What can I do if Respondent is evading service?

When conflict is high and there may be issues of domestic violence, we often see that Respondent’s avoid service. Typically this is because they are aware that they have done something unlawful or inappropriate and they are trying to avoid the legal system. Unfortunately, the decision to evade service can be extremely costly to the Petitioner or the person asking for the protection.

Thankfully, in 2018 the law was amended such that under Family Code 6340, if at the time for a Temporary Restraining Order hearing the restrained party has not been served and it appears that s/he is evading service, the Court has permission to order an alternative form of service.

This means that if you are having trouble serving the other side for a Restraining Order hearing you can now as the Court to order service by an alternative means.

If you are having difficulty with serving your ex, Contact Amanda at Amanda@gordonfamilylaw.com to learn more information. 

When is potential income from stock options considered income for child support?

In California we have limited case law dealing with stock, stock options, and equity compensation as a form of income available for support. Typically stock options are payable as a form of bonus support using an Ostler Smith chart.

A recent 2018 case Macilwaine the Court has now given some clarity on the issue of stock options. In Macilwaine the Court held that once there are no legal restrictions on the employee-parents ability to exercise stock options and sell his or her shares, the options MUST be counted as “income” under Family Code 4058. The available compensation is the market price less the strike price.

This means that if you have stock options you must pay child support on the value of the stock the minute it becomes available for exercise (unless there are legal restrictions on selling). As the employee spouse who pays support you are not required to exercise the stock options but you must pay support AS IF you have exercised the options.

Contact Amanda at Amanda@gordonfamilylaw.com to learn more information. 

I cannot locate my spouse, can we still get a divorce?

Experienced Bay Area Divorce Attorneys know that sometimes a client cannot find their ex.

It may have been many years since you have been separated and you have lost lost touch with their spouse.  You may not know where your spouse is living or have any contact information.

The fact that you cannot locate your spouse often makes it much more difficult to finalize your divorce.  This is because the first step in filing for divorce is serving the other person with paperwork.  If you cannot locate your spouse, you cannot serve them with paperwork. The failure to serve the other person with paperwork will result in your divorce not going through. 

In these situations our recommended first step is typically attempting to find the spouse with the help of a private investigator.  

If we cannot find someone’s spouse despite diligent attempts by our private investigator, then we can apply to the Court for a request to serve your spouse by publication.  California Code of Civil Procedure §415.50 permits a summons to be served by publication upon demonstration by affidavit that the party cannot be served with reasonable diligence personally, by mail, or by substitute service and that party, and that a cause of action exists against that party, or that a person is a necessary party, or the party claims an interest in real or personal property that is subject to the jurisdiction of the court.

We have found at Gordon Family Law that the Court will grant service by publication only if we have made diligent attempts to locate the person, including hiring a private investigator and sending mail to the last known address.

If you are trying to finalize your divorce and cannot locate your spouse, Contact Amanda at Amanda@gordonfamilylaw.com to learn more information and to see if our offices can help. 

I have less money than my husband, will he have to pay for my attorneys fees?

Experienced Bay Area family law attorneys will tell their clients that, yes, if your spouse has access to more resources than you that they may have to pay for your attorneys fees.

Under Marriage of Morton, decided in 2018, if one spouse has more assets than the other Family Code 2030 provides that the Court SHALL make an order awarding fees and costs.

If you are concerned about costs because your spouse has limited your access to financial resources, family law attorneys can help identify sources of funds that can help you hire an attorney. Contact Amanda at Amanda@gordonfamilylaw.com to learn more information.

Has your ex disappeared when they were supposed to sign a QDRO or the interspousal deed to your house?

Now that your divorce is finalized, many clients think the work is over. Unfortunately, there are typically a few loose ends about ownership documents for property and retirement.  Sometimes the other party does not want to cooperate in signing these documents because they are tired, angry, or just difficult. 

You may need to ask the Court for help in getting the documents signed.  

If the Court has already made an order for the documents to be signed (in the divorce judgment) and your ex has disappeared, the next step is to ask for an Elisor to be appointed. An Elisor is authorized by California Civil Code Section 128 to act as the party and sign on their behalf.  The Elisor is typically the Clerk of the Court. 

To get the Court to make an Elisor order, you must first attempt to contact your ex spouse and ask them to sign the required documents. If they ignore you or say “NO” despite a court order that says they must sign the documents, then you can proceed by filing a Request for Order that asks the Court to sign on their behalf.

Since this will likely be a post-judgment motion, you must properly serve your Ex in person.  If you have trouble locating your ex you can ask the Court to allow you to serve by publication or post.

After you obtain an order appointing the Clerk to sign on behalf of your Ex, you must then provide the document to the Court for signature and bring with you a notary so that the document has an official record.

If you are looking for help with signing an order after judgment, please feel free to reach out to amanda@gordonfamilylaw.com.