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Family Law & Divorce FAQs


DO YOU NEED AN ATTORNEY; That depends. If yours is a short marriage, both spouses work, no children, no property and you have the time to educate yourself, probably not; Self help books, paralegal’s and the courts may be useful. Unfortunately such resources are not a substitute for professional assistance the more complex the issues become. The more you have and the more urgent the need for relief is, the more complex the dissolution becomes. Knowledge, tactics and timing are essential parts of the process. There is no substitute for experience. The long term cost of making a bad decision can be enormous. Some bad decisions can be straightened out, unfortunately the cost to straighten things out could easily cost more than the cost to retain counsel and do it right the first time.

Attorney conduct is policed by California State Bar and local bar associations. Attorneys are required to attend continuing education seminars and most attorneys have errors and omissions insurance. If you use a experienced paralegal, they should be able to do the basic paperwork, but there is much more to the process than checking boxes and filling in blanks on a form. There are substantial economic consequences associated with checking the right boxes, completing the forms and taking timely action, it pays to know you rights and to do it right the first time.

If you appear in court without an attorney and are representing yourself, you will be held to the same standard as a attorney. . . . you should not expect to get a break because you are representing yourself. If you decide to represent yourself, be prepared to invest your time to learn the process. The more you know the better. If you are inclined to use a paralegal because you think it will cost you less, you may be surprised of how little cost difference is between an paralegal and attorney . . . check around. You may find that for a about the same price, you can hire an attorney.

Take the time and get a consultation with an attorney and find out what your rights are. Many attorneys offer a free initial consultation. Take advantage of such offers before you decide to do it your self.

Most attorneys bill on a hourly basis. This means that all time (phone calls, court appearances, research, etc) spent on your case is tracked and then used to calculate the total fees due. Hourly rates will vary by area and the experience level of the attorney.

Generally the more experienced the attorney the higher the hourly charge will be. On the other hand the more experienced the attorney, the more likely he or she will not have to research every issue or procedure that arises in your case. This will translate into lower fees and better results in the long run.

Attorneys will also require a retainer (advance payment for services to be rendered) prior to the commencement of the services. The amount of the retainer will vary based on the complexity of your case and the need for immediate action. When the retainer has been used up, an additional retainer may be requested unless your attorney will let you make payments.

Some attorneys will charge a fixed fee, that is one price for the entire case. The problem with fixed fee agreements is that they have the potential of putting the attorney and client in conflict with each other. Clients in fixed fee cases tend to take unrealistic litigation positions instead of making realistic litigation positions.

It is usually very difficult to predict what the total fees will be; There are many variables that effect litigation . . Your spouse and their attorney, your attorney, the issues, how aggressive you want your case litigated and the down time in court waiting for court rooms to hear your case. That is why most attorneys will not quote a fixed fee. The more aggressively you or your spouse want the case litigated the higher the cost. You should do a cost benefit analysis and evaluate the risks and rewards of settlement vs. litigation.

Some attorneys will bundle services. This means that you hire an attorney for some aspects of the case and do some yourself. If you are considering bundling services, you should discuss this with an attorney at the beginning of your case so that the allocation of responsibilities and expectations can be discussed and thereby avoid problems at the hearing.
Some cases are not suited for bundling due to their complexity.
Divorce is the process through which all issues related to ending a marriage are resolved. This includes custody, visitation, support, valuation issues, division of property, division of debts, credits, reimbursements, restraining orders and related issues. The amount of time it takes to complete the divorce will depend on the complexity of the issues and more importantly, the reasonableness of you (and your spouse) to resolve matters. Agreements as well as disagreements can occur at point in the process.
By statute, it takes a minimum of 6 months from the date the divorce petition is served on your spouse for the divorce to become final. However once an agreement is reached, the divorce paperwork can be completed and filed with the court at any time. If all procedures have been followed, the divorce will automatically become final 6 months following the service of the petition. If there are contested issues (custody, visitation, support, property division, etc), the process can take substantially longer to complete.
California is a no fault divorce state. This means that you can obtain a divorce by establishing irreconcilable differences. Since differences can be about anything, simply citing these grounds is sufficient to obtain a divorce. A divorce can also be obtained on other grounds when necessary.
The grounds to obtain a legal separation are the same as a divorce. The primary difference between a divorce and legal separation is that while they both resolve property, debt, custody, support , visitation and other marital issues, you are still legally married to your spouse at the end of the process.

Legal separations are requested for many reasons, some of the more common reasons are to maintain insurance coverage for a spouse or for religious reasons. In some cases individuals file for legal separations because they believe that the marriage can be saved at some point in the future yet still want to formalize the division of their property and obtain orders for custody, visitation and support. If one spouse requests a legal separation, the other spouse has the absolute right to request a divorce.

If an annulment is requested it means that you are asking the court to treat the marriage as if it never happened. Upon the granting of the annulment the parties are immediately restored to the status of unmarried persons. The decision to request an annulment, separation or divorce may simply be a personal choice or it may be driven by substantial legal considerations. Unlike a no fault divorce, those seeking an annulment must establish the necessary legal grounds. A marriage of short duration or the infidelity of a spouse are not grounds for an annulment.

Unlike a divorce, your spouse can contest the annulment and the court can deny your request for an annulment if the grounds cannot be established. For these reasons, divorces are usually requested in the alternative.
Property acquired during a marriage that is annulled, is still subject to division by the court.

California will have divorce jurisdiction as long as one of the parties have been a resident of California for at least six months and a resident of the county in which the divorce is to be filed for at least three months prior to the filing of the divorce. Divorce jurisdiction may not be enough to obtain some orders if one of the spouses has not had sufficient contacts with the state of California.
Once the divorce is filed and served, a number of court orders take effect immediately. These orders restrict both parties from performing a number of actions during the pendency of the divorce. These orders are called ATRO’S; Automatic Temporary Restraining Orders. The most important of these orders stops the parties from canceling insurance policies, changing beneficiaries on insurance policies, disposing of property and removing children from the state.
Service of the divorce petition triggers the process. Service is generally accomplished by having the petition personally delivered to the other party. Service can also be accomplished by mailing the service documents certified mail, return receipt requested, if service is being done out of California. Another method of service allows the party served to acknowledge their service by signing and returning the proper form to the attorney after it is received in the mail. There are other types of service but these are the most common. The divorce petition should be served as soon as possible after the petition is filed. Statutes mandate that if service is not done in a timely fashion that the divorce can be dismissed.
Once the divorce is served, your spouse has 30 days to file a response. The response is designed to give your spouse the opportunity to either agree to the relief requested in the petition or to ask for something different.

If the response is not filed and served on the other party within 30 days, the you can request the court to take the other party’s default and proceed without any input from the other party.

Once the response is filed and served, attorneys usually refer to this as a contested divorce. At that point the parties generally begin to assemble the information they will need to prove their case. This process is called discovery.

Discovery may still be necessary in uncontested and default divorces. Discovery can take many forms. Whatever form is used it all is designed to obtain information that will be used to prove your case. Requests for discovery must be complied with in a timely fashion otherwise monetary and other forms of sanctions can be imposed on the noncomplying party by the court.

There are generally two types of agreements in dissolutions, martial settlement agreements and stipulated judgments (and stipulated orders). Agreements can occur at any point in the process.

The reality is that the lines of communication should be kept open if possible with your spouse. It is essential that you attempt to separate the negative feelings that relate to ending the marriage from the considerations related to the division of assets, custody, visitation and support.

Martial settlements agreements (and other written agreements) are contracts between the parties that resolve all or some of the issues in the dissolution. If a martial settlement agreement is entered into it still requires that a judgment be prepared. The judgment makes the terms in the agreement enforceable court orders.

A stipulated judgment will normally include the same provisions that a marital settlement agreement includes, however the language is in the form of a judgment. While both are widely used, the decision to use a marital settlement agreement or a stipulated judgment may be based on your attorneys preference or the nature of the issues.

Some litigants enter into side agreements or agreements outside the terms of the marital settlement agreements or judgment. Such agreements may not be enforceable and should be avoided.

When a default is taken it means that the a spouse has not filed their response to the divorce within the time allowed and the other party has decided to request the court to grant the relief requested in the petition. The effect of taking your spouses default means that the petitioner will generally receive all the relief they have requested in their petition, provided it is consistent with the law.

If the response is not filed in a timely fashion and the spouses default taken, the defaulted party may have the right to file a motion and request the court to set aside the default and to file their response. This is a very technical area of the law and there are critical time limits and procedures that must be followed. The ramifications of not having the default set aside could be significant.

It is common for a default to be taken by agreement, if the parties have entered into an agreement resolving all of the issues.

If your spouse files a response they are probably contesting all or a portion of the relief being requested in the divorce petition. The filing of a response does not preclude an agreement from being reached at a later date. It is not uncommon for agreements to be reached on some issues and for the court to resolve other issues despite the fact that a response has been filed. Those issues that cannot be resolved by agreement will go to trial.
When a divorce is filed there may be a need for temporary orders. These orders can be for almost any issue related to the divorce. Generally these temporary orders are to maintain the status quo or requests for custody, visitation, support or some form of restraining order.

Unless there is an emergency, such orders usually take about forty-five days to be heard by the court. If emergency orders are requested the matter can be placed before the court within 24 hours. Orders that are based upon a emergency are called exparte orders. Theses type of orders are generally based on a showing of great or irreparable harm or the need to maintain the status quo.

If emergency orders are granted they will be based upon declarations and testimony is not taken. A full evidentiary hearing must be set within 21 days of the request for exparte relief.

Paternity actions are more appropriately called complaints to establish a parent child relationship. As the name implies its purpose is to establish parental rights and responsibilities between a parent and their child(ren). Such actions can be brought by the district attorney or by either parent. In some cases a person who is not the biological parent of a child may be able to bring a paternity action.

The court has the jurisdiction to resolve custody, support, visitation and welfare reimbursement issues in such actions.
The court does not have the jurisdiction to resolve property issues that may have developed as a result of a unmarried persons, who are the parents of the child, living together.

The action is usually commenced by filing a Petitioner to Establish a Parental Relationship. If there is an issue of biological parenthood the parties generally have the right to request DNA testing to determine parentage. DNA testing is generally accepted by the court’s for establishing or excluding parentage. But such tests have limits and are not absolute.

Paternity can also be established by signing a paternity declaration at the hospital of through legal presumptions. Your conduct and actions can result in a judgment of paternity being made even if the person who thinks they are the father turns out not to be the biological father.

Married couples can in some cases dispute the parentage of a child born during the marriage. Conversely, the biological father of a child born to a married couple can under some circumstances assert his parental rights to a child conceived during a marriage.

Once the issue of parentage has been determined, the court will make custody, visitation and support orders.
Paternity can also be raised by the District Attorney in welfare and non welfare support proceedings. Unfortunately if the District Attorney is involved, the issues of custody and visitation are not automatically placed before the court. In such cases, a parent must request the court to have those issues brought before the court in either a separate proceeding or file a motion to have the issue resolved in the District Attorney action. There may be county procedural variations regarding the correct procedure.

When making an award of custody, the court is driven by the concept of what is in the best interests of the child. This is a very broad concept and it can include many facets of the person’s relationship with their child. Generally the courts look to which parent is better able to provide for the heath, safety and welfare of the child, history of contacts with the child, history of custodial responsibilities, which parent will be more likely to provide for the frequent and continuing contacts of the child with the other parent, substance abuse by a parent and prior acts of domestic violence to name a few.

The courts generally prefer to rely on expert testimony when making custody orders. This usually takes the form of a Evidence Code 730 Evaluation or a referral to the mediation department of the superior court for a investigation.
In a 730 Evaluation, a mental health care professional conducts a battery of tests on the litigants coupled with interviews with the parents, children and collateral witnesses. The expert may also draw on other confidential information and sources to assist them. These reports can be ordered by the court or agreed to between the parties, many custody disputes are resolved in conjunction with the recommendations made by the expert.

If the investigation is conducted through a courts mediation department, it is generally based upon the interviews and other confidential criminal and court records. The decision to choose a particular type of investigation or for that matter a specific 730 evaluator could have a major impact on the final disposition of your matter.

In some cases the court will appoint an attorney to represent your children. This is helpful if a child has a preference to live with a particular parent or in cases where the parents positions may be in conflict with the best interests of the child.
Whenever custody is in issue, it requires a critical and serious analysis of the facts. If you decide to litigate custody you must be willing to invest your time and financial resources.
Mediation is required as a condition precedent to litigating all custody and visitation matters in California. Mediation is conducted between the parents and trained social worker: Attorneys are not permitted. Its purpose is to attempt to reach an agreement in a non litigation setting. In some jurisdictions, the mediator will make a recommendation to the court, in others it is simply a settlement tool. Education is frequently required. Most jurisdictions have the ability to recommend a custody evaluation or the appointment of an attorney to represent the children. Many cases are resolved in whole or in part through mediation. Proper preparation for your mediation will make that much more effective.
Move away cases in California occur when one spouse wishes to move out of the state or area and thereby take the children with them. This is a very complex area of the law however, to simplify matters greatly, if the decision to move away is litigated as part of the initial phase of the case, the court will look to the notion of what is in the best interest of the minor children in making the determination if the move should be allowed.

If the move occurs after the parties are divorced an is a modification to the initial custody and visitation orders, a move will generally be allowed it the spouse who is moving away has sole physical custody, the other spouse only has visitation and the move is not intended to frustrate the visitation of the other parent.
Rarely move away cases that black and white.

Under existing case law, if the parties have what is indeed a true joint physical custodial relationship, the move away will be litigated as if it was the first time custody was litigated and the best interest standard will be used.
Absent such facts, the party wishing to block the move or the parent who wishes to move after the initial determination has been made, must show a substantial change of circumstance to obtain a change of custody. The move its self is not considered a substantial change of circumstances.

A defense to any move away would include evidence which suggests that the party is moving to frustrate the visitation of the other parent or that the move is whimsical and not well thought out.
The parent objecting to the move has the absolute right to request an Evidence Code 730 Evaluation.

The courts tend to maintain the status quo when called upon to make the initial child custody orders. For example, if the parents are separated and one parent goes to court request custody and visitation orders, in the absence of evidence which effects the heath and welfare of the child, the court will generally look to the time sharing arrangement that has been in place immediately preceding the hearing and make an order that is consistent with that pattern of contacts.

If that parents have recently separated, then the courts will tend to focus on which parent has been the primary care giver for the children during the marriage as well as the best interest standard.

Facts which would suggest the child is being abused, is about to be taken from the jurisdiction or the inability of a parent to care for the child can be a basis to change custody on a emergency basis.
A parent who is contemplating court action, but has not yet filed the action and who is still living with the other parent, should consider some pre litigation counseling.

Child support in California is determined by a state wide guideline. This guideline is a algebraic formula which takes into consideration a number of factors which include the incomes of the parties, the time share arrangements with the minor children and certain deductions which are provided for by statute. This formula is programmed into in a computer program called DissoMaster. Most attorney’s and courts use this program.
Establishing income is critical. Income used in calculating support includes wages, bonus, overtime, social security, disability payments, rents and royalties. If a person is not working, suddenly quits working or cuts back on their income in anticipation of a court hearing , the court has the power to impute income to that person.

Overtime, bonuses and distributions from stock option plans which are in the form of non retirement incentives are considered as income and some courts will also consider income earned from second jobs.

If a party is self employed and that persons income is based on cash receipts or factors totally within the control of that person, establishing income will be difficult and will require thought and discovery prior to the hearing.

The income of a new spouse or a new mate is generally not considered by the court in establishing child or spousal support. The exception is dictated by statute and has limited application.

Time share is simply the amount of time that the non custodial parent has the child or children with them. Time share is a extremely important factor in a support case. A person with a zero time share will pay substantially more support. In that situation the child loses quality time with a parent and the obligor parent will be paying more support.
As a general proposition when a person does not see their children, it is irrelevant how much the other parents income is.
The deductions an add-ons to the calculation are limited by law. The primary ones used are union dues, health insurance, interest and tax payments on a house, some work related expenses, new spouse income (tax purposes only), child support payments for other children and some of the actual expenses incurred for dependent children living with the obligor spouse. The fact that a obligor spouse has high living expenses will under most circumstances not justify a lower support award.
Spousal support in California is not designed to be punitive in nature. Its primary purpose is designed to help a spouse maintain the standard of living enjoyed during the marriage and to help them make the transition from living together as a couple to being self supporting. Other factors include the ability of a spouse to pay support and the duration of the marriage.

The court has the discretion to consider a number of factors which are embodied in Family Code § 4320 which include the marketable skills of the custodial parent, periods of unemployment during the marriage, extent that the other party has contributed to the other parties education, the training or the career of the other party, the obligations and the assets including the separate property of the parties, the duration of the marriage, the ability of the spouse to engage in gainful employment and the tax consequences. The court can require a party to seek employment for the purposes of becoming self supporting or give them time to become self supporting.

At the initial court hearing, the courts are more liberal in making support orders , maintaining the marital standard of living and causing as little disruption as possible to the spouse in need of support. Unfortunately, this tends to result in court orders based solely on the guideline and without much statutory analysis. This often results “both” parties having difficulty making ends meet at this point in the litigation.

As a general proposition all property and debt acquired during marriage through the joint resources or funds of the spouses, is considered community property. The exceptions to this are acquisitions of property through inheritances and gifts. Property found to be community property is generally equally divided between the parties. The fact that only one spouse may have worked does not defeat the non working spouses interest in the community property. Property under this definition includes pension benefits, stock plans, accrued vacation, deferred compensation, frequent flyer miles, publishing rights, copyrights and the like.

The law allows a person to recover separate property contributions actually used to purchase or improve the community property under some circumstances. The separate property of a party can be changed to community property under certain circumstances and thereby be divided as community property.

A reimbursement credit is nothing more than the return of separate property funds to a spouse who advances those funds for the benefit of the community purposes under certain circumstances.

Payment of community debt. As a general rule separate funds used to pay down community debt while the parties are living together as husband and wife is generally non reimbursable. In such cases the law presumes that the use of the separate funds is a gift.

Post separation payments. Payments made on community obligations after the parties have separated is generally reimbursable.

Down payments and improvements. Separate funds used as down payments on community property or to improve community property is general reimbursable to the paying spouse.

Usage credits. If a spouse continues to reside in the community residence or other community real estate after the separation, that spouse can be charged with the reasonable rental value of the property to the extent that it exceeds the debt service on the subject property. In some cases the courts have been know to give negative usage credits. This occurs if the debt service is more that the reasonable rental value on the subject property. Such credits are given without regard to income or ability.

Divorce and custody matters do not have to be contentious litigated matters. It is not uncommon for parties to sit down and make good decisions regarding their children and property issues without the assistance of trial. However to do this, the parties must have an open communication with each other and make sure that any agreement they have entered into adequately protects their rights.

Before you can put yourself in the position to reach an agreement, it is essential that each spouse have a complete understanding of the nature and extent of the community property as well as a full understanding of the nature and extent of their rights as a divorcing person. In this context, a full disclosure of all assets and obligations must be made. It is also a good idea for each spouse to accumulate as many records as possible to determine the nature and extent of the assets are. Such disclosures are required by statute.

An income tax return is a good start in evaluating income and certain assets. Many couples use programs such as Quicken and Microsoft Money to track their resources. Copies of balance sheets and statements from those programs can be extremely helpful in assessing assets.

Finally, the actual source documents are probably the best evidence. Those documents include bank account statements, deeds, receipts, pink slips, annual pension statements and the like.

Recent federal and state legislation has empowered the District Attorney, Family Support Operations into taking a very aggressive role in the collection and establishment of support. The District Attorney serves an important function as it relates to the collection of support. Unfortunately if you are the parent ordered to pay support, the District Attorney and the Franchise Tax Board will be in relentless in enforcing your support obligation. Their role is automatic if a party is receiving welfare; In exchange for receiving welfare payments from the county, the county is assigned the right to receive the support directly from the non custodial parent for so long as the custodial parent is receiving aid.

What can they do? Commence a new action for parentage and collect support in welfare and non welfare cases, collect current support welfare and non welfare support, enforce out of state support awards, file criminal contempt and other criminal charges for the nonpayment of support; recover support from pensions, disability payments and workers compensation awards; attach assets; intercept tax returns; obtain wage assignments; suspend drivers licenses and other professional licenses and discover reported income through the Employment Development Department.

What they don’t do; The District attorney cannot take any action regarding custody and visitation issues.

If you are relying on the District Attorney to collect support on an existing support order, establish an new support order in a non welfare case or are asking for a review on any open case, that is not likely to happen quickly . . . . The District Attorney has a tremendous case load and your case will be one of hundreds of thousands.

The benefits of having the District Attorney establish or modify support in a non welfare case, should be compared with the cost of retaining counsel and getting a support order many months sooner. The lost support due to any delay in filing an action with the court is generally not recoverable.

What can you do ? The first step is to establish parentage this is easy if the parties were married. If the parties were not married then genetic testing is generally ordered. Once parentage is established, a support order is made and in some cases reimbursement is ordered for welfare previously paid and retroactive support.

If the first communication you receive is the notice that your wages are being attached or your drivers license is or has been suspended, you must take immediate action and seek counsel. In addition you must get a complete copy of your court file. If the current action is a follow up to a previously filed action, you will still need a copy of the file if you do not have one. In either case request a payment history from the District Attorney and locate all documentation your have to prove that you have made some or all of the payments due. If you are disputing the service of the underling action, you time is limited for obtaining relief.



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