Domestic Violence Restraining Order

Previously we provided statistics with regards to the prevalence of domestic violence.  Today  our focus is on the process for obtaining a domestic violence restraining order pursuant to California’s Domestic Violence Prevention Act (DVPA) as set forth in Family Code §6200, et seq.

A domestic violence restraining order is a court order that helps protect people from abuse or threats of abuse from someone they have a close relationship with. Requirements for a domestic violence restraining include:

• A person has abused (or threatened to abuse) you;

AND

• You have a close relationship with that person.
  • You are:
    • Married or registered domestic partners,
    • Divorced or separated,
    • Dating or used to date,
    • Living together or used to live together (more than roommates),
    • Parents together of a child, or
    • Closely related (parent, child, brother, sister, grandmother, grandfather, in-law).

As a parent of a child under the age of 12, you can file a restraining on his or her behalf to protect your child. If your child is 12 or older, he or she can file the restraining order on his or her own.

What does a Restraining Order do?

A restraining order is a court order that requires the abuser to

• Not contact or go near you, your children, other relatives, or others who live with you
• Stay away from your home, work, or your children’s schools
• Move out of your house (even if you live together)
• Not have a gun
• Follow child custody and visitation orders
• Pay child support
• Pay spousal or partner support (if you are married or domestic partners)
• Stay away from any of your pets
• Pay certain bills
• Release or return certain property

A computer system, called CLETS (short for California Law Enforcement Telecommunications System), holds all of the information concerning your order so that law enforcement agents anywhere in the United States can obtain this information.  If you move out of California, contact your new local police so they will know about your orders.

Types of Restraining Orders

Emergency Protective Order (EPO)

For immediate protection, this order is optimal. An EPO can be provided by the police department at any time of the day or night. The only caveat is that this order only lasts for 5 court days or 7 calendar days. The judge can order the abusive person to leave the home and stay away from the victim and children for the allotted time. This allows for enough time to go to court to file a temporary restraining order.

Temporary Restraining Order (TRO)

After filing court paperwork that explains the situation, a judge can give you a TRO that will last 20-25 days until the court hearing date.

“Permanent” Restraining Order

When you go to court for the TRO hearing, the judge can issue a “permanent” restraining order that will last up to 3 years. At the end of the 3 years, you can ask for a new restraining order for protection.

Criminal Protective Order or Stay-Away Order

The district attorney can file criminal charges against the abuser, depending upon the circumstances. As the criminal case is ongoing, a criminal protective order against the abuser is issued. This can last for 3 years after the case if the defendant is found or pleads guilty.

The Restraining Order Process

                After filing the court forms (no fee to file) for a protective order, a judge will determine whether to grant the temporary order and give a hearing date. The filed documents must be served on the opposing party by someone 18 or older not involved in the case. The restrained person has the right to file an answer to the restraining order request, explaining his or her side of the story. After the hearing, a judge will choose to continue or cancel the temporary restraining order.

Resources for Help

• National Domestic Violence Hotline
• California Department of Public Health Violence Prevention Resource Directory
• Futures Without Violence
• Next Door Solutions

For more information on the above content, please check out http://www.courts.ca.gov/selfhelp-domesticviolence.htm and http://www.scscourt.org/self_help/restraining/dv.shtml.

If you have any questions about filing a Domestic Violence Restraining Order (DVRO) or have been served with a DVRO or a Request for a DVRO, please contact The Law Office of Matthew J. Rudy for a free 1-hour consultation.

Domestic Partnership in California

Same-sex marriage has become a much publicized issue in recent years. Pending the United States Supreme Court decision regarding the status of same-sex marriage in California same-sex couples in California may register as domestic partners with all of the same rights, at the state level, as spouses.

A California domestic partnership is “a legal relationship available to same-sex couples, and to certain opposite-sex couples in which at least one party is at least 18 years of age.” It affords the couple “the same rights, protections, and benefits, and… the same responsibilities, obligations, and duties under law…” as married spouses (legalinfo.ca.gov).

Similarities to Marriages

Currently, California affords domestic partnerships the same rights and responsibilities as marriages under state law. Among these:

• Making health care decisions for each other in certain circumstances
• Hospital and jail visitation rights that were previously reserved for family members related by blood, adoption or marriage.
• Access to family health insurance plans (Cal. Ins. Code §10121.7)
• Spousal insurance policies (auto, life, homeowners etc.), this applies to all forms of insurance through the California Insurance Equality Act (Cal. Ins. Code §381.5)
• Sick care and similar family leave
• Step-parent adoption procedures
• Presumption that both members of the partnership are the parents of a child born into the partnership
• Suing for wrongful death of a domestic partner
• Rights involving wills, intestate succession, conservatorships and trusts
• The same property tax provisions otherwise available only to married couples (Cal. R&T Code §62p)
• Access to some survivor pension benefits
• Supervision of the Superior Court of California over dissolution and nullity proceedings
• The obligation to file state tax returns as a married couple (260k) commencing with the 2007 tax year (Cal R&T Code §18521d)
• The right for either partner to take the other partner’s surname after registration
• Community property rights and responsibilities previously only available to married spouses
• The right to request partner support (alimony) upon dissolution of the partnership (divorce)
• The same parental rights and responsibilities granted to and imposed upon spouses in a marriage (nclrights.org)

How to File for Domestic Partnership

Same-sex couples in California may want to register as domestic partners prior to a determination of whether or not they will be allowed to marry under California law. By registering as domestic partners, couples are entitled to all the rights and protections of state law. To qualify as domestic partners, couples must meet certain conditions. To register a domestic partnership in California, follow these guidelines.

1. Determine whether you and your partner meet the basic requirements to qualify for domestic-partnership status. Certain conditions must be met before a couple can formally apply for California domestic partnership with the Secretary of State’ office. Requirements include:

• Partners must be the same sex, or at least 1 person in an opposite-sex domestic partnership must be at least 62 years old at the time of filing.
• Both people must be at least 18 years old.
• The partners must have a common residence. The primary residence doesn’t have to be jointly owned.
• Neither partner may be married to or in a concurrent domestic partnership with another person.
• Partners cannot be related by blood.
• Both people must be mentally capable of consenting to the partnership.

2. Complete the application process as set forth by the California Secretary of State’s office.

3. Download the Declaration of Domestic Partnership form (NP/SF DP-1) from the Secretary of State’s website at http://www.sos.ca.gov.

4. Print and fill out the application. Incomplete forms will delay approval of your status.

5. Have both partners’ signatures notarized.

6. Send the notarized application to the Secretary of State’s office by mail with payment for the appropriate fee. Applications also can be delivered in person at the main office in Sacramento or the regional branch in Los Angeles.

• After you have filed your application, you will receive a Certificate of Registration of Domestic Partnership and an important brochure that outlines your rights with a domestic partnership.

7. Pay the fees associated with your particular form of domestic partnership.

Tips

• The additional fees for same-sex partnership applications go toward training and support of local organizations that educate the public on domestic-violence issues affecting the gay, lesbian, bisexual and transgender communities.
• Understand the scope of domestic-partnership laws. Laws that protect traditional couples also apply to domestic partners, including survivor’s rights. Like married heterosexual couples, domestic partnerships are dissolved in the family court. To end a California domestic partnership, a couple must complete form NP/SF DP-2, Notice of Termination of Domestic Partnership. If all the requirements of the California Family Code are met, the office can terminate the partnership 6 months after the application is filed. Otherwise, issues surrounding the dissolution of the partnership must be resolved in California Superior Court.
• Hand-delivered applications are subject to an additional processing fee. Both offices accept payments by check, money order or credit card. The Sacramento office also accepts cash. The Los Angeles branch does not.
• In the event of the passage of significant legislation affecting domestic partnership, the Secretary of State’s office will contact all people on the Domestic Partnership Registry and explain the impact of the new law. (http://www.sos.ca.gov/)

If you have any questions about Domestic Partnerships, please contact The Law Office of Matthew J. Rudy for a free 1-Hour Consultation.

Prenuptial Agreement

Given the prevalence of divorce, prenuptial agreements are an increasingly popular way for people to protect assets in the event of a divorce. Most people believe that only celebrities have reasons to have a prenuptial agreement. However, prenuptial agreements are made for anyone that has any assets that need protection in case of divorce. Some agreements also address estate planning issues, alimony, asset management during the marriage and responsibility for debt. Entering into the agreement at or near the time of engagement is highly recommended. In this blog, we will explain the basics of prenuptial agreements by looking at California Family Code Sections 1612 and 1615.

Who Needs a Prenuptial Agreement?

You should consider having a prenuptial agreement if you fall into any of the following categories:

1. You own a home, stocks or retirement funds
2. Own all or part of a business
3. You anticipate receiving an inheritance
4. You have children or grandchildren from a previous marriage
5. One partner is much wealthier than the other
6. One partner will be supporting the other through college
7. You have loved ones who need to be taken care of, such as elderly parents
8. You have or are pursuing a license in a potentially lucrative profession such as medicine
9. You could see a big increase in income because your business is taking off (Wikipedia)

Family Code Sections 1612 and 1615

Family Code Section 1612 sets out what can and cannot be in a prenuptial agreement. Generally, any financial issue can be dealt with in a premarital agreement. Issues relating to children, including child support and custody are not permitted. Nor is one allowed to contract about duties during the marriage, such as household chores, frequency of sexual relations, or penalties for adultery.

California has special provisions regarding spousal support in prenuptial agreements. In California spousal support provisions in a prenuptial agreement drafted at this time will not be enforced unless the person whose receipt of spousal support is limited or waived had independent counsel before entering into the agreement. As well, provisions regarding spousal support will not be enforced if they are unconscionable at the time of enforcement. The unconscionable standard is somewhat ambiguous and it is unclear what will circumstances would make a limitation or waiver of support unconscionable. One such circumstance might be a disability that precludes the spouse waiving support from working. As a result it is impossible to determine in advance whether a spousal support provision will be enforceable at the time of separation, as changing circumstances prior to separation might render the agreement unconscionable.

Probably the most important part of the California Uniform Premarital Agreement Act is found in section 1615, which sets out when a prenuptial agreement is enforceable, and when it is not enforceable. The usual caveats apply here: there must be financial disclosure, the premarital agreement must not be unconscionable, there must not be any coercion, and the parties must understand what they are signing. California requires that there be at least seven days between when a party is first presented with an agreement and when the agreement is signed. To have an enforceable prenuptial agreement it is generally a good idea to ensure that both partners are represented by competent counsel.

Prenuptial agreements can include responsibilities that do not deal with money, but one should avoid making demands that might seem frivolous, such as requiring that a spouse not gain weight, or that he or she quit smoking and take out the garbage three times a week. A judge could look suspiciously upon terms that are less serious than, say, stipulating what religion your children will observe if the spouses are of different faiths (law.onecle.com).

Legal Benefits

Difficult as it may be to talk about money before marriage; doing so can save heartache and hassles in the long run. A prenuptial agreement can minimize the financial and emotional toll of a divorce. Couples without a prenuptial agreement will have their assets divided by a judge if the marriage ends and the parties disagree about who should get what.

Without a prenuptial agreement, assets could end up in the hands of your spouse’s children from a previous marriage instead of your own kids, or they could go to a partner who did nothing while you worked away at a business or book that eventually became a big success.
Premarital agreements are a personal decision, but without one, couples relinquish not only power over their assets but privacy as well (leginfo.ca.gov).

If you have any questions about a prenuptial agreement, please contact The Law Office of Matthew J. Rudy for a free 1-Hour Consultation.