Can I “Kick Out” My Husband or Wife from the Home?

Unfortunately, some relationships involve violence or threatened violence, the question arises whether the victim can legally get the offending spouse “kicked out” of the home.  The answer is yes, under certain circumstances. This article will discuss the process in more detail. 

  1. Authority for the Court to Remove a Spouse from the Home. The Domestic Violence Prevention Act (DVPA) and Family Code § 6340, 6321, and 6324 authorize a court to order the restrained party to move out of property and allow the protected party to use and possess the property under specific circumstances.  To read these code sections, click the following links:  
  1. What Facts Need to Be Presented in Hearing.  There are three facts that need to be presented at a hearing:
  2. That the person staying has a reason to be in the home, specifically, “Facts sufficient for the court to ascertain that the party who will stay in the dwelling has a right under color of law to possession of the premises.”
  3. That assault or threat of assault is involved, specifically, “That the party to be excluded has assaulted or threatens to assault the other party or any other person under the care, custody and control of the other party, or any minor child of the parties or of the other party.”
  4. Harm, specifically, “That the physical or emotional harm would otherwise result to the other party, to any person under the care, custody and control of the other party, or to any minor child of the parties or of the other party.”
  1.  Does the person staying have to be the owner of the home?   Not necessarily.  This question was presented in a case from the Court of Appeals in California, Nicole G. v. Braithwaite, which can be found here: https://scholar.google.com/scholar_case?case=17446401920668045282&q=braithwaite&hl=en&as_sdt=4,5

In this case, the Court ordered Braithwaite to move out of the property and granted Nicole’s domestic violence restraining order against Braithwaite.  In that case, the title to the home was still a civil case and a disputed issue between the parties, but the Court was able to exercise the power to order Braithwaite out and allow Nicole to take possession of the home temporarily to protect her. 

Consult with the Law Office of David Knecht

If you have questions about removing a spouse from a home or any questions relating to divorce or family law, please contact the attorneys at the Law Office of David Knecht, at 707-451-4502.  We have extensive experience in family law and can be a knowledgeable advocate for you.  

 

Can I Force My Ex to Sell the House in California?

The question of whether you can force your spouse to sell the home in a divorce seems like a simple one, but the answer can sometimes involve complex analysis.  It is an issue that often arises because the home is one of the largest investments many married couples make. 

This article will provide some helpful background information to assist you in understanding potential issues, but we recommend seeking legal guidance on your specific situation, given the complexity of the issues and the significant value the home for many families.   

  1. California Family Code §2550.  California Family Code §2550 governs the division of property in a California Divorce.  The full text can be found here:  https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM&sectionNum=2550.
  2. How does this law apply in practice?  This law provides that family court judges must divide the community estate equally, but this doesn’t speak to one specific asset, such as the house.  It refers to the whole of the community property estate, which will include other assets, such as money in the bank, vehicles, etc., and also debts, such as credit card debt, student loans, etc. 
  3.  What is the bottom line?  When Section 2550 applies the home, the bottom line is that one party may be awarded the home, but only when there is equality in the totality of the division of assets such that the other party’s right to reimbursement or an equalization payment is honored.  It is also true that a judge can order the sale of the home as per the authority provided by this law.   
    • What is partition and how is it used in a divorce to force the sale of the home
  4. Where is the law governing partition?  You can find California Code, Code of Civil Procedure §872.210 here: https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-872-210.html
  5.  Can Partition be Used in Divorce?  No, unless there are special circumstances involved, a partition action is specifically excluded for divorce proceedings:  “an action between spouses or putative spouses for partition of their community or quasi-community property or their quasi-marital interest in property may not be commenced or maintained under this title.”

Consult with the Law Office of David Knecht

If you have questions about how your home will be divided in a divorce or any other family law question,  please contact the attorneys at the Law Office of David Knecht, at 707-451-4502.  We have extensive experience in family law and can be a knowledgeable advocate for you.  

 

Resources to Help in Divorce in California

Many parents are looking for online resources to help themselves or their children cope with the changes in the family that happen with divorce.  The California Courts in collaboration with other have created a website with information to help parents, kids and teens deal with divorce.  This article will summarize some of the helpful sections, and the full site can be found here:  www.familieschange.ca.gov

 

  •  Dealing with Change.  

 

If you are looking for information about parenting responsibilities, children’s rights and responsibilities, what changes to expect, parenting strategies, keeping the kids out of the conflict or even abuse in the home, this section will provide helpful resources.  Go to www.familieschange.cal. gov/en/parents/dealing-change

 

 

  •  Feelings and Emotions.  

 

This section provides resources to help your children process the gamut of feelings and emotions during and after divorce or separation.  It describes how your children may feel, gives suggestions on how to create an environment that allows children to experience and express emotions, gives guidance on identifying feelings, and suggestions for problem solving and dealing with behavioral changes in children.  Go to www.familieschange.ca.gov/en/parents/feelings-and-emotions

 

 

  •  Telling the Children

 

One of most difficult aspects of divorce or separation can be telling the children about the impending changes.  This is a crucial step that will influence how your children will feel about the situation.  The site recommends planning out the discussion with your ex-spouse so that if possible, you can agree on how to deliver the news, anticipate questions, address concerns, and make the discussion as calm and positive as possible.  This section has detailed information on questions such as how to explain why parents separate, how to keep lines of communication open and how to talk to teachers, coaches and extended family.   Go to www.familieschange.ca.gov/en/parents/telling-children

 

 

  • Child Support

 

Child Support is one of the first things parents should think about when they separate.  It is the amount of money that a court orders a parent or both parents to pay each month to help pay for the support of the child (or children) and their living expenses.  California’s child support law is based on the principle that even though parents may separate or divorce, children are entitled to the financial support of both parents.  This section has information on child support responsibilities, guidance on how to figure out what a parent should expect to pay or receive, information on how to calculate other types of expenses and also additional resources.  

Go to www.familieschange.ca.gov/en/parents/child-support

 

 

  •  Other Resources

 

There are many resources available to help California families through separation and divorce.  Some of these are listed on the Families Change site at www.familieschange.ca.gov/en/parents/resources.

 

 

  • Talk to an Attorney

 

If you want to talk to a knowledgeable and professional attorney about your questions relating to separation, divorce, child support, or any other family law issue, the attorneys at the Law Office of David Knecht, have extensive experience in family law.  Contact us at 707-451-4502 for more information.  

 

3 Things to Do When You Think You Wife is Cheating

Anger, hurt, grief, all of these feelings come to full light when you find out your spouse is cheating. If you have suspicions, it is a good idea to find out if your wife is cheating as it can assist you in the divorce process if you do end up taking this road. Sometimes it can be challenging to know if your spouse is cheating. There are some signs to watch for such as changes in social habits, their behavior at home, and changes in their appearance. 

Stay Calm and Gather Information About Your Spouse 

If you have confirmed that your spouse is cheating, you need to remain calm. Collect information about your partner to help you in the decision-making process from this point. Was this affair a one-time thing, or is this on-going? If it seems the marriage is destined to fail, you’ll need as much information as you can when you move into the legal proceedings. 

Step Away and Surround Yourself with Support

Staying with the person who has hurt you deeply can make it almost impossible to make decisions, and to start the healing process. Take a step back from the relationship and find people to help support you. Surrounding yourself with good company will allow you to start to process these feelings you are dealing with and can help you walk through several scenarios to start this new chapter in your life. 

Carefully Consider Your Future

Once you know if divorce is right for you, it is time to call a divorce attorney. The attorney can help you with multiple elements in separation of you and your soon to be ex. Here are some things you need to carefully consider:

  • Children – who will be the primary caregiver? How can you protect your children as much as possible including their education costs, housing needs, and custody?
  • Assets – how do you plan on dividing the assets? 
  • Alimony and child support – there will be new costs to deal with, are you planning to ask for alimony or child support? Will you need to pay alimony and child support? 

Emotions run high when you find out your wife is cheating. It is important to compose yourself and carefully deal with the situation. Our experienced divorce attorneys can help you navigate your divorce tactfully and ensure that you are taken care of and able to start building a new future. Contact the Law Offices of David Knecht to help you with your divorce case. 

 

3 Characteristics of The Best Divorce Attorneys

What makes the best divorce attorney in Vacaville? When you are searching for the right person to represent you and your rights, it pays to do a little research. At David Knecht Law, we represent your legal rights and focus on ensuring your voice is heard in the court of law. Here are our three recommendations as to what makes a good attorney.

Communication

The MOST important quality of a good divorce attorney is having the ability to communicate with their clients. If you meet your attorney once, and never hear from them again, except when it’s time to pay the bill, you did not choose the right person. You can tell if the attorney will be difficult to deal with based on how they interact with you. If they always cut you off before you finish a sentence, or they do not explain things clearly, move on. 

Compassion

Divorce is one of the most difficult things to deal with, and many clients are not emotionally ready to start making challenging, life-altering decisions. No matter how amicable the relationship is between you and your ex, it is important to cover yourself and make sure you are making the right decisions. Your attorney will show empathy for your situation, but they will also be compassionate to you and will help you through this journey. Their job is to focus on helping you navigate through the divorce and they will do so without judgement or disrespect. 

During the time you are going through the divorce, your attorney will help you to make informed decisions. Their goal is to ensure you have the right information needed to determine certain choices pertaining to retirement accounts, cars, homes, debt, and more. Make sure you hire someone you know you can trust to protect you during this time!

Availability 

Another good characteristic of a divorce attorney is how available they are to their clients. Do they return your phone calls, emails, and text messages? Is it easy for you to get in for an appointment? A good attorney will make their clients a priority, and that shows in how they treat you.

At the Law Offices of David W. Knecht, we are here to protect your legal rights. If you are dealing with a divorce in the Vacaville area, we are here to help. Our legal professionals have extensive experience practicing family law. Let us represent you. 

The Dangers of Social Media in Divorce

Most people understand that posting on social media on divorce can impact the divorce process, and article will discuss what information you need to keep off of social media.

  1. Even posts to friends typically do not stay private.

You may be posting just to a small audience of friends and family and think that the information will stay private.  Remember that posts can be shared, saved, forwarded and discussed.  When you put information out in the internet, you lose control over how it will be spread.

  1. Pictures and comments can be evidence of bad parenting behavior.

A disparaging or threatening comment can be evidence that is used against you in a divorce trial.  Pictures or post indicating excessive drinking or drug use could be detrimental to your case.  This applies to any boyfriends or girlfriends that you may be in a relationship with because their behavior can impact custody also if you cohabitate.

  1. Do not post violations of court orders.

Whatever you do, don’t post anything that shows you are violating a court order.  If you are not supposed to see you ex, do not post pictures or comments to indicate that you have violated that order. If you have been told by a judge certain parameters about your posts, your kids, your finances, etc., it goes almost without saying that you shouldn’t incriminate yourself by showing that you have disregarded the judge’s order.

  1. Statements on dating aps or elsewhere that are not truthful can impact your case.

Be wary of making any statements on social media that aren’t accurate.  For example, if you claim to be single without kids, that may be perceived indicate that you have less interest in parenting.  If you make false statements about your ex-spouse, those can potentially get you into even more hot water as they may be perceived as harassing.

  1. Posts that put your mental health in question can have an impact.

It is not uncommon when going through a divorce to be depressed, anxious and angry and perhaps even to have an occasional suicidal or even violent thought. Be careful about posting these feelings.  Although it is natural to have strong emotions during this time, posting about those feeling publicly will not help your case.  See a therapist or an in person conversation with a close friend or family member.

  1. Watch out for posting information about money.

Finances are a key part of a divorce, so be careful about what you post when it comes to money.  Be cautious about posting about vacations, expensive entertainment, food or purchases.  Be aware that anything you post on a site such as LinkedIn or Facebook about your income, promotions, bonuses, etc. will be in the public domain and could impeach you if that doesn’t match up with the information you have presented in court. Be aware that anything you post about your earning capacity is important as well.

It isn’t easy to watch your posts and pictures on social media, but the divorce process will only be for a limited time.  By being aware of the pitfalls discussed in this article, you can avoid negatively impacting your case by inadvertently social media disclosures.

 

 

Why Is Divorce So Expensive and Tips to Bring Down Cost

If you are considering divorce, you may be concerned about the financial impact the divorce will have on you and your family.  While some costs are unavoidable, this article will discuss some tips to consider to determine if they can help bring down the cost of the divorce in your particular case.

  1. Legal fees – keep them down through planning and organization and negotiation.

If both parties hire attorneys, legal fees can be significant.  Your attorney may charge a flat rate fee or the fee may be hourly.  The cost may be set or may be negotiable.  One way that my help lower the legal fees if for you to come in prepared and organized with clear objectives.  If you gather all the financial information into an organized manner and approach a potential attorney with that information, you may be able to reduce the bill by showing him or her that their time can be directed to advocating on your behalf as opposed to helping you gather or organize evidence.

  1. Adversarial – set reasonable goals.

An adversarial divorce may be out of your hands if your ex is one that wants to fight.  However, if you set reasonable and realistic goals for what you want to achieve then you may be able to keep these costs in check. This does not mean you shouldn’t fight for what is validly your right, but consult with your attorney to get a realistic view of what has been successful and typical in the past in order to set realistic and achievable expectations.

  1. Dragging out discovery – be prompt in responding to your attorney.

During the discovery phase, you will typically need to provide written responses to questions and provide requested documents.  By being prompt, thorough and organized in providing this information to your attorney, you can avoid costs if you attorney is charging you by the hour because he or she will not have to bill you to follow up.

  1. Going to court – consider mediation or settlement.

It’s not unusual for an initial reaction to divorce to be “I want my day in court!”  Emotions run high during divorce and a judge is perceived as an advocate who will right the wrongs that your ex has imposed on you.  In some cases trial might, in fact, be the right move.  However, if you are looking to minimize the financial impact of a divorce, then mediation or a settlement without mediation might be a more cost-effective process.  The decision is very personal to your case and depends on your goals and the reaction from your ex to alternative means of resolving disputes.

  1. Education – don’t be afraid to research, study and be informed.

In some cases, the high cost of a divorce can stem from the cost of education.  You may spend money on the wrong attorney.  It is not uncommon for a person to hire an attorney only to discover that the person you hired isn’t experienced or just doesn’t have the personality that works well with yours.  Do research. Talk to people. Find an attorney who has the experience and demeanor that works for you, so that you don’t get down the road with someone only to have to incur the additional expense of changing course and starting over with someone else.

The costs of a divorce can seem daunting, but with planning, preparation and information, you may be able to lessen the impact of the divorce process on your pocketbook.  If you need a highly effective and experienced family law attorney who will be mindful of your budget constraints, consider David Knecht Law, davidknechtlaw.com.

 

Should I Stay or Should I Go:  Thinking About Divorce

If you are thinking about getting a divorce, you are not alone.  The decision to pull the trigger can have consequences for your finances, your family, and your freedom to move or make decision.  This article will help walk you through questions to ask an experienced divorce attorney if you are on the fence about whether you should get a divorce at all or if you are deciding when you should get a divorce.

What will be the effect on my time with children?

If you have children, your time and decision-making power for them are likely to be two of your top concerns.  Discuss with your attorney some of the typical parenting plan arrangements so that you can get an idea ahead of the divorce of the options that are best for you.

How will a divorce impact my ability to move out of state?

If you have children, a divorce can impact the ease with which you can move out of state.  Consider your long terms plans for yourself and your children, and if you prefer to settle outside the state you are currently in, then that’s definitely a topic you should discuss with your attorney.

How will divorce impact my standard of living?

Think about the property/assets that you had prior to marriage and those that were acquired during marriage.  Discuss how these will be divided.  Consider timing.  Are you or your spouse eligible for a raise or bonus in the near future.  Is now a good time or would a short wait be more or less advantageous to you?  It’s important to think in advance about the optimal timing.

What are the tax consequences?

Evaluate how taxes will likely play into the mix.  Will keeping or selling property have tax consequences?  How do the retirement accounts play in?  How will claiming the children on taxes factor in?

How adversarial is my spouse likely to be?

Planning ahead includes thinking through your spouse’s reaction to divorce and preparing to manage his or her reaction.  If you can find a fair middle ground with your and your spouse, you will both save on legal fees that come with an adversarial posture.

What would be the consequences of losing at trial?

Be sure to understand all the consequences of a plea and all the consequences of losing at trial so that you can make an informed choice.  Get the whole picture of counseling, probation, and fines.

The choice of whether to call it quits on the marriage or keep trying to work things out is a difficult one with many unknown consequences.  If you can get an idea of what you would be entitled to and how you will be impacted overall, you can make a better decision about the right way and time to end the marriage.

 

 

Changing the Terms of Your California Divorce Decree

Circumstances change over time, and sometimes that means that the divorce decree, or Final Judgment of the Dissolution of Marriage, needs to be modified. There are two ways a divorce judgement can be changed.

  1. Appealing the judgment to the California District Court of Appeals.

Appealing the judgment is a method that is not used as often because appeals are usually only granted If the trial court did not apply the law correctly or if the judgment was the result of one of the party’s bad faith, such as intentionally hiding assets.

  1. Motion to Modify the Terms.

A motion to modify the terms is the more commonly used approach to change the divorce decree.  Modifications are usually more likely to be successful, less expensive, and faster.

  • Can modifications be temporary?

Yes, modifications can be either temporary or permanent.  For example, if a party has lost his or her job, the divorce judgment may be modified to change child support or alimony temporarily.

  • Can modifications be permanent?

Yes, modifications can not only be permanent, but they can change some or even all of the divorce decree.   Examples of a permanent modification might be where one party permanently changes careers or acquires a disability or injury which permanently changes that party’s ability to pay child support or alimony.  Other changes could be to child custody, where the changes accommodate the growing and changing needs of children.

Some people feel locked into the divorce decree, perhaps because they don’t realize that changes are possible or perhaps because they fear the pandora’s box that may be opened if they readdress the current terms.  An experienced divorce attorney, such as David Knecht, can provide advice about how to modify your divorce decree to make it right for you.

California Divorce:  What Happens if You Want to Move Out of State With Your Children?

Your rights with respect to your children will be governed by your own specific custody situation, but this article will discuss some of the general topics relating to relocation that you can discuss with your attorney.

  1. Can one parent relocate out of state and take the children?

In general, a parent who has sole custody of the children can move out of state, unless the other parent can show that the children will be harmed.  If the parents have joint physical custody and one parent opposed the other one leaving, the parent who wants to relocate will have to show the court that the move is in the best interest of the children.

  1. Can a parent take a vacation or trip out of the state or country with the children?

If the other parent is going to miss their visitation, you will typically need that parent’s permission to travel out of state with your children.  You can also look at your order and see whether it contains restriction on travel.  If so, you will need a special order to modify those terms.

  1. Can custody decisions be made in the states of each parent, if they are not in the same state?

 

No, custody decisions are only made in one state.  Here is some general information in what courts look at for determining the right state for the decision:  if the state is the child’s home state (living in the state for the last 6 months), or if the child has significant connections to people in the state, so that it can be proven that the child’s care, personal relationships, etc. are based there, or if the child is at risk of being abused or neglected if sent back to a different state.  (See the Uniform Child Custody Jurisdiction and Enforcement Act for complete information on this topic.)

Taking your child out of state in violation of the order can be serious business, so consult an attorney experienced in family law to get answers on whether you can take a trip or relocate with your family.  David Knecht is an experienced family attorney who can find the answers for you.