Initial Conference with a Fresno Family Law Attorney

The initial conference with a Fresno family law attorney can be a daunting task, as the events leading up to the initial conference are likely taxing on an individual.  A husband or wife might have had to go through finding out their spouse has been unfaithful or has wasted money from the marital estate.  These types of activities can cause a spouse high levels of stress before they even come to an attorney for a consultation.

First Telephone Call

Once a spouse has determined that legal intervention is necessary in their marriage, the all important first step is to call an experienced family law attorney for an initial consultation.  Once they call that attorney’s office, they will likely speak to a legal assistant or paralegal who will take their information, discuss the background of their case, and set up a time for them to meet with an attorney at the firm.

At this stage, it is important for a client to give the person helping them any details on themselves and their spouse, particularly to check for any conflicts with the attorney’s possible representation of the potential client.  In addition, any information on the parties can help the attorney determine if a case has already been filed involving the parties before the client comes in to meet with the attorney.

Once the client has talked with the legal assistant or paralegal at the firm, they will need to prepare and bring in any relevant documentation to the initial consultation with the attorney.  This will include any pleadings they have been served with, any income and expense information for the spouses, and any documents showing assets or liabilities of the parties.  These will help the attorney get a better idea of the size of the parties’ marital estate along with the respective financial capabilities of the spouses.

The Conference

At the actual initial conference, the attorney will usually begin by asking for background information on the parties’ marriage, including when they were married, if they have any children, the ages and needs of the children, the work history of the parties, and the financial condition of the parties.  The attorney is asking these questions to gain insight into issues that could come up in the divorce case such as custody, visitation, child support, alimony, and property division.

As an example, if the parties were married for 15 years, with the husband being the primary breadwinner, and the wife staying home with the children who are now 10 and 12 years of age, this will help the attorney representing the wife identify that his client would want to be named primary custodian of the children with the right to designate their primary residence and her husband paying child support to help with raising the children in the future.  Further, the attorney would want to know the income of the husband and expenses for the family to see how much in alimony would be payable by the husband to the wife after the divorce is final.

As another example, if a husband came to an attorney with a marriage that had lasted 6 years with both spouses working and sharing the responsibility for raising their 5 year old child, the possible goals of representation might be different than the previous example as the parties could have equal or shared custody of their child with a decreased amount of child support and no alimony since both spouses are working and able to provide for themselves.

Of course, every marriage is different, so the above examples might not meet the particular situation of your marriage, but it can help give an idea of what to expect when coming into meet with the attorney who will ultimately handle your divorce case.  Other issues that the attorney will likely look for will be special needs of the children, any incidents of domestic violence, fraud or wasting of marital assets, or drug or alcohol issues.

Special Issues

Special needs of the children can include a mental or physical disability that makes a child incapable of self-support past the age of 18.  The parent who has custody of this disabled child will then receive child support into the child’s adulthood, and the non-custodial parent will have to pay for other expenses for the child such as medical expenses.

Domestic violence can be of particular concern for your attorney because he or she will want you to not only have protection from your abusive spouse, but your children too.  This can mean he or she might consider obtaining a restraining order or protective order for you and your children’s protection.  These can order your abusive spouse to vacate the marital residence, stay a specific distance away from you, pay child support, have supervised possession of the children, and not possess a firearm.

Fraud or wasting of marital assets can also be an important issue as your attorney will want to act to prevent the further depletion of these assets by your spouse.  This can be done by a restraining order or it can be done by appointing a receiver to manage the property while the divorce is pending.  The receiver can take control of a marital business for example and make sure it is operated properly instead of your spouse causing harm to it by their irresponsible actions.

Drug or alcohol issues can also be of concern to your attorney, and he or she might ask the court for a drug test of your spouse to show the court the substances your spouse is under the influence of.  This can act to have the court order such things as counseling, AA or NA classes, and alcohol monitoring.  In addition, these types of issues can have the court order limited visitation with the children including supervised visitation.

As can be seen, there are many issues your attorney will want to delve into at your initial consultation.  By bringing up these issues at the forefront, your attorney can effectively act on your behalf and obtain the best results possible in your case.  In addition, going into all of these issues with your attorney in the beginning will make it so he or she is not surprised later on when something arises that was not discussed at the initial consultation.

How Is Fresno Spousal Support Determined?

Fresno Spousal Support

This is one of the first questions asked by divorcing spouses.  If you are the supported spouse, you will want to know about your financial security and how long you will have to become reasonably self-supporting.  The supporting or obligor spouse will want to know how long they will be required to support their former spouse.  These are all good questions and this blog is intended to shed some light on those issues and give instruction as to how spousal support is determined.

California law requires that both parties become reasonably self-supporting within a reasonable period of time after the date of separation or divorce.  Spousal support is determined based on several factors set forth in Family Code Section 4320.  What is actually reasonable depends on the circumstances of your case.  These are the factors that a court will consider when assessing spousal support:

The age and health of the parties.  The parties’ ages and relative health does factor into spousal support.  If one spouse is nearing the age of retirement, for example, it is likely that they will not be forced to work after the age of retirement or to find a job unless that spouse chooses to work. Conversely, if a couple is relatively young and in good health when they divorce, it would be more realistic for both spouses to have time to further their careers or to become reasonably self-supporting.  A party’s health is always at issue.  An able bodied, healthy individual is far more likely to be able to work for a long period of time as opposed to an individual with health restrictions.

Each party’s marketable skills.  Whether each party has marketable job skills and whether those job skills can support one or both of the spouses at the marital standard of living is a prime consideration when determining spousal support.  For example, a well-trained surgeon will usually earn considerably more than the manager of a non-profit organization.  As another example, a stay at home parent who was trained as a nurse or a teacher may have the job skills to find work but would need time to be retrained to current professional standards or to obtain another certification or credential.

The marital standard of living.  The marital standard of living is usually the yardstick by which courts measure how the parties should live after the date of separation and divorce.  Adjustments are made depending on whether the parties can afford to support two households after separation.  For example, if a couple were living beyond their means during the marriage or barely making ends meet, it would be more realistic that both of the parties will have to make some concessions about their living arrangements upon separation and divorce.  Conversely, if one of the parties was an unusually high wage earner during the marriage and still is, it would be more realistic that the marital standard of living can be maintained.

Time out of the work force.  It is not unusual during a marriage that one spouse will take time off from work to raise children, for health reasons or simply because one spouse earns enough money where the other spouse does not have to work.  Upon the date of separation, it is incumbent upon the non-working spouse to obtain the job skills necessary to become reasonably self-supporting.  The court will take into consideration the length of time that a spouse was out of the work force when assessing spousal support including any time needed for additional training or education as appropriate.

The ability of one spouse to support the other.  The ability of one spouse to support the other is also considered when assessing support.  For example, a high earning spouse would have little difficulty supporting two households while the other spouse becomes reasonably self-supporting while a spouse who makes just enough to support one household will have little money left over to support two households.   Neither spouse is required to work excessive hours or overtime outside of their regular job description to make ends meet in two households after the date of separation.

The length of the marriage.  The length of the marriage also affects spousal support.  In a short term marriage of less than ten years, for example, the court is likely to limit support and expect both spouses to support themselves in a shorter period of time.  However, in a long term marriage, the yardstick for which is ten years, the court is more likely to make a longer term spousal support order as appropriate.

The parties’ needs and assets.  The parties’ separate property assets, assets awarded in the divorce, and financial needs are also a consideration. If one spouse has a significant amount of separate property assets through their earnings, gifts or inheritance, they are more likely to be considered reasonably able to support themselves.  Those assets also can be considered for the obligor spouse.

Whether domestic violence is involved.  A domestic violence conviction will affect the duration of spousal support.  A spouse convicted of domestic violence towards the other spouse is more likely to have a longer term spousal support obligation or to have their right to receive spousal support reduced.

The tax consequences to either party.  Each party’s tax situation is also a consideration when assessing spousal support.  For example, if one spouse is in a high tax bracket or has other tax obligations, the effect on that spouse’s bottom line income will affect the court’s assessment of the amount and duration of spousal support. This is also true for a spousal support recipient.

Other just and equitable factors.  The court has a great deal of discretion to affix spousal support, particularly in long tem marriages.  The Family Code allows a trier of fact to consider other facts and pertinent evidence when assessing spousal support that is just and reasonable under the circumstances.

If you want to learn more about how spousal support is determined in Fresno, please contact us.

 

How Does the Fresno Divorce Process Work?

The Fresno divorce process can be daunting when a divorcing spouse first encounters it.  Most people have never been in litigation and may be dealing with the court process for the first time with their contested divorce proceeding.

Litigation refers to the period of time between the filing of the initial divorce and a final hearing or trial.
Discovery is the information-gathering portion of litigation in which the parties obtain information from the other party or third parties about their spouse’s assets, other financial matters, and issues of custody.  Any necessary motions or legal procedures are also part of the litigation process.  Litigation is usually initiated when there is a contested issue in your divorce case such as the amount of spousal support, hidden assets or income, or child custody.  The purpose of the discovery and litigation process is to gather enough information and evidence to give a full picture of the issues in your case and to prepare your case for hearing or trial.

Discovery can be informal or formal.   An example of informal discovery would be when you or your attorney simply asks the opposing party for the information on the other party’s finances or the value of an asset.  Some examples of formal discovery are depositions, document requests, and subpoenas.

Here are the major components of discovery and litigation that you can expect to encounter in a contested family law case. Each of them are part of the formal court process.

The deposition.  A deposition is a legal procedure in which one of the parties to the family law case or a third party gives sworn oral testimony.  An attorney for either party asks the deponent questions about the family law case. That deponent’s testimony is put into written form and can be used as evidence at any hearing or trial.

Written discovery.  Written discovery refers to the process where one party requests information, facts, and documents from the other.  That is, when one party sends a formal written request to the other party for those facts and documents.  Written discovery is usually comes in the form of document requests, interrogatories, and requests for designation of experts, if necessary.  An example of written discovery would be when the opposing party asks for documents in your possession.  When you receive a discovery request, you usually have thirty days to respond under oath to each question or request to the best of your ability.

The subpoena.  A subpoena is a request that a party or third party either attend a hearing, or produce documents on a specific date.  For example, if you wanted to obtain information from a financial institution or a real estate company, it would be appropriate to send a subpoena for all bank statements for a specified period of time or documents pertaining to a real estate transaction.  You would have the option of having the subpoenaed party produce the documents before a hearing or trial so that you can review them.  Subpoenas are also used to have a witness or party appear at hearing or trial.  Upon receipt of a subpoena, the subpoena recipient has the right to object to the subpoena.  The subpoena recipient usually has a specified period of time to respond to a subpoena or must otherwise appear.  It is always best to abide by the terms of a subpoena unless there is a legal reason not to or you are excused.   Subpoenas carry with them the power of the court to enforce that subpoena if a person fails to abide by the subpoena.

Designation of experts.  It is often the case in contested family law proceedings that the court or a party will require the assistance of an expert on a particular issue. That is a person who is a recognized expert in their field, such as real estate or property valuations, and who can give testimony or evidence that the average person cannot as to a particular issue in your case.  You have the right to hire an expert and obtain an expert’s report or other evidence that will be helpful in proving the issues in your case.   If you do hire an expert, you would be required to notify the opposing party well ahead of the hearing or trial date.

What if the opposing party does not cooperate?  There are instances in family law litigation in which a party or a third party does not cooperate with the discovery or litigation processes.  An example would be if you send a document request to your spouse and they refuse to produce documents or tell you their location.  Another example would be if you subpoena a financial institution to produce documents and they do not respond.  The litigation process allows you to file a motion with the court to enforce your request.  If you prevail or win, the non-cooperating party will be ordered to comply with your discovery request. You can also request attorney’s fees for the time and expense incurred in enforcing your discovery request.  If the non-cooperating party still does not cooperate, the court can prevent the opposing party from presenting specific evidence at hearing or trial.  That is, if you cannot present evidence on an issue at hearing because of the fault of another, the opposing party would not be allowed to present that evidence at hearing.

Change of Plans – When Fresno Marital Support Orders Can Be Altered

Like all things, our income can change over time. This can be both good and bad. You may be currently struggling to make ends meet, living pay check to pay check. But by the end of the year you could be given a raise at work or come into some money in some way, thereby putting you on stronger financial ground. Economic stability is one of the hardest things to predict because it depends so much on the person – and people are prone to dramatic changes. So, when it comes to divorce orders – especially child support – things can change.

In California, this means one or both parties can petition a judge to alter a child support order. The reasons for this are numerous and depend on the couple, the child in question, and the family’s individual situations. The Law Office of Rick D. Banks has helped many Fresno residents seeking a change to their marital support order. The following are just some of the possible reasons that parents may request a change in their order: Continue reading

Beginning of the End – Common Causes of Fresno Divorce

Here is a dramatic number – according to the Center For Disease Control (CDC), there were over 800,000 divorces across the country in 2014. This statistic is actually missing a number of states, which means it could be much higher. When compared to the number of new marriages every year, it translates into about a 50% divorce rate for a vast majority of America. So what is causing so many couples to throw in the towel? Divorce rates have exploded over the past three decades, but what are some of the reasons for the increase?

While every case is different, there are a few consistent factors that go into a couple’s desire to end it. Here are the most common causes of divorce the Law Office of Rick D. Banks has seen over the years: Continue reading

Parents Again – California Grandparent Custody on The Rise

Grandparent Custody on the Rise

Being a parent is a challenge. While the degree of difficulty can vary from household to household. Generally speaking, raising a son or daughter is physically, emotionally, and financially demanding. So, when the time comes for a parent to move onto the honor role of grandparent, there is certain amount of relief that comes with the position. However, many grandparents today are finding themselves being thrust back into the role of active parent. While this is not a particularly novel situation, it is on the rise. Continue reading

High Profile Divorce in California

Celebrity and High Profile Divorce in California

It feels like every week another celebrity divorce is being dissected on the nightly news. First it was Ben and Jen, now it seems we’re waiting on Kim Kardashian and Kanye West to be the next “split de jour.” Unfortunately, one thing that tends to get lost amidst the gossiping and speculation is the incredible toll high-profile divorces can have on the families involved. We have to consider the amounts being invested in both parties: both emotionally and financially. Considering the sheer amount wealth that exists between two individuals like Kim and Kanye, you can imagine the immense strain that comes with attempting to separate it out. Continue reading

What Are Special Circumstances Found in Fresno Gray Divorces?

Special Circumstances in Fresno Gray Divorces

Just as every relationship brings with it certain challenges, so does every divorce. The details surrounding a couple’s separation are personal and often quite specific. This can be especially true for couples over 50 seeking a separation – otherwise known as a “gray divorce.” There are differences to splits that occur when is a couple is in their 20s, 30s, or 40s. Gray divorces must factor in the couple’s age and any potential benefits that may come with it. These particular benefits can greatly impact what either individual is owed, once the proceedings have concluded. Continue reading