Practice Areas

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Divorce Law

We offer professional legal assistance to clients in Divorce proceedings. From the initial filing of the Divorce, to the final decree or judgment, our attorneys are knowledgeable about Divorce law and are up to date on the latest Family Law cases and ruling in California. We offer aggressive and precedent setting Divorce representation. We understand the emotional toll a divorce can have on a person and we are here to help our clients navigate throught the legal proceedings of a Divorce. Getting child support orders established to fit our clients needs, filing spousal support motions to suit our clients needs and basically doing everything to help our clients through their divorce.

The answer to this question depends on many factors. More specifically, the time it will take depends on whether the couple have:

  • 1Minor children (children under 18 years of age),
  • 2“Real Property”( real estate, houses, buildings, etc.),
  • 3Personal property (ANY OTHER PROPERTY THAT IS NOT CONSIDERED “REAL PROPERTY” including bank accounts, savings accounts, retirement accounts, life insurance policies, etc.).
  • 4And how much work it will take for the two people to agree on how to divide these assets
  • 5And how to divide visitation and custody of the minor children.

If the couple cannot agree, even after repeated attempts, (including mediation and/or arbritration) the case will be:

  • ASet for trial by the judge assigned to your case.
    • At trial, each party presents their evidence, and cross examines the other sides evidence, and a judge decides how the divorce (dissolution) assets will be divided, and which visitation schedule the parents must follow.

Remember, a dissolution is the legal term for divorce. So let us get used to the word “dissolution” so that when and if during your case, someone refers to the dissolution, you will know they are talking about the divorce. A dissolution proceeding (remember divorce), is a civil lawsuit.

  • A There are two types of legal cases in State courts. Criminal and Civil. Dissolution proceedings fall under the Civil part of the cases that flow through our State courts.
    • Therefore, when we file for dissolution, we are suing the other side to obtain an order of dissolution (you want to leave your spouse and do not wish to remain her/his wife/husband, and you also need court orders on how to divide the assets of the “marital estate” and most importantly, orders on child custody.
    • The last part, child custody probably the most litigious and emotional part of the dissolution. It is rarely easy, and parties often do not agree on a schedule for visitation and custody. However, with proper legal advice and representation, a person will be able to be informed on the reality of her/his expectation on what she/he can obtain if a judge were to decide the custody/visitation in a trial. So with the proper representation, parties are much more likely to come to an enforceable agreement that will promote the best interest of the child, and promote the strong policy of the State Court to have parent(s) and children have equal contact. Even though we are filing a lawsuit, the “parties”
  • B I have 15 (fifteen) years practicing family law. Family law is an area of law that includes Dissolution (remember “divorce”), child custody/visitation/support, spousal support, property division, Retirement Plan Divisions (QDRO’s) ,Restraining Orders (Domestic Violence), Family Living Trusts, Wills, Revocable and Irrevocable Trusts, Asset Protection for future generations, Asset Protection for current family members, establishing financial structures to secure the financial well being of family members. Family Law has it’s own Codes, or rules, that must be followed when we proceed to court. I have been involved with this area of the law for 15 years and counting.

You will remain married for at least six months in California after you file your petition for divorce. California is one of several states that has a waiting period to make sure you really want to do what you’re about to do. In general, if your case still lingers in the court system five years after you file, the state will dismiss your petition and you’ll have to start over. This is a rarity, however, because the state is otherwise flexible about your options.

Filing
California’s residency requirement for divorce is six months, so you must live in the state at least this long before you can file. After you file and serve your petition for divorce on your spouse, she/he has 30 days to answer it. This deadline is not immutable, however. You or your attorney can waive it and give her a little more time to respond if necessary. If she/he asks for more time and you don’t give it to her, the court will probably overrule you and allow them more time to respond.

Waiting Period
California’s six-month waiting period begins on the date you serve your spouse with your dissolution summons and complaint, not necessarily when you file your Petition (Complaint). Both must occur before the clock begins ticking.

Other Factors

If you and your spouse have children and you haven’t decided on custody and a parenting plan at the time you file your petition, California requires you to attend custody mediation. Once you file your petition for divorce, the court allows either you or your spouse to request hearings for “Requests For Orders” which allow the court to set orders in place to maintain your marital status through the waiting period (Pendente Lite Orders). These orders can only address issues of finances and support if you haven’t agreed on a parenting plan. If custody is an issue, the court mandates that you must attend mediation first.

Shortcuts

A unique aspect of California’s family law code allows you to become divorced even if you and your spouse have not yet settled all issues of property and custody. You can “bifurcate” your divorce. The court will terminate your marital status at the six-month mark or whenever you request it after the six months have expired, and leave the other issues open so you and your spouse can litigate or continue to negotiate them. In order to bifurcate your divorce, certain procedures must be followed and court forms signed by both parties. Thereafter, you will be legally divorced, however any support, visitation, and/or property division matters will still remain open and will require further litigation and negotiation.

In California, you may file for divorce by filing the Petition for Dissolution at your local courthouse. “No Fault” means that you are able to obtain an divorce for whatever reason you can think about. You simply check the box containing the phrase “irreconcilable differences”. This is an all encompassing reason to get a dissolution (divorce). California’s Family Law Act of 1969. California adopted no-fault divorce with the Family Law Act of 1969, which became effective January 1, 1970. The Act abolished California’s action for divorce and replaced it with a proceeding for dissolution of marriage on the grounds of irreconcilable differences. Before 1970, you had to have a valid reason to get a divorce (infidelity, mental instability etc.). Now, in the present, the Family Act of 1969 abolished all that and allows it’s residents to get a divorce for whatever reason. Since your spouse can now just up and leave you if he/she sees fit, it couldn’t hurt you to have a little protection in case things do not turn out as planned.

1) PROTECTING “YOUR” ASSETS –

  • A
  • Community Property, Separate Property, and Consequences:

    • California law defines community property as any asset acquired or income earned by a married person while living with a spouse. Separate property is defined as anything acquired by a spouse before the marriage, during the marriage by gift, devise, or bequest, and after the parties separate.

So, you are asking what is legally “mine” and what is legally “hers/his”, and what is legally “ours”. Well according to California Law, anything acquired during the marriage (including income) is “ours”, EXCEPT if you acquired that property by gift, devise, or bequest (you inherited the property, or someone left the property to you in their will or living trust). And anything acquired BEFORE marriage, after “separation“, is “yours”.

If the date of separation is unclear or the parties disagree, the court will look at two different tests to determine the separation date: an objective test and a subjective test.

Objective Test

To answer the objective test, the court will determine when you started living apart from each other. That usually happens when one of you moves out of the family home. In today’s tough economic times, however, that is no longer an option for some, because it’s often too expensive to maintain two separate residences. Even if spouses are still living in the same home, there are ways to ensure physical separation. As the California Courts put it, “Our conclusion does not necessarily rule out the possibility of some spouses living apart physically while still occupying
the same dwelling. In such cases, however, the evidence would need to demonstrate unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof.”

Subjective Test

Physical separation is not enough to show that you are separated. Some people are living separate from each other for extended periods, but do not intend to end their marriage. That intent is the subjective part the court will consider.

At what point did one or both of you think that the marriage was over? When did you decide you no longer wanted to stay married? The court will look at your conduct toward each other to see when the marriage “ended.”

The combination of findings from each of these tests will be used by the court to establish the date of separation. This date will then be used going forward throughout the divorce process for the purpose of property division.

Therefore these tests will only be relevant if you and your spouse cannot agree on a date of separation. You might not think it’s important, and that it’s obvious what date you left your spouse, but there are several examples where it is not so clear to the other spouse. For example. You and your spouse are having marital “problems”. You think to yourself, “I’m out of here, I am leaving”. Thereafter, after an argument with your spouse, you pack your bags, and leave the house, and go stay at a friend’s home or rent, or just go somewhere else to live apart from the person. You might have even told your now ex-spouse that you are leaving them and you do not want anything to do with them, good bye. Two days later, you or your spouse receive a large amount of money or property either through employment or winning the lottery, or otherwise. They received “life changing” money. Now how easy will it be to agree on a separation date? Most honorable people will simply state the truth of the matter and say, “well when I left the home with my bags and told her/him I’m leaving you”. But now we have this money, (Millions of dollars maybe) that you have unexpectedly received two days after you left. It is very likely that your spouse will argue that you simply had an argument and that you have left before and said the same thing before, but every time you left, you came back a few months or weeks later. Those are the case when “Date of Separation” become important. So, it’s always best to state definitively to your spouse that you are filing for divorce, write it down, saying you are done, separating, get documentation of this date of separation and your intentions. This will make it clear to the court when the date of separation occurred. In my example, this might work in your favor, or it might not. Maybe you left, but you weren’t 100% sure you wanted a divorce. But now she/he has acquired millions of dollars. Will she/he want that unexpected money to be community property “ours” or separate property “his/hers”. Therefore, I hope this explains the term, “Date of Separation”. DISCLAIMER: This is not legal advice, and this is for informational purposes. Reading my website does not establish a client/attorney relationship and only a written retainer agreement signed by me, the Attorney, will create client/attorney relationship and/or duty to advise you properly. THIS IS ONLY AN ADVERTISEMENT.

PROTECTING YOUR ASSETS

Asset protection planning involves developing and applying a lawful series of techniques that protect your assets from claims of future creditors. The techniques are designed to deter potential creditors from going after you, and frustrate them if they do, generally by making it difficult or impossible for future creditors to get a hold of your assets or collect judgments against you.

Setting up an asset protection plan is a complex and challenging task. The plan not only needs to be properly designed, but it also needs to be properly implemented. Just as a Revocable Trust is of small use if it is not funded, an asset protection plan is of little use unless it is funded and the documentation is done correctly. Whether it is a limited partnership, limited liability company, trust, corporation or some other asset protection vehicle, The Law Office of Edgar B. Diaz can assist you in structuring your plan and interrelating the various entities for maximum benefit.

In cases where significant sums are involved, asset protection planning often includes setting up a series of trusts, and/or partnerships inside or outside of California to hold legal title to your assets. As a result, a future creditor who recognizes how difficult it would be to collect on any judgment it may hold, may decide it makes little sense to pursue a claim, or be willing to settle for pennies on the dollar.

The Law Office’s of Edgar B. Diaz’s expertise is structuring the ownership of your assets to make it difficult, or impossible to be taken away. Creditors, divorcing spouses, unhappy business partners – all can threaten your assets. Our advanced Asset Protection Planning eliminates these threats. My clients often feel better once they see and know that their assets are protected. Examples of such vehicles include, but not limited to: Dynasty Trusts, Domestic Asset Protection Trusts and Qualified Personal Residence Trusts.

It is critical to protect yourself now from unforeseen legal troubles. No matter what stage of distress you may be in, defensive legal measures can and should be taken to protect your assets. Asset protection is just like insurance — buy it before you need it, and hope you never need to use it. Protecting yourself properly will take resources, but it is one of the best possible investments you can make to protect your assets.

DISCLAIMER: This is not legal advice, and this is for informational purposes ONLY. Reading my website does not establish a client/attorney relationship and only a written retainer agreement signed by me, the Attorney, will create a client/attorney relationship and/or duty to advise you. THIS IS ONLY AN ADVERTISEMENT.

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our Office Locations


Beverly Hills Office
Law Office of Edgar B. Diaz & Associates
9350 Wilshire Blvd., Suite 203
Beverly Hills, CA 90212
E: diaz@ebdiazlaw.com
P: (323) 318-9545
F: (323) 318-9546
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San Gabriel Valley Office
Law Office of Edgar B. Diaz & Associates
234 E. Foothill Blvd.
Azusa, CA 91702
P: (626) 926-1616
F: (626) 969-3007
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