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Restraining Order Process in California

Posted by: Admin on December 7 2019 13:50:56.


Restraining orders in California

A restraining order can be necessary when you feel that someone is threatening you, stalking you, or your life is in danger. Getting a restraining order means that the person you file against has to. By law, stay away from you, or else they will go to jail as they have been ordered by the court to do so.

Types of restraining orders

There are three basic types of restraining orders in California:

Emergency protective order (EPO)

California law, section 6350, family code, allows an officer of the law to file for a restraining order if they feel that the victim is in danger of being exposed to physical/domestic violence from the person that they need to get the order against.

For such types of restraining orders, judges need to be available 24/7 so that they can issue the EPO’s. The law enforcement officer can only request these for the person that they feel is in danger.

For these restraining orders to be valid, a commissioner or a judge needs to issue it once it has been established under family code section 6251. The requirements set are:

  1. The office has enough reason to believe that the victim is exposed to domestic violence, and their life can be in danger.
  2. A child is involved, and there is a fear of them being abducted or abused.
  3. An adult who is dependent or elderly is in danger.
  4. The EPO will ensure that there is no repetition of abuse, and it stops the child from being abducted or abused.
  5. It will ensure that the dependent person or elderly is protected from a repetition of abuse or stops it from happening in the first place.

The EPO, once it has been issued, will come into effect immediately or will be enforceable for one week. In case the abuser lives in the same house as the victim, the judge can ask them to leave until the restraining order is in effect.

In the case of civil harassment, an EPO will only be issued if there is a stalker involved. An EPO ensures that the abused is safe until they finish the process of applying for proper retaining order. If the judge has granted a domestic violence restraining order, then it will be valid for the next three years.

A temporary restraining order (TPO)

This type of restraining order will be active for at least 20 to 25 days. They will only be issued if the judge believes that the person in question is in immediate danger and requires protection before the court’s ruling for the case.

Near the end of the restraining order period, the victim will have to attend a court hearing in which the judge will rule whether the restraining order needs to be made permanent.

Permanent restraining order

This will be granted after the issuance of a TPO. Before a permanent restraining request is issued a court will hold a hearing; during this hearing, the judge will decide whether the person who is seeking protection is actually in danger from the other person. Based on that decision, a permanent restraining order may or may not be granted.

The duration of the restraining order will depend on its type; a civil harassment restraining order will be valid for three years, a domestic violence restraining order will be valid for five years.

Asking for a restraining order

There are many steps that you need to follow if you want to as for restraining order. Here we will discuss how to get a civil harassment restraining order. Before we discuss the steps, you need to make sure that you ask yourself:

  1. Is a civil harassment restraining order right for you?
  2. Do you qualify to get a restraining order? You will be able to be eligible if:
    1. The person you are getting it against has been stalking you, sexually assaulted or harassed you, or threatened you with some violence.
    2. If you are seeking it from is a roommate, a neighbor, a family member (removed more than two degrees), a person you aren’t related to closely, a friend.
  3. Is there any agency in your area that you can get help from?

When you have determined that you can qualify for a civil harassment restraining order, then the next step will be to fill out the relevant forms. You can either do that yourself or get a lawyer to help you with the process. If, at any point, you are not sure about what to do next, seek help from a lawyer. If there is a domestic violence agency in your area, then get help from them as well. Look for a self-help center of your court to help you get the restraining order.

Filing a Request for a Restraining Order

Step 1

You will need to fill out all the necessary court forms and then prepare to file them in court. The forms that you will need to fill out will be:

  • Request for Civil Harassment Restraining Orders
  • Confidential CLETS Information
  • Items 1 and 2 on Notice of Court Hearing
  • Items 1, 2 and 3 on Temporary Restraining Order
  • Civil Case Cover Sheet – your court clerk will tell you if you need this.
  • Additional Page – in case you need more room to describe your situation and why you need a restraining order.
  • Declaration or Attached Declaration – for the witness that what to describe your situation and what you have been through.

Step 2

Once you have filled out the forms, you will need to file them with the court. One thing you need to take note of is that the procedure of filing papers for a restraining order will be different for every court. Make sure that you talk to the court clerk and check the process before you proceed.

The general steps that you will need to follow are:

  1. Taking the forms to court's clerk
  2. Finding out whether the judge issued a temporary restraining order
  3. Filing your forms
  4. Distributing (if it was issued) the copies of the temporary restraining order

Step 3

You will now need to serve the papers on the person that you got the restraining order. This means that the other person will need to get copies of all the documents that you filed with the court. A third person will be required to take those papers and hand them over to the other party. The person who makes these papers is called a process server or server.

The requirements of the server are:

  • They must be 18 years or older
  • Is not protected by the orders

Step 4

Be ready to get a court date and go to the court hearing. There are a few things you need to do before you go to the court hearing:

  • Be prepared – make sure that you have all the documents and copies of it too. You can take witnesses with you as well. In case you don’t speak English, then you will need to find an interpreter. You cannot take any children with you.
  • Make sure that you do not miss your hearing date.
  • Ensure that you get there at least 30 minutes early. Find the courtroom, check-in, and go to the front when called. Be present throughout the whole process.
  • Take some time before the hearing and practice what you will need to say.
  • Be prepared for questions as the judge may ask a few during the hearing. Tell the truth and make sure that you are clear in stating everything.
  • The judge will pass his decision at the end of the court hearing. The judge may decide in your favor ultimately, or half of it, or even none. The judge may also postpone your case, so make sure you ask for a new date.

In case the temporary restraining order is extended, make sure you collect the right forms from the clerk. Fill them out and file them.

Step 5

After the court hearing, if the judge passes orders for any restraining order, you will need to make a writer order so that the judge can sign it. There are a few courts that make sure that the court staff or the clerk prepares these orders. In such instances, make sure that you read the legal documents correctly and that the clerk or staff wrote down precisely and all of what the judge said at the end of the hearing. If you feel that there is a problem with the papers, then talk to the clerk at once.

Sometimes it is essential to get a restraining order for yourself to protect one from any violence. Even though the process is long, do not be afraid and file for what is right for you. It will ensure you or your child’s safety in the end. Seek help if you feel that you cannot go through the process alone or if you don’t understand anything.



Spousal Support

Posted by: Admin on November 6 2019 07:52:29.



Spousal Support in California.

When two people fall in love and stand in front of a father and utter the words, “I do,” they never think of separation or divorce. It might seem harsh, but in many marriages, divorce is inevitable, and the only way out. There are cases where, despite the tireless efforts of a couple, a marriage just does not work. These marriages can turn into a toxic relationship and can even negatively impact the lives of both entities involved.

Divorce is an agonizing phase of life, and it can disrupt the balance in life as it not only affects the mental and physical health, but it even rips an individual off their financial stability. Many matters require attention during a divorce, and each of these takes a significant portion of an individual’s health and financial standing.

The high-priority in a divorce includes asset division, debt division, child custody, child support, and alimony!
 

Understanding Alimony in California

Alimony, or as generally, people call it, Spousal Support is one of the most prominent matters of a divorce. It is the amount of money one spouse has to pay to the other spouse in an attempt to maintain the pre-divorce lifestyle. It is an essential matter if one spouse does not have a source of income.

Under the California family law, a “payor spouse” has to provide fixed monthly and annual payments to “payee spouse.” The purpose is to bridge the time between divorce and the time a spouse arranges a source of income for themselves. There are cases where one spouse sacrifices their career and even cut down their stream of income to support the career of the other. In such cases, the Court orders spousal support.

As per the California law, there are two types of alimony, including temporary and permanent.
 

Temporary Alimony

The matters of divorce take time to settle, years in many cases. Reaching a decision about spousal support is one of these matters. Unless a permanent solution is reached, the California Law judge passes an order of temporary alimony. Temporary spousal support is a regular payment a high-earning spouse makes to the low-earning spouse.

The amount paid to the payee under temporary alimony is enough to cover the daily expenses. The temporary alimony is terminated once a judge passes the permanent alimony judgment.
 

Permanent Alimony

The second type of alimony is permanent, and it is referred to as long-term spousal support. As temporary alimony pays for the day-to-day expenses while the payments in permanent alimony help the payee maintain the marital standard of living. It is a regular fixed payment to the payee, exactly like the temporary support; the only difference is the amount of payments.
 

The Time for Which the Alimony Lasts

Spousal support is never permanent, as the name suggests. The reason is that only a few alimonies last permanently, while in the majority of cases, alimony ends or is terminated by the California family law court.
 

Short-Term Marriages

Under California, a marriage that lasts for less than ten years comes under the category of short-term marriage. Whether a marriage lasted for six months or six years, alimony is something that does not depend on it. Only the timeframe for which a payor spouse has to make spousal support payments relies on the length of the marriage.

In short-term marriages, a payor has to pay spousal support for a timeframe that is equal to half of the length of the marriage. If a marriage lasts for one year, the payor will have to make regular payments for up to six months.

Long-Term Marriages

The marriages that last longer than ten years come under long-term marriages as per the California law. There is no fixed rule according to the law that estimates the timeframe for which the spousal support payments will last in the case of long-term marriages.

The spousal support may last for a time till the payee becomes self-supporting and develops a reliable stream of income. The factors that help a court decide how long the spousal support will last include remarriage of the payee if the payee is living with another person for more than three months, the retirement age of payor, and the death of either spouse.

The amount of the payments of spousal support is stated in the “marital settlement agreement." It even includes a timeframe for which the payments have to be made.

Termination or Modification of Alimony

Until stated in the marital settlement agreement, a spousal support payor can modify or even terminate alimony if the situation demands. There are two ways a spouse can either amend or terminate the alimony.

The first case is to reach a mutual agreement with a payee spouse over any modifications that one needs in the spousal support. The best approach is to create an explicit agreement with the alimony-awarded spouse. Once the divorced spouses reach an agreement, they can request the judge to consider converting the agreement into an official court order. It is the simplest way to make modifications to the alimony.

The second case is to head directly to the Court. It is a way that should only be chosen if the payee does not agree with any modifications. The payor must file a motion with the Court, which requires them to provide proof of the material chance of circumstances.

The material change of circumstances may include a payor losing his job, reduction in income, or retirement. The California family law court will consider the modifications only in these circumstances until the marital settlement agreement states that the agreement in non-modifiable.

Even the termination of spousal support depends on the material change of circumstances. There are some circumstances under which a spouse can terminate the spousal support. In short-term marriages, a court will order the alimony to end after a timeframe equal to half of the length of the marriage. Things are complicated in the case of long-term marriages.

Usually, in a long-term marriage, the provision that spousal support will end after a time equal to half of the length of the marriage is not applicable. A payor spouse has to petition the Court to terminate the spousal support with proof of the change of circumstances.

The material change of circumstances includes the retirement of the payor spouse, remarriage of the payee, and death of the payee. According to the California law, a payor does not have to keep working past their retirement age just to pay for the spousal support payments. They can retire at the age of 65 and petition the Court to terminate the spousal support.

By providing a court with substantial proof of why the termination of spousal support has become an absolute necessity is the most important part of the process of alimony termination. Other cases that can lead to termination of alimony include a decrease in payee’s living expenses, payee getting a job, payee coming into an influx of inheritance money, payee’s cohabitation with a non-marital partner, and remarriage.

Determining Alimony

Determining the amount of spousal support is a challenge in itself. In case of temporary support, a court may consider the following factors;

  • Total income of each spouse
  • Expenses of each spouse
  • Assets and debts acquired during a marriage

In the case of permanent support, there are a lot of factors that can contribute to the amount of spousal support. Here is a list of all factors that contribute to determining the amount of spousal support.

  • The earning capacity of each spouse
  • The role of the low-earner spouse in the career development of the other higher-earning spouse
  • The paying spouse’s financial situation
  • Needs of each spouse
  • The marital standard of living
  • Debts and assets of each spouse
  • The length of the marriage
  • The payee’s ability to get employment
  • Child custody
  • The age and health of each spouse
  • Possibility of domestic violence
  • Separate tax consequences
  • The balance of hardship for each spouse

These are all the factors that the California Court brings into consideration when determining the alimony.

Understanding the Earning Capacity

Earning capacity is one of the most dominant factors when determining spousal support. It is essential to have a clear understanding of the concept. The earning capacity of an individual is the amount that a person is capable of earning but is not earning at the present state. The family law court in California brings into consideration some factors that help in the determination of one’s earning capacity. The elements of consideration include;

  • Age of the spouse
  • The educational qualifications of an individual
  • Professional training
  • The quality of health
  • The work experience
  • Childcare responsibilities
  • The Work Order

The income of each of the spouses is an essential factor that significantly contributes to spousal support. A judge awards alimony only after analyzing the earning capacity and the job of each spouse. A lot of spouses, to receive spousal support, do not make the required efforts to get a job. It is not the right approach. If a court realizes it or the payor brings it into the Court’s understanding that the payee is not making a good faith effort to get employment, a judge may pass a work order.

A work order is a judgment, after which a payee has to start making significant efforts to get employment. The payee will even have to provide proper proof of the efforts one is making to get a reliable job and develop a stable source of income. Work order might also specify the set number of jobs that a payee has to apply in, for a given timeframe.

The proofs that the curt accepts include a resume and cover letters along with the job ads. Some orders may even require a spouse to register with an unemployment officer. It is not a guarantee that the payee will get a job, but it can lay the grounds for termination of spousal support.

If, after inquiry, the California Family Law Court finds out that the spouse has an earning capacity but is not willing to work, it can lead to termination of spousal support. If even after the work order, a spouse does not make the efforts to get a job, the Court will consider as contempt of Court. For not obeying the Court’s order, the payee can face criminal charges.

It is everything that you need to know about spousal support in California. If you still have questions about spousal support, you may contact a professional divorce attorney who has expertise in alimony!

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