Family Law Questions and Answers
These articles were written by Georgine
Brave and were first published in California Divorce
Magazine.
They are reprinted here with the full permission of Divorce Magazine. |
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How is
child custody decided?
If the parties agree on a parenting plan, the
judge will make it into an order. Generally, the parents will share joint legal
custoday: this means that they both shall participate in decisions about the
children's medical and educational needs. Each parent should be listed on the
school's forms and each parent can take the children to the hospital, to the doctor,
participate in school activities, and so on.
Physical custody, or physical residence, is where
the children will live. If there is a dispute, the parties must see a counselor at
Family Court Services. This mediation is free. The counselor tries to lead the
parents to an agreement. If not, he/she will write a recommendation which goes to
the judge; about 95% of the time, the judge will follow that recommendation. The
counselor will consider who has been the primary caregiver? Is one home not stable?
Do the children have special needs which are better met in one household? What is in the
children's best interest?
I watch how fashions in custody change over the
years. Presently there is a presumption that 50/50 custody is what is best for the
children. That means that the judge wants this kind of parenting plan, unless there
is a reason why not. So fathers have the same rights to time with the children as
mothers.
The parties can agree to go to a Private Mediator
instead of Family Court Services. They will have more time and attention, and a
private mediator can even speak with the children. If there is still a dispute, the
parties can agree, or the judge can order, that a psychological evaluation be done.
This is the most costly method of determining custody. It will take at least 2
months and will cost $4,000 or more, perhaps $8,000 or more. The psychologist will
see each parent, each child, do testing, interviews, review the declarations, talk to
outside people, like therapists, and write a lengthy report which tells the judge what is
best for the children.
The bottom line is what is best for the children
is for the parents to agree on a parenting plan.
If a parent has concerns about this issue, he or
she should talk to a Family Law attorney. In my 22 years of experience, it has been
clear that the custody and visitation issue is the most important issue in my client's
mind. Our telephone consultation is free, so if you meet anyone who has any
questions, we will be happy to answer their questions and perhaps set their minds at ease.
How can I fire my lawyer? Under what conditions?
Every party has
the absolute right to any attorney of his/her choice. The Model Rules of Professional
Conduct state:
"A client has a right to discharge a
lawyer at any time, with or without cause, subject to liability for payment of the
lawyer's services. Where future disputes about the withdrawal may be anticipated, it may
be advisable to prepare a written statement reciting the circumstances."
This means that at the beginning, middle,
or any time during the pendency of the divorce action, the client has the right to change
lawyers. You do not have to state a reason.
The procedure for changing lawyers is to
fill out, sign, serve, and file a "Substitution of Attorney" form. The present
attorney, you (the party), and the new attorney all sign this one-page document. The new
attorney will take care of obtaining your file from your former attorney, filing the
Substitution of Attorney, and serving your spouse's attorney.
If you decide to "fire" your
attorney, you can choose to continue the case "In Pro Per," which means
"without an attorney." In that case, your name goes on the line for the new
attorney. You will then be acting as your own attorney, which is not a good idea if your
spouse is represented by counsel.
If you decide to change counsel before any
papers are filed in court, no Substitution of Attorney need be filed. You should simply
notify your attorney in writing (keep a copy of your letter).
After our divorce becomes final, am I entitled to
any of my ex-spouse's Social Security, retirement, or disability benefits?
California
divorce law states that any asset acquired during the marriage by earnings of either party
is a community asset, owned equally by each spouse. The period of accumulation of assets
ends at the date of separation. This means that any retirement benefits earned
after the date of separation are the separate property of the earner. Obviously, any
retirement or other benefits earned AFTER separation and AFTER divorce do not belong to
the ex-spouse.
However, if the ex-spouse is entitled to a
portion of the retirement, from the period during the marriage, he or she can receive it
later, via a court order. A Qualified Domestic Retirement Order (QDRO) is prepared and
sent to the Pension Administrator. These funds were never taxed, so it is always a good
idea to put them into another retirement account and not take them out until your
retirement.
The ex-spouse is usually not entitled to a
portion of disability benefits, although they may be considered income for purposes of
setting support. The earner spouse's retirement benefits are also considered as income for
purposes of setting support.
An ex-spouse has a derivative right to
Social Security benefits, based on the ex-spouse's benefits, after a long-term marriage.
The ex-spouse will get his or her share, and it does not come out of the spouse's amount.
To sum up:
- An ex-spouse can get Social Security benefits based on what
the spouse earned;
- You can collect your community share of retirement benefits
after the divorce;
- An ex-spouse is usually not entitled to a share of
disability benefits, since they exist to aid the disabled spouse, but they are considered
as income when setting support.
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