Adjudication of Omitted Assets

In re Marriage of Huntley allowed a former wife to adjudicate the division of community assets after a default judgment had been entered against her.

FACTUAL BACKGROUND OF THE POST DEFAULT JUDGMENT ADJUDICATION OF COMMUNITY ASSETS

The husband in this case filed for divorce. The wife did not respond and a default was entered against her. After the divorce was final, the now ex-wife signed a quit-claim deed giving the family residence to her ex-husband. Two years later the ex-wife filed a motion to divide the remaining community property.

DENIAL OF THE ADJUDICATION OF THE REMAINING COMMUNITY PROPERTY

The ex-husband argued in the family court that the parties had already divided all of the community property as was evidenced by the fact that the ex-wife signed the quitclaim deed. The ex-wife argued that the court had continuing jurisdiction to adjudicate any community property that was not properly divided in the court. The family court dismissed the request to divide community assets and stated that in order for the ex-wife to have community property adjudicated, the ex-wife would have to set aside the default judgment entered against her. The ex-wife appealed the order.

APPEAL OF THE DENIAL TO ADJUDICATE THE REMAINING COMMUNITY PROPERTY

The Third Appellate District Court agreed with the ex-wife.  It stated that when community assets are not divided in a divorce, the family court has continuing jurisdiction to divide the community property. The court has the authority to divide any omitted asset. The fact that some community property had already been divided was not persuasive to the court. Any division of property needs to be in writing or on the record in court. Although the ex-husband argued that an oral agreement had been made to divide the community property, the appellate court stated that any agreements dividing community property must be on the record in court or in a written document. Otherwise the court will not have proof that the community asset was divided.

DO YOU NEED HELP WITH ISSUES RELATED TO COMMUNITY PROPERTY DIVISION?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as division of property any other divorce matter such as legal separation, annulment, custody, spousal support or child support, please consider our law office in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

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Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
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Deviations From Child Support

YR v. AF involved child support for a minor child. The father in this case was a director who earned more than $2,000,000 per year.

FACTUAL BACKGROUND LEADING UP TO THE REQUEST FOR CHILD SUPPORT

The parents of the minor child were never married. The mother requested an order for child support from the father who earned more than $190,000 per month which did not include some of his business expenses.

THE ORDER FOR CHILD SUPPORT

During trial, the father argued that he was an extraordinarily high income earner and for that reason, child support should deviate from the amount identified in the guideline formula. The mother presented evidence in respect to the needs of the minor child. Based upon the father’s income after some business expenses were added back into his income, the amount of guideline child support would be $25,000 per month. The family law judge only awarded $8,500 per month in child support and stated that based upon the expenses identified by the mother the amount would be sufficient for child support. The mother appealed arguing that the court erroneously focused on factors irrelevant to a downward deviation from guideline child support.

APPEAL OF THE ORDER THAT DEVIATED FROM GUIDELINE CHILD SUPPORT

The court of appeals reversed sending the case back to the family court for re-evaluation. It stated that although the family law judge can deviate from guideline child support, when it does so, it must state the amount that the guideline child support order would be, the reasons why the court will not order the guideline amount, and the reasons why the deviated order is in the best interest of the minor child. If the family court fails to identify those factors, the award is in error.

DO YOU NEED HELP WITH ISSUES RELATED TO CHILD SUPPORT?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as child support or any other divorce matter such as legal separation, annulment, custody, spousal support and/or property division, please consider our law office in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
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Paternity: Holding a Child Out as Your Own

Jason P. v. Danielle S. is an unusual parentage dispute that arose between a boyfriend and girlfriend after the boyfriend donated his sperm to impregnate his on-again, off-again girlfriend.

FACTUAL BACKGROUND OF THE PARENTAGE LEGAL ACTION

The parents in this case had an erratic relationship. During the relationship the mother wanted to have a child. The father was not convinced that he wanted a child. Knowing this fact, the mother obtained sperm from an anonymous donor. The father, wanting to support the mother, provided his sperm for the in vitro fertilization. The mother conceived, and a boy was born. When the boy was around two, the father filed an action for parentage.

TRIAL COURT’S FINDING OF PARENTAGE

In this case the only way the father could be considered a presumed father under the law was if he held himself out as the natural father of the minor child. The fact that he provided sperm to the mother and was in fact the biological father was not enough for a finding of fatherhood. By law when in vitro fertilization is performed by a doctor, the father has no parentage rights. In order to qualify as a presumed father, the father had to hold the minor child as his own. The significance of this case is that the father did not hold the child out as his son right away to everyone, he did not pay for prenatal care, and he did not have significant contact with the minor child until his son was older. In addition, the mother also encouraged the relationship between the father and his son when the parties were getting along. The family court found that the father qualified as a presumed father.

APPEAL OF THE FINDING OF PARENTAGE

The appellate court agreed with the trial court. It held that it is not necessary for a person seeking presumed parent status to have entered into the familial relationship from the time of conception or birth. The critical question is whether the presumed parent is an individual who has demonstrated a commitment to the child and the child’s welfare regardless of biology. The family court’s finding that the father had regularly spent time with the minor child, had a room in his apartment prepared for his son, and had his son at his home were all sufficient contacts to a finding of presumed parentage. The appellate court also found that the mother’s encouragement of the relationship between the sperm donor and her son, supported the finding of presumed parentage.

DO YOU NEED HELP WITH ISSUES RELATED TO PARENTAGE?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as paternity or any other divorce matter such as legal separation, annulment, custody, spousal support and/or property division, please consider our law office in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102

Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
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Bonus Income, Goodwill, and A Book of Business

The main issue of In re Marriage of Finby was the characterization of property. It involved bonus income, a book of business, and the goodwill of a financial advisor.

FACTUAL BACKGROUND OF THE DIVORCE PROCEEDINGS

The parties were married for more than 15 years. The wife was a financial advisor who developed a list of clients referred to as her “book of business”. Her client’s investments totaled almost $2 million dollars. Just before the divorce was filed, the wife changed jobs. The new company offered her a bonus in excess of $2.8 million dollars to work for them. The bonus was to be paid right away in a lump sum. If the wife worked for ten years, she would earn it all. If the wife did not continue to work for the company, she would have to pay the money back to the company.

DISSOLUTION PROCEEDINGS

During the divorce proceedings, the husband argued that the bonus income was community property even though it was earned over a ten year period. The family law judge disagreed with the husband and stated that only the amount of the $2.8 million dollars that was earned during the marriage was community property.  The remaining amount was not earned yet, because the wife had not worked at the company for ten years.

APPEAL OF THE FAMILY COURT ORDER

The husband appealed. The court of appeals agreed with the husband. It stated that when a financial planner has a book of business and receives compensation for moving to a new job with the book of business, the new company is paying for the book of business. According to the appellate court, the book of business is why the financial planner was hired. The book of business was developed during the marriage.  Therefore, it is a community asset that should be equally divided as it is earned.

DO YOU NEED HELP WITH ISSUES RELATED TO PROPERTY DIVISION ?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as property division or any other divorce matter such as legal separation, annulment, custody, spousal support, or spousal support please consider our law office in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
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Parentage in Orange County

Although In re Donovan is a dependency action in juvenile court and not a paternity case, the legal standards can be applied to parentage cases.

FACTUAL BACKGROUND OF THE PARENTAGE STATUS

The mother, Shannon, was married to Donovan when the minor child, DJ, was conceived and born. DJ’s biological father, David, was told of DJ’s existence, but he did not seek visitation until DJ was a year old. At that point, David took a paternity test which provided proof that he was DJ’s biological father. During this time Shannon and Donovan were having marital difficulties and Shannon moved in with David for a few weeks. While living with David, Shannon called the police to David’s home, because he locked her out of his home. A juvenile proceeding was initiated when marijuana plants were found in the home. In the juvenile proceedings David requested status as a presumed father.

PATERNITY TRIAL

The juvenile court found that both David and Donovan qualified to be the minor child’s presumed fathers and ordered visitation for David. The court stated that DJ would suffer detriment later in life when he learned that Donovan was not his biological father. Having David involved in his life prevented a possibility of future detriment. Both Shannon and Donovan appealed the order.

APPEAL OF THE PARENTAGE ORDER

DJ was four years old when the appellate case was heard. The appellate court stated that detriment to a child occurs when an established parent-child relationship is disrupted. Future possible detriment to a child is not enough to qualify for presumed parentage. It stated that application of this statute should occur in rare circumstances where a child truly has more than two parents and the finding of more than two parents is necessary to protect the child of being separated from a parent. In the appellate court’s eyes, biology is stronger when the child is younger. When the child is older, the social bonds are more important than the biological bonds. For those reasons, under Family Code section 3041 David did not qualify as a presumed parent even though he is the biological father.

DO YOU NEED HELP WITH ISSUES RELATED TO PATERNITY?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as parentage or any other divorce matter such as legal separation, annulment, custody, spousal support and/or property division, please consider our law office in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
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Sanctions in California Under 271

In Re Marriage of Perkins is a challenge to a family court’s award of sanctions. The court ordered the mother to pay the father sanctions for the mother’s numerous and without merit ligation tactics in respect to custody.

FACTUAL BACKGROUND OF THE REQUEST FOR SANCTIONS

The parties to this case were already divorced. A permanent order for custody and visitation had been entered in this case.

SANCTIONS HEARING

The mother filed a request to modify custody and visitation but would not appear at several hearings. The parties, however, reached a settlement agreement, and the family court made it an order. Three months after the agreement was reached, the mother moved to set aside the agreement and order stating that she was coerced into signing it. The father filed for sanctions. A hearing was held and mother did not appear at the hearing. Another hearing was set. The mother appeared by phone but claimed that Pennsylvania had exclusive jurisdiction of custody, because Pennsylvania was the children’s home state under the UCCJEA. Mother then filed papers in Pennsylvania for custody of the minor children. Dad hired an attorney in Pennsylvania to appear on his behalf. The court ultimately found that Pennsylvania did not have jurisdiction. Between the time that mother first requested a modification and the court order for sanctions, both parties had filed numerous motions. The mother failed to appear at several hearings. Ultimately, the family court ordered the mother to pay sanctions in the amount of $552,153. The mother appealed the court’s ruling.

APPEAL OF THE SANCTIONS ORDER

The mother complained that some of the sanctions awarded were for attorney fees associated with motions filed by the father and some were for fees associated with the hearings in Pennsylvania. The court of appeals upheld not only the sanctions, but also the amount of the sanctions. It stated that in appropriate circumstances a court has authority to impose 271 sanctions for attorneys’ fees incurred in a different state. The appellate court also stated that a correlation between the sanctioned conduct and specific attorney fees need not be established.

DO YOU NEED HELP WITH ISSUES RELATED TO CHILD SUPPORT?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issues such as legal separation, annulment, custody, child, support, spousal support, sanctions and/or property division, please consider our law office in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
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Paternity with More than Two Parents

In re Alexander P is a custody dispute where the biological father, custodial father, and previous father all requested a determination of paternity and visitation rights.

FACTUAL BACKGROUND OF THE REQUEST FOR PATERNITY

The minor child in this case was conceived during an intermittent, three-year relationship between Michael and the mother. Neither parent believed that Michael was the biological parent of the minor child. Joel was believed to be the biological father. When Joel was first told of the pregnancy, he stated that he was not ready to assume the role of father. Knowing that he was not the child’s biological parent, Michael took on the role of father for the minor child’s first year of life.  He was present during birth, signed a declaration of paternity, and was identified as the minor’s father on the birth certificate. Mother filed a restraining order against Michael and they separated when the minor child was one. Michael filed for paternity. When the minor child was about one his biological father, Joel, took a paternity test finding him to be the biological father. Thereafter, he began visiting the minor child. In mid July the mother began living with Donald who assumed the role of the child’s father on a day to day basis until a restraining order was issued against him. All three men requested a finding that he be declared the presumed father subject to visitation and custody rights.

TRIAL COURT’S DECISION TO ESTABLISH PARENTAGE

The court found that all three men qualified as a presumed parent. Two of the father’s appealed stating that the others could not qualify as a presumed parent.

APPEAL OF THE PATERNITY ORDER

The court of appeals upheld parts of the order. It stated that in order to find more than two presumed parents, the court must find that if the removal of an adult is detrimental to the child, then the court can state that the minor child has more than two parents. In other words, the alleged parents must have established a relationship with the minor child such that the removal of that parent would be detriment to the child creating the necessity of more than two parents for the child. It is not enough that the parent have a hope for a relationship, the alleged parent must have already established a relationship.

DO YOU NEED HELP WITH ISSUES RELATED TO PARENTAGE?

If you need legal advice and are looking for a family law lawyer in Orange County to address parentage or a other divorce matter such as legal separation, annulment, custody, spousal support and/or property division, please consider our law office in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
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Sanctions in Family Court

In re Marriage of Schleich discusses the implications of one party’s failure to disclose all of his or her assets in a dissolution and the sanctions associated with such failure.

FACTUAL BACKGROUND OF DISSOLUTION PROCEEDINGS

The parties were married for almost ten years and had acquired a substantial amount of assets during those ten years. They lived an upper class life style with vacations and substantial assets. During the marriage, the husband kept all of his assets separate from his wife and did not disclose the nature of those assets.

AWARD OF SANCTIONS FOR BREACH OF A FIDUCIARY DUTY AND FAILURE TO MAKE DISCLOSURES

During the divorce the husband would not comply with statutory disclosure requirements. In a divorce, statutes  require both parties to divulge their financial situation accurately and completely including both community assets and separate assets. This obligation extends to community and separate debts as well. The husband repeatedly failed to fully disclose his separate property to his wife during the divorce. As a result, the wife requested sanctions. The family court awarded the wife sanctions under Family Code sections 1101 and 271. The husband appealed the award.

APPEAL OF THE SANCTIONS AWARD

The court of appeals agreed with the husband in part. It held that an award of sanctions under Family Code section 1101 was not proper when a party failed to disclose separate property, because section 1101 only applies to community property. On the other hand, sanctions based upon failure to disclose all property including separate property could support 271 sanctions. Therefore, some of the sanctions were upheld and some reversed.

DO YOU NEED HELP WITH ISSUES RELATED TO NON- DISCLOSURE OF ASSETS?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as non-disclosure of assets or any other divorce matter such as legal separation, annulment, custody, child support, spousal support and/or property division, please consider our law office in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
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Spousal Support After Judgment

Ostrander v. Ostrander was an unusual factual situation whereby the parties were divorced and five years after the divorce, the wife requested spousal support even though she had never received any spousal support.

FACTUAL BACKGROUND OF THE REQUEST FOR ORDER FOR SPOUSAL SUPPORT

The parties were married for more than twenty-four years before filing for a divorce. At the time of the default for the divorce, the wife requested the court to reserve jurisdiction over the issue of spousal support even though no spousal support was awarded to her at the time of the divorce. The court subsequently entered a default judgment but did not expressly reserve jurisdiction over spousal support. Five years after the judgment was filed, the now ex-wife filed a request for spousal support.

REQUEST FOR SPOUSAL SUPPORT

The family court awarded spousal support to the ex-wife stating that in a marriage of long duration there is no need to reserve jurisdiction over spousal support. The husband appealed the order stating that because there was no reservation of jurisdiction in the judgment, the judge could not make an order for spousal support.

APPEAL OF THE SPOUSAL SUPPORT ORDER

The appellate court agreed with the judge citing Family Code section 4336 which states that unless there is an express agreement terminating spousal support, the court retains jurisdiction indefinitely in a long-term marriage.

DO YOU NEED HELP WITH ISSUES RELATED TO SPOUSAL SUPPORT?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as spousal support or any other divorce matter such as legal separation, annulment, custody, chils support and/or property division, please consider our law office in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
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Alex R. v. The Superior Court of Los Angeles County involves a minor child from Honduras who entered the states without documentation and was seeking status as a “special immigrant juvenile” due to the fact that he had been neglected by his father.

FACTUAL BACKGROUND OF THE REQUEST FOR SPECIAL IMMIGRANT JUVENILE FINDING

The “special immigrant juvenile” (SIJ) status allows minor children who enter the US and have been the victims of parental abuse, neglect, or a similar circumstance to qualify for special immigration protection. In order to qualify for this status, the minor child must appear in a state court for findings relevant to the status. The minor child in this case filed a petition in family court and stated that he did not know his father.

FAMILY COURT PROCEEDINGS TO APPOINT A GUARDIAN AD LITEM

In California, family courts have the ability to adjudicate the circumstances to determine if a minor child has been neglected and qualifies for special immigrant juvenile status. However, the judge in this case, refused to appoint a guardian ad litem for the minor child until his father received notice of the action. Counsel for the minor child argued that the guardian ad litem should be appointed before a summons and notice was issued and appealed the trial judge’s decision.

APPEAL OF THE DENIAL OF THE REQUEST TO APPOINT A GUARDIAN AD LITEM

The appellate court disagreed with the family law judge stating that the under California Code of Civil Procedure section 372, a minor child who is a party to a lawsuit must appear by a guardian ad litem. The purpose of the appointment is to protect the minor child’s interests. If the minor is under the age of 14, the appointment must be made before the summons is issued. In this case, the refusal to issue a summons, resulted in a miscarriage of justice since the guardian ad litem should be appointed before the issuance of the summons. The statute does not require that the minor child provide his parent or parents with the request to appoint a guardian ad litem before a guardian is appointed. The only circumstance where notice may be required is when a minor is seeking restraining orders

DO YOU NEED HELP WITH ISSUES RELATED TO CHILD SUPPORT?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as child support or any other divorce matter such as legal separation, annulment, custody, spousal support and/or property division, please consider our law office in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
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