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Divorcing Family Services

Marital (or Domestic Partnership) Dissolution

This is your request to restore your marital status as a single person. The primary ground for requesting restoration of your marital status is irreconcilable differences, which have caused the irremediable breakdown of your marriage. The court does not consider whose fault it is that caused the breakdown of your marriage. Irreconcilable differences means that even with counseling and or the passage of time, your differences will never be resolved. 

Legal Separation

This is your request to decide on financial, property division, and parenting issues while living apart and married. Keep in mind that a legal separation does not end a marriage or partnership. Ordinarily, couples sometimes prefer separation for religious reasons.

Annulment

This is your request that your marriage or domestic partnership never happened because it was never legal. Depending on the reasons for annulment, you have four years to file for an annulment. The sole fact that your marriage lasted weeks or a few months does not qualify you for an annulment. Reasons such as age, unsound mind, physical incapacity, prior marriage, fraud and or coercion will qualify you for an annulment.

Paternity

This is your request to establish a parent-child relationship. Under Family Code Section 7630, a Mother or Father of the minor child may file a request to legally determine the Father. This may include your request for genetic/DNA testing to establish the parent-child relationship. Usually, the Father signs a Voluntary Declaration of Paternity at the hospital, after which the hospital places the Father’s name on the birth certificate.

Restraining Order

This is your immediate request to forbid the other party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating, falsely personating, harassing, telephoning you, including, but not limited to, making annoying telephone calls, destroying personal property, contacting you, either directly or indirectly, by mail or otherwise, coming within a specified distance of you, or disturbing your peace. Your immediate request may include moving the other party out of your home.

Child Support

This is your request that the other party financially support the children you have in common. It is the policy of this state that a parent’s primary obligation to their child is to financially support him/her.

Spousal Support

This is your request that the other party continue financially supporting you after separation. A marriage or domestic partnership of at least ten (10) years will support your request that the Court award spousal support for a duration longer than one-half the length of the marriage. However, if you abused your significant other in any way, the Court may not award you spousal support.

Child Custody and Visitation

This is your request that the Court issue orders that authorizes each parent to make decisions about the health, education and overall welfare of your children. The Court will order a co-parenting schedule for the children, which shall be in their best interest.

Family Court Services Mediation

The Court mandates the parents attend mediation through their Family Court Service program at the Court to resolve child custody and visitation issues only. This is the most crucial part of your matter, especially if you and the other parent do not agree on a co-parenting schedule. All parties to the action will sit with a Court-appointed mediator addressing a schedule that is in the best interest of the children. If the parents cannot agree to a schedule, then the mediator will draft a report enclosing a recommendation for the Court to adopt at your child custody and visitation hearing.

Pre-Marital Agreements

If you and your soon-to-be-spouse or soon-to-be-domestic-partner are at least seven (7) days away from your wedding ceremony, then you both may sign an agreement that affects the division of your property and debts as well as financial support. It is imperative that the agreement advises both parties seek the advise of a lawyer prior to signing, and explicitly states that the party elects not to seek the advise of a lawyer prior to signing the agreement. The best purpose of a before-marriage agreement is to deviate from community and separate property laws in California.

Post-Marital Agreements

A post-marriage agreement is when you and your spouse or domestic partner are already married and want a writing that affects the division of your property, debts and finances. The best purpose of a after-marriage agreement is to deviate from community and separate property laws in California.

Modification of Orders

This is your request to change existing orders, such as child support, spousal support, and child custody and visitation. There is a different standard of proof when the modification is requested prior to a Judgment has been entered or after Judgment has been entered. Ordinarily, the standard of proof for a modification is “change of circumstances.”

Set Aside Orders

To set aside an existing order, such as child support, spousal support, child custody and visitation, DNA-testing, parent-child relationship, and division of property and debts. There is a time limitation as to when you can file to set aside orders. There must also be valid reasons to set aside orders, such as fraud, non-disclosures, excusable neglect, and a few more statutory reasons.

Name Change

This is your request to change your maiden name and or your child’s name. There are specific forms that will easily allow you to change a name. However, if it is the child’s name that you want changed, then you should get the other parent to agree in changing the name. If there is no agreement to change your child’s name, then the Court will decide whether it is in the child’s best interest to change his/her birth name.

Emergency (ex parte) Orders

This your request that the Court makes immediate orders. The order may pertain to child custody and visitation because your child is in imminent danger, or advancing or delaying a Court date because of time conflicts, or setting hearings that require oral testimony. The Court will not order child support and or spousal support on an emergency basis.

Property Division

As part of your divorce, legal separation, annulment and domestic partnership, the Court has the authority to divide your property and debt. Property includes real property, furniture, furnishings, appliances, jewelry, paintings, antiques, vehicles, motor homes, financial accounts, tax refunds, life insurance, stocks, bonds, retirement, pensions, businesses, animals, student loans, tax debt, credit card, and loans.

Residency

In order for you to file for a divorce, legal separation, domestic partnership in San Diego County, you must be living in San Diego County for at least 3 consecutive months prior to filing the motion, and living in California for at least 6 months. (See Family Code 2320) If you have not been living in San Diego County for at least 3 consecutive months, then you may only file for a legal separation. However, residency requires that you intend on making San Diego County your home, so you have a driver’s license, bank accounts, a job, and or a home in San Diego County.

Reimbursement from Contributions Towards Property

This is your request under Family Code 2640 that you want reimbursement for your separate property contributions towards a community asset, such as real estate. The contribution may have been a down payment on a home you purchased during the marriage with your spouse. The down payment may have been from an inheritance, or savings prior to marriage, which would make the down payment funds your separate property. Ordinarily, you would be entitled to a 100% reimbursement.

Reimbursement from Contributions Towards Education

This is your request under Family Code 2641 for reimbursement of funds towards the other party’s education and or training, which substantially enhances the earning capacity of the educated party. The amount reimbursed shall be with interest at the legal rate of 10%. There is a rebuttable presumption that the community has not substantially benefited from community contributions to the education or training made less than 10 years before the commencement of the proceeding, and that the community has substantially benefited from community contributions to the education or training made more than 10 years before the commencement of the proceeding. It will be your burden to prove that the community estate did not substantially benefit from the education and or training in order for the community to receive reimbursement.

Move-Away

This is your request to move the child’s residency from San Diego County to a different county. Pursuant to Family Code 7501, the Court will look to various factors in alignment with In Re: Marriage of Burgess or In Re:Marriage LaMusga. If there are current custody and visitation orders, then the Court will review factors under In Re:Marriage of LaMusga, including but not limited to the child’s preference, stability and continuity of the relationships, and reasons for the move. The non-moving party must prove that it would be detrimental to the child if the Court allowed for the move. If there are not custody and visitation orders in place, then the Court will decide if moving the child outside of San Diego County is in his/her best interest.

Military Divorces

If you or your ex is in the military, then there are concerns of dividing the military retirement if you or your ex listed your residency outside of California. There are also concerns about deployment, and how it affects your timeshare with your children. Also, the military has a guide on supporting your ex and or children without a court order, such as paying 1/3 of your BAH and BAS.

Breach of Fiduciary Duties

You and your spouse or domestic partner owes a fiduciary duty to one another. This means you and your spouse must preserve your community property. For example, a spouse that fails to pay the monthly mortgage on a home may be breaching their fiduciary duty to the other spouse because the home may be subject to foreclosure. A foreclosure may not be in the community’s best interest because it does not preserve the property. You may request financial relief from the other party when there is a breach. See Family Code 1100.

Arrearages

If there is an existing order for child support, spousal support and or attorney fees and costs and your spouse has not paid during the existing order, then you should be requesting that the Court establish arrearages. This means that the Court add the past-due amounts to establish how much is owed to date, and then include the legal rate of interest which is 10% annually. Usually, if the other party refuses to follow the court order and pay you support or fees, then the court will also award you attorney fees and costs for forcing the court to intervene.

Attorney Fees and Costs

This is your request for an award for attorney fees and costs payable by the other party. The Court must award attorney fees and costs if they find that there is a disparity in income, you need an award for fees, and the other party has the ability to pay for both your legal representation and the other party’s legal representation. The Court may also award fees if the other party forces you to file a motion to enforce an existing order, including discovery requests.

Mandatory Settlement Conferences

The Court sets the settlement conferences at the Family Resolution Conference or by ex parte. You and your ex must have filed your Declaration of Service of Preliminary Declaration of Disclosure and Income and Expense Declaration (form FL-141). Also, you and your ex must have filed a Joint Readiness Declaration (form D-274). The Court will then appoint a volunteer settlement conference judge to help you and your ex reach a global settlement on the disputed issues. You will need to prepare a mandatory settlement conference brief, which is also a form, D-241.

Family Resolution Conferences

The moment you file for a Petition in family court, the Court will automatically set a Status Conference or a Family Resolution Conference. You and or your attorney must appear and give the Court the status of your case. Unless there is an agreement to continue the date, then an appearance is not necessary and an online continuance form must be filled out with your assigned Department and or Judge. The Court will want to know whether you are ready for settlement discussions, trial or do you need more time to analyze further issues. If you need more time, then the Court will re-set the Family Resolution Conference or Status Conference at a date mutually agreed upon by the parties and or available with the Court.

Child Protective Services Involvement

The purpose of Child Protective Services (CPS) is to protect the children’s best interests. Anyone can make a claim with CPS pertaining to child abuse and or neglect, but that does not necessarily mean that the claim is true. CPS will involve a social worker to speak with you and all involved parties. You don’t need to have an attorney present when the social worker wishes to talk to you, but it is advisable to speak with an attorney prior to speaking with the social worker. Your discussions with them are noted in their file, permanently. CPS will either find the claim unfounded, inconclusive, or substantiated. Their findings may affect the outcome of your case.

Substance and Alcohol Abuse Allegations

If there are statements from you or the other party about abusing any substances and or alcohol while caring for your children, then you will need to address these issues in Court. If you do ingest any illegal substance or excessively drink alcohol when you care for your children, then you want to address this issue head on. You should consider submitting to voluntary drug tests, without the other party knowing, so that you may monitor your intake. If you don’t excessively drink or ingest illegal drugs, then you simply need to deny the allegation. You may want to request that the Court order a drug test. If you want the other party to submit to a hair follicle test, then the other party must agree to it. The Court is not within its discretion to order a hair follicle test as a means to test for drugs and or alcohol.

Omitted Assets

This is when you or your ex either purposefully did not divide an asset in the marital dissolution, legal separation dissolution or domestic partnership dissolution. If you come across an asset in the other party’s name that was not divided during the marital dissolution, then you should file a motion to either set aside the judgment based on fraud, perjury, duress, mistake or failure to comply with the disclosure requirements per Family Code 2122.

Undisclosed Assets

An asset is undisclosed when one purposefully does not inform the other spouse of that asset during their marital dissolution, legal separation and domestic partnership. If you discover an asset that was not divided during your legal proceeding, then you should file a request to divide the undisclosed asset and ask for 100% of it per Family Code 1101 and Family Code 2556. You can also supplement your request with a request for attorney fees and costs.

Enforcement of Orders

Depending on the order, once you establish an order and the other party does not comply, then you will want to petition to the court to enforce their previous orders. It may not entirely require a petition to the Family Court, but rather a petition in civil or small claims court to collect on the order, such as an attorney fees award.

Guardianship Over Minor Children

If you need your children watched over by a third party, such as a grandparent, then you may apply for a guardianship. The guardianship will allow the third party to inquire and receive records, such as medical or school. You do not need the consent of the other parent to nominate a guardian.

Adoption

When a step-parent wants to adopt their spouse’s or significant other’s child, then they are taking on the role of a biological parent. When they take on a role of a biological parent, then biological parent must consent to the adoption. An adoption terminates the biological parents rights over the child. They loose all custody of their child.

Gathering Evidence

Form Interrogatories

The Judicial Council drafted general questions for civil and family cases. The questions include the parties name, address, driver license information, requests for reimbursements, payment for attorney fees, employment information, etc. The two forms for Form Interrogatories are DISC-001 and FL-145.

Special Interrogatories

These interrogatories are special questions that you can specifically ask to the other party, and are relevant to the legal proceeding. Each question must be specific, and cannot assume facts that have not been declared in the case. The purpose of the questions is to gather information that is directed to pivotal points in the case. It is important that you do not draft questions that in response you receive an array of objections. For example, you may not ask more than 35 interrogatories unless good cause exists for more than 35.

Request for Production of Documents

This is your request that the other party provide documents that are necessary for you to understand the financial and other unknown aspects of your case. This may be tax returns, credit card statements, or offshore bank accounts at a specific time period.

Request for Production of Tangible Items

This is your request that the other party provide items that are necessary for you to locate because it is relevant to your case. For example, photographs, calendars, or a garage opener may be produced.

Inspection Demand

This is your request to inspect documents, items or property. The purpose for the inspection is to discover financials, deeds or other items that will help prove the missing piece(s) to your case.

Request for Admissions

This is your request that the other party admits or denies factual statements you believe to be fact. The other party must sign their responses under penalty of perjury, just like all discovery responses.

Private Investigation

You may hire a private investigator to assist you in unknown aspects of your case, such as catching your ex smoking marijuana while caring for your children. The Court may not necessarily accept the investigation as evidence, so you will need a declaration from the investigator.

Business Records Subpoena

This is your request that institutions produce their business records. The subpoena serves as a Court order. You must first provide notice to the party that you are seeking records about. There is a time frame from when you serve the notice on the party and the time from when you serve the institution with the subpoena.

Subpoena for Personal Appearance

This is your request that a particular person appears at a deposition or a court hearing. The subpoena serves as a Court order. The person you served a subpoena to may also be ordered to provide business records to supplement their testimony at the hearing.

Deposition

This is your request to ask questions to the other party while a reporter is recording every word that is being said. The deposition is the same as giving testimony before a Judge. The questions may take up to seven (7) hours. You can question the other party or any witnesses in your case. You must notice the deposition to the party being questioned at least 10 days before the deposition date.

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