Andrea Kaye And Stan Prowse Legal Eagle Radio

Military divorces are different, right from the beginning. If we're talking about a service member who's on deployment, we have to know where he or she is in order to serve the member with the petition for dissolution of marriage. In some situations, there is no way to find out, because the nature of the member's current deployment may mean that the member's whereabouts is classified information. We also have to determine if our court will have personal jurisdiction over the member, even if we can serve the member properly. Many service members maintain their legal residence in the state they lived in before they joined the service. Let's say we are talking about a female whose legal residence is in Alabama. We also know her current address, but she's not in California and she's never lived in California. Even if we can serve her, she may decide not to file a response. If she doesn't file a response, as a general rule the court doesn't have personal jurisdiction over her. We can still ask the court to enter

Senior Divorce For Those Over 50 According to a recent article in The Wall Street Journal, the overall divorce rate has decreased slightly.  However, the divorce rate among people over 50 has increased substantially.  In 1990, the rate was one in ten.  In 2009, the rate was one in four.  In other words, nowadays 40% of all divorces involve spouses over 50 years old.  We’ll call them senior divorces.  For me 40% is a surprising statistic.  Although I haven’t kept track, it seems that most of the divorces I’ve handled were between spouses with small children, which would make Mom and Dad roughly 25 to 40. We’ve all heard about couples staying together ‘for the sake of the children’ and parting company only after the kids were grown up and gone.  Those may have been senior divorces, but years ago they were only noteworthy because they didn’t seem to happen very often, and friends and neighbors were shocked when they did.  You’d think surviving twenty or so years of marriage would be a pretty good indicator tha

1. Withdraw half of the money you have in joint bank accounts, and put it in a new account in your name alone at a bank where nobody knows your spouse. This includes all checking, savings, and brokerage accounts. Your spouse and his or her lawyer will profess to be shocked.  Pay no attention, but be sure to do this before the petition is filed.  Stop using the old joint accounts.   2. Copy all account statements and similar financial documents and put them in a secure place where your spouse can’t find them, like a safe deposit box in your name alone.  Go back as many years as possible.   The originals may disappear. 3. Get your own credit card if you don’t have one already.   When you separate, start using it and cancel all the joint cards you had.  Also cancel the home equity line of credit if you and your spouse have one. 4.Change your will.  If you and your spouse have a family trust, revoke it and do a new one.  You don’t want your spouse to get your half of the community property if you die before t

Self control is an old virtue.  Lately it seems people have less of it in private and public than they used to have.  This is too bad, particularly if you are going through a divorce.  Losing it completely at home is also a good way to start one, because it will probably get you arrested and kicked out of the house. At the hearing on whether to issue a permanent domestic violence restraining order, the person from whom protection is sought (by definition the person who got arrested, aka the "perp") starts off at a tremendous disadvantage, even if wrongly accused.  What is the best way to ensure that the order is issued against you?  You guessed it: act angry and belligerent, and fail to control yourself.  Even if you were in fact the victim, by acting like a jerk you'll seal your fate. Even if the divorce doesn't start with an out of control argument and an arrest, the need for self control is still just as important, particularly if minor children are involved.  Before the judge even sees you at the heari

California's Domestic Violence Prevention Act was passed in 1993, signaling a zero tolerance policy for civilian domestic violence.  Since 2001, the Department of Defense has also had a zero tolerance policy for domestic violence in the armed forces. The definition of domestic violence covers a lot of ground. Here are the basics from the California Domestic Violence Prevention statute: intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, placing a person in reasonable apprehension of immanent serious bodily injury, molesting, attacking, striking, stalking, threatening, battering, falsely impersonating, harassing, making annoying telephone calls, destroying personal property, contacting directly or indirectly by mail or otherwise, coming within a specified distance, and disturbing the peace.  The military definition is similarly broad. Who can be protected? Again the list is inclusive: spouses, people who have lived together, and people who have merely had romantic rela

Dividing a military pension is a minefield Dividing a military pension is like walking through a minefield. From the perspective of both the service member spouse and the non-service member spouse, unexpected and unwanted results are an ever present risk. Why should it be so hard? One reason is that military pensions are the creation of federal law, but federal law does not tell you how to divide them in the event of a divorce. Another reason is the complexity of the federal statutory scheme. Until 2014, for example, a dollar for dollar trade off existed between retired pay and disability pay. A service member could agree to a division of retired pay in his or her divorce, but later decide to trade retired pay for VA disability pay. VA disability pay is not subject to division in a divorce, so suddenly the former spouse could be surprised by a dramatic reduction in her or his payments from DFAS. Congress fixed this in 2005 by allowing concurrent receipt of disability pay and retired pay ("CDRP"), so that t

Divorce and PTSD The first question for an attorney representing a service member is whether his client has PTSD. Clients don't come in the door with their psychological issues written on their foreheads, and asking someone if they've been diagnosed with PTSD is probably not the best way to start a succesful relationship.  On the other hand, there are tactful ways to approach the issue.  You can certainly ask, 'When did you last deploy?  Were you in a combat zone?'  However, that's dancing around.   In my experience, the best way to approach possible psychological issues in a military divorce is the same way they should be approached in every divorce. Part of the client's intake process in every case should be obtaining the client's medical history.  Whether you're dealing with a Fortune 500 executive who's been forced to take unwanted early retirement, or a PFC who's coming off several months in Afghanistan at a forward fire base in the middle of nowhere, you can't represent the client effectively without

Child custody in military divorces often looks different than it does in civilian divorces.  Many young men marry their high school sweethearts before they enlist.  Their wives travel with them to wherever they are based.  Soon there are small children.  The combination of low pay, stressful parenting, and homesickness often destroys the marriage. Without local roots, and usually without jobs (or jobs worth keeping), wives tend to feel that their best option is to go back home to their families, where they will have a ready made support system for themselves and their babies, including free baby sitters, and perhaps a better opportunity to find a job through family friends.  Let's say back home is Alabama. Typically the initial separation is supposed to be only a temporary visit back home, but it turns into a permanent relocation.  This is a dangerous situation for the service member husband and dad when it comes to child custody, because the California courts will lose jurisdiction over the children to the

High Conflict Divorce Cases and Mental Illness Divorce lawyers refer to some divorces as "high conflict cases."  Over the past few years we've realized that some form of mental illness drives many of them. High conflict cases usually involve child custody and visitation.  The parties cannot agree on anything and fight about everything.  The cases  go on interminably through numerous motion hearings and are resolved only by trials. I'm neither a psychologist nor a psychiatrists, so I'll keep my comments on this phenomenon in plain English. Consideration of mental illness may help answer some puzzling questions in high conflict cases.  For example, why is Mom so convinced after separation that Dad is a terrible parent who should get supervised visitation only, when prior to their separation Dad's parenting skills seemed acceptable?  Why is there such a disconnect between the available evidence and Mom's accusations of Dad's unfitness?  We could easily reverse the genders. Children And A Parents Self Worth We

As a serving sailor or marine, you have a right to treatment of PTSD Whether you are a serving sailor, marine or retired service member, you have a right to treatment for PTSD.  Federal statutes and regulations creating the Veterans Administration and governing the care it provides guarantee the availability of multiple treatment options. If you've retired, and you think you are suffering from PTSD, the obvious place to start is a VA hospital.  However, given the scandals presently unfolding regarding timely access to care at VA facilities, you owe it to yourself to get on the Internet and find out what's out there for you, before sitting in a waiting room for hours on end. The first problem you'll encounter is an information age standard: too much information. having trolled through some of it, it seems to me that the best place to start would be the site of the National Center for PTSD.  This site does not provide clinical care or individual referrals, but it does help veterans find local mental health s

Separate Property in A Divorce There are many things to consider if you’re thinking about divorce.  One of the most important considerations is records.  If you have what you think is separate property, be prepared to defend it, because you have the burden of proof.  Proving that “no” community property has gone into your separate property is the problem.  If community property has paid any expenses of your separate property, the community is entitled to reimbursement, so you lose half of the amount in question. If community property has paid part of the purchase price, made a mortgage payment that partially reduced the principal, or paid for part or all of an improvement that likewise increased the value, the community acquires a proportionate interest in the property.  This has a snowball effect if we are talking about a series of properties of increasing value. Accurate Financial Records of Separate Property Avoiding a community reimbursement claim or a community interest claim requires accurate and comp

If a divorcing couple has minor children, child support will be one of the main issues in their divorce.  Here are five things to remember about how child support works.  To find out how much you will pay or receive, someone has to do the following five things: 1.  Determine Custody. Joint legal and joint physical Joint legal, sole physical, visitation Sole legal, sole physical, visitation “Primary residence” ? 2.  Determine a parenting plan Holiday schedule School breaks (year ‘round?) Summer 3.  Calculate time share Partial days School days More time supporting parent has, the lower the payments 4.  Determine income Employees with regular paychecks – easy Self-employed – difficult Commissions and bonuses 5.  Adjusting the computer’s figure Front end – impute income Back end – “add-ons” San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.

Why is divorce so expensive?       And why does it take so long?  Why is divorce so expensive? There are many reasons.  Let's look first at dividing the assets.  Most middle class couples have more than one checking account, savings account, and money market account.  Let's take them and cut them in half.  First we have to know the date of separation, because we're going cut them in half as they existed on the date of separation.  Perhaps the date of separation is not an issue, but we still need to have statements for all the accounts for the month in which separation occurred.  If you do online banking, it's usually quick and easy to accomplish that.  However, we're also going to need copies of all the monthly statements for all the accounts for all the months from the month in which separation occurred down to the present.  That can be a surprisingly large number of statements.  Community Debt, Separate Property And Reimbursement Claims Why do we need all those statements?  The answer is that some amount

The phrases contested divorce and uncontested divorce can be misleading.  Let’s take contested divorce first, because its meaning is clearer than uncontested divorce.  From the court’s viewpoint  contested means that the case ended with a trial, the judge decided the issues, and the decision is attached to the one page mandatory judgment form as the terms of the judgment.  Of course, there are trials and there are trials.  In some cases the parties can agree on all issues except one or two, and those are the only issues decided at the trial. In that event the terms of the judgement are a combination of the judge’s decision on a few issues and the parties’ agreement on the rest. Going to Trial over Divorce or Not? If there is no trial the divorce is uncontested.  All cases in which the parties reach a settlement on all issues are uncontested in this sense.  From the parties’ viewpoint the case may have looked like World War III, but it just didn’t go to trial.  Instead it settled completely, the parties sign

Many people ask about the difference between legal separation vs divorce.  Sometimes they ask because they are not sure their relationship with their spouse is irretrievably broken. Sometimes they ask for religious reasons, or because legal separation sounds better to them than divorce.  Sometimes they ask because they’ve heard group health insurance can still cover both spouses if they’re legally separated but not if they’re divorced, which happens to be true.  Usually they are surprised to discover they will go through exactly the same steps either way. Divorce - DISSOLUTION of Marriage We need to get our terms straight at the outset.  The word “divorce” is not in the California Family Code.  The Code instead uses the phrase “dissolution of marriage.”  (The Code also uses “spousal support” instead of “alimony.”)  At the end of a divorce case, you get a Judgment of Dissolution of Marriage.  At the end of a legal separation case, you get a Judgment of Legal Separation.  The same mandatory preprinted forms a

The DVPA Provides immediate legal protection for victims of domestic abuse  California's Domestic Violence Prevention Act (the "DVPA") was passed in 1993.  Its objective is to provide immediate legal protection for victims of domestic physical abuse and emotional abuse, in the form of temporary restraining orders and injunctions against the abuser.  Prior to the Act's passage, obtaining such assistance, if it was obtainable at all, was a complicated, lengthy, and expensive process. As its title indicates, the Act applies to married people and family members living together, people who have had children together, and to people who were or are dating each other.  The definition of "abuse" in the Act covers a lot of ground: molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, destroying personal property, contacting (either directly or indirectly, by mail or otherwise), coming within a certain distance of, or distrurbing the peace of the other party. T

The California Family Code is Explicitly Asexual Regarding Child Custody Proposing to slice a child in half to resolve a child custody dispute between divorcing parents would certainly be frowned upon today.  On the other hand, children in the middle of a custody battle between Mom and Dad frequently tell their therapists they wish they were dead.  What’s going on here? The contrast between today’s conventional wisdom and the conventional wisdom of your grandparents is a good place to start looking for an answer.  Back when Dad wore a grey flannel suit, Mom wore a house dress, and the kids ate Wonder Bread, people weren’t supposed to get divorced in the first place.  When they did, the children were disposed of without much fuss.  Mom got sole legal and physical custody.  Dad got visitation every other weekend and every Wednesday evening for pizza.  And they were too dumb to know there was anything wrong with that! Then along came women’s liberation, sexual equality, day care, and getting in touch (if you w