Divorce Basics: Should I Get a Legal Separation or a Divorce?

April 23rd, 2014 | Divorce,Family Law,Legal Separation | No Comments »

When you are married or in a registered domestic partnership and you are looking to end your relationship, it is important to be knowledgeable about all of your legal options.  The two common routes to terminate a marriage or domestic partnership are a divorce (also known as a dissolution) or a legal separation.  When determining whether to file for legal separation or divorce, there are differences to consider in making your decision.

What is the Difference between a Legal Separation and Divorce?

            The initial steps for filing a legal separation or divorce are almost exactly the same when initiating the legal process.  The paperwork, including a Summons, Petition, and financial disclosures, must be filed the same way.  Property division and support (either child or spousal) are also indistinguishable in either legal separation or divorce.  Lastly, a judgment finalizing the relationship is declared at the end of both a legal separation and divorce.

The most differentiating characteristic of a legal separation is that the parties cannot remarry, while after a judgment of dissolution, the parties regain their status as single persons and may remarry again.  Therefore, the parties should consider whether they envision themselves entering another relationship, partnership or marriage in the future. If they are likely to do so, then a legal separation might not be the best choice.  Although a legal separation does not prevent a party from dating someone else, it will prevent him or her from legally marrying because they will not be considered divorced.

Why Would Anyone Choose Legal Separation Over Divorce?

You may be wondering why a couple would choose legal separation over divorce as an avenue for ending their relationship.  There are many legitimate reasons why a couple may choose legal separation rather than divorce.  Many cultures and religions forbid divorce or it is considered taboo; therefore legal separation offers couples who abide by those tenements an option to successfully divide their assets without engaging in a culturally or religiously prohibited act.  Another situation that arises is that the couple would like one spouse to remain on the other’s health insurance and a divorce proceeding may eliminate that as a possibility.

In addition, another benefit is that while in divorce proceedings there is a statutory wait period of six-months in California for a divorce to finalize. However, there is no such waiting period for a legal separation.  Lastly, if a party has just moved to California and does not meet the residency requirements to file for divorce, he or she may file for legal separation first and then amend the petition to a dissolution once the residency requirements are met.

How Long Can You Be Legally Separated?

A couple may be legally separated for as long as they prefer.  Some couples remain separated for the rest of their lives.  Another option some couples take is after a period of legal separation, moving on to filing for a divorce so that one or both parties can then remarry.  There are different options that work for each unique situation.

Is there a downside to choosing a legal separation?

Whether to file for a legal separation or divorce is a personal choice that must be made by an individual based on his or her personal preferences and circumstances.  Generally speaking, one of the major downsides to choosing a legal separation over a divorce is that if the parties decide that they want to divorce in the future, then they will have to re-start the process all over again, including filing a summons, petition and other financial disclosures.  This typically means more costs and more time spent on a matter that could have been resolved once around with a filing of dissolution.

What Is the Best Decision For You?

Are you unsure about which path to take?  Dream Law can help you learn more about each option while explaining each step of the process to you.  Contact Los Angeles Family Law Attorney Sanjay A. Paul at sapaul@dreamlawca.com or (626)-993-6725 to discuss your options.

Disclaimer: The preceding article is not intended to be legal advice. Please consult with a lawyer about the individual facts of your case. 

I’m Married – Is it Too Late for a Pre-Nuptial Agreement?

April 8th, 2014 | Family Law |

I’m Married – Is it Too Late for a Pre-Nuptial Agreement?

An Introduction to Post-Marital Agreements

By Sanjay A. Paul, Esq.

Attorney at Law 

            For most couples planning their nuptials, discussions of pre-nuptial, or pre-marital, agreements do not arise.  After a couple has been married for a few years, they may begin to acquire more assets, either in the form of property, income, inheritances, or investments.  As assets grow, a couple may begin to ask themselves why they did not secure a pre-nuptial agreement before.  No need to fear, however.  There is a legal device called a post-marital agreement that acts similarly to a pre-nuptial agreement, however it is devised after the couple is married, in contrast to pre-marital agreements, which are devised to be executed prior to marriage.

What is a post-marital agreement?

A post-marital agreement is a written contract executed after a couple is married or has entered into a civil union, to settle the couple’s affairs and assets in the event of a separation or divorce.  Provisions of the agreement vary widely, but commonly included provisions are for the division of property, spousal support, etc.

Why would anyone ever need a post-marital agreement?

There are several situations that may give rise to the need for a post-marital agreement: one spouse may begin to consider what spousal support will be offered to them, one spouse may have received an inheritance that he or she wishes to protect from community interest, there may have been a sudden large increase in income or assets that one spouse may like to protect from community interest.  The list of possibilities is endless.

What are some requirements of post-marital agreements?

In California, there are some rules governing post-nuptial agreements that must be followed in order for the agreement to be effective.  The first is that the agreement must be in writing.  This is a great requirement as it helps for the spouses to be able to refer to the promises that they made to each other.  The second requirement is that each spouse must have a separate lawyer.  Each spouse having a separate lawyer helps to ensure that the rights of both parties are equally represented and no spouse has an unfair advantage over the other.  In addition, a post-marital agreement must also be entered into while the marriage is still intact. A couple cannot enter into a post-marital agreement when they are anticipating a divorce. For more details, consult with an attorney today.

How can one find a post-marital agreement attorney?

            To determine whether you require a post-marital agreement, or what your post-marital agreement should contain to be effective, please feel free to consult with Sanjay A. Paul, Esq., of Dream Law.  Email sapaul@dreamlawca.com or call (626) 993-6725. www.DreamLawCA.com

Disclaimer: The preceding article is not intended to be legal advice. Please consult with a lawyer about the individual facts of your case. 

Uncontested Divorces: Why it might be the best thing you can do for yourself.

August 24th, 2013 | Uncategorized |

We’ve all heard the nightmare stories about divorces that have been dragged through court for years, with thousands of dollars spent, tens of hours of your life consumed in litigation and the use of expert witnesses, CPA’s, therapists, counsellors, witnesses and hours of testimony. There are not doubt marital dissolutions that are so complex that unfortunately they require these kind of resources. However, I am always surprised by how divorces that are not complex and that can be resolved in a fairly amicable manner are dragged through the litigation process in a process that is similar to extracting water from a stone.

What is an Uncontested Divorce?

When I say “uncontested,” I generally mean that the parties agree on (the majority) of the terms of the divorce. Couples hardly agree on every single term of the divorce, but the question you have to ask yourself is, “Is the one issue that I disagree about worth a fight in court that consumes hours of my life and will costs thousands in attorney fees?”  The better approach might be to reach a compromise.  Keep in mind, there is no win or lose in a family law case. This is about what’s doing best for yourself, the children (if there any) and moving on with your life.

Here are some tips to figure out whether you can have an uncontested divorce to make your dissolution a lot easier on your self.

Do You Agree On the Terms of your Divorce?

If you have children, property, assets and debts, then there is usually more room to disagree. However, if you do not have children and there is no property or assets, then chances are you agree on most of terms. So the first step to assessing whether you can proceed on an uncontested divorce is whether you feel you agree to most of the terms of the dissolution. There is where speaking to an attorney or hiring an attorney to advise you on your rights is instrumental. A good family law attorney can advise you on whether there are rights you are giving up in your dissolution. From there, you can assess whether it is worth fighting over

How to Choose the Right Attorney:

Attorneys come from all backgrounds and bring different styles and practices in how they handle their cases. I strongly advise that you find an attorney who works to resolve your case with as little conflict as possible and always approaches your case with a cost benefit analysis. In other words, is it worth it to take a litigious course of action to get what you want? In some cases it is. This is where an attorney that is good in court can really help your case. However, in a lot of instances it is more advantageous to both parties to reach an agreement out of court, or in court. Litigation is not always the key and the attorney you choose should boast an impressive settlement record in addition to being comfortable in court.

Feel free to give my office a call to discuss your case.  I will be happy to discuss how to effectively resolve the issues in your case.

Best,

Sanjay A. Paul, Esq.

What Couples Should Know Before Getting Married

August 4th, 2013 | Uncategorized |

If you are going to be getting married soon, chances are the words “prenuptial agreement” have crossed your mind, but you don’t know much about it ( don’t worry, most people don’t:) and you’ve been worried about bringing it up with your spouse. Most people worry that discussions around a prenuptial agreement will kill the romance prior to a wedding and might even turn-off the other spouse and create conflict.

These are fair concerns and this article will help you think about how to approach discussions around prenuptial agreements and how it can be one of the most beneficial things you can do for your relationship. Contrary to popular belief, a prenuptial agreement is not just for a wealthy spouse to protect himself or herself from marriage to a spouse with a lower net worth. It actually benefits both spouses from all backgrounds. Let me explain.

What is a Prenuptial Agreement:

A prenuptial agreement is a contract entered into prior to marriage or a civil union, that generally speaking keeps property from before marriage as separate property and avoids the creation of community property during marriage.  This avoids commingling of assets and debt and if executed properly, will be effective upon a parties dissolution.  An easy way to understand a prenuptial agreement is to think of it as,  ”what’s yours is yours, and what you earn or accumulate during marriage is yours too.”

Why a Prenuptial Agreement can be beneficial for your marriage:

When at attorney drafts a prenuptial agreement, he or she will ask both parties to list all their assets and debts in order to figure out their net worth and debt. This exercise in itself is highly beneficial, because it forces both parties to see how much the other is worth and what kind of debts they have prior to marriage. I often hear spouses during a divorce say that they had no idea the other spouse came into their marriage with so much debt or money and this is because people often times avoid that discussion.

No one likes to talk of money right? It appears cheap and is not a discussion that one wants to have while planning their dream wedding and honeymoon. However, the benefits of knowing exactly what each party is bringing into the marriage financially can lead to more trust, more understanding and present a clearer picture to both spouses about their respective financial positions in life.

Can a Pre-Nuptial Agreement Limit Child Support Payments?

It is important to know that prenuptial agreements can vary widely. However, there are a few terms that are not enforceable because they are against the law. Parties cannot limit or waive child support payments in a prenuptial agreement. In California, it is also generally unenforceable to have “at-fault” provisions in a prenuptial agreement that bar spousal support if there is infidelity in the marriage, etc.

California is a “no-fault” state, meaning that the State generally speaking does not care what the reasons for divorce are when parties file a dissolution. The law is just concerned with helping the parties start the next chapter of their lives without revisiting the reasons for a break-up.

Can a Pre-Nuptial Agreement Limit Spousal Support Payments?

Yes. It is very common to have prenuptial agreements that limit spousal support or bar the payment of spousal support. If executed properly and with the right disclosures, it can be effective.

Conclusion:

Still unsure about the nature of prenuptial agreements? You should call a reputable family law attorney to have a discussion on how a premarital agreement can benefit you and your spouse.

Comprehensive Immigration Reform 2013

February 14th, 2013 | Comprehensive Immigration Reform |

What is Comprehensive Immigration Reform (CIR)?

CIR is the name used to describe immigration reform that is being discussed in Congress to reform a severely outdated immigration system. CIR will address backlogs in the current immigration system for lawful residents and citizens who are trying to bring family members. In addition, CIR will also tackle how to bring out of the “shadows” the roughly estimated 11 million undocumented persons in the United States.

When can we expect Comprehensive Immigration Reform (CIR) to Pass?

The Obama administration reacting to the overwhelming support of the Latino vote during his re-election, got started on immigration reform just days after his second inauguration. The Senate has given themselves a deadline of March 1, 2013 to put together a bill for CIR that embodies the principles outlined by the Obama administration. Once a bill is introduced in the Senate it will go through markups, Senate hearings and debated and voted on the floor of the Senate. To overcome any fillibusters, the bill will need to recieve at least 60 votes.

What are the Basic Principles that will be addressed under Comprehensive Immigration Reform (CIR)?

President Obama has outlined 4 core principles that are likely to be part of CIR:

1) Strenghtening Border Security: Any proposal for immigration reform will include a component to prevent the continuning stream of illegal immigraiton into the United States. This will be undertaken by increasing security at the border and removing criminals from the United States.

2) Streamlining Legal Immigration: President Obama’s proposal will provide visas to foreign entrepreneurs looking to start businesses in the United States and help promising foreign graduate students in science and math stay in the U.S. after graduation.  The President’s proposal will also help reunite families in a timely manner instead of the current significant backlog of family visas.

3) Earned Citizenship for Undocumented Persons: President Obama’s proposal also provides undocumented immigrants a legal way to earn citizenship so they can come out of the shadows. It will hold undocumented persons accountable by requiring they pass background checks, pay taxes and a penalty, go to the back of the line, and learn English. It requires everyone to play by the same rules.

4) Cracking Down on Employers Hiring Undocumented Workers: President Obama’s proposal is designed to stop businesses from exploiting the system by knowingly hiring undocumented workers. It holds companies accountable, and gives employers who want to play by the rules a reliable way to verify that their employees are here legally.

Conclusion: CIR has been long overdue and Congress will be engaging in a lively discussion over the next several months. What is clear is that CIR will be landmark legislation that addresses the backlog in family pettitions and employment petitions as well as address the estimated 11 million undocumented persons in the United States.  The complete details and exact qualifications for CIR have yet to emerge, but stay tuned as we will update you as the details emerge!

Child Support Basics in CA:

December 13th, 2012 | Uncategorized |

CHILD SUPPORT BASICS

How much child support will I be forced to pay in California?

Child support is roughly determined by two factors:

  1. The time each party shares custody of the minor; and
  2. The earnings of both parties.

To calculate child support, the court uses a child support calculator software program. All the courts in California use a software program called “Dissomaster” to calculate child support because the formula is complex. This program ensures consistency across the board no matter what the county in California.

However, it is important to understand that the court is not supposed to just punch numbers into a computer to arrive at a child support calculation. The court must also exercise discretion to achieve fairness and equity. This is where a good lawyer will make a difference in your case by arguing why the court should “stick to the guidelines” or deviate from them.

Can I modify child support?

Yes. You can always ask the court to modify child support if there has been a change in circumstances. Common reasons for requesting modification include change in income of one or both of the parties.

Is my spouse or domestic partner’s income going to be counted for child support?

The Court usually uses the parents’ incomes only to calculate child support. But, the Court can ask about your spouse or domestic partner’s income for tax or other purposes.

Do I still have to pay child support if I have 50/50 custody?

If you make more money than the other parent, you may still have to pay some child support.

Will the Court consider that I have other children to support?

The Court may take into consideration of other child support orders and other children in your home that you support. The Court usually does not take stepchildren or grandchildren into consideration.

How long do I have to pay child support?

You will pay until the child is 18 years old and he or she graduates from high school. If your 18-year-old child is still a full time high school student and still lives with a parent, you must pay child support until your child graduates or turns 19. For adult disabled children, see a lawyer about the issue of adult child support.

If you have a child support issue, contact us today to see what Dream Law can do for you.

Avoid Scams: “Notarios” and Attorney Guarantees

September 16th, 2012 | Uncategorized |

With so many eligible people interested in Deferred Action, many are seeking ways to get the most efficient legal help with their application. That said, please beware of the people trying to take advantage of the new policy and those applying. Deferred Action is a discretionary policy instilled by the government, meaning that there is no guarantee that an application will be approved, regardless of having a completely clean record that is free of a legal or criminal history. Beware of any attorney that says he/she guarantees that a Deferred Action application will be approved because, not only does the government have to opportunity to deny an application, but, by law, attorneys are not allowed to make guarantees to clients on any applications in any types of cases. In addition, please know that, while offering help with applications at a very low price, public notaries, or “notarios,” are NOT authorized to provide people with legal services related to immigration. For more information on “notarios” and other scams, visit USCIS website to read the USCIS’s article on common scams in regards to immigration cases.

 

 

 

DACA & Marriage to US Citizen

September 16th, 2012 | deferred action basics |

There are a number of people who are eligible for Deferred Action for Childhood Arrivals that are currently married to a United States citizen. Because of this, many worry that applying for DACA may affect their legal residency application process obtained through their spouse. Know that, if you are in the process of obtaining legal residency through your husband or wife, applying for Deferred action will NOT affect your application status. In fact, it would be a good idea to apply for Deferred Action while you wait for your permanent residency, as the process could take years and you would be able to receive a two-year protection from deportation in the meantime. If your permanent residency is granted while you have Deferred Status, all that would need to be done is an adjustment so that you can become a permanent legal resident. For more details and specifics, contact us today to speak to a lawyer.

NPD Deferred Action Forum Call Summary

July 20th, 2012 | Community Events |

For those of you that missed the National Pursuit of Dreams Forum Call on Deferred Action today, it was informative and I’ve summarized the main points below:

Cut-Off Age is under age 31 on June 15, 2012:  Janet Napolitano, Secretary of Homeland Security yesterday clarified yesterday at an oversight hearing that the cut off-age to qualify for Deferred Action will be applicants under 31 years old on June 15, 2012.

Key-Terms for Criminal Convictions: At present we have some idea of the key types of criminal convictions or incidents that can disqualify you from deferred action – significant misdemeanors, public safety threat and national security threat. The exact definitions for these “terms of art” will be released likely on August 1, 2012. You should consult an attorney about whether your incident falls under any of these categories because each situation will face different challenges and consequences.

Education Requirement: We know that you have to have graduated high school or be currently in school. We also know that you can enroll in a GED program if you never graduated. What we don’t know yet is whether you have to wait to complete the GED program to apply for deferred action, or whether you can apply concurrently with being enrolled. Look to the August 1st guidelines for that to be resolved.

Get a Passport: We cannot emphasize this one enough; you should obtain a passport from your country of origin before applying because it is the best way to establish your real identity.

This is a link to obtaining a passport if you were born in Mexico from the Mexican Consulate in Los Angeles. http://consulmex.sre.gob.mx/losangeles/index.php/pasaportes

Unsure of your status? If you think there was a removal order against you or received a Notice to Appear at any point, you can find out the status of your residency by calling an automated phone system for individuals to track their cases in the court system, developed by the Executive Office of Immigration Review (EOIR).  The number is  (800) 898-7180. Please note you will need your Alien Number (aka “A number”) which is located on your Notice to Appear.

Fake Documents: Many Dreamers have questions about whether they will get in trouble for possessing “fake documents” upon which they gained employment or other benefits in the U.S.  It is important to consult an attorney on the specific nature of your fake documents because the consequences and outcome could differ depending on what type of papers and what purpose they were used for.

If you have any more questions,  email or call us for a free case evaluation!

National Pursuit of Dreamers (NPD)

Breaking News on Deferred Action! August 1st rules will be announced.

July 20th, 2012 | Uncategorized |

Secretary of Homeland Security Janet Napolitano announced today that DHS will release the guidelines for Deferred Action on August 1st, 2012 and that applications for authorized stay and employment authorization will be accepted on August 15th. Contact us today to see whether you qualify and learn how to get ready for the process!

Janet Napolitano, Homeland Security Secretary.