LAW OFFICES OF ALAN SHIFMAN

FAMILY LAW

Grounds for dissolution in California.

In California, there are two grounds for dissolution (also known as divorce):

• Irreconcilable differences. 
• Incurable insanity 

In addition, you or your spouse must have lived in California for six months and in your county for three months before filing a petition to dissolve your marriage. There is no residency requirement for filing for legal separation.

Temporary Restraining Orders and Restriction of Travel with Minor Children during the divorce process.

There are temporary restraining orders (rules prohibiting both of you from doing certain things) that go into effect automatically when the divorce process begins.

Neither party will be allowed to take minor children out of state without the other spouse’s written permission or a court order. Nor will either of you, in most instances, be allowed to cancel or change the beneficiaries on your insurance policies.

You will be required to notify your spouse before any out-of-the-ordinary spending—and be prepared to account for such expenditures to a judge.

These requirements are described on the back of the divorce Summons.

Options in handling a divorce.

There are several alternatives, including the following:

• Full attorney representation by having an attorney represent you in court.
• Limited attorney representation by having an attorney assist you in a limited capacity with certain parts of the divorce.
• Mediation can assist in reaching a negotiated resolution with the assistance of a mediator in a non-adversarial atmosphere.
• Self-representation by acting as your own attorney. 

Factors such as time, cost, relations between the parties, and control may affect the choice of alternatives.

Legal separation or an annulment instead of a divorce.

Legal separation or an annulment may be granted without having lived in California for six months or your county for three months before filing.

• Legal separation. If you have considerations such as insurance, tax or other reasons for wanting a legal separation instead of a divorce, you and your spouse will remain married, but the court can divide your property and issue orders relating to child custody, visitation, child support and spousal support, and, if necessary, a restraining order.
• Annulment. If you are granted an annulment, it is as though your marriage never existed. You may be able to get an annulment if you married when you were a minor without the consent of your parents or guardian, or if certain types of fraud or deceit were involved. If you want an annulment, however, you will have to appear in court for a trial.

Filing for dissolution

Our office will prepare the forms called the Petition and Summons and then file the Petition and Summons with the clerk of the superior court of the county where you or your spouse lives.

There is a filing fee for these papers unless you have a very low income and qualify for a fee waiver.

We arrange for a copy of the Petition, the Summons, and a blank Response to be served on your spouse.

The Summons gives notice to your spouse that you are filing for a dissolution and that he or she has 30 days in which to file the Response.

The Summons also contains restraining orders that prohibit you and your spouse from removing your minor children from the state without the other spouse's approval, disposing of property without the other spouse's or court's approval, and canceling or changing insurance policies.

There are several steps that may occur after you file.

• Disclosure: The parties must complete disclosure declarations that provide information about your income, expenses, assets and debts which we will deliver to your spouse.
• Temporary orders: Either party may ask for a hearing so that a judge can decide any temporary child custody, visitation, support, requests for attorney fees or restraining order disputes. 
• Agreement: The parties should work on permanently resolving the issues raised in the dissolution. If an agreement is reached, neither party will have to appear in court and a judgment based on the agreement can be entered.
• Trial: If the parties are unable to reach an agreement, both parties will appear in court for a trial in which a judge will make the decisions.
• Default: If your spouse does not file a Response, you may request a default and proceed to a default hearing to obtain a judgment.
• Judgment: A judgment ending your marriage can be entered six months from the day your spouse is served with the Summons and Petition.
• You cannot legally remarry until you obtain a judgment even if the six months have passed. If you want to remarry or have some other reason for wanting to be single at the end of six months, a judge can dissolve your marriage even though some property or other issues are not yet settled.

Domestic Violence

If your spouse injures you or anyone else in your household, call the police immediately.   The police can, if warranted, contact an on-call judicial officer and issue an Emergency Protective Order ("EPO"). This would legally prohibit your spouse from coming within a certain distance of you.  It also may grant you temporary custody of your children and bar your spouse from the family home. An EPO remains in effect for five court days. To obtain a longer-term restraining order, you would need to file for a Temporary Restraining Order.

Discovery to find iformation about income, property and finances

There are several legal procedures known as "Discovery" to obtain information about income, assets, debts and other relevant facts, including depositions, interrogatories, request for admissions, and inspection demand  relating to important documents.

Third party information (such as an employer, bank or school), we will prepare a subpoena requiring them to appear with the documents in court or at our office.

Division of Property

Under California law, both spouses are deemed to make valuable contributions to a marriage. Most property will be labeled either community property or separate property.

• Community property is all property that you and your spouse acquired through labor or skill during the marriage. You and your spouse may have more community property than you realize, including an interest in pension and profit-sharing benefits, stock options, other retirement benefits or a business owned by one or both of you.  Each spouse owns half of the community property. With few exceptions, debts incurred during the marriage are community debts as well, including credit card bills. Student loans are an exception and are considered separate property debts.

• Community property possessions and debts are divided equally unless you and your spouse agree to an unequal division—or unless there are more debts than assets.

• Remember that if your spouse agrees to pay a community debt and fails to do so (or files for bankruptcy and discharges the debt), you may have to pay the creditor.

• Separate property. Separate property is property acquired before your marriage, including rents or profits received from these items; property received after the date of your separation with your separate earnings; inheritances that were received either before or during the marriage; and gifts to you alone, not you and your spouse. Separate property is not divided during dissolution.

Spousal support

Spousal support helps support the other after the filing of a dissolution. The spouse receiving such support will pay federal and state income taxes on it, and the one making such payments will be entitled to a tax deduction. Courts consider several factors in determining the amount of support, such as the standard of living during the marriage, the length of the marriage, and the age, health, earning capacity and job histories of both individuals.

If the marriage lasted less than 10 years, it is unlikely that a judge will order spousal support for longer than half the length of the marriage.

Perhaps neither of you need spousal support. Since circumstances can change (you could become ill, for example, or lose your job), you may ask the judge to reserve jurisdiction to order spousal support in the future. (The judge will be more likely to do this if your marriage lasted 10 years or close to it.) This will leave the door open so you can ask for such support at a later time.

Child Support

In general, both parents are responsible for supporting the children if they are under age 18.  The amount of support is based on established guidelines utilizing factors including each parent’s income and the amount of time each parent cares for the children.  Child support is not treated as income for federal and state tax purposes, and the parent paying is not entitled to a tax deduction.

If necessary, you may request a wage assignment order. This is an order that requires a parent’s employer to make child support payments directly to the parent entitled to receive support.

If the parents are unable to agree on custody or visitation, the Court will make the decision for you.  Before any hearing or trial involving child custody or visitation, both parents are required to meet with a trained counselor hired by the court. The counselor will try to help you agree on a custody and parenting plan.  These sessions are arranged through Conciliation Court or mediation offices, and are held in private offices located in the courthouse.

In some counties, the assigned mediation court counselor will submit a recommendation to the judge even if you and your spouse did not reach an agreement.  In other counties, these sessions are entirely confidential and the counselor can only report agreements reached by the parents. 

Depending on the nature of the custody dispute, the judge may order a psychological evaluation of the family as well, and may appoint an attorney to represent the children. If an attorney is appointed for your child, you and the other parent may be required to bear all or part of the cost.

The Court may grant custody to one or both parents, or, in some cases, to another adult based on the best interests of the child. Considerations include the child’s health, safety and welfare, as well as any history of abuse by one parent.

• Joint legal custody. The parents share the right and responsibility to make important decisions about their children’s health, education and welfare. Such decisions might include, for example, where the children will attend school or whether they should get braces on their teeth.
• Sole legal custody. One parent has the right to make decisions related to the health, education and welfare of the children.
• Joint physical custody. The children spend time living with each parent on a regular basis. This does not mean, however, that the children must spend equal amounts of time with each parent.
• Sole physical custody. The child lives with one parent and the other parent has visitation.

Try to keep in mind that the actual time spent with your children is probably more important than the legal terminology used to describe the arrangement.  Also, the specifics of such custody orders can vary. For example, a judge who orders joint legal and physical custody may name one parent as the primary caretaker and one home as the primary residence. A Court might order sole physical custody to one parent and supervised or no visitation to the other if it appears that a parent may present a threat to the child’s welfare or safety.