There are three types of marital actions in California: dissolution (regular or summary), legal separation and nullity.
In California, dissolution is granted on only two grounds: (1) irreconcilable differences or (2) incurable insanity. Cal. Fam. Code § 2310. Court are generally very liberal in the interpretation of whether or not there are irreconcilable differences in a marriage; however, if there is a reasonable possibility of reconciliation, the court must continue the proceeding for no more than 30 days. Cal. Fam. Code § 2334.
A Judgment of Legal Separation may be granted only if (1) both parties consent or (2) the respondent does not appear and the petition requested a legal separation. Cal. Fam. Code § 2345.
For a Judgment of Dissolution, there is a residency requirement that at least one of the parties must have been a resident of California for 6 months and of the county in which the petition was filed for 3 months, immediately preceding the filing of the petition. Cal. Fam. Code § 2320(a). This residency requirement is mandatory and can’t be waived. However, for legal separation, there is no residency requirement.
The third marital action, nullity, may be granted only when a marriage is adjudged void or voidable under conditions provided by statute. In brief, a marriage is void in cases of incest (Cal. Fam. Code § 2200) and bigamy (Cal. Fam. Code § 2201), and is voidable in cases of minority, a current spouse mistakenly believed to be deceased, unsound mind, fraud, force, and physical incapacity (Cal. Fam. Code § 2210).
Unlike a dissolution action, there is no residency require for a Judgment of Nullity. And, unlike a Judgment of Legal Separation, there is no requirement for consent or default. The effect of a Judgment of Nullity is to erase the marriage. It is as though the parties were never married.
Do you have specific questions about which of the above marital actions you should file? Please call us.
Did your ex-spouse recently move to California from another state and you want to enforce a Child Support Order against him or her? There are several things you need to know.
First, you will need to register the foreign (or out of state) order with a California court. Per California Family Code section 4951(a), the registrant must submit the following documents:
“(1) A letter of transmittal to the tribunal requesting registration and enforcement. (2) Two copies, including one certified copy, of all orders to be registered, including any modification of an order. (3) A sworn statement by the party seeking registration or a certified statement by the custodian of the records showing the amount of any arrearage. (4) The name of the obligor and, if known: (i) The obligor's address and social security number;(ii) The name and address of the obligor's employer and any other source of income of the obligor; and (iii) A description and the location of property of the obligor in this state not exempt from execution. (5) The name and address of the obligee and, if applicable, the agency or person to whom support payments are to be remitted.”
Once registered, the foreign order is enforceable in the same manner and is subject to the same procedures as an order issued by a California court. (California Family Code section 4952(b)).
However, what about modifying the out of state Child Support Order? Does California have the jurisdiction to modify the out of state Child Support Order? Generally, no. California may not exercise jurisdiction to modify an out of state Child Support Order, if the issuing state had both subject matter jurisdiction and personal jurisdiction at the time that the order was made. (See California Family Code section 4952(c)). The Uniform Interstate Family Support Act, which is codified at California Family Code sections 4900-5005, provides the statutory framework to establish the proper jurisdictional grounds.
While the general answer regarding modification is no, there are exceptions. Per California Family Code section 4962, a California court can modify a foreign Child Support Order if all of the parties to the case reside in this state (California) and the child does not reside in the issuing state, California would have jurisdiction to enforce and to modify the issuing state’s Child Support Order.
Further, California Family Code section 4960, a California code can modify a Child Support Order if, after notice and a hearing, the California court finds either of the following:
“(1) The child, individual obligee, and obligor do not reside in the issuing state; a petitioner who is a nonresident of California seeks modification; and the respondent is subject to the personal jurisdiction of the California tribunal; or
(2) The child, or a party who is an individual, is subject to the personal jurisdiction of the California tribunal, and all of the parties who are individuals have filed written consents in the issuing tribunal for a California tribunal to modify the support order and assume continuing exclusive jurisdiction (with a special exception if the issuing state is a foreign jurisdiction).”
Nevertheless, a California court may issue a temporary child support order on an ex parte basis, or pending the resolution of a jurisdictional dispute. That order is not itself sufficient to create continuing jurisdiction over the child support issue. California Family Code section 4909(e).
If you need help in enforcing or modifying an out of state Child Support Order and have questions about the jurisdictional issues, contact experienced family law attorneys at the Law Office of Taylor B. Warner, APLC.
Often times in child custody cases, one parent will request the other party be required to complete a drug test. The reasoning behind the request may be because of an incident that occurred or an admission by the parent.
Because the Court bases a determination of child custody orders on the best interests of the child, under California Family Code section 3011, the Court has been given a tool to monitor drug use in certain cases.
California Family Code section 3041.5 states, “[The] court may order any person who is seeking custody of, or visitation with, a child who is the subject of the proceeding to undergo testing for the illegal use of controlled substances and the use of alcohol if there is a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship.” Stated more clearly, any person suspected of “habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol” who is seeking visitation or custody may be required to undergo drug or alcohol testing.
The question then becomes, how does one parent show this “habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol’? The code section states that it must be shown by a preponderance of the evidence. Preponderance of the evidence basically means “most likely than not” or 50% + 1.
So, if a parent is trying to prove drug or alcohol use by another party, they need to show the parent “more likely than not” habitually, frequently or continually has used drugs or alcohol.
What are examples of types of evidence? Thankfully, the code is also very clear about the types of evidence that can be used, stating, “This evidence may include, but may not be limited to, a conviction within the last five years for the illegal use or possession of a controlled substance.” Not all drug or alcohol users will have a conviction regarding their habit, so an admission of one parent, testimony of individuals, or workplace concerns all can be used to help a parent meet the threshold of “more likely than not”.
If you are concerned about another party in your child custody case using and/or abusing drugs or alcohol, please call Bristol & Haynes, APLC at 909-466-5575 for a consultation.
California Family Code section 3170 requires the Court send the parents in a Child Custody and Visitation matter to child custody counseling. Each county has a different model, whether it is Child Custody Recommending Counseling (CCRC) or Family Court Services (FCS); however, the creation of and the purpose behind the counseling comes directly from the California Family Code.
What is the Purpose of Mediation?
The purpose of mediation is to give the parents of the child or children a chance to meet in the presence of a mediator, someone whom is generally licensed or at least meets the California Family Code qualification, and attempt to come to an agreement regarding a custody and visitation plan. The mediator will focus the parties’ attention to the best interest of the child or children, all while attempting to obtain both sides of the story. This mediation takes place with both parents and the mediator. However, if there has been domestic violence or there is a restraining order is in place, mediation will take place with each parent individually.
Outcome of Mediation
The outcome of mediation is wholly dependent on the parents and whether any custody or visitation arrangement is agreed upon. From mediation, a full and complete agreement between the parents can be reached and presented to the court. On the date of the hearing, the court will read and consider the agreement. Each party will be able to state on the court’s record if they agree with the terms of the agreement or whether they want to change terms and why. However, be aware, if the parties reach an agreement in mediation and then want to change it at the hearing, it is difficult. The court may not be willing to change an agreement between parties, just because one parent has what is commonly referred to as “buyer’s remorse.” So, if you plan to appear at the hearing and disagree with the previous agreement, a compelling argument must be made why the change is requested. A skilled family law attorney is absolutely useful in a situation like this.
Another potential outcome could be that a partial agreement is reached between the parents. An example of a partial agreement is when custody of the children can be agreed upon, such as sharing joint legal custody, but a visitation schedule cannot be agreed upon or visa versa. The mediator will make note of the agreement and indicate the parties have reached a partial agreement. After noting the agreement, the mediator, if you are in a “recommending county” (i.e. San Bernardino, Orange, Riverside, etc.), will then prepare a report. The report will give information to the court regarding the issues in the case and a recommendation section at the end. The recommendation section is the most important section of the report because it is what the mediator is recommending that the court order for the parents because they could not come to an agreement themselves.
At the hearing, both parents will be able to state if they agree with the recommendations or not and what they agree or disagree with and why.
However, if you are in a “non-recommending county” such as Los Angeles County, absent an agreement, no report or recommendations will be made to the Court and the battle at the hearing becomes “he said” and “she said.”
One other potential outcome could be that the parents reach no agreement in mediation. Should you be in a recommending county, then the report will proceed with what the mediator learned from each party during mediation, his or her analysis of the situation, and then conclude with a recommendation section. Again, as stated above, this is the most important section and needs to be analyzed by each parent in depth. Courts appear, more times than not, to make orders consistent with the mediator’s recommendations, with little or no alterations, unless presented with sufficient evidence to make other orders. However, if your case is in a non-recommending county, no report will be generated and your case will be litigated. Again, both situations, if fighting against recommended orders or litigating, a family law attorney’s experience and skills can be vital to the outcome of your case.
To learn more about how the family law attorneys at the Law Office of Taylor B. Warner, APLC may be able to help you with you divorce, child custody and visitation case, paternity case, or any other area related to family law, please contact us for a free 30 minute consultation at (909) 466-5575.
A major issue – often times the biggest issue – in divorce cases is the marital home. Who is allowed to stay in the home during the divorce process? Who will pay the mortgage payments on the home during the divorce process? Will payments made on the mortgage during the divorce process be reimbursable? What will the disposition of the marital home be once the divorce is finalized?
In California, intended spouses may contract with one another on a variety of issues. California Family Code section 1612 lays out a list of these issues very clearly, which includes property rights, management and control of property, disposition of property upon certain events, estate-planning rights, life insurance ownership rights, and choice of law rights.
Does your job allow for a significant amount of overtime? Or do you work overtime on a consistent basis? Is your ex-spouse trying to include the overtime pay as a part of your income for the purpose of determining an order of support? Per California Family Code, the determination of “income” is very broad.
After a divorce, many people find themselves looking for a new home. In order to make sure you qualify to purchase a home after your divorce is finalized, it is important to keep your “home buying goal” in mind during settlement discussions or negotiations.