2011: Some Common San Diego Divorce, Legal Separation And Paternity “Myths”

In San Diego, many who are going through a legal separation, divorce or paternity have heard from friends or relatives strategies which may not be true. Any person going through a paternity, legal separation or divorce needs accurate information to make an informed decision. Each case is individual and unique but the law which applies to each paternity, legal separation or divorce case is the same in California and in San Diego. Knowing the true facts will allow the correct implementation of strategies and techniques to try and protect your rights and to try and obtain your legal goals.

Who Should File First?: this is an issue which arises in many legal separation, paternity and divorce cases. Many feel that, by filing first, there is an advantage. In many situations, this is not correct and no special treatment is afforded the one who files first. There are circumstances where filing first may have benefits. If you are being threatened by your spouse or other parent with them calling the San Diego Police or San Diego Child Protective Service and falsely accusing you of domestic violence, abuse, molest or neglect, then filing first with a declaration stating their threats may be an appropriate strategy to preempt. If your wife or husband has a gambling addiction, a drug addiction, a shopping addiction or is spending money on a third party or for any purpose other than the community in large amounts, filing first {and then serving which is mandatory} will have the effect of placement of automatic temporary restraining orders. In this way, only necessities of life may be paid for [including attorney fees] and bank accounts and retirement accounts can be protected. In addition, this would prevent the sale of real estate or vehicles or boats or other community property or the transfer of these to a third party. There are other circumstances where filing first has benefits but this is on a case by case basis.

Signing Agreements: It is not advisable to sign agreements without consulting a lawyer first. Many parents and spouses reach a “kitchen table” agreement and this is fine as long as a legal analysis of the issues has been discussed first with an experienced attorney so that you know what would be a realistic expectation in accordance with the law if you have to go to court and ask the Judge for an order. No lawyer can guarantee the outcome of any case but can try and give a realistic expectation. One example is child support or spousal support. Most agreements for a legal separation, divorce or paternity {child support only} will include an agreement for support. In San Diego, the program which is used by the San Diego Superior Court Family Law Judges is the disso master. This program calculates temporary {pre judgment} child and spousal support and permanent child support. Spousal support in a permanent order does not include the disso master calculation and, instead, is based on California Family Law Code Section 4320. How can you know what amount of support to agree to if you do not know what the amount would be if you went to court? In addition, division of assets and debts is more complicated than just making a list. For example, funds in a bank account are different than funds in a defined benefit plan. The amount may be the same but the present value may not. In a 401K, for example, a distribution before the mandatory age may result in penalty and/or interest. As such, $100,000 in a checking account is different than $100,000 in a 401K or $100,000 in a KEOGH or 403B.

Child Support is determined by Expenses and Income: with some limited exceptions, expenses are not considered when child support is calculated. Some exceptions for expenses include child support paid for other children or extra ordinary medical expenses are two of these but the exceptions are limited.

If you need a legal analysis of your San Diego divorce, legal separation or paternity case, please feel free to contact us for an in office confidential consultation.

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