Frequently Asked Questions - San Diego Divorce - Part 2
Q: Do I have ongoing fiduciary obligations to my former spouse after our divorce is over?
A: In California, spouses owe each other the highest duty of good faith and fair dealing throughout marriage. These types of fiduciary obligations continue on after the couple has separated and even throughout the entire divorce process. During divorce, spouses must disclose all material facts and information regarding their finances. This duty is ongoing; therefore, if new facts and information arise, the spouse has a duty to update previous disclosures. However, after the parties have resolved all issues in their divorce (by agreement or at trial), and entered a Judgment of Dissolution, they no longer owe each other an ongoing duty of disclosure. If the parties are still operating under a child and/or spousal support order, they still have the ability to obtain information regarding the other party’s finances.
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Q: What type of financial information will I have to disclosure during my divorce?
A: During a divorce, spouses have an ongoing duty to disclose all material facts and information regarding their finances. This includes thoroughly completing the Income and Expense Declaration and Schedule of Assets and Debts forms early on in the case. These forms require all divorce litigants to provide information and documents regarding their income, monthly living expenses, assets and debts. These forms are signed under penalty of perjury and heavily relied upon by the court in support hearing and with regard to property division. Typically for each asset and debt, spouses provide backup documentation regarding their claims. With regard to income, the Income and Expense Declaration form requires the parties to attach paystubs reflecting income for the past two months in addition to K-1s or a Schedule C if appropriate. If you have any questions regarding whether to disclosure certain financial information during a divorce, it is imperative to discuss your question with an experienced family law attorney.
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Q: How can I find out if my spouse is hiding money or assets during our divorce?
A: Despite the stringent fiduciary duties of disclosure that are imposed upon divorce litigants, if you believe your spouse may be hiding income or assets there are options available to you to attempt to discover any hidden information. There are two approaches parties can take when undergoing an investigation into their spouse’s finances. First, the litigant can propound discovery directly on the other party by requesting documents and or asking specific questions called interrogatories. Second, the litigant can send subpoenas directly to third parties (such as banks, a spouse’s employer, a credit card company, or any other financial institution) requesting relevant documents. As a cautionary measure it is always prudent to consider the cost of such discovery and the potential benefits. More times than not, when a spouse is suspicious that the other party is hiding money or assets, these suspicions are unfounded.
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Q: What do San Diego courts consider domestic violence?
A: The first step in determining whether a case is a domestic violence case is an assessment of the relationship between the two parties. Pursuant to California Family Code section 6221, domestic violence is defined as abuse perpetrated against (1) a spouse/former spouse, (2) a cohabitant/former cohabitant, (3) a person with whom the abuser is having/has had a dating or engagement relationship with, (4) a person with whom the abuser has a child, or (5) either party’s child. The definition of abuse is very broad and includes intentionally (or recklessly) causing (or attempting to cause) physical harm, or placing someone in reasonable fear of imminent physical harm to himself, herself, or another person. Domestic violence restraining orders are also granted on the basis of emotional harm, harassing, stalking, and threatening harm.
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Q: How can I get a domestic violence restraining order?
A: If you are in a domestic violence situation as described in the FAQ above, you may be eligible for a domestic violence restraining order. The first step is to obtain immediate protection by requesting a temporary restraining order (“TRO”). TROs are granted or denied on an ex parte basis. This means that the other side (alleged abuser) will not have notice of the TRO until they are served personally with the paperwork. At the time you request a TRO you will be given a court date for a “permanent” restraining order hearing. The court can grant a permanent restraining order for any appropriate amount of time not to exceed five years. The restrained party is entitled to present his or her side of the story within 21 days of the issuance of the TRO; therefore, the restraining order process moves much quicker than other family law matters. Any experienced family law attorney or the family law facilitator’s office (located at your local courthouse) can help you prepare the necessary paperwork to obtain a restraining order.
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Q: What can I ask for in my request for a temporary restraining order?
A: In addition to requesting a court order that your abuser stays away from you and immediately cease all abusive behavior, courts offer a number of additional requests which are available to victims of domestic violence. If you are currently living with your abuser and/or own a residence together, you can request a court order for exclusive use and possession of the residence. This means that the abuser may not return home if you two live together or may not enter co-owned property if you are residing there. In addition, you can request relief for any other potential victims such as pets and children. When requesting a temporary restraining order to protect yourself, you may also ask the court to issue an order of protection for your children. If this request is made, the court will consider whether to prohibit the abuser from seeing the children at all or whether to grant limited supervised or unsupervised visitation.
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Q: What makes the Law Offices of Nancy J. Bickford different from other family law firms?
A: Although the Law Offices of Nancy J. Bickford is a busy law firm, we recognize that first and foremost we are a service provider. As a business in the service industry we recognize the fact that our customers are our top priority. We provide personal legal services to our clients while they go through the difficult process of their family law case. Our attorneys are available at all times to handle client emergencies which often happen in sensitive matters such as custody disputes. At the Law Offices of Nancy J. Bickford, once a client retains our firm, a team of professionals is immediately assigned to that client’s case. Each client’s team consists of a lead attorney, an associate attorney and a paralegal. The client can contact any of the team members with any questions and can keep his or her bill as low as possible by speaking to the associate attorney or paralegal about certain matters. Overall, our office and our staff are welcoming and ready to work for each client by tailoring our services to his or her particular legal needs.
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Q: How often will I get updates on my case?
A: At the Law Offices of Nancy J. Bickford we pride ourselves on the efficiency of our support staff. Every piece of correspondence that is sent to our office is immediately processed according to our highly detailed system and disbursed. This means that each client generally receives a copy of any letter, pleading, fax, or other important document within 24 hours of receipt by our office. Our clients are constantly in the loop regarding their case because family law matters are extremely personal. We believe that our clients are entitled to be kept up to date regarding their cases and also participate in important decision making. Before our attorneys send significant documents or correspondence to an opposing party or attorney, they often seek the client’s approval first. In addition, clients are always welcome to schedule a sit-down meeting with our attorneys and discuss the overall strategy for and direction of their case.
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Q: How will Nancy’s CPA background be an asset in my case?
A: Nancy J. Bickford has a Master of Business Administration (“MBA”) degree and is actively licensed as a Certified Public Accountant (“CPA”). Nancy’s strong financial and business background has been invaluable to her divorce clients. If you think that your spouse is hiding money or if your spouse is self-employed, Nancy’s experience with QuickBooks and accounting can save you thousands of dollars on financial experts and discovery. If discovery is necessary in your case, Nancy knows exactly which questions to ask and which documents to request in order to avoid extensive irrelevant productions. In addition, if you have complicated finances, it is essential to fully disclose all material facts and information throughout your divorce. Nancy has the expertise to present your finances in an understandable and appropriate manner to the opposing attorney and to the Court.
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Q: What is a judgment in family law cases?
A: Regardless of the area of law, a judgment is a final resolution of a case, issue, or set of issues. In family law we often see Judgments of Dissolutions, or divorce judgments. Divorce judgments can resolve issues such as property division, spousal support, child support, attorney fees and a variety of other matters. In a divorce case, if the parties reach a mutual agreement regarding issues in their case, their agreement will become an enforceable judgment. If the parties are not able to agree on all issues and one or more issues must proceed to trial, a judgment will be entered by the court. Therefore judgments result in one of two ways, agreement of the parties or court order. Although a judgment is a final resolution, this does not preclude the parties from requesting a modification or set aside of the judgment.
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Q: How can I enforce my divorce judgment?
A: Depending on the issues resolved through the judgment there are various methods of enforcement available. If you want to enforce a judgment regarding child support, the court has many tools to incentivize parents to pay support such a wage garnishment, revocation of professional licenses, revocation of driver’s licenses, and even jail time. If you want to enforce property division terms of your judgment, the wording of judgments often spells out the relief available to the parties. Consulting with an attorney will help you understand your rights pursuant to your judgment. Often, having the attorney draft a letter to the opposing party outlining his or her legal obligations under the judgment and possible ramifications for failure to abide by its terms will inspire action from the non-complying party. If necessary, family law litigants also have the option to file post-judgment enforcement motions with the court asking for relief.
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Q: How can I set aside my judgment?
A: If you would like to set aside any portion of your family law judgment, it is crucial to meet with an experienced family law attorney as soon as possible. The law imposes strict deadlines for motions to set aside judgments. The amount of time you have to ask the court to set your judgment aside is dependent on the grounds for your relief requested. However, most claims to set aside judgments are waived within six months of the entry of a judgment. Further, it will take time for your attorney to review the judgment and prepare all of the pleadings necessary to request relief from the court. The first step necessary to stop the clock on the statute of limitations is filing a motion for a set aside with the court. Therefore, if you are even considering setting aside a judgment, seek assistance from an experienced family law attorney immediately.
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If you wish to schedule a consultation with Nancy J. Bickford, contact us at (858) 793-8884.