Can Modification be Made to a Family Law Judgement?

After a divorce is finalized or custody order entered, life does not always stop. Circumstances change and emergencies happen. Many times, the order that the parties agreed on is no longer what works for one or more of the individuals involved.

While the order may say “final” on it, this title does not mean that it cannot ever be changed or modified, but certain factors must occur for that modification to occur.

Why Change an Order?

Many different reasons can exist as to why someone would want to change the prior court order, including the following:

  1. The parties have come to an agreement outside of court that differs from the court order;
  2. A significant change of circumstances has occurred in one or both parties’ situations since the last court order was entered; or
  3. The court or the other party made some type of procedural error that the moving party believes resulted in an unfair or unjust ruling.

If any of those circumstances apply to the case at hand, it is important that the party who is interested in modifying the order first seek the advice of a family law attorney before making any changes.

Modifying an order when the other party objects can be complicated and almost always requires the assistance of outside counsel.

Modification Based on Agreement

The ideal situation would be for the parties to come to some type of an agreement regarding modification of the order

Courts almost always encourage parties to work outside court to come to an agreement in lieu of litigation, if it is at all possible. The parties can work together or with the assistance of counsel or a neutral mediator to prepare an agreement modifying the previous order.

Once the agreement is signed, it must be submitted the court where the prior order was entered. The judge will review and will sign the agreement if everything is done appropriately and legally. Once the agreement is signed, it then becomes a binding and enforceable court order.

An attorney may still be needed for this step in the process as the order will need to meet legal requirements when it is submitted. The judge is not allowed to enter an order that would not otherwise be lawful and cannot give the parties legal advice if the order is not correct.

Significant Change in Circumstances

Many times, the parties may not agree on how the order should be changed. If an agreement cannot be reached, the court will need to hold a hearing after a petition to modify the prior order is filed.

Evidence will need to be submitted to show that a significant change in circumstances has occurred that requires the order on child custody, child support, spousal support or visitation to be modified. This legal standard can be hard to meet, so an attorney is almost always needed to prove the case.

When it comes to child custody and visitation, however, a few additional requirements must be shown to prove to the court that the modification is needed. Not only must there be a significant change in circumstances, this modification of the order must be shown to be in the best interests of the child. Alternatively, the moving party must show that the prior order is no longer in the child’s best interests.

A court will not modify custody or visitation orders easily. The stability of the child is paramount to the court. If the judge believes that the change would be detrimental to the child’s well-being, he or she will likely not modify the order.

When it comes to child support or spousal support orders, the change in circumstances does not need to be as significant and substantial as with child custody and visitation. Many times, it only involves a change in the income of either party that makes the difference in orders enough to justify a modification.

Post-Judgment Motions

If one of the parties disagrees with a final order, certain post-judgment motions can be sought to modify the order.

These motions are a little more complicated. They include a motion for a new trial or motion for reconsideration if it is believed that a legal or procedural error was made. They also include a motion to set aside the court’s judgment if it is believed the judgment was issued under duress, by mistake or through fraudulent activity. And they also include a motion to vacate if the party believes a conflict exists between the ruling and the reasoning behind the ruling.

If a party believes one or more of these circumstances applies to his or her case, an attorney is recommended to review the matter and give advice on the best course of action.

Contact Voss Law Today!

If you have a final divorce judgment or custody order and have questions regarding modification of that order, contact us today to discuss the best options for your case. Consultations are always free. Call us today at 323-333-4481.

Questions to Ask your Divorce Attorney at the Initial Consultation

  1. What Are the Lawyer’s Specialties?
  2. What Is the Attorney’s Experience?
  3. How Long Does the Attorney Take to Return Communication?
  4. Will There Be Anyone Else Working on the Case?
  5. How Will the Client Be Charged?
  6. Are There Other Anticipated Costs?
  7. What Obstacles Does the Lawyer Anticipate in the Case?

Filing for divorce can be a confusing and intimidating process for anyone, and that first meeting with a divorce lawyer even more so.

It helps to come to the initial divorce consultation prepared, and these questions can help you know what to ask when meeting with a lawyer for the first time.

1. What Are the Lawyer’s Specialties?

Many attorneys handle a number of case types, but it does help to hire an attorney who is an expert in family law. It can be assumed that the attorney will know the most recent updates in the law and will know the ins and outs of the family court system where the case will be heard.

Having an attorney who regularly handles family law cases goes a long way, as he or she will also be familiar with the local judges and attorneys who may be on the other side. The attorney will also be experienced in dealing with the contentiousness and emotion behind family law cases.

If the attorney handles other areas of law, ask him or her what the percentage would be of how many family law cases that attorney handles.

2. What Is the Attorney’s Experience?

Keep in mind that the client is the one interviewing the attorney during this consultation. Not only does the client want to give his or her story, but the client also needs to learn about the attorney to see if it will be a good fit.

Another suggested question is to ask about the attorney’s experience. Ask the attorney about how many years he or she has practiced law and family law specifically. Ask how many cases he or she has handled that have gone to court or settled outside of court.

While the number of years of experience does not necessarily mean that the attorney is not qualified, especially if their practice is dedicated solely to family law, it does help to know if this attorney has experience in this specific practice area and to know if he or she has never stepped in a courtroom before.

Family law cases involve a great deal of discovery work and requires someone who knows what he or she is doing, both before a hearing and during the hearing.

3. How Long Does the Attorney Take to Return Communication?

One of the biggest complaints clients have regarding their attorneys is how long it takes for the attorney to return a call or message. While no one should expect the attorney to constantly be working around the clock on one case alone, receiving a response or at least an acknowledgement that they have receive the client’s communication is helpful.

The client wants to feel like his or her case is important to the attorney. One of the best ways to feel important is for the attorney to return communications within a reasonable period of time.

4. Will There Be Anyone Else Working on the Case?

If the client hires a law firm, it is safe to say there will be a couple of attorneys working on the case. An attorney who is a partner may choose to utilize the assistance of an associate attorney in preparing the case, so the client may be dealing with that person.

Paralegals also work closely with the attorneys on preparing a case, and the client may be communicating more often with the paralegal than the attorney. A smaller practice may be a better fit if you prefer more direct communication with your attorney.

5. How Will the Client Be Charged?

No one wants to be surprised when they receive a bill in the mail from their attorney, so it helps to know from the start how much the lawyer will charge for hourly services.

During the initial consultation, most attorneys will address their required initial retainer to get things going, but what happens once that retainer is depleted? Will the attorney want the client to replenish the retainer? How much will the hourly rate be for the attorney and any other legal staff working on the case?

6. Are There Other Anticipated Costs?

Other costs may come up during the family law case, in addition to the hourly fees charged by the lawyer. Courts normally require filing fees to start cases, so ask about how much these fees are.

In addition, if the case requires depositions, expert witnesses or other costs, ask about what these costs are so that the client can be aware of these fees before they occur.

7. What Obstacles Does the Lawyer Anticipate in the Case?

No case goes 100 percent smoothly. Things happen along the way, especially when it comes to family law.

Ask the attorney from his or her personal experience what types of pitfalls and obstacles he or she may anticipate coming up. It is best to be aware of these possibilities upfront, even before they occur. If the attorney has been practicing law for quite some time, he or she may have seen a number of stories.

Do not think of it as being paranoid but rather think of it as being practical to anticipate things ahead of time.

Contact Voss Law Today!

If you are going through a divorce and have questions regarding what to expect, contact us today to discuss the best options for your case. Consultations are always free. Call us today at 323-333-4481.

What is The Divorce Process in California?

Overview of the Divorce Process in California

When seeking a divorce in the State of California, it helps to understand the process, so that parties can know what to expect and what needs to occur before their marriage is dissolved. The process may seem simple, but there are certain forms to complete and important steps that must be made before a divorce is granted.

The following describes an overview of the basic divorce process in California.

Filing of the Petition

The first step in any divorce involves the filing of the petition.

The person who starts the court case by filing the petition is known as the “petitioner.” A petition can be prepared and filed by the person individually or through the assistance of an attorney.

If the matter is complicated, meaning the parties have a lot of assets or have minor children, it is almost always recommended that at least one of them hire an attorney. The parties may qualify for a summary dissolution, but an attorney can advise them if that is a possibility.

If the parties want a divorce, they need to determine if the case can be filed in California. And if they can file in California, the also need to determine what county is the proper venue. A fee will normally be required to file the matter in a California county, unless the party qualifies for a fee waiver.

Along with the petition, the petitioner will also need to complete local forms required by the county. Many counties tend to have specific requirements an individual’s filing must meet, so be careful to review local rules to ensure that everything is submitted properly. The petition will lay out all of the legal grounds for the divorce and will tell the court exactly what the petitioner is requesting in the matter.

The other party, known as the respondent, will then need to be served with copies of the court filings.

After the respondent receives the petition, he or she has to decide how to respond. The respondent will normally need to file a formal response with the court.

If the respondent does not file a response, the case will proceed to default and be decided based on the petition’s requests. A response must be filed within 30 days of being served. The response will normally require a filing fee to be paid by the respondent.

Preliminary Declaration of Disclosure

The parties will also need to exchange financial documents to show what assets they own and what debts are owed, including both separate and community property. This process is known as the preliminary declaration of disclosure.

It helps the parties, as well as the court, know what assets and debts exist so that an equitable division can be made.

Settlement Negotiations

After the case is filed, the parties are always welcome to work out an agreement regarding the terms of the divorce. Settlement negotiations can be helpful if the parties wish to save on court costs since hearings and trials can be lengthy and expensive.

If the parties are not able to work on an agreement together or through the help of counsel, they can seek the assistance of a third-party mediator. Even if parties are not able to agree on all terms of the divorce, they can come to an agreement on some parts of the case, narrowing down what remains to be litigated.

Judgment of Divorce

In order to fully dissolve the marriage, a judgment of divorce must be entered by the court. How quickly this judgment is given depends on the facts of the case, including whether the respondent filed a response and whether the couple has been able to reach an agreement on any or all of the issues.

If a settlement agreement is reached, the terms of this agreement become incorporated as part of the judgment of divorce.

Under California law, the marriage cannot be dissolved until at least six months have passed after the case has been filed and the respondent has been served with the petition. It is possible that the parties will never need to come before a judge if they are able to reach a settlement agreement.

However, if an agreement cannot be reached, they will need to go to court to present evidence on how each side believes the judge should rule. The judge then makes a determination on all issues in the marriage and issues his or her decision in the judgment of divorce.

Before the divorce is final, it may be necessary to have the court issue temporary orders. Especially if minor children are involved, the court may need to enter rulings regarding child custody and parenting time.

In addition, if concerns exist as to whether one spouse will try to liquidate marital property before the marriage is final, the court can issue orders prohibiting these types of actions.

Contact Voss Law Today!

If you are considering filing for divorce and have questions, contact us today to discuss the best options for your case. Consultations are always free. Call us today at 323-333-4481.

How is Property Divided in a Divorce?

Understanding Property Division in a Divorce

In a divorce, one of the main issues that must be handled involves dividing the property and debt of the marriage. The division can be done through a settlement agreement, or the courts can be asked to properly divide the assets and debts of the marriage.

However, it helps to understand how the process works and what factors play into determining how this division is made, including:

  • 1. Deciding whether the property or debt is separate or marital property;
  • 2. Determining the value of the marital property; and
  • 3. Deciding how to properly and equitably divide the property and debt.

Classification of Property

Under California law, a strong presumption exists that any assets or debts that a couple accumulates while they are married are community property.

If a spouse earns property before the marriage by himself or herself or acquired the property by gift or inheritance, that property is normally considered to be separate property. Other property that is separate includes property that was purchased with or exchanged for other separate property, income earned from selling that separate property or an increase in value of the separate property.

However, the owner must be able to prove separate ownership with clear documentation and financial records.

In addition, if the spouses acquired property or debt after the date of separation but before the divorce is finalized, that property is normally considered separate property.

Keep in mind that the date of separation is not always the date that one spouse leaves the other or moves out of the home. The court will look for an act of one spouse actively ending the relationship. It can be the date the spouse moves out, but it can be another date, depending on the circumstances of the case.

The official date of separation becomes a problem when one spouse has racked up a large amount of debt or has earned an unusual amount of money. If the parties cannot agree on this date, the court will look at all of the evidence regarding how the relationship ended.

Before the parties get married or during the marriage, the couple can agree to change an asset that is considered separate property into community property, but this agreement needs to be in writing. Many parties choose to enter into a prenuptial agreement before getting married to help classify separate property clearly.

If they choose to change this classification later, it can be done through a later written agreement. However, simply changing the title of the property is not enough to change the classification.

Another way the classification of property can be changed from separate to community is when assets are combined or commingled. If the couple has been together for a long period of time following getting married, it is possible that the original property has been combined with other assets making it more of a community asset.

For instance, if one of the spouses had a premarital bank account before getting married but later adds money from both individuals to the account, it can be hard to argue that the account has not remained a separate property account.

It can be tricky to distinguish between separate and community property. If the court is charged with making this determination, it is important that the proper evidence is submitted. Speak with a family law attorney to discuss the facts of your case.

Assessing Property Value

Once the property is classified as either community or separate property, the next step is to assign a monetary value to the property.

The parties can agree on how much the asset is worth, and if the spouses cannot agree, an appraisal can help in making this determination for items of significant value, such as real property, antiques, jewelry and artwork.

Expert witnesses may also be needed to put a value on retirement assets, including pensions and other financial accounts.

Dividing the Property

After the property has been classified and given a value, it is then divided between the two spouses. As is the case with other parts of the process, the spouses can come to an agreement on how the property is divided.

They can also come to an agreement on whether one spouse buys out the other spouse on certain property of value, such as a family home or business.

In addition, the couple must take all debts that were accrued during the marriage and assign those to either spouse. If the debt goes along with an asset that is separate property, that debt would go to that spouse.

The parties can make this agreement, or the court can be left with the determination.

Contact Voss Law Today!

If you are going through a divorce and have questions regarding property division, contact us today to discuss the best options for your case. Consultations are always free. Call us today at 323-333-4481.

Do the Courts Favor the Mother in Child Custody Cases?

One of the biggest concerns fathers facing custody proceedings have is that the Court will innately favor the mother over the father when deciding child custody orders.

However, despite this misconception, California courts do not favor one parent over the other based solely on their gender.

Child custody is governed under California law by Sections 3040-3049. The law provides a preferred order of custody options available, which depend on a number of factors regarding the child’s or children’s best interests.

These possible custody options include the following:

1. Shared custody between both parents
2. Sole custody to one parent
3. Sole physical custody to one parent with visitation and possibly shared legal custody to the other parent.

Child Custody

It is important that certain terms be understood first. In California, two different parts of child custody are considered: physical custody and legal custody.

When custody is awarded to one parent it is known as “sole custody,” and when it is split between both parents it is known as “joint custody.”

Physical Custody

Physical custody has to do with where the child will be living. Two different types of physical custody exist, sole physical custody and joint physical custody.

The misconception regarding mothers receiving custody normally is with respect to physical custody. Many individuals falsely believe that the mother will automatically have the child or children live with her, but this is not the case.

Joint physical custody is becoming a more frequent arrangement where both parents have shared physical custody. California courts prefer to see the parental relationship maintained with both parents, and joint physical custody ensures that the minor child has continuing and frequent contact with both parents.

Custody does not necessarily have to be 50/50, as that arrangement is not always feasible, but it does mean that the child or children see both parents more frequently.

Once physical custody is resolved in a court order, the Court will then determine visitation, meaning how often the parent who does not have the child the majority of the time will see the child or children.

If joint physical custody is the arrangement and the parents live in close proximity to each other, allowing the child or children to go to the same school district with either parent and this does not have a negative impact on the child or children’s lives, this schedule can be very flexible.

When one parent has sole physical custody, the arrangement can be more restrictive and not as frequent. It can be every other weekend or less frequent with longer periods of time, especially when the parents live 100 miles or more apart.

Legal Custody

The other form of custody handled in family law cases is legal custody. Like physical custody, two different forms exist.

“Sole legal custody” means that only one parent has the legal right to make decisions regarding the minor child’s health, education or welfare.

“Joint legal custody” means that parents share in the decision-making. Joint legal custody is usually the norm in custody determinations, especially when the Court believes the parents will be able to co-parent effectively.

Factors Affecting Custody

Many different factors affect the court’s determination on who gets custody and what type of custody of the parties’ minor child or children.

The first of these factors centers solely on what is the best interests of the child or children. The court will review all of the facts and evidence submitted to determine what custodial situation would be in the best interests of the children affected.

Of the factors considered, the Court will review the child’s need for stability and continuity in his or her living situation, as well as the emotional bonds the child has with each parent.

The Court will also consider the relationship between the parents and whether they have a history of being able to co-parent effectively. If there is a history of sexual abuse, domestic abuse or violence in the home, that will also certainly be a factor.

If there are siblings in the picture, the Court will normally not want to disrupt those relationships either.

Occasionally, the Court will consider the wishes of an older child as to where he or she lives. The child’s request will not be the sole determining factor, but it can be one of the factors considered. When considering the child’s request, the court will consider the maturity level of that child and the reasons for his or her request.

The Court will also consider religious practices, disparity of incomes, the criminal history of either parent.

Lastly, the Court may consider gender depending on the facts of the case. For instance, if the child is a pre-teen female who has expressed an interest in remaining with her mother because she is also female, the Court may consider this as one factor.

However, the Court would consider this along with all other factors to determine what is overall the best decision for the child. It is the best interests of the child, not the gender of the parent, that is the governing factor in the end.

Contact The Voss Law Office Today!

If you are going through a custody proceeding, contact us today to discuss the best options for your case. Call us today at 323-333-4481 for a free consultation!

Does it Matter if You File First For Divorce?

One of the first questions asked by clients considering divorce is whether it matters which spouse files for divorce. Many clients worry that by not being the spouse to file, they may be giving up important rights and may be giving the other spouse the upper hand.

While it does not matter who files for divorce first, filing for divorce quickly is recommended for the time needed in planning and gathering information leading up to a divorce.

Filing for Divorce in California

An individual may file for divorce in the California Superior Court in that person’s county of residence. Residency will be established if the person has lived in California for at least six months prior to filing and in the county where the case is filed for at least three months.

A divorce will normally take at least six months. And depending on the circumstances of the case, it could likely take longer. Therefore, it is important that if the spouses want things to move along that they do not delay in filing.

Does Filing First Matter?

The Court will make orders, including the equitable distribution of property, based on the facts of the case and not which person filed first.

While many people believe that filing first gives that person the upper hand, that is wholly untrue. The party who files for divorce first is known as the “Petitioner.” The party served with the petition is known as the “Respondent.” This designation means the person “responds” to the petitioner’s position.

The one benefit of filing first is it allows a party unlimited time before-hand to get their affairs in order. Once a party is served with a petition for divorce, they have only 30 days to respond. This means in a mere 30 days they need to find the proper filing paperwork, determine their stance on each issue in the divorce and find an attorney they are comfortable with.

Spouses Residing in Different States

If the spouses live in separate states, the spouse who files first can do so in his or her state of residence, if he or she meets the residency requirements. The problem then becomes which state rules with respect to the legal standards under state law.

Some spouses will choose states that have better laws with respect to custody or division of property. For instance, California is a Community Property state, which means that property is divided roughly in half.

California is also a “no fault” divorce state, meaning that fault is not an issue that needs to be debated. Rather, the grounds for divorce are based on irreconcilable differences or a few other narrow reasons.

Other states require that fault be determined, making the proceedings much more adversarial. Therefore, if one spouse has concerns that the other spouse will be filing in a state where fault will be debated, ensuring that he or she files first in California can be advantageous.

Additional Considerations

As discussed above, California family law also includes a provision for what is known as an “automatic temporary restraining order,” also known as an ATRO.

The ATRO will go in effect as soon as the respondent is served with a copy of the divorce petition. The ATRO keeps the spouse from leaving the state with the parties’ minor children and from concealing, selling or otherwise tampering with marital assets.

Filing and Service

The action of filing first can ensure that the petitioner’s divorce will be heard in that specific county. However, what happens when spouses file petitions in different counties?

In these situations, it will come down to which spouse serves the other spouse with the paperwork first. Whichever spouse is served first, that petition will be the prevailing case over the two petitions.

Contact The Voss Law Office Today!

If you are going through a divorce proceeding, contact us today to discuss your case. Acting quickly is recommended for the best possible outcome in your divorce. Consultations are always free. Call us today at 323-333-4481.