California Family Law

California Divorce Proceedings

The process of divorce in California is known as a "Marital Dissolution." Dissolution of marriage is one of three ways to terminate a marriage in California. Another way to terminate a marriage is by an annulment. The parties to a marital dissolution action are the "petitioner" and the "respondent." The petitioner is the spouse who files the Petition for Dissolution. The "Respondent" spouse must be served a copy of the Petition along with other documents. Generally, the respondent has 30 days to respond to the Petition.

A marital dissolution proceeding will ultimately result in a "Judgment"" entered by the court. The judgment sets forth orders which resolve the issue of your case. Usually, issues in the Judgement include child custody, visitation, support, and division of assets and debts. A judgment can be obtained by "default" if the "respondent" after service does not respond to the Petition. The spouses may also decide to agree to the contents of the Judgment. If no agreement is reached, the issues will be decided by the Court after a trial.

In California, a Judgment for Dissolution of Marriage can not be entered until six months and one day from the earlier of when the Respondent was either served or filed a Response to the Petition.

Child Custody and Visitation

The courts may intervene if the parents in a divorce or paternity action are unable to agree upon the upbringing of a child. In California, such an action is designated as dealing with custody and visitation. Increasingly, this type of action is referred to as developing a "parenting plan". Traditional preferences for paternal or maternal custody for children of particular ages have largely been eliminated. The law assumes that the mother and father are potentially equally capable of providing for the needs of the child.

Mediation

The courts may intervene if the parents in a divorce or paternity action are unable to agree upon the upbringing of a child. In California, such an action is designated as dealing with custody and visitation. Increasingly, this type of action is referred to as developing a "parenting plan". Traditional preferences for paternal or maternal custody for children of particular ages have largely been eliminated. The law assumes that the mother and father are potentially equally capable of providing for the needs of the child.

Best Interests of the Child

The trial courts have substantial discretion in determining the appropriate parenting plan for each child. However, there are some guidelines which are commonly used in developing such plans. The fundamental standard, which is generally agreed to but of little help in developing a plan, is that of the best interests of the child. It is generally assumed that the best interests of the child require that:

1. The child have regular access to both parents 2. The child's residential status be stable 3. Minimizing the level of controversy between the parents is highly desirable

The parents share in decision making with regard to the child. If the level of controversy is too great, the court may assign areas of decision making between the parents as appropriate.

Joint Custody

In California, custody can be awarded to either of the parents, or to the two of them as joint custody. The right to custody carries with it all decision making on behalf of the child, unless the court specifically reallocates such decision making power. A parent with visitation is generally limited to making decisions with regard to the activities of the child during the visitation period, and any decisions having long-term consequences are supposed to be reserved for the custodial parent.

Changes in Custody

An award of custody is a temporary award and can be revised by a court at any time during the minority of a child. Nonetheless, the goal of providing the child a stable home commonly leads courts to refuse to consider a change in custody of a child, absent a very substantial change of circumstances. The parents themselves can voluntarily agree to change the custody arrangements made by a court.

Custody in Non-Parents

A parent may surrender custody of his or her child to a third person who is not the other parent of the child. A surrender is generally only effective if it is done for one of the following reasons:

1. With the consent of the other parent 2. With the approval of a court 3. Where the other parent has functionally abandoned his or her rights in the child

In cases of abandonment and other serious abuse, the parental rights of the abusing parent may be terminated. Once custody is established in the third party, a parent seeking the return of the child over the objection of the custodian would have to convince a court that such a transfer was in the child's best interest.

Jurisdiction in Child Custody Disputes

If the parties to a child custody dispute live in different states or countries, determining where disputes over custody are decided is complex. Within the United States, the issue of jurisdiction in child custody disputes is determined by:

1. Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) 2. Parental Kidnapping Prevention Act (PKPA)

Internationally, various treaties, especially the Hague Convention, play a role in determining jurisdiction.

California Community Property Law

With a few exceptions, all real property located in California and all personal property no matter in what state it is located which is acquired during the marriage while residing in California is community property.

Presumptions - It is presumed that the form of title determines the character of the property. For example, if title is held in Wife's name "as her sole and separate property", there is a rebuttable presumption that it is her separate property. Where property is held in the names of Husband and Wife "as joint tenants", there is a presumption that such property is community property. Any evidence in rebuttal of this presumption must be in writing. Verbal "understandings", assumptions, or even verbal "agreements" are not sufficient. Property held in the names of Husband and Wife "as husband and wife" is presumptively community property, unless a different intention appears in the document giving title.

With respect to Vehicles where title is held as "[husband's name] or [wife's name]", it is presumed to be held in joint tenancy. However, for purposes of dissolution, vehicles will be treated as community property unless a different intention can be shown in writing. Federal savings bonds, military pensions and insurance, other Federal program benefits, and Federal employee benefits are subject to special rules and you should seek legal counsel if you have questions.

With respect to Vehicles where title is held as "[husband's name] or [wife's name]", it is presumed to be held in joint tenancy. However, for purposes of dissolution, vehicles will be treated as community property unless a different intention can be shown in writing. Federal savings bonds, military pensions and insurance, other Federal program benefits, and Federal employee benefits are subject to special rules and you should seek legal counsel if you have questions.

With respect to Vehicles where title is held as "[husband's name] or [wife's name]", it is presumed to be held in joint tenancy. However, for purposes of dissolution, vehicles will be treated as community property unless a different intention can be shown in writing. Federal savings bonds, military pensions and insurance, other Federal program benefits, and Federal employee benefits are subject to special rules and you should seek legal counsel if you have questions.

Professional education -- a spouse's professional education is not community property. The community estate may be entitled to reimbursement for the costs of education paid by the community during marriage. However, the value of the practice of that profession, as a business interest, may be community property. If you have any questions about the characterization, valuation or apportionment of community and separate property interests, you should seek the opinion of an attorney before proceeding. There are very technical and complex rules governing these issues. Common sense and logic may not bring the same results as specific statues or case law.

All income, earnings and accumulations during the period of the marriage and prior to a separation are regarded as community property. This means that whatever income each spouse receives during the marriage is owned equally by the parties to the marriage. An exception to this community property rule applies to those earnings which are not due to any effort, skill or action of a spouse and which come entirely from separate property assets. For example, the interest earned on a savings account that contains only funds that were inherited by one spouse are not community property but are the separate property of the spouse who inherited the funds. Where a separate property asset generates income because of the effort of the owner-spouse, however, that will be regarded as community property. For example, if separate funds are used to invest in stocks, that portion of the income due to the knowledge and skill of the spouse will be regarded as community property.

Child Support

Parental Duties

A parent's first and principal obligation is to support his/her minor children.

A parent will pay the court-ordered child support payment as the first priority before payment of any debts owed to creditors. (Fam.Code, §§ 4011.) Your other creditors cannot put you in jail if you do not pay them. You can be sent to jail, fined, and/or ordered to perform community service for willful refusal to pay court ordered child support. (This is true for spousal support obligations as well.)

However, the nonpayment of support does not provide a basis for refusing to let the delinquent parent have access to the child; nor does the refusal to allow access to the child provide an excuse for not paying support. (Fam.Code, §§ 3556.) Each parent has an equal responsibility to support the child. (Fam.Code, §§ 3900.)

Amount
The amount of child support is required by law to be determined under a statewide uniform child support guideline. (Fam.Code, §§ 4052; Fam.Code, §§ 4055.)

The guideline considers each parent's actual income or earning capacity and the amount of time each parent has the child in his or her care(Fam.Code, §§ 4053.)

The formula is based on net income as defined in the guideline law. The court is required to determine net income as it would be shown after filing a tax return and not as it is shown in the parents' paychecks. (Fam.Code, §§ 4059.) Therefore, it is usually not possible to determine the exact amount of child support unless you have access to one of the state-approved computer software programs specifically designed for the calculation of child support.

You can obtain assistance with a guideline calculation of child support from an attorney who practices Family Law.

The court will allow a deduction for the amount of child support you are ordered to pay and are actually paying for another child. (Fam.Code, §§ 4059.)

The court may allow deductions from net income for extreme financial hardship due to justifiable expenses, such as, extraordinary health expenses, uninsured catastrophic losses, and minimum basic living expenses of natural or adopted children who reside with the parent. (Fam.Code, §§ 4059; Fam.Code, §§§§ 4070-4073.) You must be prepared to prove the actual amounts spent for any hardship allowance you are seeking.

No hardship allowance is made for your step-children even if yours is the only income that is supporting them (Fam.Code, §§ 4071)

Courts are required to add to basic child support payments (Fam.Code, §§ 4062) the costs for childcare related to work or reasonable and necessary education/training and reasonable uninsured health care costs for the children. Additionally, the court has discretion to add to basic child support payments costs for educational or other special needs of the children and travel expenses for visitation.

The court must also order health insurance to be maintained by either or both parents if the insurance is available at no cost or at reasonable cost compared to your income. (Fam.Code, §§ 3751.)

The court will also order health care costs that are not reimbursed by health insurance to be shared between the parents under Family Code §§ 4063 in a manner that is described in detail in the Judicial Council's Notice of Rights and Responsibilities (Form 1285.78).

Settlements

The guideline seeks to encourage fair and efficient settlements of conflicts between parents and seeks to minimize the need for litigation.

The amount calculated under the guideline is presumed to be correct in all cases, and only under special circumstances will the court set child support orders below the child support mandated by the guideline formula. (Fam.Code, §§ 4057.) You and the child's other parent may agree to an amount of child support above or below the guideline amount. (Fam.Code, §§ 4065.) The court can only approve an agreement lower than the guideline amount if:

The recipient of support has not assigned the right to receive support to a public agency (unless the District Attorney signs the agreement before it is presented in court for filing)

The parents state that their agreement is in the child's best interest and that the amount is sufficient to adequately meet the child's needs

The parents state that they are fully informed of their rights concerning child support

The parents state that the order is being agreed to without coercion or duress

- The parents set forth in their agreement that they know how much the guideline calls for and that they understand the amount they agree upon may be changed at any time without the need to show that circumstances have changed in the meantime

Duration Of Child Support

Support continues until age 18 if the child is no longer attending high school as a full time student, until age 19 while still in high school full time, until completion of 12th grade while older than 18 but younger than 19, or if the child marries or becomes self-supporting (emancipated) before reaching the age of majority. A disabled adult child is entitled to child support beyond this period. (Fam.Code, §§ 3901.)

If your earnings are being taken by a wage assignment for the support of your child, it does not automatically stop when a child attains the age of majority. You must obtain a court order to stop the wages from being automatically paid to the other parent. The easiest way is for you and the other parent to file a written agreement to terminate child support. If the parent who is receiving support will not sign such an agreement, you must serve and file an Order to Show Cause to terminate child support and vacate the wage assignment order.

Getting An Order For Child Support Before you can get an order for child support, you need to have a case filed with the Court. If there is not an existing case, you need to file one:

- If you are married to the other parent, you have to file an action for marital dissolution (divorce), annulment, or legal separation.

- If you are not married to the other parent, you have to file an action to establish paternity. Either mother or father may file a paternity action.

- If you file a paternity action or a petition for divorce, annulment, or legal separation, you can request orders for custody and visitation as well as child support.

- Child support orders can be made in a Domestic Violence case also. If you have an already existing case, you must file your request (Order to Show Cause) using the case number of that case in the courthouse where the case file is located.

Enforcing A Child Support Order There are many ways to enforce a child support order. The same methods can be used to enforce a spousal support order. The following are some of the ways a support order can be enforced.

- Wage Assignment Order - This is the most commonly used method. It works very well for those paying parents who have a job. The Wage Assignment Order requires the employer to send the money to the receiving parent or the Los Angeles County Court Trustee if the District Attorney's Bureau of Family Support Operations is involved in the case.

- Writs of Execution - Generally, all of the paying parent's property is subject to this Writ, even if it is in the possession of a third party. If more than the paying parent owns the property, only the paying parent's interest can be reached by the execution lien. Bank accounts are subject to execution liens. There are a few exceptions as to the type of property which can be reached by this lien, so a collections or support enforcement attorney should be consulted.

- Contempt - This could result in community service or prison time for the non-paying parent who is aware that there is a valid court order for child support.