One of the practical issues that occurs incident to dissolution is “information leakage”. Information leakage occurs when the other side - either soon to be ex-husband or wife - has texts, e-mails, voicemails, social media posts, or other information that they should not have access to. Generally in such cases, clients want to know how the other party received such information, and are upset that the other side has such information. While it should not be shocking, the source of such information is usually shared passwords.
In a recent Pew study, it was found that sixty-seven percent (67% ) of couples share at least one online account password and twenty-seven percent (27%) have shared their passwords. While password sharing is common, and in theory, a good practice for healthy, happy relationships, given that half of all marriages end in dissolution, there are plenty of examples of how sharing passwords in an unhappy relationship can be a bad idea.
If one is absolutely certain that they are filing for dissolution, or is already in a dissolution or paternity action, it is imperative that one change their voicemail, e-mail, and social media passwords for their own accounts. While this may be somewhat frustrating for the other party based on past conduct, the important thing to remember is that those passwords were shared in the past - and based on present actions of separating, it is no longer practical to share such items. As social media screenshots are frequently featured as evidence in Family Law actions, it makes no sense to volunteer items to the other side. Similarly, if you are the party that pays for streaming services such as Netflix or Amazon Prime, it is prudent to change such passwords as well to prevent any type of abuse of the service.
Changing passwords for personal items is important, and likely needed, but is also important to remember that one cannot take further measures that would presumably violate the automatic restraining orders (ATROS) that goes into effect on the filing of a dissolution. It is also important to note that one cannot “freeze out” the opposing side from bank account or credit account information, as each spouse - even in a divorce, owes the other side a fiduciary duty.
Similarly, with respect to passwords, you should secure your own gadgets and ensure your security questions have been updated to questions that another party would not know. Ensure all social media privacy settings are up to date and make sure you do not post anything inflammatory or incriminating. One should also make sure that you are not surreptitiously being tracked by third party applications, such as Apple’s Find My Friends. If you have questions about these pitfalls or other traps, don’t just trust what advice you receive from family and friends, or the internet, but contact an attorney who can guide you between what is real – and what is a dead end, and who will advocate for you to get the protection you need. Contact our office today with any questions you may have to safeguard your reputation in Court.
While the rumor that adultery somehow affects a divorce in California is the first and most popular myth regarding dissolution, the idea that common-law marriage exists in the state is a close second. In the event you have no idea what common-law marriage is, “common-law marriage” is the theory that if one co-habitates (lives) with another party long enough in a romantic relationship, they become legally married. While on paper, there may appear to be advantages to this, the advantages are confined to that – paper and dreams.
In fact, there is no common-law marriage in California, something that was made clear by the decision rendered in Maglica v. Maglica(1998) 66 CA4th 442, 447. In this case, the Court found that simply living together as alleged “husband” and “wife” cannot give rise to a “marriage” or other legal-like union under California law. While this may sound like a decision that clarifies a question that no one asked, in practical terms on a day-to-day basis, this means that people who live together, but are not married, and are not registered domestic partners have no interest in the other party’s personal property (bank accounts, cars, retirement accounts) or real property (houses) no matter how long they have been together.
This means that if you are in a long-term relationship with another person, and do not get married, under California law, you can expect to receive nothing. In the event this sounds horrible, like many things, the law provides an out. In this case, the out is what is known as a “Marvin action”based on the seminal case in this area – Marvin v. Marvin(1976) 134 CR 815. The decision in Marvin held that parties who were not married – but co-habitated for years in a common law marriage type of situation could enforce implied or express contracts that had been articulated between the parties over the years. The Court in Marvin also found that the judicial system could look to a variety of other remedies to protect the parties lawful expectations in the absence of marriage.
It is also worth noting for those that have been in a long term relationship without marriage, but have children, child support arises on termination of the relationship. See Family Code Section 3900. Finally, it is also worth noting for those that are in a long term non-marriage relationship that has ended, and are considering their rights, Marvinclaims must be brought in a short period of time. If you have questions about your rights as an unmarried party exiting a long term relationship, don’t just trust what advice you receive from family and friends, or the internet, but contact an attorney who can guide you between what is real – and what is a dead end, and who will advocate for you to get the protection you need. Contact our office today with any questions you may have to safeguard your financial well-being.
If you have a child, or children in California, and you are involved in either a paternity or dissolution action, one of the more common items litigated is child custody and visitation. Like anything, child custody and visitation does not have to be litigated, but in the absence of an agreement, such matters usually are discussed before the Court. When child custody and visitation are being litigated, the companion motion that is usually filed either separately or at the same time is a motion for child support.
The reason that this occurs is that child custody and child support are linked, meaning that the amount of support a party pays is directly attributable to the amount of time they spend with the child or children; and their amount of monthly income. Unlike determinations of child custody and visitation, which must be adjudicated before the Family Court, child support can be litigated in either the Family Court, or in the Department of Child Support Services (“DCSS”). Under California law, DCSS is the agency that is responsible for among other things, establishing and maintaining support orders, and collecting and processing child support payments.
Determining what forum to litigate in for child support can at times be a complex question. A party may have addressed many matters involving their case with their Family Court Judge assigned to their case and may be leery of entering a new department with a new judicial officer who does not have the background and familiarity with their case. However, in many cases, either because a party will not pay, cannot pay, or is paying irregularly on a child support order, a party will want to engage the assistance of DCSS in enforcing the order. Similarly, in some cases, both parties elect to have the child support monitored, collected, and enforced by DCSS in order that a concrete record of payments exists for both sides.
With regard to DCSS, it is also relevant to note that as a state agency, they have the power to take a number of actions with regard to non-paying parties who owe child support, including, but not limited to wage assignment, and suspension of driver’s licenses. While DCSS does an excellent job enforcing Court orders and entering child support orders, a party who is in Family Court, but then elects to have DCSS handle this aspect of their case may find that the decision has other consequences. For example, by electing to proceed in a second forum, additional costs will be imposed on both sides by having to litigate in a new Court, and at times, at additional delays may occur.
A common problem in this respect is that a party who either has temporary custody orders, or is seeking modification of such orders may see the DCSS action continued until final custody orders are entered either in the action, or on the motion before the Family Court. While child support is retroactive to the date of the filing of the motion at DCSS, there can be delays in collecting the support while the matter is litigated in both forums. Correspondingly, a party who has the option to choose between whether the support question is litigated in Family Court, or DCSS should consider all of the relevant facts in their case before making a decision on which forum they want to proceed in. If you have questions about child support, don’t just trust what advice you receive from family and friends, or the internet, but contact an attorney who can guide you between what is real – and what is a dead end. Contact our office today with any child support questions you may have.
One of the more persistent rumors that occurs even into 2019 is that cheating, or if we are being formal, adultery has an effect on how a dissolution (divorce) proceeds. While adultery may be morally wrong depending on one’s ethical views, to quote Ella Fitzgerald, “…Birds do it, bees do it, Even educated fleas do it…”. Further, with the divorce rate in California and the United States hanging around fifty percent, adultery is quite common. Moral and ethical questions aside, adultery does not lead to criminal cases – in California there is no criminal statue currently that makes cheating a crime and its participants criminals. And, again, if we are being honest, adultery for the most part has no effect on how dissolutions occur or proceed.
The reason for this is that under the law in California, dissolution is a “no fault” proceeding. No fault in this context is clear and simple – neither side has to prove that the other side did anything wrong to obtain a divorce. Instead, what the law in California states is that in order to obtain a dissolution, “irreconcilable differences” must exist. Unlike many things under the law, irreconcilable differences can mean many things. It could mean that one, or both parties cheated; it could mean that the parties are not talking; it could mean that the parties simply don’t wish to be together; it could mean just about anything. All irreconcilable differences really means in a dissolution proceeding is that at least one of the two parties does not wish to be legally married.
In this context, at some point either by legal pleading – or in person – the individual (or both parties) must attest (state) to the Court that they have no desire to remain legally married to the other. If this occurs in person, any Family Law Judge will ask both parties if such differences exist, and whether any amount of counseling or reconciliation could change one or both of the parties’ minds. If the parties state that the differences cannot be overcome, a dissolution must occur. To this end, it’s also worth noting that if one party wants a dissolution, and the other does not, there is no legal way to stop a proceeding, and if a party attempts to drag out a dissolution for irresponsible reasons, sanctions and fees can be awarded along with the eventual divorce.
In this context, legally, it doesn’t matter if a party cheated, because that falls into the category of irreconcilable differences. This is not to say that new relationships do not affect a divorce in ways such as child custody and property division depending on the facts, but in terms of finding fault or proving who did something wrong, this conduct is immaterial. As a practical point as well, most Family Law judges will listen patiently to the first reference of adultery with respect to a dissolution, before calmly telling a litigant the above standards under the law. However, while California is a “no fault” state, as a further practical point, many people who go through a dissolution with or without adultery regularly seek counseling for issues that arise during the dissolution to help them deal with the non-legal issues that arise.
If you’re considering a dissolution, don’t just trust what advice you receive from family and friends, or the internet, but contact an attorney who can guide you between what is real – and what is a dead end. Contact our office today to let us know what the facts are in your case, and what questions you may have.
On a day-to-day basis, there’s an assumption that everything will go smoothly, or at least normally in going to work, running errands, being in relationships, dealing with rush hour commutes and everything else that comprises modern day life. Yet, unfortunately, in 2019, many unpleasant situations arise regularly – such as co-workers who take an unhealthy interest in following, commenting, and harassing people on social media or online; or an individual who follows a car off the freeway because they feel like they’ve been wronged; or a partner in a relationship who either verbally or physically abuses their other half. All of the last situations and more are unfortunately common – and unfortunately normal in 2019. Fortunately, there are legal remedies under California law to protect people in these different situations. The broad overarching remedy is to obtain a “restraining order”, but like the situations above, restraining orders in California vary depending on the specific facts of a case.
Before we cover the three types of civil protective orders in California, let all of us at the firm note that any sort of violence or harassment, especially of a physical nature is a serious issue, and under many circumstances may be a crime. If you feel your life is in imminent danger, or there are serious ongoing issues with a partner or total stranger, you should stop reading this article and contact the appropriate authorities in your area to obtain assistance. Under the California Penal Code, domestic violence, assault, and other issues are crimes that can and do lead to criminal liability and criminal protective orders, which in many cases supersede, or supplement the civil remedies described below.
The main type of restraining order that is issued within California is a Domestic Violence Restraining Order (“DVRO”), which requires the parties at issue to have had a relationship, including simply dating, being engaged, or married. As well, even if there was no relationship, but the parties had a child – or multiple children, such situations fall within the scope of a DVRO. To first obtain a temporary DVRO, one must prove that abuse has occurred either one time – or on multiple occasions.
Under the law, abuse can be physical or sexual harm, or threats of physical harm. If such prongs of the Domestic Violence Prevention Act (“DVPA”) were not broad enough, DVRO’s can also be issued for “…Engaging in any behavior that has been or could be illegal such as molesting, attacking, striking, stalking, threatening, battering, harassing, destroying personal property, contacting the other by mail, telephone, or otherwise, disturbing the peace of the other party.” The protections under this law are specifically broad to protect all people and minors in abusive relationships. Again, if you feel that you are a victim of domestic abuse under the terms of the DVPA, in addition to pursuing this civil remedy, you should contact the appropriate authorities for assistance.
The second most common type of restraining order is what is known as a Civil Harassment Restraining Order (“CHRO”). CHRO’s are governed by a different law than the DVPA, because they cover stalking, harassment, assaults, threats, and sexual assaults and the attendant misconduct of parties who are in essence, total strangers. The main distinction between DVRO’s and CHRO’s is that a DVRO is a restraining order for parties that have had a relationship of some sort, and a CHRO is for parties that have had no relationship and likely no interactions prior to whatever issues arose. Common examples of people who may need CHRO’s are neighbors in apartment complexes, roommates in non-romantic situations, co-workers, or again, that type of person who follows someone either on – or off-line. Again, abuse does not stop because parties are either relative or complete strangers. If you feel you need a CHRO based upon the violent acts of another, you should also contact the authorities.
The final type of restraining order is a new variant under California law, the Gun Violence Restraining Order (“GVRO”). The GVRO applies in limited circumstances where an immediate family member feels that another should not have firearms or ammunition. Unlike the two above types of restraining orders, both of which have provisions as to contact, communication, and physical distance, the GVRO only addresses the removal of firearms and ammunition. It is also worth noting that parties who are seeking a DVRO can also have firearms removed from the other party, irrespective of whether one is still co-habitating or not. While the GVRO is a newer legal remedy, in theory it is designed to aid in a party’s mental health and access to weapons during a troubled time. Again, if you feel there is an imminent issue or threat by a party and their firearms, one should contact the authorities.
These three types of restraining orders work to keep the abnormal in modern life safer, and in that regard, a little more normal. Knowing the appropriate type of protective order is however, just the start. Any protective order requires a party to provide solid evidence and meet their burden of proof. If you’re considering requesting a restraining order of any sort, don’t just trust what advice you receive from family and friends, or the internet, but contact an attorney who can guide you on how to prepare the necessary paperwork, and obtain the maximum results for your personal safety. Call us today to arrange an appointment and protect your personal safety and peace of mind.
Christopher Sunnen, Esq. is a San Diego, CA based attorney specializing in family law and bankruptcy law.