Wallin & Klarich is a defense firm with over 30 years of experience handling Criminal Defense and Family Law cases in San Diego. We have offices located in Downtown San Diego, El Cajon, Carlsbad and Rancho Bernardo.
We will be posting blogs regarding your legal rights and changes in the law regularly, so check back frequently or subscribe to stay informed.
Wallin & Klarich
Are you thinking about getting married but are scared off after seeing so many of your friends and family go through horrible divorce proceedings? If this is you, you are not alone. Most people know or have heard of someone that has lost half or more of their fortune as a result of a divorce. The reason for this is California’s Community Property laws, which basically state that whatever is acquired during a marriage is considered half the husband’s and half the wife’s. This includes income earned or property acquired during the marriage, even if one party earns all of the income for the family!
However, do not be discouraged! There is a way to protect yourself! You can protect yourself by entering into a prenuptial agreement (or sometimes also referred to as a premarital agreement). A prenuptial agreement will allow you to keep your assets separate during the marriage and if you should get a divorce, you will not have to fork over half or more of your fortune!
There are strict guidelines for prenuptial agreements that must be followed in order for the agreement to be valid. Therefore, it is important to have a skilled and knowledgeable attorney draft the agreement and walk you through the process. Wallin and Klarich has several such skilled and experienced attorneys that can help you with your prenuptial agreement.
Everyone thinks that they will be married for life, and hopefully, this will come true. However, the statistics show that the divorce rates are on the rise. But do not let these statistics deter you from getting married. Go ahead and get married, but just be sure to protect yourself by having Wallin and Klarich draft you a prenuptial agreement! You will be glad that you did and it will allow you to enjoy your wedding date knowing that you are protected just in case things do not go as planned!
Going through a divorce or any family law matter involves many issues including custody, visitation, support, and a division of community property assets and debts. It can be a harrowing experience and emotionally draining for the parties involved and not to mention the costs of retaining an attorney to represent you throughout the case. It can be a lengthy process and involve lots of attorney’s fees for both sides.
An alternative to being fully represented in such matters for people who are on a tight budget or whom do not have the financial wherewithal to afford an attorney from start to finish is the LIMITED SCOPE REPRESENTATION.
An agreement can be made between the client and the attorney for the attorney to perform some of the work involved in your case while the client does the work on the other aspects of the case. Some examples include:
In the cases where client hires the lawyer to appear in court on a limited scope basis on certain issues, a NOTICE OF LIMITED SCOPE REPRESENTATION must be filed with the court and served on the opposing party or his/her attorney if represented.
It is commonly understood by parties to a family law case, such as a divorce, that there are times when you can ask the judge to order the opposing party to pay for your own legal fees. Legal fees will typically include attorney fees and paralegal or legal assistant fees. But watch out, not all paralegals are created equally. Better said, not all people who claim to be paralegals are actually paralegals.
California Business and Professions Code 6450 et. seq. defines paralegal and legal assistant. For our purposes, “paralegal” and “legal assistant” are the same thing. The thing is, not just anyone can be a paralegal. A paralegal is a person who has obtained the necessary legal training and schooling and earned a certification specifically as a paralegal. Besides a few exceptions, no other person may use the title paralegal.
Continue reading "Don’t Let the Judge Make You Pay for “Legal Assistant” Fees In Error" »
Do you have an existing order or judgment for a child support order? Does the payer want to move out of state? Do you worry that you won’t be able to collect your child support payment once they move?
The good news is that the Uniform Interstate Family Support Act was created to govern the establishment, enforcement and modification of child support between states.
If California issued the order, California law governs the nature, extent, amount, duration of current payment to be enforced under the existing order as well as computation and payment of support that is past due (arrears). Child support orders are enforceable until they are paid in full so you do no not need to worry about a statute of limitations.
Continue reading "Enforcing out of state child support obligation:" »
If you are going through a divorce, and you and your spouse cannot seem to agree on terms, you may be heading toward a trial. If that’s the case, you should be asking yourself, “Do I have a trial lawyer?” Even if you already have a lawyer, you should still ask yourself that question. I say that because many attorneys who practice family law fancy themselves as “trial” lawyers, simply because they spend a lot of time in the courtroom. However, spending time in the courtroom and actually conducting trials are two vastly different things. Not all family lawyers are trial lawyers.
Trials in family law cases are a peculiar animal. There are many specific, technical rules that apply to the rights and duties of the parties who are preparing for trial. Conducting a trial on a family law case is not the same thing as conducting any other type of hearing.
Continue reading "Hire a Trial Lawyer — Not Just a Family Lawyer" »
There are a couple of ways that an unwed father can establish legal paternity to get custody and visitation of his child through the court system. Even when there is no dispute as to biological paternity, legal paternity must be established.
When an unmarried woman gives birth to a child the woman and the man can reach an agreement that the man is the father of the child.
The natural father can also establish paternity by executing a voluntary declaration of paternity. Once this document is filed with the State Department of Child Support Services (DCSS) it establishes the legal paternity of a child and has the same effect as a judgment for legal paternity issued by a court of competent jurisdiction. By doing this, the father then has a basis for requesting child custody, visitation and/or child support.
Have you ever heard your buddies throw out the term Community Property and wondered what they are talking about? Did you know that generally speaking, your spouse is entitled to half of anything acquired during your marriage? With high divorce rates in California, anyone who is married or contemplating marriage should be very familiar with this term and its concept.
California Family Code Section 760 states, “Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.” What this means is that generally speaking, the money that you earn, the cars you buy, the houses you buy, etc., while married is considered half yours and half your spouses (even if you are the only one who paid for them!) Likewise, all of the debt that you accumulate while married is both the responsibility of you and your spouse.
Now of course, there are exceptions to this general rule. For example, if you and your spouse enter into a pre-marital agreement before marriage that states that each of you will keep your assets and debts separate, then any asset or debt acquired during your marriage will remain yours separately. Or if you or your spouse owned property or accumulated debt before marriage, then this will still be considered separate. Another example of things not considered community property is if you are left something in a will or given a gift.
It is important to keep this term and concept in mind when contemplating marriage or a divorce in California. Even if you were not aware of this concept before now, it still applies to your marriage. This has been a very general overview of community property. If you need more information on it and are considering a divorce or drafting a pre-marital agreement, feel free to call Wallin and Klarich at any time and we can go over it with you in more detail!
Our firm gets many calls from potential clients who have already gone through a divorce or paternity matter which resulted in a judgment or order. All child and spousal support amounts have been decided on and child visitation is pretty clear. They call us because things have changed or things haven’t worked out and they want us to help them get the support or visitation terms modified.
Asking a judge to modify the terms of a judgment or order is often a good idea in these situations. However, there may be another option that most callers don’t even know about, and, sometimes, this other option is much, much better. This option is not just a modification of an existing judgment or order, but it is a complete set aside of the existing judgment or order.
When a party asks a judge to set aside a judgment, s/he is asking the judge to relieve him or her of the judgment, or part of the judgment, and the obligations, responsibilities, and benefits that go along with it. The same is true when asking a judge to set aside an order. The distinction between a judgment and order is important when we’re talking about set asides because the laws are different for a judgment and an order.
There are only a handful of reasons that would allow a judge to follow through with a set aside. As found in California Family Code §2122, the reasons a judge may set aside a judgment are: 1) actual fraud; 2) perjury; 3) duress; 4) mental incapacity; 5) mistake; and 6) failure to comply with disclosure requirements. As found in California Family Code §3691, the reasons a judge may set aside an order are: 1) actual fraud; 2) perjury; and 3) lack of notice.
The setting aside of judgments and orders is not as common as their modifications. However, a set aside may be more beneficial for you and your case than a simple modification. Of course, that won’t always be true, so it is important to speak to a lawyer knowledgeable in the area of family law before you make any decisions. A good family lawyer will at least consider a set aside as a possible option, rather than ignoring the possibility altogether and heading right into seeking a modification.
If you have any questions about what you’ve read above, please call Wallin & Klarich now to speak to a family law lawyer about your situation. We can be reached at www.wkfamilylaw.com.
The California Family Code differentiates marriages that last for ten years or longer and marriages that last for less than ten years. Many Californians believe that this distinction means that, if a marriage lasts for ten years or longer, then the payer of spousal support (called the supporting party) must continue paying spousal support for the rest of his or her life. While it may at times appear this way that is in fact not the law.
Section 4320 of the California Family Code governs the factors a judge should consider when deciding whether (and how much) spousal support to award. The Code instructs judges that the main, all-encompassing goal is that the supported party become self-supporting within a reasonable time.
How much time is a reasonable time? According to the statute, generally it will be one-half the length of the marriage. This means if I were married for eight years, and upon getting divorced the judge ordered me to pay spousal support, then the judge may wish to continue the spousal support for four years. How will you know how long you have to be paying or receiving spousal support after your divorce? That will depend on many factors, including how smart and aggressive your lawyer is.
You may be thinking, “So what’s this I heard about some ‘Ten Year Rule’?” According to the Family Code, when a marriage lasts ten years or longer, we have good reason for calling it a “marriage of long duration.” A “marriage of long duration” is not generally subject to the “one-half the length of the marriage” rule. When spousal support is awarded after a marriage of long duration, the support may continue for a very short period of time, or for an extremely long time, until remarriage of the supported party, or until the death of either party. There simply is no way of knowing. But, the kicker is, the statute itself states that, even though a marriage may have lasted longer than ten years, nothing in the statute “limits the court's discretion to terminate spousal support in later proceedings on a showing of changed circumstances.” This means it is up to the judge to decide whether or not the spousal support should continue. And it is up to you (or your lawyer) to convince the judge why he or she should continue or terminate the spousal support.
Now you should have realized that, even if you were divorced after being married for ten or more years, this does not mean that you received a sentence (or lottery) of a lifetime of spousal support.
(As of 4-16-07, some of the applicable CFC sections are: 4320, 4322, 4323, 4333, 4336, and 4337.)
There has recently been a great deal of confusion concerning physical and legal custody of children upon divorce. At the conclusion of a divorce proceeding, parties commonly come to a stipulation or agreement where they will share both physical and legal custody of children, but rarely do they know what they are exactly getting into. Hopefully, this will help to clear up some confusion.
There are several arrangements with child custody:
Exclusive custody (“legal and physical)
This is where one parent has the right to make decisions regarding the child’s residence, health, education and welfare. The non-custodial parent has reasonable visitation rights.
Sole physical custody
This is where the child resides with and is supervised by one parent, subject to the other parent’s reasonable visitation rights. Although one parent is the sole physical custodian, the other parent still has decision making power about how the child should be brought up. (ie: whether child should attend public or private school, whether child should be brought up Christian or Jewish, and etc.)
Sole legal custody
This is where a parent has the exclusive right to make decisions regarding the child’s health, education and welfare. This however is normally ordered along with exclusive physical custody to one parent.
Joint custody
Under this arrangement, neither parent has sole physical or legal custody. Both have the authority to control and supervise the child, and the child’s presence is shared.
Joint legal custody
In this case, both parents share the right to make decisions regarding the child’s health, education and welfare. Joint legal custody may be granted without granting joint physical custody (see below). In some instances, the court will order joint legal custody, but sole physical custody to one parent. The child shall reside with and shall be under the supervision of the physical custodian.
Joint physical custody
Joint physical custody is awarded when each parent has significant periods of physical custody. Child must have frequent and continuous contact with both parents in such a custody arrangement, but this doesn’t mean that custody must be equally shared.
Have you and your spouse agreed to a divorce? Or have you not been married for a long period of time and want to get it done as soon as possible? As long as you and your spouse meet the appropriate criteria, a summary dissolution of marriage might be the appropriate route to take. In order to qualify for a summary dissolution of marriage:
You and your spouse must not have had any minor children
together;
You and your spouse must have been married for less than five years;
Neither of you may have any interest in any real property;
You and your spouse may not have more than $5,000 in community debt (excluding
automobiles);
The total fair market value of any community property must be less than $33,000;
Neither of you may have separate property assets totaling more than $33,000;
You and your spouse must agree on how to divide any community assets and debts;
One of you must have lived in California for at least six months and in the
county of filing for at least 3 months prior to the date of filing.
If you and your spouse meet these requirements, then you should certainly consider a summary dissolution of marriage. It can save you a lot of money and is not very complicated at all. All that is required is that you and your spouse file the appropriate paperwork and pay the filing to the court. Then, a six month waiting period is required. The Court imposes this waiting period in part to make sure that you and your spouse are certain that you want to go forward with a divorce. After this six month waiting period is over, you or your spouse will just need to file for and obtain a judgment of dissolution to make the divorce final.
Wallin & Klarich can help you with the process of obtaining a summary dissolution of marriage for a fairly small fee. We will first help you evaluate your situation to ensure that you qualify for a summary dissolution of marriage. Once you obtain the appropriate forms, we will help you fill them out and make sure the process goes smoothly. Call Wallin & Klarich now to help you on your way to obtaining a summary dissolution of marriage and ensure that it is done correctly!
