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There are several options for couples who are considering divorce in California, one of which is to seek legal separation instead of or prior to divorce. There are a number of reasons spouses may choose this route, for example to retain eligibility for medical insurance, retain married status for religious reasons, or avoid the responsibilities of debt, spousal support, etc. In essence, legal separation allows for a couple to deal with all of the issues contained in a divorce while retaining the legal status of being married.
For a legal separation, there is no requirement that one of the parties be a resident of California for six months or three months in a county for which the proceeding is being filed. In other words, Family Law Section 2320(a) does not apply to legal separation proceedings. If the ultimate goal is divorce (i.e. legal dissolution), the parties may start with legal separation if they do not yet have the resident requirements for a dissolution; once they reach the required minimum resident standards, parties can change the legal separation to a full divorce. The court still renders judgments in legal separations, including child support, spousal support, visitation and custody, and the division of property.
Once legal separation is finally adjudicated, the parties will no longer be subject to community property division rules, which means the debts they acquire from that point forward will not be incurred by the other party. In California, the only ground on which dissolution must be obtained is irreconcilable differences, which is found in Family Code 2310(a). Fault is not a relevant consideration in California.
A summary dissolution is another option for couples who are considering divorce. A marriage may be dissolved by a summary dissolution if there are no children, the marriage has lasted no more than five years, neither party has interest in real property, there are no unpaid obligations in excess of $4,000, and the total market value of community property assets is less than $25,000, excluding automobiles and encumbrances. Parties will have to agree setting forth the division of assets and liabilities. Additionally, according to Family Code Section 2500, the parties may waive any right to spousal support and irrevocably waive the right to an appeal.
In a summary dissolution, no court appearances are required and it’s an inexpensive procedure. An attorney may help by providing guidance in determining the expenses of the community property, drafting and explaining the required property settlement agreement, and completing the mandatory pleadings. In order to file for a dissolution, the court must have personal jurisdiction over the parties, which means either spouse must be domiciled in California. Even if the other spouse does not live in California, a California court can still have jurisdiction if the other spouse is a resident (this was decided by the case of Marriage of Gray (1988) 204 CA3d 1239, 1250.
The dissolution proceedings start with preparation of summons in a petition. If there are children, additional documents will need to be filed under the Uniformed Child Custody Jurisdiction and Enforcement Act. These documents must be personally served by a third party on the other party. Financial disclosures must be prepared and served as well. Temporary orders might be sought and obtained pending final dissolution. These temporary orders include child custody visitation, child or spousal support, and even attorney fees and costs. Just because the petition is filed does not mean that the court has to make all of the decisions; the parties may choose to settle by executing a marital settlement agreement. If contested, the court will decide the issues on which the parties can’t agree.
Spouses have a duty of loyalty (i.e. a legal fiduciary duty), but it is not uncommon for one side to react negatively once a petition for dissolution is filed. Therefore, it may be wise to change the passwords on personal electronic devices or social media accounts before filing for dissolution. It may also be wise to obtain copies of bank account statements, life insurance policies, and credit card statements, as this will ensure that if the respondent liquidates assets or incurs new debts after being served, the petitioner will have proof of the status of their accounts prior to separation. In turn, this will make it easier to obtain credit and equalization at the time the assets and liabilities are divided by the judge or by an agreement.
If child custody will be an issue, there should be a plan in place prior to papers being filed. This is important, because the judge will be looking to do what is in the best interests of the child when deciding who will get primary custody. An important factor in this determination will be to maintain consistency, so the custody and visitation pattern that’s established before the court proceedings will have a great impact. The court will typically keep the status quo at least until there is a contested hearing after mediation.
Mediators will also consider the current custody arrangements and will usually recommend they stay the same for the duration of the temporary orders, unless that would not be in the best interests of the children. Therefore, the person who is contemplating a divorce will have to decide whether or not they are going to leave the house and essentially give primary custody of the children to the spouse who stays behind. If they do that, they will have to recognize that it will be a little bit more difficult to obtain primary custody in the future.
The courts do not give the initial filing party an advantage; both sides have a constitutional right to due process. Disclosure and discovery obligations apply to both the petitioner and the respondent in equal measure. The advantage of filing first is that the petitioner may have more control in scheduling and preparation, and will be in a proactive position rather than a reactive one. There is a 30-day deadline to respond to a petition, otherwise a default judgment may be entered. Once served with the petition, the respondent should not wait until the last minute to consult counsel, as this may leave them with an insufficient amount of time to prepare their case.
If the parties cannot reach an agreement, the issues will have to be decided by the judge after giving each party an opportunity to present their case. Each side has rights and obligations for disclosures, and there are mechanisms in place for parties to conduct discovery, such as interrogatories and formal discovery requests. If there are many assets that need to be divided, the parties may choose to hire experts such as forensic accountants or real estate appraisers.
Preparation in complex cases necessarily means that the case will not be resolved as quickly as non-contested matters. Even if the parties are willing to cooperate, the necessary discovery and evaluations will still need to be conducted to ensure that a settlement agreement can be reached. While it is less costly for both sides to cooperate, it is not required.
If only one spouse wishes to divorce, the other cannot prevent the dissolution. If the uncooperative spouse refuses to participate, a default judgment can be obtained. This is the fastest way to resolve the matter. By refusing to file an answer, it will mean that the uncooperative spouse will not have a say in the process. A default judgment is not just for uncooperative spouses. If both spouses agree on how to settle the case, then a default judgment can be entered along with the marriage settlement agreement. This saves the respondent from having to pay their own filing fee. The spouse who would prefer to not file a response should seek legal counsel to properly assess the ramifications of this option.
If parties cannot agree with respect to the division of community property, then a judge will have to dictate that, in accordance with the law, the community property must be divided equally. However, if the parties agree to an unequal division of community property, the court will not object. Most dissolutions can be accomplished under 5k but it could go higher depending on the complexity of the case and ” depending on whether or not your case ends up going trial and whether that trial requires experts, like child custody evaluators.
A divorce is initiated by filing a summons, which includes California form FL-110 and petition FL-100. If there are children from the relationship, a declaration stating the children’s residence over the past five years must be filed under the Uniformed Child Custody Jurisdiction Enforcement Act. Both the petitioner and responding party will be required to exchange income and expense declarations and a schedule of assets, including separate property. Both sides have a right and obligations for additional discovery if they so choose. If there are retirement plans, they will need to be joined to the litigation so that the court can have jurisdiction to divide them accordingly.
The retirement accounts will need to be evaluated and a qualified domestic relations order will need to be prepared in accordance with the rules established by the retirement account administrator. Temporary orders may be issued pending final resolution of the case, including temporary custody and visitation arrangements, child and spousal support orders, and attorney fees. The parties will have to reach an agreement or have a trial to determine the division of property and liabilities. The date of separation must be either agreed to or litigated, because it is critical in the determination of when additional liabilities no longer belong to the community.
While temporary spousal support will usually be ordered on the set guidelines, the ultimate spousal support amount cannot be based simply on a mathematical formula, but rather on the factors set forth in Family Code Section 4320. According to California Rule of Court 5.390(a), the court may bifurcate (i.e. separate) any one of those issues before the others are decided. What this means is that the court may sever for early decision the issue of dissolution of marriage status and expressly reserve jurisdiction for later determination of all the other pending issues. This is also authorized by Family Code Section 2337(a) and (f).
According to Family Code Section 2339, there is a six-month plus one-day waiting period before a divorce becomes final. The time starts when the petitioner serves the summons and petition upon the other spouse (not on the date of the filing) or on the date of the appearance of the responding party—whichever occurs first. California Civil Procedure Section 583.210(b) states that proof of service must be filed within 60 days of the date on which the summons was filed. A response with a petition must be filed within 30 days and a hearing will be set to appear in court. Family Code Section 2020. If no response is filed, a default judgment may be signed. The petitioning spouse has 60 days from the date of filing the petition to serve preliminary declarations of disclosures identifying all assets and liabilities, as well as an income and expense declaration. Family Code Section 2104. The party responding to the summons also has 60 days to comply with the disclosure requirements.
The local rules of court typically require the parties to meet and confer to see if they can come to an agreement. If there are no contested issues or the parties come to an agreement, the case can be resolved relatively quickly. If a trial has to be set, it can delay the final judgment because the parties will need to conduct discovery to gather the evidence that will be used in trial. In addition, third parties may need to be joined to the case, such as pensions and retirement plans, so the court may divide them according to the time rules. If the parties cannot agree, the court will set a trial for a few months out depending on the court’s availability. The court will also set a case management conference to ensure the parties are ready before confirming the trial.
In California, the legislature has distinguished between legal custody and physical custody. Sole legal custody means one parent has the right and responsibility to make decisions relating to the health, education, and welfare of the child. Family Code Section 3006. Sole physical custody means that a child resides under the supervision of one parent. Family Code Section 3007. The exclusive custody order does not mean that the other parent’s rights are terminated; the other parent still has rights to visitation as ordered by the court.
Pure joint custody means that both parents have authority to supervise the children and that physical custody is shared. Family Code Section 3002. Joint legal custody may be granted without granting joint physical custody. Under this option, both parents share decision-making responsibilities even if the child resides with only one parent. Family Code Section 3003 and 3085.
Finally, there is joint physical custody, under which each parent has a significant period of physical custody. In awarding joint physical custody, the court must ensure that the child has frequent and continuing contact with both parents. Family Code Section 3004.
During the pendency of the family court proceedings, the court is empowered to make an order for custody that the court considers necessary or proper. Family Code Section 3022. The courts are guided by two principal policy directives, the primary being to ensure the child’s safety, health, and welfare when making determinations in the best interests of the child. Family Code Section 3020(a). The second public policy is to ensure that children have frequent and continuing contact with both parents. Family Code Section 3020(b).
When there is no court order in place, either parent may have custody. Technically, if the children are with one parent, that parent can deny the other visitation. Law enforcement will not choose sides and will tell the parties to obtain an order before they intervene unless there is a danger of abduction. Refusal to co-parent—even when there is no order in place—will place that parent at a disadvantage when the matter later has to be decided by the judge. This is because of the legislative policy that the court shall award custody to the parent who, among other factors, is more likely to allow the child frequent and continuing contact with a noncustodial parent, Family Code Section 3040(a)(1).
If there is no agreement between the parties regarding custody, the court will generally require mediation. During the process of mediation, a counselor will listen to each side and file a recommendation to the judge. The judge will either adopt or impart that temporary custody order; if the parties don’t agree, they can set forth a trial to argue why that temporary order should not be made permanent.
Family Code Section 3042 requires that the court consider the wishes of a child who is of sufficient age and capacity to reason so as to form an intelligent preference as to the custody or visitation arrangement. However, children will not be required to participate.
The 2013 case of Lan J v. Peter M (2013) 213 Ca4th 1072, 1101 held that it was an error from the trial court not to give any appreciable weight to a nine and a 13-year-old child’s complaints about grandparent visitation. Children aged 14 or older who wish to address the court regarding visitation or custody must be permitted to do so unless the court determines and states on record the reasons it would not be in the child’s best interests, which is stated in Family Code Section 3042(c). In the 1976 case of Marriage of Mehlmauer (1976) 60 CA3d 104, 110-111, the court held that despite the child being 14 years old, the boy did not meet the Section 3042(c) standard under those facts. The point is that age alone will not determine whether or not the court believes a child has enough maturity to express their views.
If the court decides that it is not in the child’s best interests to be called as a witness, the court must provide alternative ways to receive the child’s input under Family Code Section 3042(e). Other means include information provided in a report from a child custody recommending counselor under Family Code Section 3183(a), appointment of a Family Code Section 3110 child custody evaluator, or any admissible evidence provided by the parents or witnesses who can express the child’s preferences.
If the agreement is in the form of a court order and one parent is not following the agreement, the other parent can seek assistance from law enforcement. The police will enforce the specific custody and visitation plan in the order. The uncooperative parent may be subject to criminal charges such as disobeying a court order under Penal Code Section 166(a)(4), which carries a penalty of up to 180 days in custody. A more serious charge can be prosecuted under Penal Code Section 278. This charge may be filed as a misdemeanor with a maximum sentence of one year, or as a felony punishable by probation with up to 364 days in custody, or no probation with either a two, three, or four-year incarceration. To be guilty of section 278 of the Penal Code, the prosecution must prove that the defendant took, detained, concealed, or enticed a way of minor child, the defendant did not have a right of custody of the child, and the defendant acted maliciously and with the intent to detain or conceal the child from a lawful custodian of that child.
Criminal charges can only be enforced by the district attorney, but parents can file an action for contempt with the court to enforce the order on their own without the assistance of a district attorney. A request to have a non-compliant parent pay attorney fees can be requested when filing the contempt order in order to ensure that the order that was in place may be enforced.
A request for a child support order may be made at the initial filing for dissolution. The order may be made retroactively to the date of filing the petition. This means that once a child support order is in place—whether temporary or permanent—the payer may owe arrears that must be paid. Family Code Section 4009. Retroactivity will not be applied for a time period prior to filing the petition. Temporary orders will be in effect until modified or revoked by the court or by operation of law such as when a child turns 18 and is not a full-time high school student. Family Code Section 30601.
An expedited child support order may also be obtained on what is known as an ex parte basis requiring that the support of the minor children during the pendency of the action be ordered. Family Code Section 3021. The amount will be determined under the guideline formulas set out under Family Code Section 4055 and the minimum amount is specified in Section 4055 and set forth in the moving party’s application, which is done by filing Form FL-380, an application for an expedited child support order, an income and expense declaration, a worksheet setting forth the basis of the amount of the support requested, and a proposed expedited child support order. Family Code Section 3022. The effective date of the expedited child support order is 30 days after the service of the required papers. d 3624.
California Family Code Section 4053 states that guideline child support is intended to allow the children to share in the standard of living of both parents. It specifically states that the child may, therefore, appropriately improve the standard of living of the custodial household to improve the lives of the children. The statute also states that it is presumed that a parent having primary physical responsibility for the children contributes a significant portion of the available resources for the support of the children. Since the family code adheres to the principle that a parent’s first and principal obligation is to support the parent’s minor children according to the parent’s circumstances in life, the support ordered will reflect the parent’s standard of living, even if the custodial parent incidentally benefits. The payer parent may be ordered to make payments into an interest-bearing trust account as a security for the court-ordered child support in the event the obligor parent defaults (Family Code Section 4560). However, there is no statutory authority for the guideline support to be placed in the trust under the control of the paying parent.
The 1997 case, Marriage of Chandler (1997) 60 CA4th 124, 128 criticized setting up a trust account that was set up where the custodial parent who would be under the fiscal control of the supporting parent. In a 2011 case, Marriage of Cryer 198 CA4th 1039, 1052-53, the court rejected an order to show cause requesting an account of how the child support funds were used or requiring that the support funds be put into a trust account. In that case, the father accused the mother of using the child support to pay attorney fees for her privately-retained dependency counsel and experts in that matter. The Marriage of Cryer referred back to the Chandler case limiting imposing a required accounting or trust to cases in which there is a “strong showing of necessity, buttressed by specific, detailed, factual findings.”
The Marriage of Cryer case held that if an accountant requirement would have been imposed in that case, the mother would have been “hamstrung” in her attempt to make household expenditures. The court went on to say that even assuming such an order might have been appropriate, the father failed to meet the level of detail and evidence necessary to impose such an extreme order. The father presented no evidence that the mother actually was paying a dependency counsel with the child support funds. An order imposing a required accounting or trust would have undercut the trial court’s decision for modifying support by only $2,000.
Ultimately, the court held that it was not going to definitively say that in all circumstances, requiring an accounting or trust to support funds would necessarily be improper. While there is no statutory requirement for accounting, there may be circumstances where an accounting would be proper, but this would be possible only in cases where there is a strong showing of necessity buttressed by specific, detailed, factual findings compelling the need to limit access to support funds as specified in the Chandler decision.
All child support orders are accompanied by an immediately effective earnings assignment order. Family Code Section 5230. The court order for support orders the employer of the obligor to pay the other spouse that portion of the paying parent’s earnings due (or those that are to become due in the future) sufficient to pay the amount covered by the order. Service on the employer of the assignment order may be made by first class mail. Family Code Section 5232. Every order to pay child support may also require the paying parent to post a child support security deposit up to one year’s child support. The court may order the paying parent to establish that trust account. Family Code Section 4560.
California Child Support Services may also assist with the enforcement. Child support services are available to the general public through a network of 52 county and regional child support agencies. This agency has the various mechanisms to enforce the orders, such as withholding tax refunds, suspending driver’s licenses, and levying bank accounts. The party may also try to enforce it by filing a contempt order.
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