Domestic Violence and Custody

The family court in Jaime G. v. H.L. awarded custody to the father after he was found to have perpetrated domestic violence against the mother.

FACTUAL BACKGROUND OF THE CUSTODY DISPUTE

The parents in this case were never married. The father had custody of the parties’ minor child before the proceedings were initiated. After the father filed a petition for custody, the mother requested a restraining order to be issued against the father for domestic violence towards her.

CUSTODY PROCEEDINGS

The court ultimately found that the father committed domestic violence against the mother and issued a 24 month restraining order against the father. The family law judge, however, awarded the parents joint legal and physical custody. The mother appealed stating that the law prohibits the judge from awarding custody to a parent who has abused the other parent unless the court considers the necessary factors.

APPEAL OF THE CUSTODY ORDER

The appellate court agreed with the mother. It stated that although Family Code section 3044 allows a parent who has perpetrated domestic violence to have custody, the court must consider seven factors before it awards custody to that parent. The court must review the seven factors and expressly state the reasons based on the seven factors as to why the court awarded custody to a person who has abused the other parent.

DO YOU NEED HELP WITH ISSUES RELATED TO CHILD CUSTODY?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as child custody or any other divorce matter such as legal separation, annulment, child support, spousal support and/or property division, please consider Treviño Law 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.
Posted in Abuse, Restraining Order | Leave a comment

Privileged Communications in Divorce

L.G. v. M.B. is not a divorce case, but a civil action that arose out of a divorce proceeding. The case discusses anti-SLAPP motions, torts, and civil procedure.

FACTUAL BACKGROUND OF THE CIVIL ACTION

The ex-wife, who is also the appellant in this case, filed a restraining order against her ex-husband. The ex-wife’s declaration to support the restraining order contained allegations against a third party, the “Respondent.” The ex-wife alleged that the Respondent participated in the violence and manipulation of the ex-husband and that Respondent obtained an abortion, she was a home wrecker, and she took action on behalf of the ex- husband. The ex-wife succeeded in obtaining a restraining order against the ex-husband and also filed a restraining order against the Respondent.

CIVIL PROCEEDINGS

The restraining order against the Respondent was settled. However, after settlement, the Respondent filed a civil action for defamation and invasion of privacy among other things against the ex-wife. The ex-wife asked the court to dismiss the Respondent’s civil action based on the fact that the allegations in the restraining order proceedings were privileged. The trial court denied the motion allowing the case to continue. The ex-wife appealed the order.

APPEAL OF THE DECISION

The court of appeal agreed with the trial court. Civil Procedure section 47 states that allegations made in the course of legal proceedings are privileged. However, subdivision (b)(1) limits the privilege to statements made about parties in a proceeding. When a party makes an allegation against a non-party, it must be verified, without malice, and with probable cause. This provision is often referred to as the divorce proviso exception. By denying the motion, the trial court in effect stated that the Respondent has enough proof to move forward with her legal.

DO YOU NEED HELP IN YOUR DIVORCE?

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, legal separation, annulment, custody, spousal support and/or property division, please consider Treviño Law 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.

Posted in Uncategorized | Tagged | Leave a comment

Social Security Disability Insurance and Child Support

Y.H. v. M.H. is a question of first impression in respect to whether or not credit for derivative payments of Social Security Disability Insurance should be retroactively applied to child support that has already been paid.

FACTUAL BACKGROUND OF THE SOCIAL SECURITY DISABILITY INSURANCE

The father in this case was injured during his military service. When a person is disabled, he or she may apply for disability payments through the Social Security Administration. If the person qualifies for Social Security Disability Insurance (SSDI) benefits, the recipient’s minor children may qualify for derivative benefits. That is the case in Y.H. v. M.H. The father qualified for SSDI. However, it took the Social Security Administration more than six years to determine eligibility. When the administration decided in favor of the father, it gave the father a lump sum payment for the benefits he should have received for the previous six years. It also gave the custodial mother a lump sum for the derivative benefits of their minor child.

FAMILY LAW TRIAL PROCEEDINGS

Generally, derivative SSDI benefits are credited for child support. When the father received his lump sum payment and the custodial parent received a lump sum payment, the father filed a motion to be reimbursed for his over payment of child support. The mother and the local child support agency opposed the motion stating that it is only reimbursable when there is an amount due and owing on child support. When there is no amount due, the father cannot be reimbursed for any over payment. The trial court agreed with dad saying that the statute allows reimbursement regardless of the status of the payments of child support.

APPEAL OF THE RETROACTIVE APPLICATION OF DERIVATIVE LUMP SUM PAYMENT.

The appellate court upheld the family law judge’s findings. It stated that there is no difference between support already paid and support accruing when it comes to derivative benefits. By allowing reimbursement, the law favors parents who make timely child support payments.

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 Treviño Law 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.
Posted in Uncategorized | Tagged | Leave a comment

In re Marriage of Binette discussed Family Code 217 and whether the code requires oral testimony in every family law proceeding.

FACTUAL BACKGROUND OF THE DISSOLUTION

The husband filed a petition for separation and served the wife with his preliminary declaration of disclosure. The wife did not respond. However, she signed a stipulation which stated that the husband and wife exchanged the preliminary declaration of disclosure. She also entered into a marital settlement agreement with her husband. The wife, eight months later, filed a motion to set aside the marital settlement agreement (MSA) based on the fact that she was not served the documentation to support the declaration of disclosure and the fact that she was under duress when she signed the documents.

FAMILY LAW TRIAL PROCEEDINGS

The family law judge set aside the MSA based on the declarations filed in court. No oral testimony was taken. The husband appealed stating that the court was in error when it did not consider live evidence as required by Family Code 217.

APPEAL OF THE ORDER TO SET ASIDE THE MSA

The Court of Appeal held that the family law judge was not required to receive oral testimony, because the judge established good cause for relying solely on the declarations. The judge stated on the record that he had read all of the declarations and understood the case. The appellate court further reasoned that the husband failed to object at the time of trial. The order to set aside the MSA was upheld.

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 the set aside of a judgment or any other divorce matter such as legal separation, annulment, custody, child support, spousal support and/or property division, please consider Treviño Law 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.
Posted in Set-Aside | Leave a comment

Sua Sponte Modification of a Court Order

Does a court have the ability to change an order after it is made?  In re Marriage of Spector addressed the court’s sua sponte ability to reconsider an order.

SPOUSAL SUPPORT PROCEEDINGS

The wife filed a request for an order for spousal support. The court ordered spousal support. After the husband received the order, his attorney sent an email to the opposing counsel and judge stating that an error had been made in the order. The judge reviewed the order. Although she did not find a mathematical error, she stated there were other things that concerned her and lowered spousal support accordingly. The wife appealed the family court’s order to modify spousal support stating that a family court cannot modify spousal support retroactively without a motion being filed.

APPEAL OF THE ORDER TO MODIFY SPOUSAL SUPPORT RETROACTIVELY

The wife argued on appeal that spousal support cannot be modified retroactively without one party or the court filing a request for order. The appellate court held, however, that when the trial court finds an error, the court should inform the parties and allow them to respond with a brief and hold a hearing. Once it does that, it has the inherent authority to change its order. Any attempt by the legislature to limit that power would be a violation of the separation of powers clause.

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 child support or any other divorce matter such as legal separation, annulment, custody, child support and/or property division, please consider Treviño Law 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.
Posted in Uncategorized | Tagged | Leave a comment

Annulments in California

Recently, the court in In re Marriage of Turfe denied the husband’s request for annulment. He argued that his wife fraudulently entered into the marriage.

FACTUAL BACKGROUND OF THE ANNULMENT PROCEEDINGS

The husband and wife were married and agreed to be bound by the mahr agreement in accordance with Islamic law. The husband argued that the mahr agreement was a type of pre-marital agreement that only granted the wife a copy of the Quran at the time of divorce. The wife argued, that the mahr agreement was an agreement that at a minimum granted the wife a copy of the Quran in the event of a divorce.

FAMILY LAW TRIAL PROCEEDINGS

During trial, the husband argued that the wife did not intend to be bound by the mahr agreement before they got married; therefore, she defrauded him by entering into marriage without keeping the terms of the agreement. Each party’s experts testified about the importance of the mahr agreement, but the experts differed on the interpretation of the mahr agreement and what the wife would receive in the event of a divorce. The trial court found that the parties did not discuss their separate interpretations of the mahr agreement before the marriage making it a disagreement of its meaning rather than fraud. The different interpretation of the mahr agreement by the wife did not give rise to an annulment. The husband appealed.

APPEAL OF THE DENIAL FOR AN ANNULMENT

The appellate court upheld the order stating that an annulment based on fraud must go to the very essence of the marriage relationship and must be something that the state deems vital to the marriage relationship. In order to find fraud, the state requires proof upon clear and convincing evidence to support an annulment. Misunderstandings of agreements without more cannot rise to the level of fraud.

DO YOU NEED HELP WITH ISSUES RELATED TO AN ANNULMENT?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as annulment or any other divorce matter such as legal separation, annulment, custody, child support, spousal support and/or property division, please consider Treviño Law 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.Annulments are rarely granted 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.
Posted in Annulment | Leave a comment

Business Depreciation and Child Support

The definition of income was at issue in In re Marriage of Rodriguez. The case involved the depreciation of assets for a self-employed business owner.

FACTUAL BACKGROUND OF THE CHILD SUPPORT

The father in this case owned his own business. For tax purposes, he deducted $536 a month for business depreciation of his motor vehicles.

FAMILY LAW TRIAL PROCEEDINGS

The father argued that the depreciation of motor vehicles was a valid business deduction that should be excluded from his income for the purposes of child support. The trial court disagreed and included an additional $536 as the father’s income and ordered child support based on his increased income.

APPEAL OF THE CHILD SUPPORT ORDER

The appellate court agreed with the family law judge. It reasoned that although depreciation is a valid business deduction for tax purposes, section 4059 of the Family Law Code only permits deductions from actual expenditures such as taxes, union dues, and health plan premiums. The Court concluded that the deduction for business expenses is only allowed when it is directly associated with the day-to-day conduct of a business. As a fictional loss for business purposes, depreciation is not deductible and is available as income for child support.

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 Treviño Law 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.
Posted in Uncategorized | Leave a comment

Domestic Partnership Dissolution

In re Marriage of G.C. and R.W. focuses on the issue of entering into a domestic partnership in another state and having it recognized and dissolved in California.

FACTUAL BACKGROUND OF THE DISSOLUTION OF THE DOMESTIC PARTNERSHIP

The parties in this case entered into a domestic partnership in 2004 in New Jersey. They also married in Connecticut in 2009. In 2011, they moved to California. C.W. filed for dissolution in 2012.

FAMILY LAW TRIAL PROCEEDINGS

R.W. argued in court that the family law judge should find that the parties entered into a domestic partnership in 2004, and that all subsequent orders should be based upon the date of union as of 2004 rather than in 2009. C.R. argued that the date of union should be the actual date of the marriage, and all subsequent orders should be based on the date of union as of 2009. The trial court held that the 2004 domestic partnership in New Jersey would not be recognized in California. R.W. appealed.

APPEAL OF THE ORDER

The appellate court agreed with the trial court. Although California recognizes same sex domestic partnerships filed in other states, it will only recognize those partnerships if they are substantially equivalent to California law. New Jersey’s domestic partnership did not create rights to alimony, the division of marital property, or estate succession. In addition, C.R. testified that the only reason that they entered into a domestic partnership was to preserve their right to act in cases of medical emergency and to gain employer-provided benefits. Therefore, it would not be recognized in California.

DO YOU NEED HELP WITH ISSUES RELATED TO A DOMESTIC PARTNERSHIP?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution of a domestic partnership or issue related to it such as legal separation, annulment, custody, child support, spousal support and/or property division, please consider Treviño Law 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.
Posted in Uncategorized | Tagged | Leave a comment

UCCJEA and Attorney Fee Awards

N.S. v. D.M. is a custody dispute that entangles two states and two counties and involves the complicated provisions of the Uniform Child Custody and Enforcement Act (UCCJEA).

FACTUAL BACKGROUND OF THE CUSTODY PROCEEDINGS

This is a paternity case. The parents were both living in California when the initial paternity case was filed. An order for joint physical and legal custody was issued and the children resided primarily with the mother in California. The parents reconciled and the family moved to Illinois. Several months later, the parents separated and the mom returned to California. The father initiated a modification of custody in Illinois. The mother hired an attorney in Illinois and filed a motion in California.

FAMILY LAW TRIAL PROCEEDINGS

The judges in the two actions held a conference call and decided the California maintained exclusive jurisdiction under the UCCJEA. The Illinois court denied the father’s petitions and Santa Clara County assumed jurisdiction. The case was then transferred to San Diego county. The mother filed a motion for attorney fees and costs in California for the fees associated with the litigation in Illinois and Santa Clara. The California trial court denied her motion for fees and costs. Mother appealed.

APPEAL OF THE REINSTATEMENT ORDER

The appellate court agreed with the trial court on its decision to deny fees based on Family Code section 3452. Section 3452 is part of the UCCJEA and allows an award of attorney fees based upon a prevailing party theory. However, the appellate court limited an award of attorney fees under section 3452 solely to enforcement actions. When the father filed the action in Illinois, his motion implicated the jurisdiction provisions and not the enforcement provisions of the UCCJEA. Therefore, mother was not entitled to a recovery of costs under that theory.

DO YOU NEED HELP WITH ISSUES RELATED TO INTERSTATE CUSTODY ISSUES?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as interstate custody or any other divorce matter such as legal separation, annulment, custody, child support, spousal support and/or property division, please consider Treviño Law 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.
Posted in Attorney Fees, UCCJEA, Uniform Child Custody Jurisdiction Act | Leave a comment

Family Code 217 Testimony

In re Marriage of Swain involved an ex-husband’s request to terminate spousal support.

FACTUAL BACKGROUND OF THE REQUEST TO TERMINATE SPOUSAL SUPPORT.

The parties had been married for 11 years before filing for divorce. They entered into a stipulated judgment which ordered the ex-husband to pay spousal support to his ex-wife in the amount of $2,500 per month. In 2016, the ex-husband filed a request for an order to terminate alimony. In addition to the fact that he had retired from his job, his ex-wife was receiving half of his pension.

FAMILY LAW PROCEEDINGS

In the proceedings, the ex-wife only filed an Income and Expense Declaration. Otherwise she did not respond to the paperwork, and she did not appear at the hearing. The trial court lowered spousal support based on the information presented at trial and the Income and Expense Declaration filed by the ex-wife. The ex-husband appealed stating that the Income and Expense Declaration filed by the ex-wife should not have been used in lieu of her testimony, because the ex-husband was entitled to cross examine his ex-wife as a witness.

APPEAL OF THE REINSTATEMENT ORDER

The appellate court agreed with the ex-husband. It stated that the enactment of Family Code section 217 required that testimony in family law hearings should be live unless good cause exists or the parties stipulate otherwise.

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, child support and/or property division, please consider Treviño Law 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.
Posted in Uncategorized | Tagged , | Leave a comment