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Family Law
DivorceWhen a marriage fails there are three types of marital actions one can take: dissolution, legal separation, or nullity. A judgment of dissolution of marriage or legal separation may be granted on the following grounds: irreconcilable differences (no fault required) or incurable insanity. During either proceeding the court may make a wide range of orders in addition to the dissolution or legal separation itself, including, as applicable, determinations on division of property, spousal support, child custody and visitation, child support, payment of attorney fees and costs, restraining orders, and restoration of a former name to name a few. SeparationA legal separation involves many of the same issues encountered in a divorce. The biggest difference between a legal separation and divorce, is your actual marital status changes from married to separated, rather than married to single. Support orders are made, property is divided, and custody is determined. One should seek legal counsel if they are considering a separation. It should also be noted that any party can unilaterally convert a legal separation into a dissolution of marriage. AnnulmentA judgment of nullity may be granted only if the marriage is adjudge void or voidable under statutory conditions. For example, a marriage is void in cases of incest and bigamy. It may be found voidable in cases where a spouse is a minor, mistakenly believed to be deceased, or entered into marriage with an unsound mind, by force or through fraud, is physically incapacitated, or entered marriage while married to another. An innocent (putative) spouse may be awarded property and support in some cases, as if the marriage had not been void or voidable. Domestic ViolenceThere are a variety of resources available to people in abusive situation. Most courts have facilities set up to assist people who need immediate restraining orders until a full evidentiary hearing is set. We represent the protected parties as well as the alleged abusers. PaternityPaternity issues usually arise in actions under the Uniform Parenting Act (Family Code §§7600 - 7730) and in public assistance reimbursement proceedings. It can also arise in a dissolution proceeding where a mother seeks a child support order and the husband denies paternity. It may also arise when the husband is seeking a custody or visitation order and the wife opposes it on the basis that the husband is not the father. When the husband and wife are living together at the time of conception, and he is not impotent or sterile, there is a conclusive presumption of paternity. There is an exception to this rule, the court can consider blood tests and other creditable evidence to make a finding of non-paternity. There is also a rebuttable presumption of paternity whenever an alleged father meets the requirements of Family Code §7611, which may be met in any one of five ways. A rebuttable presumption affects the burden of proof. If a father meets any one of the five requirements, he may rebut the presumption, but only by clear and convincing evidence. Whenever paternity is an issue, the court will usually order a person to submit to a genetic test. CustodyCustody issues may arise in marital, paternity, move-away, and in modification actions. There are essentially two types of custody, physical custody and legal custody. Sole physical custody usually means that the child will reside with, and under the supervision of, one parent, subject to the other parent’s visitation time. Joint physical custody usually means that each parent will have significant periods of physical custody. It does not require that each parent have an equal amount of parenting time. Legal custody involves the decision making process. Sole legal custody usually means that one parent will have the right and responsibility to make decisions regarding the health, education, and welfare of the child. Joint legal custody usually means the parents will share those decision making rights and responsibilities. In making awards of custody, the court takes in consideration a variety of factors, including statutory guidelines where issues of frequent and continuing contact between both parties and the child’s best interest, the child’s health, safety and welfare, abuse, contact with parents and siblings, and the child’s preference may be reviewed. Other factors, such as, the child’s need for stability and continuity, emotional bonds, race, sexual conduct, religious practices, physical handicap, and the like may be considered. Usually before any orders are made, parties must attempt to come up with their own parenting plan with the assistance of a court provided mediator. If that fails, and it’s in the child’s best interest, the court may appoint a child custody evaluator to conduct a child custody evaluation. The evaluator makes a confidential report on his or her evaluation that may be considered by the court. The court also has the power to order emergency investigations, mental health examinations, counseling, and it has the power to appoint counsel for the minor child. Once the issue of custody is determined, the court will usually determine a proper visitation schedule to the non-custodial parent. VisitationWhen one parent is awarded sole physical custody, reasonable visitation rights must be awarded to the other parent unless it is proven that visitation would be detrimental to the child’s best interest. For example, without a showing of such detriment, a court may not deny or restrict visitation solely on the basis of a party’s sexual preference or religious practices. In addition to the requirement that visitation be awarded to a noncustodial parent absent a showing of detriment to the child, a court will normally adhere to the following guidelines in making visitation orders: The court’s primary concern is for the child’s health, safety, and welfare, including freedom from child abuse and domestic violence in the child’s residence; then, the court will ensure frequent and continuing contact between a child and both parents. If these two policies are in conflict, the court will make an order in a manner that ensures the child’s health, safety, and welfare, and the welfare and safety of all family members. It is worth noting that visitation rights may not be conditioned on timely payments of child support. Visitation and child support are two separate issues and will be viewed that way by the court. Spousal SupportCourts may order spousal support on a temporary or permanent basis, or both, and may modify or terminate current support orders. Temporary Spousal SupportWhile a dissolution or legal separation matter is pending, the court may order either spouse to pay any amount necessary for the support of the other spouse, consistent with Family Code §§4320(i), (m), and 4325. The same thing may be true in nullity actions, if the party for whose benefit the order is made is found to be a putative spouse. There are basically two factors the court will consider when making a temporary spousal support order: the applicant’s needs and the other party’s ability to pay. Many courts will also consider the factors set out in Family Code §4320 when determining temporary orders. Still many courts will consult the county guidelines in setting temporary support. Temporary support orders are usually terminated by issuance of a judgment, a dismissal, or under its own terms. Unless one of these things happen, temporary support payments may continue to accrue, even if a matter is not actively prosecuted. Temporary spousal support payments may be modified or terminated by a court at any time. This, however, will not affect the payor’s liability for payments that accrued before the notice of motion or order to show cause to modify or terminate was filed. Permanent Spousal SupportPursuant to Family Code §4330, in a judgment for dissolution of marriage or legal separation, the court may order a party to pay spousal support to the other in any amount, and for any period of time, that the court deems just and reasonable. The same thing may be true for judgment of nullity, as long as the party for whose benefit the order is made is found to be an innocent (putative) spouse. The trial court is vested with wide discretion in determining the amount and duration of spousal support. The court must, however, apply the criteria listed in Family Code §4320, and it may not simply rely on the county spousal support guidelines. In setting the amount of spousal support, the court will base it’s decision on the standard of living established during the marriage. This standard is meant to be weighted, under the circumstances of the case, along with all other applicable factors listed in Family Code §4320 in reaching a fair and reasonable result. Child SupportThe court may order either, or both, parents to pay child support whenever the support of a child is at issue. The statewide guidelines provide a formula for a tentative child support amount in each case. That amount depends on a variety of factors, such as, each parent’s net monthly disposable income, the number of children for whom support is being determined, and the parents’ respective timeshare of the children. Once these factors are known, the guideline amount can be determined by applying them to the formula. Property DivisionThere are four major components in resolving marital property issues. They involve the identification, characterization, valuation, and division of assets. At the request of either party the court may also divide separate property interests held by them as joint tenants or as tenants in common, including any interest in property held jointly with third parties. At the beginning of a dissolution of marriage action, both parties are required to disclose all known property, whether it was acquired before the marriage, during the marriage, or after separation. All property acquired in California during a marriage is characterized as either community property or separate property. Under California laws, community property is generally defined as all property acquired by a California domiciliary during a marriage that is not specified by statute to be separate property. Separate property generally includes all property owned before marriage, and it includes the following property acquired during marriage: property acquired by gift or inheritance, property produced by separate property assets (such as interest, profits, or rents), and property acquired after the date of separation. On the surface, this may appear simple, but as applied, property division is one of the most complex areas in family law today. ModificationMost orders made in family law courts are subject to modification in subsequent proceedings. The subject matter and type of order will determine whether or not it is modifiable. The party requesting a modification of an order will usually have the initial burden of proving that there has been a significant change in circumstances since the time of the current order. EnforcementWhen one party fails to voluntarily comply with court orders, the other party may take steps to enforce the orders. There are a variety of methods available to a party seeking to enforce family law orders. For example, if the issue involves payment of support, the aggrieved party may apply for a wage assignment order. In addition, contempt proceedings are available under Family Code §290. Before issuing a finding of contempt, the court must find that the underlying order was valid, that the citee had knowledge of the order, that the citee had the ability to comply with the order, and that the citee willfully disobeyed the order. It should be noted that when the underlying order is for child or family support, willful failure to comply is not usually part of the aggrieved party’s prima facie case.
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©2007 The Law Offices of Phillip C. Lemmons All Rights Reserved |
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