Call Us
714-441-1410
Possible Issues in Family Law Proceedings
Actual Divorce, (Status)-Allows Party To Remarry
(May bifurcate issue to allow early divorce). Do you want or need to get done as fast as the law allows, i.e. 6 months and 1 day from time other party served, vs. just get divorced when all the other issues are resolved? (Does not apply to paternity or modifications)
Child Custody
Time Share, Visitation (Standard schedules found the FILES PAGE pare see O.C. Parenting Plan Guidelines and Children's Holiday Schedule). At the initial hearing, the Court usually just preserves the STATUS QUO or (AS IS). It is important if you want 20-50% or more time share with your children to actually be doing that at least couple of months before the court hearing, (i.e. Have kid(s) sleep at your residence 4 or more nights per week at least 4 weeks prior to the hearing). You need to do the following: Develop a parenting plan, attend and get certificate from parenting course, read parenting books and use info in your declaration as to why you should have custody and why (date, time, place, exact quotes) the other parent should not. Spend time and document it with your children and get 3rd party declarations of witness to appear at the hearing. You must not get a DUI, Domestic Violence order or "busted" before or during any child custody proceeding. If you are doing drugs of any kind without doctors specific orders, STOP or give up Custody/Time with your kids.
Child Support
Is calculated on each parent's income, which is determined by last 3 pay stubs and last 2 years' tax returns. These must brought to every meeting and court hearing. For self-employed or 1099, you need the above plus current year's up-to-date bank statements, profit and loss. An issue often arising is if the court should use current Income or ability to earn + non-cash write offs, car allowance company paying individual expenses, etc. The decision to use lower current income is whether or not income dropped after filed for support and whether it is good faith change, i.e. Laid off/fired vs quitting. You will need the names and addresses of all possible employers and sources of income and banks to subpoena for true facts. A parent is not required to work overtime but will pay support on the overtime if worked.
Property Division
Community property is divided equally at date of trial. Separate property must be traced and evidence provided. Business valuation and real property appraisals are issues to consider. Pictures and 3rd parties are helpful in proving the existence of property. Generally, property owned prior to marriage that is not transferred into the community remains separate and property acquired during the marriage is community. FC §2640 provides for the value of down payment to community home is to be given back to party who made it without interest or appreciation.
Debt Division
The person using the asset usually is awarded the debt, (often without credit). If the asset is negative then the debt needs to be addressed at the outset of litigation. (Important to copy every bill for community debt for month prior to separation to trial and every proof of payment, i.e. check or auto bill pay to get credit - you cannot get credit without). Bring in all community bills at start of case and keep good records until trial or settlement.
Spousal/Alimony Support
The greater income usually pays the lower income some support up to ½ length of marriage if married less than 10 years. If married over 10 years the court can order payments for life, or until marriage or death, unless the parties agree in writing to a shorter period, often after extra payment. It is critical to get the non-working spouse to work as soon as possible. At the initial OSC, i.e. the first hearing, the computer Dissomaster/Xspouse guideline schedule is used together with the parties declarations under penalty of perjury as to their income, however the computer is not allowed to be used at the trial. At trial the court must use FC 4320(a)-(n), to establish lifestyle and amount of need, usually ½ of gross income. Often a vocational expert is retained to assist the court in imputing income to the non- or under-working spouse. For the court to impute income they must find that a reasonable job is available and the party must have the qualifications.
Actual Income/Ability to Earn
As set forth above is a large issue and any and all information must be documented and provided to help the court determine actual disposable cash flow, not just what story is told to IRS on tax returns. Include all side business income and add in back depreciation and all non-cash expense(s) such as a home write-off or personal cars, and phantom write offs.
Retirement / Pension / Deferred Compensation
Benefits must be divided, usually by a Qualified Domestic Relations Order (QDRO). Most large companies have a sample plan that reduces the cost to prepare the order, you'll need to get it if available. Often we use a third party to write up the order and both parties share equally the expense of dividing the 401, 403, SEP, IRA, pension or other deferred compensation, using time rules. The time the parties were married is the community portion and each party receives ½ of that amount. The remaining time is separate to the person who earned.
Credits/Reimbursements
Any community obligation existing at D.O.S. (Date of Separation) must be identified and if paid and you provide evidence, i.e. bill and proof of payment you will be reimbursed for one-half (½) of the payment post separation. If you pay the other party's expenses after D.O.S. then you will get 100% repayment.
Attorney Fees
The code provides for the party who makes substantially more than the other to contribute to their fees, usually 25%-50% of the total. Thus, the higher income earner usually get stuck for one-fourth to one-half of the other party's fees or more if the other party is unreasonable, by not settling when they should have. See Family Code 2030, 2032 (need and ability) and 271 (bad faith). Many things can be done on both sides to assist order. The best defense if you are the higher income earner is to offer a reasonable settlement offer the first month of the proceeding.
Premarital and Postmarital Agreements & Set Aside Judgment
You only have 6 months to set aside an easy default judgment from date entered and one year to set aside an unfair judgment that relied on incorrect on incomplete declarations of disclosure. If you desire a premarital agreement it must be done with an attorney and the other party must have it in their possession not less than 7 days prior to the day they sign it and they must have a lawyer etc. This is a very technical issue and you need to discuss this thoroughly with counsel immediately. Time is of the essence and if you delay you may not be able to set aside the judgment.
Domestic Violence
This is critical in a custody contest. The family code states that there is a presumption that custody should not be awarded to the party who is the aggressor in a domestic violence order. The victim should call 911, take photos, document/write down in detail every word, action, etc., have the police press charges and notify their lawyer first thing, and if in the evening then at opening of business the next day. The court has a process to assist persons trying to get the order themselves but a lawyer is suggested because if you do not word it properly the request for an order will be denied. If you have been accused of domestic violence then you must write down every word and every action with time and date, and try to find a third party witness to support the fact that you did not injure or threaten injury to the other party.
Personal Family Law Issues
Paternity, child abuse, grandparent contact, adoption and all other family law issues are so personal, that general rules often don't apply and each situation must be dealt with on a case-by-case basis. Please come in and develop a strategy for your facts and desires. However, for every issue, file first - this means you are on top of the matter and you will generally have a more favorable outcome. It is essential for the prospective father to file first because the mother can adopt out the child if dad has not filed before baby is born.
Developing a Plan
Generally the first party to develop a plan and initiate action will have an advantage in all of the above issues.
Contact Form
