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Divorce, Custody Issues and Information
INTRODUCTION
California Family Law Act
California has a no fault family law act. This means that the court will not inquire into any issues concerning why a marriage has broken up. A party need only state that "irreconcilable differences" have arisen.
That statement alone is sufficient to justify a Dissolution (commonly known as Divorce) of marriage being granted. It does not make a difference, either financially or with regard to child custody who initiates the dissolution of marriage action. In addition, it does not matter if one party wants to dissolve the marriage and the other party does not. The court will grant a Dissolution despite one party's objection.<
The Family Law Primer consists of the following sections:
Types of Actions
The Discovery Process
Classification of Property
Custody Issues
Family Court Services
Mediation
Support
Domestic Violence
Frequently Asked Questions
I hope you find it useful. Please do not hesitate to contact me if you have any questions!
1. TYPES OF ACTIONS
Dissolution, Legal Separation, Nullity.
The Family Law Act allows four different types of actions to be filed: a dissolution of marriage, a dissolution of a domestic partnership, a legal separation and/or a nullity of marriage. A nullity may only be granted for six specific reasons: underage, prior existing marriage, unsound mind, fraud, force, or physical incapacity. Very few nullities are actually granted. This is a highly technical area of the law and would need significant discussion, to determine whether it would be possible in a specific case.
As to a legal separation, typically, a person may file for a legal separation instead of for a dissolution, when they have religious and/or philosophical reservations about the practice. Another reason may be that it is necessary to keep the other party on a current medical insurance policy, due to a pre-existing condition, and it would be too expensive or not possible to maintain a COBRA type insurance.
A dissolution means the complete termination of a marriage. There is no way a marital status can terminate legally without the initiation of a dissolution of marriage action. Thus, you cannot remarry, or be a single person, until after you file for a dissolution.
DISSOLUTION PROCEDURE:
In order to obtain a dissolution it is necessary to prepare a Petition, and Summons, and have the other party served with those papers. Service can be obtained by having them physically served with the documents, or by them signing a Notice and Acknowledgment of Receipt that they have received these papers. (It is important to note that a person can only be served by an individual who is over the age of 18 years and not a party to the action.)
Once those documents are prepared, filed with the court, and served, you are usually working toward a judgment of dissolution of marriage. The judgment of dissolution of marriage will terminate your marital status. It will also divide all of your marital assets and debts. In addition, it will resolve any issues of child custody and child visitation. Issues of support, both for the children and for the spouses will be resolved along with any other issues connected your marriage termination.
The earliest possible date that you could expect your marital status to terminate is six months from the date the paperwork is served on the other party. There is no way that one's marital status can terminate in less than six months, in California. However, you should be aware that it often takes longer than six months to complete.
A judgment in a dissolution is sometimes a result of a comprehensive agreement reached between a husband and wife. This Marital Settlement Agreement is usually facilitated by their attorney(s). If an agreement can be reached, it will be put in writing and signed by both parties. The agreement will then be incorporated into a judgment. This judgment will be signed by a Superior Court Judge and will incorporate your entire agreement. If an agreement cannot be reached, then a trial will occur.
At trial documentary evidence will be presented, legal arguments will be made and it is likely that you and the other party will testify. In addition, if it is appropriate your attorney (or you if you are self-represented) will prepare and have experts testify. After those events occur a judge will render a decision. This decision will then become a judgment of dissolution of marriage.
2.DISCOVERY PROCESS
Up to the time of trial, or an agreement, there is usually a great deal of discovery. Discovery is the time when each party acquires information from the other. The types of discovery vary. There are depositions, interrogatories, requests for production of documents or admissions, subpoenas and others.
A deposition is a session before a certified court reporter. During a deposition, questions are asked of the party, which must be answered under penalty of perjury. The questions and answers are taken down by the court reporter and eventually typed into booklet form. The testimony given at a deposition can be used as evidence at future court hearings and/or trial.
Written interrogatories are written questions sent by one attorney to the other party, which must be answered under penalty of perjury. The answers to these questions can also be used as evidence at time of hearings and/or trial.
Requests for production of documents are requests that the other party produce documents in preparation for hearings and/or trials. The documents generally requested include things such as employment, tax, insurance, and medical records. Other items involving varying issues can also be requested.
A subpoena can be used to obtain employment, bank, insurance, and medical records of the other party. These subpoenas can be issued directly to the provider. It is often used to verify information and/or to make certain that all of the information is obtained prior to trial and/or hearings.
It is important to use discovery to verify as much information as possible, prior to trial. Through discovery, you are assured that you have all the facts. Therefore, once discovery is complete, when you attempt to resolve the matter, either through negotiation, or trial, you have the complete picture.
3. CLASSIFICATION OF PROPERTY
Community v. Separate
California is a community property law state. In essence, there are three types of property, community, quasi community and separate. (Quasi community property is property that exist outside the boundaries of California and would be community if it were located within California. It is treated identically to community property.) The law requires that all community property be divided equally within the dissolution, whereas, separate property belongs solely to that spouse.
In general, all property acquired after the date of marriage, and prior to the date of separation is community property. On the other hand, generally, all property acquired prior to the date of marriage, after the date of separation and/or during marriage by way of gifts or inheritances is the separate property of the recipient spouse.
There are some occasions where community property can become separate property, and separate property can become community property. This is something that the parties are free to do. This is usually accomplished though a written agreement. If the parties do have an agreement regarding the characterization of property the court will usually follow it.
The same general principles that govern property govern obligations. Debts incurred after the date of marriage and prior to the date of separation are community obligations. Therefore, they will be divided equally between the parties. In addition, generally obligations incurred prior to the date of marriage and/or after the date of separation are the separate obligations of the party who incurred them.
A dissolution can have vast repercussions on all areas of your life. One area that it can seriously complicate is taxes. There can be tax consequences from capital gains, child care credits, child exemptions, and filing status to name only a few. It is thus highly recommended to consult with an accountant regarding all of the financial issues.
The division of personal property can probably be accomplished by a written agreement. If an agreement on the value and/or the division of the personal property cannot be reached, it might become necessary to retain a personal property appraiser. An appraiser can inventory all of the household furniture, furnishings and personal effects and then give an indication as to their fair market value. Your vehicles, if any, can be appraised through the use of the Kelly Blue Book.
SPOUSAL SUPPORT (Alimony)
Another issue that may have to be resolved is spousal support. Spousal support is not meant as a reward to one party or as punishment to the other. It is meant as a mechanism by which a spouse in financial need can receive financial assistance from the other party.
Spousal support is based on a comparison of one spouse's net income to the other spouse's net income. In Sonoma County we have family support guidelines which are considered by judges in setting spousal support and child support.
For all of the factors see family code §4320 at: www.leginfo.ca.gov/calaw.htm
These are only guidelines. They are not concrete, but discretionary.
4. CUSTODY ISSUES
There are several issues that will need to be resolved regarding the children. Child custody, visitation and support can all be addressed by the court. The issues involving custody include both legal and physical custody.
Legal Custody
Legal custody is a very important issue. Typically, parents hold joint legal custody of minor children. The issue related to legal custody usually involves which parent will be making important major decisions regarding the minor children. These decisions commonly involve things like, education, religious training, health decisions, disciplinary matters, and where the children will be raised. The court generally feels that with these major issues, both parents should be involved in the decision making process. It is the exception, not the rule, when one parent is awarded sole legal custody.
Physical Custody
Physical custody refers to where the child resides. Normally both parents are awarded physical custody. The time of one parent receiving "visitation rights" is not occurring as often. The courts seem to prefer a joint sharing arrangement at this time.
A joint physical custody arrangement can mean a division of time on a 50-50 basis where the children are with one parent half time and the other parent half time. This could mean the children are with the parents on alternating days, weeks, or months. This could be on a rotational basis, or virtually any other division that the parents decide. Whatever is going to work for your family, can be agreed upon.
Joint physical custody does not necessarily mean a 50-50 division of time. Some people will call it joint physical custody where the children are with one parent for a significantly greater time than the other parent. Often, a parent will object to having visitation rights and want to have their time with the children called physical custody. (This is usually just semantics, but it can affect important issues, like taxes.)
When one parent receives the primary physical custody of children and the other parent receives visitation rights, the visitation rights should be spelled out in detail. A standard visitation arrangement is alternating weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m., a midweek visit and a division of the holidays. Again, it can be whatever the parties agree to.
There are many types of parenting issues that can impact upon custody. Domestic violence and drug or alcohol abuse are three that immediately come to mind.
5. FAMILY COURT SERVICES
When a dispute arises regarding visitation/custody this drastically changes what will occur. Once a dispute happens, the matter is referred to Family Court Services prior to court involvement unless there it is an emergency. First the parties must attend Pre-mediation Orientation. The days and times of the orientation sessions are changed on a regular basis. However, it is consistent that the Petitioners and Respondents attend on different dates, and usually different locations. You may find the specific days and times here: http://sonoma.courts.ca.gov/divisions/family/family-court-services
In addition, currently the court allows the parties to attend the pre-mediation orientation online. You may also access this using the link above.
This orientation is designed to educate the parties regarding the legal process. Information is presented about the legal system, family court services, the involvement of mental health professionals and what options are available for parents regarding custody and visitation issues.
The orientation session encourages parents to reach an agreement on their own, rather than having the court decide. It attempts to empower parents and positively pushes them to take charge of their lives and make decisions on their own.
The material presented is general and does not deal specifically with the issues of any of the people in attendance. There is nothing that you need to do to prepare yourself for the orientation session. You will not be asked any specific questions nor will you be expected to discuss any aspect of your case.
Even though it is not yet required, I encourage you to attend a session at this time.
Be assured, the other party does not need to attend the session with you nor does anyone have to know that you attended an orientation session at this time. If and when there is a dispute that arises, it will be beneficial, for you to have completed the session.
If a dispute does arise, both you and the other party will need to attend the orientation session. (Not at the same time.) You must attend, prior to your mediation at Family Court Services. Mediation is required whenever there is a dispute concerning visitation and/or custody.
6. MEDIATION
Mediation is conducted by Family Court Services. Sonoma County is a "reporting county". This means that a recommendation will be made after the mediation, to the court, whether or not an agreement is reached. If an agreement is reached during mediation, it is prepared by the mediator and reviewed by both parents. It is then submitted to both parents and/or their attorneys for review. Typically, the agreement reached during the mediation process ends up becoming a court order. It is extremely important that parents realize the importance of the mediation process. Understand that if they parties do enter into an agreement during the mediation process, that agreement can and often does end up being a formal court order.
During mediation, sometimes mediators place significant pressure on a parent in an attempt to force an agreement. It is important for you to understand that you do not have to reach an agreement just because the mediator wants you to or because someone is else is putting pressure on you to enter an agreement.
One thing that you should prepare well in advance is what type of arrangement would be acceptable to you.
If and when you go to mediation, do not allow anyone to talk you into something that does not feel right, or is not acceptable to you. While it is important to stand up for what you feel is best, do not be unreasonable during the mediation, it can alienate the mediator, which is certainly not in your best interest.
A few important rules to follow during mediation:
1. Be respectful of the mediator and the other parent.
2. Do not interrupt the mediator or the other parent.
3. Dress appropriately, as though you were attending a job interview.
4. Focus on what is best for your children.
Even though mediators are not judges or lawyers, sometimes they will tell a parent that their position is not valid or legally correct. In addition, they may make statement regarding what will occur at a hearing. While mediators are not lawyers or judges, do not ignore what a mediator says as to what might happen in court. Their interpretation is often correct.
If after the initial mediation session an agreement is not reached, the mediator will make a recommendation. If the mediator thinks that progress can be made, a follow up mediation session will be set.
The mediator has essentially, four choices. They can recommend a continuation of the status quo (The current arrangement.). They can recommend a slight change to the current system. When the case is particularly divisive they can recommend either an evaluation or a psychological evaluation. In any event whatever the mediator recommends it will be based upon what is in the child's best interest.
A custody evaluation consists of in depth psychological profiles of all the parties, the children and any significant others. These are typically performed by a psychiatrist or a psychologist experienced in child custody disputes. They interview teachers, doctors, friends, and essentially everyone involved in the lives of the children. This is an extremely thorough examination of every aspect of both parties and children. It has a cost of approximately $5,000.00 - $6,000.00, with the court apportioning the cost, and takes approximately three months to complete. (However, it can often take at least three months to get in to see the evaluator.) The time spent by the evaluator may be as much as forty hours, and the recommendation may be as long as fifty pages in length.
At the conclusion of the process, a written report is generated with a recommendation. If both parties accept the recommendation, then the recommendation will usually become an order of the court. If either party objects to the recommendation in a timely fashion and if appropriate objections are filed, then a hearing/trial will occur.
As previously stated, during any dispute involving custody or visitation, the primary concern is what is in the best interest of the children. The courts do not look at what is in the best interest of the parents. Sometimes parents will argue that a certain arrangement is not convenient for them or it interferes with their life or activities. However, the major concern is what is best for the children.
Whenever custody or visitation is disputed, the status quo is given a significant amount of weight. The arrangement that has been in existence prior to the dispute is often considered to be the appropriate arrangement unless that arrangement creating problems for the children. With this in mind, be very careful not to change the status quo unless you feel that it is not working.
7. SUPPORT
Although it should not be a primary consideration, it is important to understand that there is an interrelationship between custody arrangements and child support. In general, the more time that you have the kids, the less support you pay. The less time you have with the children, the more support you pay.
Guideline child support in California is based upon a calculus formula created by the legislature. Since most people do not routinely do calculus, a computer program was created to interpret that formula. This program is called DissoMaster™. The parties incomes, deductions, tax status, and their timeshare with the children, is input into the program and a guideline support amount is the result. Be advised that although the parties can agree to any amount they choose, if it goes to a hearing a judge must order guideline support.
At the Sonoma County Family Law Facilitator's office an individual can run their own DissoMaster™ calculations. However, considering the number of different figures that can be input and the other variables, it is a good idea to have it run by someone who knows what they are doing.
During your initial free half hour consultation with me, I will run these figures for you at no cost. However, I do charge $20.00 for a printed set of DissoMaster™ calculations.
8. DOMESTIC VIOLENCE
Domestic violence impacts every aspect of your life, and every aspect of your divorce.
What is domestic violence? It can mean to hit, kick, hurt, scare, throw things, break things, pull hair, push, follow, harass, sexually assault, isolate, or threaten to do any of these things. It may also mean verbal badgering, name calling or specific threats of abuse. Domestic violence is abuse that may be spoken, written, or physical. This is not necessarily a comprehensive list. Unfortunately, human beings continue to find ways to harm and threaten to harm each other.
Domestic violence will impact your divorce in many ways. If there is a finding of domestic violence against a party within five years, it is presumed that person should not have legal or physical custody of their children as the law believes it is not in their best interest.
Domestic violence is extremely serious and I am very sensitive to these issues. There are a number of resources that can help.
For general information go to: http://www.courtinfo.ca.gov/selfhelp/protection/dv/
I also have additional links on my resource page.
Frequently Asked Questions:
Prenuptial Agreements: I do prepare and review prenuptial agreements. There are very specific requirements under the law to ensure that these agreements will be enforceable. At the time of our consultation we can discuss this issue in depth.
Wills and Trusts: I prepare wills and trusts. Whether a will or a trust or both is appropriate for you would need to be discussed at a consultations. If you have an estate that is greater than $1,000,000 I would refer you to another attorney.
During the proceeding: It is advised that during a separation or while a dissolution is pending you seek advice from a tax accountant. In addition, you may consider checking your current estate plan to ensure that who you wish to inherit in the event of your untimely demise, is who you have currently selected.
What will this cost? This is always a tough question. It depends is my standard answer. The least expensive dissolution I ever handled cost under $1,000.00. The party's agreed on everything, had no children and no assets. The most expensive dissolution I ever handled, I was the third attorney in the case. By the time I became involved in the case, it had been going on for three years. The matter progressed to three separate trials and a psychological evaluation. The parties had a business and retirement plans to divide. When my client was finished, he had paid a total of $200,000 in attorney's fees to the three different attorneys.
How long will it take? You cannot get a divorce in California in less than six months. If the parties agree it can be done in six months. If you have complications and do not agree it will take significantly longer. Your "average" divorce takes at least a year. Generally speaking, when you do not agree with the other spouse on how these matters should be resolved add six months, from the original six, for each of the following complications:
1. Children
2. A business to divide
3. Retirement Plans
4. Real Estate
5. Stocks and Options with complicated plans.
6. Issues of domestic violence
The more the parties agree upon, the quicker and the less expensive the entire process will be.
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