Title: January 23, 2008
Q: My husband is filing for divorce. He says he will drop me from his health insurance. Can he do that?
A: No, he cannot. On the back of the Summons that will be served on you, along with the Petition for Dissolution, there are specific “Standard Family Law restraining Orders”. One of these orders states as follows: “Starting immediately, you and your spouse are restrained from … changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties.” This means neither one of you can cancel insurance on the other.
Q: When calculating child support that I will have to pay by ex-wife, is the income of my new wife considered?
A: Family Code Section 4057.5 specifically mandates and precludes the Court from directly considering the new mate’s income in raising or lowering child support absent an “extraordinary case” in which a child would otherwise suffer extreme hardship under the guideline amount. In other words, the Court is precluded from considering your new wife’s income in setting the amount you must pay in child support, unless Dissomaster, the program used by California Courts, dictates such a low amount of child support if you have no income of your own while your new wife enjoys a large income that it would be a considerable hardship on the child to live on such a low child support amount. It is extremely rare for the Court to consider the new spouse’s income to award child support for a child from a previous marriage because Family Code Section 4057.5 prohibits it, except in dire circumstances.
Q: If I divorce my stay-at-home wife of 15 years, how much spousal support should I expect to pay and for how long? She was a teacher before she married me and could easily go back to work.
A: The Dissomaster program is used by the Court to ascertain the amount of spousal support you need to give your wife. Your income is used as a basis. A 15-year marriage is considered a long term marriage, and therefore it is possible that you may have to support your wife until she remarries or dies. It also depends on her age and her health condition. If she is in her sixties and not in very good health, it is unlikely that she will be hired by any school district. If she is in her forties and in excellent health, she will be urged to get a job as soon as possible. If a marriage is less than 10 years in length, often the Court use half the length of the marriage as the gauge to award spousal support. You must realize that circumstances are different in every divorce and the Court must take these differences into consideration.
Maxine de Villefranche has been an attorney for 15 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.
Showing posts with label Marriage. Show all posts
Showing posts with label Marriage. Show all posts
Tuesday, March 24, 2009
Monday, March 23, 2009
Legal Eaze # 41 Legal Separation/Small Claims Court
Title: March 22, 2006
Q. What is a legal separation?
A. When parties are uncertain as to whether or not they want to terminate/dissolve their marriage, they can file a proceeding for “legal separation” instead of “dissolution of marriage”. Marital rights and financial responsibilities may be decided by the family law court without dissolving the marriage. The parties can obtain a Judgment of Legal Separation but that does not terminate their marital status, in other words, they are still husband and wife even though legally they have divided all of the community property estate and have resolved child support and spousal support. Legal separation is an alternative to divorce and is generally sought out by the parties when there is breakdown of the marriage. It is sometimes used for religious or personal reasons, such as in order to retain eligibility for medical insurance that would otherwise be lost by a termination of the marriage. This can be a very important consideration where a spouse has a preexisting medical condition for which new coverage would not be obtainable.
Q. How do I file a Small Claims Court case?
A Most state courthouses have a Small Claims court Division. However, you must sue a defendant in the proper court. Generally, you must sue in the city where the defendant lives, or where they agreed to the disputed contract with you, or where the action took place that led to your injury. Businesses can also be sued in any city where they do business. The advantages of suing in Small Claims Court are 1) it's quick 2) it's cheap 3) it's informal 4) there are no lawyers. The disadvantages are 1) if you are the plaintiff and you are not happy with the Court's decision, you cannot appeal 2) no lawyers: if you are unable to present your case persuasively, you may lose. It sometimes helps to have a high-priced mouthpiece used to represent a party. You file your claim and serve the defendant. Have it served by someone other than you. Anyone over the age of 18 can do. Certified mail is sometimes used. The court clerk can do it for a small fee. But if the defendant knows it's a lawsuit, he/she may not sign it. Once served, you must attend the trial hearing. Make sure you have all your photographs and/or documents pertaining to the dispute. Now that you are in court, be clear and concise because the Judge does not have all to listen to you. The Plaintiff goes first, then the defendant. The Judge may ask each of you some questions, then will make a decision.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880.
Q. What is a legal separation?
A. When parties are uncertain as to whether or not they want to terminate/dissolve their marriage, they can file a proceeding for “legal separation” instead of “dissolution of marriage”. Marital rights and financial responsibilities may be decided by the family law court without dissolving the marriage. The parties can obtain a Judgment of Legal Separation but that does not terminate their marital status, in other words, they are still husband and wife even though legally they have divided all of the community property estate and have resolved child support and spousal support. Legal separation is an alternative to divorce and is generally sought out by the parties when there is breakdown of the marriage. It is sometimes used for religious or personal reasons, such as in order to retain eligibility for medical insurance that would otherwise be lost by a termination of the marriage. This can be a very important consideration where a spouse has a preexisting medical condition for which new coverage would not be obtainable.
Q. How do I file a Small Claims Court case?
A Most state courthouses have a Small Claims court Division. However, you must sue a defendant in the proper court. Generally, you must sue in the city where the defendant lives, or where they agreed to the disputed contract with you, or where the action took place that led to your injury. Businesses can also be sued in any city where they do business. The advantages of suing in Small Claims Court are 1) it's quick 2) it's cheap 3) it's informal 4) there are no lawyers. The disadvantages are 1) if you are the plaintiff and you are not happy with the Court's decision, you cannot appeal 2) no lawyers: if you are unable to present your case persuasively, you may lose. It sometimes helps to have a high-priced mouthpiece used to represent a party. You file your claim and serve the defendant. Have it served by someone other than you. Anyone over the age of 18 can do. Certified mail is sometimes used. The court clerk can do it for a small fee. But if the defendant knows it's a lawsuit, he/she may not sign it. Once served, you must attend the trial hearing. Make sure you have all your photographs and/or documents pertaining to the dispute. Now that you are in court, be clear and concise because the Judge does not have all to listen to you. The Plaintiff goes first, then the defendant. The Judge may ask each of you some questions, then will make a decision.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880.
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