Many individuals are looking at premarital agreements to preserve and protect asset they have acquired before the marriage. Even though California Law states that assets acquired before marriage are separate property, if a person wants to protect such assets, its a good idea to consider a premarital agreement.

In California, once parties are married one spouse can begin to acquire an interest in the property of the other spouse. Hence, with time a spouse can acquire an interest in the separate property asset of the other spouse. The general rule is that all income earned during the marriage is community property. Therefore, as one spouse continues to make payments on his or her separate property with community income the community (the married couple) begings to acquire an interest in that property.

This rule also applies to the labor, work, and effort of the parties. Thus, if a spouse owns a business that was started before the marriage but continues to grow the business after the marriage, the community acquires an interest in the increased value of the business.

It is very important that parties seek legal advise when entering into an premarital agreement. If the premarital agreement is not done properly, it will be void. This is specially true when entering into spousal support waivers. Also, the spouse that is giving up his or her rights should seek legal advise to make sure they completely understand what rights he or she is waiving.

For more information and an in depth consultation with one of our Aggressive, Caring, and Affordable attorneys, contact (800) 589-9901, or email us at info@dieferlaw.com.

One of the first issues that a divorcing couple will face is should the parties physically separate pending the divorce? If so, who should be the one to move out of the family home? The answer to this question is more complicated than what it appears at first glance. Leaving the family home pending the divorce proceedings can have serious affects on custody, visitation, who will ultimately keep the house if the couple owns the residence, and potential reimbursements from one party to the other. Another concern for a spouse contemplating to move out is will that person be allowed back into the residence. If a spouse leaves the residence (home), does he or she have any right to re-enter the house and take property (even if its personal property such as clothing)? Current California Law states that a person who voluntary leaves the house, gives up his own house key, and agrees to move out has waived his or her unconditional right to enter the home. In a recent California case People V. Gill, (2008) 159 Cal.App.4^th 149, Mr. Gill was found to have given up his right to re-enter his home. Thus, when he returned to the family home it was considered to be residential burglary. Therefore, before a party decided to leave the family home he or she needs to consult an attorney to make sure that the they are aware of their rights and/or consequences of such a decision. For a case evaluation and a free consultation with one of our experienced and aggressive attorneys call us at (800) 589-9901.

California has a toll-free Domestic Violence hotline where individuals can call and report domestic violence. In October 2007, Governor Schwarzenegger issued a statement reminding the public that 181,000 domestic calls were made to California law enforcement agencies in 2005 of which more than half involved weapons and physical force. In 2005, 155 people were murdered by their partners in California. These shocking statistics have motivated California courts and the legislature to be more proactive in making Domestic Violence laws and in issuing orders designed to protect individuals who are victims of domestic violence. Common practice in California courts is for judges to review a request for domestic violence restraining orders in their chambers. If the orders are denied, most judges have a stamp he or she uses to deny the request. If the order is granted, the judge will sign the order. However, a recent California Case held that it may be abuse of authority for a judge to deny a restraining order just by stamping it with a denial if no reasons are provided why the act does not constitute domestic violence. In another recent California Case, the court held that if there are children born to the parties involved in the request for restraining orders, and if the court grants a restraining order, that the court must also make child custody orders. It is abuse of discretion for the court to refuse to make such orders and request that the parties file a divorce, or if not married a petition to establish parental relationship. It appears that in an attempt to move cases along, some judges do not take the extra time to make all the necessary order in a domestic violence case. A party the needs a restraining order, the protected party, needs to make sure the court issues all the necessary orders needed to protect that party from the restrained person. Given the statistics in this article, it is clear that domestic violence and requests for restraining orders should not be taken lightly. These are serious issues that if they are ignored can have freighting consequences. For more information and a free consultation with one of our experienced attorneys call us at (800) 589-9901.

The two main practical concerns in any spousal support orders should be: how much money will the supported spouse receive and for how long?

The general rule is that if a marriage is under ten (10) years, spousal support lasts for half of the length of the marriage. So, if a couple is married for nine (9) years, the supported spouse may be entitled to support for a period of four and one half (4.5) years.

If the marriage lasted ten (10) years or longer, the general rule is that support may last until the remarriage of the supported spouse, death of either party, or further court order. This language can create a support order that will last in perpetuity until one of the above listed conditions occurs.

The amount of money the supported spouse receives is determined by the marital life style of the parties and the ability of the supporting spouse to pay. It is very important for both the supporting spouse and the supported spouse to make sure the marital life style is accurately determined. A mistake in this part of the analysis can lead to a support order that is too high or too low.

The court should look at the income of the parties, their life styles during the time of the marriage which should include how many cars they owned, what kind of cars they had, if they traveled, had very lavish spending habits, or if the parties were very frugal. All of these factors and many more are considered by the court in determining the marital life style. The area where the parties live is also important. Generally, it may be more expensive to live in Orange Countyversus Riverside County of San Bernardino County. And some areas in Los Angeles might be even more expensive. Thus, the court may also consider where the parties lived in order to determine how much is needed to maintain that marital standard of living.

Of course, these are very simple generalizations of a very complex area of law and divorcing spouses are wise to seek legal advise and further consultation on this issue.

For a case evaluation and a free consultation with one of our experienced and aggressive attorneys call us at (800) 589-9901.

For most marriages and registered domestic partnerships, the family residence is the main asset that the parties own. As such, properly dividing the value of the home is a crucial and important part in any divorce or legal separation.

In today’s ever decreasing real estate market, many southern counties have seen a rapid decline in property values. The counties of Orange, Los Angeles, San Bernardino, and Riverside have experienced a drop in property values of 20% to 30% in some cities. Therefore, it is imperative that in a divorce spouses act promptly to protect their interests. A delay of just several months can cost a spouse tens of thousand of dollars. This is especially true for the spouse that will be bought out by the other.

The spouse keeping the home, or buying the other spouse out of the property, has no incentive to hurry the divorce process. The longer the divorce takes, the less he or she will have to give the other spouse. But the spouse that will be bought out needs to be aggressive in moving the divorce process as quickly as possible in order to maximize his or her share of the equity.

If you own a home and are going through a divorce, time can be your worst enemy. You need to be proactive in preserving your property rights.

For a case evaluation and a free consultation with one of our experienced and aggressive attorneys call us at (800) 589-9901.

Parents that wish to change the residence of a minor child need to be aware of the complex and strict laws that govern move away cases. Changing a child’s residence improperly can result in the loss of custody and/or criminal charges for child abduction.

In Orange County, California, as well as in most Counties in this state, a parent that wants to move out of state needs to get permission from the other parent or from a court if the move will affect the other parent’s custody rights.

Therefore, the primary issue will be the type of custody orders that the parents have: Do the parents share joint legal and joint physical custody? Or, does one parent have sole legal and sole physical custody of the children subject to the other parent’s right of visitation. Furthermore, regardless of the title in the custody orders it is also important to calculate the actual time share each parent has with children. The primary parent, the one with the larger time share, can have an advantage in a move away case if the amount of time he or she has with the children is disproportionately more than the other parent. However, this is not the rule and it is not always the case.

The following is a list of factors that the court should consider when deciding to modify a custody order in light of the custodial parent’s proposal to change the residence of the children.

1. The reason for the proposed move;
2. The children’s interest in stability and continuity in the current custodial arrangement;
3. The distance of the move;
4. The age of the children;
5. The children’s relationship with both parents;
6. The relationship between the parents including their ability to communicate and cooperate effectively and their willingness to put the interest of the children above their individual interests;
7. The wishes of the children if they are mature and of sufficient age to properly state a preference; and
8. The extent to which the parents currently are sharing custody.

Move away orders are one of the most contentious issues in custody case since it will result in one parent having limit contact and visitation with his or her children. Furthermore, the law in this area is extremely complicated and ever changing.

For more information and a free consultation with one of our experienced attorneys call us at (800) 589-9901.