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What Is in an Ex Parte Custody Order in California?

In family law, urgent situations often require quick decisions, especially when it involves the safety and well-being of a child. If you’re ever in ascenario where immediate action is needed, you might come across the term “ex parte custody order.”

But what exactly does that mean? Since California supports emergency custody matters, parents who reside in the state should be fully aware of how it works and when it's available.

Knowing the stipulations surrounding this concept could be crucial for protecting your child's best interests.

What Is an Ex Parte Custody Order?

An ex parte custody order is more commonly referred to as an emergency custody order. Simply put, it's a special type of court order that can be granted quickly without waiting for a full hearing.

It's usually for emergency situations, like when a child might be in danger or face an imminent threat. This order can change who has custody of a child, at least temporarily. Also, the court does not have to give prior notice to the other parent.

These orders are designed to provide short-term solutions until a full hearing can be held, where both parents have the opportunity to present their side.

Ex parte orders are granted when there’s a clear need to act swiftly. The court recognizes that some situations are too urgent to wait for the standard legal process to play out.

But that also means the bar for obtaining one is high—you must show that waiting for a regular hearing could result in harm to the child.

Common Provisions in Ex Parte Custody Orders

Ex parte custody orders are not just about giving one parent temporary custody. They often include additional protections, depending on the circumstances surrounding the case. Here are a few common provisions that can be included in such an order:

Temporary Custody

The most important part of an ex parte order is usually the fact that one parent is gaining temporary custody.

This can involve either legal custody (the right to make important decisions about the child), physical custody (where the child will live), or sometimes both. The goal is to ensure that the child is in a safe environment while the court investigates the situation more thoroughly.

Restraining Orders

In cases where the child or requesting parent may be in danger, the ex parte custody order could include a restraining order. This restraining order can prevent the other parent from contacting or coming near the child or the requesting parent.

In some situations, it might also restrict them from taking the child out of state or interfering with the current custody arrangement.

Other Provisions

Depending on the nature of the emergency, the ex parte order could include additional provisions. For example, if there are concerns about financial support, the court might include temporary child support orders.

If the parent receiving the temporary custody intends to relocate, the order may address restrictions on moving with the child until a full hearing is held.

When Are Ex Parte Custody Orders Granted?

Courts don’t grant ex parte custody orders lightly. They are only issued in specific, serious situations where delaying action would expose the child to immediate harm or danger. Here are some examples of situations that might lead to an ex parte custody order:

Immediate Harm or Risk to the Child

The court will evaluate whether the circumstances meet the requirements for an ex parte order. This could be due to:

  • Domestic violence: If one parent is being physically abusive or engaging in threatening behavior, the court may issue an ex parte order to protect the child and the other parent.
  • Child abduction: If there is a credible risk that the other parent might attempt to abduct the child or take them out of state without permission.
  • Substance abuse: If one parent is struggling with drug or alcohol abuse, and it’s believed to affect the child's safety, the court may intervene with an ex parte order.
  • Other serious threats: The court may also grant an ex parte order in cases involving severe neglect, emotional abuse, or other direct risks to the child’s well-being.

In any case, the parent requesting the ex parte order must provide convincing evidence that the child is in danger or that there’s an urgent need for protection.

The Process for Requesting an Ex Parte Custody Order

Filing for an ex parte custody order follows a specific process, and time is often of the essence. If you believe your child is in immediate danger, it’s critical to act quickly and understand the steps involved.

Filing the Request

To obtain a temporary custody order, you’ll need to file a formal request with the court, explaining the emergency and why immediate action is necessary.

This request is typically submitted along with a declaration detailing the events or behavior that pose a risk to the child. Any supporting evidence—like police reports, medical records, or witness statements—should be included to strengthen your case.

Hearing

One key point to remember is that the other parent does not need to be notified before the ex parte hearing. This is what makes these orders “ex parte,” meaning only one party (the requesting parent) is present during the initial hearing. The court reviews the evidence, and if it finds that an emergency exists, it will issue a temporary custody order.

However, this isn’t the end of the process. A full hearing is scheduled shortly after, where both parents will be able to present their case. The temporary ex parte order will remain in effect until that hearing, where the court can decide whether to make any of the provisions permanent or modify them based on new information.

Seeking Legal Guidance

If you're involved in an emergency custody situation, whether you’re requesting an ex parte order or responding to one, it’s critical to have legal guidance. These situations can move quickly, and having an attorney by your side can help ensure you’re taking the right steps to protect your child and your parental rights.

An experienced family law attorney will help you file the necessary paperwork and guide you through the evidence needed to make a compelling case. They can also represent you at both the ex parte hearing and the follow-up hearing, helping you navigate what can be a stressful process.

Let Holstrom, Block & Parke, APLC Protect You

If you're facing an emergency custody situation and need help with an ex parte custody order, Holstrom, Block & Parke, APLC is here for you. With over 300 years of combined experience in family law and child custody matters our attorneys are ready to provide the representation you need during these challenging times.

We understand how emotionally charged and complex custody issues can be, especially when the safety of your child is involved. Don’t hesitate to reach out to us for compassionate and effective legal guidance.

Contact us today at (855)-426-9111 to schedule a consultation, and let us help you get through this difficult situation with confidence.

What if My Spouse Won’t Sign Divorce Papers in California?

If you have a divorce looming over your head, the last thing you need is an uncooperative spouse. Despite the reasons why things are stagnant, it’s frustrating and stressful not to be able to move on from the past in peace.

Thankfully, California law frees you from being at the mercy and whims of an unwilling or stubborn spouse.

We've seen spouses time after time try to stall or derail the divorce by not signing those papers. While annoying, it can be overcome, and we're more than happy to help you take the necessary steps so you can move forward with your life.

We'll explain the no-fault divorce system in California, the legal proceedings, and the options available to you if your spouse refuses to cooperate at any point.

Holstrom, Block & Parke, APLC has a team of experts with extensive experience in such situations. We’re committed to supporting you through this process while instilling confidence and offering clarity.

Understanding California’s No-Fault Divorce

California’s “no-fault” divorce system aims to bypass a lot of the messy and embarrassing obstacles that can occur within a divorce.

Under this law, neither spouse has to prove any wrongdoing or fault to get a divorce. It doesn’t matter if a party refuses to sign the papers or strongly opposes the decision. Their refusal doesn’t change the fact that you can move forward with the process; all it takes is one party’s desire to end the marriage.

The Process When Your Spouse Won’t Sign

Even with the process being simplified, you still want to be prepared and aware of the proper protocol for handling a refusal to sign. Here’s an overview of what you can expect from start to finish.

Filing for Divorce

The first step in any divorce is filing a Petition for Dissolution of Marriage. This document formally starts the divorce proceedings, and you only need your own signature to get it going.

Once filed, this petition sets the legal wheels in motion.

It signals to the court that you're serious about ending the marriage, and it also notifies your spouse that the process has begun, even if they’re not ready to accept it yet.

Serving Your Spouse

After filing, the next step is serving the divorce papers to your spouse. This is a legal requirement, ensuring that your spouse is officially informed about the divorce proceedings.

However, serving the papers doesn’t mean you need their consent or signature. There are several ways to serve your spouse; and if they’re being particularly difficult, you can request help from a third party, such as a professional process server or law enforcement officer.

If you're already trying to keep things flowing smoothly, make sure you follow the correct procedures here to avoid any delays. But rest assured, your spouse’s refusal to acknowledge or sign the papers at this stage won’t stop the divorce from happening.

The Response Period and Default Judgment

Once served, your spouse has 30 days to respond to the divorce petition. During this time, they can agree, disagree, or raise any issues they might have.

But what happens if they do nothing? If your spouse decides to ignore the petition, the court can proceed without them by granting a “default judgment.”

A default judgment is a legal way of moving the divorce forward when one party refuses to participate.

It grants the court permission to make decisions about the divorce—such as division of assets, child custody, and support—based on the information you provide, without any input from your spouse.

Contested vs. Uncontested Divorce

If your spouse refuses to sign, it doesn't automatically lead to a contested divorce or a drawn-out legal battle.

A contested divorce happens when both parties cannot agree on key issues like asset division, child custody, or spousal support.

In contrast, an uncontested divorce is when both spouses agree on these matters without the court’s intervention.

However, even if your spouse is initially uncooperative, there’s still a chance to reach an uncontested divorce if they eventually come around. If not, the court will step in to resolve the contested issues, but the divorce itself will still proceed.

Managing a Default Divorce

If your spouse continues to be stubborn and you move toward a default divorce, there are specific steps to follow.

First, you’ll need to submit the necessary paperwork to the court, including a Request to Enter Default. This paperwork essentially asks the court to proceed with the divorce based on your original petition.

Once the default is granted, the court will schedule a hearing to finalize the divorce.

At this hearing, the judge will review your requests for property division, custody, and support and will issue a final judgment.

The key here is that your spouse’s refusal to participate means the court will generally approve your requests, provided they are reasonable and within the bounds of California law.

Don’t Face Divorce Alone—Let Our 300+ Years of Combined Experience Guide You

Divorce is never easy, especially when dealing with a spouse who won't budge. You'll need support, and that's where we step in.

At Holstrom, Block & Parke, APLC, we understand how challenging this process can be. With over 300 years of combined experience, our team is ready to guide you every step of the way. We’re committed to helping you achieve the best possible outcome.

Our Certified Family Law Specialists have handled many cases like yours. We know the tactics that non-cooperative spouses use, and we know how to counter them effectively.

If you’re facing a situation where your spouse won’t sign the divorce papers, don’t wait. Contact us today to discuss your options. We offer confidential consultations where we can explore your situation in detail and provide personalized legal advice. Call us at (855) 939-9111 or visit our contact page to schedule your consultation.

Let us help you move forward with confidence and peace of mind.

What to Expect After Filing Divorce Papers in California

When we talk about divorce, it’s never just a sterile legal procedure full of paperwork and court dates – it’s a serious, momentous life transition.

Especially in California, a state where divorce proceedings have specific rules, timelines, and policies, making it crucial to understand what lies ahead after taking the first.

The initial divorce papers are just the beginning, and clearly understanding what follows can help you more confidently navigate and weather the journey.

Let’s take a look at what happens after filing divorce papers in California, from serving the documents to obtaining a final judgment, and illuminate each step’s role in the overall process.

Our team at Holstrom, Block & Parke, APLC, has over 300 years of combined experience, and we’re here to guide you through each phase of your divorce with clarity and support.

Serving the Divorce Papers

Once the divorce papers are filed, the next critical step is serving them to the respondent—your spouse. This service of process is a formal way of letting them know that legal action has been initiated.

California law requires that someone over the age of 18 who is not involved in the case must serve the papers.

This can be done by a professional process server, a sheriff, or even a friend. The respondent has 30 days to respond after being served.

It’s essential to serve the papers within a specific timeframe to avoid delays in your case.

Failure to do so can slow down the entire process, leaving you in legal limbo. According to the California Courts Self-Help Guide, this step is not just a formality; it’s a critical part of the process that ensures both parties are aware of the proceedings and can prepare accordingly.

Responding to the Divorce Petition

Once the respondent receives the divorce papers, they have a few options. They can file a response agreeing with the petition, contesting it, or requesting an extension if they need more time.

Filing a timely response is vital because it protects the respondent's rights throughout the divorce process. Without a response, the court may grant a default judgment, which could be unfavorable to the non-responding spouse.

The response should address the issues raised in the petition, such as child custody, property division, and support.

It’s a chance for the respondent to express their position on these matters. The California Courts highlight the importance of this step, as it lays the foundation for the court’s decisions moving forward.

Temporary Court Orders

Divorce often comes with immediate concerns, especially when it involves children or shared property. Temporary court orders can address these issues while the divorce is pending.

These orders might cover child custody and visitation, spousal support, child support, or even those who stay in the family home. In fact, there are automatic temporary orders that become active during the divorce and that are meant to keep either party from:

  • Removing children of the parties from the state without prior written consent or an order from the court;
  • Transferring, concealing, or disposing of real or personal property; and
  • Cashing, borrowing against, canceling, transferring insurance or other coverage.

Requesting a temporary order typically involves filing a motion with the court and attending a hearing where both sides can present their case.

The judge will issue an order that remains in effect until the final divorce judgment.

Temporary orders are crucial for maintaining stability during the divorce process, especially when emotions are high, and both parties need clear guidelines.

These orders are intended to provide immediate relief and structure until the final resolution is reached.

Financial Disclosures

Transparency is key in any divorce, and California law mandates that both parties fully disclose their financial situation.

This includes listing all assets, debts, income, and expenses. The purpose of this requirement is to ensure a fair division of property and an equitable support arrangement.

The disclosure process involves completing a series of forms, such as the Income and Expense Declaration and the Schedule of Assets and Debts.

These forms must be exchanged between both parties early in the divorce proceedings. If there are discrepancies or omissions, it can lead to penalties or an unfavorable ruling.

The importance of accurate financial disclosures cannot be overstated. According to California Family Code Section 2100, the goal is to prevent one party from hiding assets or misrepresenting their financial status, which could unfairly influence the court’s decisions.

Waiting Period

California has a mandatory six-month waiting period before a divorce can be finalized. This period begins from the date the respondent is served with the divorce papers.

The waiting period serves as a cooling-off time, allowing both parties to consider reconciliation or to finalize the terms of their divorce without rushing into a decision.

While it may seem frustrating to have to wait six months, this period can also be a time to negotiate and reach an agreement on the terms of the divorce. It’s an opportunity to resolve issues amicably and avoid a lengthy trial.

However, it’s important to note that even if all terms are agreed upon, the divorce cannot be finalized until the waiting period has passed.

Settlement or Trial

Divorce cases in California can end in one of two ways: a negotiated settlement or a trial.

A settlement occurs when both parties agree on all terms, including property division, child custody, and support. Settlements are often reached through negotiation or mediation and are typically faster and less costly than going to trial.

On the other hand, if an agreement cannot be reached, the case will go to trial. A judge will then make the final decisions on the unresolved issues.

While a trial can provide a definitive resolution, it is often more expensive, time-consuming, and emotionally draining than a settlement. Moreover, when the court makes decisions, both parties lose the ability to control the outcome.

Exploring settlement options, such as mediation, is often in the best interest of both parties. It allows for more control over the final terms and can reduce the stress and uncertainty associated with a trial.

Final Divorce Judgment

After all issues have been resolved, whether through settlement or trial, the final step is obtaining a divorce judgment. This judgment is a court order that officially ends the marriage and outlines the terms of the divorce, including child custody, support, property division, and any other relevant issues.

Once the judge signs the divorce judgment, it is legally binding. Both parties must adhere to its terms.

If circumstances change in the future, such as a significant change in income or living arrangements, the judgment may be modified, but this requires a separate court action.

The final judgment marks the end of the legal process, but it also signifies a new beginning for both parties. Understanding the implications of the judgment and ensuring it reflects your best interests is crucial.

Your Next Step Towards Resolution

Filing for divorce is just the beginning of the journey. As we've outlined, the process involves several steps, each with its own set of challenges and decisions.

Understanding these steps is crucial to navigating the process effectively. At Holstrom, Block & Parke, APLC, we are committed to guiding you through every stage, providing the support and expertise needed to protect your rights and interests.

If you're facing divorce or considering your options, don't go through it alone. Let our team of Certified Family Law Specialists help you move forward with confidence. With over 300 years of combined experience, we have the knowledge and dedication to ensure you achieve the best possible outcome.

If you're ready to discuss your situation and explore your options, we’re here to help. Call us at (855) 939-9111 or contact us online to schedule a consultation. Let Holstrom, Block & Parke, APLC guide you through the process, ensuring your rights are protected every step of the way.

Does It Matter Who Files for Divorce First in California? Pros & Cons

Getting a divorce is an extremely stressful situation for everyone involved. Emotions are running high, and there is a seemingly endless laundry list of things to sort out. It’s natural to want to get the jump on proceedings by filing first.

But it’s important not to get ahead of yourself and to carefully consider the possible ramifications–and benefits–of filing for divorce first.

At Holstrom, Block & Parke, APLC, our Family Law Specialists and associates have years of experience dealing with divorces and can help you decide what’s right for you in your specific situation. To get you started, here’s a general overview, including:

  • Pros of Filing for Divorce First in California
  • Cons of Filing for Divorce First in California
  • Factors to Consider Before Filing First
  • The Importance of Legal Counsel

Pros of Filing for Divorce First in California

Filing for divorce first might not give you a significant legal advantage; however, it has some definite benefits.

While the exact impact of filing first depends on your specific situation and that of your spouse, here are some pros you may see if you file first.

Control

The primary benefit of filing first is having control over the timing. You can begin the process when you are prepared, giving you an edge on the upcoming legal proceedings.

Additionally, when you file, you can request temporary orders for custody, support, residence in the marital home, and other matters.

This can be especially important for situations of domestic violence, families with young children, or if you have concerns about asset dispersion.

Choice of venue (sometimes)

Filing first can sometimes affect jurisdiction or where the case is heard and where arbitrations and other meetings occur.

This can give you a logistical advantage, especially if you and your spouse live in separate counties.

However, things such as commute time, work schedule, and child care will still be taken into account when arranging scheduled meetings.

Setting the narrative

Many perceive filing first as an opportunity to frame your case first in the petition, which can impact how the case is perceived, at least initially.

It may give you a slight edge over your spouse, though it should be noted that any legal counsel will look into the full facts of any disputes from an unbiased and facts-based standpoint.

Filing first may also give you time to supply any additional documentation supporting your side first, leading to your narrative being better supported with evidence, though again, this is only an initial advantage.

Mental readiness

A major reason to file first is so that you can be as prepared as possible for the proceedings to come.

Taking that first step to closure and moving forward can be a massive relief and help you be in a better headspace and less emotionally volatile during the divorce.

This means you are likely to be calmer, more rational, and better prepared, as well as feeling better yourself.

Feeling in control

Finally, one of the primary benefits of filing first is feeling in control. A divorce can be an extremely difficult, upsetting, and overwhelming time.

Taking that first step toward resolution can be an empowering feeling and help you to regain some control over the trajectory of your life, finances, living situation, and relationships.

Cons of Filing for Divorce First in California

No one should walk into the divorce process with blinders on, so it’s crucial to understand the several cons of filing for divorce first in California. Carefully consider each of these possible negatives before making a decision.

Financial burden

The petitioner is likely the one who will be responsible for the upfront filing fees, meaning a greater initial financial burden.

Seeking legal aid first also means you are likely to retain it for longer overall, which may mean you have paid more overall when the divorce proceedings are complete.

Potential for conflict

Filing first, especially if you have not notified your spouse of your intentions, may cause conflict or escalate existing tensions.

Being hit with a divorce unexpectedly can be surprising, upsetting, and hurtful and can lead to more malice and emotions throughout the proceedings.

While the best course of action is to have an upfront conversation before filing, we know that this is not always possible.

So, if you do intend to file first without notifying your spouse, it’s important to be ready for the potential conflict that may follow.

Revealing your hand

Your initial filing will contain your desired outcomes from the proceeding, which you will reveal to your spouse.

This gives them the opportunity to dig in their heels and push back at your requests.

In some circumstances, they may not be aware of your end goals, which can lead to a more flexible and mutually beneficial negotiation if you do not file first.

No automatic "win"

Despite what some say, filing first does not grant you an automatic “win” of the divorce.

Filing first does not give you an advantage when it comes to financial or property distribution, custody, or spousal support (alimony.)

Factors to Consider Before Filing First

So, given the pros and cons of filing first, how do you decide what the right course of action is? While seeking legal advice is the best way to choose how to handle your specific situation, here are some of the main factors you will be asked to consider so you can be better prepared.

Your emotional state

Are you prepared for the legal and emotional challenges of divorce? Filing first does not give you an advantage if you are underprepared.

Take time to calm your mind and assess whether you’re ready to go through with this.

On the other hand, if you’re feeling powerless, filing first can help to set things straight and get you on a better path.

Financial stability

It’s key to consider the initial costs and potential for increased legal fees. Filing first requires you to pay an initial filing fee (generally $435-$450 in California). A fee waiver may be possible if your financial situation dictates it.

On top of the filing fee, however, you need to be able to afford legal aid from the time you file. If you file first, you will naturally have to pay legal fees slightly longer than your spouse.

The complexity of your case

Are complex assets, debts, or custody issues requiring careful planning before filing? Make sure that you have all your ducks in a row.

While it’s tempting to file as soon as possible to get the ball rolling, doing so before you're prepared can lead to a longer and messier process, with a higher potential for unfavorable outcomes.

Filing first can also give you an advantage in this area if you need temporary orders for custody or asset evaluation/division.

The Importance of Legal Counsel

The very best thing you can do to give you an advantage in your divorce is to secure good legal counsel. Choosing to file first is an important and highly case- and situation-specific decision.

A qualified California family law attorney can provide tailored advice based on your unique circumstances, helping you weigh the pros and cons and develop an individualized approach.

You need the right guidance and support to decide if you should file first. The Family Law Specialists and associates at Holstrom, Block & Parke, APLC, are ready to steer you through from start to finish.

Give us a call at 855-939-9111 or contact us online to get started with a confidential consultation today and get ready to begin the next chapter of your life.

What Is The Average Child Support Payment in California?

When parents in California separate or divorce, one of the key issues they must address is child support, child support is meant to ensure that a child's financial needs are met by both parents, even if they no longer live together.

While every case is different, understanding how child support is calculated and what factors affect the amount can give you a clearer picture of what to expect. So, what is the average t payment in California, and what factors influence it? Let’s break it down.

Understanding Child Support in California

Child support in California is calculated using a formula that considers several factors, including both parents' incomes, the amount of time each parent spends with the child, and the child's specific needs. The goal is to ensure that both parents contribute fairly to their child's upbringing.

At Holstrom, Block & Parke, APLC, we’ve helped numerous families navigate the complexities of child support and family law.  Though it’s tempting to seek an "average" number for child support payments, it's important to remember that each case is unique, and many variables come into play when determining the final amount.

Factors Affecting Child Support Calculations

California uses a statewide formula to calculate child support, known as the "guideline" formula. This formula considers a variety of factors to ensure that the child’s financial needs are adequately met while also taking each parent’s financial situation into account.

The Statewide Formula

Several key elements are considered when calculating child support in California:

Each parent's income: The court will look at both parents' gross monthly income, which includes wages, bonuses, and other forms of compensation. If one party is underemployed or unemployed by choice, the court may impute income based on what they could potentially earn.

Time spent with the child: How much time each parent spends with the child (also known as "timeshare") plays a big role in determining child support. A parent with more custodial time may receive more support to account for the additional financial responsibility.

The child’s needs: Any special needs, healthcare costs, education expenses, or childcare can also influence the amount of support. These expenses ensure that the child has access to the necessary resources.

Tax implications: Child support is influenced by tax deductions and credits, as well as which parent claims the child as a dependent on their taxes. This can affect both the financial obligations and the final support amount.

Deviations from the Guideline

Although the formula provides a guideline, courts can deviate from it in certain circumstances. For example, if one parent has an exceptionally high income or if the child has special needs that require additional care or expenses, the court may adjust the amount accordingly.

Average Child Support Payment in California

Child support payments can vary significantly from case to case, so understanding what the "average" looks like can be helpful when setting expectations.

Range of Payments

The general range for child support payment in California generally falls between $400 to $500 per month for one child. However, it’s essential to remember that this is just an estimate. The actual amount you may owe—or receive—will depend on your unique circumstances, such as income levels, custody arrangements, and any special needs your child may have.

Estimated Averages

For one child, many families see support payments in the $400 to $500 range, but high-income earners or cases involving special needs could push that number higher. For multiple children, the average increases. Each additional child typically adds a percentage to the base amount, reflecting the need to support multiple dependents.

Comparison to National Average

California’s average child support payments tend to be higher than the national average. This is primarily due to the state’s higher cost of living, especially in cities like Los Angeles, San Francisco, and San Diego. Nationally, the average child support payment tends to be lower, with many states averaging closer to $300 to $400 per month.

Addressing Common Questions

As child support can be a confusing topic for many parents, let’s address some common questions that often arise during these discussions.

Impact of 2023 Law

California has made some updates to family law, including changes that might affect child support. For example, adjustments to tax laws or child-related expenses could impact the calculation of child support for new cases or modifications to existing support orders.

Factors Causing Variations

Why do child support payments vary so much in situations that seem similar? The answer lies in the many elements that influence the amount. Even slight differences in income, the custody arrangement, or the child’s needs can lead to significant differences in payment amounts.

For example, if one parent has significantly higher earnings or there’s a large difference in the time-share arrangement, the payment could be much higher than the norm.

Custody Time and Child Support

In California, child support is closely tied to the amount of time each parent spends with the child. Generally, the more time you spend with your child, the less you’ll owe in support because you’re directly covering more of the child’s day-to-day needs.

This is why it’s important to consider how your custody arrangement will impact your financial responsibilities.

High-Cost Areas

Living in a high-cost area of California, such as Los Angeles or the Bay Area, can increase child support payments. The court will take into account the higher cost of housing, education, and childcare in these areas when determining the support amount.

The Importance of a Personalized Assessment

Even though averages can give you a general idea of what to expect, it’s important to remember that every family’s situation is different. No two cases are exactly alike, and relying on averages alone can be misleading.

No Two Cases Are Alike

Child support is based on a combination of circumstances that are unique to each family. From income differences to the specific needs of your child, each case will result in a different support amount. That’s why it’s important to work with a family law professional who can give you a personalized assessment based on your specific circumstances.

Need Help with Child Support? Contact Us

If you have questions about child support calculations, need to modify an existing support order, or want to help understand your financial obligations, Holstrom, Block & Parke, APLC is here to help.

Our experienced family law attorneys can provide you with expert guidance and support to ensure that your child’s financial needs are met. Contact us today at (855)-426-9111 to schedule a consultation and discuss your options.

How Long Can a Divorce Be Put on Hold? Legal Options in California

Life is unpredictable, and there may be a variety of reasons that you want to put a hold on your divorce proceedings in California. So what are your options for doing so legally? And how long can the hold last?

The answers depend on where you are in the process and your reasons for wanting to put the divorce proceedings on hold. Your divorce attorney can explain the options that make the most sense in your situation, but here are some general strategies to consider.

One Party May Ask the Court for a Continuance

Putting a legal proceeding like divorce on hold requires specific legal action. If you just refuse to comply with requirements or fail to show up for court, there will be negative consequences that you don’t need. However, you can have your attorney ask the court if the matter may be put on hold by filing a motion for continuance.

Filing the motion is putting in a request, and the court has the discretion to grant or deny the request. Therefore, you need to be sure your attorney includes compelling reasons for your request. If the court believes a request for continuance is being made to delay the case unnecessarily, the request is likely to be denied.

A continuance usually puts the case on hold for 30 days, but a longer hold can be granted if justified. Holds of 45 or 90 days are not unusual. It may be possible to request additional continuances later but you will need to submit a separate motion with justification each time.

Justifications for a Continuance in California

According to Rule 3.1332 of the California Rules of Court, to alter or slow the course of justice through a continuance, you need to present a valid reason. Otherwise, the court may assume that you are using the continuance as a way to frustrate the other spouse and drive up their divorce costs. An experienced attorney will understand the reasons the court will find persuasive and those that may be considered frivolous.

Reconciliation

One of the most common reasons for requesting a continuance—and one that is also likely to be granted—is that both spouses are trying to reconcile and stay married. If the judge believes there is a chance you will reconcile, then the court will grant a continuance.

At the end of the 30 day hold, if you have decided to stay married, then the party that first filed for divorce should file a request for dismissal and then will end the divorce process. If you did not reconcile, then either party can file a motion to remove the hold and continue with the divorce proceedings.

Change in Status of the Case

The rules provide for a continuance if there is a “significant, unanticipated change in the status of the case.” For instance, if both spouses agreed on a number of issues and one spouse suddenly changes their mind, the other spouse may be granted a continuance to give them time to prepare to adjudicate the issue.

Illness or Death

If either spouse has a medical problem, that can serve as grounds for a continuance. Similarly, if either spouse’s attorney is unable to work on the case or appear in court for medical reasons, then the court is likely to grant a motion for continuance. In addition, if a spouse needs to hire a new attorney due to the medical problem or another issue, the court may grant a continuance to give the new legal counsel time to get up to speed on the case.

Extension of the Waiting Period

Another method of putting a divorce on hold in California would be to ask the court to extend the six-month waiting period that is required before a divorce can be finalized. While the law does not provide a method for shortening the waiting period, Section 2339(b) of the California Family Code grants courts the authority to extend the six-month period “for good cause shown” As with the motion for a continuance, an experienced attorney can work to present a request to the court that demonstrates persuasive and compelling reasons while the waiting period should be extended in a particular case.

Talk to Holstrom, Block & Parke APLC to if You Want to Put a Divorce on Hold or Object to a Continuance

In some cases, a hold on the divorce process is justified while in other situations, one party tries to use the legal process to harass the other by delaying the proceedings. Whether you want to request a continuance or extension or you want to block maneuvers you believe are unjustified, the experienced team at Holstrom, Block & Parke, APLC is ready to put 300+ years of collective experience to work to achieve your goals. Contact us today to schedule a confidential consultation and learn your next steps.

How Transferring Assets In A Divorce Can Lead To Capital Gains Tax Implications In California

Many people mistakenly believe that California’s community property laws make it simple to divide property in divorce. The thinking is that if both spouses get half, how hard can it be to figure out?

The answer is that it can be extremely difficult–if you’re paying attention to the right details. One of those details is liability for capital gains tax. Both the federal government and the state of California impose significant taxes on capital gains and if you don’t account for the potential tax liability when dividing property, one spouse could easily end up with an unequal share of the true value of marital assets.

The Transfer in Divorce is Not the Issue

Under California law, property acquired during the marriage is jointly owned by both spouses, even if one spouse earned it or bought it. This property gets divided during the divorce process, but it is usually not a literal division. No one wants half a car, for instance. Instead, couples generally assign a value to each asset and then develop a plan to allocate assets worth half the value to one spouse and half of the value to the other. During the process, assets may be transferred between spouses. A car titled in both names may be retitled in the name of one spouse or a new deed may be created transferring the family from both partners or the name of one partner.

The transfers that occur in the process of dividing assets during divorce generally do not trigger tax liability. What you need to be aware of is the potential for capital gains tax after the divorce because that potential can affect the current value of an asset.

Understanding State and Federal Capital Gains Tax

Capital gains tax is a tax obligation based on the profit earned from selling an investment. That investment could include stocks, bonds, collectibles, real estate, or anything that increases in value. For instance, if you bought 100 shares of stock when it was selling for $5 a share and you sell those shares when the price has gone up to $8 per share, then you have reaped a capital gain of $3 per share or $300. That $300 will be taxed by both the federal government and the state of California at the applicable capital gains rate. The rate varies according to factors such as how long you have held the investment and your overall tax bracket.

How Capital Gains Taxes Can Impact Assets in Divorce

The reason you need to pay attention to capital gains tax during divorce is that it impacts the value of assets. If you own $1,000 worth of stock in ABC corporation and $1,000 worth of stock in XYZ corporation, their actual value might be different when you take capital gains tax into consideration. You might have purchased the ABC stock years ago when it only cost $250 while the XYZ stock might be a recent purchase that hasn’t gone up much in value. If a marriage settlement gives one spouse the ABC stock while the other spouse takes the XYZ stock, the spouse with the ABC stock will eventually owe capital gains tax on the $750 increase in value while the spouse with the XYZ stock may not owe any capital gains tax at all. Even if you don’t plan to sell an asset immediately, you need to consider whether it has appreciated in value and how much tax you would owe if you were to sell it. Subtracting that amount gives you a more accurate picture of the true value of that asset.

This can be complicated to calculate in some situations, such as when you have been acquiring stock gradually over the years as part of a profit sharing plan. But if you want to ensure that your property division agreement is truly fair, it is important to work with an attorney who is willing to delve into these details.

The Team at Holstrom, Block & Parke Understands How to Protect Your Interests in Community Property

Capital gains tax liability is just one of many factors that can affect the real value of your property settlement in a California divorce. The Certified Family Law Specialists and associates at Holstrom, Block & Parke, APLC can help you accurately assess all property and debts to help you keep your separate property and get the correct share of community property. For a confidential consultation to learn more about the ways we can safeguard your interests in divorce, contact us today. 

What Is Wasteful Dissipation in California and How Can It Affect My Divorce?

The term “wasteful dissipation” is not one used in casual conversation, so when it comes up in the context of divorce, it confuses many people. It is important to understand how it is defined by California courts and the impact it can have on divorce.

While California laws put certain measures in place designed to prevent wasteful dissipation, it still occurs far more often than most people expect. Understanding the definition and the effect of wasteful dissipation can help prevent you from losing out on resources in divorce.

Defining Wasteful Dissipation

The California Family Code does not specifically define wasteful dissipation. Courts have defined the term in generally similar ways. Essentially, when one spouse uses marital community assets for a wrongful purpose, that can be considered wasteful dissipation. It is generally an issue only raised in divorce, but it could potentially be part of a postnuptial agreement.

A wrongful purpose might be something illegal or something that is simply excessive and that benefits one spouse while denying the other to gain an advantage in divorce.

Some examples include:

  • Buying gifts for and paying for vacations taken with someone a spouse is having an affair with
  • Spending excessive amounts on drugs or partying
  • Gambling
  • Going on crazy shopping sprees
  • Selling property to a friend for less than face value or giving extravagant gifts to friends

With gifts to friends or family members, there is an often assumption that the gift recipient is just holding the property temporarily and will give it or some other benefit to the spouse when the divorce is over, so that is effectively trying to cheat the system and gain an unfair share of marital property during divorce.  

The Effect Wasteful Dissipation Has on a California Divorce Case

Property that spouses acquire during a marriage are considered to be owned equally by both of them. Debts that are created during the marriage are also considered to be the equal responsibility of both spouses. This is generally true even for assets acquired only by one spouse, such as a spouse’s earnings, or debts created solely by one spouse, such as when a spouse goes shopping. If either spouse buys a new swimsuit for $60 and pays for it with a credit card, for instance, both spouses are fully responsible for paying the bill, even though only one of them can actually wear the suit. In divorce, the debt would be divided so that each spouse owed $30.

When spending is considered wasteful dissipation, the situation changes. The debts run up by a wasteful spouse might be allocated entirely to that spouse. If the swimsuit was part of a shopping spree that involved buying 60 swimsuits for $6,000, that would be unnecessary, extravagant, and wasteful. A judge might decide that the spouse who took on this debt should be responsible for paying for all of it.

Alternatively, the court might award the other spouse an extra share of marital property to make up for the waste, particularly if the bill has already been paid. The California Family Code allows the court to award an amount of community property determined to have been “deliberately misappropriated” by one spouse to the detriment of the other spouse.

Automatic Temporary Restraining Orders

Once a divorce petition has been filed, California law places an Automatic Temporary Restraining Order in effect which is supposed to prevent either spouse from taking extreme actions such as emptying out a bank account or selling off major assets. However, this does not help a spouse who is dealing with wasteful spending that occurs before the divorce petition is filed, and the order may not prevent all wasteful dissipation.

Proving and Disproving Wasteful Dissipation

It is important for a spouse who suspects their partner has been spending recklessly or wastefully to collect as many financial records as possible to prove what spending has occurred and how it is out of line with the typical spending patterns during the marriage.

If you have been accused of wasteful dissipation, you also need to gather and preserve financial records. You may be able to demonstrate that your spending has been normal throughout the marriage or that unusual expenses had a particular purpose for your business or to meet family needs. For instance, if a spouse alleges that you bought jewelry or fancy sports equipment for someone you were having an affair with, you may be able to show that you used the property yourself or that the gift was given to a family member or as a legitimate business favor.

Holstrom, Block & Parke Can Protect When Wasteful Dissipation Issues Arise in Divorce

Allegations that a spouse has wasted marital assets can be very complex to resolve, and often require the use of forensic accounts to piece together spending patterns and transaction history. At Holstrom, Block & Parke, APLC, our Certified Family Law Specialists and associates know how to protect financial interests in complex situations, and we can investigate to present the best evidence to support your interests if wasteful dissipation is an issue. Contact us today for a confidential consultation to learn more. 

How Long Does Alimony Last In California?

Alimony is among the most pressing concerns when a couple is going through the divorce process.

Alimony, also known as spousal support, is a financial arrangement where one spouse provides monetary support to the other following a divorce.

One of the main questions that people have is: How long does alimony last in California? Let's explore this topic in detail.

The General Rule: Length of Marriage as a Key Factor

The duration of alimony in California is significantly influenced by the length of the marriage. You might have heard about the "10-year rule for alimony," which holds particular weight in California's family law.

However, it's not that black and white in the sense that being married for ten years doesn't necessitate spousal support. Therefore, it’s essential to understand the implications when a marriage lasts at least ten years.

Marriages Less Than 10 Years

For marriages that lasted less than ten years, the law typically presumes that alimony should be paid for half the length of the marriage.

For example, if a couple was married for eight years, the expected duration of alimony would be four years.

However, this is just a general guideline. There are circumstances where a spouse might argue for a longer or shorter duration, depending on factors like their ability to become self-sufficient or other unique situations.

Marriages 10 Years or Longer

When a marriage extends beyond ten years, the rules become more flexible, and the court retains broader discretion. In these cases, alimony may continue indefinitely, though that doesn't mean it will last forever.

The court has ongoing jurisdiction and can modify or terminate alimony based on changing circumstances. This flexibility acknowledges that longer marriages often involve greater financial interdependence, making it more challenging for one spouse to achieve financial independence without support.

That last provision means that the court will be able to go back and reconsider issues related to spousal support at any time in the future. (Spousal support is the official term for alimony under California statutes.)

Factors Influencing Alimony Duration in Long-Term Marriages

In marriages lasting ten years or more, several factors can affect the duration of alimony.  Here's a closer look at the key considerations:

  • Age and Health: The age and health of both spouses play a huge role. A younger spouse may have better prospects for gaining employment or advancing in a career, while an older spouse might find it more challenging to re-enter the workforce.
  • Earning Capacity and Job Skills: The court evaluates each spouse's ability to earn income. If one spouse has significantly lower earning potential due to a lack of job skills or career experience, alimony may be extended to provide them with time to gain the necessary skills or education.
  • Standard of Living: The standard of living established during the marriage is another important factor. Alimony aims to help the lower-earning spouse maintain a lifestyle that is reasonably comparable to what they experienced during the marriage.
  • Contributions to the Marriage: Contributions aren't just financial. The court considers non-financial contributions, such as staying home to care for children, which may have impacted one spouse's career progression.
  • History of Domestic Violence: If there has been a history of domestic violence, this can influence the court's decision on alimony. The victim may require ongoing support to regain stability and independence.

Even in long-term marriages, alimony isn't always set in stone. Changes in circumstances, such as a significant increase in the recipient's income or a downturn in the payer's financial situation, can lead to modifications in the support arrangement.

Temporary vs. Permanent Alimony

Temporary alimony is awarded during the divorce process and provides financial support to the lower-earning spouse until the divorce is finalized. However, its temporary alimony doesn't guarantee that permanent alimony will be awarded.

Permanent alimony, on the other hand, is determined after the divorce is finalized. This type of alimony is intended to provide long-term support, though "permanent" is somewhat of a misnomer since it can still be modified or terminated under certain conditions.

Let's take a look at how these two types of alimony differ:

Aspect Temporary Alimony Permanent Alimony
Duration Until the divorce is finalized After divorce, possibly indefinite
Purpose Maintain status quo during divorce Provide long-term support post-divorce
Modifiability Can be modified or terminated Can be modified or terminated

 

Circumstances that Can Terminate Alimony

While alimony is an essential financial support mechanism, it's not necessarily permanent. Several events can lead to the termination or modification of alimony.

Remarriage of the Recipient Spouse

If the spouse receiving alimony remarries, this typically ends the obligation of the paying spouse to continue providing support.

The logic behind this is that the new marriage creates a new financial partnership, alleviating the need for continued support from the former spouse.

Death of Either Spouse

Alimony obligations generally end upon the death of either the paying or receiving spouse.

Significant Increase in the Recipient's Income or Self-Sufficiency

If the recipient spouse experiences a significant boost in income or reaches a point of self-sufficiency, the paying spouse may petition the court to reduce or terminate alimony.

The idea here is that the purpose of alimony has been fulfilled if the recipient no longer requires financial assistance.

Decrease in the Paying Spouse's Income

On the flip side, if the paying spouse faces a substantial decrease in income due to factors like disability, job loss, or retirement, they might seek to reduce or end alimony payments.

The court will evaluate whether the financial change justifies a modification.

Cohabitation with a New Partner

Cohabitation with a new partner can also lead to the termination of alimony, depending on the terms set by the court.

Cohabitation often involves shared financial responsibilities, reducing the need for support from a former spouse.

Exceptions to the "10-Year Standard"

While the "10-year rule" serves as a general guideline, there are exceptions that can alter how alimony is approached:

  • Periods of Separation Within a Long Marriage: If a couple was separated for a significant period during their marriage, the court might consider this when determining whether the marriage qualifies as "long-term." The length of cohabitation, rather than the official length of the marriage, may be the key factor.
  • Shorter Marriages with Exceptional Circumstances: In some cases, even shorter marriages might result in longer alimony if there are exceptional circumstances, such as one spouse giving up a career to support the other.
  • Prenuptial or Postnuptial Agreements: These agreements can override the standard rules and establish different alimony obligations. If you have a prenuptial or postnuptial agreement, it's essential to understand how it might impact your alimony situation.

Given these complexities, it's clear that navigating alimony requires more than just a surface understanding of the law. Each situation is unique, and what applies in one case may not apply in another.

The Importance of Seeking Legal Counsel

At Holstrom, Block & Parke, APLC, we understand the emotional and financial stakes involved in alimony decisions.

Whether you're seeking alimony, contesting it, or looking to modify an existing arrangement, we're here to provide the guidance and support you need. Don't leave your future to chance—contact us today for a consultation. Together, we'll work toward the best possible resolution for your alimony situation.

Reach out to Holstrom, Block & Parke, APLC at (855) 939-9111 or contact us online at https://hbplaw.com/contact/ to schedule a consultation.

Termination Of Parental Rights In California

When a court issues an order terminating parental rights in California, that action brings a permanent end to the legal relationship between a parent and child. Termination of parental rights affects not only custody and visitation rights, but also financial matters such as child support obligations and inheritance rights.

In many cases, termination of parental rights is necessary to enable an adoption to take place. A parent may voluntarily give up parental rights or the court can order termination of rights without a parent’s consent. If you need to seek a termination of parental rights or someone has filed a petition to terminate your rights as a parent, it is important to understand what is involved, what will happen, and your rights in the process. Regardless of whether you are pursuing the termination or trying to stop it, you should consider working with an attorney who understands the process.

Grounds for Terminating Parenting Rights

California statutes provide for a legal proceeding to have a minor “declared free from the custody and control of either or both parents” when certain situations occur. The court must be given clear and convincing evidence that one or more grounds for termination of parental rights exists.

Grounds for legally terminating a parent’s rights under the statute include:

  • Abandonment
  • Neglect
  • Cruelty
  • Inability to parent due to abuse of alcohol or controlled substances
  • Conviction of a felony
  • Mental illness or developmental disability
  • Moral depravity

The statutes describe conduct that can be considered sufficient to terminate rights under each of these factors. For instance, Section 7822 of the Family Code specifies a parent can lose parental rights on grounds of abandonment if they leave a child in the care and custody of another person for a year or more without making any provision for support or communication and with the intent to abandon the child. Evidence that the parent had the intent to abandon the child could include failing to provide identification for the child, failing to make reasonable efforts to communicate with the child, and failing to provide support for an extended period.

Reasons to Seek Termination of Parental Rights

There are numerous different reasons someone might want to bring an action to terminate parent rights. When one parent has remarried, the new spouse may want to adopt the child. Generally, this requires a termination of the biological parent’s parental rights. However, there may be other options available if the biological parent consents to the adoption.

When one parent has a drug or alcohol problem that could pose a danger to a child’s mental, emotional, or physical health, the other parent may want to terminate that parent’s rights so they cannot put the child at risk by gaining custody or visitation privileges in the future.

In many cases, when one or both parents have abandoned a child into the care of grandparents, other family, or even non-related friends, the caregivers and child develop such a bond that they want to seek adoption. It is usually necessary to terminate parental rights to enable the child to be legally adopted by the individuals who have been caring for the child.

Courts Will Be Focused on the Child’s Best Interests

Whether you are trying to terminate a parent’s rights or you are fighting against a petition to terminate your rights as a parent, it is crucial to remember that the court will be considering the child’s best interests at all times. When you frame your arguments and present evidence to support your position, you need to show why your goal aligns with what is best for the child.

For instance, if you are seeking to adopt the child, it is not persuasive to tell the judge how much you’ve always wanted to be a parent. That focuses on your needs rather than the child’s. Instead, you need to explain the ways that you can further the child’s development and maintain valuable relationships in the child’s life. Your attorney can help you build the strongest arguments in favor of your position.

Holstrom, Block & Parke, APLC Can Help You in an Action to Terminate Parental Rights

Termination of parental rights is a serious and emotionally complex legal action with long-term implications for a child and the family as a whole. When a parent does not agree to a voluntary termination of rights, it is important to work with a legal team that understands how to effectively pursue your objectives.

The Certified Family Law Specialists and associates at Holstrom, Block & Parke, APLC, have over 300 years of collective experience helping families achieve the right arrangements to protect a child’s best interests. To find out how we can assist with a proceeding to terminate parental rights, schedule a consultation with our team today.

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