Thursday, January 31, 2008

Do I Need a Divorce Lawyer?

Good question, we hear that a lot, can I not just do the divorce on my own? Can I represent my case and my divorce myself in court? So when do you need a divorce lawyers help? It kind of is a no brainer, you know you need a lawyer for certain things, if you have been arrested, getting sued, if you have been charged with a certain crime; yes these are really good times to have a lawyer at hand, these are times that you may just be able to get through a legal battle on your own without a lawyer by your side...

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To determine whether or not you need an attorney regarding your issues, contact the Law Offices of Renee M. Marcelle at (415) 456-4444, or online at

How Women Should Protect Themselves Financially Regarding Divorce

Women who believe a divorce is a possibility or who think that their husband will be asking about getting a divorce at some point should put their emotions aside and plan "just in case" their intuition is correct that a divorce may be coming in the near future. If women who believe that the "divorce discussion" may be lurking, they should make it a point to look for solid signs that their husband will indeed ask for a divorce...then they should plan accordingly...

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Monday, January 28, 2008

Spousal Support

. Tax treatment will likely be different for payor and payee
1. Payor: not deductible
2. Payee: considered income
. The court must consider the tax implications of the award.
. Will support be calculated from the beginning of the relationship or from the date of registration?
. The right to collect spousal support will likely be terminated upon entering into a new domestic partnership.

For more information about spousal support, contact Renee Marcelle at (415) 456-4444.

Friday, January 25, 2008

Be Cautious About Registering as Domestic Partners . . .

Where One Partner is not a US Citizen: the federal government will not recognize the partnership as validating the non-citizen’s presence in the US.

Where One or Both are Receiving Federal Benefits: the federal government will not extend benefits to a partner of a domestic partnership and benefits may be terminated

Where One or Both are in the Military.

For more information on domestic partnerships, contact Renee Marcelle at (415) 456-4444 or online at

Children and Parentage in Domestic Partnerships

A child born to registered domestic partners will be considered the legal child of both partners without regard to either partner’s biological relation to the child.
Inclusion on the Child’s Birth Certificate:
Lesbians using artificial insemination can both be included on the child’s original birth certificate.
Gay men using a surrogate must obtain a court judgment of parentage to both be included on the birth certificate.
To obtain a court judgment, complete an adoption or obtain a judgment of parentage.
Second Parent Adoption:
Available to all couples
The legal parent is not required to give up any of his rights to the child for his partner to adopt
More costly
More invasive home studies
More time to complete
Step-parent/Domestic Partner Adoption:
Available to registered domestic partners only
The legal parent is not required to give up any of his rights to the child for his partner to adopt
Easier because child is presumed to be residing in the home and the person chosen to adopt has been chosen by a fit, custodial parent

Friday, January 18, 2008

Termination of Domestic Partnerships

Termination Without Filing a Proceeding for Dissolution only if:
The Notice of Termination of Domestic Partnership is signed by both domestic partners.
No children have been born or adopted into the relationship, either before or after registration, and neither of the partners, to their knowledge, is pregnant.
The domestic partnership has been in existence no more than 5 years.
Neither party has an interest in real property wherever situated, with the exception of the lease of a residence occupied by either party which satisfies the following requirements:
The lease does not include an option to purchase
The lease terminates within 1 year from the date of filing the Notice of Termination.
There are no unpaid obligations (excluding automobile obligations) in excess of $4,000 incurred by either or both parties after registration of the domestic partnership.
The total fair market value of community property assets (excluding encumbrances and automobiles) is less than $32,000 and neither party has separate assets (excluding encumbrances and automobiles) in excess of $32,000.
The parties have executed an agreement setting forth the division of assets and the assumption of liabilities of the community property, and have executed any documents, title certificates, bills of sale, or other evidence of transfer necessary to effectuate the agreement.
The parties waive any right to support by the other.
The parties have read and understand a brochure prepared by the Secretary of State describing the requirements, nature, and effect of terminating a domestic partnership.
Both parties desire the domestic partnership to be terminated.
***Termination shall be effective 6 months after the date of filing the Notice of Termination of Domestic Partnership with the Secretary of State.
Termination if No Longer Living in California:
Domestic partners must agree to allow CA courts to have jurisdiction over dissolution and other proceedings regarding domestic partner status.
CA’s Recognition of Non-CA Same Sex Unions:
A legal union of two persons of the same sex, other than a marriage, that was validly formed in another jurisdiction, and that is substantially equivalent ot a domestic partnership shall be recognized as a valid domestic partnership in this state regardless of whether it bears the name domestic partnership.

Thursday, January 17, 2008

Child Custody

During dissolution, the highest emotional impact of the spouses often surrounds child custody. The Best Interest of The Child, is the standard that the court will use to determine where the child will be placed. The court uses this standard to decide who the primary care giver will be. Often times Custody is shared equally.
If the court must get involved, often the parties are sent to family court mediation to work out a parenting plan. Mediation is when both parties attend a conference with a neutral party in order to discuss proposals for custody and support arrangements The court typically looks at the status quo to determine what is in the best interest of the child. Both parties are encouraged to create a set schedule of shared-parenting. An example is having weekends with the child, rotating holidays, or weekly visits. After mediation, an attorney can formalize any agreements and litigate any unresolved issues.
Sometimes psychological evaluations of the children or parties are recommended. The primary goal is to find out if either parent suffers from a dysfunction which impairs their ability to care for the children. During the evaluation, the parties are subjected to a series of psychological tests and observations. A psychologist may also view the history of the family parenting plan, while giving most weight to the most recent plan. Generally a psychologist supports the most recent parenting plan for the child, except if there is a valid reason for dramatic change.

Domestic Partnership Law

Domestic partners are two adults sharing their lives in an intimate andcommitted relationship of mutual caring.Requirements to Become Domestic Partners:
Both persons must file a Declaration of Domestic Partnership with the Secretary of State
Both persons must have a common residence
Neither can be married to another or be a domestic partner with another, which marriage or partnership has not been terminated, dissolved, or adjudged a nullity
The two persons are not related by blood in a way that would prevent them from being married to each other in this state.
Both persons are at least 18 years of age
both persons are members of the same sex, or
one or both of the persons meet the eligibility criteria under Title II of the SSA as defined in 42 USC Section 402(a) for old-age insurance benefits or Title XVI of the SSA as defined in 42 USC Section 1381 for aged individuals.
Both persons are capable of consenting to the domestic partnership.
Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.

Wednesday, January 16, 2008

California Divorce/Dissolution of Marriage

California has a "no-fault" divorce system, which means that a dissolution can be granted if the court finds "irreconcilable differences" as the cause of the divorce. A requirement to dissolution is that one spouse must be a resident of California for 6 continuous months and of the county for a continuous 3-months prior to filing the Petition.
Dissolution takes place after six months and a day have passed since the Summons and Petition have effectively been served in the Respondent. Generally one spouse requests temporary court orders by filing for an Order to Show Cause hearing.
Discovery is then engaged in. During discovery, the parties exchange documents and information that is relevant to the case. A Preliminary Declaration of Disclosure is one aspect of discovery. This document is a court form which each party is required to list the community and separate property of the spouses. Following discovery, the parties and their attorneys will often attempt to settle the case without incurring the expenses of trial. If the case is agreed upon at this stage, a Marital Settlement Agreement will be prepared by an attorney. This agreement will have all the essential terms that the parties agreed on. The agreement is a contract which is signed by the parties and their counsel. In the event that a settlement is not reached then the parties attend a settlement conference, if the parties still can not reach a settlement, then a trial will likely take place.

For more information, contact the Law Offices of Renee Marcelle ar (415) 456-4444, or online at

Discovery Phase of the Family Law Process

The third step involved in a dissolution of marriage is generally the discovery phase. This often includes the taking of depositions. A deposition is generally conducted in our conference room or the offices of the opposing counsel. A court reporter is present. At that time, I will be asking questions of your spouse for the following purposes: (1) To secure information;(2) To solidify testimony so it may not be changed at future hearings or trial; (3) To obtain necessary documentation to adequately present your case; and, (4) For the purpose of evaluating witnesses.
After the deposition, many times subpoenas are sent out to verify the information obtained at the deposition. By the time the first three steps are completed, the emotional involvement of the parties has generally subsided to the level where many cases are in fact resolved by settlement. We will then formulate a settlement offer for the purpose of resolving the case in total. Please be assured that no offer of settlement will be made without your knowledge. If the settlement offer is accepted or amendments thereto are agreeable to all parties, a settlement agreement will be prepared. This document essentially indicates which assets will be allocated to the wife and which assets will be allocated to the husband. It will also address the issues of custody and visitation, together with support and all other matters. Once the settlement agreement is signed by both parties and their attorneys, it is filed with the Superior Court in the form of a binding court order.
If there are custody and/or visitation disputes, they are now referred by the Court for mandatory counseling at "Conciliation Court" (within the Courthouse) prior to the Court hearing. If an Order to Show Cause is filed on your behalf, a copy will be given to you. Please note the date set for Conciliation and the hearing and immediately call to confirm your presence at both scheduled dates. The Conciliation date is mandatory, and you must appear for that meeting or the Court can order sanctions, fines or other orders against you.
If the matter cannot be resolved by stipulation, it will proceed to the fourth step, which is trial. A Mandatory Settlement Conference date approximately six (6) to eight (8) months from the date on which the trial is originally requested will be assigned. At this Mandatory Settlement Conference, we will be required to meet with a judge or one or two attorneys who limit their practice to Family Law. These attorneys or the judge will review our Settlement Conference Brief which we will have prepared in advance. They will review the positions of both sides with respect to all issues. They will then give a recommendation for the purpose of helping the parties resolve the case. If the matter is not resolved, the case will proceed to trial, usually within forty-five (45) days of the Mandatory Settlement Conference.

Tuesday, January 15, 2008

Dealing with the Stress of Divorce

Dealing with the Stress of Divorce
Published by Nathan Dawson

Any life transition can be stressful; and of all the stressful situations life puts us in, coping with divorce is one of the most difficult of all, particularly when you find yourself trying to juggle everyday activities with your child and divorce proceedings. It can, indeed, be quite a mental and emotional challenge.
There are a few things to try and keep in mind as you learn about how to get a divorce and as you seek divorce support by the way of a lawyer, financial planner, and/or mental health professional. It will help you to get the most out of all your efforts...

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Overview of the Family Law Process

In California, one party initiates the dissolution proceeding by filing a Petition. The respondent will then be served the Petition (either personally or by mail). The party originally filing the Petition is known as the"Petitioner" and the other party is known as the "Respondent".
Following receipt of the Petition, the Respondent has 30 days (unless granted additional time by the Petitioner's attorney) in which to file his or her responding statement. After the 30-day period the case can be set for a Court hearing.
The first step in preparing for a dissolution of marriage includes preparation of the following pleadings: (1) Summons;(2) Petition;(3) Order to Show Cause (for the purpose of requesting relief at the first hearing); (4) Temporary Restraining Orders;(5) Declarations;(6) Income and Expense Declaration;(7) Response, if appropriate; and,(8) Responsive Declaration to Order to Show Cause, if appropriate. At our first meeting, we generally prepare all necessary paperwork in order to either initiate the divorce or to respond to the Petition filed by the spouse. These pleadings are then generally served upon the other party.
Once the pleadings are served upon the other party, the Judgment of Dissolution of Marriage can be granted dissolving the parties' marital status, at the earliest six (6) months from the date of service. The purpose of the six-month waiting period is to encourage reconciliation between the spouses, and if in fact a reconciliation occurs during this period, kindly contact our offices and we will see that all paperwork is stopped.
After the pleadings have been drafted and served, the next step is the Order to Show Cause, the initial hearing. Generally, the following issues are addressed at the initial hearing: (1) Spousal support;(2) Child support;(3) Child custody and visitation;(4) Restraining orders;(5) Use of the residence and motor vehicles;(6) Joinder of any pension plans;(7) Request for attorney's fees and costs; and,(8) Any other miscellaneous relief which may be necessary in order to maintain stability for the benefit of the children and the parties. The first hearing will normally occur within twenty-five (25) days of the date the pleadings are initially filed with the court, absent any continuances.
At this hearing, the attorneys will argue the case and the courts generally will not take testimony at this time.