Monterey Domestic Violence Restraining Order – Does the Other Side Have to Pay My Attorney Fees If I Win My Case?
Monterey Domestic Violence Restraining Orders – Does the Other Side Have to Pay My Attorney Fees If I Win My Case?
If your case involves a Monterey domestic violence restraining order, you may be able to ask the court to order the opposing party to pay for your attorney fees. In Monterey, and throughout California, the loser may have to pay for the winner’s attorney fees and court costs in a domestic violence restraining order case. This is authorized by California law, in Family Code section 6344. We will provide you with the exact language from the Family Code, and then break down the law for you below.
What is a Domestic Violence Restraining Order?
A domestic violence restraining order is an order from the court that restricts one person’s contact with another person, due to a history of certain physical or abusive behavior. When emotions escalate during, or right before, a divorce it is common for one party to request a domestic violence restraining order. Although it is not necessary for the parties to be married or going through a divorce. You can request a domestic violence restraining order against someone you that you lived with or had a romantic relationship with.
While it is not required for you to have an attorney in these cases, it is highly recommended especially if you are defending against a restraining order because of the serious consequences an order can have for you financially and legally.
The Law: California Family Code Section 6344
(a) After notice and a hearing, the court may issue an order for the payment of attorney’s fees and costs of the prevailing party.(b) In any action in which the petitioner is the prevailing party and cannot afford to pay for the attorney’s fees and costs, the court shall, if appropriate based on the parties’ respective abilities to pay, order that the respondent pay petitioner’s attorney’s fees and costs for commencing and maintaining the proceeding. Whether the respondent shall be ordered to pay attorney’s fees and costs for the prevailing petitioner, and what amount shall be paid, shall be determined based upon (1) the respective incomes and needs of the parties, and (2) any factors affecting the parties’ respective abilities to pay.
The Rule Simplified
To have the court award you with attorney fees and court costs, you must meet the following criteria:
- Be the party who requested the orders (the petitioner).
- Win your domestic violence restraining order case.
- You can’t afford the fees.
- The loser can afford to pay for your fees.
Let’s break that down a little further. 1) You must be the petitioner, meaning you must be the person who requested the domestic violence restraining order. 2) You must win your case–generally this means the court must have granted some or all of the orders that you requested, and granted none of the orders that the other party requested. 3) You must be unable to pay your own fees and costs. This test seems counterintuitive as you will have already paid your fees and costs by the time you go to a hearing. But if you had to take out loans or paid with credit cards, the court will consider this. 4) Finally, the court will consider the loser’s income and expenses to decide whether the loser can afford to pay the winner’s attorney fees.
Who Pays If I Win By Successfully Defending Against a False Domestic Violence Restraining Order Claim?
Family Code section 6344 does not mention awarding attorney fees for a successful defense against a domestic violence restraining order. Yet, the court may still do so. Surprisingly, that law only mentions the party who brings the case, the petitioner. In fact, the law is completely silent on whether the court can award fees to the other party, the respondent. Nevertheless, the court may award fees to a person who wins in such a case. To “win”, would require that the court dismiss the petitioner’s requested orders.
Less commonly, the court may award attorney fees for defending against a request for a domestic violence restraining order. But is more likely to do so in egregious cases where it appears that the petitioner filed the request for orders in retaliation, or that the claims are blatantly false. Here is an example of one case where the court granted attorney fees to the respondent.
How Can I Get Help With a Domestic Violence Restraining Order in Monterey County?
The Cornwall Family Law Office handles family law matters related to divorce including civil domestic violence restraining orders. We represent parties who need to be protected by restraining orders. In addition, we also represent parties who need to defend against domestic violence restraining order requests.
Contact us today for a confidential consultation.
MILITARY DIVORCE IS DIFFERENT
When one spouse is in the military (or when both are), additional legal issues come into play. Special rules apply in a military divorce regarding where to file a military divorce, how child and spousal support is calculated, how child custody is determined. In addition, military benefits must be considered such as military retirement pension and post-divorce health insurance issues. Service member spouses and civilian spouses alike should take the time to learn about the special issues involved in military divorce. It is essential that military members, and their civilian spouses, hire an attorney who is knowledgeable about the special issues raised in a military divorce.
FILING FOR A MILITARY DIVORCE
Even the first step of filing for divorce with the court is different in a military divorce. In most cases, you must file a military divorce either in the state where the military member is legally domiciled or a resident or in a state that both spouses agree upon.
After filing for a divorce, the next step is to deliver the divorce paperwork to the other spouse, known as “serving” the other spouse. When the other spouse is a military member that is deployed or permanently stationed overseas, special laws apply that can delay the process. This can make a military divorce take longer than a civilian divorce.
CHILD AND SPOUSAL SUPPORT
Child support and spousal support issues are also effected by laws that apply to military divorces only. For example, under federal law, a military member cannot be made to pay child and spousal support that is more than 60 percent of the member’s pay and allowances. Military members who do not comply with a court order to pay child or spousal support can face harsher consequences than a civilian. The Department of Defense requires military members to comply with support, custody, and visitation orders. Punishment for failing to do so can be as serious as a separation from military service.
CHILD CUSTODY & VISITATION
Child custody and visitation plans can be effected by the military member’s frequent moves and the possibility of deployment. A good custody and visitation plan must should account for these issues in a military divorce.
The military gives service members many benefits that can be treated as community property in California, and divided in a divorce. But again, special rules may control how the military benefits may be apportioned during divorce.
YOU WILL NEED LEGAL HELP
For all of the above reasons, a military divorce is more complex than a civilian divorce. If you are a military service member, or civilian spouse, considering divorce, you absolutely shouldn’t negotiate your divorce or sign a settlement agreement without at least consulting a lawyer who is knowledgeable about military divorce. Attorney Breanna Cornwall represents clients in military divorce in Monterey County. She can guide you through the military divorce process in the most efficient and stress-free manner possible. If you would like to schedule an initial consultation regarding your military divorce, contact the Cornwall Family Law Office.
Ten Basic Steps to a Divorce in Monterey
If you live in Monterey, or plan to file for a divorce in Monterey, we’ve prepared a list for you of:
Ten Basic Steps For A California Divorce.
- One: Be Prepared
- Two: File for Divorce with the Court
- Three: Serve the Necessary Paperwork
- Four: Respond to the Filing
- Five: Deal with Any Temporary Orders
- Six: Disclose Financial Information
- Seven: Discovery of Basic Facts
- Eight: Settle on Divorce Terms
- Nine: Possibly Go to Trial
- Ten: Tie Up Loose Ends After Divorce
These steps only provide a basic roadmap to getting a divorce in Monterey, California. A knowledgeable divorce attorney can help you determine the best course of action, every step of the way.
Step One: Be Prepared
Before you file for a divorce, consider whether or not you are emotionally and prepared for the changes that will arise as a result of the divorce.
The saying “never make a big decision when you are emotional” holds a lot of truth. But it may be easier said than done in a divorce. A divorce is often a very emotional process. Wading through all of the memories and emotions surrounding a divorce can take a toll on you. No matter how prepared you may believe that you are emotionally, the fact is, you and your spouse may have difficulty separating logic from emotion in a legal setting. This is one of the main reasons why it can be so helpful to have a skilled divorce attorney on your side—your attorney can advise you on the best decisions to make without being effected by emotion.
There are some things that you can do to be the best partner to your legal team. Manage your stress by turning to your support system and other outlets for letting off steam. For some people that is venting to a close friend or relative, for others it may be hitting the gym regularly. Making regular efforts to let off steam in a healthy way will help you stay level-headed when making big decisions and will make it much easier to deal with the stress of divorce. If you allow your frustrations with a situation to guide you in court, chances are that you will end up hurting yourself and others, which can damage family ties, complicate custody arrangements, and make it more difficult to adequate address the physical assets bound up in the marriage.
Legal Preparations – Before You Meet With Your Attorney
In order to help your attorney to fully understand the nature of your divorce and what it will entail, gather any documentation that you believe might be pertinent to the case. You’ll want to make copies of any important information related to your financial accounts, debts, insurance policies, and real estate assets. On a personal level, you may also want to separate out individual documents like your passport, Social Security information, and birth certificate. This is also a wise time to consider changing your passwords and security questions on your personal accounts.
Step Two: File Your Divorce Paperwork with the Monterey County Superior Court
You can start a legal divorce by filing a “Petition for Dissolution” with the court. This initial divorce filing sets the tone for the divorce by letting the court, and your spouse, know what you will seek in the divorce including assets, child custody, child support, and spousal support. It is more difficult to amend a petition to the courts than it is to get it right the first time, taking all factors into account.
What Should I Include in My Petition?
Within your petition, you’ll want to address five primary topics:
- Arrangements for any children in the family, including plans for support, child custody, and rights to visit;
- Monetary support between spouses;
- How will your property be divided between you and your spouse;
- Who will be responsible for the debts;
- Who will pay for the legal fees.
Can I File for Divorce in Monterey?
To file for a divorce in Monterey County court, you MUST meet California’s residency requirements. That means either you or your spouse must have lived in:
California for the last 6 months, AND
Monterey county for the last 3 months.
The family law division of the Monterey Superior Court is located in Monterey, California. Anyone who lives in Monterey county and wants to file his or her divorce case locally, must file with the Monterey County Court. This includes residents of the cities of Monterey, Salinas, Seaside, Carmel, Pacific Grove, Del Rey Oaks, Sand City, and Marina.
Can I Still File For Divorce in Monterey If One Spouse is In The Military?
The Monterey Courts handle a large number of military divorces. This is due to the large veteran and active duty military population stationed here at the Naval Post Graduate School (NPS) and the Defense Language Institute (DLI). Military divorces are often more complicated legally because they involve both federal and California laws. In addition, military divorces often involve special assets and benefits such as the member’s military retirement pension, GI bill, medical care, and the death benefit. For this reason, it is important to work with an attorney who understands the ins and outs of a military divorce.
Just one of the special issues encountered in a military divorce is “where do I file for divorce”? Military couples that live in Monterey County may still be residents of other states. We also frequently see couples where one spouse is living in Monterey, and the other has already moved out to another state in anticipation of the next duty station.
For a military couple, the divorce can be filed in Monterey county as long as one of the three criteria below applies:
- The spouse who is filing for the divorce lives in Monterey county;
- The active duty spouse is formally stationed in Monterey; OR
- The active duty spouse is able to claim legal residence in Monterey County.
Step Three: Serve the Necessary Paperwork
Next comes the part that has been dramatized in so many films and television shows . . . you serving the paperwork to your spouse. Contrary to how many of these films present things, you should not attempt to serve these papers yourself. Instead, any adult, who is not a party in the case, can “serve” the paperwork. Your chosen server simply needs to hand the paperwork to your spouse. Some people choose to use a relative or friend. Others use professional process servers. To make the process easier on both parties, have appropriate conversations with your spouse about the possibility of divorce before before you serve them with the divorce.
There are two main parts to the paperwork that you will give to your spouse—the summons and the petition. The summons is a notice from the court. It states that you are requesting a divorce through the courts and notifies them of when and where they need to appear in court. The summons also includes a standard set of restraining orders and a summary of rights for all parties involved. The petition is the document you submitted to the court that states your desire to end the marriage, and tells the court what issues will need to be decided (child custody, spousal support, dividing property etc.).
Once your spouse has received the divorce filings, you’ll need to give the court proof that you properly served the documents on your spouse.
Step Four: Respond to the Divorce Filing
Once your spouse has received the paperwork for the divorce, he or she has 30 days to file a “response” with the Monterey Family Court.
If you are the one being served with divorce papers, carefully review all of the orders contained in paperwork, as they apply to you as soon as you receive them. You’ll also want to make note of the date that you were served, as you have 30 days to submit your response. If you do not file your response within 30 days, the other party may be able to move forward without your response.
Note that in California, only one party is required to file for divorce, even if the other doesn’t agree. Simply ignoring the matter won’t make it go away, so make sure to protect your rights legally by filing a timely response.
Step Five: Deal with Any Temporary Orders
When you file your divorce petition, the court automatically issues a routine set of restraining orders. These orders are automatic temporary restraining orders or ATROs. The ATROs restrict the filing party’s actions as soon as he or she files the petition. The ATROs restrict the other spouse’s actions as soon as you serve him or her with the divorce paperwork. These temporary orders keep the parties in the divorce from destroying or attempting to hide any assets that are held in common or separately. If either party violates the automatic temporary restraining orders, the court can issue some serious penalties.
Additional orders that might apply to a divorce proceeding include orders for temporary spousal support, orders attorney fees, child custody or child support orders, other kinds of restraining orders, and any other judgment that might be required to keep property and people safe while the divorce is finalized.
Parties can request temporary orders at any point in the divorce proceedings. They do not expire unless they are overwritten by other orders, including the final judgment in the case.
Step Six: Disclose Financial Information
As a part of dividing up marital property, you’ll need to know how much things are worth, who you believe is responsible for it, and a timeline of when that asset or debt came into the marriage. The court requires that the parties exchange certain financial information through the use of financial disclosures. These financial disclosures include a list of all the assets and debts held by the parties in a divorce separately and in common, and a list of expected income and expenses.
This step can require a mountain of paperwork! Determining value of property that may be sentimental can be time-consuming and emotionally exhausting. Additionally, you’ll need to have documentation from any income, your taxes, deeds, titles, statements for accounts, and more, all of which must be given within a specific format to the courts.
Basically, the court expects both parties to disclose all necessary information so that a fair and equitable settlement can be made. Unfortunately, there is no way to skip this step, even if the partners have come to a full agreement over assets, aren’t seeking support, or don’t have more than a nickel to their name.
Step Seven: Discovery of Basic Facts
“Discovery” is the formal process used in a legal case to obtain important information about your case from other people. To ensure that everyone is prepared for trial, you must complete all discovery by 60 days before trial.
There are three common areas of discovery that you may want to consider:
- Requests for Documents or Subpoenas: This is a useful way to access records and other important files that are relevant to the case.
- Requests for Interrogatories and/or Admissions: An interrogatory is basically a set of questions posed between parties that are sworn to be truthful, while a request for admission requires that your spouse either accepts or denies the validity of a statement given.
- Depositions: Unlike an interrogatory, which is done through a written statement, a deposition is verbal testimony transcribed by a court reporter.
You do not have to seek discovery in a divorce proceeding. But conducting discovery can give you a fuller picture of the assets and legal issues that the judge should address. Failure of a party to respond to discovery can bring about sanctions from the judge, as well, which serves as a motivator for everyone involved to comply.
Step Eight: Attempt to Settle on Divorce Terms
It is usually best for all parties to agree to the terms of the divorce in a settlement agreement. If both parties agree, you can sign off on your divorce terms in an agreement called a “marital settlement agreement”. Entering into a settlement agreement allows both parties to have input about the terms of their divorce. Once both parties sign off on the settlement agreement, they can give it to the judge for approval. Typically, judges approve settlement agreements. But, the court does not have to agree to terms related to child custody or support.
You should address the following issues in your marital settlement agreement include:
- Custody and visitation arrangements
- Child and spousal support
- Division of property, assets, and debts
- Legal fees
In some cases, you can the judge may meet with the parties and their counsel to encourage settlement.
Step Nine: Possibly Go to Trial
If the parties cannot settle on terms, then the court will decide any outstanding financial and child issues at a trial. If your divorce goes to trial, the judge will review all previous orders and documents submitted to the court. You should bring all evidence and supporting documentation with you to trial. The judge might ask you, or other witnesses brought in, for more information. The judge will announce his or her decisions verbally, and also make them in writing.
Step Ten: Tie Up Loose Ends After Divorce
Even after the court finalizes the divorce, you may have more work to do. You may still need to transfer titles for your vehicles, change your insurance plans and beneficiaries, and close joint accounts.
Because the process can be a lengthy and emotionally exhausting ordeal for everyone involved, it is important to have the right kind of legal partner on your side. By enlisting the aid of a qualified and knowledgeable divorce attorney, you can avoid some of the most common obstacles encountered by those seeking a divorce in California, saving your sanity and your assets in the process.