California Divorce Frequently Asked Questions

In any family law action, whether it be divorce, legal separation, paternity or any other type of case, when custody or visitation is in dispute, the matter must be mediated. The Court provides a qualified mediator to mediate these issues. In Sacramento County, and in most California counties, attorneys are not allowed to be present during the mediation process. It is the mediator's role to use his or her best efforts to encourage an agreement on these issues in accordance with what the mediator feels is in the best interest of the child or children.

In Sacramento County and many other Northern California counties, if an agreement is not reached, the mediator will make a recommendation to the Court. At that time, either party may request that the recommendation be made an order of the Court. Either party may also dispute the recommendation and request a hearing. No agreement or recommendation is legally effective between the parties unless it has been made an order of the Court. The mediator may interview the child or children during this process.

Parentage is determined by either parent, mother or father, filing with the Court a Petition to Establish a Parental Relationship. If there is a question of whether or not true parentage exists between a father and a child, blood tests will be taken of the mother, child and alleged father. Blood tests are usually sufficient to determine whether or not there is a parent-child relationship; however, if it is unclear, there are more sophisticated testing that can be done. Prior to parentage even being determined, the Court may make orders as to custody, visitation and child support. Parents who marry after a child is born can have parentage determined in dissolution proceedings.

In the State of California, the law provides that a parent, whether married or unmarried, shall have frequent and continuing contact with his or her child or children. A court may make a determination of custody and visitation in divorce, legal separation or nullity, paternity cases, and those involving domestic violence.

A parent, whether married or unmarried, also has the responsibility to support his or her children. The payment of child support however, is not a condition precedent to enjoying parenting time with your child or children.

The Uniform Child Custody Jurisdiction Act (UCCJEA) was enacted to deal with our mobile society, and the UCCJEA deals with the specific question of where an action for custody should be heard. The general functions of the UCCJEA are:

1. To avoid conflicting orders in different states;
2. To promote cooperation between states to determine which state is the more appropriate state to make decisions affecting a child or children;
3. To make sure that custody litigation takes place in the state where the child has the closest connection and where the more significant evidence regarding the child's care, education, etc., exists;
4. To discourage continuing litigation over custody issues;
5. To deter abductions or the removing of children in order to obtain custody awards;
6. To avoid the relitigation of custody decisions of other states;
7. To facilitate enforcement of custody orders of other states; and
8. To promote and expand the exchange of information and other forms of mutual assistance between the courts.

California law provides that both parents have a general obligation to support their minor children, both natural and adopted, whether or not the parents were married. Child support can be requested by one party from the other through an action for dissolution, legal separation, nullity, paternity or a domestic violence action.

In general terms, child support is based upon the incomes of both parties, which parent has custody and how much time the non-custodial parent has with the child or children. Once the information is collected, a computer program, used by both attorneys and judges, calculates support.

Child support is always modifiable and may be changed when either party's financial circumstances change or there is a change in the custody or visitation schedule. The revised law effective July 1, 1992 in most cases dramatically increased the level of support being ordered. A consultation with an attorney utilizing the computer program will give you an idea of the possible increase or decrease in the amount of support you are paying or receiving.

Since collaborative law is designed solely for the purpose for settlement negotiation, neither attorney involved may become the "attorney of record" and represent the client in court. This takes away "positioning," personal attacks and the threat of court as a weapon during negotiations. This is particularly important in cases where the parties are not on the same emotional and financial footing.

Collaborative negotiation has tangible benefits that are not readily seen until the process has begun. Since the parties make a commitment not to litigate, the parties and the attorneys devote all of their efforts to a negotiated settlement (agreement) in an efficient and cooperative manner. Further, the parties develop a rapport with both attorneys. This takes away from the mistrust and fundamental differences each party brings to the divorce process that can cause mediation to fail or create prolonged litigation. Both parties can actively participate in their cases while, at the same time, having their interest protected--thanks to the presence of attorneys. Each party can only benefit by a process that does not involve court intervention, requires full disclosure and exchange of information and provides an opportunity for the parties and attorneys to engage in effective problem solving in a totally confidential manner.

Having two attorneys involved would seem to produce the same cost as litigation. It really does not. In a traditional setting of two parties, two attorneys, costs quickly add up with court appearances (and the time spent waiting for the case to be called), preparation for court, depositions and other formal discovery methods. Collaborative negotiation allows the parties to focus on their own issues and control the process as compared to the control attorneys and the court have in litigation.

Collaborative negotiation is a conflict resolution process also called collaborative law or collaborative practice. This relatively new process is a joint effort by both parties and two attorneys to work out the existing issues. Collaborative negotiation is very similar to mediation with many of the same benefits (particularly saving both parties time and attorney's fees). As with mediation, it is also voluntary.

Should collaborative negotiation prove not to work for either party, he or she may unilaterally, and without reason, terminate their role in the collaborative process and proceed along the more traditional path of individual representation and court intervention.

Either or both attorneys may also withdraw from the process. If that is the case, the other attorney and the parties may continue in the process without the former attorney or substitution counsel may be retained.

The roles of the attorneys are very important to the process and are carefully defined and limited. The attorneys act to encourage and explore the entire range of settlement options and alternatives. The attorneys exchange information, research and ideas and commit themselves (and the clients) to resolving the issues.

It is very likely that the first meeting will be spent collecting information from each party, their positions and desires. The attorneys will then review the information to seek out possible solutions and explore the entire range of settlement options and alternatives. It is at this point that it is very important that you have chosen a qualified attorney, usually someone with specialization in family law, so that he or she may best analyze all options available to you and your spouse, including considering all tax ramifications of any agreement you may enter into.

After all of the information has been gathered and reviewed, negotiations can then begin. It is important that all of the information has been gathered and looked at so that any practical proposals for settlement can be considered. It would not be a good idea to agree to divide a 401(k) plan if there is no idea as to its value and what the potential tax consequences may be. It may even be necessary to seek outside assistance from a CPA, actuary, or real estate appraiser.

It is at this stage that it is imperative that each party and their attorneys take a pragmatic stance on the issues to encourage settlement and, if reasonable, compromise to reach this settlement. Recently approved Guidelines and Principles Governing the Collaborative Law Process and the Stipulation and Order Re: Collaborative Law have come into use in formalizing and completing the process.

Another type of action, separate from a dissolution, is a legal separation. A legal separation greatly resemble an action for divorce except that the parties are not free to remarry. One major advantage of filing a legal separation action is that, unlike a dissolution, there are no residency requirements.

A legal separation is not to be confused with the date of separation as explained in "Facts About Divorce." A person does not have to obtain a "legal separation" before filing a divorce.

A modification is a change of an existing order. A party who wants to modify a court order must follow the same rules as in the initial action. The first step would be to file a motion with the court asking for the change. It is the burden of the party bringing the motion to demonstrate a change in circumstances that would justify the requested modification.

A Nullity Judgment restores the parties to the status of unmarried persons and results in the parties being free to remarry immediately. While a divorce dissolves the existing marriage, a nullity judgment erases the marriage and its implications from the onset, as though the parties had never married.

A Judgment of Nullity, or annulment, may be obtained under any of the following circumstances:

• Incest;
• Bigamy;
• Lack of informed consent to the marriage;
• The husband or wife of the prior marriage was believed to be dead at the time of the subsequent marriage, but in fact was not;
• Unsound mind;
• Fraud;
• Force, unless afterwards the party who was forced into the marriage freely cohabited with the other party as husband and wife; or
• Either party, at the time of the marriage, was physically incapable of consummating the marriage, and the incapacity appears to be incurable.
• Most people believe that time is a factor in obtaining an annulment. That is not necessarily the case. It is true, for most of the conditions, an action must be filed within four years of the discovery of, for example, the facts constituting fraud.

Also unknown to most people is that, even though a Judgment of Nullity voids the marriage, you may be able to obtain support, a division of property and restraining orders. Children do not necessarily bar a party from obtaining a Judgment of Nullity.

There is a common belief in our society that only the wealthy can benefit from a premarital agreement; that is not true. Homeowners, single parents, business owners, grandparents and professionals are just a few who could benefit from a premarital agreement. Even individuals who are just starting out in life may choose to enter into a premarital agreement.

You should not enter into a premarital agreement until:

1. You have had an opportunity to read its contents;
2. You have consulted with an attorney who specializes in Family Law to find out whether the premarital agreement is right for you. This should not be the same attorney who drafted the document; and
3. You have had time to think about it.

This is a very serious matter. You should not sign the agreement on a whim or out of fear that the wedding will be postponed.

The premarital agreement is a powerful tool. With it, the parties can override California's community property presumption and keep separate property separate. A good example of this would involve earnings. In California, wages and earnings acquired after the date of marriage (and before the date of separation) are community property. However, the parties can stipulate in a premarital agreement that all wages and earnings shall be separate property.

Another area where a premarital agreement is helpful is where one party owns a house prior to the marriage and this is where the couple choose to live after they get married. The house is the separate property of the person who bought it. However, the community can earn an interest in the house by virtue of making the mortgage payments with the couple's earnings. In order to avoid this outcome, the parties can stipulate in a premarital agreement that the community will not earn an interest in the house as a result of community earnings contributing to the mortgage payments.

Many parties want to address support with a premarital agreement. A waiver of child support is not enforceable.

Premarital agreements, more commonly known as prenuptial agreements, are agreements that are entered into prior to marriage and dictate the distribution of property in the event of a dissolution.

Divorce mediation is a non-adversarial means to resolve issues raised in a divorce or legal separation. Such issues include property division, spousal and child support, child custody and visitation. The parties meet jointly with a mediator to learn of their rights and responsibilities to themselves and their spouse. The contemplated result is a written agreement encompassing a resolution of all of the issues of the marriage. Mediation can be used by couples at any stage of the separation and divorce process - even couples who have previously divorced through the court system and wish to resolve new problems.

Mediation allows the divorcing couple an objective forum in which to discuss their individual needs and work out a settlement of property, support, custody and visitation issues. The parties meet and work together with the mediator towards a settlement that is fair and agreeable to both parties. The settlement is then put in the form of a written agreement by the mediator. The written settlement agreement is then reviewed by another attorney of each party's choice and is processed through the court by that attorney without the need for intervention by the court.