Divorces are actions filed with the California Superior Court and are either settled or litigated in a hearing or trial. Divorce litigation follows the same code of evidence and code of civil procedure that is utilized in civil and business litigation. Family law views married people as partners, the marriage as a partnership and a divorce as a dissolution of a partnership. A dissolution can be peaceful or hostile and can be resolved through a settlement or litigation.
Family law issues may be settled or may be resolved in a trial or hearing. It is a misconception to think that if you retain a divorce lawyer to represent you in a divorce that your case will necessarily involve a hearing or a trial. Most divorce cases that are technically "litigation" matters never proceed to a hearing or trial and are settled between the parties or their lawyers.
Child Custody and Child Visitation
If the parties cannot arrive at an agreement resolving all custody and visitation matters, the family law court will make the necessary decisions, including physical custody and legal custody. These orders are made after a hearing or trial, at which the parties' other witnesses may testify. The court may make orders regarding a variety of other related matters, like education or the relocation of a child's residence.
Properly handling child custody disputes requires a child custody attorney with a number of different and distinct lawyering skills. To be effective in child custody matters, a child custody attorney must be both proficient in trial skills, and must be knowledgeable about the nuances of child custody law. It is essential that a child custody attorney stay current and updated on the statutes and cases, as they change frequently, and often without notice. Changes may impact the outcome of a child custody case dramatically. A child custody attorney must also be conversant with the many issues regarding Evidence Code Section 730, child custody evaluations, and the psychological testing utilized in the evaluation process.
Domestic violence actions may be filed in the family law court and may impact other parts of a case including child custody, child support, spousal support and attorneys fees. A finding of domestic violence does not necessarily require a physical touching and there is a lower threshold for finding domestic violence in family court than exists in the criminal courts.
In family law, domestic violence is abuse or threats of abuse between persons who have been in an intimate relationship or people that are related by blood. The abuse can be physical, emotional and/or psychological. The abuse can be of a sexual nature and can be a result of hurting someone or trying to hurt someone whether intentionally or recklessly. It can take many forms including controlling freedom of access, throwing items, kicking, hitting, shoving or pulling hair. Family law courts may issue orders restraining this and other types of conduct.
Modification of Orders - Post-Judgment
Child custody, child support and spousal support orders are modifiable after the judgment is entered. A modification generally requires a change of circumstances but there are exceptions.
Divorce courts have jurisdiction to modify child support orders, child custody matters and spousal support orders unless the parties have agreed that they are non-modifiable. Modifications are brought before the divorce court by the filing of a Request For Order (RFO).
California family law provides that parents must contribute to the support of a child according to a detailed formula that is utilized in the software programs "X-Spouse" and "Dissomaster." These programs generate what is referred to as guideline child support.
Child support is a complex area of family law and is more involved than simply inputting the incomes of the parties into a computer program and pressing enter. The computer program generates the guideline child support amount. A family court may order a party to pay for additional expenses referred to as "add-ons" in addition to the base child support. Add-ons may include such things as child care, activity costs, schools costs, travel costs, health insurance premiums and medical costs not paid by insurance. Other issues that may need to be addressed include issues like imputation of income, determining the representative period of past earnings to determine the most probable future income, how to treat fluctuating income, determining whether money received is income, etc.
A family law court may order one party to pay spousal support to the other if that party has the need and the party ordered to pay has the ability to pay. Spousal support payable before the judgment is entered is called temporary support and spousal support paid after the judgment is called permanent spousal support.
If there is a demonstrated need by one spouse and a demonstrated ability to pay relative to the other spouse, a divorce court will likely make an order for spousal support payable to the spouse in need. The determination of the amount, duration and other terms of the spousal support order can be very complex.
Parentage or paternity matters are resolved in the family court along with child support and other issues related to a child.
Family law courts have jurisdiction to determine parentage. In other words, family law courts may determine the identity of the parents of a child using genetic testing. Once parentage is established, a person has all the rights of a parent, may obtain custody/visitation orders, and may be ordered to pay child support.
Parentage litigation is resolved in the family law courts. This area of the law is decided based on statutes, case law, and a number of very significant presumptions. The laws are designed to protect the best interests of the child and follow common sense.
Separate Property Tracing
Tracing is the procedure utilized to prove that a party's separate property was the source of funds used to purchase an assset or make an expenditure that is reimburseable.
Commingling occurs when separate property funds and community property funds are deposited into the same account, when separate property funds are used to purchase a jointly titled asset, when separate funds are used to make payments on a mortgage on a community asset or when separate funds are used to improve a community asset.
enforcement of family law orders
Family law courts can make orders relative to many issues relative to many issues but the granting of an order by itself does not mean that the order will be voluntarily complied with. California family law provides parties with a variety of tools to enforce family law orders.
Parties to family law matters can access the divorce courts to enforce orders through private attorneys and in certain situations through the Department of Child Support Services. Enforcement may be sought to enforce orders relative to child support, spousal support, payments due under the terms of family law order or judgment, custody/visitation and other areas. Orders may be sought through a contempt, a writ of execution, a wage assignment, a receiver, a keeper, an abstract of judgment and various other remedies.
Breach of Fiduciary Duties
Parties to a divorce have fiduciary duties to one another. Fiduciary duties are wide ranging but include the duty to voluntarily share information and documents and to voluntarily share material facts and information relative to community assets, separate assets, debts, investment opportunities, and amounts and sources of income with the other party (IRMO Feldman). The duties continue until the divorce is finalized and the property is divided. A breach of fiduciary duties can result in substantial financial sanctions, a 100% penalty equal to the value of the undisclosed asset, and/or attorney fees.
Representing clients in divorce matters involving a business interest usually requires the retention of a number of experts including a valuation expert who can also be invaluable in the negotiations and in reaching a settlement. In fact, in many cases the divorce court will order the accountants to meet and confer long before the divorce trial to attempt to resolve or narrow their differences.
Characterization and Division of Complex Assets
A divorce may involve no or minimal community property and cases of this type may be resolved very quickly, inexpensively and may or may not need the services of a divorce lawyer. Other times a divorce may involve extremely complex issues that all but require the involvement of a divorce lawyer and other experts. Cases of this type often resemble business litigation between partners. However, complexity itself does not mean that the matter will involve a trial. Many complex matters are resolved amiably without the involvement of a judge or a trial.
Characterization and Equitable Apportionment
When community and separate property, money, and/or services are commingled, there may exist an issue as to whether the asset is separate, community, or mixed. A family law court may be asked to apportion an increase in the value of a separate property asset between community property and the separate property of one party in an equitable manner. There may also exist an issue as to whether there is a right to reimbursement relative to the separate or community estate. The determination of these issues is fact driven. Gray areas are often decided, in the divorce courts, in favor of the community. These issues are often determined based on which party has the "burden of proof." There are presumptions that favor the community estate, and there are presumptions that favor the separate estate. Some presumptions may be overcome with evidence. Family law courts may be required to rule on characterization and apportionment issues relative to bank accounts, brokerage accounts, stock options, businesses, real estate and many other assets.
An example of equitable apportionment may exist when, during the marriage, when a spouse works in their separate property business that increased in value during the marriage. The community may be entitled to a portion of the increase in value of the business, during the marriage.
Right to Reimbursement of a Portion of the Increase in Value of a Separate Property Business
California family law provides for a reimbursement to the community of a portion of the increase in the value of a business owned by one spouse before the date of the marriage in certain situations.
If a business is acquired prior to the date of the marriage it will be characterized as the owner’s separate property.
If a business is acquired during the marriage it will generally be characterized as community property. The characterization of a business will not change during the marriage unless there is a transmutation by written agreement of the business itself from separate to community.
Deferred Compensation, Plan Valuation and Characterization
Deferred compensation plans come in many different shapes and sizes. Some of these employment benefits may not be restricted by the rules and regulations of the Employee Retirement Income Security Act (ERISA) and thus can be structured to meet the specific needs and objectives of employees and employers. They may be granted to specific employees without regard to the benefits received by other employees. They are often complex in structure, difficult to value, and may present problematic enforcement issues. These benefits may not ever be received or may be received many years in the future. To the extent that a plan or a portion of a plan is earned during the marriage, that part will be characterized by the divorce court as community property.
A qualified deferred compensation plan must comply with all of the rules and regulationsof the Employee Retirement Income Security Act (ERISA) and must be offered to all employees. An example of such a plan would be a 401(K) plan. Qualified plans have maximum contribution limits.
A non-qualified plan is not restricted by ERISA, does not have to be offered to all employees, may have a security risk in that there is no guarantee of payment and are unfunded obligations to the business.
Retirement Plan Valuation and Characterization
Retirement plans are a form of compensation and compensation earned during the marriage is community property. In a family law matter, retirement plans must be characterized as either separate or community property and if community property they are valued and divided.
If a plan or part of a plan was earned during the marriage, that part will be characterized by the courts as community property. There may be issues as to when a retirement plan, or a portion of a retirement plan was earned. The determination by a divorce court of which part of a plan is community property is determined by case law and relates to the date of separation. The earnings, accumulations and losses relative to the community interest in a plan will be characterized by a divorce court as community property.
Stock Option Characterization and Apportionment
Stock options are a form of compensation and if they vest or partially vest during the marriage, all or a portion of the options will likely be characterized as community property. There are several different formulas that are used to characterize stock options and the court has significant discretion in the selection of the formula. So long as the order accomplishes substantial justice.
Validity of Premarital and Postmarital Agreements
Parties have the option to enter into a premarital agreement before the marriage and if they follow the rules, the agreement will likely be determined to be a valid and enforceable document.
When parties enter into a premarital agreement or a postmarital agreement there may be issues of interpretation and/or validity in a future divorce proceeding. There are specific presumptions that apply to these agreements some of which are rebuttable and can be overcome with sufficient evidence. The law has changed several times over the years relative to what issues may be addressed in a premarital agreement. It is critical to know the law as it existed on the date the premarital agreement was executed. (IRMO Melissa). If the parties do not agree as to the validity of an agreement, the divorce court will determine the validity. Trials on these issues can be extensive and may involve issues related to unconscionably, the nature of the relationship between the parties when the agreement was executed, undue influence, voluntariness, lack of accurate disclosures, compliance with family code requirements relative to the execution of the premarital agreement and issues of contractual interpretation.