A PRIMER ON DIVORCE, SUPPORT, CUSTODY, VISITATION, AND DOMESTIC VIOLENCE IN CALIFORNIA
In California, either party to a marriage can file for divorce. It really doesn’t matter if the opposing party doesn’t want to get divorced or says that they will refuse to cooperate. In fact if they fail to cooperate at all it usually makes the obtaining of a divorce easier.
Couples that are not formally married but that have children together and cannot come an agreement as to custody and visitation file a Paternity Action. It is a different action, but the steps are pretty much the same as with a divorce. There is one major difference however, in a paternity action the court has no power to divide property that the parties aquired during the relationship. That has to be done in Civil court, and in the case of real property it has to be done in what is termed a "Partition Action".
A divorce is started by filing a “Petition for Divorce” with the court and paying a filing fee. The filing fee can be waived in the case of persons that cannot afford to pay it. The next step is that the opposing party has to be “Served”, that is they have to have the documents given to them. It is very important that this be done properly as the case cannot proceed without “Proper Service” and the necessary documentation properly filled out and filed with the court. If the filing party doesn’t know where to find the other party or for some reason cannot serve them, there are procedures in place so that the case can still move forward.
Divorces take on three basic forms, the Default Divorce, the Uncontested Divorce, and Contested Divorces. A default divorce is the simplest form of divorce, as only one party is really engaged in the process. The divorce is filed and served, and after 30 days if the opposing party doens't file a response with the court, they can be "Defaulted" by the petitioning party. This means that as a matter of law, the petitioning party can now be divorced by the court. The petitioning party (Or "Petitioner") has to attend a "Default Prove Up" and if all of the paperwork is in order, the divorce is granted. An Uncontested Divorce is "Generally speaking" where both parties want to be divorced and they come to an agreement between themselves as to all issues and just need the court to sign the agreement and paperwork. The final category, a Contested Divorce, is just that, it is a divorce in which the parties cannot come to an agreement on one or all issues and they need judicial intervention. Contested divorces are usually going to involve “Discovery” and a “Trial”.
Most contested divorces will take eight months to a year or more to complete. In order to settle “Interim Issues”, the parties file what are called RFO’s (Formally called an OSC). Interim issues usually involve custody, support, and or visitation. You must not confuse an interim order with a final judgment as the rules change once a judgment has been issued.
A legal separation is a divorce without being divorced. Some people choose to be legally separated for religious reasons, others because they only want to place “One foot in the water” so to speak. The main thing to remember is that when parties are only legally separated they cannot get remarried unless they are later divorced by the court. Most legal separations become divorces in the end making the filing a legal separation generally a waste of time.
Child support is just that, support intended for the care of a child or children. Although it is paid by one parent to the other, the money is intended for the care and upbringing of the child/children.
In general the custodial parent has a right to receive child support from the non-custodial parent. A parent is the custodial parent if he/she has the child or children 51% or more of the time.
As for computing ones income for the purpose of calculating the amount of support to be paid, the court has the power to consider “Income from all sources”. Therefore it doesn’t matter if the noncustodial parent works for a company and receives a regular paycheck every month, has their own business, receives rents, or lives off of a trust fund or investments. The non-custodial parent generally will have to pay child support at some level to the custodial parent.
A common misconception is that the court uses the “Net” income of the parties to calculate support. Actually the court uses the “Gross” income of the parties (Before taxes and expenses) and not the “Net” (What is left over after taxes and expenses) and the law says that child support is to be paid “Prior” to any other expense. This means food, clothing, car payments, house payments, everything. In other words, a parties "Expenses" every month are generally irrelevant.
The reason is obvious, if this were not the law, the noncustodial parent could easily avoid paying support by simply spending all of his or her money by the end of the month and then claim that they are broke. This trick is very common - for example the noncustodial parent buys a new more expensive house, or a new car, or even marries into another family in which there are children or has additional children. They could then claim that he or she can’t afford to pay child support. This won’t work and the court really doesn’t care if they have to sell their assets and trim their lifestyle to afford to make the payments.
Another trick is for the non custodial parent to live out of the “Business bank account” and then claim that they are only paid a minimum amount on payday. The court’s generally have no tolerance for this behavior and again, it may result in the opposing parent having to sell their assets, the house, or the car in an effort to pay the support ordered. In fact the court has the power to order that the Gross Income of the business is the income of the non-custodial spouse, at least until he/she comes to court with a true and accurate representation of what they actually take home.
In the case of unemployed/underemployed parents, the court has the power to “Impute income” to them and award child support based on the imputed amount (Usually minimum wage but not necessarily if you can prove that they could earn more). As for parents that try to hide their income, accountants can be employed to determine the true level of income that they have. The court even has the power to determine income “Circumstantially” - basically that means that the court adds up their monthly expenses, totals them, and uses that amount as a basis for determining what their income should be. Even a determination of “Lifestyle” and expert testimoney can be used in some situations.
Voluntarily reducing one’s income (Not to be confused with retiring at the proper age) or suddenly deciding to attend school full time is another trick that generally won’t work.
The amount of support that one has to pay is based on an algorithm (A fancy way to describe a long mathematical formula) that takes many factors into consideration. The most common way to make the determination is to utilize one of many computer programs. The most popular are “Dissomaster” and “Xspouse”. However the “Primary factors” used to make the determination of what amount is to be ordered are very simple – custodial time/ (Visitation) and the parties relative income. There are others, but these are the primary “Drivers” of the calculation. The amount that the program calculates is “Presumptively Correct” and the court will not reduce it unless there is a very strong reason or an agreement between the parties.
In short, the more that you make, the more you pay. The more that don’t have the child/children during the week, the more that you pay. Most people cannot control their income easily, but they can control how much time they spend with the child/children to some extent. This is why a determination of what the appropriate custody and visitation order should be is so important in a family law case and is usually the center of any litigation.
Child support is generally modifiable whenever the situation (Usually visitation time) or the income(s) of one or both of the parties change. Child support generally continues until the child/children are 18 and may continue longer in some instances (With respect to disabled children, it may continue for the life of the child).
Spousal Support is very different. Spousal support is money to be used for the support of a spouse that is disadvantaged by the divorce financially. A classic example is the couple in which the husband worked and the wife stayed at home and watched the children for 25 years. In this example, upon divorce the court will probably not force the wife out on the street. Instead the court will order the husband to pay the wife what it determines to be a reasonable amount for her expenses relative to the income of the husband and the lifestyle that the parties were accustomed to prior to separation. It doesn’t matter which party is disadvantaged and more and more the wifes are being ordered to pay the husband spousal support upon divorce because of a superior earning capacity.
Spousal support is calculated differently than child support and the rules change depending on what point in the litigation you are in and how long the parties were married. There is one landmine with spousal support however that must be remembered – once waived, it is usually forever waived, even if later the parties situation changes or the opposing party refuses to comply with their side of the court order/agreement.
Child support and spousal support orders are enforced when a party doesn’t pay by what is called a “Contempt” action. It is a very serious situation as if one is found guilty of contempt of a support order, the sentence can be as much as five (5) days in jail for every payment missed and a substantial fine plus probation for years. Yes, even then, you still have to pay the past due support plus compounded interest and usually the attorney fees and costs of the other party. The financial obligation cannot be avoided in bankruptcy and can be enforced by wage assignment or property lien(s). “Non paying” parents can also lose their drivers and or professional license(s) in California in the case of child support.
Emergency Orders/Exparte Requests
Normally the court will hear a matter after the paperwork has been filed in 45 days or more. If there is an emergency situation that needs to be addressed, the moving party can file what is termed an "Ex Parte" request for order. An ex parte is a request for a hearing on what is called "Shortend Notice", that is the moving party needs the court to make an order immediatly for some reason. This is called an "Exigent Circumstance" and it must be spelled out in the RFO/Motion very clearly or it will not be granted.
Financial issues and vistation matters are not proper grounds for exparte requests and are seldom granted unless the child is in some type of danger or there is proof that assets are being sold off/dissapated. Interestingly, most expartes surround these very two issues and are therefore denied.
Ex parte RFO/Motions are quite disruptive to the court and counsel as they litterally cause everything to come to a halt while the court and the lawyers deal with the paperwork and request. Thus every court does exparte's differently to save time and resources. In general however "Notice" has to be given the day prior by 10:00am and the hearing is the following day in the morning. Usually there is no testimoney in court and a decision is made "In Chanbers" by the judge. Granted or not, the court will normally set a follow up hearing in approxiamtly 20 days in which both parties can offer testimoney and evidence of their position on the issue(s).
Custody and Visitation
Custody and visitation are “Hot Button” topics and often confused in conversation. They are independent and distinct issues. The issue of custody is divided into two sub parts, Legal Custody and Physical Custody. In short Legal Custody describes who has the decision making authority with regard to the children. Physical Custody describes who the children live with primarily. Both parents “In Theory” have a right to equal access and parentage of the children. Thus the court will normally default to Joint Legal/Joint Physical custody.
Since the children cannot live in two places at once, one parent will be awarded primary physical custody and the other visitation. To determine the visitation arrangement when the parties cannot come to an agreement, the court has to make a determination as to what is in the “Best Interests” of the children based on the history of the family, the relative situations of the parties (Not usually financial – a parent cannot be punished because they are poor), any history of domestic violence or substance abuse, and sometimes even the wishes of the children. Men have an equal right to have custody of the children, although in practice it may not seem so.
Custody and visitation orders can always be modified should the situation of the parties or the children change. However, the rules to obtain a modification in custody and or visitation differ depending on the status of the divorce. In general it is usually more difficult to modify custody than visitation, and once a judgment has been entered, it is more difficult to modify either. The amount of time that an “Arrangement” has been in place also has a bearing on any court decision. Additionally when a parent has been found to be the perpetrator of domestic violence in a relationship, it is “Presumed” that it is not in the best interest of the children for that parent to have custody. For this reason it is a common technique for there to be an accusation of domestic violence by one parent against another early in a divorce proceeding to gain an advantage over the other spouse should custody be an issue that will be contested.
Another overlooked factor is a parent’s ability to “Co-Parent” with the other parent. Should the court find that one parent simply is incapable of co-parenting with the other parent, makes false allegations, excuses, intentionally interferes or obstructs the other parents visitation, constantly schedules events and activities in a manner that interferes with the other parents visitation, or is constantly late for pick up and drop off of the children, the court can award custody to the aggrieved parent temporarily or permanently.
California is a community property state. That means that all property acquired during marriage is community property and is subject to equal division upon divorce (There are a few exceptions but this is generally the rule). It doesn’t matter who earned the money, who created the bill, or even whose name the property is in (In most cases), if it was acquired during marriage, it is “Presumptively” a community asset and subject to division.
This includes real estate, bank accounts, credit cards, tax liabilities and refunds, and even one or both spouse’s pensions and or retirement plans.
Property cannot be divided by the court in a paternity action, it must be divided in civil court. A civil action to divide real estate is called a Partition Action. If a party seeks the division of property or support in a matter where the couple was not married, and the property is not in their name (Either jointly or individually) the legal issues become very tricky.
The laws in California against domestic violence cover a broad range of behavior. The parties don’t have to be married but do have to have some kind of “Living Arrangement” together (Formally living together will work also) or at least a connection (Parties that don’t have such a connection file what is called a Civil Harassment case).
Domestic violence (DV) cases take place in both criminal court and in family court. Criminal court DV cases are very serious as there is the potential of jail time, fines, and "DV Classes" on top of a restraining order. In criminal court, the accuser also cannot “Recant” later (i.e Drop the charges). Family Law DV cases are also serious in that if a person is found guilty, they may lose access to their home and children. For this reason, manytimes baseless DV allegations are filed early in a divorce case in an attempt to gain an advantage with the children or to force a party to vacate the house/apartment. They can be enforced for up to five years (5) and can be renewed in some cases.
A person doesn’t have to “Hit” or “Strike” another to be found guilty of DV. A substantial threat or use of fear will suffice in many cases. Threats, constant calling or “Texting”, yelling, throwing things, can also cause a DV restraining order to be issued (An unusual example I litigated was a party that constantly picked their nose and would then "Flick it" on the other party - the court found grounds for a restrainng order and excluded the "Nose Picker" from the house). Also there is no necessity of marks or scratches as proof that something occurred. This makes sense because such behavior tends to occur behind closed doors.
Because of the fear of workplace violence, many times once a DV restraining order is issued against a party, the restrained party may find it difficult to find or keep a job. Persons that have to pass security checks, carry weapons, or maintain some licenses need to consider the consequences.
DV cases take place in two steps in family court. Once the paperwork is completed, the opposing party is called on the phone and given “Notice” of the hearing. The hearing is usually conducted the same day as the filing is done, but in the afternoon. If the opposing party is out of town or working, this presents a huge problem for them as the case "Will be heard without their input or defense". It cannot be set aside the following day due to an inabiity to get to the courthouse.
At the initial hearing the court will usually not hear testimony. Rather the court will review the paperwork, including the response of the opposing party - if any, and make a decision on it’s own as to if the moving party should be granted an order or not.
The initial order, if granted, is temporary. The court will set a date for a full hearing on the matter - usually in 20 days. This means the opposing party may have to find someplace to stay for the next 20 days. Seldom will the court allow them to go back to the house to pick up their things or get money, identification, or anything else. Additionally, the restrained party will usually be restricted from seeing or speaking to the children – if any – and will have to sell any firearms that they may have.
Once a restraining order is issued, if it has a no contact restriction, that means “NO CONTACT”. No speaking to, texting, calling, sending letters to, sending someone else to relay a message, NO CONTACT. A violation can land you in jail. Additionally remember that all firearms and ammunition have to be surrendured immediatly by the restrained party. There are no exceptions for law enforcement, gun salespersons or collectors of firearms - all firearms have to be surrendured "To a gun dealer" (Not given to someone else for safe keeping) and if the restrained party is caught with one, the penalty is very serious.
We hope that this information has been helpful to you. If you have any questions and or comments about your particular situation, please feel free to give us a call and arrange a consultation. We will be glad to meet with you and discuss the problem.