Choosing a Family Law Attorney

Choosing an attorney can be hard - should you go with the person who has a tv ad, the person that advertises in the phone book, a quick yelp search, etc...

Honestly you might have to sort through a couple of attorneys before you talk to one that just clicks as the person who is right for you. You have to work with this person for months or possibly a year or two depending on the complexity of your case.

We all passed the bar, but those who chose family law for reasons other than money have a much different attitude then most typical attorneys. We care about the people involved - we understand that every decision or strategy impacts your life and the lives of your children (and gasp - even your ex's). Unfortunately even in family law we have the sharks that are only in it for the win, no matter how much it hurts the other side and as a result the kids.

1. You want to find an attorney that understands that you will have to co-parent with the other side. You may be livid with them now -  but for the rest of your child's life you will have to deal with them for visitations, major events, etc. Co-parenting is KEY if your lawyer does not understand that - MOVE ON.

2. You want to find an attorney who also understands your spouse/ex's behavior. This is imperative where it is a domestic violence situation. You will want an attorney that will not be bullied by the other person, but on the other hand understands how "charming" abusers can be.

3. Make sure that your attorney understands what you want and is realistic about you about what is possible or not based on your situation. Do not go with an attorney who just tells you what you want to hear in order to get the fee agreement signed. If it sounds too good to be true, it probably is.

4. Make sure that you are talking to an actual attorney and preferably the attorney that will be handling your case. Lots of times you talk to a paralegal/assistant or intern and not the actual attorney. Make sure you talk to the person that will be handling the day to day parts of your case - since you will be working with them closely and have to feel like you trust them.

5. Make sure you talk to your attorney about hidden fees/charges. Do they typically waive some of them? For example, I typically only charge clients for longer phone calls and not for leaving me messages. I do not guarantee them this, but I do tend to do this. With this you also need to make sure they are not in it for the money-- by this I mean are they more likely to drag on your case in order to collect more fees. or try to get you and your ex to reach an agreement that is best for all parties involved (again dont forget about the children). In family law if your attorney is not trying to lean you in the direction of an agreement - get another attorney.

www.allforthefamilylegalclinic.org

Filing for a Restraining Order Yourself

This is one time you may not actually need an attorney. The state makes it very simple to handle a restraining order yourself. Most court houses have a self help area for victims of domestic violence so they are a great resource for you.

Basically the procedure is this.
1) Fill out the forms DV-100 and DV-100 (You can google these forms and they will come up or ask the court form them)

2) If you have children that you also want protected fill out DC-105 and DV-140 also

3) If you are asking for child support fill out an FL-150 Income and Expense Declaration.

4) Ask your court clerk or self help area if they have any special forms for your county that you should also fill out.

5) File the above with the clerk. Ask the clerk when you should come back to determine if a Temporary Restraining order has been granted (this is what will be in place until your hearing). Then come back when they tell you to and see if the judge signed the order. If they did file it appropriately.

6) After filed and you have a hearing date - have someone over the age of 18, who is not protected by the order serve your abuser with the forms you filed as well as a DV-120 Blank response form. FYI you can ask the local sheriff to do this for free for you. Make sure you get a Proof of service DV-200 to file showing that the other side was served in case they do not show at the hearing.

7) Make sure that you have a copy with you of your restraining order at all times. 

• Keep 1 copy with you, always. You may need to show it to thepolice.
• Keep another copy in a safe place.
• Give a copy to anyone else protected by the order.
• Leave copies at the places where the restrained person is ordered not to go (your school, work, etc.).
• Give a copy to the security officers in your apartment and office buildings.
  
  
  8) Show up to the hearing! This is where the judge will have a chance to hear both sides and determine if a long term restraining order should be issued.
  
  
  9) If you get the order, fill out a DV-130 and file it with the court for the judge's signature! 
  
  
  10) Once you have the signed by the judge copy of the DV-130 - have someone other than yourself who is over 18 serve it to your abuser. Again, you can have the local sheriff do this for you for free. 
  
  
  Good luck! 

Save Money on your Divorce/Custody Proceeding

The average divorce in California costs $15,000! Now some of those cost 5k and some of them cost 20k, but still expect a divorce with a traditional private law firm attorney to cost at least $5,000. In fact they often ask for that as a retainer to start on your case.

So how in the world do you avoid this?

Technically you can handle the case yourself, cross your fingers that all issues have been resolved and all paperwork is correct, and pay just the filing fees - which average about $500 if you just have the petition and not a bunch of side hearings. If you have a stipulated agreement (you both agree on everything 100% and do not need a hearing) then maybe that is a realistic option if you have the time to spend at the self help center located at California court houses attending classes and asking questions about the paperwork you should file. For most people, however, I would definitely recommend having an attorney represent you.


So if you do hire an attorney here are both options and recommendations on how to save money.

1) If you qualify, fill out a fee waiver. In Alameda county a household of 1 person making under approximately $1100 or a family of 3 making approximately under $1300 per month would qualify for a fee waiver so that they can avoid the approximately $500 in court fees.

2) If you qualify you can apply for legal aid- Baylegal.org is the SF Bay Area Option. You can also call us, All for the Family Legal Clinic, to be charged on a sliding scale based on your family income and size, or you can call your county bar association to see what volunteer attorney programs they have that you may qualify for.

3) Once you have an attorney, remember time is money.
Every phone call, every email, every contact that you have with your attorney, or that the opposing party has with your attorney costs you money. Look at your fee agreement because often every call is rounded to the nearest 0.15 of an hour. Every email, also rounded to the nearest 0.15 of an hour, etc. If they file paperwork for you they charge you travel time and wait time, etc. You can often ask if you can serve your own paperwork (have a friend who is over 18 do it, not yourself) or file your own papers at the court.

Also when you call them to vent - you are paying them. You may be paying them to be a therapist instead of an attorney, but you are paying them for their time to listen to you talk about your relationship. Some of that information will be relevant and you need to tell your attorney, but you do not need to tell them the same thing over and over again.

4) Make sure that you give them ALL of the information. It will save you money if you give your attorney all of the paperwork regarding your finances, etc. You can even take a look at forms FL-150 and FL-160 in advance to see what type of financial information your attorney will need to properly fill out your paperwork. You can also ask your attorney if you can fill out your own FL-150 and FL-160 (Income and Expense and property declarations) so that your attorney is not billing you for the time. However if you do this make sure that you address all of your assets and debts.

5) Talk to the other party and see if you can reach an agreement. Most attorney income comes from waiting around at hearings. You pay from the second we leave the office to the second we get back. If your hearing is at 9am expect us to leave our office at about 8:15am, wait around for your case to be called and possibly during day of court mediation when your attorney wont go in with you, but sits in the hall, while a court appointed mediator attempts to get both parties to reach an agreement, waiting for your case to be called to finalize the agreement or debate why one was not reached, etc. Expect to pay your attorney for 5 hours worth of work minimum for each hearing that you have. If you can reach an agreement then these hearings will not be necessary - in that case you can pay your attorney just to handle the paperwork.

6) If you can reach an agreement before you even talk to an attorney, then negotiate a flat fee stipulated divorce with your attorney. Even a stipulated agreement  in many counties attorneys must draft the agreement  plus lots of additional forms to attach to it.   Even a 100% agreed divorce if there are children involved can be 50 pages worth of documents. However if you have a flat fee you know that the divorce cost (assuming everything remains 100% agreed) will not go over that amount.

Divorces and custody disputes are never easy, but if you work with an attorney that is concerned about the best interest of the children, your pocket book, and you then it will be as pleasant as possible. In family court there is no such thing as a winner or loser. You are real people that have to deal the consequences and the goal is to reach and agreement that is the best for everyone in the long run - especially when children are involved.

Custody and Support with Unmarried Parents

When the parents of a child are unmarried, even if the father's name appears on the birth certificate, the parties must have a ruling of parentage in order to get a judgment for custody or child support.

Parents can sign a Voluntary Declaration of Paternity before leaving the hospital, anytime after, or as part of a custody/support case. If the parties do not agree that both are the parents of the children then the court can order a DNA test.

You can do the case to establish parentage separate from a custody/support case or you can do them together. Any party that is declared a parent has the legal responsibility to support the child through child support as well as the legal right to visitation or custody.

It is also recommended that couples have a custody plan ahead of a break up that if you do breakup you can file for a stipulated order based on your agreement without having to fight it out. This will depend on your personalities though as the court will not enforce an agreement that was made before the breakup, but it can help both parties leave emotions out of it and think back to what they thought the best interest of the children was before they were mad at each other.

Deferred Action

If you know anyone that is considering applying for deferred action do not let them wait! There is only a limited amount of applications that will be accepted. Get them in soon and make sure they are accurate.
Any mistakes will make your application get bounced back and put you at the end of the line again.

Feel free to contact us for help. We charge on a sliding scale based on income and family size. Average legal cost range for a Deferred Action application range is $100-$300 (This is for legal costs only and does not include other costs such as the application/biometrics fee of $465 which is paid directly to the US Dept of Homeland Security).

To qualify for deferred action on must:

1. Be under the age of 31 as of June 15, 2012
2. Have come to the US before the age of 16
3. Continuously resided in the US since June 15, 2007
4. Lived in the US June 15, 2012 and at the time of filing the paperwork
5. Entered without inspection or have expired status before June 15, 2012
6. Currently in school, has graduated, or honorably discharged from an armed service
7. Clean background history - never convicted of a felony and does not pose a threat to national security.
8. Has evidence (medical record, school records, etc) of all of the above.

Prenuptial Agreements? Postnuptial agreements?

With people getting married later in life, they come to the table with more assets. Luckily, California is a community property state, which means that anything that you acquired before marriage or during the marriage if by gift or inheritance is considered separate property that your spouse could not access upon divorce as long as you do not commingle your assets with the marital (community assets). Anything else acquired during marriage (with some exceptions) is considered community property, in which each spouse would be entitled to 50% of the property value upon divorce.

Even if you are okay with the law as written, you still may opt to have a prenup or postnup if you would like to agree in advance how the property will be divided. For instance if you want the house you can write that into the agreement in exchange for other property or you buying out your ex at time of dissolution.
Prenuptial agreements (prenups) are agreements between the parties, written before marriage that agree to how you would split your assets upon divorce or agree to keep all income and assets acquired during marriage separate property. Postnuptial agreements (postnups) are similar, but the agreement is formed after you are married.

Due to the high divorce rate in this country, I always suggest that my clients get a prenup or postnup. In my experience it is always better to agree while you still like each other then try to get both sides to agree to how to split up property during a divorce where one or both sides hate the other person. When it comes to these agreements, it is best for you to hire an attorney to handle them for you to make sure that the agreement will be enforced. Essentially the court will review the agreement to determine if it was fair, entered into voluntarily, all assets were fully disclosed, and that both parties had access to an attorney to review and negotiate the document. Additionally, the court will review your circumstance not only at the time of signing, but also at the time of divorce to ensure that the agreement is not inherently unfair. Where one party would be left on government assistance the agreement will likely be altered. Also, things get particularly tricky when discussing retirement accounts, child support, child custody, and spousal support. Due to this, it is essential that both parties talk to an attorney.

Move-Away

When it comes to child custody, the ability to move away can be tricky. Hiring an attorney to handle this paperwork for you is always a good idea. Generally if there is no custody order from the court then both parents have the right to move the child.  However the other party still has the right to move them back... Should the opposite parent file an Order to Show Cause/Request for Order against the parent that has moved within 6 months, the California Court can order the parent to move back to the state of California, wasting time and money of the moving parent. 

So What should you do?

1) If you can get the other parent to agree to your moving, you should get it in writing. I would suggest doing a stipulated order with the court so that everything is official. You do not want them claiming later that you said the move was temporary, or that they never said it was okay, etc. Too much hassle on your end. Make sure you have a written stipulation, signed by both of you in front of a notary (so they cannot claim later it was not them who signed it) to submit to the court. This will allow you to feel confident in moving before you actually have the order signed by the court, since it can often take time to get the order back from the court signed off on. Be specific in the written agreement regarding your rights to relocate - for how long? (temporary or permanent), do you now have sole right to determine residency within the United States and you can move again in a year to a different state if you want, etc.

2)  If you cannot agree then you need to do a Request for Order asking the court to allow you to move. In Alameda County expect the judge to send you to mediation on the day of the hearing. Be as cooperative as you can with the mediator. Almost 100% of the time, the judge will listen to the mediator's recommendation. If you cannot agree at that point and the mediator does not think you should move, expect not to be able to move for a couple of months so that you can do additional mediation and have a final hearing afterwards if you cannot agree. 

A lot of the mediator's opinion will depend on why you are moving - if the reason is just cost of living or you have family there then you will likely have to wait. If you have had sole physical custody and have a job opportunity that you could lose in the other state, the court will be more likely to rule for you to be allowed to move sooner.