Tag: <span>Divorce Attorney</span>

How Much Does Divorce Cost?

January 6, 2022
by Briana White

So here you are. You’ve decided to get a divorce, but now you’ve got questions—a lot of them. Like, “Where do I even start?” and, “Should I hire an attorney?” and, perhaps the most worrisome of all, “How much does divorce cost, anyway?”

Unfortunately, while a lot of these queries have straight forward responses, the answer as to how much your divorce will cost is a little less than satisfactory. In a nutshell?

We don’t know.

The varying details between divorces make it virtually impossible to predict someone’s eventual bottom line. On the bright side, our team has seen enough breakups to know which divorce types are most likely to break the bank, and how you can be financially savvy.

Here’s what you need to know about how much divorce costs in California, and what Maples Family Law can do to work within whatever budget you have.

Breaking Down the Cost of Divorce

You can’t keep down the cost of your divorce without first knowing what the costs are. This is especially important, considering how widely the arc of our divorce cost pendulum can swing.

For example, in California, you can technically get a bare bones divorce for nothing more than a filing fee of $435 (assuming no one fights back, and there’s nothing to argue about, that is). Realistically, however, it’ll probably be a lot more, with some divorces easily racking up more than $50,000 for the same breakup.

The first step to curbing these numbers is knowing where the costs are coming from.

In general, there are four main areas that will keep you up sweating dollar signs at night:

Your attorney’s initial retainer.
Your attorney’s billable rate.
Paperwork filing fees.
Expert witness rates.

Here’s a quick peek at how each of these break down.

1. Attorney Retainer

A retainer is a large payment that you submit to your attorney, at the onset of your case. This money both reserves your attorney’s services, and acts as a kind of savings account, from which your attorney will draw from to pay expenses, as your case proceeds.

In California, an initial divorce retainer can range anywhere from $3,000-5,000. Your attorney will use this money to pay for things like:

Their own billable hours;
The billable hours of any staff who work on your case;
Filing fees for documents submitted to the court;
Compensation for any outside experts you call upon; and in some cases,
Office expenses relating to your case.

Different firms all have their own system of billing, which is why you should always take the time to thoroughly review your retainer contract, before signing anything. That way there won’t be any surprises.

2. Attorney Hourly Rate

In California, most divorce attorneys charge an hourly billable rate. This amount typically ranges between $250-$400 an hour, and will vary based on where you live, and who you hire.

“But wait!” you might be thinking. “Didn’t I already pay for my attorney? Wasn’t that what the retainer was for?”

Sorry, but no.

Remember, a retainer is just a reservation fee—an initial deposit, so to speak. While this money will go towards paying for your divorce, the biggest mistake you can make is in assuming that it will cover your whole divorce.

In reality, you’ll almost certainly have to replenish this account several more times, before your case is over. (Especially when you consider that the average price tag on a California divorce is a cool $17,500.)

3. Filing Fees

California might have some of the highest filing fees in the nation, but $435 to submit an initial divorce complaint suddenly doesn’t seem like very much, when you consider how much you’re going to spend, overall.

If you and your spouse file for an uncontested divorce, then this initial filing fee might be the only payment you’ll make. However, since this type of divorce doesn’t work for most couples, it’s much more likely you’ll have other filing fees crop up, as your divorce progresses.

The good news is if you’ve retained representation, then your attorney will take care of this cost for you (using funds from your retainer account). If not, you’ll be responsible for this cost—as well as the other logistics of filing for divorce—on your own.

4. Expert Witnesses

Depending on your situation, you may need to hire an expert witness.

The cost of these professionals will swing dramatically, depending on what you need them for, and how much time they put into your case. Most work on an hourly rate, and—similar to attorneys—will require an initial retainer.

The most commonly used expert witnesses in divorce are forensic accountants. These professionals can be used to:

Track down undisclosed assets;
Determine marital lifestyle for alimony;
Conduct a business valuation;
Prove ownership of separate property;
Trace bitcoin blockchains; and,
Uncover inconsistencies in bookkeeping.

These retainer fees typically start between $3,000-5,000, but can potentially be more, depending on the breadth and scope of the project.

Tips for Keeping Divorce Costs Low

By now, you’ve probably realized that the easiest way to cut down the cost of divorce, is to just skip the attorney altogether. After all, we lawyers easily have the highest price tag, so… it only makes sense, right?

Wrong.

Before you let these numbers scare you into a hasty, D.I.Y. divorce, remember that divorce laws are incredibly complex, and self-representation comes with a high likelihood of error. These mistakes can be incredibly costly—sometimes impossible—to reverse. Meaning that it’s almost always better to simply hire the attorney, and get it right your first time around.

If finances are a concern, there are much less riskier ways to cut costs during divorce. Here are just a few:

Educate yourself about California divorce laws (the library is a great resource).
Do your own legwork (such as gathering documents and making copies for your attorney).
Email your attorney, don’t call—calls take up more time, and time equals more billable minutes.
Utilize legal assistants and paralegals as much as possible; they have a significantly lower billable rate and are almost always just as smart as your attorney.
Negotiate calmly, and compromise liberally.
AVOID LITIGATION AT ALL COSTS.

That last point is really important.

Hands down, the single biggest thing you can do to avoid high divorce costs, is to avoid court, altogether. Instead, opt for an alternative method of dispute resolution, such as mediation, or collaborative divorce.

Not only will these types of divorce save you a lot of time and money, but they’re also more flexible. This gives you the ability to set your own terms, rather than having them decided for you by the whims of an outside judge.

Do You Have More Questions About the Cost of Divorce in California?

While divorce might not come cheap, it also doesn’t have to be as bad as you might be thinking. With a little bit of planning, the right divorce type, and a willingness to compromise, it’s more than possible for couples to keep costs reasonable.

If you have more questions about how much divorce costs in California, and what this process might look like for your situation, we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and let us help you get divorced within whatever budget you have.

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Dating During Divorce

September 1, 2021
by Briana White

One question that clients sometimes ask us is, “What happens if my spouse is dating during divorce?”

It’s a fair question. Until the ink dries on your order, you’re still technically married, and in many jurisdictions, infidelity can have a significant, detrimental impact on how divorce proceedings shape up—particularly when it comes to things like property division and alimony.

So, what does that mean for you? Do you need to be worried about dating during divorce in California?

We’re glad you asked.

Breaking the Marriage Contract: Fault or No-Fault?

Marriage might mean a lot of things to a lot of people, but for legal professionals it all boils down to a contract; a legally binding agreement for two adults who have decided to share their lives together.

Divorce, then, is the opposite. It is the severing of one life into two, so to speak. When this happens, the marriage contract (which was created on your wedding day), must be broken.

In general, there are two ways to do this: 1) No-fault Divorce, where neither party shoulders blame for the breakup; and 2) Fault Divorce, where the guilty party is held accountable for their role in the marriage’s failure.

Back in the day, pretty much every jurisdiction required you to show proof of fault in order to get a divorce. These days, however, it’s the opposite, with every state now offering some kind of no-fault divorce grounds, and most doing away with fault, altogether.

But how does fault apply to dating during divorce? you might be wondering.

Because, dear reader, in some jurisdictions, dating during divorce could actually trigger a claim for fault-based divorce grounds.

Dating During Divorce and Fault

Fault-based divorce grounds come in a variety of shapes and sizes, from felonies to infertility, and other things in between. However, the one thing that all fault states have on their Naughty List, is infidelity.

Infidelity (or adultery) is when two people engage in sexual relations, and at least one of them is already married… to someone else.

In a fault-based jurisdiction, this could potentially mean the cheater gets less marital property, less alimony, and/or saddled with more than their fair share of marital debt. All of which is meant to penalize them for causing the marriage contract to fail.

Of course, dating during divorce doesn’t always lead to sex, but it often does, and those who do are leaving themselves wide open to grounds for adultery—claims that can have some pretty catastrophic ramifications for cheaters living in a fault-based jurisdiction.

However, luckily for cheaters in the Golden State, California is not one of those jurisdictions.

California and Fault-Based Divorce

California is one of the many states that have completely done away with fault-based divorces. So, not only are you (legally) permitted to commit adultery to your heart’s content, you can also date during divorce without having to worry about putting your share of marital property in danger. (Not that we’re promoting adultery or anything, here, because obviously, that’s not cool. We’re just saying that dating isn’t likely to raise any legal red flags.)

The only way cheating might be held against you in divorce court, is if you included an infidelity clause in your prenuptial agreement. So long as the prenup is valid, the court will likely enforce whatever penalties you willingly submitted yourself to when you got married.

That being said, even if you aren’t having sex, there are still a few things you might want to be warry of, if you’re thinking about dating during divorce.

Dating During Divorce in California

Alright, so you’re legally permitted to commit adultery in California. Cool. So, does that mean dating before everything is official never impacts a divorce’s outcome?

Not exactly.

While California courts won’t consider fault—and, by extension, infidelity—when dividing up assets, there are a few things you might want to remember, before powering up your Tinder profile…

1. Marital Money Doesn’t Belong to You, Alone

California courts might not penalize you for having an affair, but that doesn’t mean you’re free to spend marital assets on your new squeeze.

California is a community property state, which means anything that either of you acquire after marriage, belongs to both of you equally—no matter whose name is on that paycheck. This means that if your divorce isn’t finalized yet, you’re not just spending your money on your dates. You’re spending your spouse’s money, too. (Awkward.)

Hence, your judge will likely require you to reimburse whatever money you spent on dates before divvying up marital property. And, depending on how discreet you were (and how long you were dating before divorce), this could end up being a lot.

2. Don’t Neglect Your Children

Just like dating won’t directly affect marital property, neither will it directly affect your custody arrangement. However, it could have an indirect effect…

In California, custody decisions are made according to the best interest of the child. If you are neglecting your child in favor of your dating life, or if your dating life is exposing them to harm in some way, then the court might think twice about how large a role you should play in your child’s life, post-divorce.

Bottom line? If dating during divorce, keep your priorities straight, and remember that being a parent comes first.

Dating During Divorce: Just Don’t

Like with many things in life, just because you can date during divorce, doesn’t mean you should.

Breaking up with a spouse is extremely stressful. This is someone you once loved enough to say, “I do,” so even if you know it’s the right decision, there will still be a lot of complicated emotions clouding the waters. (Not to mention demands on your time). And those aren’t the most ideal conditions for starting a new relationship.

Do yourself a favor, and simply don’t date during divorce. Your kids need you right now. You need you right now. Wait until everything is finalized; until you’re in the right frame of mind to give your full heart to someone new.

Trust us, you’ll be glad you did.

Divorce Attorneys in California

While dating during divorce is unlikely to have a direct impact on your breakup, it’s not necessarily the best idea—especially when kids are involved. If you have more questions about why, or want to discuss other divorce-related questions, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help this process run smoother for you.

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Divorce in California

February 25, 2021February 2, 2021
by Briana White

If you’ve never experienced it before, divorce can be an intimidating process. Between filing the correct forms, locating documents, and keeping track of deadlines, there’s a lot to remember, and, without help, the journey can quickly become overwhelming.

To help you out, this article will walk you through the basic steps of how to get a divorce in California, and how the lawyers at Maples Family Law can make this process easier for you.

Residency Requirements

If you want a divorce, one of the first things you’ll need to do is make sure you meet the residency requirements at both the state and county levels.

In order to file in California, you will need to have lived in the state for at least 6 months. For residents of San Joaquin county, the requirement is three.

If you’ve fallen short in either of these categories, you don’t need to worry. There is a lot of busy work that needs to happen before you file, anyway. While you wait, discuss your situation with a family law attorney, who can make sure you have all the necessary information on hand to hit the ground rolling.

Important Dates

Regardless of what documents are required for your, individual case, two important dates you will certainly need are your: 1) date of marriage; and, 2) date of separation.

These dates are important, because they’re used to help determine your interests in marital property.

California is a community property state. This means that all assets acquired after marriage belong to both of you equally—regardless of whose name is on the paycheck, account, or card. Unless you have a valid prenup saying otherwise, this shared interest continues up until the time of separation.

Determining your date of separation is much simpler, if you and your spouse had a legal separation. Those couples who didn’t make separation official will need to comb through emails, texts, and other informal documents to prove this date to a judge.

Immediate Orders

Another thing to consider before filing, is whether or not you’ll need a temporary order.

Temporary orders are provisional (meaning, they have a set expiration date), and can be used to prohibit certain behaviors or dictate responsibilities while your divorce is pending.

These can be tailored to meet your individual needs, but are often used to:

Dictate parental responsibilities, such as child support, custody, and visitation;
Require spousal support payments; and even,
Outline living arrangements and the bill-paying responsibilities of each spouse.

Temporary orders can be especially useful for those who might be worried about spousal retaliation. In these scenarios, a temporary order can prohibit your spouse from emptying bank accounts, destroying property, and fleeing across state lines with your children.

If physical retaliation is a concern, a Domestic Violence Restraining Order would likely be more appropriate. If the threat of harm is immediate, your attorney may be able to request an Emergency Protective Order on your behalf.

If you are experiencing abuse or domestic violence of any kind, remember that keeping yourself and your children safe is paramount to everything else.

File Documents

After your paperwork is complete, you will need to take your documents to your local family court to file them, and to pay the associated fees. In California, the filing fee for an original petition of divorce is $435.

If you are trying to execute a D.I.Y. divorce, this fee will be your responsibility. Those who utilize an attorney, however, do not need to worry about these technicalities. When you hire a lawyer, they are in charge of making sure all the necessary paperwork is filed on time, and that fees are paid (the amounts of which will be deducted from your retainer).

Serve Your Spouse

Once divorce has been initiated, the next step is to notify your spouse—and this cannot be done with a simple phone call or text message. Proper notification (or “service,” as is the legal term), is done by giving physical copies of all paperwork to your spouse, in person.

As a party to the case, however, you are not allowed to serve divorce papers on your spouse. Other than that, though, the requirements are pretty open, meaning it’s usually not necessary to hire a professional process server.

For service to be proper in California, your server must be:

At least eighteen;
Not affiliated with the case;
Serve papers within sixty days of filing;
Fill out a Proof of Service form; and, finally,
Deliver the Proof of Service to you, so that your attorney can file it with the court.

Failing to complete proper service could put your case in danger of dismissal.

If you are unable to meet the sixty-day timeframe, your attorney can request more time. This extension is often needed by spouses who have been abandoned, and don’t know how to locate their partner. In these situations, the court will sometimes make an exception to in-person delivery, and allow you to utilize another method of service.

Waiting for a Response

Assuming you have executed proper service, your spouse will then have thirty days to respond to your petition. To this end, their options are:

True Default—do nothing, by not engaging or responding to your petition at all;
Uncontested Divorce—do nothing, because you already have a written, notarized agreement outlining your terms;
Respond in Agreement—file a response with the court, confirming agreement with your proposed terms; or,
Respond in Disagreement—file a response with the court contesting your proposed terms.

It is almost never a good idea to allow your case to default—even if you do not want the divorce to happen. Refusing to engage will not stall out proceedings. Instead, the court will simply grant the divorce as though you had agreed to all the terms.

Needless to say, this is almost never in your best interest.

During this thirty-day period, you and your spouse are also free to work out a settlement—either between yourselves, or through mediation. If successful, you can submit a marital settlement agreement with the court, which will then become your official divorce order.

When Issues Can’t Be Resolved

Those who are unable to reach an agreement must engage in litigation.

Divorce litigation is a traditional court trial, where both sides are represented by an attorney, evidence is presented, and the issues are decided by a judge. Litigation is by far the most expensive, time-consuming, and least flexible way to secure a divorce. So it’s usually a good idea to at least try to settle, before proceeding to trial.

Single Status

If you are planning to remarry after your divorce, keep in mind that in California, you are not considered to have reached “single status” until six months and one day from the time of service.

If your divorce has not been finalized within this time, you can file a Single Status Affidavit with the court, which will allow you to proceed, in lieu of a final judgment.

Naturally, you are not automatically divorced, just because six months have passed. In all cases, you will still need to either resolve issues amicably with your spouse, or through the court.

Divorce Lawyers in California

Divorce isn’t simple, which is why so many people choose to hire personal representation. Armed with education and experience, an attorney can guide you around major pitfalls, handle tedious paperwork, and ensure your best interests are being protected at all times. Freeing up your mental energy, so that you can channel it where it’s needed most: your family.

If you have more questions about Divorce in California, and how this process might apply to your situation, we want to hear from you. Call us at (209) 989-4425, or get in touch online, and let the team at Maples Family Law help make this process a little easier for you.

Property Division

Dividing Retirement Assets in a Divorce

February 17, 2021February 1, 2021
by Briana White

With so many different types of plans and variables at play, dividing retirement assets in a divorce can be complicated. Especially if they existed both before and during a marriage, dashing any hopes of a clear property classification. However, considering their sizable worth, retirement accounts are one aspect of property division you don’t want to get wrong.

Fortunately, a good Stockton divorce attorney can help you get the job done without too much hassle.

Identifying Retirement Assets in a Divorce: Community or Separate Property?

When splitting a retirement plan, the first step is to identify what kind of property the account is. Like all other assets acquired by a couple during marriage, retirement funds are subject to property classification and division under California’s community property laws. Under these rules, assets are categorized as either “community” (property that belongs to both spouses equally), or “separate” (property that belong to one spouse, individually).

To classify the contents of a retirement account, timing is key. If either spouse contributed to the account while married, it is most likely community property (unless specifically addressed in a valid prenuptial agreement.) On the other hand, if the account was created before marriage—and was not added to during that time—it’s most likely separate property, and belongs solely to the participant spouse (the party who earned the benefit).

Most of the time, however, property isn’t as clear cut as “before” and “after” marriage. And when the ‘what’s mine is yours’ mentality results in blending separate and community property together, retirement division can get a little more complicated.

Dividing Retirement Assets in a Divorce

If the retirement account is classified as community property, a judge will split ownership based on the length of time the couple was married, and how this occurs will vary by circumstance. In some cases, both spouses agree to keep their own pensions and retirement accounts without taking any part of the other spouse’s. However, when one spouse doesn’t have a retirement account – or when one has a much smaller retirement asset than the other does – a judge will order the couple to split these funds another way. There are two common ways this can be accomplished.

The first, is to suspend all retirement payouts until the participating spouse actually retires. Once retirement finally rolls around, each spouse will get their share of the retirement payout for the time married. The second method, is to allow the participating spouse to keep all benefits of the retirement plan, and to offset this inequality by awarding the non-participating spouse a greater portion of community assets.

Obviously, each method of distribution comes with its own pros, cons, and risks. When assessing how to make this split, couples are always free to reach their own agreement, rather than fighting in court. One way to do this, is through mediation.

Divorce Mediation

Mediation is a non-binding negotiation process, where couples meet with a neutral third party, and try to come to an agreement on their own. This method of dispute resolution is far simpler and more cost-effective than litigation. It also gives individuals greater flexibility in determining the outcome of their own divorce terms, including the division of any retirement plans. For these reasons, a good attorney will always suggest that you try mediation before going to court.

Retirement Payout After Divorce

Once an agreement has been reached—either through mediation, or by litigation—the actual payout process will depend on what type of retirement plan you have.

For example, when dealing with a military retirement account, the length of your marriage will determine whether the participant pays out the alternate payee, or if the money will come directly from the Defense Finance and Accounting Service.

In other cases, individuals must file a qualified domestic relations order, or QDRO. A QDRO is a special court order authorizing a non-participant individual to receive a payout from a retirement account. Once a QDRO is filed, payout usually takes between 60 and 90 days, depending on how long it takes the plan’s administrator to process the documents.

These types of details—such as how payout works and how long it takes to receive—will vary for each type of retirement account. Once your Stockton divorce attorney has all the facts of your case, they will be able to give you more specific guidance on what to expect from your retirement payout process.

Retirement Plans Covered by a Prenup

Now days, it’s common for divorcing couples in California to have prenuptial agreements. These pre-marital contracts can cover all kinds of things about property division during divorce. In your prenup, you and your spouse may have agreed to several things, including the rights and obligations you each have when it comes to property (even if it was acquired during your marriage).

If a retirement account was included in your prenuptial agreement, it’s a good idea to talk to your attorney about it. The prenup can’t be grossly unfair, and if it is, your Stockton divorce attorney can help argue that all or part of the agreement is invalid.

Divorce Attorneys in California

If you have questions about dividing retirement assets in a divorce, we’re here to help. Call us at 209-546-6870 to schedule a consultation with an experienced divorce and pension attorney. Together, we’ll answer your questions, and begin building a strategy that will get you the best possible outcome in your retirement plan division.

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Divorce Papers in California

February 9, 2021February 1, 2021
by Briana White

In order to initiate your divorce, California law requires that you let your spouse know you’ve begun the legal process—and in this case, shooting off a quick text won’t cut it. For your notice to be valid, you must provide the other party copies of the same paperwork you filed with the court, and it has to be done in a certain way. In legal speak, this is called service of process—but most people simply call it “serving divorce papers,” or “service.”

How to Serve Divorce Papers in California

One important thing to keep in mind, is that your judge will not be able to make a judgment, or create any permanent orders until divorce papers have been properly served to the other party. During your initial divorce consultation, your Stockton divorce lawyer will explain the different service methods, but if you haven’t yet had a chance to meet with an attorney yet, here’s a quick run-down of how to make sure your divorce isn’t delayed by improper service.

Using a Process Server

One way of serving divorce documents, is good old-fashioned hand-delivery. This method is called personal service, and in California—so long as they meet the right criteria—any of the following people can serve divorce papers on your spouse:

Friend
Relative
Coworker
County sheriff or marshal
Professional process server

However, there are certain things might disqualify one or more of these individuals from carrying out the task. In order for these individuals to qualify as a proper process server, the person must:

Be over the age of 18; and,
Not be part of your divorce case.

In addition to these two requirements, the person you choose must serve the paperwork within sixty days from the day you filed for divorce (though, more time can be requested, if needed). They must also fill out a proof of service form, and return it to you, so that you or your lawyer can file it with the court. A proof of service form tells the court who was served, when it happened, where it happened, and how it happened.

Substituted Service

Substituted service is only available when you have already made several unsuccessful attempts to personally serve the other party. If your situation qualifies, your server will be allowed to leave the papers in the possession of someone else at the other party’s house (so long as they are at least 18 years old). The same restrictions for service of process apply in substituted situations, and the server must also to write up a “Declaration of Due Diligences” detailing the efforts that were made to serve in person prior to substitution.

If your spouse does not agree with the divorce, and is trying to stall the proceedings by making it difficult for you to serve, you may need to consider service by posting or publication, instead.

Service by Publication or Posting

Service by publication involves publishing the summons and complaint in a newspaper where the other party is likely to be. For this method, the court’s permission is mandatory, and can be obtained by filing a Form FL-980. The notice must also run at least once a week for four weeks, the cost of which will come out of the plaintiff’s own pocket.

Service By Posting

Alternatively, if you don’t know where your spouse lives, you may be able to complete service by posting. This involves asking the court for permission to post notice at the courthouse, which is only granted if special requirements can be met, including detailed proof that substantial due diligence was made to contact the other party via other avenues, to no avail.

Service By Mail

A person who is not part of the case may also mail the documents to the other party’s home or business. Service is considered complete after five days from the date of postage, however it isn’t always the most reliable. Which is why it’s really good idea to stick to Certified or First-Class mail.

What Happens if My Spouse Ignores Service?

Sometimes during divorce, one party wants to split, while the other doesn’t. If your spouse is attempting to stall your breakup by not responding to properly serviced documents, you don’t need to worry. Individuals who don’t respond within thirty days are in danger of default. In a default divorce, the dissolution will continue on without the other party, usually with the judge simply agreeing to the terms put down by the party who filed.

Do You Need to Talk to a Stockton Family Lawyer About Divorce?

Navigating the requirements of document service can be tricky and overwhelming. Luckily, this isn’t a process you have to complete on your own. If you need to advice about serving papers, or want to talk about other divorce-related matters, one of our Stockton attorneys can help. Call us at (209) 546-6870 for a consultation. Let us help you develop a strategy that gets you the best possible outcome in your case.

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How to Enforce Spousal Support in California

February 5, 2021February 1, 2021
by Briana White

When your ex refuses to pay spousal support, is late on payments, or doesn’t give you the full amount, this can be understandably frustrating. Especially since the entire point of spousal support is to help a homemaker become economically independent after a divorce. Without this reliable, financial assistance, getting back on your feet becomes much more difficult.

If a judge included spousal support in your divorce order, it isn’t optional. Your ex might not like you, or agree with the verdict, but the hard truth is, that court orders are as iron clad as any other law—the only difference being, that it’s personalized to you. And California courts don’t look kindly on law breaking.

If you need to enforce spousal support in California, here’s how that might look in your situation.

Enforcing Spousal Support: Earnings Assignment

The easiest and fastest way to enforce spousal support in California, is to file an earnings assignment with your county clerk immediately after your divorce is finalized. An earnings assignment—also known as wage garnishment—is a legal document that requires your ex’s employer to pay you spousal support before giving them their take-home pay. This type of enforcement is automatically available to every California divorce.

Filing an Earnings Assignment in California

The only requirement to filing an earnings assignment, is that your divorce is finalized. Once you have your support order from the judge, activate your earnings assignment by completing:

A Findings and Order After Hearing (Form FL-340);
Any of the required attachments; and,
An Earnings Assignment Order for Spousal or Partner Support (Form FL-435).

Upon completion, take the finished forms (and attachments) to your local clerk for signatures. After everything has been processed, you can pick them up and have copies properly served to both your ex and his or her employer. This is done via mail, and must be initiated by someone who is not a party to the case (meaning: you can’t do it yourself). Make sure to have your server fill out two proof of service forms (one for your ex, and one for the employer), as these will also need to be filed with the clerk.

Earnings Assignments Are Not Required

Although convenient and efficient, wage garnishment isn’t actually required. If both parties agree, an earnings assignment can always be “stayed,” or rather: put on hold. Though, it’s important to note, that a stay of earnings can always be reversed, if proper payments are not made on time in the future.

How Long Before an Earnings Assignment Takes Effect?

Once everything has been filed and served, your ex’s employer will have ten days to begin deducting spousal support from the paycheck. If they do not, the employer could be held liable for payments in your ex’s stead.

Enforcing Spousal Support in California: Other Tactics

If your ex falls behind on payments, or you are having trouble with an employer not meeting the terms of a valid earnings assignment, you may need to involved the court again. In these situations, a judge might reinstate an earnings assignment, or possibly hold an employer liable for noncompliance, if applicable. During this process, you will likely need to make an accounting of all missed payments, so that the increased amount can be included in the amount owed.

While it’s possible for you and your attorney to do these things on your own, if you are still having problems, at this point you might also want to consider soliciting outside help.

Local Child Support Agency (LCSA)

One way to get help enforcing spousal support in California, is to open a case with your local child support agency (or LCSA). The LCSA is authorized to help enforce orders of both spousal support and child support, and they can do so at no charge to you.

The biggest benefit to using the LCSA, is the arsenal of enforcement tools they have at their disposal—tools that certainly aren’t available to the average citizen. To enforce spousal support in California, the LCSA can:

Report all late and missed payments to major credit reporting agencies, detrimentally effecting credit scores;
Notify the U.S. State Department, who can place a holds on the passport of any individual owing $2,500 or more in support payments;
Put a lien on your ex’s land or house, so that if the property is sold, profits can’t be collected on the proceeds until support payments are made;
Suspend any state-issued licenses, including any driver’s, business, or professional licensures your ex might have;
Use the Franchise Tax Board to collect money from bank accounts, real property, deposit box cash, or even vehicles owned;
Notify the IRS to take support payments out of tax refunds before they issue anything to your former spouse;
Take the owed support out of unemployment benefits, or workers compensation; and even,
Claim lottery winnings—if your ex happens to be so lucky. (And there’s definitely some satisfying karma in that, we think.)

As you can see, the tactics used by the LCSA are much more motivating than anything you can do on your own, and since they’re available at no cost to you, it might make a lot of sense to just skip the drama, and involve them in your case as soon as possible.

Contempt of Court

In extreme cases, it might be necessary to enforce spousal support by holding your ex in contempt of court. Unlike divorce cases, which are held in civil court, a charge of contempt is a very serious criminal charge, and could result in jail time.

When deciding on contempt, the judge will analyze whether or not the support was withheld on purpose—particularly if your ex was able to pay, but just decided not to. Because while you can’t (technically) get thrown in jail for being in debt, intentionally ignoring a court order can definitely get you there. This is usually a measure of last resort, though, and most judges will attempt to find a reasonable solution before putting anyone behind bars.

Spousal Support Modification

Because there are such serious consequences attached to not paying spousal support, if you are on the paying end and cannot fulfill the court’s order, it’s important you notify them as soon as possible. The court understands that life is unpredictable, and circumstances change. That’s why there are ways to modify a spousal support agreement—ones that don’t involve enraging the Powers at Be for not paying (which, really, is never a good idea).

Communication is the biggest key, here. As soon as you are aware of the change in circumstance, don’t wait. Notify the court, and fill out the necessary forms to initiate a hearing to modify. Amount changes cannot be applied retroactively, so acting fast is critical, as you’ll still be on the line for the original amounts, however long it takes you to get the wheels rolling.

Depending on the reasons for your request, the court may reduce the amount, though they’re unlikely to eliminate altogether.

Attorneys to Enforce Spousal Support in California

For many divorcees, spousal support is a critical means of income in the post-divorce era, and not receiving these funds in full and on time can be extremely stressful and financially crippling.

If you are entitled to receive regular spousal support, and are not getting it, we can help. Call us at (209) 989-4425, or get in touch online to schedule your consultation today. With our assistance, we can make sure you receive the funds you’re entitled to, without the stress and headache of going it alone.

family-law

How to File for Divorce

January 28, 2021
by Briana White

If you’re ready to end your marriage, you’re probably wondering how to file for divorce. The process can be daunting, and with so many different ways to secure a split, it can be tough to know where to start.

Luckily, it’s not a process you have to do alone.

Here’s everything you need to know about how to file for divorce in California, and how the team at Maples Family Law can help you.

How to File for Divorce: The Process

The first think you need to know about filing for divorce in California, is that you live in a no-fault divorce state. This means that—unlike in days gone by—you don’t have to assign blame in order to break up your marriage. Furthermore, neither spouse needs to secure the permission of the other. The only requirement is irreconcilable differences.

This is a massive simplification of a process that used to turn divorce court into a circus of false accusations and perjury. In lieu of these archaic notions, couples can now obtain a divorce without subjecting themselves (or their children) to a needlessly contentious environment, creating a much healthier transition, overall.

So, now that you know fault isn’t a requirement, here are the next steps to take when filing for divorce in California.

1. Talk to an Attorney

For most people, it just makes sense to work with a lawyer. Whether you’ve been married a long time or just a little while, there aren’t very many divorce scenarios where a couple is better off by not hiring personal representation.

This is because divorce law is complicated, and on your own, it’s too easy to make mistakes and give up essential rights. Some of which can be extremely expensive—if not impossible—to reverse.

An experienced attorney can help you avoid these potential pitfalls, and guide you through complex issues like child custody, spousal support, and property division without mishap, making their services well worth added hourly expense.

In general, you should only forgo representation if you have no significant assets or debt, and don’t have children. Even then, it’s still wise to have an attorney review your uncontested divorce agreement before filing.

2. Check Residency Requirements

Whether or not you choose to hire an attorney, you will still need to meet both state and county residency requirements in order to file for divorce.

In California, you must have lived in the state for at least six months. Residents of San Joaquin County will also need to have lived there for at least three.

3. Determine Which Type of Divorce Will Work Best for You

As we mentioned above, there isn’t just one way to divorce. Indeed, contrary to what Hollywood might have you believe, a high stakes court trial isn’t the only want to secure a split. Indeed, not only can you dissolve a marriage outside of court, but it’s almost always preferable to litigation.

Some of these out-of-court methods include:

For those who aren’t quite ready for the permanence of a full-on divorce, California also allows couples to negotiate a legally-binding agreement through legal separation.

The method that’s best for you will depend on a number of individualized factors. Some of these might be whether or not you have children, how amicable your breakup is, the amount of property and debt you have, and whether or not you have a valid prenuptial agreement.

If you aren’t sure, a Maples Family Law attorney can help you determine which might be best for your situation.

4. File the Correct Forms

In order to initiate a divorce, you will need to file a petition for divorce with the court, as well as a property declaration, and paperwork about child custody and visitation.

This is where having an attorney will come in handy. A lawyer will not only make sure you have the correct forms, but also that they are filled out accurately, ensuring your divorce process isn’t held up by faulty paperwork. Your attorney will also file these documents with the county clerk on your behalf, freeing up your mental energy for more important things.

If submitting paperwork on your own, keep in mind that you will be responsible for paying for any filing fees associated with these documents.

Once tendered, the county clerk will give you (or your attorney) copies of all your forms with a stamp that says “Filed.” In addition to whatever your attorney keeps, make sure to always retain copies for your own personal record, as well.

5. Ensure Proper Service

From filing, it’s then time to tell your spouse you’ve started the legal process. Forget texts, phone calls, and snapchat, though, because telling your spouse you’ve just filed for divorce requires a little more formality than a simple Facebook message.

In California, proper service requires someone to deliver physical copies of all divorce paperwork to your spouse, usually in person, face to face (though, there are some limited exceptions). As a party to the case, you cannot be the one to deliver the paperwork, however the qualifications are pretty open, and there’s usually no need to hire a professional process server.

A qualified server must:

Be over eighteen;
Not a party to the case;
Serve paperwork within the proper time frame;
Fill out a proof of service form; and,
Return the proof of service form to you, so that you (or your attorney) can file it with the court.

This step is essential. Without proper service, the court could potentially dismiss your whole case (another point for team “Just Hire an Attorney, Already”).

What Happens After Service

What comes after these five steps really depends how your spouse responds to your petition. For partners who are capable of constructive communication, a few sessions of out-of-court mediation is probably all that’s needed to iron out important issues. In contrast, couples with bad feelings, strongly opposing views, or vast amounts of property or marital debt might not be able to settle without a trial.

No matter what the emotional environment of your divorce is, however, once your petition has been properly filed and served, your spouse will have thirty days to respond. And—we should note—this isn’t really a deadline you want to be messing with.

Failure to Respond

Just like the state of California can’t keep you married if you don’t want to be, neither can your spouse, and failure to respond to properly served divorce paperwork won’t stall out the proceedings. Instead, it will just put your spouse in danger of defaulting.

In a default divorce, the court essentially treats your petition like an uncontested divorce, and proceeds as if your spouse had agreed to all the terms. Which is great, if you’re the petitioner, but not so much if you’re on the other end.

Hence, if you’re thinking about trying to stay married by not responding to service, think again. This tactic won’t work, and it most certainly is not in your best interest.

Temporary Orders

If you are worried about retaliation from your spouse during this thirty-day waiting period, talk to your attorney. If necessary, they can petition the court for a temporary order.

This type of order can be tailored to your situation. It can both prohibit your spouse from committing certain behavior, and set down guidelines to govern things like childcare, bills, and spousal support. Protecting you, your children, and your assets while your divorce is pending.

Do You Need to Talk to a Lawyer About How to File for Divorce?

If you are getting a divorce, give yourself a break, and let an attorney handle the stress of paperwork, processing, and deadlines. Not only can they relieve you of this stress, but an experienced family law attorney can also refer you to a therapist, offer valuable, case-specific legal advice, and much more.

For more questions about how to file for divorce in California, call us at (209) 989-4425 or contact us online, and let the team at Maples Family Law help guide you through this complex transition as smoothly as possible.

Spousal Support

Can Spousal Support be Garnished?

January 26, 2021February 1, 2021
by Briana White

As everyone with children knows, raising kids is a full-time job. Because it requires so much mental and physical energy, it’s not uncommon for one spouse to temporarily set aside career aspirations, and devote all his or her available attention to homemaking tasks. While this can be a great solution for some families, the downside is that the employability of the homemaker invariably suffers.

To make up for these career sacrifices, California courts will often include a provision for spousal support in divorce orders. This money is meant to compensate a homemaker for their considerable, non-monetary contributions to the family, and aid them in getting back into the workforce. And, since it’s an official court order, refusing to pay spousal support could put you in dire straits.

In California, spousal support can be garnished from wages. When this happens, your employer would be legally required to make payments before giving you your take home pay. Here’s a little bit more about how spousal support is garnished, some of the other consequences of not paying alimony, and why it’s really not a good idea to default on these payments.

Determining Spousal Support in California

To start off, spousal support, or “alimony,” is by no means a foregone conclusion in divorce. In determining whether or not these funds are needed, California courts will review a number of different factors, some of which are:

The standard of living in the marriage;
Marketable skills of both spouses;
How much the homemaker’s income has been impaired by unemployment;
If the homemaker helped contribute to the career spouse’s education (and by how much);
The homemaker’s ability to get employment without hurting the interests of dependent children;
Obligations and assets of both parties (including separate property); and
How long the marriage lasted.

Since these situational factors differ from couple to couple, so does the need and amount of spousal support in each situation. A homemaker who is independently wealthy, for example, probably doesn’t need help getting back into the workforce—even if they took a significant amount of time off work. In contrast, a parent who has spent the entirety of the marriage helping his or her spouse build a career (at their own expense), would have a much greater need for spousal support upon divorce.

Duration of Spousal Support

In California, a good rule of thumb is to assume spousal support will last half the duration of a marriage under ten years. So, if you were married eight years, you’ll probably be required to pay support for about four. If the marriage continued for six, then three years is a good estimate.

For couples that endured longer than ten years, things become more unpredictable, and in these cases, it’s common for judges to order spousal support for an indeterminable amount of time. When this happens, the paying spouse would have the burden of proof to eventually show that funds were no longer needed. In general, however, “lifetime” support is quite rare, and payments usually only last as long as it takes for the homemaker to become self-sufficient.

Collecting Spousal Support: Easement of Assignment

Not only can spousal support be garnished from wages, but it’s actually standard procedure to do so. This is because in California, every order of spousal support comes pre-packaged with an Easement of Assignment, eliminating much of the collection hassle.

An Easement of Assignment—a fancy way of saying “wage garnishment”—is a legal document requiring a person’s employer to pay a certain amount of money to someone else, before giving them their take home pay. To activate your Easement of Assignment, simply fill out the necessary forms (including attachments), and turn them into the county clerk for signatures. Once the documents are returned, you can then serve them to your ex’s employer, who will then have ten days to begin taking out the necessary funds.

This process might sound invasive, however, it’s actually quite efficient. By doing so, California courts not only decrease payor default, but also ensure that funds are available to the supported spouse regularly and on time—a win-win for both sides.

Easement of Assignment Not Required

While convenient, California does not require spousal support to be garnished from wages. So long as neither party is on public assistance, payors can request that their Easement of Assignment be put on hold, until (if ever) it’s needed. This hold can always be reversed if necessary, so payors shouldn’t view this as a way to negate spousal support obligations.

Help from Local Child Support Agency (LCSA)

Unfortunately, collecting spousal support isn’t always as easy as filing an Easement of Assignment—especially if your ex doesn’t have full-time employment. While it’s always possible to recover funds on your own, the time, expense, and headache might not be worth the effort, especially when someone else can do it for you.

In California, the Local Child Support Agency (LCSA) can help you recoup unpaid or delinquent support payments. Their services are available for both spousal support and child support at no charge to you, and aside from being free, the benefit of using the LCSA, is that they have many resource at their disposal that aren’t available to you.

To secure payments, some of the things the LCSA may do, are:

Report missed payments to credit reporting agencies;
Deny your ex a passport renewal;
Place a lien against their property;
Suspend their state-issued driver’s license;
Intercept tax refunds to deduct payment;
Use the Financial Institution Data Match to find assets, and retrieve money from what’s available;
Subtract funds from disability and/or unemployment benefits; and, even,
Claim lottery winnings—if your ex happens to be lucky enough to get the winning ticket.

Since their services do not cost you anything, it makes a lot of sense to use the LCSA, rather than trying to get your ex to cough up the cash on your own.

Penalties for Failure to Pay Spousal Support

The consequences for not paying spousal support go beyond garnished wages. As you can see, not making these payments could affect credit scores, mess with bank accounts, keep you from traveling, detrimentally affect tax filings, and—in some cases—could even hold you in contempt of court.

Being held in contempt is a criminal offence. Under these charges, if someone can prove that you withheld spousal support funds intentionally, you could be slapped with jail time.

If You Can’t Pay, Notify the Court Immediately

Of course, life is unpredictable, and things can happen that make it difficult or impossible to make payments. The court understands these situations arise, and when they do, it’s important to notify them as soon as possible. Sometimes couples can come together and figure out an alternative payment schedule on their own. If not, however, you may still be able to file a motion to modify with the court.

One thing is clear, though, with so many negative consequences for withholding spousal support, there’s never a good reason to ignore payments.

California Spousal Support Attorneys

If you are struggling to collect spousal support from your ex, or, if you don’t agree with an order of spousal support, we can help. Call us at (209) 989-4425, or get in touch online to schedule your consultation, and together, we can explore options that will address your individual needs, without detrimentally effecting your own interests.

Divorce

What is Divorce Mediation?

July 24, 2017January 17, 2019
by Angie

If you’re like many people, you’ve heard of divorce mediation—but what is it, and would it be the right choice for you and your spouse?

What is Divorce Mediation?

Divorce mediation is a way for you and your spouse to come together and decide the outcome of your divorce. It includes hiring a mediator—a neutral third party to your case—whose only interest is helping you two find common ground.

The mediator will meet with you and your spouse to help you resolve issues you’ve been unable to resolve on your own. He or she won’t make the decisions for you (unlike the judge, who will make decisions for you if you can’t reach an agreement). Instead, your mediator will help you and your spouse determine the best possible outcome.

Why Some People Choose Mediation

When two spouses cannot agree on an issue—say, child custody—the judge will make a decision for them.

While judges do their best to be as fair and impartial as possible, the fact is that no judge knows your family the way that you and your spouse do. Your judge doesn’t know the special circumstances you have or whether you and your spouse are willing to compromise in some areas.

Unfortunately, when the judge decides an important issue like custody, one or both parties is likely to come away feeling as if they lost the fight.

However, people who participate in mediation work together to come up with a solution that’s best for the whole family—and studies have shown that mediation allows those people to come away feeling as if they (and, more importantly, their children) have won instead.

The Bottom Line on Mediation

Many people choose mediation because they really don’t want the judge to make important decisions for them, but at the same time, they’re unable to agree with each other.

Mediation is also less expensive than a court trial or a series of hearings is, and for the most part, most mediations end in a successful divorce where both parties are reasonably satisfied with the outcome.

How Does Divorce Mediation Work?

Mediation is confidential, and it relies on your (and your spouse’s) ideas to come up with resolutions to the issues you’re experiencing. Your lawyer will still be there to guide you and protect your rights, though, and you and your spouse are in complete control of the process.

Every mediator has his or her own approach, but generally, mediations follow similar processes. Your mediator will get background information from you and your spouse, and then you’ll both attend a meeting with the mediator. He or she will explain the “rules of the road” and tell you what you can expect from the process. You may also be asked to sign a form that says you promise to keep what’s said to yourself—and that you understand that the mediator won’t disclose the private details of your meetings in court later.

Do You Have to See Your Spouse for Mediation?

Sometimes you and your spouse will be negotiating across a table; sometimes the mediator will go back and forth between separate rooms to help you negotiate. You can always tell your mediator whether you’re comfortable being in the same room with your spouse (or if you’re not); the point is that your mediator wants to help you find common ground, and he or she will use the appropriate tactics to get you there.

Can Your Lawyer Go to Mediation With You?

If you want your Stockton divorce attorney to attend a mediation with you, talk to your mediator (and your lawyer). In many cases, these meetings don’t involve lawyers—but typically, they can if you feel it’s necessary.

Do You Need to Talk to a Divorce Lawyer in Stockton?

We welcome the opportunity to answer your questions about mediation and divorce-related issues such as custody, child support, spousal support, and the divorce process.

Call us at 209-910-9865 for a divorce case evaluation. You’ll talk to an experienced Stockton divorce lawyer who can give you the advice you need to begin moving forward.

Divorce

Let’s Talk About Spousal Support in Stockton, CA

June 19, 2017August 13, 2020
by Angie

When you’re divorcing your spouse, you have the right to ask for spousal support. While every case is different, and there’s no way to predict how a judge will rule in an individual case, chances are good that if you need spousal support, the state of California will award it to you.

What is Spousal Support?

Commonly called alimony, spousal support is a set amount of money that the courts order one spouse or partner to pay the other. (It’s called spousal support for married couples; couples who aren’t married have partner support.)

How Do You Get Spousal Support in California?

In order for a legally binding spousal support order to be put in place, you must be in the process of divorce, legal separation, or annulment.

Temporary and Permanent Support Orders

You can ask the court to order your spouse to provide support during your divorce, legal separation, or annulment process. When that happens, it’s called a temporary order.

When the court orders spousal support when your case is final, it’s considered a permanent order.

How Does the Judge Decide How Much Spousal Support to Order?

When a judge decides how much spousal support to order, he or she will look at the amount you’re requesting and weigh it against several factors outlined in California’s Family Code. The factors a judge must look at include:

Each spouse’s earning capacity
Each spouse’s marketable skills, whether there’s a job market for those skills, and what it would take for that person to acquire the education or training to develop those skills
How each spouse’s earning capacity has been impacted by periods of unemployment during the marriage
How much each spouse contributed to the other’s education, training, career, or licensure
Whether the other spouse has the ability to pay spousal support
The needs of each party based on the standard of living you established during your marriage
The obligations and assets (including each party’s separate property) of each party
How long you were married
Whether the supported party—the person asking for alimony—can get a job without “unduly interfering” with the kids’ best interests
Each spouse’s age and health
Whether there is a history of domestic violence between the parties
The tax consequences of alimony (for both parties)
The “balance of hardships” to each party

The court generally assumes that the supported party should be self-supporting in the future, within a reasonable period of time. Typically, a “reasonable period of time” is a time period equal to half the duration of the marriage (if you were married for 20 years, then, the court could consider 10 years to be a reasonable period of time). Even with that in mind, though, the judge can order spousal support for any period of time based on the other factors he or she has to consider. The support order can last longer—or can terminate sooner—than what you’d expect.

Do You Need to Talk to a Stockton Divorce Lawyer About Spousal Support?

If you need to talk to a Stockton divorce attorney about spousal support, whether you’ll have to pay it or you’ll most likely be on the receiving end, we can help.

Call us at 209-910-9865 for a divorce consultation with an experienced attorney. We’ll evaluate your situation, answer your questions, and begin developing a strategy that gets you the best possible outcome right away.