The Dissolution of a marriage is never an easy thing and always involves the feelings and emotions of others. Therefore, at the Law Office of Robert C. Smith our firm is sensitive to the needs of our clients during these stressful situations and we work diligently to see that our client's rights and interests are foremost and effectively presented to the court.
Divorce, or dissolution of marriage, is a method of terminating a marriage between two individuals. As such, a divorce terminates the marital union and it gives each person the legal right to marry someone else. It also legally divides the couple's assets and debts and determines the care and custody of their children. Each state addresses these issues differently.
All states require a spouse to be a resident of the state (often for at least six months and sometimes for as long as one year) before filing for a divorce there. Someone who files for divorce must offer proof that he has resided there for the required length of time. Proof usually consists of either a written or oral declaration that the party meets the residency or jurisdictional requirement. If you think that your spouse will file for divorce in another state, it is prudent that you retain an attorney and file first.
Rarely is a divorce settled in one court appearance, and if your spouse files elsewhere you could rack up a lot of traveling expenses. Also, any modifications to the divorce decree, including the property settlement agreement and arrangements for child custody and support must be filed in the original state. This could keep you traveling out of state.
The only way to move a divorce case from one court to another is to file a request for a change in venue. This is a formal request to the original court to transfer the case to another court because the subsequent court is a better place or forum to continue with the case.
Together with our clients, we create a plan and a budget to ensure that we have a mutual understanding of the expectations and risks associated with divorce or other family law issues.
The primary issues to be decided during a divorce are alimony or spousal support, division of marital assets, division of debts, child custody and visitation, and child support. When spouses agree, they can usually obtain a divorce quickly with an uncontested divorce. More typically, however, divorcing spouses have disputes regarding their post-marriage financial arrangements and the care and custody of their children.
One spouse may be entitled to receive spousal support (California courts no longer refer to spousal support as Alimony even though most individuals still commonly refer to it as "Alimony") from the other spouse commencing from the date of separation, or from when the request is made, and continuing until further court order. Whether or not spousal support is awarded is a complex issue and involves numerous factors. Some of the more important factors are the length of the marriage, the supported spouse’s need for support, the paying spouse’s ability to pay, the age and health of the parties, the skill levels of the parties and ability to earn, and the present income and historical income of the parties.
The underlying questions are the ability of one party to pay spousal support, the need of the other party for spousal support, and the ability of each spouse to be self-supporting. The parties may agree to an amount and duration of spousal support or may even agree to a lump-sum buyout. If the parties cannot agree, the court will make orders for the amount and length of spousal support, or may reserve the issue, or terminate either or both of the parties' rights to receive support.
In California, if a marriage is one of less than ten (10) years spousal support will generally last half the length of the marriage. The length of the marriage is calculated from the date of the marriage to the date of separation of the parties. If the marriage is longer than ten (10) years (commonly referred to as a marriage of long duration), spousal support may last until the remarriage of the supported spouse, the death of either party, or further court order. In most marriages of ten (10) years or longer, it is possible that spousal support may last indefinitely.
The issue of Spousal support should not be taken lightly and divorcing couples should seek legal advice in order to understand their rights or obligations under California Law. For a free initial consultation call the Law Offfice of Robert C. Smith 909-563-8644 or complete the online Client contact form.
Establishing paternity (parent child relationship) means legally determining the father of a child. If a child's parents were not married to each other when the child was born, the law does not recognize the father unless paternity is legally established by a court order. Establishing paternity will give your child the same rights and benefits as children born to married parents.
These rights and benefits include:
- Legal proof of each parent's identity
- Information on family medical history in case of inherited health problems
- The child knowing the identity of both parents
- The father's name on the birth certificate
- Medical or life insurance from either parent (if available) *Financial support from both parents, including child support, Social Security, veteran benefits and military allowances (if applicable), and inheritance.
Furthermore, establishing paternity is extremely important to father’s who are not married to the mother of the child. Without a court order determining paternity and establishing a legal parental relationship between a father and child, a father is limited in asserting his parental rights. A court order is needed to enforce parental rights specially custody and visitation. Without a valid order signed by a judge most law enforcement agencies will not enforce a visitation or custody agreement. Thus, informal arrangements and/or agreements between the parents are useless when trying to legally enforce one’s parental rights.
Establishing paternity gives the father and mother legal rights to:
- Seek a court order for child support
- Seek a court order for custody or visitation
- Have a say in certain legal decisions about the child
- Request move away orders
We understand the legal issues at stake in establishing paternity and are ready to help you with your paternity issues.
One of the main contested issues in a divorce case is the custody of minor children (those under 18 years of age). Before the parties separated, each parent enjoyed full custody of the minor children. Consequently, there was no issue as to who was the parent. Up to that point, the parties had been sharing the responsibility of raising the children. After separation, custody of the minor children is divided between the parents. As a result, custody of the children is divided and the result can be a 60/40 time share, 50/50 time share, or it could be divided on some other percentage basis. The parties can agree to an appropriate time share by stipulation and court order or the court will set an appropriate time share that is in the "best interest of the children."
The "best interests" standard is a very subjective test. It is almost impossible for the court to truly know what is in the best interest of the minor children. If the parents cannot decide, and they raised the children, it is that much more difficult for the court to make such a finding. Nevertheless, in making this determination, the court will look at such things as who spent more time with the children, who bathed them, took them to school, helped with school work, cooked them dinner, etc. Also, depending on the age and maturity of the child the court will consider the child's preference.
The care and upbringing of children following divorce is often an ongoing source of conflict for divorcing parents and will consequently lead to numerous requests for modification of custody orders. Custody must address both physical custody, or the rights and responsibilities regarding the day-to-day care and activities of their children and legal custody, or the legal rights and responsibilities associated with the child's upbringing, which includes education, religion, school, and extra-curricular activities. Courts are favoring joint legal and joint physical custody and the sharing of ongoing child rearing responsibilities, with the children residing where it is most practical and where they will flourish best.
Divorcing couples often tackle custody and visitation issues as soon as they separate. Courts generally honor any custody agreements divorcing parents reach regarding their children. When custody is contested, most courts will require parents to participate in a mandatory mediation session. If mediation is unsuccessful, the court will determine custody. Though rules differ from state to state, most courts generally reach decisions about custody and visitation after considering what arrangement will serve the best interests of the child.
Except when parties agree otherwise, courts often impose standard visitation and custody orders. A typical visitation schedule allows a non-custodial parent to see the children one night a week, every other weekend and some portion of school and summer holidays. In order to change a court-ordered custody and visitation scheme the parent seeking the modification must show a substantial change in circumstances once there has been a final order. Some states will only consider a request for modification within two years of an original custody determination if there is a showing that the child is endangered by the current arrangement. In order to prevent parents from shopping for friendly rulings in different states, some states will only consider custody-related requests if the child has been a resident of the state for six months or longer.
Child support is ordered pursuant to a complex formula (California Child Support Guidelines) that involves many factors, two of the most important of which are the time share percentage each parent has with the children and the absolute and relative incomes of the parties.
California Law requires that parents financially support their children. That obligation usually lasts until the child reaches "the age of majority" (18 years), or 19 years if the child is still a fulltime high school student and living at home, marriage of the child, emancipation, or becomes self-supporting. The responsibility to provide support in the form of regular payments generally arises when one parent has primary custody of the child (or more time than the other parent). An order for child support may be entered during or after a divorce. Either parent may be ordered to pay support depending upon how custody is arranged. An unmarried mother may also file a petition for child support in family court and an order for support will be entered once paternity has been established.
It is important to note that just because the parents share equal time with the children, this is to say they have a true 50/50 equal time split, does not mean one parent will not have to pay the other one child support. If one parent earns more money than the other, it is likely that he or she might have to pay child support to the other parent even if they share equal time with the children.
In every state, the amount of support is set after the needs of the child and the parent's income are assessed through the use of state specific guidelines. The paying parent must regularly make the ordered payments usually half is paid of the 1st of the month and half on the 15th of the month. Failure to remain current with child support obligations exposes the paying parent to significant penalties.
Furthermore, child support arrears collect interest at a rate of 10% per year and pursuant to California Law there is no statute of limitations for child support arrears. The debt is good until paid. It cannot be discharged in a bankruptcy or barred under the legal theory of Laches.
A common mistake made by parties paying child support is not to seek a modification of the order as soon as there is a change in his or her income, or the custody schedule. Once an order has been made, it is enforceable until modified. Thus, if the person becomes unemployed or disabled, or suffers a reduction in pay for any other reason, it is that person’s responsibility to seek a modification at that time. Child support will only be modified as of the time of the request for a modification and not from the time of the change in circumstances. For example, if a parent is unemployed but waits one year before he or she files for a modification, he or she will be precluded from seeking that the modification be retroactive to the date that he or she became unemployed. The order will only be modified as of the date the party filed the motion to modify the child support order. Therefore, it is important that once there is a change in circumstances that the party needing a modification file immediately.
It is very important to be able to accurately calculate the income of the parties. This is easier when a person is not self-employed and receives W2 wages. If such is the case, then Gross Income is provided on the person’s pay stub, W2 statement, or tax returns. However, calculating income is much harder when a person is self-employed. When such is the case, it is extremely important to make sure that all of the itemized deductions are legitimate and proper business expenses. If not, the court will add those deductions back into the parties Gross Income.
There are other allowable deductions such as health insurance premiums, dental insurance, union dues, mandatory retirement, and non-reimbursed job related expenses. This are also important factors to consider when calculating child support orders although there importance and impact is less than the two main factors described above.
Once support has been ordered, both parents have the right to request changes or modifications. Paying parents face a difficult time when making a request that support be reduced. Even if a paying parent's current income is insufficient to meet their support obligations, a court may impute a higher earning capacity to them and order support based on that higher earning power. Because of the state specific requirements involved in child support, parents can benefit from the advice and involvement of a family law Attorney when child support issues arise.
Child custody and support are two of the most contentious issues in many divorce proceedings and are best resolved with the proper professional legal help.
During the divorce proceedings and/or subsequent to entry of a judgment of dissolution, upon request of either or both parties the court may also grant domestic violence restraining orders (DV Restraining Orders). Domestic violence restraining orders may include but are not necessarily limited to personal restraints, property restraints, stay-away orders, no-contact orders, orders that one or both parties pay specific bills, and/or orders to award exclusive possession and/or control of certain items of real and/or personal property to one or both parties.
DV Restraining Orders are granted when one party can prove that domestic violence has occurred as defined in the California Family Code. Conduct that constitutes domestic violence under the California Family Code includes such things as: stalking, harassing, verbal threats, threats with objects such as knives or clubs, unlawful imprisonment, following, limiting the movement of an individual or ability to leave, assault, and battery.
Generally, the person seeking the restraining order (the protected person) will seek a DV Restraining Order (CLETS) as an emergency or expedited basis know as an ex-parte hearing. Many courts have an actual hearing in front of a judge to hear ex-parte motions. However, some courts only require that the protected person file a declaration in support of the request and that the Defendant or accused file a declaration in opposition of the request for a DV Restraining Order. If the court grants the motion, it will issue a temporary restraining orders for twenty-one (21) days. A hearing will also be set for both parties, the protected person and the defendant, to return to court to have an evidentiary hearing to determine whether the court should grant permanent restraining orders or dismiss the case.
There have been recent changes in the law concerning domestic violence restraining orders. In the past, the court could grant a permanent restraining order for up to three years. Now, courts have the ability to grant them for up to five years.
Once the permanent restraining order is about to expire, the protected person may file a request to re-issue the permanent restraining order. The court can grant the re-issuance on an ex-parte basis but most courts will require an evidentiary hearing to determine is there is evidence in support of continuing the permanent restraining order beyond its original expiration date.
Normally, a court will issue another temporary restraining order when a protected person applies for a re-issuance and set a hearing twenty-one (21) days out to hear evidence in support of re-issuing a permanent restraining order.
Restraining orders are registered in a statewide database. California Law Enforcement Telecommunications System or (CLETS), allows law enforcement agencies access to all restraining orders that are entered and filed by family law courts. This makes restraining orders easy to enforce by law enforcement in any part of the state. However, DV Restraining Orders also become part of the defendant’s record and this information will be available to any person or company conducting a background check on the defendant. This can have serious implications for the defendant in the future when seeking employment and/or security clearances.
Our experienced family law attorneys can help you in either obtaining a restraining order or defending yourself from an unwarrted restraining order sought by the other party. Getting early advice by one of our experienced family law attorneys can greatly impact the ultimate result.