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Andrew J. Botros, APC Andrew J. Botros, APC
858-422-1377

FAQ

  • Benefits of Retaining Andrew J. Botros, APC

    • Although Andrew J. Botros, APC is a busy law firm, we recognize that first and foremost we are a service provider. As a business in the service industry we recognize the fact that our customers are our top priority. We provide personal legal services to our clients while they go through the difficult process of their family law case. Our attorneys are available at all times to handle client emergencies which often happen in sensitive matters such as custody disputes. At Andrew J. Botros, APC, once a client retains our firm, a team of professionals is immediately assigned to that client’s case. Each client’s team consists of a lead attorney, an associate attorney and a paralegal. The client can contact any of the team members with any questions and can keep his or her bill as low as possible by speaking to the associate attorney or paralegal about certain matters. Overall, our office and our staff are welcoming and ready to work for each client by tailoring our services to his or her particular legal needs.

    • At Andrew J. Botros, APC we pride ourselves on the efficiency of our support staff. Every piece of correspondence that is sent to our office is immediately processed according to our highly detailed system and disbursed. Our clients are constantly in the loop regarding their case because family law matters are extremely personal. We believe that our clients are entitled to be kept up to date regarding their cases and also participate in important decision making. Before our attorneys send significant documents or correspondence to an opposing party or attorney, they often seek the client’s approval first. In addition, clients are always welcome to schedule a sit-down meeting with our attorneys and discuss the overall strategy for and direction of their case.

  • Understanding Family Law

    • A Certified Family Law Specialist (CFLS) is an attorney certified by the State Bar of California Board of Legal Specialization as a specialist in family law. A California attorney, who is certified by the State Bar as a Family Law Specialist must have:

      • Taken and passed a written examination in family law
      • Demonstrated a high level of experience in family law
      • Fulfilled ongoing education requirements, including specific education requirements in family law
      • Been favorably evaluated by other attorneys and judges familiar with her or his work in the family law area

    • Pendente lite orders are temporary orders on an issue pending resolution of a divorce case. Pendente lite orders may remain in effect until the time of trial, written settlement by the parties, or further court order.

    • Yes. In fact, we at Andrew J. Botros, APC encourage all of our clients to mediate as many issues as possible. The purpose of mediation is to assist you and your spouse in making your own decisions about your divorce because you know better than any judge how to evaluate your situation. Many divorce complexities are handled in San Diego through mediation.
    • In mediation, two parties can work together to identify the best solutions to their problems, whereas litigation can result in decisions that neither party wanted. For example, if the most important thing you want in your divorce is “A” and your spouse primarily wants “B” a San Diego judge could award “B” to you and “A” to your spouse. One major advantage of mediation and negotiation over litigation is that in mediation you can bargain for “A” while your spouse may offer you more if he can achieve “B”. Result? Both parties avoid the extraordinary expense of litigation and also can achieve a more mutually satisfying result.
    • San Diego collaborative family law describes the legal component of collaborative practice in which the spouses and their attorneys engage in four-way settlement meetings striving to comprehensively settle all divorce-related issues outside of court and litigation. With the sole goal of negotiating reasonable resolutions to divorce disputes, a participation agreement is a vital element of San Diego collaborative law and lays out the terms of the approach, disqualifying the attorneys from further participation in the case should the collaborative efforts fail and should the spouses require litigation.
    • Often in mediation one party can overwhelm the other. If there is not a balance of power within the mediation process, it can result in an unfair decision. In addition, if one party is fighting for an unfair result that favors that party, and tries to bully or intimidate through the mediation process, then a judge in a litigated setting may order a more fair result.
    • A Marital Settlement Agreement (“MSA”) is a final agreement entered into by parties in a divorce proceeding. An MSA is the alternative to a trial on all disputed issues in which a judge makes an order that binds both parties. If they decide to negotiate an agreement outside of court, the parties and their attorneys can craft an MSA which divides all marital property, contains custody and visitation provisions, awards child and spousal support, an contains many other creative and unique solutions. The advantage of reaching a divorce settlement in San Diego and entering into an MSA is that the parties are able to control the outcome of the case. In court, the judge makes decisions that the parties must abide by indefinitely.Additionally, the rate of compliance with an MSA is higher than that of a judge-created court order. Drafting an enforceable, competent, and clear MSA is a complex procedure. It is important to meet with a Certified Family Law Specialist to discuss this complex and highly important area of family law.

  • Procedure

    • In California, both parties are held to a very high standard of full disclosure. For example, Family Code section 2100 provides:

      It is the policy of the State of California (1) to marshal, preserve, and protect community and quasi-community assets and liabilities that exist at the date of separation so as to avoid dissipation of the community estate before distribution, (2) to ensure fair and sufficient child and spousal support awards, and (3) to achieve a division of community and quasi-community assets and liabilities on the dissolution or nullity of marriage or legal separation of the parties as provided under California law.

    • In San Diego, your divorce is finalized six months from the date of personal service of the Petition, but you will have to seek this relief request from the court by either filing a motion or a stipulation.
    • Yes. In fact, a great deal of our practice at Andrew J. Botros, APC is to work with both parties who are mediating. When needed, we can advocate strongly for our client, especially if a client is fearful of opposing his or her spouse alone in mediation.
    • An ex parte proceeding is an emergency hearing requested by one party. In San Diego County, notice must be given to the opposing party of an ex parte hearing by 10:00 a.m. the court day before the hearing. Notice is not required in only a limited number of circumstances. In order to be successful, the requesting party must show that he or she will suffer irreparable harm if he or she is not permitted to bring the motion without a regularly scheduled hearing. In family court, both sides must meet and discuss the dispute before appearing in court. Failure to do so may result in sanctions, including denial of the ex parte request.

  • Support

    • Although spousal support is typically tax-deductible to the payor, there are eight elements that must be met to insure that the payments are in fact, deductible:

      • The payments must be made under a divorce or separation agreement (26 USC § 71 (b)(1)(A)).
      • The payment must be received by, or on behalf of, a spouse or former spouse (26 USC § 71 (b)(1)(A));
      • The payments must be made in cash. Checks are treated as cash but a transfer of services, property or executing a debt instrument does not qualify as “cash”. (26 USC § 71 (b)(1));
      • The divorce or separation instrument does not have a clause by which the spousal support payment is specifically designated as non-taxable to the recipient or not allowable as a deduction to the payor (26 USC § 71 (b)(1)(B));
      • The parties must not be members of the same household when the payment is made; unless the spousal support payment is pursuant to a temporary order (26 USC § 71 (b)(1)(C));
      • There can’t be any associated liability to make any payment after the death of the recipient spouse or to make any payments as a substitute for such payments after the death of the recipient spouse (26 USC § 71 (b)(1)(D));
      • The payment is not treated as child support or subject to a contingency related to a minor child (26 USC § 71 (c)); and
      • The former spouse does not file a joint tax return (26 USC § 71 (e));
    • Whether parents are married or not, the amount of child support that is due from one parent to the other is mandated by the State of California. Divorce laws in San Diego dictate that the guideline amount will be calculated by a computer using key factors such as the income of each parent, ability to earn, the percentage of time each parent has with the child or children, and other guideline deductions such as income taxes paid, health insurance, mandatory retirement, etc.

    • A: In California, the amount of child support due from one parent to the other is a guideline amount calculated by a specialized computer program. This program considers many factors including the income of each party, the percentage of time each parent has with the child, the ability of each party to pay, health insurance, and other tax considerations.

    • Child support is not taxable to the recipient, nor is it tax deductible for the payor.
    • Without an agreement to the contrary, spousal support is taxable to the recipient and tax deductible for the payor.
    • Judges have broad discretion in their ordering spousal support. San Diego divorce law determines that the amount awarded to the supported spouse is a complex determination based on a variety of factors including the income of each party, the length of the marriage, the age and health of each party, the marketable skills of each party, the marital standard of living, the respective education of each party and more.

  • Child Custody & Visitation

    • Supervised visitation may be appropriate in cases where there are issues of substance abuse or domestic violence, or when it would not otherwise be appropriate for a parent to be alone with their child or children. Supervision of visitation may be done by either a professional or non-professional provider. Both are subject to various qualifications set forth in California Rule of Court Standard 5.20 Uniform standards of practice for providers of supervised visitation. Non-professional providers cannot charge for their services and are typically family members or friends.

  • Property Issues

    • Community property is generally presumed to be all property acquired during marriage unless the property was acquired by gift or inheritance. There are, however, exceptions. You should consult with a Certified Family Law Specialist, particularly one familiar with financial matters, to discuss this complex area of law. Our firm is composed of multiple Certified Family Law Specialists.
    • Debts acquired during marriage are generally presumed to be community debts. There are, however, exceptions such as debts acquired as an encumbrance on separate property that are separately titled. You should consider meeting with a Certified Family Law Specialist, who is well versed in finance, to discuss this complex area of law. Both Andrew J. Botros and Matthew S. Blado are Certified Family Law specialists in San Diego who are able to understand and explain these matters.
    • If you brought separate property, assets, or debts into your marriage, and if those assets or debts exist at the date of separation and can be traced to the separate property that you brought into the marriage, then those assets or debts remain your separate property. Many San Diego divorces are complex in nature, and require a great deal of experience to navigate.
    • The process of tracing is extremely complex. We, at Andrew J. Botros, APC, have superior knowledge and an understanding of the tracing process and can empower you with an in-depth understanding of the process. Nonetheless, in San Diego County a court would usually expect a neutral accountant to serve as the court expert and to perform this tracing.

    • If you can prove that the account was yours before marriage and that no deposits were made during marriage, then the IRA will be confirmed as your separate property.

    • The analysis of this situation is somewhat complicated. Essentially, a portion of the gains upon the exercise of stock options will be community property and a portion will be separate property, based upon various formulas. We at Andrew J. Botros, APC, are well-versed in these formulas and divorce laws in San Diego and can advise you of your rights. However, a court is likely to request that a neutral accountant serve as the court expert to make this allocation.
    • In San Diego, if you brought assets into the marriage and used those assets to support your standard of living or to pay community expense, they will usually be presumed to have been a gift to the community. Only separate property assets and debts that remain at separation can be confirmed to one party or the other as separate property. There are some exceptions, however, regarding claims for credits or reimbursements to either separate property or to the community. One exception would be if you used your separate property to pay down the debt on your community home. This would be reimbursable to you provided you can “trace” the payments from your separate property to the community property debt.

  • Discovery

    • Yes. In San Diego family courts, you may subpoena third parties, such as financial institutions, to obtain bank records. This is called discovery. There are certain requirements that must be complied with to obtain discovery through third parties.

    • Yes. According to California case law, parties are not required to provide updates to their former spouses if there is a change in their finances. However, the financial situation of a former spouse may be crucial if ongoing San Diego child support and spousal support orders are still in place. A change in a party’s ability to pay support may warrant a modification of a support order. Under the California Family Code, parties may request a financial update from their former spouses once every twelve months. Once the request has been properly made, the former spouse is required to complete an updated Income & Expense Declaration outlining all of their most recent income and expenses and provide his or her most recent tax returns.

  • Mediation

      • Children don’t have to take sides and can avoid getting “caught in the middle”.
      • Parents may learn how to improve communication and negotiation skills, making it easier to settle future disputes.
      • A mediated agreement takes into account the family’s special needs.
      • Divorcing couples are often better able to accept and respect a mediated agreement that they have worked out together.
      • Mediation is quick and can save substantial time and money compared to cases that proceed through the Family Court system until Final Hearing by the judge.
      • Mediation is confidential, unlike most court proceedings which are of public record.
      • Time-sharing, Co-parenting and Child support
      • Paternity issues
      • Child Custody – who will make the day-to-day decisions about the children’s lives
      • How the marital property, assets and debts will be divided between the parties
      • Issues regarding spousal support (alimony)
      • Any other family law issues unique to the parties
    • Each party will be allowed to explain their side of the case and their views on how they would like the issues resolved. Through the negotiation process, the mediator works with the parties to find common ground and suggest possible solutions to their differences. The mediator may also meet with each party separately and confidentially in what is known as a “caucus”.

      The issues agreed upon are produced in writing, reviewed, signed by the parties and submitted to the judge for approval. Discussions during mediation are considered confidential and cannot be used against you in court.

  • Financial Disclosures

    • In California, spouses owe each other the highest duty of good faith and fair dealing throughout marriage. These types of fiduciary obligations continue on after the couple has separated and even throughout the entire divorce process. During divorce, spouses must disclose all material facts and information regarding their finances. This duty is ongoing; therefore, if new facts and information arise, the spouse has a duty to update previous disclosures. However, after the parties have resolved all issues in their divorce (by agreement or at trial), and entered a Judgment of Dissolution, they no longer owe each other an ongoing duty of disclosure. If the parties are still operating under a child and/or spousal support order, they still have the ability to obtain information regarding the other party’s finances.
    • During a divorce, spouses have an ongoing duty to disclose all material facts and information regarding their finances. This includes thoroughly completing the Income and Expense Declaration and Schedule of Assets and Debts forms early on in the case. These forms require all divorce litigants to provide information and documents regarding their income, monthly living expenses, assets and debts. These forms are signed under penalty of perjury and heavily relied upon by the court in support hearing and with regard to property division. Typically for each asset and debt, spouses provide backup documentation regarding their claims. With regard to income, the Income and Expense Declaration form requires the parties to attach paystubs reflecting income for the past two months in addition to K-1s or a Schedule C if appropriate. If you have any questions regarding whether to disclosure certain financial information during a divorce, it is imperative to discuss your question with an experienced family law attorney.
    • Despite the stringent fiduciary duties of disclosure that are imposed upon divorce litigants, if you believe your spouse may be hiding income or assets there are options available to you to attempt to discover any hidden information. There are two approaches parties can take when undergoing an investigation into their spouse’s finances. First, the litigant can propound discovery directly on the other party by requesting documents and or asking specific questions called interrogatories. Second, the litigant can send subpoenas directly to third parties (such as banks, a spouse’s employer, a credit card company, or any other financial institution) requesting relevant documents. As a cautionary measure it is always prudent to consider the cost of such discovery and the potential benefits. More times than not, when a spouse is suspicious that the other party is hiding money or assets, these suspicions are unfounded.

  • Domestic Violence

    • The first step in determining whether a case is a domestic violence case is an assessment of the relationship between the two parties. Pursuant to California Family Code section 6221, domestic violence is defined as abuse perpetrated against (1) a spouse/former spouse, (2) a cohabitant/former cohabitant, (3) a person with whom the abuser is having/has had a dating or engagement relationship with, (4) a person with whom the abuser has a child, or (5) either party’s child. The definition of abuse is very broad and includes intentionally (or recklessly) causing (or attempting to cause) physical harm, or placing someone in reasonable fear of imminent physical harm to himself, herself, or another person. Domestic violence restraining orders are also granted on the basis of emotional harm, harassing, stalking, and threatening harm.
    • If you are in a domestic violence situation as described in the FAQ above, you may be eligible for a domestic violence restraining order. The first step is to obtain immediate protection by requesting a temporary restraining order (“TRO”). TROs are granted or denied on an ex parte basis. This means that the other side (alleged abuser) will not have notice of the TRO until they are served personally with the paperwork. At the time you request a TRO you will be given a court date for a “permanent” restraining order hearing. The court can grant a permanent restraining order for any appropriate amount of time not to exceed five years. The restrained party is entitled to present his or her side of the story within 21 days of the issuance of the TRO; therefore, the restraining order process moves much quicker than other family law matters. Any experienced family law attorney or the family law facilitator’s office (located at your local courthouse) can help you prepare the necessary paperwork to obtain a restraining order.
    • In addition to requesting a court order that your abuser stays away from you and immediately cease all abusive behavior, courts offer a number of additional requests which are available to victims of domestic violence. If you are currently living with your abuser and/or own a residence together, you can request a court order for exclusive use and possession of the residence. This means that the abuser may not return home if you two live together or may not enter co-owned property if you are residing there. In addition, you can request relief for any other potential victims such as pets and children. When requesting a temporary restraining order to protect yourself, you may also ask the court to issue an order of protection for your children. If this request is made, the court will consider whether to prohibit the abuser from seeing the children at all or whether to grant limited supervised or unsupervised visitation.

  • Judgment FAQ’s

    • Regardless of the area of law, a judgment is a final resolution of a case, issue, or set of issues. In family law we often see Judgments of Dissolutions, or divorce judgments. Divorce judgments can resolve issues such as property division, spousal support, child support, attorney fees and a variety of other matters. In a divorce case, if the parties reach a mutual agreement regarding issues in their case, their agreement will become an enforceable judgment. If the parties are not able to agree on all issues and one or more issues must proceed to trial, a judgment will be entered by the court. Therefore judgments result in one of two ways, agreement of the parties or court order. Although a judgment is a final resolution, this does not preclude the parties from requesting a modification or set aside of the judgment.
    • Depending on the issues resolved through the judgment there are various methods of enforcement available. If you want to enforce a judgment regarding child support, the court has many tools to incentivize parents to pay support such a wage garnishment, revocation of professional licenses, revocation of driver’s licenses, and even jail time. If you want to enforce property division terms of your judgment, the wording of judgments often spells out the relief available to the parties. Consulting with an attorney will help you understand your rights pursuant to your judgment. Often, having the attorney draft a letter to the opposing party outlining his or her legal obligations under the judgment and possible ramifications for failure to abide by its terms will inspire action from the non-complying party. If necessary, family law litigants also have the option to file post-judgment enforcement motions with the court asking for relief.
    • If you would like to set aside any portion of your family law judgment, it is crucial to meet with an experienced family law attorney as soon as possible. The law imposes strict deadlines for motions to set aside judgments. The amount of time you have to ask the court to set your judgment aside is dependent on the grounds for your relief requested. However, most claims to set aside judgments are waived within six months of the entry of a judgment. Further, it will take time for your attorney to review the judgment and prepare all of the pleadings necessary to request relief from the court. The first step necessary to stop the clock on the statute of limitations is filing a motion for a set aside with the court. Therefore, if you are even considering setting aside a judgment, seek assistance from an experienced family law attorney immediately.
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