Kraffert & Shaffer Family Law San Diego

Legal issues involved in divorce can include child custody disputes, child support, domestic violence, and other family law matters. Few legal areas are as emotionally charged as family law, primarily for the litigants, but also for the lawyers and judges involved in the cases and even the public at large.

Despite the changes already made by courts and legislatures, family law remains a contentious and ever-changing area of law, which will continue to evolve as families and society evolve.

As attorneys who practice family law every day, we want you to feel more comfortable with the process involved in obtaining a divorce. We have created a short outline of the divorce procedure for you to keep and reference as you progress through your divorce.

There are basically four steps involved in a divorce. These steps are summarized for you in a diagram labeled Exhibit A in this packet.

The first step in preparing for a divorce is the processing of the paperwork. This generally includes preparation of the following pleadings:

If you are the party filing for divorce, the papers will be filed and then served on the other party. The purpose of service is to start “the clock ticking.” The person served has thirty (30) days to respond if they choose to do so. The earliest that the court can grant a Judgment of Dissolution is six (6) months from the date of service. The purpose of the six month waiting period is to encourage reconciliation between the spouses, and if in fact a reconciliation occurs during this period, the proceeding can be dismissed.

After the pleadings have been drafted and served, the next step is the Order to Show Cause, the initial hearing. Generally, the following issues are addressed:

The first hearing will usually occur within twenty-five (25) days of the date the pleadings are filed with the court, absent any continuances. At this hearing, the attorneys (or yourself and your spouse if you are not represented) will argue the case, and the court generally will not take testimony at that time. If custody or visitation is an issue, the parties will have attended Family Court Services for mediation. The recommendation of the counselor will be submitted to the court for review.

The purpose of the hearing is to maintain the status quo, to ensure the children and the supported spouse have sufficient financial resources to maintain the necessities of life, and to balance between households a common standard of living.

The third step involved in a dissolution of marriage is generally the discovery phase. This often includes the taking of depositions. A deposition is generally conducted in our office, or in the office of opposing counsel, and a court reporter is present. At that time, the attorneys will be asking questions of either yourself or your spouse for the following purposes:

After the deposition, many times subpoenas are sent out to verify the information obtained in the deposition. If attorneys do not represent you and your spouse, then you will not have to proceed through this step of the divorce.

By the time the first three steps are completed, the emotional involvement of the parties has generally subsided to the level where many cases are in fact resolved by settlement. Your attorney, or, if you are not represented, will then formulate a settlement offer for the purpose of resolving the case. If the settlement offer is accepted, or amendments to the settlement are agreeable to all parties, a final settlement agreement will be prepared. The settlement agreement essentially indicates which assets will be allocated to each spouse. It will address the issues of custody and visitation, together with support and all other matters. The settlement agreement is filed with the court in the form of a binding court order.

If the matter cannot be resolved by stipulation, the matter will proceed to the fourth step, which is trial. If the trial is expected to be shorter than three hours, it will be placed on what is called the “short-cause” calendar. The court hears this short cause calendar on Fridays. You are generally assigned a date for trial within four months from the date on which the trial is requested.

If, however, the case will take longer than three hours, it is set on the “long-cause” calendar. Under this procedure, the court will assign you a mandatory settlement conference date approximately six to eight months from the date on which the trial is originally requested. At this mandatory settlement conference, you will be required to meet with a judge or one or two practicing attorneys who limit their practice to family law. If an attorney represents you, your attorney will represent your interests during this settlement conference. The attorneys or the judge will review the settlement agreement (if you are represented your attorney will have submitted a settlement brief) and review the positions of both sides with respect to all issues. They will give a recommendation for the purpose of helping the parties resolve the case. If not resolved, the case will proceed to trial, usually within forty-five (45) days of the settlement conference.

The above-described procedures outline the general steps utilized in a contested divorce proceeding. If you feel that your divorce can be settled from the very beginning, then you can outline a settlement agreement that you believe both of you could agree to. If you are represented, your attorney will draft this proposal and send a settlement letter along with the initial pleadings. This provides the other party with an opportunity of addressing the issues in a constructive approach aimed at an expedited settlement. This of course saves attorney fees, costs and emotional distress to both parties. If you feel you have inadequate information with which to make an offer of settlement, it is wise to wait until after the discovery process to make an offer. If you are unrepresented, it is up to you to discover any asset/financial information which would need to be included in your proposal.

A schematic diagram of the substantive rights and liabilities with regard to a divorce are reflected on Exhibit B enclosed herewith. More specifically, those assets acquired by you prior to marriage are usually confirmed to you as your sole and separate property, free and clear of any interest of your spouse. Any assets you acquire after the date of separation is also considered separate property.

Those assets accumulated by you during the course of your marriage are generally characterized as community property. Community property assets are normally divided equally between the husband and wife. There are certain exceptions as follows:

There are considerable exceptions and refinements to the general parameters set forth above, which we will be reviewing in this case for the purpose of characterizing and dividing assets.

Once the Summons and Petition for Dissolution of Marriage have been filed with the court, the following standard restraining orders that are set forth on the reverse side of the Summons will be in full force and effect. These mutual restraining orders are issued automatically, and apply in every case. The restraining orders restrain the parties from:

a. Removing the minor child/children of the parties, if any, from the State of California, without the prior written consent of the other party or an order from the court;

b. Cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage including life, health, automobile and disability held for the benefit of the parties and their minor child/children; and

c. Transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life.

You must notify each other of any proposed extraordinary expenditures at least five business days prior to incurring these extraordinary expenditures, and account to the court for all extraordinary expenditures made after these restraining orders are effective. However, nothing in the restraining orders shall preclude you from using community property to pay reasonable attorney fees in order to retain legal counsel in the action.

Elizabeth Kubler Ross has authored a treatise upon the stages of death and dying. These stages appear to also be felt by most persons during the divorce process. These stages occur as follows:

Many experts believe spouses in dissolution of marriage proceedings go through the same stages. If true, this process would have a direct effect on the ability of the spouses to communicate with each other. Such communication is required to minimize litigation, which is costly financially and emotionally.

For example, a spouse in the second stage of anger communicates with a spouse in the fifth stage of acceptance very poorly. Therefore, is often takes time for one or both spouses to work through the emotional turmoil of a divorce before they get into a compatible stage where clear communication can occur. Accordingly, patience and good judgment is required as to when it is appropriate to embark on settlement discussions.

It is critical that a party to a divorce proceeding reconsider his or her estate planning. This would include, by way of illustration, preparing a new Will or revoking any power of attorney or trust agreement.

You will also want to consider severing any property held in joint tenancy between you and your spouse. The feature of joint tenancy is right of survivorship, which means if one spouse dies, the other spouse, by operation of law, succeeds to total ownership of the property even if the decedent had a Will to the contrary. For example, if you die, your spouse would become full owner of all property held in joint tenancy, regardless of the terms of your will. Of course, the same is true if your spouse dies.

Our office prepares Wills and Trusts that are specifically tailored to each client’s individual needs. Let us take care of your estate planning needs so you will have one less worry during your divorce process.

The obligation of spouses to support each other does not necessarily terminate when they divorce. If the divorce will leave one spouse with very little income and the other with enough to contribute to the low-income spouse's support, the court will usually award alimony, at least temporarily.

Although historically spousal maintenance was typically awarded to homemaker wives, to be paid by breadwinning husbands, that is no longer always the case. Now, either spouse may be awarded alimony if the other has the more substantial income and the recipient spouse's income is insufficient to support him or her at the level to which the spouses were accustomed during the marriage.

Spousal support is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties' children while the other climbed the career ladder and achieved a higher income. In such cases, the alimony will often be temporary, providing income for the period of time that will enable the recipient spouse to become self-supporting. This temporary, or rehabilitative, spousal support enables the spouse receiving it to further his or her education, reestablish himself or herself in a former career, or complete childrearing responsibilities, after which time he or she can be self-sufficient. If one spouse is unable to get a good-paying job, however, due perhaps to health or advanced age, the support award may be permanent.

Now that my husband and I are getting divorced, will the court divide up everything that we own, so that each of us gets half of the money, half of the furniture, one of the cars, etc., right down the middle?

In a divorce, or marriage dissolution, proceeding, the marriage of the parties is terminated and other related issues, including child custody, child support and visitation, spousal support (alimony), and property and debt division, are decided. Divorce can in some cases be a very contentious, acrimonious process, but in others the parties are able to, either completely voluntarily or with the aid of their lawyers and/or a neutral mediator, reach mutually agreeable decisions.

Property distribution may be hotly contested in a divorce action. Commonly distributed property includes real estate, personal property, cash, bank accounts, stocks, bonds, ownership interests in family businesses, and retirement benefits. There are two main methods of property distribution, based on the divorce statutes in the states in which the divorce occurs, which can be categorized as either equitable-distribution or community property states.

Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin are community-property states. In these states, each of the spouses has a one-half interest in all of the property acquired during the marriage. It is presumed that all property acquired by either spouse or both of them during the marriage belongs to the community, unless proven otherwise. As in equitable-distribution states, exceptions may be made for gifts, inheritances, and the property each party brought to the marriage.

When property is evenly or equitably divided, each asset is not necessarily split between the parties. Rather, each is given his or her fair share of the total package. One spouse may actually receive more property than the other, but make up the difference through cash payments. Or, in some cases, the actual distribution may take place at a future date. This often occurs when there is significant equity in the family home, but a sale is not in order because the custodial parent wishes to live in the home until all of the children are raised. In such cases, the equity is determined at the time of divorce or separation, and the shares are then calculated, but the money does not change hands until the house is actually sold. One alternative to this delayed-payment scheme is to obtain a home equity loan, so that the spouse who does not remain in the home can tap into what may be the parties’ largest asset. Recent developments in property-distribution law include the recognition of a homemaker’s spouse’s contribution to the increase in value of a family business, and the wage-earner spouse’s contribution to the other spouse’s education and professional degree. Courts are now awarding greater shares of family businesses to wives who managed the household so their husbands could tend to their business, and dividing the value of a professional degree or practice, such as law or medicine, between both spouses if one supported the other financially while the necessary education and experience were obtained. Property and debt distribution in a divorce can be a difficult process, and the advice of an experienced family law lawyer can help to expedite the process.

I have had enough conflict with my ex-husband to last a lifetime, and I don’t want to have to fight him every month for the child support he owes me. Is there some way to ensure he pays without my having to get involved?

My wife has custody of the kids, but she also earns big money as a stockbroker. Do I still have to pay child support?

When married parents divorce or separate, or when only one of the unmarried parents of a child has custody, the court may order the non-custodial parent, or the one with whom the child does not live, to pay a certain portion of his or her income as child support. Less frequently, when neither parent has custody, the court may order them to pay child support to a third party who cares for their child. When the child is in the custody of both parents, however, and the parents are providing a reasonable level of support, the law usually does not interfere with or regulate the amount of financial support provided.

Because in the United States nearly half of all marriages end in divorce and almost one-fourth of all children are born to unmarried parents, the regulation of child support is an important social issue. Whereas once the arrangement for and payment of child support was left to the parents, now state child support enforcement agencies are taking an aggressive role in seeking payments from non-custodial parents. Frequently, the agency and court will work together to implement a child support withholding order, by which the child support amount is automatically taken from the payer’s paycheck. If the child support payments become delinquent, the agency can implement other collection mechanisms, such as withholding support amounts from tax refunds, or seizing real estate or personal property.

Child support orders are issued by the family court, which bases the amount of the support on the state child support guidelines. These guidelines establish the amount of support that must be paid based largely on the non-custodial parent’s income and the number of children. The court will also take account other relevant factors, such as the custodial parent’s income and the needs of the children. The court can deviate from the guidelines if there are significant reasons to do so. The fact that the custodial parent has a high income does not itself justify deviation from the guidelines, because under the law children have the right to benefit from both parents’ incomes. Child support can be increased if there is a change in circumstances justifying the increase, such as an increase in the payer’s income or the cost of living, a decrease in the custodial parent’s income, or an increase in the child’s needs. Similarly, the amount can be reduced if the circumstances justify the reduction.

In cases involving unmarried mothers seeking child support, the first step may be legally to establish the father’s paternity of the child. The father can do this voluntarily, but if he does not the mother may need to bring a lawsuit to establish paternity, which is usually done using genetic (DNA) testing. The court will order the putative, or alleged, father to submit to the testing if he does not agree to do so voluntarily. Once paternity is established, the court will issue a child support order in a manner similar to that in a divorce situation.

When the non-custodial parent moves to another state, the custodial parent may have to rely on the Revised Uniform Reciprocal Enforcement of Support Act to implement or ensure payment of child support. This act provides the mechanisms by which a support order issued in one state can be enforced by the courts of another state.

Our office can assist a parent in obtaining an order for child support in an appropriate amount, and in enforcing the order once issued. We represent either parent in a support modification proceeding, or in one to establish or disprove paternity. Because the well being of children is at stake, child support issues are of paramount concern, and the assistance of an experienced lawyer is essential to the process.

I was the one to quit my job and stay home with the kids, but my wife says she will still get custody because she is the mother. Is she correct?

My husband beat our children while we were married, and now that we are divorced, he still wants to see them. Do I have to allow him to have visitation with the children?

When parents divorce, the divorce decree will specify with whom the child will live, and how often and under what circumstances the other parent will visit with the child. Often, parents work out these arrangements between themselves, either completely voluntarily or with the assistance of their attorneys or a mediator. When they are unable to reach a decision, however, or when unmarried parents are unable to agree on who will have custody of their child, the court may intervene and make a decision based on the child's best interests.

In most situations, physical custody is awarded to one parent with whom the child will live most of the time. Often, however, the custodial parent shares "legal custody" of the child with the non-custodial parent. "Legal custody" includes the right to make decisions about the child's education, religion, health care, and other important concerns. When one parent is awarded sole physical custody, the other parent is granted visitation, either according to a clear schedule of dates and times, or simply on a "reasonable" basis. If allegations of abuse have been alleged against the non-custodial parent, any visitation granted may be subject to supervision by a neutral third party. Grandparents and stepparents may also be entitled to visitation privileges.

Some parents have chosen a joint-custody arrangement in which the child spends an approximately equal amount of time with both parents. Proponents of this arrangement say it lessens the feeling of loss that a child may experience in a divorce. Critics, however, say that it is best for the child to have one home base, with liberal visitation allowed to the "non-custodial" parent. Because joint custody requires a high degree of cooperation between the parents, courts are reluctant to order joint custody unless both parents are in agreement and can demonstrate the ability to make joint decisions and cooperate for the child's sake.

Another option, although much less favored, is split custody, in which one parent has custody of one or more of the parties' children, and the other parent has custody of the other(s). Courts usually prefer not to separate siblings, however, when issuing custody orders.

When the child's parents are unmarried, the statutes of most states require that the mother be awarded sole physical custody unless the father takes action to be awarded custody. An unwed father often cannot win custody over a mother who is a good parent, but he will usually take priority over other relatives, foster parents, or prospective adoptive parents.

In deciding who will have custody, the courts consider various factors. The overriding consideration is always the child's best interests, although that can be hard to determine. Often, the main factor is which parent has been the child's primary caretaker. If the children are old enough, the courts will take their preference into account in making a custody decision. Once entered, the court can change a custody award if the parent or children's circumstances have changed.

Some commentators have criticized the courts as being gender-biased, since most custody awards are in the mother's favor. Others respond to this criticism, however, with the fact that historically mothers have been, and in many cases continue to be, the children's primary caregiver, so the higher number of awards to mothers is appropriate. As more fathers become more actively involved in their children's care, there likely will be more custody awards to fathers.

Because custody and visitation decisions, like those in so many family law areas, involve such important considerations and affect so many lives, the assistance of an experienced lawyer is an essential element of the decision-making process.

The divorce process does not have to be overwhelming. Discussing your specific concerns with an experienced family law attorney can dispel many of your fears. Call us today to schedule your consultation. We will answer your questions and tell you what steps need to be taken now.

PAPERWORK	SERVICE	PURPOSE	DEPOSITIONS

a) Summons	a) Mail	a) Spousal Support	a) Secure Information
b) Petition	b) Process Server	b) Child Support	b) Provide Documentation
c) OSC	c) Marshal	c) Restraining Orders	c) Secure Evidence
d) Declarations	d) Pick-up	d) Child Custody & Visitation	d) Evaluate Witnesses
e) Income & Expense		e) Attorney’s Fees & Cost
		f) Miscellaneous

Trial

Initial Pleading

Step 1

Order to Show Cause Hearing

Step 2

Discovery

Step 3

---> Settlement

Step 4

Separate
Property

Date of
Marriage

Date of
Separation

Separate
Property