FAQ

A typical dissolution of marriage requires the following steps: The Summons and Petition (Family Law) is filed and personally served on the other party (the “Respondent”) in the appropriate County (venue of California). The Respondent then has thirty days to file a Response (Family Law). There are typically no advantages in the eyes of the court as to which party is the Petitioner or Respondent.

One of the parties to the dissolution will usually request temporary court orders by filing for a Request for Order (RFO) hearing. At this hearing, the judge can make temporary orders on any issues in the case, such as: child custody, child and/or spousal support, attorney fees, and restraining orders (as appropriate), just to name a few.

The parties may also engage in discovery, which is the process by which parties exchange information and documents that are relevant to the case. One of the required aspects of discovery is the preparation of the Preliminary Declaration of Disclosure. This is a collection of court forms on which each party lists their income, expenses, and community and separate property assets and debts. Other forms of discovery include interrogatories (written questions), demands for production of documents, and depositions (oral examination under penalty of perjury).

After discovery is completed and the mandatory financial disclosures are exchanged, the parties and their attorneys (if they are represented) may discuss settlement of the case. If the case is resolved by agreement, one of the attorneys will prepare a Marital Settlement Agreement or Stipulated Judgment which will contain all of the terms of the agreement. This is a contract that is signed by the spouses and their attorneys, and eventually approved by the court when it becomes and enforceable order.

If the parties are not able to agree on all of the issues in the case, a trial will take place on some or all issues. If the parties sign a Marital Settlement Agreement, one of the attorneys will then prepare a Stipulated Judgment that contains all of the terms of the Marital Settlement Agreement to be signed by the judge. If the parties proceed to trial, once the trial has concluded, one of the attorneys will prepare a Judgment of Dissolution of Marriage based upon the court’s rulings. The Judgment will contain all of the court’s findings rulings and decisions. The Judgment will then be filed and signed by the judge, and the court will mail a Notice of Entry of Judgment to each attorney. Call the Law Offices of William P. Glavin to schedule a comprehensive consultation and analysis of your divorce case and how best to resolve your case efficiently and expeditiously.

Spousal support is often initially awarded at an RFO (aka “Request for Order”) hearing on a temporary basis, where one spouse is unemployed or earning significantly less than the other spouse. The Superior Courts of Orange and Los Angeles Counties have adopted the Santa Clara guideline for temporary (aka pendente lite) spousal support. This guideline generally provides that the higher earning spouse’s spousal support is to be 40% of his/her net monthly income, reduced by one-half of the other spouse’s net monthly income. The courts generally use a computer program known as “Dissomaster” to arrive at a temporary spousal support amount.

If child support is also being paid, the guideline level of child support will be calculated first. Then, spousal support is determined based on the payor’s income after the child support payment is considered. Spousal support would likely be less if child support is being received as well.

The California Family Code provides judges with a long list of factors under Family Code §4320 that are to be considered in determining the amount and duration of spousal support. This list includes such factors as the length of the marriage, the parties’ prior living standard, the extent to which the supported spouse contributed to the attainment of an education or professional license by the other spouse, the presence of young children in the home, the employment opportunities available to the spouse requesting support, and documented history of domestic violence. Judges have tremendous discretion to weigh these various factors and set a permanent spousal support order, based on their own opinions of what is just and appropriate. Consequently, it is highly likely that ten different judges could come up with ten different spousal support orders based on the exact same set of facts.

In 1984 the California Legislature enacted the Agnos Minimum Child Support Standards Act. This law established minimum levels of child support and required the courts to establish guidelines for awards of child support above the statutory minimums. This is known as the Child Support Guideline, which was recently amended, effective July 1, 1992.

To calculate the minimum amount of child support to be paid by a parent, the law directs the judge to first add up the total net monthly incomes of both parents. The court then must compute the percentage of that income that is being earned by the non- custodial parent. That percentage is multiplied by the applicable level of welfare payments for the number of children in the household. The result of this calculation is the minimum child support. It should be understood that in the vast majority of cases the court orders child support above the minimum level, as determined by local support guidelines.

The vast majority of child support is paid under the Child Support Guideline. The guideline is based on a complicated mathematical formula. In fact, computer programs must be used to calculate child support under the guideline. The Law Offices of William P. Glavin has the same programs used by California courts to determine guideline child support

The nature of the order (as well as the subject of the order) will affect whether or not it can be modified, as well as the process for modification. Certain orders, such as child custody and child support orders are always modifiable, but may require a different standard of proof depending on whether you are seeking to modify a temporary custody order, or a permanent custody order. Other orders may require a ruling from a Court of Appeal or the Supreme Court to become final orders. Please feel free to contact us about any order that you would like to modify or appeal. There are time deadlines to file appeals so take swift action if you believe you’ve received an unjust ruling.

Separate property is generally defined as any property owned by either party prior to their marriage, any property received by them by gift or inheritance after their marriage, and any income earned after separation. Separate property also includes the rents, issues, profits, interest income, etc. that are generated by separate property. Provided that the separate property is not co-mingled with other community property, such property will remain the separate property of the spouse who earned/received it.

All property acquired by married people during the course of their marriage is presumptively community property. This includes the rents, issues, profits, interest income, etc. that are generated by community property. Community property also includes the efforts of each spouse (significant in family owned businesses) as well as all wages earned by either spouse during marriage.

In California, in a dispute over whether property is separate or community, the party alleging that a particular item is their separate property has the burden to prove that the item in question was acquired by gift, devise, descent or bequest, or that the item/income was from an asset acquired prior to marriage or after the date of separation. This generally requires a tracing of the asset owned during marriage to be proved owned prior to marriage (i.e. a tracing)

It is a common occurrence that one party’s separate property is used in part to acquire property during the marriage (i.e. to make a down payment on a family residence). Depending on the circumstances, as well as the party’s ability to prove that the down payment came from their separate property, property so acquired may be characterized as a “mixed” asset in which case, both the community and separate property components each receive a “pro tanto” rate of return on their respective contributions toward the acquisition of the property.

Upon dissolution, the court (either after trial or pursuant to a settlement agreement) will order the community property divided equally between the spouses. The division need not be exact, but should be a “fairly equal” division. Some items may be sold (i.e., the family home). Other items may be awarded in whole to either spouse depending upon his or her connection with the item. If one spouse is primarily responsible for a business, the court will likely award the business to that spouse, and make up for the community property interest of the other spouse in the business by awarding him or her other assets, or money. Alternatively, the spouse with the business may be ordered to “buy out” the other spouse’s community property interest.

It is important to note, that for purposes of dividing property at divorce, the form of title to any item of real or personal property may be irrelevant. Therefore, although the marital home may be titled in the name of just one spouse, if payments on the mortgage or trust deed are made with community property funds, there will be a community property interest in the property in proportion to the community funds used to improve the value of the property, or pay down the principal on any debt. Property titled as “joint tenants” (with rights of survivorship) likewise may be divided by the court as community property. Nevertheless, at death, the rules of joint tenancy will operate to pass the entire joint tenancy item to the survivor. For this reason, a person involved in divorce should consult his or her attorney promptly regarding the changing of title of items held in joint tenancy with the other spouse. In the event of death prior to the entry of a judgment terminating the marriage, the joint tenancy item would pass to the surviving spouse rather than to the estate of the deceased spouse (the exception to this rule is if the property issues have not been resolved within four (4) years after judgment is entered terminating the marriage). In making any such changes, however, care must be taken not to violate the automatic temporary restraining orders which go into effect upon the filing of the Summons and Response as to the Petitioner, and the service of the Summons as to the Respondent. It is therefore highly recommended that counsel be consulted on this issue prior to making any changes.

It is not uncommon to have one spouse that is not fully aware of the family’s financial situation. Sometimes, this is because that spouse simply trusts the other spouse to handle all of their financial matters. Other times, it is because the other spouse actively hides or misrepresents the truth or never included the “out spouse” with much financial information during the marriage because it was standard routine for the managing spouse to handle all finances while the other spouse chose to handle other duties and responsibilities of the marital household.

Regardless of the reason, if you are not aware of your spouse’s income or the extent of your assets/savings, there are simplified procedures available to obtain the information necessary to ensure that you receive an equal division of the community estate, as well as appropriate support. That may include serving discovery on the other party or on third parties (i.e. subpoenas for bank records), or retaining experts such as forensic accountants to trace assets, or hiring business or property experts to value assets.

On a case by case basis, we try to work with potential clients to find creative ways to help them in their family law matters. Depending on the facts, we may be able to work with you to help you get into court right away to seek an attorney fee order, or an order for the return of misappropriated funds, so that you can get the monies necessary to retain our firm and any experts you may need to retain. Please feel free to call us to discuss your options.