Palm Desert Family Law Attorney
Family law, also known as matrimonial law, covers a broad range of legal issues from domestic relations to family relationships. The most common areas of family law that people have to deal with are divorce, paternity, child custody and visitation, child support and domestic violence. Marriages of law enforcement officers dissolve quite frequently due to the hours and shifts they have to work. The Palm Desert Sheriff's Station serves many cities and unincorporated areas in the Coachella Valley. When these brave individuals go through divorce and child custody disputes, they need a Palm Desert Family Law Attorney they can trust. Dealing with job-related stresses is tough enough, but having to divide community property, such as pension and retirement accounts, only adds to the aggravation. Being ordered to pay spousal support on top of that can only add fuel to the fire. Having peace of mind with knowledge of the community property and child custody laws can help assuage your troubles. Addressing your legal problems head-on will help minimize the angst, and may lead to a swift resolution of the case in a fair and efficient manner.
Community Property Retirement Plans
California Family Code Section 760 defines community property (except as otherwise provided by statute) as all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state. In essence, community property is property that is jointly owned in marriage or a registered domestic partnership and is generally divided upon a divorce. Retirement plans are subject to division in a California divorce since they are community property assets.
Riverside County Sheriff's Deputies and county workers for Riverside County, California participate in the California Public Employees' Retirement System (CalPERS). The Palm Springs Police Department also participates in CalPERS. CalPERS is a defined benefit plan funded by employee contributions, employer contributions, and earnings made on CalPERS investments. Employees generally contribute a portion of their salary, which accrues in interest under their individual CalPERS account. CalPERS participant members may select to withdraw their contributions and interest if no longer working for a CalPERS-covered employer, or they may select to receive a lifetime monthly retirement allowance upon attaining eligibility requirements. There is no doubt that these pension benefits are a significant community property asset subject to division by the laws of California. Palm Desert Divorce Attorney Joseph Torri understands what it takes to represent clients facing the end of their marriage with retirement accounts.
Most pension plans require a Qualified Domestic Relations Order (QDRO). However, CalPERS states it is a governmental plan and will not be subject to the Employee Retirement Income Security Act (ERISA) that is the governing body of law for QDRO's. It is important to know that CalPERS accepts its own model orders, and will not accept the traditional QDRO under ERISA that awards nonmember spouses their share of the community property retirement. Accordingly, litigants should hire a Divorce QDRO Lawyer to assist in drafting an order that CalPERS will accept. QDRO's and property settlement agreements will be reviewed by CalPERS, and it will ensure compliance with the California Public Employees' Retirement Law and make sure it does not violate Family Code Sections 2610(b)(1) and (2).
Prior to drafting the QDRO, the nonmember spouse will have to file and serve a written summons on joinder of the CalPERS system. CalPERS also allows a proposed or filed order awarding a nonmember spouse a portion of a members benefits in order for a hold to be placed on a member's account. Only nonmember spouses or their divorce attorneys can file a written claim against the member spouse's interest, and a claim is required by CalPERS to notify it that a legal separation, divorce, or termination of a registered domestic partnership exists. The summons on joinder is a legal term of art that makes CalPERS a party to the dissolution of marriage or legal separation. The interesting fact provided by CalPERS is that if the divorce is filed outside of California or the U.S.A., joining it is not necessary. Always check with an attorney in that jurisdiction to make sure that policy has not changed. CalPERS defines a proposed order as a legal document stating the proposed division of community property. The proposed order is not filed with the court per CalPERS, but the filed order is the order that is obviously filed with the court. Knowing the terms that retirement plans use is important even if some of them are simply stated.
If the nonmember spouse is representing him or herself, the nonmember spouse can find the required judicial council forms to fill out on the court's website. The Riverside Superior Court for the County of Riverside, has the judicial council forms that litigants will need. Spouses seeking a divorce who live in Palm Desert, Palm Springs, La Quinta or the surrounding cities in the Coachella Valley may file at the Indio Courthouse Larson Justice Center.
Releasing a Spouse's Interest in CalPERS
Although there are community property laws in California requiring the division of community property, the parties are free to negotiate their own settlements according to how they feel the case should be settled. This means that one spouse can waive his or her interest in the pension. The spouse can negotiate an equalization payment if he or she decides to waive the interest in the retirement. Also, the spouse can settle the case without an equalization so long as an acknowledgment that an equalized agreement has not been reached, but the spouse still agrees to settle the case.
CalPERS will accept a release of a person's interest upon receiving a court order specifically awarding the member spouse his or her interest as sole and separate property. CalPERS also has a community property release form that can be used when there is a marital settlement agreement or judgment of dissolution that awarded the nonmember spouse a community property interest in the retirement, and the nonmember spouse wants to release his or her entitlement to those benefits.
Community Property Presumption
Family Code Section 2581 creates a presumption that all property is presumed to be community property. “For the purpose of division of property on dissolution of marriage or legal separation of the parties, property acquired by the parties during marriage in joint form, including property held in tenancy in common, joint tenancy, or tenancy by the entirety, or as community property, is presumed to be community property.” The presumption may be rebutted if there is a clear statement in the deed or other documentary evidence of title stating the property is separate. Also, spouses can draft an agreement stating the property is separate.
Some spouses think that by simply creating a separate bank account and depositing their earnings directly into that bank account makes it separate property, but this is far from the truth. Furthermore, one spouse may think that he or she is entitled to the house because payment was made from that separate bank account while the other spouse didn't put a dime towards the house. However, funds in the bank account are community property, absent a valid prenuptial agreement, etc., since the earned money is still community property. The community gains an interest in the house as each mortgage payment is made.
Commingling of Property
Spouses make the mistake of commingling separate property and community property for purposes of divorcing in California. Commingling occurs when community property money is mixed in the same account with separate property funds. The typical scenario occurs with depositing funds in bank accounts. One spouse may start depositing community funds into a bank account with separate property. Legal issues arise about whether the separate and community contributions can be traced and identified. The spouse who is unable to trace the funds to the source of acquisition showing it is separate property will lose the separate property argument, and the property will be deemed to be community property.
Palm Desert Spousal Support Lawyer
Couples going through a divorce will generally litigate multiple legal issues. Determining retirement interests is only one issue for them to explore. Divorcing couples may need a Palm Desert Spousal Support Lawyer to help them determine whether spousal support needs to be paid. Although California does not use the term “alimony,” many folks use this term in searching for a California Alimony Attorney. The important point is to know that Family Code Section 4320 covers these legal issues and the Law Offices of Joseph Torri will represent clients litigating these monetary contests.
The divorce law litigant may first see a request for spousal support when he or she is served with a request for order for spousal support. Seeking a consultation with a family law attorney is absolutely critical when you are being asked to pay spousal support or whether you are seeking spousal support. We diligently advise our Riverside County clients and zealously work to protect your legal rights with the goal of attaining a fair court order or stipulation. Judges can order that spousal support is paid to the other spouse on a temporary basis while the divorce proceedings are pending. Spousal support may also be awarded for a period of time after the divorce is finalized with a judgment. Support may even be permanent for a significant period of time based on a number of legal issues.
Spousal Support is ordered based on statutorily enumerated factors in section 4320 of the Family Code. The court needs to know the duration of the marriage and the marketable skills of the supported party. Knowing the needs of each party established during the marital standard of living is extremely important for the court's consideration. Did periods of unemployment impair a person's earning ability? The age and health of the parties is considered along with any history of domestic violence. Obligations and assets, including separate property, of each party must be known. The court must also balance the hardships to each party. Another enumerated factor is the immediate and specific tax consequences of each party. California law also requires there be a goal that the supported party be self-supporting within a reasonable period of time. The court is given a catch-all allowing it to consider any other factors the court determines are just and reasonable.
Situations usually arise when the supported party starts dating another person. Eventually they begin to cohabitate with one another, and the person paying spousal support (alimony) starts wondering what he or she can do. Family Code Section 4323(a)(1) creates a rebuttable presumption that there is a “decreased need for spousal support if the supported party is cohabiting with a nonmarital partner.” The court has the power to modify or terminate spousal support upon a determination of changed circumstances. Consulting with a Palm Desert Family Lawyer can help the party paying support file a request for order to modify or terminate spousal support. Whether you are the party receiving support or paying support, it is critical that you receive concrete legal advice to navigate the deviations in the law and multiple factors to analyze. The Law Offices of Joseph Torri will diligently broker a settlement, litigate, draft a stipulation and/or prepare any spousal support judgments meeting the needs of our Riverside County clients without surrendering precious rights.
Palm Desert Child Custody and Visitation Lawyer
Family Law Attorneys not only have to address dissolutions of marriage dealing with community property and spousal support issues, they also have to advise clients about child custody and visitation laws concerning their specific circumstances. Family Law Lawyers can represent clients dealing with child custody and visitation if the parents were not married in paternity cases. Parents that are going through a breakup need solid legal counsel. Family courts must consider the best interests of the child or children in making custody orders. Since custody and visitation are delicate, crucial facets of family law litigation, determinations made during the proceedings will have remarkable ramifications on the children and your parenting duties.
The Law Offices of Joseph Torri will diligently work to settle your child custody and visitation issues. Although many parents begin legal proceedings believing a resolution can be reached, that is often an illusion that will ultimately require a judge's orders telling the parents exactly when they can have custody and visitation of their children. The court must analyze and balance factors in deciding custody and visitation, such as the level of strain and opposition between parents.
Addressing a parenting plan for law enforcement officers can be challenging. The Riverside County Sheriff's Department, Palm Springs Police Department and the remainder of law enforcement agencies and their personnel face unique challenges in reaching a timeshare on the cases since work schedules are not the typical 9:00 a.m. to 5:00 p.m. Courts must devise orders allowing each parent frequent and continuing contact with the other parent. Flexibility in court orders is crucial when a parent faces unique shift changes on a regular basis. Palm Desert Child Custody Lawyers can assist their clients in reaching schedules that work.
The Superior Court of California has excellent resources for parents dealing with custody and visitation. Parents need to understand how children cope with their separation, and they also need to know the needs of their children based on specific ages of children. Understanding these principles should help parents develop a parenting plan that works for their family unit. The court's Families Change guide is also another excellent resource for parents. Although there are many articles on developing solid parenting plans and co-parenting among parents, some parents do not believe in research and will insist that their position of demanding sole legal and sole physical custody is in their child's best interest. There are circumstances when a parent needs sole legal and sole physical custody, but many parents commence the legal proceedings with this position without legitimate justification.
There are Two Types of Custody
Legal Custody concerns a parent's right to make decisions about a child's health, education and welfare. Legal custody may be joint, sole and primary with one parent having the ultimate decision-making authority. The majority of parents receive joint legal custody orders unless there is a cogent basis to award sole legal custody to one parent.
Physical Custody concerns periods of time each parent will spend with a child. Primary custody may be joint, sole or primary. Physical custody is often the most hostile and disputed issue surrounding a divorce or paternity case. One parent's access to a child may be restricted based on where the child is living. Thus, the parent with more custodial time generally receives more money in child support.
The court must give primary consideration to the Best Interest of the Child standard in California. Courts can start by looking at the background narrative of how the parents cared for the child since birth. The conduct of each parent in making sure the other parent has access to the child or children is critical when making custody orders. The court can also weigh the age and preference of the child along with current living arrangements and the desirability of maintaining continuity. There are many factors to consider including whether domestic violence has occurred. The Law Offices of Joseph Torri is able to discuss and strategize about a client's case in looking out for the Best Interest of the Child. Mr. Torri is an experienced Riverside County and Palm Desert Child Custody Lawyer, which is evidenced by being on the Riverside Superior Court – Family Law Minor's Counsel List of Approved Attorneys. Parents living in the Coachella Valley will have their case heard at the Indio Courthouse Larson Justice Center, and Joseph Torri is on the Minor's Counsel List at that courthouse since it is part of the Riverside Superior Court. In order to become a Minor's Counsel, family law attorneys must have significant child custody and visitation experience and partake in yearly training.
Strategies for Custody
Parents need to actively participate in the lives of their children. Either parent can be an absent parent, and absence from a child's life is not a healthy situation. Parents who come in and out of the child's life don't facilitate a structured lifestyle for the child. Parents that will be litigating child custody and visitation need to be engaged in the lives of the children and they should archive all of their activities in a journal. Also, the court will examine your conduct in addition to the issues being presented in the case. Parents should be mindful of their appearance and attitude in the courtroom. This may seem like common sense, but just sit and watch multiple family law cases on a daily basis and anyone can see what goes on in the family law courtroom. Antagonistic, hostile and unreasonable conduct is frowned upon and could negatively have an impact on your case.
Palm Desert Child Support Lawyer
Family Law encompasses many facts in the legal system. Child support is another legal issue parents must address in dealing with a child custody and visitation case under the family law umbrella. The vast majority of cases will have one parent paying child support to another parent. The courts do not have much freedom to decide how much child support should be paid since California law requires the guideline calculation to be applied in almost every case. The child support software calculates the income of each parent, the amount of time each parent spends with the children, and how many children are part of the equation. These three factors are huge in determining child support. There are other factors to consider, such as health insurance expenses, mandatory union dues, mandatory retirement contributions, support of children from other relationships accompanied by actual proof like a court order, daycare costs, tax filing status and other factors.
Departure from Guideline Child Support
The court must adhere to and presume that guideline child support is the correct amount to be paid. However, there are limited occasions when the court can order an amount outside of guideline child support. Family Law Code Sections 4052 through 4057 cover such occasions. However, there are occasions when child support would be greater than the guideline formula, such as when the children have special medical or other needs.
Although Section 4055 presumes that the guideline formula for child support is the correct amount to be ordered, there is a rebuttable presumption, in Section 4057, with evidence showing that “application of the formula would be unjust or inappropriate in the particular case … because one or more of the following factors is found to be applicable by a preponderance of the evidence, and the court states in writing or on the record the information required … 1) The parties have stipulated to a different amount of child support … 2) The sale of the family residence is deferred … and the rental value of the family residence where the children reside exceeds the mortgage payments, homeowner's insurance, and property taxes. The amount of any adjustment pursuant to this paragraph shall not be greater than the excess amount. 3) The parent being ordered to pay child support has an extraordinarily high income and the amount determined under the formula would exceed the needs of the children. 4) A party is not contributing to the needs of the children at a level commensurate with that party's custodial time. 5) Application of the formula would be unjust or inappropriate due to special circumstances in the particular case. These special circumstances include, but are not limited to, the following: A) Cases in which the parents have different time-sharing arrangements for different children. B) Cases in which both parents have substantially equal time-sharing of the children and one parent has a much lower or higher percentage of income used for housing than the other parent. C) Cases in which the children have special medical or other needs that could require child support that would be greater than the formula amount. D) Cases in which a child is found to have more than two parents.”
Deviating from the guideline child support standard is a difficult task, especially since Family Code Section 4053(a) states “A parent's first and principle obligation is to support his or her minor children according to the parent's circumstances and station in life.” Pursuant to Section (f), “Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children.” Although departing from guideline child support is possible in some situations, that does not relieve a parent from paying child support. Also, the court has wide discretion to make a proper order. Accordingly, parents with extraordinarily high incomes should consult with a Palm Desert Child Support Lawyer to discuss the particulars of the case. The Law Offices of Joseph Torri welcomes the representation of clients with high and low incomes. In fact, Mr. Torri generally offers unbundled representation on some cases where a retainer is not required. The Child Support Attorney can appear in court on a limited scope basis for a reasonable fee without necessarily preparing any paperwork if that is what the client desires and it is within the client's budget. Many clients will hire a lawyer only to appear at one court hearing to have representation in the courtroom since only attorneys can appear in court with clients.
Paternity/Parentage Cases/Establishing Paternity
Typically, the father's identity is not held in question in California when the parents are married. In fact, California law presumes the parents of a child born during the marriage are the legal parents. Thus, parentage is automatically established in most situations. However, unmarried parents need to establish parentage through the family law court. Accordingly, when a judge orders a parent (usually the dad) to pay child support, that parent will want genetic testing or a DNA test to establish he is the biological father of the child. The court can order the parents to participate in DNA testing with the baby to establish paternity. Parentage can also be established when the parents sign a voluntary declaration of paternity. When same-sex couples are not married, they will also need to establish parentage. Two men intending to be the child's parents need to establish with the court that there was intent to be the child's parents and they behaved like parents. The same is true for women. Therefore, the family law court may need evidence that the “other mother” was intended to be the parent. Since the parentage laws can be complex, parents should consult with a Palm Desert Paternity Lawyer to discuss available options on how to proceed.
Establishing paternity is critical since the child will know his or her parents, and the child is entitled to the same rights and privileges as children whose parents are married. Parents will be responsible for child support payments, and their names will be on the birth certificate. Children can be added to health and life insurance policies. Parents can have access to medical records. Children can inherit from their parents, and they have the right to receive social security benefits and veteran's benefits, if available.
Palm Desert Domestic Violence Restraining Orders
Domestic violence is one of the most heartbreaking and depressing areas of marital or domestic partnership disharmony. The person alleging domestic violence generally seeks stay away orders against the perpetrator, and a very common distance is 100 yards. Being represented by an experienced Palm Desert Family Law Attorney is critical since a judge can limit a parent's custodial rights if there are domestic violence findings. Also, representation by a Palm Desert Criminal Defense Lawyer is critical to help keep the parent out of jail, being on probation and attending a 52-week domestic violence program. Reviewing the evidence and allegations is critical since lawyers will need to work diligently to obtain the best possible outcome. The Law Offices of Joseph Torri represents parents in family law court and criminal court. Joseph Torri is a former Deputy District Attorney and Deputy Public Defender. Mr. Torri has experience on both sides of the aisle, and understands what it takes to defend clients from serious allegations as a Palm Desert Criminal Defense Lawyer.
The victim of domestic violence can have a criminal protective order issued, and they can also file for a temporary restraining order in family law court in an effort to obtain a domestic violence restraining order. Domestic violence findings and convictions from the superior court can have significant ramifications on a person's professional license. People holding professional licenses from a state, such as California can have their ability to earn a living substantially interfered with if domestic violence findings and convictions are established. Lawyers, doctors, police officers, stock brokers, real estate agents, government workers, military personnel and many others jeopardize their right to work and possess the licenses they have worked so hard to obtain. Individuals will lose their rights to carry firearms and ammunition upon issuance of a temporary or domestic violence restraining order. Also, criminal convictions will result in a lifetime ban on owning or possessing firearms and ammunition. Child custody and visitation orders will also favor the victim of domestic violence. Thus, the perpetrator of domestic violence can suffer significantly less time with his or her children upon domestic violence findings.
Domestic Violence Immigration Consequences
There are also serious immigration consequences with allegations of domestic violence and potential findings. Immigrants can be deported and removed from the United States of America under the domestic violence laws. The government can deny and refuse to re-issue Visas upon domestic violence findings. Immigrants should not only call a family law attorney to address their criminal defense and family law legalities, they should also consult with an immigration attorney. Please ask Mr. Torri for a referral to an immigration attorney since he works with some of the most successful and reputable immigration lawyers in California. Mr. Torri can work on the criminal defense and family law cases while consulting with immigration attorneys working on the immigration case.
Visitation Rights of Grandparents
Since there is a broad umbrella of legal issues in the family law practice, Palm Desert Family Law Attorneys also represent grandparents that want to assert visitation rights with their grandchildren. Under certain circumstances, California law allows grandparents the right to have reasonable visitation with their grandchildren. When jurisdiction of the court resides in the Coachella Valley, the Indio Larson Justice Center will hear matters for visitation rights of grandparents. The court needs to make the following findings to allow grandparents reasonable visitation with a grandchild. First, the court must find that the grandparents had a pre-existing relationship with the grandchild or grandchildren that “engendered a bond.” The determination that such a bond would be in the best interest of the child standard is used by the court. The court must also balance the best interest of the child in having visitation with a grandparent with the rights of the parents to make decisions about their child.
Grandparents will generally be unsuccessful in their request for visitation with the grandchildren while the parents are married, but there are some exceptions to this general rule. The court may award grandparent visitation while the parents are living separately. When a parent's whereabouts are unknown for at least one month, the court may order grandparent visitation. One of the parents may also join the grandparent's petition for visitation to allow the court to order grandparent visitation. The court can also order grandparent visitation when the child does not live with either of his or her parents or a parent is incarcerated or involuntarily institutionalized. Finally, the court may order grandparent visitation when the grandchild has been adopted by a stepparent. Family Law Code Section 3104 is one of the code sections addressing grandparent visitation law in California.
Either parent or both parents can ask the court to terminate or end its court orders allowing grandparent visitation when one of the exceptions no longer applies, and the court is generally required to terminate the grandparent visitation at that point. Grandparents should seek a consultation with Palm Desert Family Lawyer Joseph Torri to discuss whether it is possible to establish visitation in their particular circumstances.
Palm Desert Guardianship Lawyer
Guardianship laws differ from those of visitation rights of grandparents. Grandparents who find themselves raising their grandchildren since the parents are absent or are unable to care for their children may need to file for guardianship. Parents that are in jail or using drugs generally are unable to care for themselves, let alone children. Non-parents that are seeking custodial rights of children require a guardianship of the children. Guardianship rights are not visitation rights since a guardianship will provide that person custody of the children. There is a separate court process for guardianships and that is in the probate court. Guardianships allow the probate court to order a person other than the child's parent to have custody of the child or manage the child's property (guardianship of the estate) or both. Under these circumstances, either a grandparent or family member will petition the court for guardianship of the child or children. Guardianship is generally not available when the juvenile dependency court orders custody to a non-parent, and any person seeking a guardianship in the juvenile dependency court should consult with an attorney specializing in those particular legal issues.
Probate guardianships are usually established when the child is living with a non-parent adult, and the adult needs a guardianship in order to make decisions on behalf of the child. Persons seeking a guardianship of a person should consult with a Palm Desert Guardianship Attorney to discuss the legal issues surrounding their circumstances. The Law Offices of Joseph Torri is here to help clients through their family law needs. Our office serves clients throughout Riverside County and Southern California. The Riverside Superior Court Larson Justice Center will hear probate matters and family law cases. Therefore, matters near Palm Desert, La Quinta, Cathedral City, Palm Springs, Ranch Mirage, Indio, and the surrounding cities would have their cases heard at the Larson Justice Center.