Family Law Q&A
WHAT IS FAMILY LAW?
Family Law handles cases that involve:
- Disputes over marriage or domestic partner relationships
- Disputes over property and children between parents and domestic partners
- Violence between family, friends or acquaintances (i.e., Domestic Violence Restraining Order, Civil Restraining Orders)
Specific types of cases are, for example:
- Child Custody
- Child Support
- Child Visitation
- Dissolution of Marriage (Divorce)
- Spousal Support (aka Alimony) or Domestic Partner Support
- Domestic Violence Restraining Orders
- Legal Separation
- Nullity of Marriage (Annulment)
- Parentage (Paternity, i.e., establishing parental relationship for children born out of wedlock)
WHAT IS DISSOLUTION OF MARRIAGE (DIVORCE)?
Dissolution of marriage (divorce) ends a marriage. The same proceeding can be applied to end a domestic partnership. It restores the parties to single status. During the process, the court can issue order regarding, amongst other things:
- Spousal Support (Alimony)
- Child Custody and Visitation
- Child Support
- Determination and division of community and separate property
- Determination and division of community and separate debt
WHAT IS THE BASIC PROCEDURE FOR DIVORCE?
Dissolution begins by one party (petitioner) filing a Petition for Dissolution and having a Summons issued by the court clerk. The other party must be served personally with the Summons and Petition. The responding party (respondent) has 30 days from the date service to file the necessary paperwork to respond to the Petition. If the respondent does not answer within 30-days, the petitioner may request an entry of default and the divorce can be finalized without the participation of the respondent.
If the respondent files a response in time, the case can proceed as a contested or uncontested divorce.
A contested divorce is when:
- The parties are unable to agree on some or all issues;
- Unresolved issues must be settled by the court after hearing/trial; and
- Judgment is based upon the settled issues and/or court determinations.
An uncontested divorce is when:
- The parties are able to agree on all issues that need to be resolved; and
- Judgment is submitted and signed by the court based upon the stipulated judgment of the parties.
*Additional information is contained on judicial council form FL-107 Info Regarding Steps to Divorce
HOW LONG DOES IT TAKE TO FINALIZE A DIVORCE?
It takes at minimum 6 months and 1 day to obtain judgment for divorce. The clock starts ticking when you serve your spouse with the Petition for Dissolution and Summons. This waiting period is typically called a “cooling off period”. It is the period of time allowed for a married couple to reconcile marriage. However, if there are any issues involved in a divorce, the time to finalize a divorce can be much longer. The time varies from case to case, depending upon the complexity of issues, and can last anywhere from 6 months plus 1 day to years.
WHAT IS SUMMARY DISSOLUTION OF MARRIAGE?
Summary dissolution of marriage can be used to end a marriage without a court appearance. All of the following requirements must be met in order to qualify for summary dissolution:
- The parties have been married less than five (5) years as of the date of separation.
- Have no children together that were born or adopted before or during the marriage and wife, to her knowledge, is not pregnant as of the date the action is filed.
- Neither party has any interest/ownership in real estate.
- The couple does not owe more than $6,000 total for debts acquired since the date of the marriage. The $6000 amount does not include vehicle loans.
The married couple jointly signs the necessary paperwork and the originals are filed with the Court. After waiting six (6) months, either party can file the document requesting that the marriage be ended.
WHAT ARE THE GROUNDS FOR DIVORCE?
California is the first state to enact law permitting the dissolution of marriage based upon no fault. This means that the reason for divorce has no bearing upon the substantive issues that needs to be resolved in the divorce (e.g., spousal support, division of community assets, etc.). The most common ground for dissolution of marriage is irreconcilable differences.
WHAT IS LEGAL SEPARATION?
Legal separation is a similar process to dissolution of marriage, except that the parties are not returned to the status of being a single person. A legal separation is for couples that do not want to divorce but want to live apart. It does not end the status of marriage. You cannot remarry or enter in a domestic partnership if you are legally separated. With a legal separation, the Court can issue orders about:
- Child Custody
- Child Visitation
- Child Support
- Spousal Support
- Community and Separate Property
- Community and Separate Debt
WHAT IS NULLITY OF MARRIAGE (ANNULMENT)?
Nullity of marriage (annulment) restores people to the status of unmarried persons. Certain conditions must be met before the Court can void the marriage. The person who initiated the case will have to prove that a least one of the conditions has been met before the Court will grant the nullity of marriage. The Court can also issue orders regarding property and debt division, custody and support.
WHAT IS COMMUNITY PROPERTY LAW?
California is one of nine states that have community property law, which is a system to categorize assets and debts obtained during marriage and divide them equally between the parties. Community property law treats the marriage as a single economic unit, similar to a business partnership. Community property is any asset acquired or income earned during marriage. Conversely, separate property is defined as anything acquired by a spouse before marriage, during the marriage by gift or inheritance, and after the parties legally separate. There are many corollary laws to determine if there is any community interest in separate property assets or vice versa.
WHAT IS A PARENTAGE (PATERNITY) CASE?
Establishing parentage determines who the legal parents of a child are if the parents were not married when the child was born. The court can make custody and visitation as well as child support orders.
WHAT IS CHILD CUSTODY AND VISITATION?
Requests for court orders for child custody and visitation must be requested as a motion to an underlying action. The underlying action may be, for example, divorce, legal separation, annulment, or parentage.
The parents are required to complete mediation prior to the entry of an order child custody and visitation. This is to give the parents an opportunity to determine their own custody and visitation plan (also known as parenting plan or timeshare agreement). Mediation is provided at no cost by the court through Family Court Services. Mediation gives parents the opportunity to discuss with a neutral mediator the best plan for their children. If the parents reach an agreement, the mediator drafts the custody and visitation plan. If the parents are unable to reach an agreement, then the mediator will provide a recommendation report to the court.
WHAT IS CHILD SUPPORT?
A family law action must be filed before an order for child support can be addressed. Often an order for child support is requested at the same time an order for child custody and visitation is entered or modified. There is no legal obligation to pay child support from one parent to the other until there is a court order. However, the request for child support can be made retroactive (i.e., back-dated) to the date that the request for child support was filed. California has adopted a statewide uniform guideline calculation for child support amounts. The primary modifiers for the amount of support are the parenting timeshare of the children and the respective gross incomes of the parents.
WHAT IS TEMPORARY SPOUSAL SUPPORT?
The court can order temporary spousal support during the time that your divorce proceeding is pending. This amount is based upon maintaining the status quo during marriage. That is, whatever amounts of money was being exchanged or shared during marriage should continue during the divorce case. This is a nearly impossible standard to reach because of the increased costs of living separately and the loss of the shared expenses. The court will often use a computer calculation based upon the parties’ respective income and expenses to set temporary spousal support.
WHAT IS PERMANENT SPOUSAL SUPPORT (ALIMONY)?
The court must take into consideration various factors in determining the amount of spousal support after marriage (see Family Code section 4320 for mandatory spousal support factors). There is no bright-line rule for determining the length of spousal support. However, a marriage over 10 years is considered a marriage of long duration allowing the court to retain jurisdiction indefinitely to order spousal support. The general rule-of-thumb for a marriage less than 10 years is for spousal support to continue for half the length of marriage. The court examines the totality of the circumstances in determining the amount and length of spousal support.
WHAT IS A DOMESTIC VIOLENCE RESTRAINING ORDER?
A domestic violence restraining order is a court order issued to prevent the recurrence of acts of abuse by a batterer in a domestic setting. Under the Domestic Violence Prevention Act, abuse is defined as any of the following:
- Intentionally or recklessly causing or attempting to cause bodily injury;
- Sexual assault;
- Placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another; or
- Engaging in any behavior that has been or could be enjoined such as molesting, attacking, striking, stalking, threatening, battering, harassing, telephoning, destroying personal property, contacting the other by mail or by electronic means (e.g., e-mail, text, etc.), or disturbing the peace of the other party.
The abuse/violence must have occurred recently.
The batterer must be:
- A spouse
- An ex-spouse
- A boyfriend or girlfriend
- An ex-boyfriend or ex-girlfriend
- A person the victim is dating or has dated
- An immediate family member (mother, father, in-laws, siblings, adult children), OR
- A person the victim has children together
*(A victim of abuse that does not have the necessary relationship to the batterer may file a civil harassment restraining order. Although note that in order to obtain a civil harassment restraining order the petitioner must show by clear and convincing evidence that there is a threat of violence or abuse. Whereas, for a domestic violence restraining order, the petitioner’s burden of proof is by a preponderance of evidence (or slightly greater than 50%).)
The restraining order can include the following:
- Restraints on personal conduct by the batterer
- Orders for the batterer to stay-away from the victim’s home/work and/or children’s school
- Orders for the batterer to be removed from the residence
- Child custody and visitation and support orders
- Other miscellaneous orders