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The information provided herein is not intended as a substitute for legal advice. You should consult with an attorney to obtain advice specifically related to your unique family law matter. The information contained herein is for informational purposes only.

ANNULMENTS:

A judgment of nullity (also known as an annulment) is available only where a marriage is determined to be void (a void marriage is void at its beginning, i.e. incestuous unions) or voidable (a voidable marriage is treated valid for all purposes until adjudged a nullity) as a consequence of some circumstance at the inception of the marriage. Usually, a marriage is voidable and may be annulled if any of the six grounds for annulment existed at the time of the marriage:

  1. Minority (Fam.C. § 2210(a)): either party lacked the capacity to consent to marriage due to minority and failed to obtain parental consent or a court order. However, parental consent must be obtained prior to the ceremony (meaning if the requisite parental consent is obtained after the ceremony, but before the age of 18, the marriage is still voidable). If the parties cohabitate with each other as husband and wife after reaching the age of majority, the marriage is no longer voidable.
  2. Bigamy (Fam.C. § 2201): when a former spouse is absent and not known to be living for five years immediately prior to a subsequent marriage, or is reputed by the spouse to be dead at the time of a subsequent marriage, the subsequent marriage is deemed valid until nullity is adjudged by the Court. Where a bigamous or polygamous marriage is voidable, a nullity action can be brought by either party to the marriage during the life of the other or by the spouse from the prior marriage.
  3. Unsound mind (Fam.C. § 2210(c)): if either party was of unsound mind at the time of the marriage, the marriage is voidable, unless that party, after coming to reason, voluntarily cohabitated with the other as husband and wife. The mental defect must have some direct bearing on the marriage being solemnized.
  4. Fraud (Fam.C. § 2210(d)): the marriage is voidable if consent to marriage is obtained through fraud; however, the marriage will continue to remain valid if the spouse who was defrauded into consent to the marriage, with full knowledge of the fraud, freely cohabits with the other as husband and wife. Annulment on grounds of fraud is extreme as it goes to the very heart of the marriage. Fraudulent intent requires the intent not to perform a vital duty to the marriage, at the very moment that the marriage contract is made between the parties. The fraud must relate to a matter vital to the marriage relationship, including but not limited to: (a) a secret intention not to live with the other spouse ever, (b) an intention never to have intercourse with the other spouse, (c) an intention to never have children although a promise to have children was made with the other spouse, (d) a spouse’s concealment of his or her criminal record and character, (e) motive to enter the marriage solely to obtain a green card to obtain U.S. residency status, (f) concealment of sterility, (g) false representation of physical capacity to enter marriage, and (h) concealment of intent to not terminate sexual relationship with another.
  5. Force (Fam.C. § 2210(e)): where consent was obtained by force, the marriage is deemed voidable unless the parties afterward voluntarily cohabitate with each other as husband and wife. The test is whether consent to the marriage would have been given without threats.
  6. Physical incapacity (Fam.C. § 2210(f)): a physical defect or incurable disease to consummate the marriage by copulation, may result in the marriage being deemed voidable. The test does not focus on fertility, so much as it does on the ability or inability for copulation.

The effect of a judgment of nullity of marriage is to restore the parties to the status of unmarried persons. Fam.C. § 2212(a).

Individuals considering filing for nullity of marriage should consult with an attorney immediately. There are time limits as to when a nullity of marriage may be sought and/or granted on certain grounds.

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CHILD CUSTODY AND VISITATION:

Temporary (or interim) orders that are issued by the Court and that are in effect prior to trial (or prior to entry of a stipulated judgment, should the parties resolve all of their disputes related to custody and visitation and memorialize the same in a final judgment) are referred to as “pendente lite” orders. Pendente lite is a Latin term meaning “while the litigation is pending.” This phrase is oftentimes used for court orders or legal agreements entered into while a matter (such as a divorce) is pending.

The trial court will usually issue two different types of custody orders in contested custody cases (uncontested custody cases will also include two different orders relating to custody):

  • Physical custody: A parent may be granted sole or joint physical custody with or without exclusive legal custody. Sole physical custody means that the child may reside with and is supervised by one parent, subject to the other parent’s visitation rights. Fam.C. § 3007. Joint physical custody means that each parent shall have significant periods of physical custody of the child in such a way as to assure a child of frequent and continuing contact with both parents. Fam.C. § 3004.
  • Legal custody: Conversely, a parent may be awarded the exclusive (sole legal custody) right and responsibility to make decisions relating to the child’s health, education and welfare; but unless sole physical custody is also granted, that parent does not have sole control over the child’s residence and supervision. Fam.C. § 3006. Joint legal custody means that both parents shall share the right and responsibility to make the decisions relating to the health, education, and welfare of a child. Fam.C. § 3003.

During the litigation, the Court in adjudicating contested custody pendente lite, makes its determination of custody based on the child’s “best interest.” Fam.C. §§ 3011, 3020, 3040, 3041. However, subject to certain policy directives and statutory factors (see Fam.C. §§ 3011 and 3020 for a review of the policy directives and factors) that the Court must consider, the best interest determination is left to the trial court’s discretion.

Child custody and visitation orders are also generally modifiable so long as the child is a minor whenever the court finds a modification is in the child’s best interests. The best interest standard becomes more complex once a “final” judicial custody determination (also known as a Montenegro order pursuant to the seminal case of Montenegro v. Diaz (2001) 26 C4th 249, 255, 109 CR2d 575, 579) is in place: A party seeking to modify a “permanent” custody order can do so only upon a showing of a “significant change of circumstances” so affecting the child that modification is essential to the child’s welfare. Absent such a showing, any modification would be an abuse of discretion by the Court, as it would otherwise deny the child the benefits of a stable home environment.

Pursuant to Montenegro vs. Diaz, the “changed circumstances” burden of proof preserves the need for continuity and stability in the child’s life, unless some significant change in circumstances indicates a different arrangement would be in the child’s best interest. Again, the changed circumstances rule is triggered only after a “final” or “permanent” custody order.

A change of circumstances must be shown to change the legal custody arrangement (from joint legal to sole legal or vice versa), without any change in physical custody or when the request seeks to remove custody from one parent and give it to the other. However, no change of circumstances need be shown to change only the parenting schedule (the amount of time the child spends in each parent’s household) under a joint custody order. Proposed changes in parenting time do not need to meet the change of circumstances standard, as the only standard the moving parent must meet in such cases is the child’s best interest. Likewise, the changed circumstances rule does not apply when a parent requests only a modification of the visitation arrangement (whether in a joint custody or sole custody situation) because such a modification does not actually change custody, so much as it does the visitation arrangement. In such cases, the trial court considers a visitation modification only under the child’s best interests standard.

Further, the adjudication of custody (whether pendente lite or in a final custody adjudication) may include certain third parties including minor’s counsel, 730 child custody evaluators, child custody investigators, mediators, therapists, and other professionals, in cases where there are allegations and/or findings of domestic violence, substance abuse, sexual abuse, and/or in considering the minor child’s preferences.

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Child Support:

In determining the appropriate amount of child support (whether in an initial pendente lite or permanent order or modification of an existing order), all California courts must adhere to the “statewide uniform child support guideline.” Federal law requires uniform statewide “guidelines” to be applied “in any judicial or administrative proceeding for the award of child support.” The Court will consider the following when setting the child support order:

  1. Support duty commensurate with parents’ economic circumstances: “A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life.” Fam.C. § 4053(a).
  2. Mutual support duty: “Both parents are mutually responsible for the support of their children.” Fam.C. § 4053(b).
  3. Formula reflects income and responsibility: “The guideline takes into account each parent’s actual income and level of responsibility for the children.” Fam.C. § 4053(c).
  4. Obligation tied to ability to pay: “Each parent should pay for the support of the children according to his or her ability.” Fam.C. § 4053(d).
  5. Child’s interests of paramount importance: “The guideline seeks to place the interests of the children as the state’s top priority.” Fam.C. § 4053(e).
  6. Award to reflect parents’ standard of living — even if custodial parent incidentally benefits: “Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children.” Fam.C. § 4053(f).
  7. Award to reflect increased household costs because of time-sharing; equalized household standards of living: “Child support orders in cases in which both parents have high levels of responsibility for the children should reflect the increased costs of raising the children in two homes and should minimize significant disparities in the children’s living standards in the two homes.” Fam.C. § 4053(g).
  8. Priority on “private” funding of child support: “The financial needs of the children should be met through private financial resources as much as possible.” Fam.C. § 4053(h).
  9. Presumptive support contributions by primary caretaker: “It is presumed that a parent having primary physical responsibility for the children contributes a significant portion of available resources for the support of the children.” Fam.C. § 4053(i).
  10. Settlements favored: “The guideline seeks to encourage fair and efficient settlements of conflicts between parents and seeks to minimize the need for litigation.” Fam.C. § 4053(j).
  11. Formula amount presumptively correct: “The guideline is intended to be presumptively correct in all cases, and only under special circumstances should child support orders fall below the child support mandated by the guideline formula.” Fam.C. § 4053(k).
  12. Award to reflect State’s “high” living standards and child-rearing costs: “Child support orders must ensure that children actually receive fair, timely, and sufficient support reflecting the state’s high standard of living and high costs of raising children compared to other states.” Fam.C. § 4053(l).

Usually the duty to pay child support ends when the child turns 18. If the child is 18 but still residing at home, still attending high school full-time and still not self-supporting, then the child support obligation ends when the child graduates high school or turns 19, whichever comes first. Fam.C. § 3901. However, there are two situations, wherein parents may also have a duty to support adult children (i.e., children over the age of majority):

  1. Needy incapacitated children: To the extent of their ability, both parents have an “equal responsibility” to support a child “of whatever age” (whether a minor or an adult) “who is incapacitated from earning a living and without sufficient means.” Fam.C. § 3910(a).
  2. Agreement: A duty to support adult children may also be rooted in the parents’ agreement. Notwithstanding any other provision of law, the court has authority to approve the parents’ stipulated agreement to pay for the support of an adult child or for the continuation of child support after a child reaches age 18; and may make a support order to effectuate such an agreement.

In setting the actual child support number, Courts will typically utilize certain child support programs to input the financial information of both parties (utilizing the parties’ respective incomes), as well as their relative timeshares, filing statuses, deductions from pay (i.e. healthcare deductions, mandatory union dues, mandatory retirement payments, etc.), as well as any hardship deductions to either parent (among other factors). Oftentimes, the determination of a party’s income will be based on paycheck stubs, tax returns, 1099s, W-2s, profit and loss statements, or in complex cases through the assistance of forensic accountants (usually in self-employed cases) to determine income for support-setting purposes.

Further, the Court will also order one or both parties to maintain health insurance coverage for the minor child as additional child support. Fam.C. § 4063. The Court must also order the following as additional child support (Fam.C. § 4062(a)):

  1. Child care costs related to employment or to reasonably necessary education or training for employment skills.
  2. The reasonable uninsured health care costs for children as provided in Section 4063.

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CONTESTED/UNCONTESTED DIVORCE:

Contested Divorce: Prior to filing for dissolution of marriage, the petitioning party must have resided in the State of California for a period of six-months prior to filing and must have resided in the filing county for a period of three-months prior to filing. Fam.C. § 2320. The six-months/three-months residence prerequisite must be met prior to either party petitioning the court for dissolution of marriage (divorce). See section on legal separation if the six-month/three-months residence prerequisite is not met (as a party may be able to file for legal separation and later amend the legal separation petition to dissolution of marriage, once the above-referenced residency requirements are met – Fam.C. § 2321).

The single judgment of dissolution is secured by a two-stage procedure: (a) preparation and submission of the proposed judgment (together with a proposed statement of decision if applicable) and (b) signature and filing for entry. This is applicable in cases where the judgment is obtained through trial.

Where the parties are in agreement as to the terms of the judgment to be entered, they can submit a stipulation for judgment for the court’s signature at the time of the hearing on the merits. Or a stipulated judgment can be obtained by affidavit (declaration under penalty of perjury) without the necessity of a personal appearance. Fam.C. § 2336.

The stipulation must contain the exact terms of the judgment proposed to be entered. It must dispose of all matters before the court or reserve jurisdiction over those matters not proposed for immediate disposition.

Where a dissolution, legal separation or nullity judgment is to be granted by default, the defaulting party’s signature on any stipulated judgment must be notarized. Local court rules should be consulted for the particular requirements and procedures to obtain an uncontested/stipulated (or default) judgment by declaration (Fam.C. § 2336), since the requirements vary from county to county.

Parties to the litigation oftentimes attempt to interject the concept of fault, when filing for dissolution (i.e. when one party has committed adultery, etc.). However, California is a no-fault divorce system. Dissolution of marriage is granted on only a few narrowly prescribed grounds, including the following:

  1. Irreconcilable differences. Fam.C. § 2310(a).
    Irreconcilable differences are those grounds which are determined by the Court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved. Fam.C. § 2311.
  2. Incurable insanity. Fam.C. § 2310(b).
    However, keep in mind that no dissolution of marriage granted on grounds of incurable insanity relieves a spouse from any obligation imposed by law as a result of the marriage for the support of the spouse who is incurably insane. The Court may make such orders for support, or require a bond. Fam.C. § 2313.

Further, the parties should know that there is no such thing as being automatically “divorced” after six months from the date of filing. A person is only qualified to be “divorced” if all issues including community property have been resolved either through trial or stipulated judgment. However, if a person wants to end marital status and be restored to the status of “single” and possibly remarry, he/she can file a motion with the Court to bifurcate and end the status of the marriage. However, certain conditions under the California Family Code are imposed by the Court (if not waived by the other party) that may have costly ramifications to the party seeking to bifurcate and terminate status of the marriage early (see Fam.C. § 2337).

Uncontested Divorce: In uncontested cases, the parties prepare a stipulated judgment (with requisite attachments) to submit to the court for execution and entry. Without a stipulation for judgment, the proposed judgment may be submitted at the hearing by counsel for the appearing party (at the default prove-up hearing, if default of the Respondent has been secured). The judgment will ordinarily be signed, dated and entered on the same day as the prove-up/default hearing. Alternatively, an uncontested judgment of dissolution may be obtained by declaration, following the procedures adopted by local court rules, as they vary. Fam.C. § 2336.

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DIVISION OF ASSETS AND DEBTS:

Division of assets and debts can be relatively simple, as in the case where the parties have little to no assets or debts or rather complex, as in the case of larger estates, or when quasi-community property (quasi-community property is defined as “all real or personal property, wherever situated, in any of the following ways: (a) By either spouse while domiciled elsewhere which would have been community property if the spouse who acquired the property had been domiciled in this state at the time of its acquisition, (b) In exchange for real or personal property, wherever situated, which would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition” – Fam.C. § 125) is involved or where there are assets that were owned prior to the marriage (which may raise issues related to reimbursements, transmutations, etc). In more complex cases, forensic accountants may be utilized to determine the value of a business, appraisers may be utilized to determine the value of real property and property appraisers may be utilized to determine the value of certain valuable personal property. Oftentimes there may be hidden assets, which may require the use of private investigators and which may in turn raise issues of one party’s breach of his/her fiduciary duties to the other spouse, which can have severe consequences.

Litigants should be aware that assets are usually valued as of the date of trial (there are certain cases, wherein assets may be valued as of the date of separation or another date, but those cases are few and far between and require a motion for an alternate valuation date and an evidentiary hearing). Litigants should also keep in mind that community debts are usually divided as of the date of separation (if there is a dispute as to the date of separation, the Court will make a factual finding as to the date of separation at the time of trial or earlier if said issue is bifurcated for determination by the Court prior to trial).

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DIVISION OF PENSIONS, 401(K)S AND OTHER BENEFIT PLANS:

Pensions, 401(k)s and certain other benefit plans are usually joined to the pending litigation and divided by a Qualified Domestic Relations Order (Q.D.R.O.). Oftentimes the services of an independent Q.D.R.O. attorney (who specializes in preparing Q.D.R.O.s) are secured, the Q.D.R.O.s are prepared (there may be more than one depending on the number of benefit plans), and subsequently submitted to the plan administrators for approval and division. Further, most court will not bifurcate and end the status of marriage early (prior to final judgment on all issues), if the pensions, 401(k)s and certain other benefit plans are not joined to the pending litigation. Fam.C. § 2337.

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DIVORCE:

See section above on contested/uncontested divorce.

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DOMESTIC VIOLENCE RESTRAINING ORDERS:

Abuse within the meaning of the Domestic Violence Prevention Act (“DVPA”) means either:

  • Intentionally or recklessly causing or attempting to cause bodily injury (Fam.C § 6203(a)); or
  • Sexual assault (Fam.C § 6203(b)); or
  • Placing a person in “reasonable apprehension” of imminent serious bodily injury to that person or another (Fam.C § 6203(c)); or
  • Engaging in any behavior that has been or could be enjoined pursuant to Fam.C § 6320; (Fam.C § 6203(d)).

A finding of domestic violence has severe consequences as it relates to contested custody adjudication by the Court. Upon a finding by the court that the person seeking custody has perpetrated domestic violence against the other party, the child or the child’s siblings within the past five years, there is a rebuttable presumption that a sole or joint physical or legal custody award to the perpetrator would be detrimental to the child’s best interest. This presumption may be rebutted by a preponderance of the evidence. Fam.C. § 3044(a).

For purposes of § 3044, a person has “perpetrated domestic violence” when the court finds that he or she:

  1. intentionally or recklessly caused or attempted to cause bodily injury or sexual assault;
  2. placed a person in reasonable apprehension of imminent serious bodily injury to that person or another; or
  3. engaged in any behavior involving (but not limited to) threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a Fam.C. § 6320 ex parte order could issue to protect the other party seeking custody of the child or to protect the child and child’s siblings. Fam.C. § 3044(c).

Section 3044 sets forth some nonexclusive guidelines for the trial court’s finding that the custody claimant has perpetrated domestic violence so as to trigger the statute’s rebuttable presumption (Fam.C. § 3044(d),(e)):

  • Conviction: The requirement of a § 3044(a) finding “shall be satisfied by, among other things, and not limited to” evidence that the custody claimant has been convicted within the past five years — after a trial, or guilty or no-contest plea — of any crime against the other party constituting “domestic violence” as defined by Fam.C. § 6211. Fam.C. § 3044 (d)(1). 
  • Domestic violence finding in other proceedings: The requirement of a § 3044(a) finding “shall also be satisfied” if any court — whether or not the court that hears or has heard the child custody proceedings — has made the requisite finding based on conduct occurring within the past five years. Fam.C. § 3044(d)(2).

The DVPA is intended to prevent the recurrence of acts of domestic violence and to provide for a separation between the parties involved for a period of time sufficient to enable them to seek a resolution of the causes of the violence. Fam.C. § 6220.

An alleged domestic violence victim is a “protected person” under the DVPA and thus entitled to the benefit of a DVPA order only if he or she fits one of the descriptions contained in Fam.C. § 6211.

The person seeking a DVPA remedy as a “protected person” must fall into one of the categories described in Fam.C. § 6211 (below), each of which involves a domestic or social relationship consisting of some measure of exclusivity or continuity. Oriola v. Thaler (2000) 84 CA4th 397, 408, 100 CR2d 822, 830:

  • A spouse or former spouse. Fam.C. § 6211(a).
  • A “cohabitant” or former cohabitant — meaning a person who regularly resides (or formerly regularly resided) in the household. Fam.C. § 6211(b); see Fam.C. § 6209 (defining “cohabitant” under DVPA).
    • “Permanency” factor: By granting protection to “cohabitants” as defined in § 6209, the Legislature intended to extend DVPA relief to victims who have some permanency in their living arrangements. Individuals who simply have a “happenstance connection” in a dwelling because they sublet rooms from a common lessor are not “cohabitants” protected by the Act. O’Kane v. Irvine (1996) 47 CA4th 207, 212, 54 CR2d 549, 552.
    • Dating/engagement relationship: A person with whom the respondent (alleged perpetrator) is having or had a “dating or engagement relationship.” Fam.C. § 6211(c).
  • Coparent: A person with whom the respondent (alleged perpetrator) has had a child ... where, pursuant to the Uniform Parentage Act, the male parent is the presumptive father of the child of the female parent. Fam.C. § 6211(d). 
  • Child: A child of a party or a child who is the subject of a Uniform Parentage Act action, where the presumption applies that the male parent is the father of the child to be protected. Fam.C. § 6211(e).
  • Blood relatives: Any other person related by consanguinity or affinity within the second degree. Fam.C. § 6211(f).

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Father’s Rights:

Father’s rights is a movement whose members are primarily interested in issues related to family law, including child custody and child support that affect fathers and their children and oftentimes include second wives of divorced fathers or other family members. This movement is based on the premise that father’s should have equal rights as mother’s when it comes to custody-related issues of minor children.

The California Family Code is clear in that no court shall “prefer a parent as custodian because of that parent’s sex.” Fam.C. § 3040(a)(1). The California Family Code is gender neutral and gender is an irrelevant factor in the “best interests” equation with regard to contested custody adjudication; and any order based on preconceived notions regarding “mothers” or “fathers” will be reversed as an abuse of discretion. Marriage of Carney (1979) 24 C3d 725, 730, 157 CR 383, 385; Burchard v. Garay (1986) 42 C3d 531, 536, 229 CR 800, 803; see also Marriage of Moschetta (1994) 25 CA4th 1218, 1232, 30 CR2d 893, 901, fn. 17.

However, there is “no authority for the proposition that a family court unlawfully prefers a parent as custodian because of that parent’s sex merely by making a ... custody order that does not give the other parent equal time.” See Lester v. Lennane (2000) 84 CA4th 536, 575, 101 CR2d 86, 112–113 (internal quotes omitted). Recall, that there are a host of factors that the Court must consider with regard to any contested custody adjudication (i.e. public policy goals and directives and the best interests of the child factors).

We will fight to ensure that the Court gives no preference to one parent over the other based on gender, but rather the actual merits of the case and what truly is in the best interests of the minor child(ren).

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GARNISHMENTS:

Whenever a support order is made or modified, the court must include in the order an earnings assignment order for support that directs the obligor’s employer to pay to the obligee that portion of the obligor’s earnings due or to become due as will be sufficient to pay (a) the support amount ordered by the court, and (b) an amount ordered to be paid toward liquidation of any arrearage. Fam.C. § 5230(a)(1) & (2).

Except to the extent protected by a statutory exemption “earnings” subject to a Fam.C. § 5200 et seq. assignment order include, but are not limited to the following (Fam.C. § 5206):

  • Wages, salary, bonus, money and retirement benefits described in CCP §§ 704.110, 704.113 and 704.115 (including benefits owed to government employees);
  • Payments due for independent contractor services, interest, dividends, rents, royalties, residuals, patent rights, or mineral or other natural resource rights;
  • Payments or credits due or becoming due as a result of written or oral contracts for services or sales “whether denominated as wages, salary, commission, bonus, or otherwise”;
  • Payments due for workers’ compensation temporary disability benefits;
  • Payments due as a result of disability from benefits under a disability or health insurance policy or program (as described in CCP § 704.130); and
  • “Any other payments or credits due or becoming due, regardless of source.” Fam.C. § 5206(a),(b), (c),(d),(e) & (f).

In fact, the petition for dissolution of marriage itself provides as follows: “Child Support – If there are minor children born to or adopted by the Petitioner and Respondent before or during this marriage, the court will make orders for support of the children upon request and submission of financial forms by the requesting party. An earnings assignment may be issued without further notice....” The parties are put on notice from the inception of the case that his/her wages may be assigned without further notice, to satisfy payment of child support under a Court order.

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GUARDIANSHIPS:

A guardian is a person appointed by a probate Court to be legally responsible for another person and/or for another person’s property. While individuals are usually appointed to serve as guardians, a corporation or association may also serve in that capacity. A person for whom a guardian has been appointed is called a “ward.”

A guardian is appointed by the court to oversee the legal and financial affairs (and/or the personal care of a minor, or of an adult who is not able to manage his or her own affairs because of advanced or some other physical or mental disability. A guardianship may be voluntary which means the guardian is appointed at the request of the ward, or it may be involuntary if family members or others ask the court to act to protect someone who appears to be incompetent. Once appointed, a guardian answers to the court with regard to issues such as providing proper care and management of the ward’s affairs in the ward’s best interest.

Guardianships are usually not heard by the family court, but rather the probate court as guardianships are governed by the probate code (albeit certain determinations regarding custody and visitations of wards are still subject to the best interests of the child standard, as in the case of the family code).

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LEGAL SEPARATIONS:

The six-months/three-months residence prerequisite to a marriage dissolution judgment (Fam.C. § 2320) does not apply to a legal separation proceeding. An immediate petition for legal separation may be filed and then, upon compliance with six-months/three-months residence requirements, amended to request a judgment of dissolution. Fam.C. § 2321(a).

Although separation proceedings can be maintained on the same grounds as dissolution actions (irreconcilable differences under Fam.C. § 2310(a) or incurable insanity under Fam.C. § 2310(b)), a judgment of legal separation does not terminate marital status. It is an alternative to dissolution and is generally sought for religious or other personal reasons when the petitioner does not want the legal status relationship severed. Another reason that legal separation is sought is because the petitioning party has not met the residency requirements to file for dissolution of marriage, as referenced above.

A judgment of legal separation leaves the marriage bonds intact. In effect, the parties remain married in name only, without the associated rights and responsibilities tied to marital status. They cannot enter into a new marriage until the existing marriage is dissolved; but the judgment may resolve the custody/visitation issues, financial issues, including determination of their support obligations and division of their community estate. The court may grant a judgment of dissolution on either party’s subsequent petition for dissolution. Fam.C. § 2347.

There is one issue related to a judgment of legal separation that is not encountered with a judgment of marriage dissolution: The court may not enter a judgment of legal separation on a petition requesting legal separation unless both parties consent to it ... except where the respondent has not made a general appearance (i.e., default cases). Fam.C. § 2345.

If one spouse petitions for legal separation, but the other responds with a request for marriage dissolution, legal separation may not be granted.

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PARENTAL RELOCATIONS/MOVE-AWAYS:

By statute, the parent with sole physical custody of the children has the presumptive right to change the children’s residence — i.e., to move away with the children; courts will not interfere with that decision (enjoining the relocation or changing custody) unless the move is detrimental to the child. “A parent entitled to custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.” Fam.C. § 7501(a); Marriage of Burgess (1996) 13 C4th 25, 32, 51 CR2d 444, 449; see Marriage of LaMusga (2004) 32 C4th 1072, 1094, 12 CR3d 356, 372 — custodial parent’s presumptive right to relocate with children not dependent on whether parents had history of cooperative coparenting.

Fam.C. § 7501 unambiguously provides that the custodial parent’s right to relocate with the children is presumptive only — not absolute; that right may be curtailed if the move would result in detriment to the children. This is so even if the custodial parent has been awarded both sole legal and sole physical custody; he or she nonetheless has no “inherent” or “absolute” right to change the children’s residence.

The trial court must take into account the custodial parent’s presumptive right to change the children’s residence so long as the removal would not prejudice their rights or welfare (Fam.C. § 7501(a)). Accordingly, in considering all the pertinent circumstances affecting the children’s best interest, the court may consider any effects of a contemplated relocation on their rights or welfare. Marriage of Burgess, supra, 13 C4th at 32, 51 CR2d at 449; Marriage of LaMusga, supra, 32 C4th at 1087, 12 CR3d at 366.

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Post-Decree Modifications:

Whether modification of child custody, visitation, child support or spousal support, we will discuss with you all of your options and determine the best course of action to modify either pendente lite (temporary) or final orders. Litigants should also be well informed that child support orders cannot be modified retroactively, meaning that any arrearages of child support cannot be modified prior to the filing of any motion or order to show cause to modify child support.

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PROPERTY RIGHTS:

California is a community property state, which means property that was acquired during the marriage is presumed to be community property. For the purpose of division of property on dissolution of marriage or legal separation of the parties, property acquired by the parties during marriage in joint form, including property held in tenancy in common, joint tenancy, or tenancy by the entirety, or as community property, is presumed to be community property. This presumption is a presumption affecting the burden of proof and may be rebutted.

Community property is usually divided equally (50-50) by the court, unless there are issues of reimbursements that have be to be determined by the Court (i.e. in cases where one party uses separate property funds toward the down payment of community property, etc.).

The court may award an asset of the community estate to one party on such conditions as the court deems proper to effect a substantially equal division of the community estate. Further, the court may award, from a party’s share, the amount the court determines to have been deliberately misappropriated by the party to the exclusion of the interest of the other party in the community estate (i.e. breach of fiduciary duties).

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SPOUSAL SUPPORT/ALIMONY:

There are two types of spousal support orders. Temporary or interim orders known as pendente lite orders and final spousal support orders known as permanent orders. Pendente lite orders preserve the status quo of the marriage (to the greatest extent possible) and are usually calculated utilizing spousal support programs (i.e. inputting the income of the respective parties, etc.). Permanent spousal support orders cannot be based on spousal support computer programs (otherwise they would be subject to reversible error), but must be based on analysis of the California Family Code 4320 factors.

For a determination of permanent spousal support, the court must consider all of the following circumstances:

  1. The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following (Fam.C. § 4320(a)):
    1. The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
    2. The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
  2. The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party. Fam.C. § 4320(b).
  3. The ability to pay of the supporting party, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living. Fam.C. § 4320(c).
  4. The needs of each party based on the standard of living established during the marriage. Fam.C. § 4320(d).
  5. The obligations and assets, including the separate property, of each party. Fam.C. § 4320(e).
  6. The duration of the marriage. Fam.C. § 4320(f).
  7. The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party. Fam.C. § 4320(g).
  8. The age and health of the parties. Fam.C. § 4320(h).
  9. The immediate and specific tax consequences to each party. Fam.C. § 4320(i).
  10. The balance of the hardships to each party. Fam.C. § 4320(j).
  11. The goal that the supported party shall be self-supporting within a reasonable period of time. A “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section and the circumstances of the parties. Fam.C. § 4320(k).
  12. Any other factors the court determines are just and equitable. Fam.C. § 4320(l).

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TERMINATION OF DOMESTIC PARTNERSHIPS:

Domestic partners considering termination of their California-registered domestic partnership by judgment of dissolution need not be concerned with the § 2320 residence requirement nor, therefore, with the § 2321 amendment tactic to overcome the residence prerequisite. Fam.C. §§ 298(c), 299(d).

Registered domestic partnership status, or an equivalent domestic partnership established in another jurisdiction, may be terminated or altered under California law only through superior court proceedings for dissolution, nullity or legal separation unless the parties qualify for an abbreviated “summary dissolution.” Fam.C. § 299.

The legal effect of the dissolution, annulment or legal separation is identical to that with regard to a marriage.

Domestic partnership dissolution, nullity and legal separation actions “shall follow the same procedures” and the partners “shall possess the same rights, protections, and benefits, and be subject to the same responsibilities, obligations and duties,” as apply to spouses in a marriage dissolution, nullity or legal separation proceedings. Fam.C. § 299(d).

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UNMARRIED/PATERNITY/PARENTAL RIGHTS:

Fam.C. 7630 et seq. governs an action to determine the existence or nonexistence of the father and child relationship. A paternity action can only deal with a limited number of issues (determining parentage, custody, visitation, child support, and other issues related to the child(ren)). A paternity action does not address issues that are normally related to a dissolution proceeding (i.e. determination of property rights and division of property).

If parentage is not voluntarily agreed-to by one parent, the Court may order what is known as “HLA tissue testing.” Both parents give blood samples, permitting the genetic factors in the samples to be analyzed and reduced to a report which indicates the probability of paternity.

The paternity action may be brought before the birth of the child, and oftentimes pregnancy related costs may be ordered by the Court. Fam.C. § 7633.

Further, the local child support agency, in a case where the agency believes it appropriate, may bring an action to declare paternity. Fam.C. § 7634(a).

There are certain time limits as to when DNA testing may be sought. Individuals considering filing for a paternity action should consult with an attorney immediately; otherwise they may be time-barred in requesting a DNA test.

Contact us at 714-919-4388 for a free consultation to discuss your options.

 

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