–Divorce – including dissolution of marriage and domestic partnership dissolution
–Child custody and visitation – including legal and physical custody and parenting plans
–Child support– including calculating child support according to the child support guidelines
–Prenuptial and post nuptial agreements – including domestic partnership agreements
–Paternity suits – including determining child support obligations
–Division of marital property – including valuation issues
–Domestic partnerships– including assistance with adoptions, pre and post domestic partnership agreements
–Post-divorce modifications – including child support modifications, child custody modifications, and child visitation modifications
-Adoptions – including step-parent (stepparent) adoptions
–Annulments – voids or makes a previous marriage voidable under specific circumstances as discussed on this page below
-Guardianships – involves appointing a guardianship over the person or estate or both
–Domestic violence and restraining orders – including temporary restraining orders (TRO) and protective orders (PO)
–Legal separation – including legal separation agreements as discussed on this page below
–Department of Child Support Service (DCSS) – includes litigation of child support, child support arrears, and collection of support arrears
Divorce proceedings are often complex and require the resolution of many legal issues, such as characterizing, valuing and dividing property, determining child custody and visitation and calculating child and spousal support. Every person facing a divorce is confronted with a unique set of emotional and financial challenges. As knowledgeable and experienced San Diego County divorce lawyers, we understand these challenges. Our lawyers will help you to identify the issues in your case, explain the options available to you and work with you to meet your goals.
We typically explain to our dissolution of marriage and domestic partnership clients that cases are generally resolved over time in three stages: the initiation of the divorce, pre-trial and pre-settlement, and resolution. The majority of time and effort expended during dissolution proceedings occur in the middle stage, where the court may hear requests by either party to enter orders pertaining to a variety of issues, including child custody and visitation, child and spousal support, exclusive use and possession of a family residence, payment of debts, counseling, appointment of certain experts, accountings, and so forth. The middle stage is also where disclosures and discovery are completed, and the parties meet and confer to negotiate terms of their settlement.
Stage 1: Initiating the Case
Every family law case begins by filing a petition with the court. The person who files the case is called the “petitioner” and the other party is called the “respondent”. There are different types of cases that can be filed to terminate the status of a marriage or domestic partnership, including dissolution or divorce, legal separation and nullity of marriage. The petitioner must properly effectuate service on the respondent with the petition, summons and associated documents. California law provides for several different methods of service, including personal service, substituted service and service by mail. After the Respondent has been served, he or she generally has 30 days in which to file a response.
Divorce and Dissolution
Dissolution legally ends a marriage or registered domestic partnership. A divorce proceeding will resolve issues such as the division of assets and debts, child custody and visitation and child and spousal support. California is a no-fault divorce state, which means that if either spouse believes that irreconcilable differences have arisen, the court will enter judgment of dissolution. A final judgment of dissolution will also restore the parties to their status as single persons.
California law affords qualified domestic partners with many of the rights and obligations of married persons. As a result, many of the fundamental issues that may be relevant to a divorce may also be relevant to the dissolution of a registered domestic partnership.
To file for dissolution in California, you must meet the residency requirement. This means that either you or your spouse must have lived in California for at least 6 months and either you or your spouse must have lived in the county in which you are filing for at least 3 months.
The Petition for dissolution and the other party’s Response, set forth that person’s requests in general terms and typically include requests based on that party’s “best case scenario”. For example, if there are certain separate and community property reimbursements that might be at issue in the proceeding, it might be wise for the party seeking reimbursement to include such a request on his or her initial pleading. There are also certain situations where a person’s rights or obligations might be deemed waived upon the filing of a petition or response, and therefore it is extremely important to consult with competent legal counsel before filing any document with the court. Some examples of this importance of filing the proper initial papers include situations where military retirement plans might be relevant, where claims to separate real property might be at issue, or cases involving complex division of community assets and debts.
A legal separation proceeding resolves matters such as the division of assets and debts, custody, and support just as in a divorce, however, the parties retain their status as married persons once the case is over. This is an option if you want to live separately from your spouse, but also want to stay legally married. There may be significant advantages or disadvantages to proceeding with legal separation as opposed to divorce, which may call for the advice of competent legal counsel. A legal separation can be converted into a divorce after the initial filing if you wish to obtain a divorce, but have not met the residency requirement. Our San Diego County family law attorneys can discuss this option with you in detail to determine the course of action that will obtain the quickest, most cost-effective results.
Nullity of Marriage, or Annulment
An annulment occurs where there is a void or voidable marriage. California law only allows for an annulment in narrow circumstances, such as where there is fraud, undue influence, duress, lack of physical or mental capacity, or bigamy. Our knowledgeable family law attorneys can explain the circumstances under which you may seek an annulment and discuss whether an annulment is an option in your case.
Nullity or annulment cases based on allegations of fraud generally must meet a threshold question relating to whether the alleged fraud was essential to the marital relationship. For example, one spouse’s failure to inform the other spouse that they had another significant other, or children, at the time of marriage might be considered by the court as essential to the marital relationship. On the other hand, a spouse’s failure to inform the other spouse that they incurred credit card debt prior to marriage might not be considered by the court as essential to the marital relationship.
Nullity cases based on allegations of undue influence or duress generally hinge on the parties’ conduct immediately before and at the date of marriage. For example, if one spouse threatened to kill the other spouse if he or she did not marry them, the court might consider that evidence to be sufficient to determine nullity is proper.
Nullity matters based on lack of physical or mental capacity tend to hinge on the parties’ behavior on the date of marriage and thereafter. For example, lack of consummation, or sexual intercourse, after the date of marriage falls under the category of physical incapacity.
Annulment cases filed based on bigamy brings interesting legal challenges. Bigamy occurs where a person marries someone while they are still legally married to someone else. The second marriage is void. In bigamy cases, which also may hold criminal ramifications, a spouse may claim that they are a “putative” spouse if certain elements are met. This means that the second spouse, although not legally married, may seek the court’s assistance to make certain orders as if the parties were legally married.
The unique circumstances of each case present different options that may be available to you at this stage in the divorce proceeding, including collaborative-type divorce and summary dissolution proceedings as well as mediation services. Our knowledgeable attorneys can explain your options and help you determine how to proceed to achieve the best, most cost-effective results.
Stage 2: Pre-trial and Pre-settlement
Each divorce proceeding will likely entail various hearings that you and your spouse will be required to attend, such as Status Conferences, Case Management Conferences and Mandatory Settlement Conferences. Cases involving child custody also require the parties to attend Family Court Services (FCS) mediation. Our experienced divorce and child custody attorneys can help you prepare for your hearings and FCS mediation. Preparation for mediation will also help you to feel less intimidated and confused about the process as well as help the mediation session run more smoothly so you can obtain the best results.
During a divorce proceeding, you and your spouse are also required to identify the martial property, including assets and debts, and declare income and expenses. The disclosures are comprehensive and a sample of the necessary forms can be found here. The formal exchange of information occurs through service of declarations of disclosure. This process can often be complicated and confusing. A knowledgeable attorney with experience in family law can help navigate through this process to ensure that your interests are protected. There may be significant consequences for any party that misrepresents, omits, or fails to fully disclose financial information. It is also important to understand the mechanisms to provide the court with the correct financial picture if your spouse does not produce accurate or complete disclosures.
In the event the required mandatory disclosure documents that your spouse provided in your case is not accurate or not complete, you have to right to gain information through a process called discovery. You can also use the discovery process to gain information in child custody, support, and other matters. Discovery is a general term which includes many tools lawyers typically use to obtain information from a variety of sources. For example, discovery may include the taking of depositions, demanding the production of documents, requiring a party to answer questions under oath or admit or deny certain facts, and sending subpoenas to third parties.
You and your spouse may also request that the court make orders on issues before a final judgment of dissolution is entered. These orders are called temporary, or pendente lite, orders. To obtain a temporary order, you must file an Order to Show Cause or a Notice of Motion. You and your spouse may obtain temporary orders on matters such as child custody and visitation, child support and spousal support. At your hearing, the judge or commissioner will enter orders that will last until the order is modified, which can occur during the proceeding or at the end of the proceeding, where the parties either agree to permanent orders or a judge makes a decision at a trial.
Stage 3: Ending the Case
A divorce case ends with either an agreement between the parties or a trial. If you and your spouse are able to reach an agreement on issues such as the division of assets, child custody and visitation, support, and all the terms typically associated with divorce proceedings, our attorneys will prepare a Marital Settlement Agreement, or MSA. We may alternatively prepare a stipulated judgment, which is a short form marital settlement agreement if the case does not require a detailed MSA. The terms of agreement are filed with the court and adopted into a court order. It is important to note that every document filed with the Court becomes part of the public record in divorce cases. That means anyone can go to the courthouse and review a divorce file. In some circumstances, it is possible to file a memorandum of a confidential agreement, which means that the terms of the divorce are kept out of the public eye. Many celebrities and high net-worth individuals seek this option as a method to keep their settlement terms confidential.
If you and your spouse cannot come to an agreement, your case will conclude following a trial, which means that a judge or commissioner will decide any issue that you cannot agree to. In preparing for trial, your attorney will draft a brief with legal arguments to persuade the court to rule in your favor. During the trial, evidence must be submitted in the proper format so that the court accepts the evidence. If information is submitted to the court, but not in compliance with the rules of evidence, the court cannot accept the evidence and therefore cannot consider that evidence when rendering a decision. During trial, testimony will also be considered by the court. Unlike other civil or criminal matters, there are no jury trials in family court. There is only one Trier of Fact, which is the judge or commissioner. Trial preparation is important because the court may base its decision on the credibility of the witnesses.
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DISCLAIMER: The content of this website is intended as legal information only and should not be construed as legal advice. The content of this website is a summary of the law only. It may not contain a complete statement of the law. You should contact an attorney if you seek specific legal advice or assistance.