected to write a lawyer-like declaration, and to present accurate, neat, lawyer-like pleadings.

I have had private conversations with judges who tell me that they dread seeing the unrepresented child custody, child support and alimony cases come before them. Though you may not think so, these hard-working judges really do care about the well-being of your children and they want to make a fair decision in your case. You will get more time with your children, and a better child support or alimony award, if you make the judge’s job easier. Here are some tips:

1. When drafting Request for Order (RFO) declarations, stick to the facts and avoid conclusions. Preparing declarations is a little like writing a newspaper article. Stick to the what, where, why, when and how. Avoid conclusions like “she is an unfit mother,” or “he is an emotionally abusive father.” It is better to let the facts do the talking. The more specific you can be as to the exact date, time, place and circumstance of each individual instance, the better. Instead of making a conclusion, set forth the facts that will lead the judge irresistibly to your conclusion.

2. Break your narrative into short, numbered paragraphs. Nothing will give your Family Court judge an Excedrin headache faster than long, run-on paragraphs. When I write declarations, I number each paragraph, and I break each incident down into a brief paragraph setting forth the “what, where, why, when and how” of the incident I wish to describe. Here’s an example:

“On April 11, 2011, Ms. Jones pleaded guilty to charges of driving under the influence of alcohol/drugs, driving with a blood alcohol content of greater than 0.8% and-and-run with property damage. At the time of the arrest in the latter case, February 12, 2011 at 11:00 PM, Ms. Jones was driving, presumably while intoxicated, with the minor children in the backseat of her car.”

3. Proofread your work. The more professional your work product, the better. Have a friend, preferably a good speller, review your work. Take the time to do your writing well, and if you know someone who is a good writer, have them ghost-write your declaration. Make sure your work is easy to read and understand, and you will increase the chances that the judge will rule in your favor.

4. Hire an expert lawyer, such as Thomas Ferreira, to draft your moving papers. I am an excellent writer, deeply familiar with type of writing that Family Court judges expect. Also, I am able to be objective, writing your request for child support, increased time with your children or spousal support in a way that will impress the judge without sounding shrill. And, current Rules of Court do not require that an attorney performing “unbundled services” reveal that he is the actual author of the papers. You are free to present your papers to the court as your own.

Following this advice, you should be able to make a winning argument at your child custody or support hearing. Please not hesitate to contact me if you have any questions about how to draft winning declarations.

Would you like more detailed instructions on How to Write Declarations the Court Will Read? You can purchase Thomas’ e-book by clicking here. (This e-book has been updated in 2017).

Thomas D. Ferreira, Esq.

The post HOW TO WRITE DECLARATIONS FOR DIVORCE COURT HEARINGS: TIPS FROM AN EXPERT CHILD CUSTODY AND DIVORCE LAWYER appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

This is Thomas Ferreira, your divorce and child custody lawyer and mediator in Carlsbad, California. I just got back from back-to-school orientation for my boys. I took this task on even though my ex-wife has the kids this week, applying my core strategy of being nice and building trust.

Now I’d like to move on to a subject on many of your minds: What do I do when I feel like I’m in over my head, especially if I have a family court date coming up? It may surprise you to learn that even seasoned family lawyers can be nervous before court. And, what about your written presentation. Don’t most judges make a tentative ruling before a family law or child custody hearing based on what you present in writing? You may be wonderful at explaining your case to others, but poor writer. Or maybe you write like a Pulitzer Prize winning journalist, but you get tongue-tied and flabbergasted as soon as you’re before the court.

If that’s you, let me introduce you to a wonderful and well-hidden secret in family law: You don’t need to hire a lawyer to handle every aspect of the case. Hire a lawyer to do those things that you need, and manage the rest of the case yourself.

Ghost-Written Motion Papers:
One way to use a lawyer effectively and inexpensively is to have the lawyer “ghost-write” your court papers. Did you know that an expert family lawyer can write your papers for any motion, and you don’t have to disclose who did the work? You ask the lawyer to prepare your motion or Request for Order, and give the lawyer the facts. The lawyer will then write a persuasive declaration and written argument championing your cause. The paperwork is then filed by you. You get a professional work product without having the lawyer sign on as your attorney of record.

In California, I draft moving papers for request for order hearings (“RFOs”), domestic violence proceedings and even trial briefs. I can ghost-write RFOs or Responses to RFOs in your divorce case for a flat fee of $700. Prices may vary based on complexity of the matter, but I will normally require a $3,000 deposit (10 hours of professional time) to handle the same RFO from start to finish.

You know your case better than anyone. You know your finances and your relationship to the children, and are in the best position to argue your RFO. And, you’ve put your best foot forward with a top-flight declaration, legal brief (“points and authorities) and list of exhibits.

Spot Appearances:
If you’ve followed our advice in the past and organized your exhibits and evidence, you may just need someone to argue the motion in court. An attorney can sign a “Notice of Limited Scope Representation” and be your attorney of record for just that appearance.

I find that many times people spend their entire war chest early in the case, and find themselves facing a child custody or family law trial without an attorney. If you’ve got a fight on your hands, it’s sometimes effective to save your best ammunition for the final battle. Have a lawyer draft your moving papers, your exhibits, and then make the appearance at your trial. Make sure you make arrangements with the attorney well in advance of the trial date, as most attorneys are reluctant to jump into a case in the weeks leading up to a trial.

Unbundled Services as Part of a Comprehensive Plan:
Unbundled representation is not always the best way to go, and I advise you to consult with a lawyer early on to create a comprehensive plan of action. If you’re using attorney services as needed, you are responsible to build the case file and the record without the lawyer’s help. It’s best to establish a relationship with a lawyer who has familiarity with your case. Don’t expect a lawyer to jump in and try your case one week before the trial date.

Remember, too, that the best case is a settled case. Try to avoid court battles when possible so that you can …

Love your family,
Protect your finances, and
Reach for your future!

Thomas D. Ferreira, Esq.

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I have represented clients whose exes owe them over a quarter million dollars in back support.  Support arrears in the tens of thousands of dollars are not at all uncommon.  If you’re the parent whose struggling to make it with your job, with your kids in daycare, and with a parent who just doesn’t help, you’ve come to the right place.  This blog will point you toward some resources that will help you to get paid.

WHAT NOT TO DO:  WITHHOLD VISITATION WITH THE OWING PARENT:

I’d like to start off with a mistake that many parents make when the other parent doesn’t pay.  It’s tempting, as the custodial parent, to say, “hey, if he’s not stepping up to the plate he shouldn’t get to see his kids.”  This is a mistake because the courts are careful to separate the child custody issues from the financial issues.  The courts see the parenting plan as a child-focused way to have both parents involved in the child’s life.  Judges and custody mediators believe that it’s good for children to have access to both parents.

In fact, if you have a case going with the Department of Child Support Services, the regular family law judge will not even hear the child support issues.  Child support will be heard separately in the “support division,” a separate arm of the Superior Court devoted to cases being enforced by the Department of Child Support Services.

The family law judge, charged with deciding the child custody and visitation issues, is not interested in who’s financially better off or who is paying or not paying the support.  Raising the financial issues during a custody hearing can actually damage your custody case by making you look less “child focused” in the court’s eyes.

THE DEPARTMENT OF CHILD SUPPORT SERVICES IS YOUR ALLY IN COLLECTING BACK CHILD SUPPORT

The Department of Child Support Services (“DCSS”) is a government agency whose sole reason for being is collecting child support.  An application to establish a DCSS case can be made and submitted online.  Your case will be assigned to a case worker who will collect information and investigate the parties’ earnings.  (Note:  all links in this blog are for San Diego County.  Google your local county for its DCSS application.)

When you initiate a DCSS case, you will assign your right to receive child support to the county where you live, and that county will file a petition and a motion before the support division court to either initiate, modify or enforce your child support order.  Once the judge issues a support order, DCSS will take care of issuing the wage assignment or garnishment of the payor’s wages, known as an “income withholding order.”  DCSS can also request that the payor’s driver license be suspended pending the payment of arrears, and can even file a request that contempt of court charges be filed against the delinquent party.  The judge has the power to punish willful non-payment of support with 5 days in jail for each missed payment, known as a “count.”

A child support order has the effect of a “judgment” by the issuing court.  For each payment missed, the court tacks on annual interest of 10 percent, known as “post judgment interest.”  That’s why child support debt is so bad—it carries a very high interest rate, and to boot, it’s not discharable in bankruptcy.

In conclusion, while you’re killing him/her with kindness on the child custody front, you can still use DCSS as a took to get what you need from him/her.  Until next time,

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

The post WHAT TO DO WHEN HE/SHE WON’T PAY THE CHILD SUPPORT: A CARLSBAD DIVORCE LAWYER’S PERSPECTIVE appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

To reiterate what I told the payers, basic guideline child support is calculated based on a formula in the Family Code, and you can get a rough idea of what you’re entitled to by using the Department of Child Support Services’ online support calculator.  Before you go there, have the following data ready:

1.  The number of supported children;

2.  The tax filing status and number of exemptions each parent takes;

3.  The gross earnings (or earning capacity) of the parties;

4.  Deductions such as healthcare costs, mandatory retirement and mandatory expenses; and

5.  The percentage of weekly hours spent by the parties.

If you don’t know the earnings of the other party, put in an estimate.  Use the Gross, before-tax monthly income in the calculator, not the net.  The program will account for the taxes, and if you enter an after-tax amount you will not get an accurate child support calculation.

But what about those little extras?  Child care?  Clothing? Extracurricular activities?

The basic child support number is meant to include ordinary child-rearing expenses such as housing, clothing, food and etc.  So if you go before the court arguing that dad has not bought a new pair of shoes for a year, know that it probably won’t matter.

But there are certain child support add-ons which are mandatory.  But you must ask for these at your child support hearing or make sure they are included in your child support order.  The mandatory add-ons are described in Family Code section 4062 as follows:

(a) The court shall order the following as additional child support:

(1) Child care costs related to employment or to reasonably necessary education or training for employment skills.

(2) The reasonable uninsured health care costs for the children as provided in Section 4063.

Whenever the law uses the word “shall,” it means that what follows is mandatory.  The court must award these costs against both parents.  You can expect, in most cases, to receive a mandatory reimbursement of half of child care costs related to employment or necessary education, and half of uncovered medical.  The court does have the discretion to apportion the costs between the parents, but the usual apportionment of mandatory additional support is 50-50.

But wait, there’s more.  Section 4062 has a subsection (b) which reads as follows:

(b) The court may order the following as additional child support:

(1) Costs related to the educational or other special needs of the children.

(2) Travel expenses for visitation.

The word “may” means that the court can award them, but it doesn’t have to.  But it doesn’t hurt to ask.

Generally, the court will award such educationally-related costs if they are “extraordinary,” that is, over and above the normal educational expenses.  They can include ball fees for that student that’s athletically gifted.  They could include a tutor for that student struggling with Attention Deficit Disorder or high-functioning autism.

It’s important to understand that both parents have a legal duty to financially support their children.  The court can impute income to a party that refuses to work or would rather live on a park bench than pay his/her support.

Next week I’m going to write about what to do if the other parent just won’t pay.  How do you get an order of child support, or enforce the one that you have?  Until next week,

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

The post CALCULATING CHILD SUPPORT FROM THE SUPPORTED PARENT’S POINT OF VIEW appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

If you’re that guy that would rather live on a park bench than pay your support, I can’t help you.  But if you want to step up to the plate and be a parent, there’s a part of the guideline calculation you can impact and control.  That side is the number of hours you have with your son or daughter.

Elements of the Child Support Calculation:

Let’s look at the data that go into the support calculation, which are these:

1.  The number of supported children;

2.  The tax filing status and number of exemptions each parent takes;

3.  The gross earnings (or earning capacity) of the parties;

4.  Deductions such as healthcare costs, mandatory retirement and mandatory expenses; and

5.  The percentage of weekly hours spent by the parties.

Control What You Can.

The more hours per week that you, the paying parent, spend with the child, the lower your support will be.  But, you say, “she’ll only let me see them on weekends.”  Or, “my court orders only give me 20 percent time (or less).

But here’s where your advantage lies:  Scientific studies have shown that, all other factors being equal, spending time with the non-custodial spouse (usually dad) leads to better adjustment of children to divorce, less delinquency, less drug use, better school performance, and, in short, better kids.  If you think about it, this should be obvious.  Much gang activity and disrespectful behavior toward women can be traced to fatherlessness among children.  Men teach boys how to be men and respect women.  Women teach their daughters how to be adult women.  But it is fathers who, by their conduct, can teach a young woman how a man ought to treat her.

Your family judges know this, and this is why the trend is toward joint custody arrangements.  Such arrangements, between adequate parents, are better for children than one involved parent and one garnished parent.

How to Push the Parenting Time Needle in Your Direction:

The best way to do this is to step up to the plate and be a parent.  Listen, your kids crave your attention, approval and discipline, even if they don’t show it outwardly.  So be a parent.  Volunteer at their school.  Offer to assist their basketball coach.  Get to know their friends.  Plan special events and trips with them.  Make memories.  It’s as simple as that.

It’s a win, win, win, because this focus benefits you, the paying parent, the child who gets a loving parent, and the other parent gets a child who is happy, healthy and easier to manage.  In my experience, courts are generally sympathetic to parents who rearrange their lifestyles around parenting.  They will tolerate a lower level of earnings and not impute higher income to you if you are really stepping up to the plate.

And you may just find that giving to your kids in ways other than money can produce a deeply satisfying relationship with them.  I’ve been able to do this in my own divorce situation.  You can, too.

It’s important to recognize that deepening your parent-child relationship is a marathon, not a sprint.  You’re not going to be able to just go to court after years of neglecting that relationship and get an order of 50-50 parenting time.  You have to lay the foundation by taking the parenting time you have right now, and using it to build that relationship.

Doing this, you’ll lower your payments, and get something in return that money can’t buy:  The love and gratitude of your kids.  I urge you to…

Love your family,

Protect your finances, and

Reach for your future!

Thomas D. Ferreira, Esq.

The post WHAT YOU NEED TO KNOW IF YOU ARE A CHILD SUPPORT PAYOR: SAGE ADVICE FROM A CARLSBAD DIVORCE LAWYER appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

Have you ever been laying awake at night wondering how much you’re going to have to pay in child support?  Or perhaps you’ve done some child support calculations and you’re wondering how to live on what’s left?  Whether you are married or are a never-married parent, child support is one of those unavoidable burdens, much like death and taxes.  But be of good cheer; there are some arguments and strategies that you may not have heard of, and this month I’m going to do a series on exactly how child support is calculated, and also some things you can do to either reduce your burden or collect what you need to raise those kids.

Let’s begin with the legal roots of the child support obligation.  In all 50 states, and all territories of the United States, the law recognizes the duty of parents to financially support their children.  About 20 years ago child support became a hot-button political issue, as candidates for public office and even for president made political hay from a perceived national concern over “dead-beat dads.”

This political pressure resulted in the system we have today, as the federal government forced every state to adopt guidelines governing exactly how much a non-custodial parent must pay a custodial parent in child support.  Even in joint custody cases, if you make more money than the other parent, you can expect to pay some support, and, if you’re doing really well and the non-custodial spouse is down and out, you could get hit with child support even if the other parent only has 20 percent time with the kids!

California’s state-wide guidelines are contained in Family Code section 4055.  Reading this code section is a cure for insomnia, and you would have to be a mathematician to figure out your support just by reading the statute.

Therefore, enterprising software writers have come up with computer programs to calculate child support.  When you go into a family law or support division courtroom in California, you’ll find that the judges have the support calculators loaded on to their laptops, and county law libraries will normally have the software as well.  In San Diego county, where I practice, the program of choice is called DissoMaster(tm) and I, like all  practitioners, own a license for this software.

If you require a child support calculation, contact my office and we can run a DissoMaster calculation for you.  If you’re reading this at midnight, try the online calculator by clicking here.

If you are a paying parent, it’s best to run support calculations while sitting down.  I have seen numerous cases of what I refer to as DissoMaster shock, a condition where a speechless parent first learns what the State of California will require them too pay.  The fact is, those little urchins are expensive, especially when they become teenagers.  Recognizing this, the guidelines provide for some rather high numbers.

The good news for payers is that all is not lost.  There are ways to reduce your liability for support.  But it’s difficult, as the guidelines are mandatory in the vast majority of support cases.

Therefore, in the posts to come, I’d like to discuss exactly what the law is, and in particular, how the court treats various claims of hardship in support cases.  But I’d like to go further and give you some arguments you can make in court, and some long-term  strategies that will help keep the money in your pocket.  Stay tuned …

Very truly yours,

Thomas D. Ferreira, Esq.

The post WHAT PARENTS MUST UNDERSTAND ABOUT CHILD SUPPORT: A CARLSBAD DIVORCE LAWYER’S PERSPECTIVE appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

Please join the founder of Divorce Life Solutions, Thomas D. Ferreira, Esq., and Tammy R. Ferreira, Certified Divorce Financial Analyst for an information-packed seminar on how to do your divorce right.

At this seminar you will learn:

• How to cooperate in raising your children after divorce
• How to save huge money and avoid nasty litigation
• How to ensure short-term and long-term financial security after the divorce
• Basic pitfalls of California divorce and how to avoid them
• What actions you can take to insure long-term protection for you and your children

Mr. Ferreira will answer common family law questions and suggest strategies for coping with divorce.

Date and Location: Wednesday, October 24, 2012, 9am-12pm. Register for only $39 by calling (760) 990-4752 or by using the following link: http://www.palomar.edu/venture/

The post CALIFORNIA DIVORCE: STAYING OUT OF COURT AND OUT OF THE POORHOUSE appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

In the case of divorce versus nullity, the easiest way to understand the difference is that with a divorce (called in California a “dissolution of marriage”) the court is asked to dissolve a legally valid marriage.  In a proceeding for nullity, the court is asked to declare that the marriage was never legally valid in the first place.

For example, a person can only enter into a valid marriage contract if they consented to the marriage.  If the groom held a gun to the head of the bride and forced her to say the vows and sign the application for marriage license, the bride’s consent would be invalid, because it was procured by force.   As long as she did not live with the groom after the “marriage” freely as husband and wife, she would be entitled to a legal declaration that the marriage never really occurred, or in legalese, was a “nullity.”  The word “nullity” simply means “nothing.”

On the other hand, if our couple in the preceding example were validly married, and there was no coercion or fraud involved, and wife decided after the valid marriage that she couldn’t take the repeated beatings administered by husband, she would seek a “dissolution of marriage,” or what is more popularly known as a “divorce.”  She would file a petition for dissolution of marriage, not a petition for nullity, and she would check a box next to a ground for the divorce, one of which is that she believes that irreconcilable differences have caused the irremediable breakdown of her marriage.  Husband does not have to agree that the marriage is over for wife to obtain a dissolution in this example.

You can get a nullity by showing one of the following grounds:

1.       At the time of marriage, petitioner did not have the legal capacity to consent to the marriage because he/she was under 18 and did not have consent from the parents or did not have permission from the court.

2.      You can’t marry someone else  if you’re already married.  however, there are exceptions.  If  husband or wife from petitioner’s prior marriage was absent and not known to the petitioner to be living for a period of 5 years immediately preceding the date that the second marriage was contracted, the second marriage is considered valid and you can’t get an annulment.

3       You can’t get a nullity if the petitioner’s husband or wife from the prior marriage was generally reputed or believed by the petitioner to be dead at the time the second  marriage.  In that case the second marriage is also valid.

4.    Nullity is available if, at the time of the marriage, either party was of unsound mind, unless the insane person, after coming to his/her senses, freely cohabited with the other as husband and wife.

5.    Nullity is available where consent of the petitioner was obtained by fraud, unless the victim of the fraud freely cohabited with the other as husband and wife after learning of the fraud.

6.      Nullity is available if petitioner’s consent to marry was obtained by force, unless the party whose consent was obtained freely cohabited with the other as husband or wife.

7.      Nullity is available if either party was, at the time of marriage, physically incapable of entering into the marriage state, and that incapacity continues, and appears to be incurable.  For example, if husband was impotent at the time of the marriage and unable to consummate the marriage, and that impotence can be proved incurable, the marriage may be declared a nullity.

Both nullity and dissolution are available on the same petition, the FL-100.  You should carefully consider the legal implications of a declaration that your marriage was invalid from the start.  For example, property acquired by either party to a valid marriage is generally considered to be community property, subject to division on dissolution of the marriage.  However, generally, property acquired by a party to an invalid marriage remains his or her separate property.

Hoping this clears up the confusion surrounding dissolution and nullity, I remain …

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

The post ANNULMENT OR NULLITY VERSUS DISSOLUTION–CALIFORNIA DIVORCE LAWYER DEFINES appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.