Family Law - Frequently Asked Questions

1. Is Mediation Right for You?

Mediation can be both voluntary and required by the court. In either case the mediation process is a confidential process in which a neutral third-party helps the parties to the lawsuit discuss difficult issues and negotiate an agreement.

In preparation for mediation, attorneys provide much of the same services they would do in preparation for trial. These include gathering information through the discovery process, framing the issues, developing options, and preparing for negotiations. The gathered information is then presented to the mediator who assists the parties in creating their own mutually agreeable marital dissolution agreement.

Mediation is generally much less costly and time-consuming than litigating a divorce case in court. Further, it is often the case that because the parties were able to work out their own agreements, they are far more likely to comply with them.

Mediation may be the right choice for you if both parties are committed to openly and honestly discussing their needs and desires regarding the divorce process. In other words, both parties must be willing to work in good faith on reaching an agreement.

It is not the role of the mediator to judge the fairness of a decision. The mediator’s role is to help the couple reach their own settlement. If the parties reach a mutually agreeable decision with the help of the mediator, then the attorneys will prepare the agreement in a document that will be acceptable to the courts.

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2. What is “Child Custody and Visitation”?

At divorce or separation, if children are involved, the issues of “custody” and “visitation” will have to be addressed. There are two forms of custody; physical custody and legal custody.

Physical custody refers to which parent the child or children will live with on a regular basis and legal custody encompasses who is responsible for important decisions regarding children and how they will be handled.

Legal custody can be sole or joint. Sole legal custody entrusts one parent with the authority to make important decisions regarding the children. While joint legal custody instills both parents with the authority to make important decisions for the children. Important decisions include but are not limited to:

  • School or childcare
  • Medical and Psychological therapy and treatment
  • Religious teachings
  • Travel and where the children will live and be raised.

Physical custody can be Primary or joint. Primary physical custody exists when the children live with one parent most of the time and usually visit the other parent. In a joint physical custody arrangement the children live with both parents about the same amount of time. If one parent does not have physical custody that parent is granted visitation rights. In some circumstances visitation may be supervised or denied if the visitation will be harmful to the child.

“Visitation” is the plan or agreement which provides how the parent with physical custody of the children and the non custodial parent will share time with the children.

If the parents cannot agree upon a custody agreement, they will be ordered to attend mediation, in the event mediation fails, the judge will settle the custody issues.

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3. California Spousal Support

Absent an agreement between the parties, the determination of spousal support can be very complex. Because it is complex, courts will generally provide a temporary order for spousal support which is intended to ensure the lower wage earning or non wage earning (if any) spouse is able to provide for his/her needs during the divorce process. Once the permanent spousal support order is entered upon the final divorce decree the temporary order is revoked.

There are several considerations that go into the determination of the permanent spousal support order. These include, among others, the length of the marriage, the ability of the previous non-working spouse (if any) to obtain employment, the disparity between the wages of both working spouses and the division of property.

Depending on the type and terms of a spousal support order, it may or may not be modifiable at a future date.

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4. What kinds of assets are divided in a divorce?

There are three categories (characterizations) of property which will be considered in a divorce; Community Property; Separate Property and Quasi Community Property.

  • Community Property consists of all earnings and property acquired during marriage by both spouses.
  • Separate Property consists of all property owned before marriage, all property acquired during marriage that is acquired by gift or inheritance, the fruits of Separate Property such as rent, and all earnings and property acquired after the date of legal separation.
  • Quasi-Community Property is all earnings and property acquired by either spouse while domiciled in a Separate Property state outside of California that would have been treated as Community Property had it been acquired while domiciled in California.

Generally the parties to a divorce can agree (stipulate) to any division of property they desire. However, when the parties cannot agree on how to divide property the characterization of the property becomes important.

If the parties fail to agree on a division of property, the court will refer to the schedule of property provided by the parties. This includes all real property, personal property, businesses, vehicles, etc. This information is gathered during the discovery process. During the discovery process, the parties will exchange any and all documents pertaining to, among others, earnings, savings, investments, retirement funds, purchase dates for property and the source of funds used to purchase that property.

This process helps identify the source and characterization of the property and is intended to identify and reveal all pertinent and relevant information that will assist the judge in making the property division judgment.

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5. What is the legal divorce process like?

Initiating the Divorce Process
The spouse desiring the divorce will contact an attorney. The attorney will gather the information necessary to file the Petition for Dissolution of Marriage which provides the court with the reasons why the divorce is being sought and the outcome (relief) the petitioning spouse desires.

The Petition is filed with the court and served on the other spouse. The service of the petition on the other spouse gives that spouse legal notice that a divorce is being sought.

Responding to or Answering the Petition
The law requires that the served spouse respond within thirty (30) days. Failure to respond creates a presumption that he or she does not contest the petition. A non contested Petition will be granted with the requested relief. A properly executed response will answer or respond to the Petition’s allegations and sought relief and set forth the relief that the answering spouse requests.

Discovery
Both parties will participate in the discovery process in which they will exchange all documents and other information relevant to deciding the issues in the divorce such as property division, spousal support, child support, etc.

Settlement
In the best scenario, parties that were unable agree to the terms of the divorce and began the litigation process, will later reach a settlement. The settlement process can be initiated voluntarily or facilitated by the parties' lawyers or a neutral third party, such as a mediator.

If a settlement is reached, the settlement agreement is submitted to the court. The judge will review the agreement and if he or she approves the settlement a divorce decree that includes the terms to which the parties agreed will be issued. If the judge does not approve it, or if there has been no agreement, the case will go to trial.

Trial
At trial, the parties via their attorneys present their evidence and arguments. When both parties have completed presenting their evidence and rested their case, the judge decides the unresolved issues, including child custody and visitation, child and spousal support, and property division, then the judge grants the divorce.

Appeal Process
One the divorce decree is grated after trial, either of the parties or in some cases both of the parties are entitled to appeal the decision.

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6. How does the court decide which parent will get custody of a child?

Often parents will agree upon a custody sharing arrangement. However, if they are unable to do so, the court will do what it considers to be in the childs bets interest. The factors, among others, that the court may consider are: the age and gender of the child; the physical and mental health of the parents and the child; parental lifestyle; history or reports of abuse; the parent’s ability to provide a home that meets the child’s needs and necessities; and if the child is above the required age to do so, the child’s preference may be considered. The Court may also order the parent to attend mediation to resolve the child custody issues ad may require the parents and children to be evaluated to help determine the most appropriate custody arrangement.

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7. How is child support collected if the parent paying the support moves out of state?

It is the general law that each state abide by the support orders issued by the courts of sister states. If the paying parent moves out of state and has ceased payments, the custodial parent who receives the support must register the order for support in the county where the payer parent now lives. Then the court in that jurisdiction will enforce the order which continues the obligation of child support payments.

However, depending upon which state the paying parents now resides, and which laws and guidelines are adopted by that state, the paying parent may be entitled to argue that the amount of the support payment should be decreased. If the new resident state is a state which allows it, the court may decrease the amount of the support payment and the home state cannot modify or strike that order. Other jurisdictions will not allow their courts to modify any portion of the sister state’s support order.

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8. Can the amount of support that is paid be changed after the judge issues a child support order?

Often parents will agree (stipulate) to modify an existing support order if one or the other parent has found themselves in changed circumstances such as loss of a job or a significant increase n income.

In the absence of the ability to agree to a modification, the parent seeking modification may request a court hearing. Each party will be present at the hearing where they (usually through their attorneys) will present the facts supporting their position to the judge.

It is unusual for the court to grant a modification request without a showing of a significant change in circumstances that justifies the change. Events that may warrant a change or modification of the order include: a significant increase or decrease in either parent's income; substantial change in the needs of the child; changes in the child support laws; and general cost of living increases.

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9. How is the amount of child support calculated?

Each state has implemented guidelines which are used to ascertain the amount of child support that must be paid. The guidelines differ considerably from state to state however, there are some general factors that are balanced by judges issuing child support orders.

These factors include:

  • The standard of living in which the child was raised prior to the parents' separation or divorce;
  • The ability of the parent assigned support to pay support;
  • The needs of the custodial parent;
  • The custodial parent’s income; and
  • The needs of the child or children, including:
    • Educational costs and/or daycare expenses
    • Medical expenses, including health insurance and/or special health care needs.

In order to determine a parent’s ability to pay, the parents will most likely be required to produce financial statements listing all sources of income and all expenses. The judge will then review these records to assist him/her in issuing a support order.

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