The Process for Dissolution of Marriage Cases

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Here is an overview of the major events that may occur during your dissolution of marriage case:

1.

The Petition for Dissolution of Marriage is filed.

2.

The Petition and related documents are personally served upon the other party.

3.

The Respondent has 30 days to file a Response to the Petition.

4.

If the Response is not filed, the Petitioner may seek to “default” the Respondent.

5.

If a default judgment is granted, the Petitioner may be entitled to the requests made in the Petition if a court finds them to be reasonable.

6.

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

Custody Overview

One of the worst fears any parent will have is that custody will 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 want both mom and dad to spend equal time with the children. When judges deviate from that rule, 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, or one parent may live several hours away, or work hours that prevent an equal time share. Just because one or more of these issues arise doesn’t mean that joint custody is not an option for the court. The court must consider the “best interests of the children” and determine the custodial arrangement between the parents that serves the children’s best interests.

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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.

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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.

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Restraining Orders

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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Disclaimer

Julia L. Miranda is the attorney responsible for the content of this website. The materials on this Web site are for informational purposes only and are not legal advice.  The transmission and receipt of information contained on the website do not form or constitute an attorney-client relationship.  Any information sent to Miranda Family Law via this website, and before establishing an attorney-client relationship as evidenced by a mutually signed representation agreement will not constitute an attorney-client relationship.  If you contact Miranda Family Law regarding a matter in which the law office does not yet represent you by way of written representation agreement, any information you communicate may not be treated as privileged or confidential. Further, no reader of this website should act or refrain from acting on the basis of any content in this site.

The materials on this web site may not reflect the most current legal developments, verdicts or settlements.  The information contained within this website is general in nature and may not apply to any specific factual or legal circumstances. Prior results do not guarantee a similar outcome.  Any results set forth here were dependent on the facts of that case and the results will differ from case to case. Some links within the Miranda Family Law web site may lead to other sites.  The Miranda Family Law website does not incorporate any materials appearing in such linked sites by reference, and Miranda Family Law does not necessarily sponsor, endorse, guarantee the accuracy of, or otherwise approve of such linked materials. The content and law discussed in this website is geared only to Southern California residents, or to those individuals litigating a family law matter in Southern California, including Orange County, Riverside County, or San Bernardino County. Miranda Family Law does not litigate cases in Los Angeles County. This website is not intended to solicit clients outside the state of California. Further, the lawyers of Miranda Family Law are licensed to practice law only in the State of California. All materials, graphics, and text on this website are the property of Miranda Family Law and are not to be copied or reproduced in any form whatsoever, except for personal, non-commercial use, or with the express permission of Julia L. Miranda.