Family Law Procedures

 

Marriage Counseling and the Conciliation Court

The decision to initiate dissolution of marriage case is a serious one, and we encourage clients to carefully think out their action prior to initiating legal action. You should know that the Superior court offers free marriage counseling service upon request. Forms to initiate this service are available either from us or at the Conciliation Court. We can also refer you to a private counselor.

 

Filing and Service of the Petition

If you are the initiating party, your case is begun by filing with the court a Petition requesting that your marriage be dissolved. Unlike the “old days” no particular “grounds” for dissolution are needed. Instead, just a simple statement that irreconcilable differences have arisen between the parties, and includes a list of the property which is to be divided.

 

After the Petition is filed with the court, it and a Summons must be served on your spouse by a process server. As the Respondent, your spouse then has thirty (30) days to answer the Petition by filing a Response and Request for Dissolutions, which essentially admits, denies or corrects the date in the Petition. If no response is filed within the requested time, we can request Entry of a Default Judgment, after which the Respondent can no longer contest or correct the Petition.

 

Automatic Restraining Orders

As soon as a Summons and Petition are filed and/or served on the Respondent, standard family law restraining order comes into effect automatically in every case. This restraining order prevents either party from (1) removing any minor child from the state without prior written consent for the other party or court order; (2) cashing, borrowing against, canceling, transferring, disposing of or changing the beneficiaries of any insurance including life, health, automobile or disability insurance held for the benefit of the parties or any minor child; and (3)transferring, encumbering, concealing or any way disposing of any real estate or personal property, regardless of its character, without the written consent of the other party or a court order, except in connection with the usual course of operating a business or for the necessities of life. Use of community property to pay attorney's fees is specifically allowed and it is not prevented by these restraining orders.

 

Order to Show Cause Hearing

In some cases, it is necessary for a party to seek immediate or emergency court orders after a case has been filed when the party cannot wait for a trial date, which can be months away. When orders for child support, spousal support, restraining order or attorney fees are needed, the requesting party can file an Order to Show Cause requiring the other party to appear in court on the requested date so the court can consider such requests. The orders, if granted, last until replaced by the later orders.

 

Uncontested Cases
In cases where the parties can agree on all issues to be decided and the agreement is put into writing, no response needs be filed. Such a case can be handled on an uncontested basis, usually with no court appearance by either party.

 

Contested Cases

In cases where no agreement can be reached on some or all of the issues in the case, the matter is considered contested. Either party can request that the case be put on the waiting list for a trial date, which the court will assign based upon its workload and the complexity of the case.

 

 

Investigation and Discovery

If there are financial, properties or custodial issues in the case, it will be necessary to investigate the facts of the case by requesting information from the other party, or from third parties such as banks, employers, accountants, etc. This information can be obtained voluntarily by subpoena or at an oral deposition where both attorneys can question the person testifying.

 

Division of Community Property

California law states that all property acquired by either party during the marriage except by gift or inheritance, is community property owned by each party. The rule applies regardless of who actually earned or received the property. This rule does not require that each asset be physically split, only that each party receives half of the total community property by value. The same rule applies to debts of the community. There are, however numerous exceptions to the general rules which may apply in your case.

An important part of a case is identifying and determining a value for each asset. In many cases, an appraiser must be hired to give an expert opinion regarding valuations. When businesses are involved, business appraisers are often used.

 

Attorney's Fees

It is our policy to outline, as clearly as possible and in writing, our policies regarding our fees at the start of a case. Our firm, like virtually all firms, charge an hourly rate for all work performed including court appearances, office and telephone conferences with a client, conferences with the other party or their attorney, legal research time, document preparation time etc.

Because there is no way to know at the beginning of a case how much work may be required due to the actions of the other side, we cannot accurately forecast a total fee. We can often give a range or rough estimate based on past cases similar to yours.

 

Court Ordered Attorney Fees

In some cases, the court will order one party to pay part of the other party's attorney fees, usually in the case where one party has income greater than the other. These orders are usually made at the trail, near the end of the case. If a court orders another party to make payments to this firm on your behalf, your account will be credited when such payments are actually made.

 

Restoring Former Name

A party obtaining dissolution of marriage may have any former name restored upon entry of the judgment of dissolution upon specific request.

 

Estate Planning

In many cases, some basic estate planning work needs to be considered at the time the dissolution case begins. You should remember that any existing wills or trusts you may have may not be affected by dissolution of marriage, nor are life insurance policies. If it is your desire to modify these items, please tell us promptly. If you have never had a simple will, now is an excellent time to consider having one drawn. Lastly, if you hold the title to real estate as a joint tenant with your spouse, you should consider altering that arrangement promptly to provide for alternate beneficiaries.

 

Health Insurance

A non-employee spouse covered by a spouse's group health plan at work can usually continue that coverage for 36 months following the finality of the judgment by paying the premium. If you need this coverage, please mention this to us.

 

Finality of the Judgment

After your trial, or the settlement of your case, the court will enter the Judgment resolving all the issues of your case and dissolving you're marriage. However you are not legally single until the Judgment becomes final, which occurs immediately if at least six (6) month has passed since the petition was served on the Respondent. The Judgment will clearly show the date it becomes final.

 

Record Keeping

We cannot stress enough the importance of keeping records when any financial issues are present or when the court has made final order for support. If disputes arise later about late or missing payments, you must be able to produce records showing payments made or received.

 

Conclusion

 

This brief explanation of dissolution procedure is not designed to replace our office conferences. It is simply a guide to some of the issues we will be facing in the months to come. Please feel free to call me or my personal assistant at any point in your case when you have a question. Our job is to provide you with the best representation possible, and one way we can do that is by responding to your questions as promptly as possible.

 

 

Very truly yours,

Shelly M. Mandell