Changing Jobs When There is a Support Order

New-Job-support-orders.jpgIf you're a big fan of the "Simpson's" you may have heard that Harry Shearer, the voice of several of the shows iconic characters, is leaving the show. When a big star makes a movie or a star leaves a television show it usually makes the news, but people retire, change jobs, or are laid off on a daily basis. What do you do if you are involved in a Family Law proceeding and your income changes?

A change in your career can have far reaching effects on many aspects of your Family Law case, but it most immediately applicable to both child and spousal support orders. If there is a current order in place, it should tell you the protocol for informing your spouse of a change in your financial circumstances, but just informing your spouse may not protect you if your ability to pay your support award is compromised. Conversely, if you are receiving support and your ex-spouses income increases you may not be entitled to the increase solely because you are informed of the change.

Even when a change in income occurs, the court can usually only enforce the current order it has on file. Therefore, whether you need to reap the benefit of increased income or reduce the burden of an order you can no longer afford, you need to file the request with the court to modify your support to match your current financial circumstances. The court will then make a ruling in keeping with you and your ex spouse's current financial situation.

Of course financial issues always become complex if one party is self-employed and/or owns a business, and it may require a more in depth analysis. The Law Offices of Nancy J. Bickford is experienced in representing clients in all aspects of any financial issues that come before the Family Court and we are experienced in dealing with the complexity of self-employed parties and business owners.

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Pets are People Too, Right?

pets-divorce-custody.jpgPets are members of our families, and we would be horrified if something happened to them. For example Johnny Depp's dogs face being euthanized when he flew them to Australia without permission. Most of us will not face this type of situation with our pets, but what happens to your furriest family members during a divorce proceeding?

California law is surprising silent when it comes to your pets considering how important they are to our lives. Generally, the law still considers pets something that you own and treats them as property. This means custody would be decided in a civil court, not the family court.

However, it is not unheard of for your pet to be involved in your family law matter. For example, Family Code section 6320 allows you to include your pet in a Domestic Violence Restraining Order. If you have taken care of your pet since before you were married they will likely stay under your care post separation, but if you became pet parents together it can be more complicated. For some families it may make sense for the family pet to say with the parties' children due to the bonds that develop between children and pets, but every case is different.

The court will likely sign any agreement regarding pets reached by two pet parents. However, heavily litigating these issues is not advised. In order to resolve any possible disagreements over a pet, people should put their wishes in writing via a pre-nuptial agreement or a post-nuptial agreement to avoid heartache later on.

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One Day Divorce, One Year Later

one-day-divorce-2.jpgAsk most family law litigants in San Diego County their opinion on the speed with which their divorce case progresses through the Family Court, and I promise you the results will not be positive. There are many different reasons divorce cases take so long to complete. Some are related to the parties or their case such as complex asset division, highly contested custody issues, or difficult litigants. Other issues the parties have no control over such as decreased court budgets resulting in less staff and an increased case load due to an increase in family law filings.

Recently the Connecticut House of Representative granted final legislative approval to a bill that would not only make the divorce process quicker but cheaper as well. To be eligible for the program, neither of the parties can be receiving Medicaid benefits or own any real estate. Neither part can have a defined benefit retirement plan (also called a pension), since dividing these plans complicates cases. It does not mention whether the parties can have a 401(k) plan (the most popular retirement plan offered by employers) and still qualify for the program. Finally, neither party can have a restraining order issued against them.

The goal of the new legislation is for divorces to be granted more quickly, leaving judges with more time to address contentious cases. This would help clear the calendars in the family courts and hopefully speed things up for the other litigants.

This is the same goal the One Day Divorce program in San Diego had when it launched in March 2014. We blogged about the program last year and explained the process. I encourage you to take a look at the blog if you have not read it already.

So, how is the One Day Divorce program doing a year later? Not surprisingly, it has been big success...and a popular one at that. The program has not released any data, but what I can tell you is I have heard great things about the program, and every time I walk by the One Day Divorce office it's busy processing about five cases a day.

For more information about the One Day Divorce program, visit the San Diego Court website. From here you can complete a simple questionnaire to see if you qualify for the program.

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The End of the Nuclear Family and the Rise of the Single Parent

single-parent.JPGThe iconic image of the American Family has changed according the Pew Research Center. Today, less than half (46%) of U.S. children under the age of 18 reside with two married heterosexual parents in their first marriage. In fact, 34% of U.S. children are being raised by a single parent.

Whether you are participating in a conscious uncoupling like Gwyneth Paltrow and Chris Martinor you are a single parent raising a child, the challenges and joys of raising children on your own are enormous and the issues involving custody disputes can seem complex. Are the California Family Law courts keeping pace with our new culture?

The answer is yes. California is at the forefront of ensuring that no matter what your personal situation, you are dealt with fairly and respectfully. The law does not distinguish between previously married and unmarried parents in custody cases. That makes the Family Court a vital resource in protecting your rights as a single parent, whether you are seeking a custody order you require child support. If you are not married to the other parent, a Judgment of Paternity is an important first step. However, navigating the Family Court system in California can be daunting, especially when you are trying to put your side of the story before the court. The Law Offices of Nancy J. Bickford is experienced in representing clients in their paternity and custody disputes in the Family Court and we are experienced in dealing with the complexity of the modern family dynamic.

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Mental Health and Your Custody Dispute

mental-health-child-custody.jpgIssues revolving mental health and welfare are often stigmatized in our society. Whether someone is suffering from a short term situational depression, or suffers from depression and bipolar disorder, they oftentimes suffer in silence; afraid of how others will perceive them. This week Kim Kardashian participated in a Google hangout, wherein she discussed her passion for mental health issues and the documentary she produced called #redflag. Her documentary is about mental health in the age of social media.

If you or your ex-spouse is suffering from an issue involving mental health, seeking treatment is always the best course of action. However, how do issues of mental health affect your child custody dispute?

The California Constitution provides a broad right to medical privacy; this is generally referred to as doctor-patient privilege, but it also covers psychotherapists, which is a broad category that encompasses Marriage and Family Therapists. Usually your records remain private. However, in child custody cases in California this right is not absolute. The court may decide to review your medical records to help determine what is in your child's best interests. This requires the side seeking to access the records show that issues involving mental health will affect your child.

However, the court is aware that just suffering from a mental health issue does not preclude you from having a loving and happy relationship with your child. So as long as you are receiving treatment and taking care of yourself the court will support your relationship with your child.

If you feel that issues of mental health and medical privacy are being raised in your case, The Law Offices of Nancy J. Bickford is experienced in dealing with the privacy protections at issue in custody cases to ensure your privacy is respected.

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Step-Parent Adoptions

step-parent-adoption.jpgBlended families, a family consisting of a couple and their children from their current and all previous relationships, are a regular part of American life. That is why the following statistics should not be surprising:
• 48% of all first marriage will eventually end in divorce;
• 79% of women and 89% of men will marry again within 5 years;
• 43% of marriages today in America involve a 2nd or 3rd (re)marriage;
• 68% of re-marriages involve children from prior marriages;
• 2,100 new blended families are formed every day in America;
• Over 65% of Americans are now a step-parent, a step-child, a step-sibling, a step-grandparent or touched directly by a step-family scenario

In many cases, the children will grow very close to a step-parent and in cases where one of the biological parent's is absent from that child's life, the step-parent may consider adopting their step-child.

In a step-parent adoption, one biological parent retains full parental rights and the other biological parent's rights are terminated. The parental rights are then passed to the adopting step-parent; meaning the biological parent no longer has any rights or responsibilities owed to the child and the step-parent has all the rights and responsibilities originally held by the biological parent.

step-parent-adoption-heart.jpgIt is important to give due consideration to a decision to adopt a step-child, because step-parent adoption is a permanent transfer of parental rights and responsibilities. Once a step-parent adoption is finalized, it cannot be revoked or nullified, except in very rare situations. More importantly, the adoption is not terminated if the step-parent and biological parent divorce.

A step-parent must meet certain criteria in order to proceed with a step-parent adoption, specifically:
1. The biological parent and the step-parent must be legally married or in a registered domestic partnership;
2. The step-parent must be at least 18 years old and at least 10 years older than the step-child they are seeking to adopt - though in certain circumstances the 10 year rule may be waived;
3. The step-parent's spouse must consent to the adoption;
4. The other biological parent (i.e. the biological parent whose parental right will be terminated by the adoption), must consent to the adoption - this requirement can be overcome, as I will discuss below, in certain circumstances; and
5. If the step-child is 12 years old or older, the step-child must consent to the adoption.

Family Code Section 8604(b) describes how you can overcome the other parent's lack of consent to the adoption of the child by a step-parent. Specifically, "If one birth parent has been awarded custody by judicial order, or has custody by agreement of both parents, and the other birth parent for a period of one year willfully fails to communicate with, and to pay for, the care, support, and education of the child when able to do so, then the birth parent having sole custody may consent to the adoption, but only after the birth parent not having custody has been served with a copy of a citation in the manner provided by law for the service of a summons in a civil action that requires the birth parent not having custody to appear at the time and place set for the appearance in court..."

Family Code Section 8604(c), states:

"Failure of a birth parent to pay for the care, support, and education of the child for the period of one year or failure of a birth parent to communicate with the child for the period of one year is prima facie evidence that the failure was willful and without lawful excuse. If the birth parent or parents have made only token efforts to support or communicate with the child, the court may disregard those token efforts."

If you are considering a step-parent adoption, or if you were served with papers notifying you that your child's step-parent has filed an Adoption Request, it is important that you discuss your rights with an experienced family law attorney.

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"Infinity": What do you do when you Ex has nothing nice to say?

divorce-bad-mouthing-spouse.jpgDivorce can be a stressful time and while The Law Offices of Nancy J. Bickford, APC endeavors to ensure our cases are resolved amicably, sometimes emotions can run wild and your ex-spouse can lash out at you. For Example Mariah Carey's new single "Infinity" appears to bad mouth her ex Nick Cannon. While most of us do not have the national exposure of Mariah Carey, we all have broad networks of friends and colleges that we often share with a spouse. So what can you do when your ex-spouse starts badmouthing you to others, especially to your children?

Your ex-spouse disparaging you to others is a tricky situation that can affect your family law case, but it all depends on who is within earshot. You or your ex-spouse venting privately to friends and colleagues can be a normal aspect of any divorce case; we are all only human after all and it is usually benign. Even if these statements get back to you, there is little that can be done unless you feel threatened or unduly harassed and require a domestic violence restraining order. The disparaging language can become much more serious when your ex-spouse continually disparages you to your child directly or by using a third party and it can become a very serious issue in child custody disputes. Another phrase for this is type of behavior is parental alienation; when one parent tries through various means to hinder the relationship between a parent and child.

So how do you know if your ex spouse's behavior rises to the level requiring you to take action? As a parent you'll notice if your child's behavior has changed towards you, beyond the normal stresses of his or her parent's splitting up. You may notice your child acting out toward you and/or blaming you for the divorce or custody proceeding. They may be withdrawing and not wanting to spend time with you.

divorce-co-parenting.jpgWhile your ex-spouse may be acting purposefully, they also may be having trouble dealing with their own emotions regarding the divorce. There are several common ways one parent can disparage the other. First, the parent can speak badly about the other parent directly to their child. This can include saying that the other parent is the cause of the divorce, that the other parent does not love the child, that the other parent chose a new romantic partner over the child, or other inappropriate comments. Second, one parent can utilize third parties, such as siblings or grandparents, to speak ill of the other parent. Third, involving the child in a family law proceeding, this can include either allowing the child access to court paperwork, or distorting the family law proceedings to make the other parent look like the bad actor.

You may wonder why the court frowns on this behavior? There are multiple reasons but the main one is that it can affect the child's relationship with their parents. During any custody dispute, the court is always going to try to make decisions based upon what the judge determines is your child's best interest. One fact they will consider is the ability for your child to have meaningful and continual contact with both parents and whether both parents have the ability to co-parent with one another. In the case of Mariah Carey and Nick Cannon, the entire world is privy to her thoughts on Nick, but the most important people in the eyes of the court would likely be their children, Monroe and Moroccan Scott Cannon. The court does not approve of one parent making negative comments to the children about the other parent. If your ex-spouse's behavior is hurting your relationship with your child the court has multiple ways it can intervene to try and help from ordering reunification therapy, to ordering the appointment of minor's counsel.

If you feel that your relationship with your child is being damaged by your ex-spouse, the Law Offices of Nancy J. Bickford is experienced in dealing with complex, emotionally charged child custody cases and has the tools you need to ensure you are able to maintain a good relationship with your children.

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Medical Marijuana and Child Custody in California

california-medical-marijuana.jpgCalifornia has always been at the forefront of progressive social change. In 1996, California became the first state to establish a medical marijuana program, allowing residents to grow and possess marijuana for personal use, so long as they had a prescription from a licensed physician ("Compassionate Use Act"). Several states followed, and in 2012, Colorado legalized marijuana for recreational use by adults over the age of 21. Though possession and use of marijuana has been legalized in several states, it remains a Schedule 1 drug (e.g. heroin, cocaine, methamphetamines) under federal law, so the line between state and federal law is very grey. So is the line between medical marijuana users and parents in California Courts.

That begs the questions, "How does the use of medical marijuana affect my child custody case?"

Whether you are the parent with a medical marijuana prescription or the other parent has the prescription, the analysis will depend on the facts and circumstances of your case. There is no hard and fast rule for the use of medical marijuana by parents involved in a custody dispute.

By way of history, the Compassionate Use Act of 1996 allows "seriously ill Californians" the right to use marijuana under certain circumstances. The right to use medical marijuana, however, is limited just as any other right, so as not to cause harm or injury to another.

This principle applies equally to parents and minors. For example, it is legal for adults to consume alcohol and to have alcohol present in their home. However, the government may lawfully remove children from their legal guardians, should a court determine that the children have been unduly exposed to alcohol abuse or a threat or injury as a result of neglect reckless conduct.

california-marijuana-child-custody.jpgThe same principle goes for the use of medical marijuana. If the Court determines that a parent's use of medical marijuana affects their ability to care for the children or put the children in harm's way, the court could take the children away from that parent. From a family law perspective, that could include reducing or suspending a parent's visitation with their child.

From a criminal law perspective this could lead to child neglect or endangerment charges being filed. Child Protective Services could become involved and your children could be taken even if you are not the parent using marijuana or the use of marijuana is legal under the Compassionate Use Act.

Another consideration will be the Judge your case is assigned to. Some Judges take a very strict approach to the use of any drug when caring for children; whether that is marijuana or alcohol. The fact that a parent has a valid prescription will not make a difference to many Judges. Other Judges take a more relaxed stance on the use of medical marijuana. That is why it is important to discuss your case with an experienced family law attorney so you can understand how the particular facts of your case may be viewed by your Judge.

If you are concerned that the other parent's use of medical marijuana is impacting their parenting ability it is important for you to take steps to protect your children. Any acquiescence to the other parent's use of marijuana while caring for the children could be considered your approval. That is why it is important to seek the advice of an experienced family law attorney to discuss your rights.

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Discovery in Family Law Cases

discovery-family-law-divorce.jpgOnce initial papers are filed to get the divorce process started (the petition and response) the next step is typically to gather all pertinent information regarding each spouse's financial and personal information. Although both parties are required to prepare and serve declarations of disclosure, which outline each party's income, expenses, assets and debts, discovery is usually a necessary tactic to gather additional information.

Discovery is vital to the divorce process because it allows both sides to examine exchanged information and documentation before determining how to properly divide up assets and debts. Revelations made during the discovery process are also helpful in calculating the appropriate amount of child support and spousal support.

Discovery can occur informally, formally or both. Informal discovery is when the parties and their attorneys simply request specific information or documentation in an email or letter to the opposing party/opposing counsel. Informal discovery indicates that the parties are willing to work together, but simply need more information to move forward in the case.

Formal discovery, on the other hand, typically indicates that the party is more litigious because formal discovery requires that opposing party and opposing counsel follow rigid procedures and timelines in responding to the discovery requests.

Discovery, whether formal or informal, may include some or all of the following: Interrogatories, Requests for Admission, Document Production and depositions.

  • Interrogatories are written questions from one spouse to the other that must be answered under penalty of perjury. The interrogatories may relate to any issue that is relevant to the divorce proceeding, such as employment information, details regarding financial accounts and information regarding the party's health or living situation.
  • Requests for Admission, although not often utilized in family law, can be helpful when you need a party to admit or deny specific facts regarding divorce related issues.
  • Demand for Production of Documents are particularly helpful when the so called "out-spouse" does not have access to financial statements, documentation relating to a spouse's business, tax documents, etc. It also is a way to get important information that a spouse may be trying to hide.
  • Depositions are when an attorney asks the opposing party (or expert, witness, etc.) a handful of questions during a face-to-face interview. Responses are required to made under oath. A court reporter will draft a transcript of everything that is said during the deposition. Depositions are helpful to get important facts out of the other party and also to see how that person will appear and conduct themselves at trial.

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Permissive Dismissal for Failure to Prosecute

failure-prosecute-wheel.JPGAnyone with access to cable television or the internet probably knows more about the Kardashian family than they know about their own family. The Kardashian clan has broadcast their ups, their downs, weddings, births, break ups and in Khloe Kardashian's case, her divorce from former NBA star, Lamar Odom. More than 16 months ago, Khloe Kardashian filed for divorce from Lamar Odom amidst allegations of infidelity and drug abuse by the former Los Angeles Laker. And while Khloe appears to have moved on, given her highly publicized romance with French Montana, her divorce case is still pending in Los Angeles Superior Court; at least for now that is.

According to reports, if Khloe does not take further action to pursue her case, the Court will consider dismissing the case all together. Pursuant to California Code of Civil Procedure Section 583.410, "The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case."

Failure to prosecute in the family law arena would consist of one of three time frames. They are:
1. Failure to serve the summons and complaint within 2 years after the action is commenced against the Respondent [Code of Civil Procedure § 583.420(a)(1)];
2. Failure to bring the case to trial within 3 years after the action is commenced against the Respondent [Code of Civil Procedure § 583.420(a)(2)]; and
3. Failure to bring to retrial within 2 years after a mistrial, order granting retrial or reversal on appeal [Code of Civil Procedure § 583.420(a)(3)].

The exception to this rule is when there is a valid support order or custody orders pending. In that case, the court cannot dismiss a divorce case for failure to prosecute. One way to avoid having your case dismissed under Section 583.410 is to bifurcate the issue of marital status and ask the court to terminate your marriage. This means that you are divorced from the other party, but the court must still resolve the financial issues in your case. In this case, the court will not dismiss your case under Section 583.410

failure-prosecute-calendar.jpgIf your case is dismissed under Section 583.410, it will be as if you never filed for divorce in the first place. The six-month waiting period will start over again; you will have to file a new Petition for Dissolution, including paying the filing fee; and will have to perform all of the mandatory disclosure required by statute.

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Decoding Divorce Acronyms

acronym-decoder-divorce.jpgGoing through the divorce process can be confusing, emotional, and overwhelming to say the least. Then you add a bunch of legal jargon to all of that and things tend to either go over your head or in one ear and out the other. If you want to keep up with your divorce case it might be helpful to learn a handful of divorce acronyms. Below are some commonly used acronyms that attorneys and other legal professionals in the San Diego County tend to use on a daily basis:

FRC: Family Resolution Conference.
Once your case is filed you will get notice of the first Family Resolution Conference scheduled at court. Typically your attorney can simply appear on your behalf, either in person or by telephone, and your presence at the hearing will likely not be necessary. The purpose of the FRC is to give the court an update as to the progress of the case and schedule any necessary pre-trial or trial hearings.

DVTRO: Domestic Violence Temporary Restraining Order.
A DVTRO is the type of court order that your attorney will initially try to get you when there has been a pattern of behavior which involves violence or abuse by one person in a domestic context against another. The DVTRO is the first step to getting a permanent restraining order.

MSC: Mandatory Settlement Conference.
In an MSC, a judge or volunteer attorney will assist the parties in attempting to settle their case, but without making any decisions or orders in the case. MSC are typically held close to the date a case is set for trial, as one last effort to settle the case.

PDOD/FDOD: Preliminary Declarations of Disclosure; Final Declarations of Disclosure.
The family Code mandates the exchange of disclosure documents. PDODs/FDODs include and IED, SAD, tax returns and Declaration regarding service of DODs.

IED: Income and Expense Declaration, also referred to as Form FL-150.
This is part of the Preliminary and Final Declarations of Disclosure. The completed form will set forth the respective party's information regarding his/her employment, monthly income, average monthly expenses, etc.

SAD or SAOD: Schedule of Assets and Debts, also referred to as Form FL-142.
This is part of the Preliminary and Final Declarations of Disclosure. The completed form will set forth all known community and separate assets and debts. This includes assets even if they are in the possession of another person, including your spouse.

MSA: Marital Settlement Agreement.
At the end of a divorce proceeding, once all of the issues have either been settled or resolved in Court, one side will draft a Marital Settlement Agreement setting forth all of the provisions that relate to each issue of the case. The MSA will be incorporated as part of the Judgment packet that is filed with the Court.

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Apparently it is Better to Give Than to Receive

sterling-stiviano.jpgThe Donald Sterling and V. Stiviano saga just won't go away. In a Statement of Tentative Decision released by Los Angeles Superior Court Judge Richard Furin, he ordered Stiviano to return the community property "gifts" she received from Donald Sterling.

According to the decision, which Stiviano is expected to appeal, she must return approximately $2.6 million dollars in cash, cars, and real estate she received from Mr. Sterling. Back before Stiviano leaked the secret recording of Donald Sterling making racist remarks, which ultimately resulted in him being forced to sell the Clippers, Shelley Sterling filed suit against Stiviano for return of these "gifts." Her reason...simple; the gifts Donald made to Stiviano were not his to make. They belonged to the Sterling community, and he had no right to make the gifts.

Shelly Sterling focused her action against Stiviano using Family Law statutes of joint management and control as well as the prohibition against giving gifts to third parties without the written consent of the other spouse. [Family Code Section 1100]. This is a common argument made by one spouse against the other during a divorce action; however I have never seen it made against the third party seeking return of the gift. In the typical case, the spouse who made the unauthorized gift is charged with the value of the gift in the division of the community estate. In this case, Shelly Sterling filed a separate civil complaint against Stiviano seeking return of the gifts on equitable grounds. In either case, the party seeking return of the gifts from a third party or to charge the other spouse with the gift, must prove the amount of the gift, when it was given, and that the other side did not authorize the gift to me made.

Sterling-stiviano-gifts.jpgThe Court found that Shelly Sterling met her burden and ordered Stiviano to return the gifts. [It's important to note, many of the gifts were for cash or cars which Stiviano has either spent or sold, so she will have to come up with the cash to satisfy the Judgment.] As for the house...well that has been transferred to the Sterling Family Trust who is now the legal owner.

This was a unique approach taken by the court; that is ordering the gifts, or their cash equivalent, to be returned by the mistress and not charged to the cheating spouse. The reason is simple; the Sterlings are not divorcing each other and were married during the time period the gifts were made. One important factor, which I will not discuss in this blog, is the Court made a finding that Donald and Shelly were not separated at the time these gifts were made. That was a big part of the Court's ruling. I will be very interested in the opinion of the Court of Appeals on the very novel ruling by Judge Furin.

What does that mean to you as a family law litigant...it means you have another party to seek relief from if you learn your spouse has been lavishing gifts on a third party during a period you were married. This is, at least for now. We will have to see what the Appellate Court has to say if/when Stiviano appeals the Judge's ruling.

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You May Not "Like" This Facebook Message

divorce-process-facebook.jpgSocial media giant Facebook is used by more than a billion people worldwide (1.35 billion to be more accurate), so it will come as no surprise that Facebook has been involved in many family law cases in recent years. Whether it is evidence of infidelity, excessive spending, or to expose the other parties lies, Facebook posts and photos are routinely offered as evidence in Family Courts.

However, in a first for Facebook, a New York judge allowed a woman to serve her divorce papers via Facebook as an attachment. Apparently, the woman's husband had no physical address and was refusing to accept service of the divorce papers. After the Judge confirmed that the Husband's Facebook account was legitimate and belonged to him, the Judge entered an order allowing her attorney to serve the divorce paperwork via Facebook. The documents had to be attached to a private message. The message had to be sent once a week for 3 consecutive weeks. At the end of the three weeks, the service was deemed accomplished and the case could proceed in the normal course. Whether a California court will allow a party to serve a divorce petition via Facebook is unknown, but that is only because no one has asked a court to allow them to do so. I think under the same circumstances, a California Court would, at the very least, give the idea of service via Facebook due consideration.

divorce-process-service.jpgIn California, and most states, service of process is all about making sure the other side has notice to the other party. This ensures the other party to the case has an opportunity to have their day in court and tell their side of the story. It is all about fairness.
In California, a Petition for Dissolution of Marriage must be served personally on the other party. Pursuant California Code of Civil Procedure § 414.10, service "may be made by any person not a party to the proceeding who is at least 18 years of age." What that means is you cannot be the person to perform the service. Most people ask a friend or family member to serve the papers. You can also hire a process server, but that means you have to pay them; usually around $100. In most cases, the other party knows the divorce has been started and is expecting to be served. Even when it is a surprise to the other party, most people do not actively evade service, especially when the service is performed at their home or job.

In some cases, you may not know where the other person lives, or as in the Facebook case, they have no address and you do not know how to locate them. In California, you can ask the Court's permission to serve the papers by publication or posting. Service by publication is used when you do not know where the other party lives, but you believe they live in a general area. When you serve via publication, you publish the Summons in a newspaper of general circulation in the area where the other party is likely to be. You will have to pay the newspaper a fee to publish the papers, and it will have to be published for 4 weeks in a row, at least once a week. In San Diego, you do not have to publish the papers in the Union Tribune, which could be very expensive. You can use smaller publications that are dedicated to this type of work and can publish a Summons for around $80 for all four weeks.

Another option is service by posting. This is an option only if you cannot afford to serve via publication. You will have to prove to the court that you cannot afford the publication costs. In this case the Summons is posted in a designated courthouse at a designated place by the court clerk. At the end of being posted for 28 days, the service is deemed complete.

In order to be allowed to use service by publication or service by posting, you will have to obtain the court's approval first. In order to be granted approval, you will have to show you have exhausted all other options to locate and serve the other party. As I said before, the reason the court requires personal service is to ensure notice and fairness. So make sure you keep a record of everything you did to locate and serve the other party before you ask for an alternative means of service.

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Can illegally obtained computer evidence be used as evidence at hearing or trial?

beach-wooden-posts.jpgDivorce is an emotional time whether or not the split is amicable. These emotions can cause people to make choices they would otherwise never make, such a looking through their former spouses computer or cell phone. Whether the clandestine act is out of sheer curiosity or for a specific purpose, a great deal of information can be learned about a person by looking through their cell phone or computer. This may include bank statements for accounts that were previously unknown, emails, dating profiles, messages to friends about the marriage or a possible affair.

In more extreme cases, one party may put tracking software on the other party's computer, such as key logger software, to track every move the other party makes on their computer. This could lead to very damaging evidence that would be very helpful in a divorce case.

The problem is you probably cannot use any of the information you obtained, and could end up facing a lawsuit by your former spouse and/or jail time for violation of several California laws as well as Federal laws.

magnifying-glass.pngIn California illegally obtained evidence cannot be admitted as evidence in a court proceeding if the manner in which the evidence was obtained violates the Penal Code. This includes tape recording a conversation without the other party's consent, eavesdropping on a private conversation, or accessing/recording the contents of another person's electronic device (computer, phone, etc.) without their permission.

There are two exceptions to this rule:
1. Illegally obtained evidence can be admitted if it comes from another source, or would have been or was discovered independently.
This means if you discovered the other spouse had a previously undisclosed bank account because you broke into their computer and found emails from the bank, but subsequently learned about the secret account when you found a bank statement on the kitchen counter, you could use the evidence.

2. The individual from whom the evidence was illegally obtained waives the right.
This would generally include the other party providing the evidence by way of a response to discovery or in testimony.

There are other ways the evidence can be used, but not admitted at trial or hearing. For example, if the evidence is used to refresh a witnesses' recollection of certain events. This is because the evidence being used to refresh the witness's' recollection is not being introduced; it is simply an aid to the witness to recall an event he/she is testifying about.

Another way illegally obtained evidence can be used is to impeach a witness's credibility. This means, if the other party testifies that they have no accounts with ABC Bank and Trust, you can use the illegally obtained evidence to prove they do have accounts at ABC Bank and Trust.

A note of caution...just because you may be able to use illegally obtained evidence in your family law matter does not mean the other party cannot file a law suit against you for illegally obtaining the evidence in the first place. Moreover, you may still be subject to an indictment for violations of the penal code for any actions taken to obtain evidence from another party illegally. Remember, illegally obtained information is by definition "obtained illegally."

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Does My Job Make Me More Prone to Divorce?!

broken-marriage.jpgIn today's fast-paced, "money-hungry" world, finding a balance between work and family life seems to be a constant struggle for many people. Many people blame their job or their spouse's job as the root of the cause of their divorce. There have been studies done that indicate that a person's particular occupation can be a predictor of whether a marriage is more likely to succeed or fail.

Perhaps it's that people with certain personalities are drawn to certain jobs. Or maybe it's that the job itself leads to a higher chance of divorce because of the number of hours spent away from your spouse, the increased chance of infidelity, or the extent of the toll your job takes on you mentally, emotionally, or physically. Either way, people in certain jobs appear to have a higher risk for divorce over people in other professions.

A 2009 study entitled, "A Comparison of Law Enforcement Divorce Rates with Those of Other Occupations" was published in the "Journal of Police and Criminal Psychology" and is based on data from the 2000 U.S. Census.

Highest divorce rates by profession include:
• Dancers and Choreographers - 43.05%
• Bartenders - 38.43%
• Massage Therapists - 38.22%,
• Entertainers, Performers and Professional Athletes - 28.49%.

broken-marriage-cocktails.jpgConsidering the fact that bartenders are constantly interacting with people of the opposite sex, there is easy access to alcohol and late night work schedules, it makes sense that they are among the group of professions with a high divorce rate. Similarly, massage therapists spend a significant amount of time in private settings with their client, which has a higher chance of leading to infidelity and a subsequent divorce. The lifestyle of an entertainer, performer or athlete is not necessarily conducive to married life due to the fact that they are on the road often and away from their spouse. The large amount of fans make the possibility of adultery more likely, which again, is a big cause of divorce.

Lowest divorce rates by profession include:
• Engineers, legislators, dentists and farmers - less than 10%

These jobs tend to yield a steady/higher income, which may help married couples avoid financial arguments. These careers also typically require a high level of communication, which is likely to also play a role in keeping the marriage together.

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