In a divorce proceeding, it is possible to win an award of attorney fee's from the other party. One of these methods is through sanctions under California Family Code Section 271, but you can also obtain attorney fees where there is no sanction-worthy conduct, through California Family Code Section 2030.
In essence, if one party has more access to funds to retain counsel in a divorce proceeding, that party may be ordered to pay the attorney fees of the other party. This ensures that the spouse with the more financial power cannot bulldoze the other party into a result that is not in their best interest. These attorney fee awards are capped at what is a "reasonable" amount, which allows the court discretion to not award large attorney fee awards that are unwarranted. You can read the text of California Family Code Section 2030 below.
"(a)(1) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.
(2) When a request for attorney's fees and costs is made, the court shall make findings on whether an award of attorney's fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs. A party who lacks the financial ability to hire an attorney may request, as an in pro per litigant, that the court order the other party, if that other party has the financial ability, to pay a reasonable amount to allow the unrepresented party to retain an attorney in a timely manner before proceedings in the matter go forward.
(b) Attorney's fees and costs within this section may be awarded for legal services rendered or costs incurred before or after the commencement of the proceeding.
(c) The court shall augment or modify the original award for attorney's fees and costs as may be reasonably necessary for the prosecution or defense of the proceeding, or any proceeding related thereto, including after any appeal has been concluded.
(d) Any order requiring a party who is not the spouse of another party to the proceeding to pay attorney's fees or costs shall be limited to an amount reasonably necessary to maintain or defend the action on the issues relating to that party.
(e) The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court to implement this section and develop a form for the information that shall be submitted to the court to obtain an award of attorney's fees under this section."
When Domestic Violence Restraining Orders are first issued after a hearing, they typically have an expiration date, ranging from one year to five years. At the end of the expiration date, the Restraining Order is no longer in effect. However, you can petition the court to renew the restraining order within three months of the expiration date. The court will try to set a hearing before the order expires, and they will either let the restraining order expire, renew it for five more years, or make it a permanent order. At this stage, the court is looking to see if you are in reasonable apprehension of future abuse. This means, you have to show that you are reasonably still afraid that your abuser will continue to abuse you. The court will consider the level of abuse that was found for the initial restraining order to determine if your fear is reasonable and will also look to any violations of the restraining order and the evolving behavior of both parties. If you have a restraining order, you might want to double-check when it expires, and consider applying for a renewal within three months of the expiration date.
If you have a child support order, you might be wondering what you should do with the money you receive. Your instinct might be that you need to spend the money directly on your children. And, in general, that would be correct. The first goal of child support, is to take care of your children's basic needs, such as food, clothing, shelter, and other necessities. However, sometimes, both parents make enough money that they can take care of these needs without child support, but, since the difference in income is so large, or because of a big difference in timeshare, there is still a child support order. You don't have to spend that money directly on your children and shower them with lavish expensive gifts. Of course, you should make a conscious effort to use the money to make your children's lives better, but this can manifest in different ways. The secondary goal of child support is to create an environment at both homes that is similar to what the children would experience if the parties were together, so spending that child support money on upgrading your home, or buying more expensive food, can be a reasonable use of child support. As long as the funds are in some way improving the lives of your children, your use of the child support money is typically discretionary, and you don't need to keep track of the payments or show proof with the court. Long story short, as long as you are meeting your children's needs, you shouldn't worry about where you directly spend your child support.
One of the most contentious areas of family law is child custody and visitation. When parents split up, they often have a lot of animosity towards each other. This can cause parents to be very critical about the parenting skills of their ex. This can cause a lot of stress and anxiety about how each person is parenting.
I would suggest that parents re-evaluate the way they think about the parenting of their ex. Try to think about how you would feel if you were still with your ex and this particular concern occurred. Would you laugh at the story and teach them a lesson for the future? Or would you be truly concerned and have to sternly address the issue? Would you really care that the kids spent time with their grandparents instead of their dad if you were in a relationship with dad? Maybe if it were for multiple hours every day and the kids were not attended to, but if it was one weekend so that your ex could go play golf with friends for a little, is that really so bad? For another example, maybe your ex got lost driving the kids home from a soccer tournament, and as a result, the kids were an hour late to their cousin's birthday party. This would likely be one of those laughter/learning moments, but many parents would not be so forgiving when it comes to their former partner/spouse.
Where this factors into the law, is that many parents try to use these laughter/learning moments in court pleadings and custody/visitation arguments. This can be a waste of everyone's time and money, and ultimately, the custody order is unlikely to change. You should only really use the court for those truly concerning events that you are worried about. This can include issues that are effecting your children's behavior and causing extreme lifestyle changes. Re-focusing your perspective on your ex's parenting can really help you get to a place where you can happily co-parent, which is what is ultimately in the best interests of your children.
Coming to an agreement on a child custody and visitation order can be extremely difficult. It can be hard to weigh out the benefits of our children spending time with the other parent compared to spending time with you. No matter how wonderful the other parent is, it is only natural that someone would believe they are the better parent, and it can be difficult to asses the situation from an unbiased point of view.
This often manifests itself in nitpicking about how the other parent spends their time with the children. Specifically, many parents have trouble knowing that their children have been left in the care of an extended family member or a babysitter, when the children could have been spending time with them instead. A solution for this is to include a right of first option for childcare, also known as a right of first refusal, in your custody and visitation order.
If you have a right of first refusal in your custody and visitation order, then when the other party requires childcare for an extended period of time, they are required to ask you first. The length of time is typically around 4 hours, but the parties can agree to any length of time. So, this wouldn't apply to trips to the grocery store, but it could apply to picking up an extra shift at work. When stepparents are involved, this could also mean that the parent would have to ask the other parent before allowing their spouse to watch the children. This type of arrangement prevents the children from being forced to spend time away from both parents when one is fully available, and can be a good option if you are concerned about these types of long absences of the other parent.
Divorce Petition and Response have been filed, but what comes next?Explaining Preliminary Declaration of Disclosures
During a divorce, once the Petition and the Response have been filed, the natural next question is "What next?" Unless a Request for Order has been filed, there are no court dates set based on a Petition and Response, so without some legal guidance, couples seeking a divorce may not know what to do.
The most common next step is for each party to file their Preliminary Declaration of Disclosures. The purpose of this is to disclose all of your financial information to the other party. While you are married, you have a fiduciary duty to your spouse, so you cannot hide any assets or debts from them. These disclosures typically consist of six parts, as outlined below.
1. Complete a Schedule of Assets and Debts (form FL-142) OR a Property Declaration (form FL-160).
The Schedule of Assets and Debts is the most commonly used form. This essentially lists all of the assets and debts in your possession or in your spouse's possession that you have knowledge of. On the form, you disclose the current value and the debt owed on the asset or debt, as well as the date that the asset or debt was acquired. The date is important, as that can help determine if the asset is community property or separate property. You only have to list the current values on the form, so you don't need to go back and figure out what the value was on the date of separation. That can be determined later. You will also need to attach bank statements, vehicle titles, mortgage statements, and other documents that evidence the numbers listed on your form. You could instead fill out a Property Declaration form, but for this you will need to separate what is community property and what is separate property. This form can be more difficult to fill out.
2. Complete an Income and Expense Declaration (form FL-150)
The Income and Expense Declaration is a form where you can list your average monthly income, your last month's income, and any deductions from your income. You also must disclose your employer's information, your education level, any attorney fees that you may be requesting, and your estimated monthly expenses. You will also need to attach your pay stubs from the last two months of employment. If you are self-employed, you will need to attach either a Schedule C or a Profit and Loss Statement evidencing your income. This form is useful for calculating any required child or spousal support payments that may be ordered.
3. Disclose your tax returns filed during the last two years
Not everyone has equal access to your tax returns, so you need to disclose them on the other party, whether you filed jointly or separately. This provides further access to records of income claimed by both parties.
4. Disclose a statement of all material facts and information regarding valuation of all assets that are community property or in which the community has an interest
Most of these assets will already have been disclosed in the Schedule of Assets and Debts, but you must state to your spouse that the list on the Schedule of Assets and Debts is all of the community assets. If there are additional assets, you would disclose them in this statement.
5. Disclose a statement of all material facts and information regarding obligations for which the community is liable
Similarly to #4, most of these obligations will have been disclosed in the Schedule of Assets and Debts, but you must state that the list on the Schedule of Assets and Debts is complete. If there are additional debts, you must disclose them here.
6. Disclose an accurate and complete written disclosure of any investment opportunity, business opportunity, or other income-producing opportunity presented since the date of separation that results from any investment, significant business, or other income-producing opportunity from the date of marriage to the date of separation.
Typically, there are no such investment opportunities, but you still must disclose a statement informing your spouse that there are no investment or business opportunities. However, if you have been approached with an opportunity that is based on any work or investments from during the marriage, you must disclose them here, even if you declined them.
If you filed the Petition, you have 60 days from when you served your spouse with the Petition to complete these disclosures. If you filed the Response, you have 60 days from when you file your Response to complete the disclosures. The parties can mutually agree to extend these deadlines. Now, this all sounds like a lot of work to do just to get divorced, but it is a lot simpler than this post makes it sound. In essence, you just need to make a list of everything you have and disclose it to the other person. This makes sense, because how can you even begin to settle all the issues when you don't have all of the information. Once these are complete, you should have enough information to determine a fair division of assets and debts, determine child support, and determine spousal support. And if you can agree to child custody and visitation, then you are well on your way to an easy divorce that both sides can agree on.
When you are ready for a divorce, you might be ready to have it completed as soon as possible. Unfortunately, California requires a six-month waiting period before a divorce is finalized. So, while you might both agree things are over, you will still have to wait.
Most divorce proceedings take longer than six months, but if you are able to agree on the legal matters, you could come to an agreement much sooner than that. Still, you will have to wait six months from the date that the responding party is served with the divorce petition until it can be official. You can submit your judgment and get it signed by the court, but the date of termination will be set in the future, likely at the six-month date. California does this to prevent couples who change their mind from having to get re-married. Essentially, the state thinks that a cooling-off period of six months is enough time for both parties to confirm that they want the marriage to end.
Child support and spousal support are two big pieces of many family law cases. Child support helps to balance the spending power of each parent towards the children, while spousal support helps to balance the income the parties were accustomed to during marriage. In both of these calculations, the income of each party is one of the most important factors in determining the amount of support.
So, one might think it would be a great idea to temporarily lower their income to pay less money in support. If you are self-employed, you might take less jobs during the months leading up to the support calculations. If you typically work a lot of overtime, you might hold back until support has been ordered. You might also consider quitting your job or not looking for work until support is in place. While these sound like good strategies, the Court has a way to work around these tactics. The Court may impute an income to you that is different than your actual income. So, by looking at your ability to work and the opportunities available for you to work, the Court may assign you a higher income for the purposes of calculating support. Your work experience, education, and job availability will steer the Court to create your imputed income, which could end up being higher than what your actual income would be. So, it may not actually be wise to try to hide and disguise your income, as the outcome may be worse for you.
Tomorrow is Valentine's day, and I'm sure many people are scrambling for last-second gift ideas. It might be unconventional, but maybe a prenup or a post-nup is the way to go this Valentine's day! You may think a prenup is not romantic, but below are all of the reasons why it would truly be the best Valentine's day gift idea this year.
1. A prenuptial agreement outlines what belongs to who entering into the marriage, thus making it clear to both parties during the marriage which things belong to who.
2. Getting a prenuptial agreement can be a great educational experience. It teaches you all about what you are getting into as you approach your upcoming marriage. Or, for a post-nup, it teaches you the status of all of your property. Many people don't realize that in California all income after marriage belongs to both parties equally. If you get a prenup, you will have more knowledge!
3. It's a practical gift that is still in the spirit of love! Some people struggle finding that right gift that is in the spirit of Valentines day that is still practical. A prenup is all about love and marriage, yet it's also practical, as it outlines the roles of both parties in the marriage. What could be better?
4. In all seriousness, a prenup can help lessen any potential future heartbreak, by making the divorce process simpler and easier. So, you could be (but hopefully not!) saving yourself from sad future Valentine's days.
When you and your ex are no longer together, typically an arrangement for child custody and visitation is put into place, whether by agreement or court order. Often, these agreements leave children with one parent primarily, with visitation with the other parent on alternating weekends, in the summer, or on particular days of the week. When things are going smoothly, this is no problem, but more often than not, life is rocky, and visitation arrangements might not make your child happy. The question is, when does the court care?
Well, it depends on what the problem is. The rule of thumb is that the court is open to hearing a child's opinion on their living situation when they are 14 years or older. However, even with these children, the court does not just grant their desires. The court understands that teenagers are emotionally vulnerable and attempts to understand the motivation behind their desires. If they don't want to live with one parent simply because they are too strict, the court might not care as much as compared to if the child expresses that the parent doesn't take care of them adequately.
Even for children younger than 14, the court might care about what they want, but the courts typically want to make parents aware that visitation is not an option. Some parents come to court and say their young child did not want to go to the other parent's house, so they didn't force them to. Well, unfortunately, you have to lay down some parental discipline and force your children to go. Obviously, don't drag them kicking and screaming, but simply caving to your children's desires is not fulfilling the visitation arrangement and teaches your children that time with the other parent is not important.
So, in general, the court does care what your child thinks about visitation arrangements, but only if they are old enough, and only if they have a legitimate reason. In addition, you should make sure your children understand that visitation arrangements are mandatory, not negotiable.
Maria E. Crabtree, CFLS