Family law is the branch of law that deals with many of the issues relating to families, including divorce, paternity, and domestic partnership cases. In Riverside County these cases are heard in the Family Law Division of the Riverside Superior Court. Each of these cases is as individual and unique as the people who have come to the Court. However, the Court may not be aware of the important and legally significant facts that each judge must have in order to make a fair decision regarding the specific issues relating to the parties in each case. It is the responsibility of the parties and their attorneys to present that information. A party who can present the relevant information briefly and clearly, with documentation to support it has an advantage over a party who does not communicate as clearly. An attorney can help his or her client communicate the important and relevant information to the Court so that the Judge knows your position before you even walk into the courtroom.
In California, the Court refers to divorce as a “dissolution” of a marriage or domestic partnership. It begins when a party files a Petition for Dissolution. In a dissolution, the Court can make decisions regarding child custody and support (if there are children from the relationship), spousal support, division of assets and debts, division of the retirement plans, orders regarding what happens with the family home, and attorneys fees, and many other issues.
In each and every case, the judge needs to know many of the facts regarding your situation in order to make a decision that is fair and equitable. Under the law, it is the responsibility of the party to give these facts to the Court. What is more difficult for a party to manage is presenting the facts – in writing – well in advance of a Court hearing. Often a Judge is not allowed to consider “new” facts that are spoken or stated for the first time at a hearing.
A paternity case can be filed by a biological parent who wants child support from the other parent. It could be filed by a person who believes he is one of a child’s parents and who wants to obtain custody or visitation rights to the child. Very commonly, though, it is filed by a department of the government called the Department of Child Support Service (usually referred to as DCSS) which is trying to recover money from one or both of a child’s parents to reimburse the County for cash aid or health care provided to a child.
If a person suspects that he might not be the child’s parent, there is only a short time to request a blood test (genetic testing) to determine paternity. Once the statutory deadline has been allowed to pass, the parent may be ordered to pay support for a child until high school graduation or the age of 19, whichever comes first – even if the child can be proven NOT to be any relation at all. Paternity rights can lead to tremendous emotional and financial responsibilities.
Because so much of the law relating to paternity cases has deadlines, please consult an attorney regarding your rights and your possible liabilities at the earliest time possible.
Often clients inquire about legal separations, as opposed to a dissolution (divorce). A legal separation is a relatively rare procedure which is very similar to a dissolution, except that neither party is free to remarry after entry of a Judgment of Legal Separation. Legal separations are used when a party has not lived in the State or County long enough to file a dissolution, or when the parties agree to a legal separation instead of a divorce. Because it is unlawful for either party to remarry after a legal separation, if one or both of the parties wishes to change the legal separation to a divorce, one of the separated parties has to go back and file a Petition for Dissolution. The procedure is rare enough that a party should obtain legal advice prior to filing a Petition for Legal Separation.
Sometimes a marriage is not valid. These invalid marriages are called void or voidable marriages. For instance, if one of the parties was still married to another person when the marriage took place, the second marriage is probably invalid. (The validity of the second marriage might be salvageable by a Family Law court judge under certain circumstances.) In other cases, if there was a “fraud” that goes to the “heart” of a marriage, it might be considered to be a voidable marriage. However, the Court requires that a party who has entered into a voidable marriage come to the Court and ask for the annulment within a reasonable period after learning of the fraud.
Please consult an attorney prior to filing a request for an annulment. The attorney can prepare you for the type of personal or intimate questions that the judge might be forced to ask before granting an annulment. Sometimes the testimony about these personal things may be made in writing, instead of made in an open courtroom, before members of the public.
Whether your case is a dissolution of marriage or dissolution of a domestic partnership, whether it is a paternity case, or a legal separation, the Court will probably need to make orders regarding issues that are present in your case. A brief discussion of some of the more common and important issues are as follows.
The Court has the power to grant protective orders called restraining orders. If the person requesting protection makes a declaration contains allegations which are serious enough and specific enough, the Court will either set an emergency hearing (an ex parte hearing) or grant the order for a short period of time (from a few days up to about 25 days). This initial order is called a “temporary” order, and violating it can have serious, even terrible consequences. For persons in some careers, a TRO can prevent them from being employed while it is in effect. If you, or someone you know is informed of a “temporary” restraining order (sometimes called a TRO), it is essential that the person consult an attorney immediately. Do not violate a TRO for any reason, not even to try to peacefully persuade the protected person to drop it!
At the next hearing, the court can dismiss the “temporary” order, keep the temporary order in effect a little longer, or make it permanent (a permanent order is for up to five years, and can be extended). A permanent order can be devastating if the restrained person has children, or has a career or hobby where he or she carries a firearm.
Whether you need the protection of a restraining order or you need to oppose a restraining order, you will benefit from consulting an experienced family law attorney as soon as possible. If necessary, request a continuance of the court hearing so that you can get the time to consult a lawyer before answering any questions about the alleged incidents. The effects of a restraining order can be devastating to your chances of custody of children for as long as five years. A permanent restraining order, even if only granted for a shorter period such as a year, can have unexpected negative effects on gun ownership, gun use, and even employment, adoption, and child custody, long after the expiration of the restraining order.
Legal custody of a child is a terribly misunderstood concept. It does not refer to any of the time you get to spend with your child. It refers, instead, to the right to make legal decisions about your child. Should your child be vaccinated? Should your child attend a private religious school or public school? Would your child benefit from counseling, medical treatment, or braces? If you don’t have legal custody, you don’t have the right to consent to medical treatment, veto the child’s attendance at a religious school, or make any other major decisions regarding your child.
Unless a parent is disabled because of absence, drug addiction, alcoholism, or serious mental illness, or has serious criminal convictions, the court usually grants legal custody to both parents. If you believe that the other parent is not capable of exercising legal custody in the best interest of your child, or if someone is alleging that you should not have legal custody, please consult an attorney to learn whether you should seek or oppose an order of sole legal custody.
Child visitation refers to the schedule under which you and the other parent share your child. Sometimes a visitation is as general and unspecific as the agreement that a parent can visit the children he or she wishes to visit. For other cases the order for visitation specifies the exact dates and the specific times of a visit, with penalties or consequences for lateness. In the extreme cases, the visitation can occur only in the presence of a professional visitation supervisor.
A visitation schedule can be either a helpful guideline or an exercise in frustration. An attorney can help you communicate about special scheduling needs, and help you prepare an effective parenting plan to the Court.
Voluntary Declaration of Paternity (The State POPS Program):
A copy of a signed voluntary declaration of paternity, which may have been signed at the hospital following the birth of the child, has the effect of a Judgment of Paternity. If you have a copy of your signed voluntary declaration of paternity, you can go on the “fast-track” and get custody and visitation orders more quickly than a person who does not have the declaration.
If you have lost your copy of the voluntary declaration of paternity, or your copy is in the possession of the other parent, you can get another copy by requesting it. The address for the POP program is available on-line.
The calculation of child support is a complex mathematical formula that takes into account the amount you earn, the amount earned by the other parent, the number of children that each of you is required to support, the timeshare that each of you has with your children, and many other factors – even your tax status and your number of deductions is considered.
However, there are so many factors that should be considered, and each factor usually has an effect, that failure to consider all the relevant factors could result in you paying hundreds to thousands too much or too little for child support.
It is a wise precaution to consult a lawyer about what your potential child support order could be. However, the attorney’s advice about child support can only be as accurate as your information! If you tell the attorney that your income is $1,200 per month, but your actual paycheck is $450 per week before taxes, and $309.00 per week after taxes, your actual income is $1,954.33 per month ($450 X 52 wks per year, divided by 12 months per year). This accidental misunderstanding could cause the attorney’s estimate of your child support to be wrong by literally hundreds of dollars a month. Take a copy of your most recent paystub and your last year’s tax return, and, if possible, a copy of the other parent’s most recent paystub for the most accurate estimates.
Be prepared to tell the attorney the exact amounts that you are ordered to pay for support for other children, the exact amount paid to your child’s daycare provider, even the amount that you pay for health insurance and what portion of your house payment is interest, and a new spouse’s income!
Every one of these facts is supposed to be considered in a child support order, and there are many more factors that have omitted because of space considerations. Some of the factors increase the child support orders, and other factors decrease the child support. The judge cannot take the time to ask each party every question that might reveal a fact that would affect the child support order in a specific case, so it is up to the party to obtain the information that will that could affect your child support. A consultation with an experienced family law attorney is the fastest way to for a person to find out what information is important to present to the Court to get the fairest possible support order for a child.
Spousal or Partner Support (Temporary support and permanent support)
If you were married to the other party or you had registered as domestic partners, the Court may have the power to order one of you to pay spousal support to the other on a temporary or permanent basis. Temporary (orpendente lite) support is the name given to support paid to the other spouse or partner during the period between filing of the dissolution and the entry of the Judgment of Dissolution. Permanent support is the name for spousal or partner support paid after the Judgment of Dissolution is entered – even if the period for the support is only a month.
The temporary spousal support order is usually based on a formula, like child support, as discussed above. There are many factors that affect spousal support in a way very similar to the factors discussed in the child support section previously. However, there are additional factors that affect spousal support, and some that even bar the court from ordering spousal support.
Permanent support poses even greater difficulties. The Court also considers the length of the marriage or partnership in making a permanent support order. Though permanent support is usually lower than the temporary support, it is NOT based on a formula. It is based on an entire list of “factors” which can be found in Family Law Code section 4320. An experienced family law attorney can assist you to present the facts that the Court uses to make findings regarding each of the factors in this code section. A support order just $100 per month higher or lower makes a $12,000, in a ten year period.
Division of Assets and Debts (Dissolution of Marriage or Domestic Partnership only)
California is a “no-fault” state. This statement means that, regardless of who is at fault for the break-up of the marriage or domestic partnership, the judge in the family law court will try to equally divide the assets and the debts between the parties. This means that if one party gets a house worth $200,000, on which the parties owe $100,000, the Court will award the other party $100,000 of value in other assets.
The Court cannot be successful in making an equal division of the assets (things of value) and the debts unless the judge has accurate information regarding the value of each of the assets, and the amount of the parties’ debts. As in the issues previously discussed, it is the responsibility of the parties to give this information to the Court. Failure to give the correct information could result in an incredibly uneven division of assets and debts. For example, if the parties agree that the family home is worth $250,000, and that there is a $100,000 mortgage, and that it should be awarded to the petitioner, then the respondent must get $150,000 in other assets to equalize it.
But if the petitioner tries to sell the house and discovers that all it can be sold for is $180,000, then the petitioner gave $150,000 in assets to the respondent in exchange for $80,000 in equity in the house. If the parties and the judge had used the actual, current, fair market value then the respondent would have received $80,000 in assets, and the parties would have divided the other $70,000 in assets equally.
Think of the house, the mortgages, all the rooms of furniture, the coin collection, the vehicles and the loans on them, the retirement plans, the small business, the pension plan, the IRA’s, the IRS lien, and the credit cards. Giving the Court all of the information it needs to
to fairly divide the assets and debts can be a huge task. In addition, there are special rules about debts before marriage, inheritances received during marriage, and even gifts during marriage.
An attorney can help you find ways to obtain this information, organize it, and present it to help the judge make a decision that you believe is fair and just.
If one spouse or partner earns significantly more than the other partner, or has control of more assets or savings than the other spouse, the Court may order payment of attorneys fees to the lower income or lower asset spouse/partner’s attorney. However, before the Court can make these “need-based” support order, the Court usually requires that both parties file income and expense information before making an attorney fee order. Frequently, in cases where the incomes are low, the Court waits until the end of the case to make the attorneys fees order.
This is why a party frequently needs to borrow money from friends or family to retain (hire) a lawyer. If you have fairly good information about both parties’ income and obligations, an experience family law attorney can advise you whether the Court is likely to make an attorneys fees order.
The Court has special powers to make an attorney fees order when one party or the party’s attorney acts in a wrongful manner. There are called Family Code section 271 fees.
A party cannot be awarded attorneys fees if the party did not hire an attorney!
Coming back to Court after Entry of the Judgment
Sometimes things change after the Judgment is entered. If the child goes to live with the other parent, or enters the military, then the parties may need to modify child support. If one of the parents become totally disabled and loses 70% of his or her income, child and spousal support may both need to be modified. If the IRS says that one of your tax deductions from a tax return during the marriage is disallowed, there may be a new debt that needs to be divided.
Consult an experienced family law attorney and see if you need to go back to Court to modify the Judgment. If you and your former spouse/partner agree, the modification can be written, signed, and made an Order of the Court quickly and inexpensively. If not, you may have to file a request for the assistance of the Court.
However, if you do need to ask the Court for help, the procedure is similar to the initial dissolution filing. You cannot just slip a copy in the mail to your former spouse/partner’s previous lawyer. The Court will not hear your case. Instead your former spouse or partner has to be personally served with your Court filing by around a month before your court hearing. (This deadline varies depending on whether your spouse is in the state or out of state. If you do not know what personal service is, please consult an attorney or you risk wasting several months before the judge can hear your request.)
Prenuptial Agreements and Postnuptial Agreements
Most people are somewhat familiar with prenuptial agreements. However they are extremely difficult to do correctly, they cannot effectively be done unless both parties have an independent lawyer of their own, and they must be completed far in advance of the wedding. This combination of factors makes a legally effective prenuptial agreement relatively rare among except among the very wealthy.
But there is a low-cost and effective alternative. The post-nuptial agreement avoids most of the strict requirements of the prenuptial agreement. If you and your spouse or partner want to make agreements, you are free to do so! If this is a second marriage for both of you, and each of you wants your home to go the respective sets of children, this can easily be accomplished with a post-nuptial agreement. A post-nuptial agreement can deal with issues of property and spousal support, and can be a very valuable way of making sure that agreements between you and your spouse or partner are honored.