Explanation and Outline of a Family Law Case
You should be aware at the outset of your case that it often takes many months for anything to seem to happen, and, when things do happen, they are often confusing and can appear to have no real purpose to you. You should also be aware that, even though you may be dealing with someone who you love, or loved, that many times the stress of the court process will cause new and extreme friction between the two of you. People can make up the most outrageous stories about the other party, sometimes complete lies.
Another thing you should be aware of (and incidentally the first statement made to me as part of my legal training) is not to confuse law with justice. Oftentimes the law can seem extremely unjust and unfair.
However there is no reason to be discouraged. Litigation is simply a series of events laid out by the law with certain requirements and limitations in order to facilitate the processing of your case.
The following is a brief, and very generalized, explanation of the steps involved in family law litigation.
First of all, there are several different types of basic situations in family law. The most common ones are:
Another thing you should be aware of (and incidentally the first statement made to me as part of my legal training) is not to confuse law with justice. Oftentimes the law can seem extremely unjust and unfair.
However there is no reason to be discouraged. Litigation is simply a series of events laid out by the law with certain requirements and limitations in order to facilitate the processing of your case.
The following is a brief, and very generalized, explanation of the steps involved in family law litigation.
First of all, there are several different types of basic situations in family law. The most common ones are:
3. Nullity of Marriage (Annulment)
4. Parent and Child Custody Cases (cases where the parents of the child were not married)
The following is a brief description of the differences between these types of cases:
The following is a brief description of the differences between these types of cases:
1. Dissolution of Marriage (Divorce)
There are two different types of divorce cases. The first, and most common, is the standard divorce. In a standard divorce, there are usually several issues at stake for the parties. Among those are custody of the children, visitation, child support, spousal support, immediate, temporary control of certain property, division of assets and debts and, ultimately, termination of the status of being married (divorce). These issues can be agreed upon by the parties or they can be major stumbling blocks on the road to finalizing the divorce.
We will discuss the details of how this all comes to pass later.
There are only two basic grounds for filing a divorce. They are irreconcilable differences and incurable insanity. These are the only grounds which matter anymore in the courts. The courts no longer take into consideration who had an affair or who was lazy or abusive or anything else. All of those old reasons that you hear of on TV have been grouped together as irreconcilable differences and none of those will give either party any type of advantage in the property division. However, character of the other party does come into play with regard to custody and visitation issues as will be discussed later.
There are two different types of divorce cases. The first, and most common, is the standard divorce. In a standard divorce, there are usually several issues at stake for the parties. Among those are custody of the children, visitation, child support, spousal support, immediate, temporary control of certain property, division of assets and debts and, ultimately, termination of the status of being married (divorce). These issues can be agreed upon by the parties or they can be major stumbling blocks on the road to finalizing the divorce.
We will discuss the details of how this all comes to pass later.
There are only two basic grounds for filing a divorce. They are irreconcilable differences and incurable insanity. These are the only grounds which matter anymore in the courts. The courts no longer take into consideration who had an affair or who was lazy or abusive or anything else. All of those old reasons that you hear of on TV have been grouped together as irreconcilable differences and none of those will give either party any type of advantage in the property division. However, character of the other party does come into play with regard to custody and visitation issues as will be discussed later.
A. Summary Dissolution of Marriage
The other type of divorce case is called a Summary Dissolution. This type of divorce has specific procedural requirements before it can be used. For instance, it can only be used when there are no children of the marriage involved, when the assets of either party are below a specified amount, the debts do not exceed another specified amount, etc. In this type of case, the parties must be in total agreement with the terms of the divorce, the division of property and the division of debts. The parties both sign the Petition for Divorce, which is filed with the court, and both sign the request for a final judgment. These are standardized forms which were created by the Legislature to give parties a divorce where the issues are simple.
2. Legal Separation
A legal separation follows the same steps and requires the same forms as a standard divorce. The only difference is that when the judgment is entered, the parties are still considered married. A legal separation may appeal to some people for various reasons, including religious reasons, financial reasons, or personal reasons (e.g., they simply don’t want to completely give up on the marriage). Property and debts are still divided and custody, visitation and the support of children are still determined and judgment entered by the court. A legal separation, once final, can at any time, be converted to a divorce through the relatively simple process of filing certain documents with the court and requesting that the case be converted.
3. Nullity of Marriage
A nullity of marriage action or annulment is similar to a divorce, but has a different meaning and effect. An annulment is basically an action to determine that the marriage was obtained under illegal circumstances. The legal effect is that the marriage never happened. There are very specific legal reasons for filing for an annulment. They include:
Age (one party was not old enough to enter into the marriage)
Bigamous marriage (one party was still married to someone else at the time of the present marriage)
Incestuous marriage (the parties are related by blood)
Unsound mind of either party at the time of the marriage
Fraud (the marriage was obtained through false statements or other illegal misrepresentation of facts at the time of the marriage by one party to the other)
Force (one party forced the other into the marriage)
Physical incapacity of either party at the time of the marriage
Those are the only grounds for a nullity of a marriage.
4. Parent and Child Cases
These are what most people would refer to as custody cases. This is the situation where the parents of a child were unmarried and the only issues are child custody, visitation and support. These cases are often as difficult, if not more, than a standard divorce case and will be discussed later at length.
THE STANDARD DIVORCE
Commencing the action
A standard divorce begins with the client explaining the situation to the attorney or his/her staff. Decisions are then made as to what steps need to be taken and when to take those steps during the life of the case. Many clients have immediate needs and there are specific legal procedures which can be used to take care of those immediate needs.
In a divorce, the main document which needs to be filed with the court to begin the process is the Petition. The Petition requests that the court make certain determinations as to all of the issues the parties need to resolve between themselves such as custody, support and property division.
Serving the Respondent
The next step after filing the Petition and obtaining the Summons is to have the Respondent {your spouse) served with the Summons and Petition. This is usually accomplished by personally delivering a copy the documents to them and then filing proof of that service with the court.
Which party actually files the divorce petition is essentially irrelevant. The parties are treated equally when they go to court. Decisions by the judge are made based upon the particular situation and character of the individual parties as opposed to who filed first. If you are the Respondent in a divorce case, you have the same rights and obligations as the Petitioner. (For our purposes, we’ll assume that you are the Petitioner, the person who started the divorce.)
Once the Summons and Petition are served on the Respondent, there are certain standard restraining orders which immediately go into effect. The specific standard restraining orders appear on the face of the Summons and state that neither party shall remove any minor children from the State of California without the prior written consent of the other party or order of the court, neither party shall cash out, borrow against or otherwise interfere with any type of insurance coverage which is in effect, and neither party shall transfer, encumber or conceal any of the property of the marriage without the consent of the other or order of the court. (These are not the same as orders for parties to stay away from one another or to protect either party from harm by the other party. Those are obtained differently.)
The purpose of the standard restraining orders is to, as much as possible, preserve things in the marriage the way they were on the day you filed the Petition while the case is going forward.
Several things happen once the Respondent is served. First the standard restraining orders go into effect. Next the Respondent must file a Response with the court. The Response is merely a document which tells the court that the Respondent wants to contest the case. It allows the Respondent to respond to what the Petition alleges.
If the Respondent fails to answer the Petition within 30 days, the Petitioner may request that the court enter the default of the Respondent. What this means is that the Petitioner is requesting that the court proceed without the Respondent being involved. If the Respondent continues to fail to participate in the proceedings, the court may enter judgment without the Respondent ever having a say in what the judgment is. The Respondent could conceivably lose all his or her rights to custody and visitation of the parties’ children, lose all of his or her property and end up with support payments he or she cannot afford. However, this rarely happens in the real world.
Usually, one of two things happens:
1. The Respondent eventually files a Response to the Petition (possibly after having to get permission from the court to do so because the initial 30 days have passed); or,
2. The parties come to an agreement that the action will proceed as a default judgment, there won’t be a trial or Response filed with the terms of the judgment being agreed to by the parties in a Marital Settlement Agreement (MSA). Usually, the lawyers draft the MSA and both parties and their lawyers sign it.
MARITAL SETTLEMENT AGREEMENTS
Marital Settlement Agreements are the preferred method of resolving a divorce. If the parties can agree and the agreement is acceptable to the court, a good Marital Settlement Agreement can avoid having to appear in court and keep attorney fees down. However, arriving at such an agreement is often a difficult, emotional and lengthy process for both sides and their lawyers. It involves extensive negotiation at times, and the more that is at stake, the more complicated the negotiations. However, in the end, this is often the most cost effective and painless way to obtain a judgment of divorce. It may require no actual testimony or even court appearances by the clients. With any luck, both parties walk away happy.
CONTESTED CASES
Once all hopes of a friendly, agreed upon divorce are exhausted the situation becomes more difficult. All of the standard issues in a divorce: custody and visitation, support, the division of the couple’s debts, etc. may all have to be decided by a judge.
The most heated battles are often over custody and visitation of children. These battles sometimes lead to a party making harsh statements and even made up stories about the other. Don’t worry, the courts understand that this is the case and will take your statements into consideration and decide who they believe.
All of these issues will be discussed below.
IMMEDIATE NEEDS OF THE CLIENT
Some clients may have immediate needs such as immediate restraining orders to keep their spouse from harming them, immediate control of the family home (so they can have a place to stay without being bothered by the other spouse), immediate (temporary) custody orders, immediate control of property (such as the home, the car, the contents of the home including food and furniture, etc.) or other specific immediate needs.
The client must be able to show facts which support these types of requests to the court. If the court feels that the request is reasonable under the circumstances, the judge may grant the request. It will all depend entirely on the individual’s situation.
These type of requests are made by filing a document called a Request for Orders with the court and then explaining the reasons for your request in front of a judge at a hearing.
You’ll have to fulfill at least three procedural requirements before your Request for Orders will be granted. First, ample notice of the hearing must be given to the other party (generally by giving him or her a copy of the Request for Orders 16 court days before the hearing). Next, sufficient evidence must be presented before the court, through testimony or documents, to warrant the granting of the orders requested. Lastly, the other party must fail to show a good reason why the orders should not be granted.
If all of that happens, your requests may be granted, they may not. Again, it all depends on what the judge believes is proper in your particular situation.
In an emergency situation, we can try to obtain orders on about 24 hours notice, but this requires an extreme situation where there is an immediate danger of harm to someone or the threat that substantial property will be lost.
This is a stage of the case where many people become very emotional. Oftentimes the person you are divorcing, who you may have once loved, will say things in written declarations which are hurtful and false. Do not be discouraged. These issues are highly emotional and when emotions become involved, people become desperate and will say anything. As I say to ten clients a day who call to tell me what their ex said today, don’t listen to them. They are not attorneys. They are not the judge.
THE DISCOVERY PHASE
This is the stage where both sides gather information or discover information about the other side’s contentions about the case in anticipation of trial. There are several ways in which this information may be obtained.
1. The most common way is by exchanging a Schedule of Assets and Debts and an Income and Expense Declaration with your soon to be ex-spouse. The Schedule of Assets and debts is a list of what each party thinks the community (the petitioner and the respondent) owned, before, during and after the marriage. The Income and Expense Declaration shows what each party claims is his or her income and what his or her expenses are.
2. The next most common form of discovery are the Form Interrogatories. Form Interrogatories are a standardized set of common questions designed by the Judicial Council of California for divorce cases. They ask questions about finances, property and the special needs of the children. Parties can also draft and direct Special Interrogatories to the other party asking specific questions about anything which is relevant to the case. Your spouse has 30 days to answer the questions you’ve sent to him or her. And the answers must be made under penalty of perjury.
3. Next is the Request for Production of Documents, which is exactly what it sounds like: it’s a request made by one party to the other for copies of the documents which will prove the other party’s contentions, or disprove them, as the case may be.
4. In more complex situations, your attorney may want to set up a deposition. A deposition is your attorney’s opportunity to sit down with a witness and ask him or her questions about the marriage. The questions and answers are taken down by a court reporter. Your spouse and his/her attorney have the right to be present. The witness may be your spouse or someone else who has information that’s relevant to the divorce. Depositions can be held at a lawyer’s office, the court reporter’s office or any other mutually agreed-upon location. The court reporter then prepares a written transcript of what was said, which can be used as evidence in court.
5. Psychological/custody/educational or drug and alcohol evaluations can also be ordered by the court if the situation warrants it. If a party alleges that his or her wife has some problem which should be considered in determining custody and visitation orders, the court can order all sorts of professional evaluations to be performed. These are often involved, lengthy and expensive.
TRIAL
Once the discovery phase of your case is complete and if you and your spouse still cannot come to an agreement, it’s time for trial.
We request a trial date by filing an At-Issue Memorandum which is a request that the case be put on the active list to be set for trial. The court will then notify the parties, through their attorneys, of a trial date and the dates that certain documents are due to the court.
At trial, you’ll see first hand the process you’ve undoubtedly seen on hundreds of episodes of “Perry Mason” or “L.A. Law”. But real life is a little different. .
Actual trials are very different from their television counterparts. Frankly, they can be very bland. There is no jury. There are no surprise witnesses. Attorneys don’t tear into witnesses. Witnesses don’t break down on the stand. There are no clever, emotional speeches by the attorneys.
Trial is mostly detailed information presented slowly and deliberately in a way which can often be confusing to the client. But don’t despair, we will carefully explain what is happening. And remember what we’ve said above, a divorce, and especially a trial, can be emotionally draining. Hang in there.
Once the trial is completed, the judge will issue his or her decision on all of the issues which you and your spouse weren’t able to resolve on your own. The decision will then be set down in a judgment which is prepared by the attorneys and your case will be over.
However, be aware that some of the issues which were argued at trial, most likely support and custody and visitation, can be considered by your judge again if circumstances require it. For example, if your or your ex-spouse’s income changes or your children’s needs change, you may want the judge to modify custody and visitation orders or support orders even after trial.
Parent and child cases (Non-divorce)
Parent and child cases (also known as Paternity Cases) are similar to divorces as far as the procedural steps which were described above. The documents are slightly different, however. First, the initial document which begins a Paternity Case is a Complaint to Establish Paternity, which can be filed by either the mother, father, or in the case of a Welfare reimbursement case, the District Attorney. Even if both parents agree that they are the parents of the child, this is the document which tells the court that that fact needs to be legally established. The process is nearly identical to the divorce process after that except that there are usually no property issues to be determined. Requests for Orders are the main method of obtaining temporary orders until final judgment is entered and if necessary, the case can proceed to trial. Ultimately a judgment is entered by the court.
Welfare cases
In situations where one parent is collecting welfare for the support of a child, the Department of Child Support Services may sue the other parent for reimbursement of the amounts paid out. In these situations, the County (represented by the Department) is the Petitioner and essentially sues for the amount that Welfare has paid out to support the child. These cases proceed much as other parent and child cases do, but the Department will not try to establish any visitation for the parent it seeks to get money from. That must be done through a Complaint to Establish Paternity.
CHILD CUSTODY AND VISITATION
Custody
There are two types of custody: 1. Legal custody; and 2. Physical custody.
When a parent is given legal custody, that means that he or she has the right to make the daily decisions about how the couple’s children will be raised. This includes decisions such as what school the child will attend, what religion the child will practice, who will provide after school child care, what non-emergency medical and dental care will be provided for the child, whether sex education will be taught to the child and when the child will be permitted to obtain a driver’s license. Legal custody may be given to either parent or to both. When the parents share legal custody, it is known as joint legal custody and the parents must work together in raising their children. If one parent is given legal custody, it is called sole legal custody and that parent has the sole power to make the decisions discussed above.
When a parent is given physical custody, that means that the children of the marriage will live primarily with that parent. This doesn’t mean that the other parent is not allowed to see the child. In fact, the parent with whom the child does not reside (the non-custodial parent) may often have the child for an equal amount of time as the custodial parent. Again there may be orders for joint physical custody or for primary physical custody or for sole physical custody. How physical custody actually works is determined by the visitation schedule and a client should not get too hung up on which phrase is used to describe physical custody, be it joint, primary or sole custody. The visitation schedule really controls how much time you will be able to see your children.
Visitation
Obviously, this is exactly what it sounds like. But you should know that the courts are very liberal in what they consider to be proper visitation. In some cases, the court may order no visitation (in very rare cases where the non-custodial parent is a direct physical or emotional danger to the child), supervised visitation (which means that the non-custodial parent can only visit with the child if there is an approved supervisor with them) , weekend visitation, block time visitation (extended periods with a parent), or any other arrangement which will ensure frequent and continuing visitation between the non-custodial parent and the child. The court strives to keep the relationship between a noncustodial parent and the child strong and alive.
Mediation
When custody and visitation issues exist in the divorce and can’t be resolved by the parties, the courts require that the parents attend mediation before they take the problem to a judge. The mediator is an employee of Family Court Services, a part of the court system. He or she helps the parties to make their own agreement. The mediator can’t order the parties to adopt any given custody or visitation arrangement. Attorneys are not permitted to participate in the mediation. The mediator doesn’t deal with financial or property issues.
If the parties come to an agreement, the mediator writes it up, has all of the parties and their attorneys sign it and then submits it to the court to be approved and signed by a judge. The agreement then becomes the order of the court with regard to custody and visitation issues.
When you go to mediation, keep in mind that you are not under any obligation to give up any rights which you feel you are entitled to. If you can’t come to an agreement that you want, or something close enough for you, do not agree. Whatever is discussed in mediation can’t be discussed in front of a judge. So your spouse isn’t permitted to claim in front of the judge that you were uncooperative or difficult. The court will simply decide custody and visitation as if the mediation never happened.
The courts also require that parents attend a parenting class before judgment can be entered. This is a one time class that gives parents ideas on how to deal with various situations that arise while raising their children.
CHILD SUPPORT/SPOUSAL SUPPORT/FAMILY SUPPORT
There are three types of support: child support, spousal support and family support.
Child support is strictly for the support of the child and is not tax deductible for the one paying the support. It is based upon a state guideline formula, calculated by a computer program, which basically takes into account the income of each parent, the tax filing status of each parent and the time each parent has with the children. There are various other factors which figure in, but those are the basic factors.
Spousal support is support paid by the spouse who earns more to the former spouse who earns less. Spousal support is intended to give the receiving spouse the opportunity to get back on his or her feet after having been married. If the marriage was longer than ten years, the court cannot technically terminate its authority to award spousal support, but that does not mean that the court must award spousal support. Spousal support is tax deductible for the party that pays it. Either husband or wife may request spousal support, whether or not he or she receives it simply depends on the individual situation.
Family support is a combination of child and spousal support. It gives the paying party the tax advantage of being able to claim the entire amount as a tax deduction.
WAGE ASSIGNMENTS
Once the court has established what the required support will be, the party entitled to the support payments has the absolute right to garnish the wages of the other party to collect those amounts. This is known as a Wage Assignment and it means that the support is automatically taken out of the paying spouse’s check each pay period by his or her employer. No one can stop the garnishment without the agreement of the receiving party.
Not every case will require a Wage Assignment. In many cases the party paying support simply does it voluntarily and no Wage Assignment is ever requested by the receiving party.
POST JUDGMENT PROCEEDINGS
Generally, once a judgment has been entered by the court, the case is final. However, certain things may happen after judgment has been entered which may require a change in custody, visitation, or support. There must be a change of circumstances in order to go back into court and ask for modification of the orders contained in the judgment. A change in circumstances can be, for example, that one parent is doing things which would justify a change in custody (such as drug use or physical or emotional abuse of the child). Or it could be that either parent has had a change in income which would change the support amount or any number of other things.
Post judgment proceedings can also be instituted to enforce the provisions of a judgment. For instance, if one party was ordered to release certain property to the other and refuses to do so, you can go back to court and ask the court to enforce the terms of the judgment.
CONCLUSION
Family law litigation is a long and difficult process for all involved, including the lawyers. Be patient, even though the road will seem long and difficult. Eventually, the court will work things out for you if you can’t work them out between yourself and your soon to be ex-spouse.
Also, keep in mind that this type of litigation is usually hardest on the children. They often do not understand what is happening and can blame themselves for the situation. Make sure they understand that it is not their fault and never, never, discuss the court case with young children. They should be left out of it completely whenever possible.
You will undoubtedly have questions which pertain to your particular case. Feel free to give us a call. Remember the half-hour consultation is always free.
We hope that this will have at least explained the general process to you. Thank you for your attention.
A legal separation follows the same steps and requires the same forms as a standard divorce. The only difference is that when the judgment is entered, the parties are still considered married. A legal separation may appeal to some people for various reasons, including religious reasons, financial reasons, or personal reasons (e.g., they simply don’t want to completely give up on the marriage). Property and debts are still divided and custody, visitation and the support of children are still determined and judgment entered by the court. A legal separation, once final, can at any time, be converted to a divorce through the relatively simple process of filing certain documents with the court and requesting that the case be converted.
3. Nullity of Marriage
A nullity of marriage action or annulment is similar to a divorce, but has a different meaning and effect. An annulment is basically an action to determine that the marriage was obtained under illegal circumstances. The legal effect is that the marriage never happened. There are very specific legal reasons for filing for an annulment. They include:
Age (one party was not old enough to enter into the marriage)
Bigamous marriage (one party was still married to someone else at the time of the present marriage)
Incestuous marriage (the parties are related by blood)
Unsound mind of either party at the time of the marriage
Fraud (the marriage was obtained through false statements or other illegal misrepresentation of facts at the time of the marriage by one party to the other)
Force (one party forced the other into the marriage)
Physical incapacity of either party at the time of the marriage
Those are the only grounds for a nullity of a marriage.
4. Parent and Child Cases
These are what most people would refer to as custody cases. This is the situation where the parents of a child were unmarried and the only issues are child custody, visitation and support. These cases are often as difficult, if not more, than a standard divorce case and will be discussed later at length.
THE STANDARD DIVORCE
Commencing the action
A standard divorce begins with the client explaining the situation to the attorney or his/her staff. Decisions are then made as to what steps need to be taken and when to take those steps during the life of the case. Many clients have immediate needs and there are specific legal procedures which can be used to take care of those immediate needs.
In a divorce, the main document which needs to be filed with the court to begin the process is the Petition. The Petition requests that the court make certain determinations as to all of the issues the parties need to resolve between themselves such as custody, support and property division.
Serving the Respondent
The next step after filing the Petition and obtaining the Summons is to have the Respondent {your spouse) served with the Summons and Petition. This is usually accomplished by personally delivering a copy the documents to them and then filing proof of that service with the court.
Which party actually files the divorce petition is essentially irrelevant. The parties are treated equally when they go to court. Decisions by the judge are made based upon the particular situation and character of the individual parties as opposed to who filed first. If you are the Respondent in a divorce case, you have the same rights and obligations as the Petitioner. (For our purposes, we’ll assume that you are the Petitioner, the person who started the divorce.)
Once the Summons and Petition are served on the Respondent, there are certain standard restraining orders which immediately go into effect. The specific standard restraining orders appear on the face of the Summons and state that neither party shall remove any minor children from the State of California without the prior written consent of the other party or order of the court, neither party shall cash out, borrow against or otherwise interfere with any type of insurance coverage which is in effect, and neither party shall transfer, encumber or conceal any of the property of the marriage without the consent of the other or order of the court. (These are not the same as orders for parties to stay away from one another or to protect either party from harm by the other party. Those are obtained differently.)
The purpose of the standard restraining orders is to, as much as possible, preserve things in the marriage the way they were on the day you filed the Petition while the case is going forward.
Several things happen once the Respondent is served. First the standard restraining orders go into effect. Next the Respondent must file a Response with the court. The Response is merely a document which tells the court that the Respondent wants to contest the case. It allows the Respondent to respond to what the Petition alleges.
If the Respondent fails to answer the Petition within 30 days, the Petitioner may request that the court enter the default of the Respondent. What this means is that the Petitioner is requesting that the court proceed without the Respondent being involved. If the Respondent continues to fail to participate in the proceedings, the court may enter judgment without the Respondent ever having a say in what the judgment is. The Respondent could conceivably lose all his or her rights to custody and visitation of the parties’ children, lose all of his or her property and end up with support payments he or she cannot afford. However, this rarely happens in the real world.
Usually, one of two things happens:
1. The Respondent eventually files a Response to the Petition (possibly after having to get permission from the court to do so because the initial 30 days have passed); or,
2. The parties come to an agreement that the action will proceed as a default judgment, there won’t be a trial or Response filed with the terms of the judgment being agreed to by the parties in a Marital Settlement Agreement (MSA). Usually, the lawyers draft the MSA and both parties and their lawyers sign it.
MARITAL SETTLEMENT AGREEMENTS
Marital Settlement Agreements are the preferred method of resolving a divorce. If the parties can agree and the agreement is acceptable to the court, a good Marital Settlement Agreement can avoid having to appear in court and keep attorney fees down. However, arriving at such an agreement is often a difficult, emotional and lengthy process for both sides and their lawyers. It involves extensive negotiation at times, and the more that is at stake, the more complicated the negotiations. However, in the end, this is often the most cost effective and painless way to obtain a judgment of divorce. It may require no actual testimony or even court appearances by the clients. With any luck, both parties walk away happy.
CONTESTED CASES
Once all hopes of a friendly, agreed upon divorce are exhausted the situation becomes more difficult. All of the standard issues in a divorce: custody and visitation, support, the division of the couple’s debts, etc. may all have to be decided by a judge.
The most heated battles are often over custody and visitation of children. These battles sometimes lead to a party making harsh statements and even made up stories about the other. Don’t worry, the courts understand that this is the case and will take your statements into consideration and decide who they believe.
All of these issues will be discussed below.
IMMEDIATE NEEDS OF THE CLIENT
Some clients may have immediate needs such as immediate restraining orders to keep their spouse from harming them, immediate control of the family home (so they can have a place to stay without being bothered by the other spouse), immediate (temporary) custody orders, immediate control of property (such as the home, the car, the contents of the home including food and furniture, etc.) or other specific immediate needs.
The client must be able to show facts which support these types of requests to the court. If the court feels that the request is reasonable under the circumstances, the judge may grant the request. It will all depend entirely on the individual’s situation.
These type of requests are made by filing a document called a Request for Orders with the court and then explaining the reasons for your request in front of a judge at a hearing.
You’ll have to fulfill at least three procedural requirements before your Request for Orders will be granted. First, ample notice of the hearing must be given to the other party (generally by giving him or her a copy of the Request for Orders 16 court days before the hearing). Next, sufficient evidence must be presented before the court, through testimony or documents, to warrant the granting of the orders requested. Lastly, the other party must fail to show a good reason why the orders should not be granted.
If all of that happens, your requests may be granted, they may not. Again, it all depends on what the judge believes is proper in your particular situation.
In an emergency situation, we can try to obtain orders on about 24 hours notice, but this requires an extreme situation where there is an immediate danger of harm to someone or the threat that substantial property will be lost.
This is a stage of the case where many people become very emotional. Oftentimes the person you are divorcing, who you may have once loved, will say things in written declarations which are hurtful and false. Do not be discouraged. These issues are highly emotional and when emotions become involved, people become desperate and will say anything. As I say to ten clients a day who call to tell me what their ex said today, don’t listen to them. They are not attorneys. They are not the judge.
THE DISCOVERY PHASE
This is the stage where both sides gather information or discover information about the other side’s contentions about the case in anticipation of trial. There are several ways in which this information may be obtained.
1. The most common way is by exchanging a Schedule of Assets and Debts and an Income and Expense Declaration with your soon to be ex-spouse. The Schedule of Assets and debts is a list of what each party thinks the community (the petitioner and the respondent) owned, before, during and after the marriage. The Income and Expense Declaration shows what each party claims is his or her income and what his or her expenses are.
2. The next most common form of discovery are the Form Interrogatories. Form Interrogatories are a standardized set of common questions designed by the Judicial Council of California for divorce cases. They ask questions about finances, property and the special needs of the children. Parties can also draft and direct Special Interrogatories to the other party asking specific questions about anything which is relevant to the case. Your spouse has 30 days to answer the questions you’ve sent to him or her. And the answers must be made under penalty of perjury.
3. Next is the Request for Production of Documents, which is exactly what it sounds like: it’s a request made by one party to the other for copies of the documents which will prove the other party’s contentions, or disprove them, as the case may be.
4. In more complex situations, your attorney may want to set up a deposition. A deposition is your attorney’s opportunity to sit down with a witness and ask him or her questions about the marriage. The questions and answers are taken down by a court reporter. Your spouse and his/her attorney have the right to be present. The witness may be your spouse or someone else who has information that’s relevant to the divorce. Depositions can be held at a lawyer’s office, the court reporter’s office or any other mutually agreed-upon location. The court reporter then prepares a written transcript of what was said, which can be used as evidence in court.
5. Psychological/custody/educational or drug and alcohol evaluations can also be ordered by the court if the situation warrants it. If a party alleges that his or her wife has some problem which should be considered in determining custody and visitation orders, the court can order all sorts of professional evaluations to be performed. These are often involved, lengthy and expensive.
TRIAL
Once the discovery phase of your case is complete and if you and your spouse still cannot come to an agreement, it’s time for trial.
We request a trial date by filing an At-Issue Memorandum which is a request that the case be put on the active list to be set for trial. The court will then notify the parties, through their attorneys, of a trial date and the dates that certain documents are due to the court.
At trial, you’ll see first hand the process you’ve undoubtedly seen on hundreds of episodes of “Perry Mason” or “L.A. Law”. But real life is a little different. .
Actual trials are very different from their television counterparts. Frankly, they can be very bland. There is no jury. There are no surprise witnesses. Attorneys don’t tear into witnesses. Witnesses don’t break down on the stand. There are no clever, emotional speeches by the attorneys.
Trial is mostly detailed information presented slowly and deliberately in a way which can often be confusing to the client. But don’t despair, we will carefully explain what is happening. And remember what we’ve said above, a divorce, and especially a trial, can be emotionally draining. Hang in there.
Once the trial is completed, the judge will issue his or her decision on all of the issues which you and your spouse weren’t able to resolve on your own. The decision will then be set down in a judgment which is prepared by the attorneys and your case will be over.
However, be aware that some of the issues which were argued at trial, most likely support and custody and visitation, can be considered by your judge again if circumstances require it. For example, if your or your ex-spouse’s income changes or your children’s needs change, you may want the judge to modify custody and visitation orders or support orders even after trial.
Parent and child cases (Non-divorce)
Parent and child cases (also known as Paternity Cases) are similar to divorces as far as the procedural steps which were described above. The documents are slightly different, however. First, the initial document which begins a Paternity Case is a Complaint to Establish Paternity, which can be filed by either the mother, father, or in the case of a Welfare reimbursement case, the District Attorney. Even if both parents agree that they are the parents of the child, this is the document which tells the court that that fact needs to be legally established. The process is nearly identical to the divorce process after that except that there are usually no property issues to be determined. Requests for Orders are the main method of obtaining temporary orders until final judgment is entered and if necessary, the case can proceed to trial. Ultimately a judgment is entered by the court.
Welfare cases
In situations where one parent is collecting welfare for the support of a child, the Department of Child Support Services may sue the other parent for reimbursement of the amounts paid out. In these situations, the County (represented by the Department) is the Petitioner and essentially sues for the amount that Welfare has paid out to support the child. These cases proceed much as other parent and child cases do, but the Department will not try to establish any visitation for the parent it seeks to get money from. That must be done through a Complaint to Establish Paternity.
CHILD CUSTODY AND VISITATION
Custody
There are two types of custody: 1. Legal custody; and 2. Physical custody.
When a parent is given legal custody, that means that he or she has the right to make the daily decisions about how the couple’s children will be raised. This includes decisions such as what school the child will attend, what religion the child will practice, who will provide after school child care, what non-emergency medical and dental care will be provided for the child, whether sex education will be taught to the child and when the child will be permitted to obtain a driver’s license. Legal custody may be given to either parent or to both. When the parents share legal custody, it is known as joint legal custody and the parents must work together in raising their children. If one parent is given legal custody, it is called sole legal custody and that parent has the sole power to make the decisions discussed above.
When a parent is given physical custody, that means that the children of the marriage will live primarily with that parent. This doesn’t mean that the other parent is not allowed to see the child. In fact, the parent with whom the child does not reside (the non-custodial parent) may often have the child for an equal amount of time as the custodial parent. Again there may be orders for joint physical custody or for primary physical custody or for sole physical custody. How physical custody actually works is determined by the visitation schedule and a client should not get too hung up on which phrase is used to describe physical custody, be it joint, primary or sole custody. The visitation schedule really controls how much time you will be able to see your children.
Visitation
Obviously, this is exactly what it sounds like. But you should know that the courts are very liberal in what they consider to be proper visitation. In some cases, the court may order no visitation (in very rare cases where the non-custodial parent is a direct physical or emotional danger to the child), supervised visitation (which means that the non-custodial parent can only visit with the child if there is an approved supervisor with them) , weekend visitation, block time visitation (extended periods with a parent), or any other arrangement which will ensure frequent and continuing visitation between the non-custodial parent and the child. The court strives to keep the relationship between a noncustodial parent and the child strong and alive.
Mediation
When custody and visitation issues exist in the divorce and can’t be resolved by the parties, the courts require that the parents attend mediation before they take the problem to a judge. The mediator is an employee of Family Court Services, a part of the court system. He or she helps the parties to make their own agreement. The mediator can’t order the parties to adopt any given custody or visitation arrangement. Attorneys are not permitted to participate in the mediation. The mediator doesn’t deal with financial or property issues.
If the parties come to an agreement, the mediator writes it up, has all of the parties and their attorneys sign it and then submits it to the court to be approved and signed by a judge. The agreement then becomes the order of the court with regard to custody and visitation issues.
When you go to mediation, keep in mind that you are not under any obligation to give up any rights which you feel you are entitled to. If you can’t come to an agreement that you want, or something close enough for you, do not agree. Whatever is discussed in mediation can’t be discussed in front of a judge. So your spouse isn’t permitted to claim in front of the judge that you were uncooperative or difficult. The court will simply decide custody and visitation as if the mediation never happened.
The courts also require that parents attend a parenting class before judgment can be entered. This is a one time class that gives parents ideas on how to deal with various situations that arise while raising their children.
CHILD SUPPORT/SPOUSAL SUPPORT/FAMILY SUPPORT
There are three types of support: child support, spousal support and family support.
Child support is strictly for the support of the child and is not tax deductible for the one paying the support. It is based upon a state guideline formula, calculated by a computer program, which basically takes into account the income of each parent, the tax filing status of each parent and the time each parent has with the children. There are various other factors which figure in, but those are the basic factors.
Spousal support is support paid by the spouse who earns more to the former spouse who earns less. Spousal support is intended to give the receiving spouse the opportunity to get back on his or her feet after having been married. If the marriage was longer than ten years, the court cannot technically terminate its authority to award spousal support, but that does not mean that the court must award spousal support. Spousal support is tax deductible for the party that pays it. Either husband or wife may request spousal support, whether or not he or she receives it simply depends on the individual situation.
Family support is a combination of child and spousal support. It gives the paying party the tax advantage of being able to claim the entire amount as a tax deduction.
WAGE ASSIGNMENTS
Once the court has established what the required support will be, the party entitled to the support payments has the absolute right to garnish the wages of the other party to collect those amounts. This is known as a Wage Assignment and it means that the support is automatically taken out of the paying spouse’s check each pay period by his or her employer. No one can stop the garnishment without the agreement of the receiving party.
Not every case will require a Wage Assignment. In many cases the party paying support simply does it voluntarily and no Wage Assignment is ever requested by the receiving party.
POST JUDGMENT PROCEEDINGS
Generally, once a judgment has been entered by the court, the case is final. However, certain things may happen after judgment has been entered which may require a change in custody, visitation, or support. There must be a change of circumstances in order to go back into court and ask for modification of the orders contained in the judgment. A change in circumstances can be, for example, that one parent is doing things which would justify a change in custody (such as drug use or physical or emotional abuse of the child). Or it could be that either parent has had a change in income which would change the support amount or any number of other things.
Post judgment proceedings can also be instituted to enforce the provisions of a judgment. For instance, if one party was ordered to release certain property to the other and refuses to do so, you can go back to court and ask the court to enforce the terms of the judgment.
CONCLUSION
Family law litigation is a long and difficult process for all involved, including the lawyers. Be patient, even though the road will seem long and difficult. Eventually, the court will work things out for you if you can’t work them out between yourself and your soon to be ex-spouse.
Also, keep in mind that this type of litigation is usually hardest on the children. They often do not understand what is happening and can blame themselves for the situation. Make sure they understand that it is not their fault and never, never, discuss the court case with young children. They should be left out of it completely whenever possible.
You will undoubtedly have questions which pertain to your particular case. Feel free to give us a call. Remember the half-hour consultation is always free.
We hope that this will have at least explained the general process to you. Thank you for your attention.