The Divorce Lawyer

Parenting Plans

2011-04-03T15:43:00.000-07:00

When discussing a parenting plan for your children following separation from your spouse, remember there is no "standard" parenting plan for divorced couples. What worked or was court-ordered for your friends who are divorced is not necessarily what is appropriate in your circumstances.

An appropriate child custody and visitation plan will vary depending on the ages of the children, their school schedule, the work schedules of the parents, and the geographic distance between the parents' homes. The parenting plan should provide regular, consistent times with each parent for day-to-day care, school and extra-curricular activities, holidays and vacations. The plan should be adjusted to accommodate the children, not the parents' convenience.

If the parents do not communicate or cooperate well, it may be necessary to set times for exchange of the children, provide which parent will provide transportation, and at times even where the children will be picked up and dropped off. The parenting plan should be detailed enough to avoid conflicts that may arise in the day-to-day parenting of your children. If the child is involved in sports, religious, or other activities, there should be provision for which parent (or both) are responsible for transporting the child to those activities.

At the same time, the parents should agree on which activities the children are involved. It is not appropriate for one parent to enroll the child in an activity without consulting the other parent, especially where doing so would impact the other parent's time with that child. A sound parenting plan should allow the child frequent and regular contact with both parents while affording them a safe, nurturing home environment.

Finally, if either parent has a problem with drug or alcohol abuse, violence, or neglect, you should consult an agency, therapist or attorney to assist in making adjustments to assure the child's safety and well-being. There are numerous web sites on the internet that can assist you with guidelines, suggestions, and even worksheets to assist with a sound, detailed agreement.

Child Custody Mediation

2011-03-17T15:33:00.000-07:00

When parents are unable to agree on a parenting plan for child custody and visitation, the court requires the parties to attend mediation. This is true whether the parties are establishing an initial parenting plan following separation, or modifying a current custody plan.

The mediator is a mental health professional trained to assist the parties negotiate an agreement for custody, visitation, and other custody-related issues. If the parties are able to reach a complete agreement, the mediator will document the agreement so the parties can have the agreement adopted as an order of court. If the parties are unable to reach an agreement following mediation, the mediator will submit a report to the court with copies to the parties making a recommendation as to the child's best interests.

During the mediation process, the mediator may interview the children, other parties joined to the case, and other individuals who have unique information relating to the parties or their children - such as teachers, counselors, and day care providers. However, the mediator's contact with third parties is usually at the discretion of the mediator given the parties' particular circumstances.

There are a few different ways to initiate the mediation process. If one party files an Order to Show Cause for custody or visitation, or requesting a modification of a current custody plan, the matter will be automatically referred for mediation at the Office of Family Court Services. Alternatively, either party can file a Petition for Mediation directly with the Office of Family Court Services without setting a court date. Finally, either party may file a Petition for Private Mediation with the court requesting the court order the parties to participate in private mediation with one of the private mediators on the court-approved Private Mediation Panel.

If you are considering mediation to resolve a dispute regarding child custody in Sacramento County, I recommend visiting the Family Court Services web site for additional information regarding the process and what to expect.

Chil Custody

2011-03-07T18:43:00.000-08:00

When discussing child custody, it is necessary to differentiate between “legal custody” and “physical custody”. Legal custody refers to the right and responsibility to make decisions regarding the health, education and welfare of a child, but does not reflect where the child resides. Physical custody generally addresses where the child lives and how much time the other parent has visitation.

When discussing legal custody, the court can order "joint legal custody" or “sole legal custody”. Joint legal custody is the most common and refers to custodial situations in which both parents share the right and responsibility to make decisions regarding the child's health, education, and welfare. The parties must consult one another regarding any significant decision regarding the child. In joint legal custody situations, one party cannot make a decision regarding the child if the opposing party disagrees. If they cannot agree, they must resolve the disagreement through the courts or with the assistance of a mediator. Conversely, if one party has “sole legal custody”, that party can make such decisions on behalf of the child even though the other party disagrees.

With physical custody, courts use the terms joint physical custody, sole physical custody and, more recently, shared physical custody. Joint physical custody simply means both parties will have significant, although not necessarily equal, parenting time. Sole physical custody means the child will reside primarily with one parent, subject to the other parent’s visitation rights. The distinction is not always clear.

One important result of a sole physical custody order is that courts have held a parent with sole physical custody has the presumptive right to change the child’s residence without the permission of the other parent. This right is subject to the court’s ability to stop a parent from changing a child’s residence when doing so would prejudice the rights or welfare of the child, or where it would adversely affect the other parent’s ability to maintain contact with the child. There is significant case law on the issue, and these situations are referred to as “move-away” cases. The determining factor is not just the term used to describe the physical custody arrangement, but also the actual time spent with each parent and other relevant issues.

Finally, in conjunction with physical custody courts also use the terms “custodial parent” and “non-custodial parent”. But these designations also do not, in and of themselves, define the parties rights. Rather, they have become terms of art in family law without conferring or denying the parties’ rights with respect to the child.

Dissolution of Marriage vs. Legal Separation

2011-03-02T16:21:00.000-08:00

Many individuals in an initial consultation ask what the difference is between a divorce and a legal separation. My short answer is when completed a legal separation can accomplish the same objectives as a divorce - orders for child custody and visitation, child support, spousal support, and division of assets and obligations - but in the end the parties are still married. So why, they ask, would anyone want a legal separation? There are several circumstances in which the parties don't want to divorce for financial, personal, or religious reasons but want the benefit of a court order or judgment that declares them separated while addressing the same issues as a divorce.

In a typical marriage, one spouse has the other spouse covered on their medical insurance, perhaps through their employment at a discounted rate. Upon entry of a judgment of dissolution, the non-employee spouse must be dropped from the now ex-spouse's health policy because they are no longer related. This isn't a family law rule, and cannot be negotiated in a divorce. However, with a legal separation the non-employee spouse might remain on the employee spouse's health plan following judgment. This can be very important for a spouse with a pre-existing condition that might not otherwise be able to obtain health insurance on their own.

If a couple have been married for less than 10 years, they may wish to separate and divide the marital estate but delay a divorce until after ten years has passed in order for one spouse to take advantage of certain Social Security benefits. After 10 years of marriage, a spouse can collect social security benefits on a former spouse's Social Security record under certain circumstances. This may be important for a spouse who has stayed at home to raise children and has not paid into their own Social Security benefits.

If you are a military spouse, you may wish to remain married for 10 years to take advantage of benefits afforded by the Uniformed Services Former Spouse Protection Act.

If religious beliefs conflict with the concept of divorce, a legal separation allows spouses to live separately while maintaining their marital status for religious reasons.

Finally, legal separation allows the parties time to reflect on whether a divorce is what they really want. If they ultimately decide divorce is what they want, the proceeding can be amended to a divorce with existing orders remaining in place.

There is one other situation not uncommon in California in which the parties might at least initially file for legal separation rather than a divorce. For the California courts to have jurisdiction, at least one party must have been a resident of the state for at least six months immediately preceding the filing of the Petition. If a married person has been in the state for less than the required six month period, they might still file a Petition for legal separation and later amend their Petition to request a dissolution of marriage. It is only necessary they reside in California at the time the proceeding is commenced.

Legal separation may be a valuable procedure for some circumstances, even where it is not possible to save the marriage. A consultation with an experienced family law attorney can assist in determining what is best for you.

Dissolution of Marriage vs. Annulment

2011-01-19T15:47:00.000-08:00

A judgment of dissolution of marriage recognizes the validity of the marriage and terminates the parties’ marital status. They are then free to remarry as of the date provided in the judgment.

A judgment of nullity is granted only when a marriage is adjudged void or voidable under specific conditions provided by statute. A marriage is void (as if it never happened) in cases of incest and bigamy, and is voidable (valid unless and until the court declares a nullity at the request of one party and following an evidentiary hearing) in cases of minority, a current spouse mistakenly believed to be deceased, unsound mind, fraud, force, and physical incapacity.

A marriage is void in the event of incest or bigamy. The state of California does not recognize marriages between parents and children, brothers and sisters, half brothers and half sisters, uncles and nieces, and aunts and nephews. A marriage is also void where one party was married to another person. In the case of incest or bigamy, any marriage is simply not valid and never was.

A marriage is voidable where: 1) one party was a minor and parental and court consents were not obtained; 2) one party at the time of marriage was of unsound mind; 3) either party’s consent to marriage was obtained by fraud; 4) either party’s consent to marriage was obtained by force; or 5) at the time of marriage either party was physically incapable of entering into a marriage and the incapacity is incurable.

A judgment of dissolution dissolves the existing marriage, recognizing the marital relationship between the date of marriage and the date of termination of the marital status, but a judgment of nullity is retroactive to the date of marriage and no marriage is recognized. It is as if the marriage never took place.

The majority of annulments are granted on the grounds of fraud. The fraud consists of false representations or concealment of facts relating to a matter of substance such that the deceived party would not have entered into the marriage had they known the true facts. So, if your spouse turns out to be lazy and has a drinking problem, or misrepresented the extent of his or her wealth, that would NOT be grounds for an annulment. But if your spouse had no intention of being faithful, or represented that they were capable of having children when they were not, then a court may grant a judgment of nullity.

The difficulty in obtaining an annulment, even with a valid reason, is the matter of proof. It is often difficult to obtain an annulment following a contested trial on the issue when the evidence of fraud comes down to one person’s word against the other. Often, an annulment is granted following a “default hearing” where judgment is granted based on one party’s testimony and the other party does not appear.

The Marital Home and Divorce

2010-12-14T16:59:00.000-08:00

If after reading the previous post you have decided to let your spouse have the house so you're not left with a big monthly liability on an asset that is worth less than what is owed, there are a few other matters with which you should be aware.

The most common misperception is that when one party or the other is awarded the house in a divorce, they are not obligated to refinance the mortgage in their name alone. In other words, they get the house while you remain legally liable on the mortgage. Many people are taken aback when they learn this, and concerned about the other party's financial ability and responsibility to maintain the ongoing obligations on the property. Even where the other party is financially responsible and timely pays all obligations on the property, what about your credit profile and ability to qualify to buy your own home one day?

If the other party receives the marital home (and the mortgage, taxes and insurance), you are no longer a legal owner of the house. As part of the Judgment in the dissolution you will be required to execute an Interspousal Transfer Deed that removes you from title and places the title in the name of your ex-spouse as their sole and separate property. But this does not effect your relationship and contract with the mortgage lender. You will still be legally liable for that mortgage until it is paid or refinanced.

But you do have legal recourse in the event of default on the mortgage. To be clear, you should insist any Stipulated Judgment or Marital Settlement Agreement contains a phrase granting the Court continuing jurisdiction on the issue of the marital home until the mortgage has been satisfied. Then, if the other party becomes delinquent on the obligation with negative results to your credit profile, you may petition the Court to order the house sold immediately or awarded to you. This does not prevent damage to your credit, but will minimize the impact.

Credit grantors are aware of the impact of divorce on individuals, and the fact a default occurred on the fault of an ex-spouse will be taken into consideration. Mortgage lenders are also used to divorce, and many will allow you to qualify to purchase your own home even when you remain legally liable on your ex-spouse's home after a period of time. Giving the house to your spouse does not mean you are without protection and unable to buy your own home.

But when negotiating the terms of a divorce, it is important to consider whether it is prudent based on the spouse's income and financial responsibility. If your spouse does not have a solid employment history, if he or she has not typically paid bills on time and been responsible, or if their income is not sufficient, it may be more prudent to insist the house be sold if possible.

While it may be easy to make the decision to walk away from a house that is upside down, in some marriages neither party alone is capable of making the mortgage payment. In that case you are looking at a short sale or foreclosure. Many people want to do a short sale and start over, but not many are successful. The lender typically takes light years to respond to short sale offers, and buyers often run out of patience. When decisions relating to the disposition of a house in divorce become difficult, it is important to obtain help. An attorney obviously can help with structuring a judgment, and a real estate agent with extensive experience with short sales and a good mortgage broker can serve to protect you from making a wrong decision that may harm you for years. If you are in the Sacramento area call me at (916) 921-9500.

How the Economy has Changed Divorce

2010-12-05T15:38:00.000-08:00

Until 2007 when the housing market starting taking a nose dive, the issue of who would be awarded the marital home was determined by which party had the financial means to buy the other party's interest in the property. So if at the time of trial it is determined that marital home was valued at $100,000 in excess of the amount owed, then the party with the ability to pay $50,000 to the other party would be awarded the house.

Even if neither party had $50,000 in cash to pay the other party, one side probably could refinance the house to take out the money to pay the other party if they could then afford the resulting increase in monthly mortgage payments. Sometimes both parties were in a position to do so. In addition, the "buy out" of the equity in the marital home is balanced against the division of other property. For instance, if one party received $100,000 in equity in the marital home, and the other received $100,000 in other assets, then neither party would owe the other. Debts must also be taken into account.

But in today's economy, when it comes to deciding who gets the marital home, the issue more often is who is stuck with the house? Because now we have half or more of all properties "upside down" in value. Now we have a house being awarded to one party or the other and there is not only no equity, the house is valued at less than what is owed on it. And no, the person who gets the house does not get to take it for negative value. They get it for nothing, but they are stuck buying a house for more than what it is worth!

When neither party wants the house we sell it, right? But it is difficult to sell a house that is worth less than is owed. This means a short sale. That means both parties suffer a hit to their credit. Once, the parties in a divorce sold their house and each received enough money from the sale to go out and buy a new house. Now parties let their house go into foreclosure and both have difficulty even renting a home because their credit has suffered.

Divorces today are characterized by a house worth less than what is owed, one spouse who has lost their job or experienced a cut in pay, increased debt as a result of a loss of income, and almost nothing but personal property to divide when all is said and done. Some couples just can't afford to get divorced.

Reviewing Your Spouse's Disclosure

2010-11-27T11:57:00.000-08:00

As I mentioned, receiving your spouse's Preliminary Declaration of Disclosure gives you the first real look at the areas in which you and your spouse agree and disagree. But it may also tell you other things. Aside from noting the differences you may have in valuation, you must pay particular attention to what their disclosure does not say. If assets or debts are omitted, you must find out why. If the Disclosure claims a community asset as separate property, you must find out the basis for the opposing party's claim of separate property. As well, sometimes the opposing party may make a claim of separate property contribution towards a community asset. That means your spouse is claiming a portion of a community asset is their separate property, perhaps because they made payments from a separate source, or they used separate funds for a down payment or improvements.

Remember, community property is all assets and obligations acquired between the date of marriage and the date of separation, except for gifts or inheritance which is separate property unless it has been commingled with community property. But an asset acquired during marriage may have a separate property 'contribution'. The party claiming the separate property component has the burden of proving the separate contribution. That usually means the party claiming the separate property contribution has the burden of producing a paper trail, usually banking records, that demonstrates the funds came from a separate source and were contributed to the community asset.

When we divide assets and debts in a divorce, California law requires there be an equitable division of the marital estate. That means each party should be awarded marital property in equal values, but the court is not required to divide each asset in half. For instance, the automobile you typically drive should be awarded to you with the obligation on the vehicle, if any. If the vehicle has a fair market value of $15,000, and there is an outstanding loan balance on the vehicle of $10,000, the vehicle will be awarded to you at a net value of $5,000.

The values of assets are determined by various methods. A house should be formally appraised if you are going to trial and the parties do not agree on a value. But you may start the process by getting comparable sales from a realtor. Try to resist obtaining property values from online real estate valuation websites. They are not accurate and judges do not rely on them. An appraisal is the best method of valuation, and comparable sales are the next best method. Vehicles can be valued by utilizing private party (not retail or wholesale) values from Kelly Blue Book or other auto valuation web site. Finally, other assets such as household furniture, furnishings and appliances are simply valued at what you could get for the item if you put an ad in the paper and sold it.

This leaves a lot of room for disagreement on items that are not formally appraised. The courts typically will not spend much time entertaining the parties' arguments regarding valuation of household items. If one spouse thinks a TV is worth $1,000, and the other thinks it is worth $400, the court may simply award the TV to the spouse who believes it is worth $1,000. In the alternative, the judge may simply order that all such property for which the parties are unable to agree on a value be sold with the net proceeds split equally. This is where you and your spouse need to each to do some compromising on values to reach an agreement.

Another difficult situation is what to do with an asset that both parties want. Does the flat screen Television with surround sound go to the husband or the wife? Husband may argue the television was a Christmas gift from wife, but wife testifies it was a gift to the family. Who is the judge to believe? Again, if husband believes the television is worth more than wife does, the court may simply award it to husband at the higher price, or the judge may order the item sold with the proceeds split so no decision has to be made as to who gets the television.

The lesson here is to be very careful when valuing assets in a dissolution. Often the spouse who does not have the asset will value it higher than the spouse that has possession, because he or she wants the other spouse to be charged a higher value for purposes of calculating an equal division of the marital property. This tactic can backfire on the spouse with the higher value if they do not want the asset and the court awards it to them at their higher (inflated) value. On the other hand, if the other party has an asset that you want, one tactic to take at trial is that you will take it at a higher value than the party who has possession.

There are more issues with property valuation and division in a dissolution that I will discuss later. In particular, the decline in property values has created a different dilemma with many houses now worth less than what is owed on them. It is not uncommon now for neither spouse in a divorce to want the house. Check back for how divorce can mean the loss of a house and your credit.

Evaluating Your Case for Settlement

2010-11-17T16:10:00.000-08:00

Once you and your spouse have completed your Preliminary Declarations of Disclosure and served them on each other, you should evaluate your case for possible settlement. This is where you learn what community assets and obligations exist, along the values for each. You will also learn your spouse's position with respect to the separate and community nature of the assets and obligations.

In reviewing your spouse's Disclosure, make certain he or she has provided all of the information requested and attached appropriate supporting documentation. For instance, disclosure of banking accounts requires providing the branch name and address, account number, and current balance of the account. This statement should be accompanied by a copy of the most recent monthly statement of account, as well as the monthly statement for the month of separation. You should make a list of anything that you think has been omitted.

Next review your spouse's Declaration and check the claimed values of the assets and balances due on debt. Make a note not just of those values and balances that differ significantly from your own, but also note where you substantially agree on values and balances. The more you agree, the closer you are to settlement.

Then make a note of any assets and debts listed that are not supported by documentation. Such as a credit card obligation in a disclosure for which a corresponding statement has not been attached, or a bank account without a supporting monthly statement. If you do not have your own copy of the missing documents and are unable to obtain them yourself, you should insist your spouse provide them. The purpose here is to learn the basis of the other party's claims with regard to the values of property, the balances due on debts, and the basis for community or separate characterization of the asset and debts.

Remember, if you are represented by counsel, he or she is doing this for you. But you should be involved in the process and aware of all of the details. This stage of the dissolution process is often the most difficult and where most of the time is spent. It's where you learn how close or how far you and your spouse are from settlement.

It's also much too complicated to cover in one posting. I will discuss it in more detail later. My point here is that this is the first real opportunity you have to learn the other party's position on the property and debts, and on what issues you are likely to agree or disagree. You also should acquire sufficient documentation on the various assets and debts for which you did not previously have documentation with which you can verify values and gauge whether your own figures are accurate.

Check back in a few days to read more about evaluating your case for settlement, how assets and debts are divided, and making a settlement offer.

Declaration of Disclosure

2010-11-07T15:56:00.000-08:00

At the time of filing the Petition (or Response for the Respondent), or soon after, each party should serve their Preliminary Declaration of Disclosure on the other party and file a Declaration Regarding Service of Declaration of Disclosure with the court. The Disclosure itself is not filed with court. In every dissolution of marriage or legal separation, each party is required to serve the other with a Preliminary Declaration of Disclosure and a Final Declaration of Disclosure before the Court will enter a Marital Settlement Agreement or set a contested matter for Settlement Conference and Trial. In an uncontested dissolution or legal separation, the parties can agree to waive a Final Declaration of Disclosure, but a Preliminary Declaration of Disclosure is mandatory.

The disclosures must identify all assets and debts of each party, as well as their monthly income and expenses. For each asset and debt, the parties must also state whether it is community or separate property, when it was acquired, the value, and any loans. It is also necessary to attach copies of relevant supporting documentation, which is set forth on the forms.

Declarations of Disclosure consist at a minimum of a form Income and Expense Declaration, and a Schedule of Assets and Debts. The Income and Expense Declaration must be accompanied by copies of the party's last three pay stubs or, if self employed, a complete copy of last year's tax return and profit and loss statement as supporting documentation. In other words, your claimed income must be supported by proof. The Schedule of Assets and Debts lists all:

real estate,
household furniture, furnishings and appliances,
jewelry and personal items,
motor vehicles, boats, motorcycles, RVs, travel trailers,
checking and savings accounts,
investment accounts,
retirement accounts,
tax refunds and liabilities,
debts, and
miscellaneous assets or obligations.

For each category the form specifies the supporting documentation that should be attached. The purpose of Disclosures is to make settlement negotiations easier, and to ensure neither party is concealing assets or obligations from the other. The California Family Code provides sometimes severe penalties for a spouse who willfully fails to disclose assets or obligations. If you are considering not disclosing an asset or debt, even because you think it is not significant or believe the other party clearly recognizes it as your separate property, the other party can probably have a judgment of dissolution set aside after it is entered on the basis that you failed to disclose a significant asset or debt. It's just not worth the risk. you may end up re-litigating or renegotiating your divorce and you will look like you have something to hide. For a community asset that is willfully concealed, the court even has authority to award the entire asset to your spouse as a penalty.

Let me tell you it is not uncommon for someone to come into my office saying their divorce is complete and judgment has been entered, but for one reason or another they are very dissatisfied with the Court's judgment after trial or a settlement agreement they entered into. The first thing I look at is the other party's Disclosures to see if they omitted something. If I find something significant, especially if it leaves an arguable issue as to whether the settlement was a fair and equitable distribution of the marital estate, I may have an opportunity to have the judgment set aside. Your divorce was probably bad enough the first time. Don't be sloppy with your disclosures and have to do it again.

Temporary Orders

2010-10-31T14:47:00.000-07:00

Often at the beginning of the divorce process, it is necessary to put temporary orders in place for child custody and visitation, child support, spousal support, and sometimes property orders. These orders are not meant to be final determinations for a parenting plan, appropriate support levels, or division of property. They are just as the name indicates - temporary orders. They are intended to provide stability for minor children and allow each party to maintain the same standard of living as existed during the marriage until the divorce process is complete.

As always, the courts would prefer the parties to a divorce reach their own agreement for support and a temporary parenting plan. However, if that is not possible one party or the other may file a motion requesting the court make orders. This is accomplished by filing a form Order to Show Cause or Notice of Motion with a form Application for Order, which may be accompanied by a written Declaration of the moving party providing specifics as to the orders requested and the reasons for the moving party's requests. Once filed a hearing date is set for a month to six weeks in advance, and the opposing party will file a Responsive Declaration agreeing or opposing the moving party's specific requests.

If child or spousal support is an issue, each party must also file an Income and Expense Declaration and attach copies of their last three pay stubs or other evidence of income. If child custody and visitation is in dispute, the court will require the parties to participate in mediation regarding child custody and visitation. A child custody mediator's objective is to try to get the parents to agree on a parenting plan, but where and to the extent the parties are unable to agree the mediator will make a written report and recommendation to the court regarding child custody and visitation (I will not go into great detail of the mediation process here, as it deserves a more through discussion later).

At the hearing on the moving party's requests, the court having either an agreement for a temporary parenting plan or a mediator's recommendation as to the best interests of the minor children, and evidence of the party's respective incomes, temporary orders can be made for child custody and visitation as well as child and spousal support. These orders will remain in place until they are modified by agreement of the parties, a subsequent court order, or a final judgment is entered.

On the one hand, I tell people not to get too caught up by not getting exactly what they want in temporary orders because they are just that - temporary. On the other hand they can set a precedent or status quo that may require a significant change in the parties' circumstances to modify. This is one area where experience with the dissolution process and good advice can make a big difference in the time you have your children and the amount of support you receive or pay. Divorce is not a simple matter. It shouldn't be. You should retain an experienced attorney to represent you if possible, and if not you should find one to give you advice on how to proceed on your own. Many good attorneys will counsel litigants on an hourly basis, prepare paperwork if necessary, and advise them how to handle specific issues.

After Service of Summons and Petition

2010-10-21T17:02:00.000-07:00

After serving the Summons and Petition on your spouse, they have 30 days within which to file and serve their Response. If they do not file their Response within 30 days, you have the right to file a form Request for Entry of Default. When the Clerk of Court receives your Request for Entry of Default, they will verify your spouse has not filed a Response and if they have not they will enter default against the opposing party. And you've won, it's that simple. I'm just kidding, its not really.

Often, entering default against the opposing party as soon as possible is a waste of time. I am never quick to do so. The reason is that California Code of Civil Procedure section 473 provides liberal grounds to set aside a default on various grounds, including "oops I forgot." If you rush to the Clerk's office and file a Request to Enter Default, the opposing party will have up to 6 months to have the default set aside almost as easily as you had it entered.

Even once default is entered, you will have to set the matter for a "default hearing", at which the Judge will make certain the terms of the proposed judgment you are requesting provides for a fair and equitable distribution of the marital estate. That hearing will be set approximately a month away, and you will still have to provide your spouse notice of the hearing. Often, your spouse will show up and oppose entry of a default judgment and the Court will give him or her additional time within which to file a Response and appear in the matter.

This does not mean requesting entry of default is never appropriate. But it should be reserved for situations in which it is clear your spouse has no interest in participating in the dissolution proceedings. It is not intended as punishment for failing to strictly comply with time requirements.

Rather than immediately requesting entry of default against a spouse that does not promptly file a Response, consider filing a motion for custody, support, or other matter that is not likely to be ignored. Often the filing of such a motion will compel a reluctant spouse to get off the couch, because failure to do so will result in orders being granted in your favor.

On the other hand, there are times when requesting entry of default is entirely appropriate. If your spouse is incarcerated they may not be able to file a Response or appear. If there are no significant marital assets, a spouse may not care to appear and contest the proceeding. I have even had situations where a spouse wouldn't come near the courthouse because they had warrants for their arrest and were afraid the deputy sheriff bailiff might check for criminal warrants (they do, and they will be taken out of the courtroom in handcuffs after the hearing).

So, while many people think the opposing party's failure to timely file a Response results in victory, it just isn't the case. Besides, there are no victories in family law.

Service of Summons and Petition

2010-10-13T16:41:00.000-07:00

Once you have filed the Summons, Petition, and Declaration Under the Uniform Child Custody Jurisdiction Enforcement Act (if minor children are involved), the opposing party must be personally served. These documents, and a blank Response and Declaration Under the Uniform Child Custody Jurisdiction Enforcement Act, can be served by anyone over the age of 18 who is not a party to the proceedings. Most people, and attorneys, use the services of a process server or the county sheriff. In the event of a dispute as to whether someone was actually served, the court is more comfortable when a Respondent has been personally served by a process server or deputy sheriff.

You can find a process server in the yellow pages under "legal services" or online. They typically charge $25 to $40 to serve someone locally, more if they have to travel to other areas. The sheriff maintains an office in the family law courthouse, and you can leave a copy of your pleadings with information on the person to be served. Of course, if you are represented by an attorney, they will take care of all of this for you.

Once the opposing party has been served, the process server, deputy sheriff, or other person must complete a Proof of Personal Service specifying the time, date, and address where the Respondent was served. Once completed, the original of that form should be filed with the court clerk. Again, as with all pleadings, you should file the original and two copies. That way you have an extra copy for you and one for the other party.

Attorneys might also attempt another kind of service where the papers are mailed to the Respondent along with a form called a Notice and Acknowledgment of Receipt. This form of service is acceptable for the Summons and Petition only inf the Respondent signs and returns the Notice and Acknowledgment of Receipt to you or your attorney. That form in turn must be filed along with a Proof of Service by Mail to be valid. If the opposing party does not sign and return the Notice and Acknowledgment of Receipt, sending the Summons and Petition by Mail is not effective. This process is typically used where the opposing party knows the papers are coming, will cooperate, and does not want a process server visiting him or her at work or home.

If someone is avoiding service there is a process for what is called "substituted service" by leaving the papers with someone in the household of responsible age. There are other requirements for this kind of service, and you may leave yourself open to the opposing party challenging the validity of service, so this should only be used as a last resort. Finally, if you do not know where the opposing party is to have him or her served, it is possible to serve someone by publication. this requires publishing notice in a local publication for a specified period and requires an order of court. If you do not know where your spouse is, you should probably consult with an attorney for help. It is necessary to file a motion specifying the efforts made to locate the person and demonstrate it is not possible to locate them.

Automatic Restraining Orders

2010-10-05T17:55:00.000-07:00

In a California Family Law matter, automatic restraining orders are contained on page 2 of the Summons. They are effective automatically as to the Petitioner upon filing with the court, and as to the Respondent when he or she is served.

These restraining orders are often misunderstood, but parties should review them carefully. One thing I will tell you often in explaining legal procedures you may have heard before - ignorance is no excuse for violating the law. Stated otherwise, if you are representing yourself in a legal proceeding you are held by the court to the same standard as an attorney. It is no excuse that you did not know or did not understand.

Those of you reading this who are represented by an attorney have already had these automatic restraining orders explained to you. But I know many of you are representing yourself so these articles are intended to inform the parties not experienced in the process.

The automatic restraining orders provide four restrictions:

   1. Neither party is to remove minor children from the jurisdiction of the court without the other party's written permission or an order of court. The jurisdiction of the court is the county in which you are located. Some attorneys will tell you this means removing the children "for the purposes of changing their residence" but does not preclude you from taking the children out of county for a vacation or brief trip. I would caution you to be very careful and obtain the other party's permission or a court order (especially at the beginning of a divorce before temporary custody orders are in place) out of an abundance of caution. If the other party learns you have taken the children, say to visit relatives, they may mistakenly believe you are moving or hiding the children and bring a motion compelling you to return them. It's best to coordinate any trips with the children in advance with your spouse. After all, if they were taking your children somewhere, you would want them to let you know where you are going and when you will be back, right?

   2. Neither party is to cash out, borrow against, cancel, transfer, dispose of, or change the beneficiaries of any insurance policy. That means neither of you can cash out, borrow against, or transfer any whole life insurance policy, change the beneficiary of any life insurance policy, or drop any insured from your insurance policy. If you insure your spouse on a life, health or auto policy, you must maintain that policy as is until judgment has been entered or you are able to obtain a court order allowing you to do so. Many people upon filing a divorce want to drop their spouse from an auto or health policy. Don't do it. You will have to reinstate them at your expense.

   3. Neither party is to transfer, encumber, conceal, or dispose of any property, whether community or separate property, without the written consent of the other party or an order of court, except in the "ordinary course of business." This means parties cannot sell property, obtain a loan with property as collateral, give it to someone else, or even throw it away. Many people have a problem understanding this especially when they believe it is their 'separate property'. But sometimes separate property can have a community interest. It is always better to secure the other party's consent. If the other side has no claim against the property, obtaining their permission shouldn't be a problem. Finally, you can use monies in a joint account to retain counsel to represent you, and to pay community bills as they become due.

   4. Nether party shall create or modify a nonprobate transfer in a manner that effects the disposition of property. That means if their is a joint will or trust that determines the disposition of personal property or real estate, you cannot change your will or trust without the other party's permission or an order of court. However, when title to real property provides for right of survivorship, that right of survivorship can be changed after notice to the other party. In other words, title to property as joint tenants with right of survivorship can be changed to tenants in common after formal written notice to the other party.

These restraining orders appear fairly straightforward, but as applied to particular circumstances they can be difficult. If you have any doubt about a particular action you are contemplating, my advice is to get some good advice. Often obtaining your spouse's or the court's permission is easier than you think. Also, making a mistake at the beginning of what may be a long proceeding can label the mistaken party as someone not inclined to 'follow the rules'.

Commencing a Divorce or Legal Separation

2010-10-01T18:35:00.000-07:00

Once you have decided to file for a divorce or legal separation, whether you retain an attorney or represent yourself, you must file a Summons and Petition. Actually, if you are represented by an attorney, he or she will do it for you. If there are minor children involved, you must also file a Declaration Under the Uniform Child Custody Jurisdiction and Enforcement Act. All Family Law Forms are available through the Sacramento County Superior Court or the Judicial Council Forms website to download.

The Petitioner (person filing the Summons and Petition) must pay a filing fee of $355.00 to Sacramento County Superior Court unless they qualify for a fee waiver under the low-income guidelines. If you cannot afford to pay the filing fee, download the Information Sheet on Waiver of Court Fees and Costs. By the way, there is absolutely no advantage in being the Petitioner or Respondent, whether you are the one who files or are the one who is served by your spouse.

Once the Summons and Petition have been filed, the opposing party (Respondent) must be served. He or she can be served by any person over the age of 18 who is not a party to the legal action. That's any adult except for you. Most people have a process server or the County Sheriff serve the opposing party. the cost is usually about $25 to $50. Some people have a family member or friend serve the papers in order to save the fee, but this can lead to problems if the other side claims they never received the papers.

In addition to serving a filed copy of the Summons and Petition, and Declaration Under the Uniform Child Custody Jurisdiction and Enforcement Act if appropriate, you must also serve a blank form Response for the Respondent. Once this has been completed, the person who served the Respondent must complete a Proof of Personal Service to be filed with court.

When filing any court papers, you should present the original and two copies to the Clerk, and they must be two-hole punched at the top. The Clerk will keep the original for court files, and return two endorsed copies to you. One is for your records, and the other is to serve on the opposing party. Once the opposing party has been served, he or she has 30 days within which to file their Response.

So that's how a divorce or legal separation is started. The hard part comes later. You can also get help in filling out forms at the Self-Help Center. Every county has one, and they are valuable in explaining forms and procedures if you are representing yourself and don't understand. But if you are represented by counsel, then all of this will be taken care of by your attorney. In my next post I'll begin to explain disclosures and discovery.

More Comments on Mediation

2010-09-23T16:38:00.000-07:00

The previous post was by an experienced and patient attorney that I endorse for mediation cases, and I refer divorcing couples that I believe are suitable candidates to him. But I wanted to add a couple of things to what he said.

Remember his caveat that he does not give legal advice. A divorce mediator must refrain from doing so because that crosses the line from being impartial to the appearance of assisting one side. As a result, many people in the mediation process are left wondering what their legal rights are with respect to specific issues. They don't know what the law provides or what their position should be in the negotiation process.

For that reason, many people in the mediation process will have their own attorney, who does not participate in the mediation process, to give them advice about the various issues and what is appropriate in their given circumstances. That way they feel more confident that the position they are taking is supported by statute and case law.

Some attorneys do not like to advise clients in a mediation process, because they do not have sufficient control of the case. I suspect some also refuse because they cannot make enough money by functioning as an occasional advisor as opposed to a full-time litigator. These people, although without formal mediation training, will likely tell you they can do the same thing for you as the mediator. Don't buy it. Mediation is a different mindset and set of skills than a litigator possesses. That is why mediators have special training.

I have advised many clients who are participating in mediation. Clients pay by the hour for the time they use rather than paying a hefty retainer. I believe it gives the client confidence in mediation, and perhaps provides the client with additional ideas for settlement. One final added benefit is that if the mediation is not successful for any reason and the divorce becomes contested, the client now has an attorney who is is "up to speed" on the issues and able to step into the case without having to spend time familiarizing himself with the issues.

Again, if you are facing divorce and contemplating hiring an attorney, it is probably worth your time to have an honest conversation with your spouse, and discuss whether mediation is right for you. I will try to get Mike to tell us a little about Collaborative Divorce next. Check back to see what he has to say about another alternative to staying out of court.

Divorce Mediation

2010-09-16T13:04:00.000-07:00

I’m Mike Jonsson, and I’m the owner of Sacramento Divorce Solutions, a family law firm located in Sacramento. I've been a family law attorney since 1993, and a divorce mediator since 1998. Presently, I limit my personal practice areas to divorce mediation, collaborative practice, the representation of children in family law cases, and to being appointed as a Special Master on custody issues. Other than when I represent children, I no longer engage in traditional divorce litigation.

Divorce mediation is a process in which a neutral professional, usually an attorney like me, assists and facilitates communication between spouses in their divorce negotiations. I do this by helping my clients communicate openly about relevant topics, and keeping them focused on the real issues at the core of their dispute. I also provide legal education on relevant family laws and procedures, and help them develop creative settlement options and solutions tailored to help them each meet their needs, and resolve any conflicts they have on property, support, and custody issues. Please note that even though I am an attorney and provide legal education, I do not provide legal advice; a mediator is not the attorney for either or both parties, but rather a neutral professional that maintains a fair negotiating environment for both clients.

Mediation typically takes three to six sessions, and each session lasts approximately two hours. Sessions take place in my office, not at Court, which helps create an atmosphere of problem solving, rather than confrontation. Mediation is a completely voluntary process, in which all decisions are made by the mutual agreement of both clients. In this way, solutions can be developed so that both clients obtain a reasonable and fair result in their final agreement. Mediation is the most affordable divorce process, and unlike a traditional representation, after the payment of a very modest deposit, clients pay for mediation services at the end of each session, which allows them to control their cash flow for divorce services. My office also handles the preparation, service, and filing of any necessary documents and papers.

In recent years, divorce mediation has been hybridized to take advantage of some of the benefits of collaborative divorce practice, in which I’m also trained. I now also offer mediation services which can include the use of neutral financial experts, known as 'financial specialists', to aid the parties in developing financial plans, and to minimize adverse tax consequences. And when custody is at issue, I sometimes recommend the use of a neutral 'child specialist', who is a neutral child development expert who acts as the voice of the children in negotiations for a parenting plan.

Please note that divorce mediation is not the right process for everyone. In situations involving domestic violence, or other situations in which a level playing field for negotiations cannot be established, divorce mediation is not appropriate, and other processes should be considered.

If you have any questions about whether mediation is the right process for your family, please don’t hesitate to visit my website for more information at www.SacramentoDivorceSolutions.com, or contact me for an appointment at (916) 921-7000.

Litigation Attorneys

2010-09-06T13:06:00.000-07:00

Most people faced with a divorce hire a family law litigation attorney. One reason is that divorce is a very emotional process for the participants, and they are usually angry, distrustful of the other party, and intimidated or afraid of the process. They don't believe the other side will be reasonable, and feel they need to be aggressive to get what they want.

But a litigation attorney's first objective should be to attempt to reach an agreement with the other party on some or all of the issues. If the parties are able to agree on division of assets and debts, but not custody and visitation of children, then the parties should stipulate to the property division and focus on resolving the custody dispute. It does not help to withhold agreement on property issues and hold it hostage to getting what you want with custody and visitation. Some attorneys do this better than others.

It takes most family law attorneys several or many years to fully understand the dynamic of divorcing couples, and the emotions that motivate their actions. Often the client is his own worst enemy. If children are involved, those parties will continue to be involved with one another until after the the youngest turns 18, often longer. Given that they will need to continue dealing with one another for years to come, the worst that can happen in a divorce is to make one side or the other so angry they are forever motivated by a desire to get even with the wrong the feel they have suffered.

So an experienced family law attorney realizes his or her client is best served by negotiation and compromise so both parties feel like they have given a little and gained a little. With compromise, the parties maintain control over their lives and those of their children, even though they may not have realized exactly what they wanted. That is almost always better than gambling with formal contested proceedings where at least one side is going to walk away feeling like they "lost" and dedicate themselves to coming back to get even. This is where conflicts escalate and people get locked into the revolving court doors.

Conversely, a litigator also realizes that at times one party or the other simply is too angry or hurt to be reasonable, and compromise and agreement is not possible. For those clients the litigator must protect his client through the court's process. Discovery proceedings can be utilized where one party is unwilling to recognize their obligation to disclose all material facts and information regarding their finances, mediation procedures and trial can be used to implement custody and visitation plans, and motions requesting temporary orders can be used to reduce conflict pending settlement or trial.

When one side is unwilling or unable to be reasonable, the litigator must protect their client by navigating them through the court process. Sometimes this is the only way to get parties divorced, divide the marital estate, and institute a parenting plan with provisions for future support of the children. But it's a process that usually works.

What kind of attorney do I need?

2010-08-29T17:15:00.000-07:00

You've decided you need an attorney to assist with your divorce, but did you know there are different types of Family Law attorneys? You may hire a litigator to represent you against the opposing party, an Attorney/Mediator who does not represent you or the other side but rather is neutral and assists you and your spouse in resolving the issues, or a Collaborative Attorney who represents you while a separate Collaborative Attorney represents your spouse.

Most Family Law attorneys are litigators, which means that while they may attempt to reach an agreement with the opposing party, if they are unsuccessful they obtain orders by filing a motion and going to court. While it is far better for the parties and children involved for the parties to resolve disputed issues by agreement, the reality is that most people going through a divorce are unable to do so. Emotions get in the way of rationale decisions. I am a litigator. My first and greatest effort is to resolve the issues through the opposing party or their attorney without the necessity of formal court proceedings where a judge ultimately decides what he or she thinks is best. But if the other side is unable to be reasonable, or anger has reached a point compromise is not possible, it's time to obtain orders from the court.

When divorcing couples are able to communicate rationally and without anger or judgment, they may be better served by an Attorney/Mediator. A Mediator (not to be confused with a child custody mediator, who is typically not an attorney but a therapist) can assist these couples by helping them work through the issues, making mutual decisions for a parenting plan for their children, support, division of assets and debts, and preparing the legal paperwork to finalize the divorce. The drawback to mediation is that if the parties are unable to reach an agreement, the process falls apart and each party is faced with then hiring their own attorney to represent them in contested proceedings because the Mediator can no longer represent either party.

A newer process has evolved that is designed to help people too conflicted for mediation but who desire to maintain control of the outcome of their dissolution. With Collaborative Law, each party is represented by a Collaborative Attorney, but they sign an agreement not to resolve disputes by going to court. This keeps the parties focused on resolving the issues by agreement, even when the going gets tough. In order to do this, each side may employ 'divorce coaches' to assist with the emotional aspects of a contested divorce, and child custody mediators to help the parties formulate a parenting plan for their children. The objective is to keep the disagreements out of court in order to maintain control of the outcome.

Mediators and Collaborative Attorneys both advocate one benefit of their process being reduced legal fees. I know I'll hear from my colleagues on this, but sometimes legal fees are less, and sometimes they are much more. Some couples spend several thousand dollars on mediation only to reach an impasse one one or more issues, and they then abandon the mediation process and each hire their own litigators.

With Collaborative Law, each side is paying an attorney, sometimes a 'divorce coach', a private child custody mediator, and at times a financial consultant. Even if the process is successful, it can cost more than contested litigation. Alternatively, if the process is successful the parties have learned a great deal about resolving their differences through a cooperative approach and are less likely to return to court over the years to resolve ongoing custody and support issues.

Which type of attorney you hire to assist you is a decision only you can make. As smart as we like to think we are, attorneys are not able to predict how your spouse will react or the outcome of your case. That's why we charge by the hour instead of quoting clients a flat rate for their divorce - we don't know your spouse and therefor don't know what we are getting into.

If I believe a client will be better served by mediation or a collaborative approach, I will refer them to someone competent to help them. I almost always discuss the options with new clients. I also make every effort to resolve differences between parties by agreement. Litigators, Attorney Mediators, and Collaborative Attorneys all agree parties to a divorce are better served by compromise and agreement in resolving their differences rather than maintaining an aggressive position in court.

Please feel free to link this blog and follow the coming articles. I will have a guest Attorney Mediator and Collaborative Attorney provide their perspectives on mediation and collaborative law to help you make the right decision for you.

How to find the right lawyer for you

2010-08-24T16:44:00.000-07:00

Hiring an attorney for your divorce is usually a major financial expense. The attorney who represents you can and will have a direct impact on how much your divorce will cost. Not by virtue of how much he or she charges by the hour, but by how many hours they take to get the job done.

The attorney you choose can also make your divorce a miserable process, or they can make a miserable process tolerable. In other words, it is important that you hire an attorney who is competent, mindful of not unnecessarily increasing legal fees, and that you relate to well on a personal level.

So it surprises me how many people hire the first attorney they meet with, simply (I imagine) because they do not like the process of interviewing lawyers, the issues are intimidating, and they just want to get it over with. You are hiring someone who will be charging you lot of money to do an important job. It's like a job interview to hire a key employee, and you should treat it like one.

Browsing through the phone book or responding to slick ads is the worst method for finding a lawyer. You just don't know what you are going to get. I believe the best method is to get referrals from someone you know (or a friend of a friend) who has worked with a particular attorney. Another reliable method is to ask another lawyer you know and trust to refer you to a good family law attorney.

If you are facing a divorce and need to hire someone to represent you, here is what you should know:

Make sure the attorney devotes the majority of his practice to Family Law. Some attorneys do well practicing in several different areas of law. Most do not. You want experience, not someone who has done a little of everything.
Don't hire an attorney that will not talk frankly with you about fees. If the attorney changes the subject, tells you not to worry, or gives vague answers, run out the door. The attorney should explain to you in detail about his or her fees, how he or she bills, and what and how much you are charged. The attorney should put your retainer in a trust account, and send you a detailed statement at least monthly.
If the attorney guarantees you results or promises a specific outcome, run faster.
Make certain the attorney you interview with is the one who will be handling your case. You don't want to bond with an attorney with whom you have confidence, only to be pawned off on the new attorney just out of law school.
Make sure you are comfortable with the attorney on a personal level. Does he or she seem concerned with your issues? Do they take the time to explain the legal proceedings, your options, and the law? Many attorney-client relationships disintegrate simply because of personality conflicts. This is someone you will be working closely with. Make sure you can get along with them.
Be prepared. For your first appointment you should have a copy of last year's tax return if possible, details of your real estate holdings, mortgages, bank accounts, retirement benefits, debts, and other substantial assets. Remember, when dealing with an attorney you are paying by the hour. If you are not prepared, you only have your self to blame.

Again, if you need a divorce attorney, talk to your friends and family first. See if anyone you know can recommend someone based on their personal experience. Next, call an attorney you know in the community and see if he or she can refer you to someone. Finally, if a referral is not possible do some work and find at least 3 attorneys to meet with and evaluate. It may not be pleasant, but don't hire the first attorney you meet. Remember to ask about how long they have been practicing, what percentage of their practice is devoted to Family Law, how much they charge and what their billing practices are, and gauge their personalities to determine if they are someone you can work with for several months or longer. But don't just hire an attorney who seems sympathetic and tells you what you want to hear - you need someone who will tell you what you need to hear so you will be prepared to withstand the process.

GETTING HELP WITH YOUR DIVORCE

2010-08-21T17:00:00.000-07:00

It happens with most people. They come into my office for an initial consultation because their marriage has fallen apart. They want to get a divorce, don't know what will happen, and don't know what questions to ask or where to start. They are not prepared with sufficient information to allow me to give them answers.

It's normal. Most people haven't been through a divorce, and are too confused or distracted by emotional stress to understand what kind of help they need. Often the first meeting with an attorney causes more distress, but it shouldn't.

My name is James Bayse and I am an attorney in Sacramento, California whose practice has been almost exclusively dedicated to Family Law for over 15 years. Most often, my first appointment with a client consists of learning about the client's circumstances and determining what kind of help they need, and what problems they may encounter.

One client may need an aggressive litigator to protect them from a vindictive or angry spouse. Another may need an attorney capable of working cooperatively with the other side to reach a settlement agreement while making certain you are making sound decisions regarding the issues in your divorce. Still others may be better served with a Family Law attorney who mediates the issues with both parties, or a collaborative attorney who will assist you while your spouse is represented by their own collaborative attorney to reach an agreement.

This blog is intended to educate those facing important decisions that will have long-term consequences for them and their children. I invite you to join me and follow what I hope will be helpful articles for those facing confusing and difficult times. I will be talking about the divorce process and substantive law on the various issues you will encounter.

Let me know your thoughts, and whether the dialogue was helpful for you. I will be updating frequently and hope to hear from you. Next, How to Find the Right Lawyer for You......

Regards,

James Bayse