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Family Issues and FAQs

family issues and questions

I. INTRODUCTION TO FAMILY LAW

Once husbands and wives cannot work out their differences and there is a complete and total breakdown of the marriage, divorce may be the unfortunate, but logical result. Under California's Family Code divorce is referred to as a proceeding for Dissolution of Marriage. The Family Code also provides for annulments, legal separations, adoptions and domestic violence. Dissolution of marriage proceedings address sensitive matters such as the custody of children, payment of child and/or spousal support, and the disposition of marital property.

A divorce is usually a highly emotional experience. It will, regrettably, result in volatile situations. This stress is compounded by the fact that for most people a divorce is both:

  • The first experience in a court
  • The first time they have needed an attorney
Because of the psychological dynamics of a divorce, it is important that one's legal representative has both: technical competence and human understanding.

If you are involved in a dissolution of marriage proceeding you should want to insure that:

  • Parenting arrangements are in the best interest of the child or children
  • There will be a fair and equitable division of the community property
  • The attorney you choose will assert your rights
Some people request a dissolution of marriage or Summary Dissolution. This may be possible, if among other things:

The marriage is less than five years, and
The parties have come to an agreement dividing their property and waived spousal support, and
There are no children of the relationship, and
Neither party owns real property, and
The net community estate is $25,000 or less, with debts not exceeding $4000

However, because of children, real estate and/or business ownership interests, retirement plans, massive debts, and other factors, most cases do not qualify for Summary Dissolution.

II. CHILD CUSTODY and VISITATION

Child custody and visitation is comprised of Legal Custody and Physical Custody.

Legal Custody - Involves the right to:

determine the children's: schools, medical treatment, religious upbringing
access to the children's: school records, medical records, etc.

Unless one of the parents is determined by the court to be an unfit parent, the court will award joint legal custody to both parents.

Physical Custody - The court will typically award primary physical custody to one parent. It is with this parent that the child will live most of the time with visitation granted to the other parent referred to as the "non-custodial parent". The primary parent will choose day care.

Visitation depends upon the ages of the children and the proximity between the parents' homes. A typical 'visitation for the non-custodial parent' would have visitation from Friday after school until Sunday evening on alternate weekends and another overnight visit mid-week during the week the non-custodial parent does not have weekend visitation.

The parents would alternate major holidays and each parent would typically have a right to a significant summer visitation, when the children are out of school. This schedule may vary with children who are very young or older.

Rights of the Child to Choose a Parent: Generally speaking, the court will not allow the children to determine which parent with whom he or she wishes to live. However, once the child reaches his/her teenage years, the child will have more input into the custody and visitation. The courts do not like placing the child in the position of choosing one parent over the other and therefore children rarely testify concerning these issues. Occasionally, in a very hotly contested custody or visitation case, the court will appoint an attorney to represent the children's best interests. Also, the judge may appoint a psychologist to make a recommendation to the judge as to which parent should receive primary physical custody or to determine the visitation schedule. The court will order one or both of the parents to pay for these costs and they may be very expensive.

Dividing the Child's Time: During the last few years, the Orange County courts have begun to move away from dividing the children's time equally between both parents. The prevailing judicial philosophy involving child custody and visitation appears now to be that an arrangement where the children divide their time equally between two parents does not provide sufficient stability for the children. It is felt that they need to have a location, which they consider their primary home.

Flexibility: In the event that the parents are both good parents and that they both have a good relationship with the children, the courts feel that it is best for the parents to allow frequent visitation by both parents on a relatively flexible but predictable schedule. This allows each parent to have significant contact with the children and allows for the flexibility that life requires.

III. CHILD SUPPORT

Child Support is determined (in California) by the use of a computer program. This program is available to all judges and the family law attorneys. Therefore, the determination of child support is much more constant throughout the state than it has been in the past. Child support is based on the income from both parents, the percentage of time each parent has physical custody of the children as well as other factors. These factors are input into the program, which then determines the child support for each child.

If both parents are salaried employees, then the determination of the child support is relatively easy. It is only when the salary of one or both of the parents is not known or the parents' salaries are extremely variable that this process becomes difficult. Determining the income of the parents for purposes of child support is one of the purposes for Discovery as explained in Section XVI.

Child support is often set at the first Order to Show Cause hearing. The amount of child support will be increased or decreased in the future if there is a change of circumstance. Change of circumstance includes loss of a job by either party, disability of either party, an increase in the expenses of either party or decrease in income by either party, change in the time share with the child or other factors. Generally child support is terminated as the child reaches the age of eighteen, if graduated from high school or when the child graduates from high school, but in any event no later than when the child reaches 19. Questions? Back to Top of Page.

IV. SPOUSAL SUPPORT

Spousal Support is sometimes calculated using the same computer program used to calculate child support. The judge has more discretion in determining the amount and duration of spousal support, than what the computer says. This will terminate upon death of the receiving party or the remarriage of the receiving party. Spousal support may also have a specified duration. One rule of thumb is that spousal support will continue for approximately one half the term of the marriage. The exception is if the parties have had a long term marriage (greater than ten years), then spousal support could continue indefinitely until the spouse receiving the support remarries or dies

V. RESTRAINING ORDERS AGAINST FAMILY VIOLENCE

The court has the power to issue restraining orders. This is done at a separate Order to Show Cause hearing and requires one party to not contact, assault, harass or come near the other party or that person's home or place of employment. In order for the court to make these orders, there must have been instances of violence or harassment within the recent past. The court generally will not look to instances in the distant past and will not issue a restraining order based on remote experiences. Your first responsibility is to protect yourself and the children.

VI. RESIDENCE EXCLUSION

The court generally will not order one party to leave the residence (residence exclusion) unless there have been recent examples of physical abuse either against the other party or the children. The court bases this approach upon the belief that each party has an equal right to live in the family residence. Typically it is very difficult to get what is referred to as a "kick out order" against the other party unless the physical violence is recent and significant. The mental or emotional distress of a party is typically not sufficient to obtain a "kick out order." Your first responsibility is to protect yourself and the children.

VII. DIVISION OF COMMUNITY PROPERTY

The husband and wife are each entitled to one half of the community property upon the dissolution of marriage. Community property is defined as that property which is obtained by either the husband or the wife after the marriage by the efforts of either party and before they have separated. There are many types of community property that are subject to division by the court that may not be easily recognizable as community property. These may include a pension plan, 401K Plan, or IRA acquired by either of the parties during marriage. Small businesses operated by one of the parties during the marriage may also be community property. Forensic accountants would evaluate such a small business. To determine the value of a small business, for instance, the physical assets and good will of that business would be considered. Even small service businesses such as law practices, accountancy practices, medical practices etc. are community property and may have a large valuation even though much of the value of that business is dependent upon the individual operating it. A lot of the people are often surprised at the large values that may be given to what each party considered a small and basically valueless business.

VIII. DAY CARE EXPENSES

The court will normally require each parent to pay one half of the actual child care expenses needed to allow one parent to go to work in addition to the child support.

IX. SEPARATE PROPERTY

Separate property is property owned by either party prior to the marriage or received by either party as a gift (i.e. not a gift to both parties) or inheritance. Property acquired after separation by either party normally is considered the party's separate property.

Separate property may be deemed to be community property if the party receiving it does not maintain its separate property status. For example, commingling the inheritance in a bank account in both names in which the salaries are deposited. The ways in which separate property becomes community property are too complex to be discussed in this overview. These types of situations, however, are often complex and hotly contested because there is sometimes property of significant value involved.

X. CONTESTED OR UNCONTESTED DIVORCE

Many times the parties involved in a divorce may settle the general terms between themselves and retain attorneys only to prepare and review the documents. An "uncontested divorce" or sometimes referred to as a "friendly divorce" is finalized by one party filing a petition for dissolution of marriage and then a stipulated judgment is prepared and submitted to the court for the judge's approval and signature. A stipulated judgment is a judgment agreed upon by both parties. Under this approach the court technically takes the default against the Respondent and the court issues the judgment in accordance with the terms of the stipulated judgment. The Respondent is protected because the court will issue a judgment based upon the terms in the stipulated judgment.

XI. ATTORNEY FEES

We charge on an hourly basis for the legal services rendered. The client and attorney sign a retainer agreement that sets the hourly fee and describes the services to be provided to the client. At the time that the retainer agreement is signed, a retainer fee is required. The amount of the retainer fee varies depending upon the complexity of the case. This retainer fee is essentially a down payment on the total amount of attorney fees that may be charged. This is not the total amount of the fee. This situation is spelled out very clearly in the retainer agreement.

Often in dissolution of marriage, one of the parties earns substantially more than the other. The court will often order the party receiving the greater income to pay a portion of the attorney fees of the person earning lesser income. The court may also order a party to pay accountant fees or other out of pocket expenses as the situation may arise. The court bases these decisions on the respective amounts of income as well as assets involved. The court will also take into account whether one party is attempting to hide assets or income or is otherwise acting unreasonably.

Also see Question # 10 of 10 Frequently asked Questions below.

XII. DURATION OF THE DIVORCE PROCEEDINGS

California requires a residence requirement to be met before a divorce may be filed and a judgment issued. A divorce cannot become final unless one of the parties has lived in California for six months and in the county where the divorce is being granted for three months. A divorce, however, will take longer than six months if there are complex property issues.

The parties do have the option, however, of "bifurcating" the divorce. This means that it is possible to terminate marital status, i.e. become no longer married, even if the property issues have not been resolved. The court will attach conditions to the bifurcation such as holding the other party harmless from adverse tax consequences, loss of health insurance coverage, etc.

XIII. MODIFICATIONS

We often represent people requesting to modify child custody, child visitation orders and child support orders. The court always has the power to modify these issues.

XIV. ORDER TO SHOW CAUSE

At the commencement of the Dissolution of Marriage, either the petitioner or the respondent may ask to file an Order to Show Cause (sometimes referred to as an OSC). The OSC sets a court hearing in approximately 30 days. The party filing the Order to Show Cause may ask the court to make certain orders which will be in effect only temporarily. These orders may last until the judgment for dissolution of marriage or until either party asks for modification because of a change of circumstance.

An Order to Show Cause hearing may concern issues such as establishing temporary child custody, temporary child support, temporary spousal support, exclusion of the other spouse from the family residence, restraining orders concerning violence, requesting the other party to pay attorney fees or other relevant orders. The Petition for the Dissolution of Marriage and the Order to Show Cause, if any, are then personally served on the respondent.

If an Order to Show Cause has been served on either party, both parties and their attorneys must appear in court on that date. At that time the parties and their attorneys may attempt to settle the issues and, if they cannot do so, the court will make rulings upon the issues raised in the Order to Show Cause. The court cannot decide issues not raised in the Order to Show Cause. The court may either grant or deny the requests or make other appropriate orders concerning the subjects raised in the Order to Show Cause.

XV. SERVING PAPERS

One of the rules is that neither the Petitioner nor the Respondent may personally serve the papers upon the other party. We use a process server to make the service. If either the Petitioner or the Respondent make the service the service is not valid.

The respondent upon whom the papers are served is allowed thirty (30) days to file a response to the Petition for the Dissolution of Marriage. Time may be extended upon the agreement between the parties and their attorneys if it appears that a settlement may occur, or if there are other valid reasons to do so.

XVI. DISCOVERY

In order to properly represent a client, we find it necessary to conduct what is referred to as discovery. Discovery includes Investigating Declarations of Disclosure, sending out interrogatories and taking the depositions of the opposing party and sometimes taking the depositions of other key witnesses. Interrogatories are written questions which the opposing party must answer in writing under penalty of perjury. These questions may concern the existence, location and valuation of assets belonging to the parties. The interrogatories may also concern income and expenses, particularly if all the information is not available to both parties. Depositions are conducted in an attorney's office with the parties, the attorneys and a court reporter present. The court reporter transcribes the proceedings and the witness answers some of the questions under penalty of perjury. The advantage of taking a deposition is that a follow up question will be raised if the witness tried to avoid answering the questions or gives a less than a truthful answer. Questions in depositions may concern issues in connection with the parties' assets, child custody and child visitation, property, income, expense as well as other matters which may be determined either by a settlement or a ruling by the court.

XVII. MEDIATION

The Orange County Family Law Court has a mediation process solely for the purpose of resolving child custody and visitation. Both parties are required to meet with a mediator. The mediator cannot force the parties to agree to visitation or custody arrangements but will encourage compromise on each part so that the best interest of the children are served. Attorneys do not attend mediation.

10 FREQUENTLY ASKED QUESTIONS ABOUT DISSOLUTION IN CALIFORNIA

1. What are the grounds? Irreconcilable differences or incurable insanity (rarely used), incestuous marriage, bigamous marriage, under age at time of marriage, prior existing marriage, unsound mind, fraud, force, or physical incapacity. This is called "no fault divorce".

2. How long does it take to be final? Six months (plus a day) since the other party was served. It could take longer if there is no agreement and you haven't been to court yet. It is possible to become unmarried without concluding the other issues. This procedure will require a separate court hearing.

3. Will I have to go to court? Yes, unless all the issues are settled.

4. Do we both have to live in California? No, but one spouse has to have been a resident for 6 months with the last 3 months in the County where filed.

5. What if I don't know where the other party is? We will get a court order to publish the Summons in a newspaper.

6. Why is California called a community property state? Because the income and earnings and the property (and debts) acquired with those earnings of each spouse during the marriage belong to them jointly, and are split equally in a divorce.

7. Can I get a legal separation and not get a dissolution? Yes, unless your spouse wants the dissolution.

8. What's the difference? You cannot remarry without a dissolution.

9. Is same sex marriage valid in California? To be determined.

10. How Much Will My Divorce Cost and How Will I Pay For It? The more the parties argue, the more it costs!
A retainer is required to hire me as your lawyer. The amount of the retainer is based on the type of case. The hourly fee rate is billed against the retainer. You will also pay a cost deposit for initial filing fees, process serving, and subpoenas. Additional court costs may be requested during your case. If your retainer for fees is exhausted, you will be billed for the balance due each month. Any amounts ordered paid to me from your spouse by the Court will be credited. We also accept most major credit cards.

But how much will the total be if we cannot settle? There is no guaranteed prediction because each case is unique. The more the parties argue, the more the case will cost.

If we go to trial, there will be daily fees plus fees for preparation of witnesses and evidence. There are additional court costs for a trial. These include ordinary and expert witness fees (accountants, appraisers, psychologists, vocational counselors) and costs for subpoenaed records. Some courts also require you pay for the court reporter, which both parties split.

Legal services and court costs are expensive, especially at trial. Wherever reasonable and in your best interests, we work towards settlement.