The Process for Dissolution of Marriage Cases

If a timely Response is filed, one or both of the parties may seek temporary orders by way of an RFO (Request for Order). This is a motion to the court.

7.

One or both parties may seek temporary custody of the children, temporary spousal support, temporary child support, or any number of other temporary requests. These orders are also commonly referred to as “pendente lite” relief and are “before trial” orders.

8.

If the relief sought is urgent, such that “irreparable harm” will occur if the relief is not granted, a party can file an “ex parte” RFO and seek immediate relief from the court. An ex parte request differs from a standard RFO in the time frames involved. A standard RFO or motion for temporary relief must give the other party approximately 30–40 days to respond before the parties can discuss the matter with the judge. An ex parte RFO enables the parties to have the judge review the RFO and request the day after the notice is given.

9.

After the respondent files a response, the parties must prepare and file preliminary declarations of disclosure and serve them to the other party. The disclosure documents are designed to reveal to both parties, the separate and community assets of the parties and the values of each. Additionally, an income and expense declaration is required and is designed to reveal the income and living expenses of the parties. The disclosures are required by law.

10.

The parties may engage in further discovery during the period before trial. Bank records and other financial documents may be requested or subpoenaed. The parties may be deposed.

11.

After discovery is completed, an at-issue memorandum will be filed. This document simply advises the court that the case is ready to proceed to trial.

12.

The court will give notice to the parties that a TSC (trial setting conference) has been set. At the TSC, an MSC (mandatory settlement conference) date will be set as well as a trial date. The parties will prepare and file final declarations of financial disclosure before trial or may waive final declarations.

13.

If the issues in the case are not settled, the matter will go to trial. The judge will resolve the remaining issues and grant a judgment of dissolution of marriage. The judgment will not be effective until the formal judgment documents are filed with the court.

Common Family Law Terms

RFO

An RFO is a Request for Order, which is a formal pleading/request for an order from the court. This pleading is commonly used pretrial to request temporary custody, temporary child support, or spousal support, and any number of pretrial requests that require a hearing in which the parties may give testimony. An RFO is also frequently used post-trial to request the modification of permanent child support, spousal support, custody, or other permanent orders contained in the judgment of dissolution or legal separation. Declarations describing the basis for the Request for Order, are commonly attached to the RFO. If this motion is done incorrectly by a self-represented party, the judge may dismiss the motion.

TSC

MSC

Mandatory Settlement Conference. This is a meeting that takes place about 30 days before the final trial. Both parties and their attorneys are required to attend the meeting and try to resolve the outstanding issues in the case prior to trial. In many cases, custody, support, reimbursement issues, and even asset division can be settled at the MSC, thus eliminating the need for a contested trial on those issues.

Declaration

Pendente Lite

Motion

A motion is very similar to a Request for Order in that it is a request to the court for an order. However, generally, motions involve strictly legal issues/questions for the judge to decide, although a motion can also involve a question of fact. Motions differ from a request for order (RFO) in that the parties typically do not give testimony at a hearing. Factual information from the attorney or parties is submitted to the court via declarations.

Preliminary Declarations of Disclosure

These forms are documents that detail the clients' income, living expenses, and assets. The court and the law in California require both parties to fully complete declarations of disclosure at the beginning of the case (preliminary) and shortly before trial or settlement (final). The purpose of the disclosure documents is to ensure that both parties have full and complete information as to the other party's financial information. Such disclosure is part of the “fiduciary obligations” each spouse owes to the other. You cannot get divorced without, at a minimum, serving the preliminary disclosures.

Limited Scope Representation

This is a way that an attorney can help you with part of your case while you do the rest of your case. You may hire an attorney to simply give you legal advice, prepare pleadings for you, or even appear at a hearing or trial. This differs from full-scope representation in which the attorney handles every aspect of the case to its conclusion. Limited scope representation is a very cost-effective way to proceed with the divorce process. Limited scope representation is “pay as you go.” It does not require a large retainer because the attorney is paid only for the limited work that the client requires. The client remains “in propria persona,” which means that he or she continues to represent him or herself. However, when the client “gets stuck” on some area, for example, on how to properly fill out a particular form, or what to say at a hearing, the attorney can provide that information.

Custody Overview

Child Custody California

When you need a lawyer for child custody, you want the best child custody lawyer. That means a lawyer who knows the law, who can explain your rights to you, and then fight to protect your children and your rights. One of the worst fears any parent will have, is that custody may be taken away from them, and that they will become a virtual stranger to their children. However, it is essential to remember that it is the policy of the State of California, and the family law court, to award joint custody whenever possible. Judges typically want both mom and dad to spend equal time with the children.

What Does Sole Custody Mean?

Sometimes parents ask, how can I get full custody of my child? Full and sole custody mean essentially the same thing. There are two types of sole custody, physical and legal. Physical refers to the amount of time a child spends with each parent. Legal custody refers to the right of the parents to make significant decisions in the children’s lives. The grounds for full custody vary from case to case. When judges deviate from joint custody and award sole custody to one parent, it is usually because the children have spent the majority of time with one parent, or there are issues of drug or alcohol abuse, physical abuse or anger issues, one parent may live several hours away, or work hours that prevent an equal time share. But sole physical custody doesn’t mean that the other parent can never spend time with the children. It may mean that one of the parents has less time than the other, or one of the parents may be ordered to have supervised visits, if the court believes there may be an emotional or physical safety risk to the child. When a court awards sole legal custody to one parent, that parent has the exclusive right to make important decisions for the minor child.

How Does the Judge Decide Custody?

Under the California child custody laws, the court is required to consider the “best interest of the child” and determine the custodial arrangement between the parents that serves the children’s best interests. The courts will look at all of the factors in the family to make the best decision for the split of child custody. Often, parents are not happy with the judge’s orders. Can you get a child custody agreement without court? Yes, you can, if the parents are both willing to compromise. Often, the best thing for your children is to reach an amicable agreement outside of court. At Affordable Divorce and Family Law, we can help you reach an out of court child custody agreement without ever having to see a judge. If you cannot agree, we will fight for your rights as a parent.

Father’s Rights and Mother’s Rights

If you search for father’s rights lawyers Los Angeles, you will find a lot of attorneys who offer to protect fathers rights. We help both mothers and fathers, and we strongly believe that children need both parents in their lives, when dad and mom are both loving parents, and there are no issues of abuse or neglect. However, sometimes one parent will attempt to alienate the child from the other parent and when this happens, you need parental alienation lawyers who have experience litigating this type of case. False accusations against a good parent can sometimes lead a judge to mistakenly award custody to the other parent, and that is why you need an experienced attorney who can uncover the lies and bring the truth to light.

Child Support

Child Support is based upon a complex mathematical formula. The amount of time the children spend with each parent is calculated, as is the income of both parties. Additional child support is also ordered, such as child care costs, and uninsured medical costs. A child support order can be obtained through a private attorney, or through DCSS, the Department of Child Support Services.

Spousal Support

Spousal Support is within the discretion of the court. Often pendente lite (before trial) support may be granted if one of the parties earns much less than the other, or/and is ill, or has a disability, has been out of the work force for a while and is in need of job training or additional schooling. “Permanent” spousal support is granted after a trial (or through settlement). If granted at trial, the court is required to consider several factors in determining whether to grant spousal support and in what amount. These factors are commonly referred to as the 4320 factors, after Family Code section 4320. Some of the factors include the standard of living during the marriage, the earning capacity of the parties, the needs of each party, the assets and obligations of the parties, the age and health of the parties, and the duration of the marriage. These are just a few of the factors. In marriages of less than 10 years, courts will often grant spousal support for one half the length of the marriage then terminate the support. Marriages over ten years are considered “long term” marriages. The courts are not allowed to set a termination date for spousal support when the marriage has been long term. However, unless the individual is ill or elderly, many courts will consider reducing spousal support to a spouse who, several years down the line, has made no effort to become self supporting.

Property Division

Property division can range from the simple to the complex. There may be a couple of vehicles and furniture to divide, or there may be separate property comingled with community assets such as homes, community businesses, or investment accounts. Dividing these assets often involve tracing the separate property to determine the respective separate and community interests. In multifaceted financial cases, it is often necessary to locate and value important financial assets. With complex property issues, you need an attorney with experience and knowledge to reach an equitable and accurate division of marital property. I have the experience to handle the most intricate asset division and business valuations. However, it is sometimes necessary to seek the advice and testimony of independent third party experts. I have established professional relationships with leading financial advisers, tax advisers, CPAs, therapists, and child psychologists. They routinely testify as experts on these matters, and their opinion is well respected in the Orange County Family Law Court.

Community Debts

Often, the client’s credit can be ruined if one of the parties decides to stop paying or can’t pay, the existing community bills. It is important to determine who will pay the debts pending the dissolution of the marriage. Often the parties can reach a temporary agreement on this issue. Other times, a court order is quickly needed to determine who will be required to pay which bills, such that the client’s credit score is protected.

Restraining Orders

TRO

Temporary Restraining Order. A TRO refers to any type of temporary restraining order, however, in family law, TRO usually refers to a temporary domestic violence restraining order, which restrains one party from contacting or getting within a certain distance of the other. Sometimes the restrained person is not permitted to see the child(ren) during the period that the restraining order is in effect. Restraining orders can be a necessary and important tool for the protection of a party and/or the children. However, restraining orders are often abused by unscrupulous individuals to gain leverage at the beginning of a divorce or legal separation action, in order to obtain an advantage in the case and try to wrongfully gain temporary custody of the children. This only ends of hurting the children.

ATRO

Automatic Temporary Restraining Order: These are automatic orders that spring into effect as soon as the respondent is served with the summons and divorce petition. The ATRO’s are written on the back page of the petition. Among other things, these ATRO’s prevent both parties from removing the children from the state of California, and from dissipating or concealing community property.

How Not to Be Served with a Restraining Order

It is important to remember that once a petition for divorce is filed, both parties are under the court’s microscope. This is due to the fact that, unfortunately, a minority of divorce cases are amicable. Most divorces are contentious. Accusations are leveled by one or both parties. The opposing counsel will dredge up some incident that happened years ago and suddenly every word you’ve said is twisted into something ugly by your spouse’s attorney. Something you thought was innocent becomes a major issue. Every raise of the voice, curse word, discipline of the kids, will be dug up and put into a pleading by the other party and worded to convince the court that you are the unfit parent. This doesn’t always happen, but it happens a lot. The bottom line is that divorce brings out frustration, sadness, and often rage in people. Sometimes, due to finances, the parties are forced to remain in the same house with each other pending the divorce. This can, of course, be an extremely uncomfortable situation, and can lead to heated arguments and sometimes, a physical alteration. When children are present, it is of particular concern to the court. The next thing you know, someone is running in to get a restraining order, and the children don’t get to see one of their parents for a month or two. Before it gets to that point, the best advice is the same thing you heard when you were a kid, “just walk away.”

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