FAMILY LAW
DISSOLUTION OF MARRIAGE
In California, a divorce is called a dissolution of marriage proceeding. A dissolution of marriage proceeding is commenced by the filing party who will be referred to as the "Petitioner", and the responding or answering party will be referred to as the "Respondent" through all aspects of the proceedings.
A dissolution of marriage proceeding is commenced by the filing of a Petition for Dissolution of Marriage and summons. The divorce proceeding will encompass a resolution of all issues related to the termination and ending of a marriage. Child custody, child visitation, child support, spousal support or alimony, asset valuation issues, property division, division of assets, division of debts, rights of reimbursement, credit issues, restraining orders and all other related issues regarding the marriage will be formally resolved. The final order resolving the marital issues will generally be called a Judgment of Dissolution of Marriage.
At any juncture in the case, a case may settle in full or in part, or a case may proceed on to one or multiple hearings and/or trial on some or all of the marital issues. Whether a case settles or goes to trial is by and large a product of the complexity of the issues in the case, and the reasonableness of the parties in attempting to achieve compromise and settlement. These same concepts determine how long a case may last and, needless to say, how expensive a case may become.
Our office strives to reslove as many if not all of the issues whenever possible in order to achieve the end result of a Juudgement of Dissolution of marriage at a reasonable cost without sacraficing significant rights or assets of the client.
WHAT IS A MARRAIGE?
Marriage is defined as a civil contract between two people of the opposite sex, capable of contracting. Generally, to be married, two people must be of opposite gender. However, some states are in the process of changing the different sex requirement. To be "capable of contracting" means that both persons must be of age, or have the consent of a parent, and must be unmarried and not divorced within the six months prior to entering the current marriage contract.
WHAT IS A COMMON-LAW MARRIAGE?
A small minority of states allows the creation of marriage by common law. A common-law marriage is one in which there is no ceremony or marriage license. As in the above definition, parties must be capable of contracting and generally be of opposite gender. A common law marriage requires an actual agreement by the two people to act as husband and wife. The agreement may be by words or conduct. In addition, there must also be a "holding out" of the marital status. This means that the parties must represent themselves as married to others, such as using the same name, calling each other "husband" or "wife", opening joint accounts or contracting joint debt, filing a joint tax return, etc.
If there is a disagreement as to whether or not the parties are married, the person alleging that a marriage exists must prove the marriage by clear and convincing evidence. If the relationship is not initially a common law marriage, because of a lack of contract capacity, the common law marriage may still be created if the couple continues the "marital" relationship after the contract defect is removed. California no longer recognizes Common Law Marriage unless the union was entered into a state that stil recognizes Common Law Marriage on its books. As of 2014 Common Law Marriage can still be contracted in the following nine states: Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Utah, and Texas,
WHAT IS A DIVORCE?
A divorce is the legal termination of marriage. All states require a spouse to identify a legal reason for requesting a divorce when filing the divorce papers with the court. These reasons given are referred to as the grounds for divorce.
WHAT IS AN ANNULMENT?
An annulment is a method of voiding the contract of marriage. If an annulment is granted, the result is that the parties are treated as if the marriage never occurred. An annulment can only be granted if the initial marriage contract suffers from a defect in the contract formation. Such defects include an underage party without parental consent, a party lacking the mental capacity to understand the marriage contract or fraud in the inducement of the marriage contract. An annulment can only be granted to the innocent party, or the party that suffers from the defect.
WHAT IS A LEGAL SEPARATION?
Legal separation is a legal status conferred by a court, where the parties remain married, but the court sets the rights and liabilities of the parties with respect to child custody, support, visitation, alimony, property and debts. You may have the right to convert to a divorce in the event that there is no judgement of legal separation on file and less than five years has passed since the "Petition of Legal Separation" was filed.
MUST I GET DIVORCED IN COURT?
Yes, it is still necessary for a person who wants a divorce, to issue a summons against the other person and then to appear in court to give evidence. If the case is not defended, the process is usually fairly quick and uncomplicated, particularly if there are no children and simple proprietary issues. In other words there is no such thing as a common law divorce.
HOW LONG DOES IT TAKE TO GET A DIVORCE?
The time required to obtain a divorce varies. Generally, a divorce takes anywhere from six weeks, to a couple of years. The divorce is final as soon as the judge signs the divorce decree. Parties to a divorce may not remarry anyone except each other for 6 months after the decree is granted.
DO I NEED AN ATTORNEY TO FILE FOR DIVORCE?
No. However, unless your divorce is extremely uncomplicated, and does not involve children or division of substantial property or assets, then using the services of a family law attorney is generally a good idea.
WHAT ABOUT THE $75 "DO IT YOURSELF" DIVORCE KITS?
Most lawyers really like these kits because they can charge you a lot of money to fix the messes that they have created. Be wary before attempting to utilize such a kit. If you really want to "do it yourself," call your local bar association and ask for a referral to a legal clinic or look in the yellow pages for a "legal support clinic." Alameda County has a self-help center that provides legal assistance in completing the required documents.
GENERAL CHILD CUSTODY CONSIDERATIONS
In making appropriate child custody rulings, decisions and awards, the court is required to determine what is in the best interests of the child or children in issue. Child custody considerations and laws consist of complex concepts, but generally require the court to consider which parent is best able to provide for the needs of the child or children in terms of health, safety and welfare, while at the same time considering the history of custodial responsibilities, who has been the primary custodial parent, history of contacts between the child and parents, and which parent will be most likely to promote and provide open, frequent and continuing contacts between the child or children and the other parent.
While not mandatory, many courts may tend to favor the testimony of an expert when making decisions and rulings in difficult or contentious custody or visitation cases. Expert testimony may be supplied by an appointed mental health care professional. Other options include partial or full child custody investigations through mediation and investigative services.
In appropriate cases, the court may even appoint an attorney to represent your child or children, which may be extremely beneficial where the minor child or children has a primary custodial parent preference, or where the parties needs, wants or desires are in conflict with the needs and/or best interests of the child or children involved.
In almost all California courts, mediation through a county mediation and investigative service is a mandatory condition precedent to the court's willingness to hear any contested custody or visitation related issue, it being the purpose of such mediation to promote the parties to attempt to resolve their own custody and visitation needs with a trained social worker, without judicial interference, and outside of the presence of their respective attorneys. While the role of the mediation process differs from county to county in California, (some counties allow mediation to make recommendations to the court vs. other counties where mediation is strictly a settlement tool) most mediation agencies have the ability to recommend the appointment of counsel for a minor, or recommend that a custody evaluation be performed, where a case appears to be difficult or contentious.
GENERAL AND BASIC SUPPORT CONSIDERATIONS
Child support amounts are determined by state statute and guidelines which are reduced to an algebraic formula. Common computer programs which incorporate the statue guidelines are known as DissoMaster programs, which are widely used by most family law attorneys and judicial officers. The algebraic formula takes into account a substantial host of factors and considerations which are used to determine child support obligations, the most important of which include the number of children in issue, income levels, time share arrangements and other legitimate deductions and expenses provided by the statute and incorporated into the support software program. Day care costs, union dues, health insurance, some work related expenses, new spouse income (for tax considerations only), other child support payments, some residential and tax deductions, along with other hardship considerations for other dependent children living with the paying party may be considered and effect support levels, also. Child support income and spousal support income are vastly different considerations and concepts, each carrying its own special area of complex laws and considerations.
Child support income may be based on payroll wages, overtime, bonus, commission, disability income, passive income, social security income, and even the income produced from second jobs in some instances. In many cases, where a person or party with an obligation to pay support is intentionally avoiding his support obligation, avoiding employment or suppressing income, the court may impute an ability to earn income to the parent otherwise obligated to pay child support. In the case where the party obligated to support is self-employed, determining that person's actual income or "cash flow" may be extremely difficult absent substantial accounting, taxation or forensic skills. Frequently a forensic accountant will be retained to determine actual cash flow issues following some form of an income audit.
GENERAL AND BASIC SPOUSAL SUPPORT
The primary concept behind an award of spousal support is to assist a former mate in maintaining the standard of living enjoyed during the course of the marriage, and to assist that former mate in making a transition to the status of being self supporting. Factors of significant weight in determining amount and duration of support include: duration of marriage, need of the requesting party, ability to pay of paying party, marital standard of living, income levels, ability to earn income of the supported party, level of education of the supported party, and an entire host of considerations which are outlined in California Family Code, Section 4320.
Determining interim and final spousal support orders in terms of amount and duration can constitute one of the most complex considerations and decisions that a trial judge will be required to determine, or a lawyer to litigate. The body of law surrounding Section 4320 is vast and complex. Modifying support orders can be an even more daunting exercise.
WHO HAS TO PAY CHILD SUPPORT?
Liability is imposed upon both parents. Substantially all states have adopted the Uniform Support of Dependents Law. Under that law, " if possessed of sufficient means or able to earn such means, either or both parents shall be required to pay for child support a fair and reasonable sum as the court may determine."
HOW IS CHILD SUPPORT CALCULATED?
The federal Family Support Act of 1988 requires every state to establish numerical child support guidelines. Every state has "child support guidelines" that applies a percentage to the non-custodial parent's income. It is from this percentage that the child support is calculated.
WHAT INCOME OS INCLUDED IN THE CALCULATION?
In the vast majority of cases, child support is awarded based on reported wages of the payor, as demonstrated by income tax returns.
WHAT CAN I DO TO ENFORCE PAYMENT OF CHILD SUPPORT?
There are many enforcement devices available in most states. These include wage garnishments, making a negative report to credit reporting agencies, collecting past-due child support from lottery prizes won by the payor parent, intercepting tax refunds due the payor parent from state and federal income tax authorities, seizure of the non-paying parents property, obtaining a court order directing that the payor parent post cash deposit to secure payment of support, bbtaining a court order placing the defaulting parent on probation, and lastly, usually where other methods have all failed, obtaining a court order sentencing the defaulting parent to serve jail time.
CAN MY FORMER SPOUSE FILE FOR BANKRUPTCY TO AVOID PAYING CHILD SUPPORT?
No. The federal bankruptcy code exempts child support and alimony. Even if a former spouse files for, and receives relief from all debts, the child support obligation will not be relieved.
WHAT IF MY FORMER SPOUSE IS MISSING?
Many states have a parent locator service. Call your state's support enforcement agency and ask about the parent locator service. If they are not able to help you, you can often locate a missing parent if you know what state he or she resides in simply by asking for a search of the motor vehicle records for that state.
CAN I STILL COLLECT CHILD SUPPORT EVEN IF MY FORMER SPOUSE LIVES IN A DIFFERENT STATE?
Yes.All states have passed the Uniform Reciprocal Enforcement of Support Act ("URESA") or a comparable statute. This act provides for interstate collection of child support. This Act sets up the method for enforcement of support orders where the parties live in different states. Essentially, the party seeking enforcement files a petition in his or her home state. That petition is transmitted to the payor parent's home state and he or she is brought into the court of that state and the court enforces support.
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