Divorce, Legal Separation and Nullity
There are three options to choose when filing a Petition. Divorce, or Dissolution of Marriage, means that your marital status will terminate at some point during the process. In a Legal Separation proceeding, the court can make the same orders as in a dissolution proceeding, except that you will remain married and the court does not have the ability to restore a party's maiden name. Nullity means that you are claiming grounds exist and that the marriage is void or voidable. A marriage may be declared void or voidable based on various factors such as bigamy, incest, unsound mind, prior existing marriage, or fraud.
Paternity Issues and Genetic Testing
A Petition for Paternity is the process to determine parentage. Parental rights may exist because you are a biological parent, or because the court determines parentage based on certain lawful presumptions. If you are unsure whether you are the biological father, you may request genetic testing to resolve the issue. The testing must be court ordered to be binding. Certain time limits exist, and it is important that you not wait to seek such testing. If you are unsure whether you are the biological father, it is important, if you are present at the birth of the child, that you understand the legal ramifications of signing a Declaration of Paternity (also known as a POP Declaration) at the hospital.
Custody
The law provides that there are two areas of custody to consider: legal and physical custody. Overall, the focus is always the best interest of the children, and there are no firm rules as to what will work. Each family and child is different. Legal custody involves the health, education, and welfare of the children and who makes those decisions. Generally, courts favor parents sharing joint legal custody, because the desire is for parents to communicate and make decisions together. Physical custody refers to where the children primarily reside. Parents can share joint physical custody where the parenting time is more or less equal between them, or one parent may have sole physical custody if the children primarily live with that parent. The presumption is that, unless there is evidence to the contrary, it is in a child's best interest to have frequent and continuing contact with both parents. There is no gender that the law favors and both parents are considered to be equally important in the child's life.
Visitation
Parents can reach an agreement for a parenting and visitation plan without court intervention. However, if help is needed, the court provides free mediation for custody and visitation issues provided each parent has first attended a co-parenting workshop or seminar. The seminar is approximately 3 hours, and you do not have to attend it with the other parent. The purpose of the seminar is to help parents focus on the children's needs and how to co-parent effectively. In Monterey County, the court offers two types of mediation: 1st Tier (Confidential) or 2nd Tier (Non-Confidential). Once a Petition has been filed and each parent has attended the co-parenting workshop, 1st Tier Mediation may be scheduled through the court. If a resolution is reached, a tentative agreement is drafted and, provided neither party rescinds the agreement within 10 days, that agreement becomes a court order. A court order is required for 2nd Tier Mediation which involves the mediator issuing written recommendations to the court for a parenting schedule. Completion of the co-parenting workshop, or a similar program if a party resides out of county, is mandated even if you and the other parent have worked out a parenting plan, and no judgment will be entered in your case until a Certificate of Completion is filed with the court.
Child Support
Each party has the legal duty to provide financial support for the children. Generally, the court must order guideline child support based on certain mandatory factors such as each parent's gross monthly income, tax filing status, various statutory deductions, the number of children, and the non-custodial parent's timeshare with the children. Certain state certified software programs are used, or, if the Department of Child Support Services (DCSS) is involved, their software program must be utilized. The court may deviate from the guideline formula, but only under certain limited circumstances, and support is often collected through wage assignment when the DCSS is involved and may or may not be collected in that manner when they are not involved.
Property Issues
Once a Petition for Dissolution or Legal Separation is filed, automatic temporary restraining orders are in effect against the Petitioner, and against the Respondent once service occurs. Each party has a duty to fully disclose all assets and debts to the other, whether those are alleged to be community or separate property items. California is a community property state and, generally, all assets and debts acquired during the marriage are characterized as community property. Two exceptions may be inheritances and gifts depending on how those were treated and received during the marriage. However, there are other circumstances where property characterization can be changed during marriage, such as where the parties agree to change the characterization in writing. Generally, debts and assets acquired after the date of separation are considered separate property.
Spousal Support
There are two kinds of spousal support or alimony: temporary and permanent or post-judgment spousal support. Temporary spousal support may be ordered when the parties initially separate in order to provide assistance to the party in need. The court may utilize one of the state certified software programs to determine a guideline temporary spousal support amount (similar to how guideline child support is calculated as mentioned above), or the court may use discretion based on each party's financial information.
The court must consider certain statutory factors when issuing a permanent or post-judgment spousal support amount. Some of those statutory factors include: the marital standard of living during the marriage; the length of the marriage; the age and health of the parties; whether the supported party has been absent from the workforce due to domestic duties, including caring for children; and, the liabilities and assets, including separate property, of each party. The length of time that spousal support may be paid is discretionary and depends on the circumstances of each case, especially the length of the marriage and whether the marriage is one of long duration. A long term marriage is defined as a marriage of 10 years or more. The goal of the State of California is for a supported party to become fully self-supporting within a reasonable period of time. That "reasonable period of time" for a marriage under 10 years, is generally (but not always), one half the length of the marriage.
Collaborative Law
Collaborative Law is a process where each party is represented by an attorney, but the parties and each attorney signs a written agreement committing to settle the matter outside of the courtroom. The process relies on an atmosphere of honesty, cooperation, integrity, and professionalism geared toward the future well-being of each spouse and the children. The parties and the attorneys work together collaboratively, searching for solutions that work for the family as a whole. Unlike traditional litigation, in which the lawyer for each spouse advocates only for the interests of his or her client, the lawyers in a collaborative divorce focus on the interests of both spouses and the children. Efforts are made to maximize the settlement options to both parties, to increase the abilities of the spouses to communicate in a post-dissolution relationship and to minimize, if not eliminate, the negative economic, social and emotional consequences to families of litigation. One important difference between collaborative law and traditional litigation is that, should one party decide to utilize the court process to obtain court orders rather than to proceed through collaboration, each party must then retain other representation.
Domestic Violence and Restraining Orders
The term "Domestic Violence" includes not only threatened or physical harm to a person or property, but may include other offensive conduct and diverse forms of harassment. There may be a history of such behavior in the relationship, or there may be "situational" domestic violence that arises when conflicts arise between parties ending a relationship. The court's primary focus when issuing a domestic violence restraining order is to end the alleged abuser's access to the victim, and to protect any other people living in the home, especially children. The test is whether a reasonable person would be afraid based on the nature of the conduct.
Restraining Orders - A restraining order (RO) may be requested pursuant to the Domestic Violence Prevention Act (DVPA) or pursuant to a civil statute to prevent harassment or workplace violence. Overall, the purpose of each is to stop threatened or actual physical harm to a person or property, or other offensive conduct and forms of harassment.
DVPA RO - There must be a special relationship between the victim and alleged perpetrator such as a dating relationship, spouse or ex-spouse, registered partner or ex-registered partner, the parties have a child together, are living together or used to live together, or are engaged or used to be engaged. A request for a temporary restraining order must allege a threat of immediate harm and that it is likely irreparable injury will occur if the order is not granted before a hearing can occur. Unfortunately, sometimes a party will seek a restraining order in an effort to manipulate the family court system, especially with relation to child custody and visitation issues.
Workplace RO
Only an employer may seek a restraining order and injunction to prohibit workplace violence. The employer may seek the order on behalf of an employee who has experienced actual violence or received a credible threat that is likely to occur in the workplace, and the court has discretion to include other employees in the order.
Civil Harassment RO - This may be issued where there is no special relationship between the parties as required under the DVPA but where harassment has occurred as defined by the statute.
Pre-marital agreements (aka "pre-nups")
Prospective spouses have the right to alter property rights, including assets and debts, that would take effect upon marriage. The agreement must be in writing, voluntarily signed by both parties, and is effective upon marriage. Timing is crucial as to when the agreement is prepared and first submitted to the other side, so, if you are considering a pre-marital agreement, do not delay or wait because the result could be a postponed wedding date. Also, there are various other factors to ensure that the agreement is enforceable, so it is very important to obtain legal advice early rather than later.
Marital Agreements (aka "post-nups")
A marital agreement is an interspousal agreement, signed during marriage, that affects marital rights and obligations. There is a strong public policy to protect and foster marriages, so any agreement or contract promoting dissolution are prohibited. Any provision in the agreement that would waive statutory child support obligations would not be enforced.
Guardianship
Guardianships are handled by the Probate Court rather than the Family Law Court. They are used to protect minor children whose parents are still living, and are usually established by relatives or other adults to provide stability and care for minors where the parents have not done so. The focus is the best interest of the child, and a minor who is 12 years old, has a right to notice and to appear in court or may sign a document consenting to the guardianship. Often temporary guardianships are issued before a hearing occurs due to exigent circumstances in order to protect the child. A permanent guardianship does not terminate parental rights, but suspends parental rights; however, that does not necessarily mean that a parent loses rights to visitation. A guardianship automatically terminates when the child turns 18, or may be terminated upon a showing of good cause that the guardianship is no longer in the child's best interest.
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