Divorce is also legally known as dissolution of marriage. Thousands of divorce proceedings are filed in California courts every day. We know California divorce law and are experienced at handling all types of divorce situations, from simple agreements to major court cases. Divorce involves issues such as:
Alimony or spousal support
Investigation and evaluation of assets
To ensure an equitable distribution of your marital assets, it is vital to determine what assets are available and what they are worth. We can help you gain a true picture of family assets with the investigative tools at our disposal. Our thorough approach will ensure an equitable distribution. If you are searching for a divorce attorney, you are at the right place.
Short of divorce, you may be considering a legal separation. Legal separation has important consequences relating to property rights and debt liabilities. The purpose of a legal separation order is to ensure that your rights are protected while still maintaining the marriage relationship.
A legal separation order may divide property and debts. Child custody rights and/or child support may be awarded. Yet, spouses are still married and may be covered as a dependent for health insurance purposes or may participate in filing joint tax returns. We can draft an appropriate legal separation order which meets your needs.
Annulment or nullity of marriage is based on mental illness, fraud, forced consent, physical incapacity to consummate the marriage, underage marriage, or bigamy. If children are born from an annulled marriage, custody issues and child support may be decided by a court. We can advise you if an annulment is appropriate to your circumstances.
When children are involved, the stakes go up in any divorce or separation situation. It is imperative that you protect your children and your parental rights. Determining how to share parental responsibilities can be done informally through agreement or in litigation by Court order. Issues to resolve include:
The primary residence of the child
Awarding legal custody and physical custody rights
Child visitation rights and arrangements
Parents often consider some type of joint custody. But, determining the type of joint custody is unique to every case. Where the child lives now, accessibility to family, friends, and school, and appropriateness of a living situation are all important concerns. Child visitation involves similar consideration of the child´s schedule, location, and supervision.
We are able to effectively advocate your rights within the law in conjunction with the child’s best interests. Importantly, in this age of mobility, we are familiar with and can help formulate an interstate visitation agreement. Interstate visitation agreements require knowledge of uniform and conflicting state laws. Let us make sure your interstate visitation agreements are enforceable.
Read more about child custody.
Termination of a relationship can cause obvious financial hardships. To a custodial parent, child support is necessary to maintain the child´s standard of living after a separation or divorce. Child support is based on a formula that determines support based on the noncustodial parent´s income and the number of children. Child support can be part of a divorce or separation order, or it can be a separate action conducted through the State of California.
At the Law Offices of Mark A. Reed, we are very familiar with both processes. Spousal support, or alimony, is also based on a schedule. We can determine whether alimony should be paid, what it should be, whether it should be temporary or permanent, and the appropriate payment schedule.
We can also bring an enforcement action if you have an order but payment is not being made.
Modification actions are filed after support, and custody terms are entered into a final divorce judgment. In order for a child custody modification or modification of child support or spousal support action to be filed, you must show that a material change in personal or financial circumstances has occurred since the initial judgment or last order.
Child support orders can be modified based upon a change of time that a parent spends with the children. Child support can also be modified if one or both party´s income has changed. You cannot agree to never ask for a modification of child support. Support is the right of the child, not the parent.
Unless the judgment states that spousal support is non-modifiable, it can be modified after judgment. A material change of circumstances is required to obtain a spousal support modification order. Typically these circumstances are financial and involve a reduction in income or loss of job of either spouse or increased income of the paying spouse.
As the term implies, paternity establishes rights and obligations for non-married fathers. Legally establishing paternity gives fathers the opportunity to establish visitation, contact, and access to their children. Additionally, paternity actions can be instituted to obtain child support.
If paternity is an issue regarding your child, we can help.
This “Anatomy of a Family Law Case” will hopefully serve as a general statement that will assist you in regard to understanding some of the legal aspects and procedures which will be involved in your dissolution and, hopefully, provide you with a written statement of the answers of some of the most common questions.
The term "divorce" has been known to the general public for many years and is well-recognized. The name of this procedure has been officially changed in California to "dissolution." "Alimony" was changed to the term "spousal support." "Child support" generally remains in use. Another change is the creation of "no-fault dissolution." This means the court usually will not want to know which party was right or which party was wrong or any of the details of claimed misbehavior of either of the parties, except where it bears on the issue of child custody or visitation.
There are many private, public, and religious services available to counsel you regarding your marital and parental problems before you commence or go further with your dissolution action. This office can supply you with a representative list of counseling alternatives.
If you do want to have such counseling with the county or a private organization, it will not affect or delay your legal dissolution proceedings unless at some time you voluntarily choose to stop or postpone the proceedings. There are also many private counseling agencies that are sometimes covered by health plans, union plans, etc.
This office recommends that all persons have some counseling. Even if you perceive your marital problems or parental problems are totally resolved, you will certainly be assisted in understanding the problems of the marriage and of the dissolution. Further, and very importantly, counseling will ease the emotional stress of the dissolution proceeding. If there are children involved, counseling will be of benefit in dealing with the problems that arise with parenting these children. Such counseling will assist in lessening many emotional conflicts, particularly as to parental access to the children, and to this extent will be beneficial in the legal proceedings.
California law relating to property division in a dissolution proceeding is constantly changing and we will make every effort to keep you advised of these changes when necessary and applicable. The major point to keep in mind in discussing the division of community property is that all community assets and all community obligations of the parties, as of the date of separation, are to be divided equally between the parties in as practical a manner as possible.
The only parties permitted in a marital dissolution proceeding are the husband, the wife, and certain persons who claim or control an interesting subject to disposition in the proceedings and are brought into the action under the joinder provisions of the law. The spouse who initiates the proceedings is the "Petitioner," and the other spouse is the "Respondent." It makes no difference under California law which party initiates the dissolution proceedings. The Petitioner will file a Petition and the Respondent will file a Response. These are normally the only "pleadings" used in a marital dissolution proceeding. Once the Petition is served on the Respondent, the six (6) month clock commences to run for the obtaining of a final decree of dissolution. While many dissolutions take longer than six months to resolve, no final decree of dissolution can be entered sooner than the six-month period.
IMMEDIATE ACTION - "OSC"
Many cases require immediate action. The most common of these proceedings is called "OSC," which is an abbreviation for the legal term "order to show cause." This is a process by which we are able to get into court for a hearing in three weeks or longer to request the Court to grant certain temporary orders to maintain the "status quo" until a settlement is reached or a trial is held.
This hearing is generally for the following items, among others: child support; spousal support; restraining order against annoying or harassing a party; restraining order against disposing of or encumbering the property of the parties; custody of the children; visitation with the children; attorney's fees a party's right to exclusive use of property, usually the family residence or a car. The "OSC" proceedings require additional documents which are prepared for you by our office based on the information you supply which will include the order to show cause form, supporting declarations, and income and expense declaration.
INCOME AND EXPENSE DECLARATION
We have mentioned the "income and expense declaration." It is required in every dissolution case and especially where any “monetary” issues such as child support, spousal support, attorney fees, etc are involved, and is one of the most important documents in the entire case. You will be given an income and expense form to be completed. The declaration should be prepared carefully and reviewed carefully with your attorney. This is what the court will use to base an award of child support, spousal support, and attorney fees on. Both parties must submit one
The form provides space for listing the income of the parties as much as is known. What is not known is marked "unknown." Income tax returns and payroll records should be consulted and brought to the office. It should contain all the expenditures of either or both parties and is, in effect, a budget of what each party will need in the near future for his/her use and to sustain himself or herself. Also, it is very important to list on that page, in detail, all of the obligations that are owed by the parties individually or as a couple. Checking account records, bills, payment books, and other such records requested in our "Documents to be Furnished by Client" form and are to be obtained and brought to our office.
The next stage in a litigation matter usually is called "Discovery". The basic purpose of discovery is to enable the parties to obtain the evidence necessary to evaluate or resolve their dispute beforehand. Through effective discovery, the parties may determine that some claims are entirely without evidentiary support; or there is so much credible evidence as to others that they cannot reasonably be opposed. Thus, narrowing the issues to be tried and conserving court time and a trial. Also through discovery, each side can obtain better information regarding the opponent's case, and thereby better evaluate the strengths and weaknesses of its own case. This increases the potential for pretrial settlement. Effective Discovery eliminates the need for guesswork as to the adversary's case. Each side can find out a great deal about the contentions and evidence the other side will offer. Thus, there is less chance of some "surprise" evidence or claim necessitating a continuance. There is also less chance for fabrication or forgetfulness by the witness who testifies because their trial testimony can be checked against the answers obtained through pretrial discovery. However, the discovery has its disadvantages. There is always a risk of "educating" your opponents by focusing attention on evidence or issues of which they were unaware. There is also the added cost to the lawsuit for discovery. Fees and costs relating to certain forms of discovery are often more than can be justified in routine litigation. Also, a failure to use discovery procedures efficiently may greatly increase their costs.
The most common type of discovery methods are:
i. Written Interrogatories: An interrogatory is a written question asked by one party to another party, who must answer under oath and in writing. The answer may be used in evidence against the answering party.
ii. Request for Admissions: A Request for Admissions is a procedure whereby one party can force another party to admit or deny the truth of any relevant fact or the genuineness of any relevant document. These must be responded to under oath and in writing. The answer may be used in evidence against the answering party.
iii. Inspection Demands: This is a demand for inspection of physical evidence including documents and records. It also allows for inspection of tangible things such as land in the possession, custody, or control of the other party.
iv. Request for Physical or Mental Examination: This allows for a medical examination of a person whose mental or physical condition or blood group is in controversy in the action. This normally will only be requested in a personal injury case or paternity.
v. Depositions: A deposition is testimony taken before trial, under oath, subject to cross-examination, and preserved in writing by a court reporter. Under certain circumstances, such testimony may be admissible at trial. The answers may also be used in evidence against the answering party.
FAIR MARKET VALUE
In a dissolution proceeding, the value of your possessions means "fair market value." The fair market value is an estimate of the amount of money you could obtain if you sold the items to a stranger, as for example, through an ad in the newspaper. It does not mean what you paid for it originally, and it does not mean how much it would cost you to replace it if you lost it. In more technical terms, fair market value has been defined as the highest price estimated in terms of money which a given item of property would bring 1f exposed for sale in an open market with reasonable time allowed to find a purchaser buying with knowledge of all the uses and purposes to which it was adapted and for which it was capable. Usually, items such as furniture, etc are valued at “garage sale” or pawn shop prices.
The time and effort involved in a dissolution various greatly. It depends upon the circumstances of the parties, the nature and extent of the problems that are involved as to child custody, visitation, amount of child support, amount and duration of spousal support, property ascertainment, property valuation, property division, etc. The cooperation of the client is also a very important factor. You must inform your attorney immediately of any change of address, telephone number, employment, and circumstances. You must complete and return at once all papers sent to you such as interrogatories, requests for information, requests for documents, etc.
ROLE OF ATTORNEY
The attorney's role is essentially twofold, to 1) zealously represent the client in the litigation, and 2) advise the client of all important developments in the case and how the merits and value of the case are affected. The attorney must be free to exercise professional judgment and make strategic decisions. However, important decisions affecting ultimate resolution, such as whether to agree to settlement offers, participate in mediation or go to trial, are not made without consulting the client.
In those cases where there is a pension fund or program, profit-sharing fund or program, or other such benefits to one or both spouses, they must be shown, listed, and steps taken to clarify the desires of the parties in connection with the eventual division of these assets. Sometimes a special proceeding called a "joinder" is a necessity to bring the employer, the union, and/or the pension fund into the case. These are usually divided by a QDRO (Qualified Domestic Relations Order). This will avoid any tax consequences or penalties.
Eventually, an appearance in court may be required of one or both of the parties and the attorneys to obtain the judgment of dissolution. If it is a settled matter or a "default" only some simple questions will be asked of the parties with no problems.
Final decrees are obtained by signing a form requesting the same in my office. It is processed by the court without the necessity of a court appearance. This is usually done by both parties signing a Marital Settlement Agreement.
Time factors in each case vary greatly. In a settled, simple case, it takes a few days to prepare the papers and file them. They are served upon the other party who has thirty (30) days to respond.
If the matter is a default, it may be heard about thirty (30) days thereafter, or a total of about sixty (60) days after service, and the judgment of dissolution obtained. The final decree may generally be obtained six (6) months after the papers are first served on the other party. These minimal time estimates are not applicable to complex or contested matters.
The foregoing statement is a very general guide you. Each case is different and has different factors and circumstances which call for and receive my individual attention as your attorney. A separate analysis of individual problems is made and they are handled accordingly. Complex cases involving custody, property, support, pension, difficult parties, etc., take much more time and work.
AT FEES YOU CAN AFFORD We can often save you more than the cost of our service alone. (858)277-0232