Additional Details

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.

The first step is filing a Petition and Summons for Dissolution of Marriage. The divorce proceeding will encompass a resolution of all issues related to the termination and ending of a marriage.  These include 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 time in the case, a case may settle in full or in part, or a case may proceed on to a hearing and/or trial on some or all of the marital issues. Whether a case settles or goes to trial is usually a measure 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.

EARLY IMPORTANT CONSIDERATIONS

1.  Assignment to a Judge or Commissioner - When you initially file for divorce you are assigned to either a Judge or Commissioner at that time.  A Judge is either appointed to office by the Governor or elected to the position.  If you do not want a particular Judge to be in charge of your matter you must file a notice with the Court within 10 days of your assignment to that Judge.  A Commissioner is a judicial officer that is hired by the Courts to act as a Judge if you agree or "stipulate" to have the Commissioner act as your Judge.  Once you agree or stipulate that a Commissioner may act as a Judge for all purposes in your matter, that Commissioner has essentially the same powers as a Judge.  If you so choose,
you may have your case transferred to a Judge at any time prior to making a general appearance in your matter.

2.  Do I have to move out of the family house?  Unless the Court finds there has been domestic violence, neither spouse can be excluded from the family residence.  Many people reside together throughout the entire dissolution process.  Although this may not be the ideal situation, it may be a necessity because of financial
concerns.  

HOW LONG IT TAKES UNTIL A PERSON CAN BE DIVORCED

It takes a minimum of six months and a day from the date that the Petition for Dissolution of Marriage is served on the Respondent for a party to be entitled to terminate his or her marital status. While some cases may actually be completed before six months has elapsed, the marital status cannot terminate until six months
and a day has arrived. Accordingly, a Judgment of Dissolution of Marriage can be filed and entered, but the marital status cannot terminate until the magic six months and day is achieved. More often than not, a case is not completed within six months. If such is the case, upon proper application to the Court, a case may be
"bifurcated" such that marital status may terminate on or after the six month and a day mark, however, the balance of the case will remain active and continue on through the court system until all issues are resolved. The complexity and number of issues involved, together with the reasonableness of the parties will often
determine how long the case will otherwise last.

AUTOMATIC TEMPORARY RESTRAINING ORDERS

When the divorce is filed and served, certain "automatic temporary restraining orders" immediately and automatically take effect which restricts the actions of each party during the pendency of the proceedings. In short, each party is specifically enjoined and restrained from removing the minor children from the State of California, changing or canceling insurance policies (such as health, life, disability, etc.), changing named beneficiaries on insurance policies or employment related benefits, and from transferring, selling or disposing of assets and property.

Process of service is generally effected by having the Petition personally served on the other party by a process service, or by any competent adult that is not a party to the proceeding. Process can also be effect by mailing service pleadings by certified mail with return-receipt requested, or allowing the other party to receive
the Petition through the mail with the execution and return of a "notice and acknowledgment of receipt, or by publication, or other less frequently used methods of service.

Once the divorce petition is filed and served, the party upon whom the documents are served has thirty (30) days to file a response. The response must be formally filed with the issuing Superior Court and served by mail on the moving party. If a response is not filed and served on the moving party within thirty days, the petitioning party may proceed to take the non-responding party's default, at which time the court may allow the moving party to proceed without any appearance or input from the defaulting party. The general effect of taking the non-responding party's default is that the filing party will receive the relief requested in their Petition
and moving pleadings, according to proof, as is consistent with the law - with no input from the other side of the case.


WHAT HAPPENS AFTER THE CASE IS FILED AND SERVED

If a response is timely filed and served, discovery proceedings may be commenced (depositions, interrogatories, subpoenas, investigation of assets and debts, etc.), motions may be filed, settlement negotiations may be commenced and trial preparations may commence. At this juncture the case is generally considered to be contested.

Interim hearings (Order To Show Cause hearings) or emergency hearings ("ex parte") may be scheduled to achieve emergency and/or temporary orders pending settlement, further hearing or trial regarding child custody issues, visitation issues, child and spousal support issues, residential use issues, use of assets, attorney fees requests, requests for appointments of financial experts and forensics, requests for appointments of child custody experts or other mental health experts to assist the court in making child custody determinations, requests for limited or full child custody investigations through mediation and investigative uthorities, requests for appointment of counsel for minor children, requests for restraining orders and other interim issues and considerations. The general idea is to achieve "interim" or
"pendent lite" or "temporary" orders pending trial, to keep the peace and define each party's rights pending trial or further hearing in the matter. At trial, "permanent" orders are made resolving these issues. As a general rule, absent emergency or unusual considerations, the court will generally not divide assets or
allocate debts pending trial.

At the trial level, the Court will determine issues as to the characterization of property (what is community property and what is separate property), the court will award community property, the court will confirm separate property, the court will resolve other community property and separate property issues, the court will
resolve property division issues, the court will resolve value issues regarding assets, the court will resolve accounting and commingling issues, the court will determine cash flow issues from business or self employed parties to determine support issues, the court will determine business valuation issues, and the court will determine reimbursement and credit issues, together with attorney fee, cost and an entire host of other family law related issues. Finally, the court will generally make "final" orders regarding child custody, visitation, child support, and spousal support issues.

At any stage during the proceedings, settlement may be entertained or achieved in whole or in part, allowing portions of the case to be resolved with the balance of issues proceeding to trial. A case may resolve by way of marital settlement agreement, or stipulated judgments or orders. All or part of a case may proceed to trial, despite the fact that some or most of a case has been resolved.


PROCEEDINGS TO MODIFY COURT ORDERS

As a general rule, attempts to change or "modify" a temporary order or an interim order (orders pending trial) are the subject of an Order to Show Cause for Modification, which carry substantial complex considerations, legal consequences, and complex burdens of proof. Attempts to modify a court's orders after entry of
judgment are, also, called Order to Show Cause for Modification and generally are brought to attempt to achieve a modification of existing child custody, child visitation, child support, spousal support orders, or to address "move away" cases, and are also the subject of substantial complex considerations, legal consequences
and complex burdens of proof. Generally, after entry of judgment of dissolution of marriage, the division of assets and debts is not usually modifiable. The division of assets and debts is generally intended to be a permanent consequence, unless
otherwise stated.


PROCEEDINGS TO ENFORCE COURT ORDERS

The laws of the State of California afford a large host of legal options by which orders may be enforced, ranging from contempt proceedings, to wage assignments, to garnishments, and other complex remedies to enforce the orders made by the Superior Court judicial officers.

PATERNITY CASES - ACTIONS TO ESTABLISH PARENTAL
RELATIONSHIPS

Other family law actions include paternity cases, or actions to establish a parent and child relationship. Such actions are instituted to establish parental rights, responsibilities, child support obligations, and to determine and resolve child custody and visitation issues.

Such proceedings are most frequently commenced between parties who are not married, although a marriage will not preclude such an action, and other variables are possible.

Such actions are frequently commenced by a mother seeking child support, or a father seeking to establish contact rights with a child where no marital union existed.

Such actions are also commenced by District Attorney related child support divisions or other county child support enforcement services seeking to achieve child support for a requesting parent or party, or seeking to reimburse the county for welfare funds expended on behalf of a child.

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 CHILD 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 Disso-Master 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 CONSIDERATIONS

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.