Frequently Asked Questions About Family Law
Doyle Quane’s family law group was founded in 1984 and has earned a state-wide reputation for its family law expertise. Below we have compiled answers to some of our most frequently asked questions from clients.
These questions and answers are not intended to be legal advice to any person. This information is general in nature and an answer given may or may not be applicable to a particular situation. Family law issues are extremely complex and competent legal advice should be sought from a licensed attorney. Please reach out to us either by calling 925-317-1028 or by emailing us to discuss questions relevant to your particular case.
Is Mediation Right For You?
Mediation can be either voluntary or required by the court. In either case, the mediation process is a confidential process in which a neutral third party helps the parties discuss difficult issues and negotiate an agreement.
In preparation for mediation, attorneys provide much of the same services they would do in preparation for trial. These include gathering information through the discovery process, framing the issues, developing opinions and creative solutions and preparing for negotiations. The gathered information is then presented to the mediator who assists the parties in creating their own mutually agreeable marital dissolution agreement.
Mediation is generally much less costly and time-consuming than litigating a divorce case in court. And in many cases, parties are more comfortable with the process and the ultimate result because of the flexibility that a mediator is able to provide. This results in personalized agreements that are far more likely to be complied with.
It is not the role of the mediator to judge the fairness of a decision. The mediator’s role is to help the couple reach their own settlement. If the parties reach a mutually agreeable decision with the help of the mediator, then the attorneys will prepare the agreement in a document that will be acceptable to the courts.
What Is the Difference Between Custody And Visitation?
At divorce or separation, if minor children are involved, the issues of “custody” and “visitation” will have to be addressed. There are two forms of custody; physical custody and legal custody.
Physical custody refers to which parent the child will live with on a regular basis while legal custody governs who is responsible for important decisions regarding health and welfare of the child.
Physical custody can be primary or joint. Primary physical custody exists when the child lives with one parent most of the time. In a joint physical custody arrangement, the child lives with both parents on approximately equal terms. If one parent does not have physical custody, that parent is ordinarily granted visitation rights on a court-approved schedule. In some circumstances, visitation may be supervised or denied if the visitation will be harmful to the child.
“Visitation” is the plan or agreement that provides how the parent with physical custody of the children and the noncustodial parent will share time with the child.
Legal custody can be sole or joint. Sole legal custody entrusts one parent with the authority to make important decisions regarding the child. While joint legal custody instills both parents with the authority to make important decisions for the child. Important decisions include but are not limited to:
- School or childcare
- Medical and psychological therapy and treatment
- Religious teachings
- Travel and where the child will live and be raised
If the parents cannot agree upon a custody agreement, they will be ordered to attend mediation. In the event mediation fails, the judge will settle the custody issues.
What Is Different About California Spousal Support?
Absent an agreement between the parties, the determination of spousal support can be very complex. Because it is complex, courts will generally provide a temporary order for spousal support which is intended to ensure the lower wage-earning or nonwage-earning spouse is able to provide for his or her needs during the divorce process. Once the permanent spousal support order is entered upon the final divorce decree, the temporary order is revoked.
There are several considerations that go into the determination of the permanent spousal support order. These include, among others, the length of the marriage, the ability of the previous nonworking spouse (if any) to obtain employment, the disparity between the wages of both working spouses and the division of property.
Depending on the type and terms of a spousal support order, it may or may not be modifiable at a future date.
What Kind Of Assets Are Divided In A Divorce?
There are three categories (characterizations) of property which will be considered in a divorce: community property, separate property and quasi-community property.
Community property consists of all earnings and property acquired during marriage by both spouses, other than property acquired during the marriage by gift or inheritance.
Separate property consists of all property owned before marriage, all property that is acquired by gift or inheritance during the marriage, the fruits of separate property such as rent, and all earnings and property acquired after the date of legal separation.
Quasi-community property is all earnings and property acquired by either spouse while domiciled in a separate property state outside of California that would have been treated as community property had it been acquired while domiciled in California.
Generally, the parties to a divorce can agree (stipulate) to any division of property they desire. However, when the parties cannot agree on how to divide property, the characterization of the property becomes important.
If the parties fail to agree on a division of property, the court will refer to the schedule of property provided by the parties. This includes all real property, personal property, businesses, vehicles, etc. This information is gathered during the discovery process. During the discovery process, the parties will exchange any and all documents pertaining to, among others, earnings, savings, investments, retirement funds, purchase dates for property and the source of funds used to purchase that property.
This process helps identify the source and characterization of the property and is intended to identify and reveal all pertinent and relevant information that will assist the judge in making the property division judgment.
Division of property is often the most complex aspect of any divorce proceedings. Doyle Quane approaches property division with an eye towards a smarter, forward-looking division of assets. We believe that it is illogical to craft a division of assets that unnecessarily impairs the income-producing capabilities of a high value asset. Instead, our approach is to work closely with our in-house tax and estate planning experts, along with our family law forensic accounting department, to craft creative solutions that appropriately divide income from assets without destroying the viability of the underlying asset.
What Is The Divorce Process Like?
It is important to seek advice from an attorney who can talk over unique aspects of your coming divorce before attempting to move through the legal processes described below. Nonetheless, a general overview of the process can help you anticipate how you will be involved during each phase of your divorce.
Initiating The Divorce Process
The spouse desiring the divorce will contact an attorney. The attorney will gather the information necessary to file the Petition for Dissolution of Marriage, which provides the court with the reasons regarding why the divorce is being sought and the outcome (relief) the petitioning spouse desires.
The petition is filed with the court and served to the other spouse. The service of the petition on the other spouse gives that spouse legal notice that a divorce is being sought.
Responding To Or Answering The Petition
The law requires that the served spouse responds within 30 days. Failure to respond creates a presumption that he or she does not contest the petition. A noncontested petition will be granted with the requested relief. A properly executed response will answer or respond to the petition’s allegations and sought relief and set forth the relief that the answering spouse requests.
Both parties will participate in the discovery process in which they will exchange all documents and other information relevant to deciding the issues in the divorce such as property division, spousal support, child support, etcetera.
Ideally, parties that were unable to agree to the terms of the divorce and began the litigation process will later reach a settlement. The settlement process can be initiated voluntarily or facilitated by the parties’ lawyers or a neutral third party, such as a mediator.
If a settlement is reached, the settlement agreement is submitted to the court. The judge will review the agreement and if he or she approves the settlement a divorce decree that includes the terms to which the parties agreed will be issued. If the judge does not approve it, or if there has been no agreement, the case will go to trial.
At trial, the parties via their attorneys present their evidence and arguments. When both parties have completed presenting their evidence and rested their case, the judge decides the unresolved issues, including child custody and visitation, child and spousal support, and property division, then the judge grants the divorce.
Once the divorce decree is granted after trial, either of the parties or in some cases, both of the parties, are entitled to appeal the decision.
How Does A Court Decide Which Parent Will Get Custody Of A Child?
Often parents will agree upon a custody sharing arrangement. However, if they are unable to do so, the court will do what it considers to be in the child’s best interest.
The factors, among others, that the court may consider are: the age and gender of the child; the physical and mental health of the parents and the child; parental lifestyle; history or reports of abuse; the parent’s ability to provide a home that meets the child’s needs and necessities; and if the child is above the required age to do so, the child’s preference may be considered.
The court may also order the parent to attend mediation to resolve the child custody issues and may require the parents and children to be evaluated to help determine the most appropriate custody arrangement.
How Is Child Support Collected If The Parent Paying The Support Moves Out Of State?
It is the general law that each state abides by the support orders issued by the courts of sister states. If the paying parent moves out of state and has ceased payments, the custodial parent who receives the support must register the order for support in the county where the payer parent now lives. Then the court in that jurisdiction will enforce the order, which continues the obligation of child support payments.
However, depending upon which state the paying parent now resides, and which laws and guidelines are adopted by that state, the paying parent may be entitled to argue that the amount of the support payment should be decreased. If the new resident state is a state which allows it, the court may decrease the amount of the support payment, and the home state cannot modify or strike that order. Other jurisdictions will not allow their courts to modify any portion of the sister state’s support order.
Can The Amount Of Support That Is Paid Be Changed After The Judge Issues A Child Support Order?
Often parents will agree (stipulate) to modify an existing support order if one or the other parent has found themselves in changed circumstances such as loss of a job or a significant increase in income.
In the absence of the ability to agree to a modification, the parent seeking modification may request a court hearing. Each party will be present at the hearing where they (usually through their attorneys) will present the facts supporting their position to the judge.
It is unusual for the court to grant a modification request without showing a significant change in circumstances that justifies the change. Events that may warrant a change or modification of the order include: a significant increase or decrease in either parent’s income; a substantial change in the needs of the child; changes in the child support laws; and an increase in the general cost of living.
How Is The Amount Of Child Support Calculated?
Each state has implemented guidelines that are used to ascertain the amount of child support that must be paid. The guidelines differ considerably from state to state however, there are some general factors that are balanced by judges issuing child support orders.
These factors include:
- The standard of living in which the child was raised prior to the parents’ separation or divorce
- The ability of the parent assigned support to pay support
- The needs of the custodial parent
- The custodial parent’s income
The needs of the child or children, including:
- Educational costs and/or day care expenses
- Medical expenses, including health insurance and/or special health care needs
In order to determine a parent’s ability to pay, the parents will most likely be required to produce financial statements listing all sources of income and all expenses. The judge will then review these records to assist him/her in issuing a support order.