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Questions Answered by Tobie Brina Waxman
2 Answers | Asked in Divorce for California on
Q: Am I entitled to earnings from an inheritance if I'm getting divorced? Money has never been commingled in our accounts.

The money is in the stock market and has never been removed. He has accrued earnings from his initial inheritance. Am I entitled to half of his earnings from the inheritance?

Tobie Brina Waxman
Tobie Brina Waxman answered on May 5, 2021

Inheritance and earnings on that inheritance are separate property.

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1 Answer | Asked in Child Custody and Family Law for California on
Q: Can I fight for physical custody of my children while there’s a guardian in place and a termination trial ?

How do I win termination I was never served with this guardianship they pushed back the evidentiary hearing three months which makes one year and she can adopt my kids

Tobie Brina Waxman
Tobie Brina Waxman answered on Apr 27, 2021

This is a very serious and legally complicated issue. This Q&A forum is not the proper avenue for you to get this type of legal advice. You need to consult with an attorney directly.

1 Answer | Asked in Divorce for California on
Q: My wife purchased and built the house while we got married. We have been married 16 years.

Am I entitled to any of the assets?

Tobie Brina Waxman
Tobie Brina Waxman answered on Apr 27, 2021

If the house was purchased during the marriage (i.e. after the date of marriage and before the date of separation), it is community property. If she can trace the funds used for purchase to a separate property source, she may be entitled to reimbursement of those funds before the community's... Read more »

1 Answer | Asked in Child Custody for California on
Q: How I can remove parental rights or receive full legal custody on my child.

My child’s father is on her birth certificate, I applied and received child support, but he never been in her life. The last time he saw her is when she was 5 months old, she is 12 now. The problem is that he refusing to sign any documents requiring his signature, I need to get her passport and... Read more »

Tobie Brina Waxman
Tobie Brina Waxman answered on Apr 23, 2021

Your file a petition for parentage and ask for custody orders, or you can file a separate stand-alone petition for custody. I'm assuming 1) you were not married to the father; and 2) there are no existing custody orders in place. If there are custody orders in place, then you need to amend... Read more »

1 Answer | Asked in Family Law for California on
Q: How can you protect sensitive information on settlement agreements?
Tobie Brina Waxman
Tobie Brina Waxman answered on Apr 12, 2021

Depends on what you are talking about. If you don't the "sensitive information" in the settlement agreement, then don't include it. For example, when I draft judgments, if a bank account is being divided or turned over to the other party, I only include the last 4 digits of... Read more »

1 Answer | Asked in Divorce for California on
Q: Hello, My spouse filled divorce and I never responded. He never proceeded. I want a divorce. What can I do

He filed a year ago and has no desire to finalized the divorce.

Tobie Brina Waxman
Tobie Brina Waxman answered on Apr 1, 2021

You don't need his permission to proceed on your own. Respond to the Petition and proceed with the other steps necessary to bring the matter to a close. If he does not cooperate, then file motions to compel and request a trial setting.

1 Answer | Asked in Divorce and Family Law for California on
Q: Want to modify my support payments to ex when I retire. She got house, I got 401k

Marriage was for 22 years, been divorced since 2009 (12 years). Resident of California at time of divorce, moved out of state since. In divorce wife was awarded the family home and spousal support. I was awarded my 401k retirement. I wish to retire in a year when I turn 65. My plan is to live off... Read more »

Tobie Brina Waxman
Tobie Brina Waxman answered on Mar 28, 2021

Assuming your case was vented here in California, if your retirement impacts your monthly income available for support, you should file a Request for Order re modification of support based on that change in circumstances. In terms of your 401k distributions, income is income for purposes of the... Read more »

1 Answer | Asked in Family Law and Child Custody for California on
Q: Can I move more than 100 miles away, not out of state, without the fathers permission? We are not married.

We are not married and never have been. For the most part the father has been absent during the pregnancy and begged for an abortion/ adoption. The father will not be on the birth certificate. I plan to move to Fort Bragg in two weeks where I will have family support, less bills and will overall... Read more »

Tobie Brina Waxman
Tobie Brina Waxman answered on Mar 9, 2021

If there are no custody orders in place (i.e. signed by a judge and filed with the court) and no petition for custody or visitation have been filed, you are free to move wherever and whenever you want.

1 Answer | Asked in Family Law for California on
Q: Is it okay not to list community and separate property on a legal separation petition?

My paralegal says it's common to leave it to be amended at a later date. Is this true? Both parties are in agreeement for the division.

Tobie Brina Waxman
Tobie Brina Waxman answered on Mar 9, 2021

Usually, when I'm preparing a petition and I don't know the extent of separate and community property, I will say so in the petition and also state that that information will be obtained during pre trial discovery. However, if you DO know, i.e. you can create such a list, there's no... Read more »

1 Answer | Asked in Family Law for California on
Q: do you still have to pay child support if she graduates at 17?
Tobie Brina Waxman
Tobie Brina Waxman answered on Mar 5, 2021

Yes because she is still minor. If she happens to graduate from HS before she turns 18 you continue to pay child support until she turns 18.

2 Answers | Asked in Divorce, Family Law, Estate Planning and Probate for California on
Q: In CA. My husband/his ex never filed a QDRO. He died. What do I need to do to get CalPERS to pay me his pension?

He caught Covid in the line of duty. I had POA for CalPERS. I'm his beneficiary. I got the QDRO drafted but it wasn't ready until a month after he died so he couldn't sign it. How do I get an order from court that doesn't require his signature so CalPERS will release the lien on... Read more »

Tobie Brina Waxman
Tobie Brina Waxman answered on Feb 23, 2021

You probably don't have standing to act on his behalf in family court. That being said, there's definitely something that can be done. When someone dies, the successor in interest (probably you) can be joined into the divorce case to sign documents, including a QDRO. That's what... Read more »

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1 Answer | Asked in Child Custody and Divorce for California on
Q: Can I continue with my divorce proceedings in Northern California if the divorce was filed in Southern California?

My ex filed for divorce in Southern Cali a few years back. We have yet to finalize it. I would like to hire an attorney in Northern California since this is now where I live (We both have since left S. California). My ex's attorney is based out of Southern California. Is it possible to... Read more »

Tobie Brina Waxman
Tobie Brina Waxman answered on Feb 23, 2021

Under certain limited circumstances you may be able to file a motion to change venue. If there are minor children involved and they have moved to No. Cal. and have lived there for more than 3 consecutive months, it may make sense to move the venue to a court closer to where the minor children... Read more »

2 Answers | Asked in Family Law and Child Custody for California on
Q: My ex and I have an informal custody plan. I’d like to have a legal one as he often does not honor it. What is step 1?

We have never been married and we live in separate homes. He insists on his time with our son being spent in my home. I would like a formal agreement and for his time with our son to be spent at his home.

I also would like to prevent him from entering my home when he pleases. He has... Read more »

Tobie Brina Waxman
Tobie Brina Waxman answered on Feb 22, 2021

It's always recommended that you retain counsel when trying to get enforceable court orders. Check the CA Superior Court website and their "Self Help" link where you will find the steps for getting an enforceable court order for custody and child support. With respect to his access... Read more »

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1 Answer | Asked in Family Law for California on
Q: Can I I get a QDRO as part of my postnup agreement in California. Or can I only get a QDRO with a legal separation?
Tobie Brina Waxman
Tobie Brina Waxman answered on Feb 4, 2021

A Qualified Domestic Relations Order (QDRO) is used to divide property pursuant to the terms of a Judgment of Legal Separation or Judgment of Dissolution.

1 Answer | Asked in Divorce for California on
Q: Divorced couple co-owners of home I stay in home and pay mortgage is he responsible for half of maintenance and Taxes.

The only thing the judgment says is that I pay mortgage no other expenses were mentioned in judgment

Tobie Brina Waxman
Tobie Brina Waxman answered on Feb 3, 2021

You say you are already divorced. The answer to your question should be in your judgment. What does the judgment say about who is responsible for expenses?

1 Answer | Asked in Divorce for California on
Q: I was served Divorce papers and I didn’t respond in the 30 days. What should I do at this point?
Tobie Brina Waxman
Tobie Brina Waxman answered on Feb 2, 2021

You should respond. If default has not yet been entered, you can respond late.

1 Answer | Asked in Divorce for California on
Q: Looking for help on filling out the Community Property.

My ex and I have an understanding of who’s responsible for what. He is letting me have the house because I can afford it. I want to know how to write this correctly so this is added to the divorce paperwork and so I don’t have any issues in the future. We also each have a car and he has credit... Read more »

Tobie Brina Waxman
Tobie Brina Waxman answered on Feb 1, 2021

This forum is not intended for this type of inquiry. We cannot give legal advice or instructions on how to act as your own attorney. I suggest you call a lawyer directly for a consultation.

1 Answer | Asked in Child Custody, Child Support and Family Law for California on
Q: I live with my children and fiancé and I’m paying child support.. why is this?

My fiancé and I had twins and we have been together for 8 years and we have another child also I was wondering why child support is being taken out of my check since I’m at home with them providing shelter, clothing ,food and ect.. they’re garnishing 1600 a month from my checks and here’s... Read more »

Tobie Brina Waxman
Tobie Brina Waxman answered on Jan 27, 2021

Not enough information. Why is what? A lot more information is needed to be able to answer your question.

2 Answers | Asked in Divorce for California on
Q: Hi my name is Lory, I don’t know where to start on how to file a divorce, I want to put an end to my relationship.

We are separated many years already, he moved in with me and my kids from LA, first I agreed to him moving in with us, knowing that he already moved on and accepted that it’s over between me and him, but now i am having trouble living with him, I just want to be free from him legally but I... Read more »

Tobie Brina Waxman
Tobie Brina Waxman answered on Jan 26, 2021

You can file a request for order with the court asking for an order that your spouse pay or contribute towards your legal fees. If you insist on representing yourself, the Superior Court has a self-help link on its website. https://www.courts.ca.gov/selfhelp-divorce.htm Good luck.

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1 Answer | Asked in Family Law for California on
Q: My elderly ex wife is on the road in her boyfriends RV. The court refuses to say they are cohabiting.

The judge accepted her verbal word over printed certified documentation on many issues. However there is not a transcript of the hearing. Is this worth an appeal?

Tobie Brina Waxman
Tobie Brina Waxman answered on Jan 21, 2021

You don't say why it matters. Whether you should pursue the matter further, depends in part on why it matters to you whether she is cohabitating with someone or not. What is it that you are trying to accomplish?

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