FAMILY LAW:

– Divorce

California requires that one party be a resident of California for 6 months and a resident of the county for 3 months where the divorce is filed. There is a 6 month waiting period before the divorce becomes final.

A typical dissolution of marriage in California requires the following steps:

  1. The Petition (Family Law) is filed and personally served on the Respondent.
  2. The Respondent then has thirty days to file a Response (Family Law).
  3. One of the parties to the dissolution will usually request temporary court orders by filing for an Order to Show Cause hearing. At this hearing, the judge will make temporary child custody, support and restraining orders.
  4. The parties then engage in discovery, which is the process by which parties to the dissolution exchange information and documents that are relevant to the case. One of the required aspects of discovery is the preparation of the Preliminary Declaration of Disclosure. This is a court form in which each party lists the community and separate property. As part of this disclosure, the parties are also required to exchange current income and expense declarations. Other forms of discovery are interrogatories (written questions) and depositions (oral examination under penalty of perjury).
  5. After the discovery is completed the parties and their attorneys (if they are represented) will discuss settlement of the case. If the case is resolved by agreement, one of the attorneys will prepare a Marital Settlement Agreement, which will contain all of the terms of the agreement. This is a contract that is signed by the spouses and their attorneys.
  6. If the parties are not able to agree on all of the issues in the case, a trial will take place.
  7. After the parties sign the Marital Settlement Agreement or after the trial has concluded, one of the attorneys will prepare a Judgment of Dissolution of Marriage. This is the document that contains all of the court’s orders. The judgment is filed and the court mails a Notice of Entry of Judgment to each attorney.

– Child Support

Child support is one of the most contentious issues in family law, and California child support issues are no exception. When dealing with California child support, it is best if you have a good California child support attorney to help you. But there are also some things which you can and need to know right up front about child support in California, and the California child support laws. While many people don’t realize it, most state child support laws are fairly fixed, and don’t take into account such things as what your or your ex’s actual child-related expenses are.

The child support laws of most states look at only a few factors, and you may find that your California child support award takes into account only:

  • How much you earn
  • How much your ex earns
  • How many children you have; and
  • What percentage of time the children are under each parent’s care and control

– Child Custody/ Visitation

Like most states, the standard for child custody determinations in California is the overall best interest of the child with an emphasis on assuring the “health, safety, and welfare” of the child and “frequent and continuing contact” with both parents absent child abuse, domestic violence, or where the contact would not be in the best interest of the child as provided in the California family code section 3011 (See California Family Code Section 3011, 3020, 3040, 3080. Further, according to California family code section 3040, child custody should be granted in an order of preference and according to the best interest of the child.

Child custody may be petitioned by parents, grandparents, stepparents, or any person who believes they can provide suitable care and guidance to the child. According to California family code section 3040 child custody should be granted in an order of preference and according to the best interest of the child. The court looks first to grant custody to both parents jointly or to either parent before looking to grant custody to other persons. California however does not currently establish a preference or a presumption for or against joint custody arrangements.

In making a child custody order between the parents in California, the court must also grant the other (noncustodial) parent “reasonable visitation rights” . . . unless it is shown that visitation would be “detrimental to the best interest of the child.” [Ca Fam § 3100(a)]
Because of the importance placed on “frequent and continuing contact” with both parents, an order completely withholding a parent’s visitation privileges may issue only upon a finding that any form of visitation with the parent would be “detrimental” to the child’s best interest. [Ca Fam § 3100(a)] If the custody order does not provide for parent visitation rights but does not expressly withhold such rights, the noncustodial parent has an implicit right to “reasonable visitation.”

Trial courts generally have broad discretion in defining a parent’s “reasonable visitation” rights and establishing a visitation schedule. Subject to a few statutory limitations (below), the sole guideline is the child’s best interest (Ca Fam § 3100(a)).

– Spousal Support

Two issues arise with regard to spousal support: the amount of spousal support and the duration of spousal support.

The duration of spousal support is closely linked to the length of the marriage. Frequently, practitioners speak of the ‘rule of thumb’ that spousal support will last for one-half the length of the marriage.

The duration of spousal support is left to the sound discretion of the court within certain general equitable principals and guidelines most often set forth in the common law case histories. However, in marriages of less than ten years, the statute provides a presumption that support should be granted for half the length of the marriage.

The California legislature has enacted a statute which indicates that when permanent support is established at the time of trial, it is an abuse of discretion for the court to set a future termination date if the marriage is of lengthy duration. The statute goes on to indicate that any marriage of ten years in duration is considered a lengthy marriage.

As a practical matter, in the late 1990s it appears that spousal support duration is linked to a transition period from married life to single life. The circumstances vary from person-to-person, but the courts tend to disfavor “lifetime support.”

The court has a broad discretion in ascertaining the amount of spousal support as well as its duration. Some California counties have adopted a guideline which suggests the appropriate range of spousal support on a temporary basis. Many counties do not allow the guideline to be the sole indicator of the amount of permanent spousal support. California State law provides that spousal support is determined by a careful review of a number of factors.

– Division of Community Property

Under community property law (also commonly referred to as the fifty-fifty (50-50) rule) all real and personal property acquired during marriage by a married person is presumptively community property. It may include a couple’s wages, earnings, income, savings, real estate, brokerage accounts, boats, cars, art, credit obtained during marriage, bonuses and any other property, real or personal. Community property is divided equally upon divorce, dissolution or legal separation, except under special circumstances.

The equal division of community property may result in the actual, equal division of each and every divisible asset, or the equal distribution of different assets of equal value to the husband and wife. In the event either method of property division results in one spouse receiving assets that are worth than those received by the other, the spouse who received the assets of greater value will usually pay the other a sum of money that is equal to one-half of the difference in value of the assets received.

– Modification of Court Order

A post-judgment modification action occurs where a party to the existing judgment seeks to change a provision of the judgment. To modify a judgment, you must file an Order to Show Cause (OSC) motion, which is essentially a request for the court to make an order. In your OSC, you must demonstrate that grounds exist for modifying the existing judgment, including generally a changed circumstance warranting modification. Generally, post-judgment modification motions are appropriate for issues regarding child custody and visitation, child support and spousal support. Orders regarding other provisions, such as the division of property, are generally not permitted, although parties may seek to set-aside a previous judgment on these issues under certain circumstances. In family law, motions to set aside judgments and orders generally fall under California Code of Civil Procedure 473 or California Family Code 2120, et seq. To obtain a post-judgment modification, you must demonstrate that the circumstances have changed since the original order to justify your requested modification. While there is no formal definition of what constitutes a change of circumstances, some courts may consider the following a change of circumstances justifying a court-ordered modification of a previous order: relocation or move away, loss of job or increases or decreases in earnings, unsuitable environment for children, new spouse or mate, unforeseen expenses, including medical expenses, and drug or alcohol use or abuse.

You should note that even though a change of circumstances may have occurred in the past, in most cases, a court ordered modification will not take place retroactively. This is particularly important for the issues of child and spousal support. That means your new support payments will begin with the new order and you may still be responsible for any delinquencies that occurred prior to the new order becoming effective.

Our post-divorce modification attorneys understand that a change of circumstances can be devastating in some cases and welcome changes in others. We will work with you to fully comprehend the scope of your issues, and we will focus our efforts on addressing those concerns.

– Pre-Marital Agreement

A prenuptial agreement California is known as a premarital agreement. Section 1610 of the California Family Law Code defines what a premarital agreement is – basically it is an agreement made by an engaged couple that will take effect when they get married. Section 1610 also defines what property is, and the definition is very broad, encompassing pretty much anything of value.

The next section, California Family Law Code section 1612, sets out what can and can’t be in a prenuptial agreement California. This is fairly similar to most other states. Generally any financial issue can be dealt with in a premarital agreement. Issues relating to children, including child support and custody are not permitted. Nor is one allowed to contract about obligations during the marriage, such as household chores, frequency of sexual relations, or penalties for adultery.

California has special provisions regarding spousal support in prenuptial agreements. Basically, provisions regarding spousal support will not be enforced unless the person whose receipt of spousal support is limited or waived had independent counsel before entering into the agreement. As well, provisions regarding spousal support will not be enforced if they are unconscionable at the time of enforcement. This means that it is impossible to determine in advance whether a spousal support provision will be enforceable when you separate, as your financial circumstances can change at any time.
Section 1613 of the California Family Law Code provides that a premarital

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agreement becomes effective upon marriage.

Under section 1614 of the California Family Law Code, you are allowed to amend or revoke your prenuptial agreement California after you get married, following similar procedures as the initial creation of the agreement.

Probably the most important part of the California Uniform Premarital Agreement Act is found in section 1615, which sets out when a prenuptial agreement California is enforceable, and when it isn’t. The usual caveats apply here: there must be financial disclosure, the premarital agreement must not be unconscionable, there must not be any coercion, and the parties must understand what they are signing. California requires that there be at least seven days between when a party is first presented with an agreement and when the agreement is signed.

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Family Appeals

The first procedural step is to file the notice of appeal. This is filed in the trial court — and it must be done within a specified time. If a party is late, the Court of Appeal will have no jurisdiction and the matter will never be heard. The importance of a timely filing cannot be overstated — although there is some degree of flexibility with respect to deadlines going forward, there is no flexibility whatsoever in the initial deadline to start the appeal.

Determining the deadline for filing the notice of appeal can be tricky. There are various possible deadlines depending on

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how the judgment being appealed was noticed to the parties and also on whether post-trial motions were filed.

Rule 8.104 of the California Rules of Court defines what it terms the “normal” deadline in state court as the earliest of: (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, showing the date either was mailed; (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or (3) 180 days after entry of judgment.

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