Date of Separation in a California Divorce

At the beginning of a divorce proceeding in California and even in a legal separation, the initial court form asks when is the Date of Separation.  Your answer to this question could have a tremendous impact on division of assets and debts and spousal support.  Consequently, I want to give more feedback on how to calculate the date of separation.

Right now, there is a famous celebrity couple that starred in Mr. and Mrs. Black together, who are going through a divorce. Moving trucks were recently spotted at Mr. Black’s house, and it is speculated that Mrs. Black was moving out of the marital home. The actual date of separation however, may have occurred earlier (or later) depending on the circumstances and unique facts of their marriage.

The date of separation, when a couple are “living separate and apart,” is considered the point at which earnings and accumulations of a spouse are changed from community property to separate property. As you can imagine, determining when a couple is “living separate and apart,” can be difficult. When one party moves out of the marital home, that could be evidence of intent to live separate and apart but if the party that moved out frequently returns to the marital home, resumes sexual relations with the other party, or takes trips or makes public appearances a married couple, a court may be less inclined to use the move-out date as the official date of separation.  I had a Sacramento County trial a few years ago concerning the date of separation where the parties listed dates of separation that were over 7 years apart!  (PS. The judge agreed with me and my client’s alleged date of separation)

In Marriage of Bargary, 75 Cal. App. 3d 444, (1977), the court held that “when spouses have come to a parting of the ways with no present intention of resuming marital relations,” this is considered the date of separation. The Court emphasized examining the parties’ conduct, which “evidences a complete and final break in the marital relationship.” It is not so much the parties’ intentions that matter but rather their actual conduct during the relationship.

In Bargary, the husband moved out of the family home in August 1971 but didn’t file his petition for dissolution until October 1975. During this time period, even though he was not living in the marital home, he lived on his boat and apartment and stayed at his apartment with his girlfriend, he still took his wife on outings, social events, and took their two daughters to trips and basketball games. He even continued to take his laundry home (his wife continued to do his laundry!).  Thus, the court determined that even though there were no marital relations there was the “facade of a marital relationship.” The Court of Appeals ruled that the later date, when the husband filed the petition for dissolution in October 1975, was the actual date of separation.

In Marriage of Manfer, 144 Cal. App.  4th 925 (2006), the husband Samuel argued for a later date of separation in March 2005 and the wife Maureen argued for an earlier date of July 2004. During the time period between July 2004 and March 2005, Maureen earned several hundred thousand dollars, which could be considered community property, which might mean that her husband would receive half. Samuel and Maureen kept up appearances that they were married and kept the separation secret from friends and family, even though they did not have marital relations and did not share any funds or support one another financially. The Court of Appeals found that “the best evidence is their words and actions” based on not what society at large would have perceived but rather the parties’ “subjective intent” as reflected in their words and conduct during the alleged period of separation.

At the end of the day, courts will not just weigh one fact but will look at the big picture to determine when a couple is actually living separate and apart. Perhaps the moral of the story is this: don’t do laundry at your soon-to-be-ex-spouse’s house.  Please contact me if you have questions about the date of separation or any other family law issues.

Call  (916)877-6177 to learn more or for a free consultation on your specific matter.  You can also visit my family law website for more information.

Matthew Rosenthal

Summary Dissolution

What is a summary dissolution?

 After spouses have separated, it can be confusing to determine whether you should get a dissolution, or a legal separation. This article discusses a third option that is available at Sacramento Family Law Courts: summary dissolution.  If you and your spouse have been married for no more than five years, you have no minor children together, and you have relatively modest assets and liabilities, you may be able to seek a summary dissolution.  Fam. Code § 2400(a).

Compared to a regular dissolution, a summary dissolution is a relatively straightforward and inexpensive procedure for getting a divorce.  The ultimate goal, as the name implies, is to resolve the case summarily.  To that effect, no formal court appearances are required and judgment may be entered within six months of filing a Joint Petition for Summary Dissolution (form FL-800).  Fam. Code §§ 2401, 2403.

To determine whether you qualify for a summary dissolution, you should consult with the Summary Dissolution Information (form FL-810) booklet promulgated by the Judicial Council.  This booklet contains step-by-step instructions on how to seek a summary dissolution.  Though you may find it beneficial for financial reasons to act in pro per with the assistance of this booklet, you should speak with an attorney on the risks associated with foregoing a regular dissolution.  Notably, there is a mandatory waiver of the rights to spousal support, to appeal the judgment, and to move for a new trial.  Fam. Code § 2400(a).

When is a summary dissolution available?

To qualify for a summary dissolution, all of the following conditions must exist at the time the proceeding is commenced:

  1. either party meets the Family Code section 2320(a) jurisdictional requirements for dissolution of marriage (i.e. a resident of the state for at least six months and a resident of the county where the petition is filed for at least three months);
  2. “irreconcilable differences have caused the irremediable breakdown of the marriage and the marriage should be dissolved;”
  3. there are no minor children of the marriage and the wife, to her knowledge, is not pregnant;
  4. less than five years have passed between the date of marriage and the date of separation;
  5. neither party has any interest in real property, wherever situated, with the exception of the lease of a residence occupied by either party if it does not include an option to purchase and if it terminates within one year from the date on which the petition is filed;
  6. there are no unpaid debts in excess of $6,000.00 incurred by either party during marriage, excluding automobile purchase balances;
  7. the total fair market value of community property assets—including deferred compensation and retirement plans, but excluding all encumbrances and automobiles—is less than $40,000.00 and neither party has separate property assets, excluding encumbrances and automobiles, in excess of $40,000.00;
  8. the parties have executed an agreement dividing their community assets and debts and “any documents, title certificates, bills of sale, or other evidence of transfer necessary to effectuate the agreement;”
  9. each party waives any rights to spousal support;
  10. upon entry of judgment, each party irrevocably waives any rights to appeal and any rights to move for a new trial;
  11. the parties have read and understand the Summary Dissolution Information booklet (form FL-810); and,
  12. the parties desire that the Court dissolve their marriage.  Fam. Code § 2400(a).

The ceiling on community obligations (see item 6 above) and community and separate property assets (see item 7 above) is subject to adjustment January 1 of every odd-numbered year in accordance with the percentage change in the California Consumer Price Index.  Fam. Code § 2400(b).

 

What forms are required to file for a summary dissolution?

To begin the summary dissolution proceedings, both parties must sign a Joint Petition for Summary Dissolution (form FL-800) under oath stating that all of the conditions required by Family Code section 2400(a) have been met as of the date of filing.  Fam. Code § 2401.

Before filing the Joint Petition for Summary Dissolution (form FL-800), however, both parties must exchange an Income and Expense Declaration (form FL-150) and the worksheets on pages 7 through 13 of the Summary Dissolution Information booklet (form FL-810).  In addition, if you have any community property assets or debts to divide, both parties must execute a property settlement agreement.  You must attach a signed copy of the property settlement agreement to the Joint Petition for Summary Dissolution (form FL-800).

Finally, you must file a Judgment of Dissolution and Notice of Entry of Judgment (form FL-825).  The Court will automatically enter judgment once six months has elapsed from the date of filing the Joint Petition for Summary Dissolution (form FL-800) unless either party chooses to stop the process by filing a Notice of Revocation of Joint Petition (form FL-830).

Sacramento and Elk Grove residents should contact me if they have any questions about summary dissolutions or other options to terminate their marriage.  I can be reached via phone, text, or email.

 

Challenging a Family Law Judgement

Challenging a family law judgment is complex.  As such, you should contact an experienced family law attorney for assistance.

Challenges at the Trial Level

Motion for New Trial

1.           Grounds

Of the 7 grounds to bring a Motion for New Trial under Code of Civil Procedure section 657, the following are applicable to family law cases:

  1. “Irregularity in the proceedings of the court…or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.”
  2. “Accident or surprise, which ordinary prudence could not have guarded against.”
  3. “Newly discovered evidence,” material to the moving party, which could not, “with reasonable diligence, have been discovered and produced at trial” and that would likely yield a different result on retrial.
  4. “Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.”
  5. “Error in law, occurring at the trial and excepted to” by the moving party.

2.         Procedure

To bring a Motion for New Trial, a Notice of Intent must be filed and served no later than the earlier of:

  1. 15 days after the clerk’s mailing of the Notice of Entry of Judgment;
  2. 15 days after a party’s service on the moving party of the Notice of Entry of Judgment; or,
  3. 180 days after entry of the judgment.

Supporting declarations and a Memorandum of Points and Authorities must be filed and served within 10 days of filing the Notice of Intent.  The other party then has 10 days to serve and file a response.

Once the latter 10-day period has expired, the matter will be set for hearing.  The court then has 60 days from the clerk’s mailing or a party’s service on the moving party of the Notice of Entry of Judgment, whichever is earlier, or if such notice has not been given, then 60 days from the filing of the Notice of Intent.

3.         Effect

If the court grants a new trial, it vacates the prior judgment.  In other words, it is as if the case was never tried before.  However, an order granting a new trial is appealable and if reversed on appeal, the prior judgment is automatically reinstated.

In contrast, an order denying a new trial is not appealable.  In the event that the court denies the Motion for New Trial, the only remedy available to the moving party is to file a timely appeal from the judgment.

Feel free to contact me if you are considering filing a motion for a new trial, or if you are otherwise exploring whether to file a Motion for a New Trial.  I can represent you on such a motion on an hourly or flat fee basis.

Call  (916)877-6177 to learn more or for a free consultation on your specific matter.  You can also visit my website for more information.

Matthew Rosenthal

 

 

Family Law Mediation

 

Introduction

I concentrate my California law practice on family law issues, including custody and visitation disputes.  In many of those cases, one party will file what is called a request for order to modify or set a parenting plan.  Typically, those cases must be set for mediation through Family Court Services (http://www.saccourt.ca.gov/family/fcs.aspx) so that the parties can receive Child Connected Recommended Counseling.  The purpose of mediation/counseling is to allow the parents to meaningfully participate in a process wherein the goal is to resolve the child custody/visitation issues amicably without a court hearing.

In many Northern California counties, including Sacramento County, if the parents cannot reach an agreement, the mediator will make a recommendation to the court as to the best interests of the child.  Typically, because the court is likely to know and respect the mediator, these recommendations are given a lot of weight.  As such, it is important that you understand the types of mediation available.

Family Court Services (“FCS”)

Every superior court is required to offer free family court mediation services.  In Sacramento County, these services are offered through FCS.

FCS mediation offers two key benefits.  First, as stated above, FCS mediation is free whereas private mediation can be relatively expensive.  Second, FCS mediation is quick, often allowing the parents to have an enforceable order in place in one-to-two months.

The problem with FCS mediation is that while you certainly want an order in place as soon as possible so that you can move forward with your life, you want an order that truly reflects the best interests of the child.  Otherwise, you may have to return to court to modify the order.

With FCS mediation, each parent generally meets with the mediator for only one hour before the mediator prepares a report to submit to the court.  In such a limited time, it is difficult for the mediator to be completely informed of the case.  Accordingly, if you have a particularly complex case, you should consider private mediation.

Private Mediation

Private mediation, as the name suggests, is not provided by the Court.  Instead, a private mediator will hear the child custody/visitation issues.

To obtain private mediation, either the parents must stipulate to the use of a specific private mediator or one parent has to seek a Court order allowing for private mediation.

As mentioned above, private mediation can be expensive.  Most private mediators in Sacramento County charge between $100.00 and $200.00 per hour and require a retainer that can range from $1,000.00 to $3,000.00, depending on the complexity of the case.  In addition, private mediation generally lasts longer than FCS mediation.

However, for the reasons stated above, the lengthy duration of private mediation may be beneficial.  Private mediators are typically able to hold more sessions and therefore can better understand the complexities of the case.  Moreover, most private mediators have more experience and training in difficult issues such as domestic violence and substance abuse.

 

Conclusion

Overall, since the mediator’s report will likely be given considerable weight, especially if you are in a recommending jurisdiction like Sacramento County, it is important that you consider whether to pursue FCS or private mediation.  You should contact an attorney to further advise you as to the best course of action.  I provide free consultations over the telephone (916) 877-6177, or in person if you would like more information.  If you would like some general information about child custody and visitation issues in Sacramento County, please click on this link.

You can also visit my website for more information.

-Matthew Rosenthal

Child Custody and Visitation Terms

There are several terms associated with the issues of child custody and visitation. While many of the terms may seem self-explanatory at first glance, they carry specific definitions under the Family Code in Sacramento County and California.

Legal Custody

Legal custody refers to which parent makes decisions concerning the child’s health, education, and welfare. Family Code §§ 3003, 3006.

Sole legal custody means that only one parent has the right and responsibility to make these decisions. Family Code § 3006.

Joint legal custody, on the other hand, means that both parents share the right and responsibility to make these decisions. Family Code § 3003. While both parents should always try their best to cooperate on decision-making, either parent technically has the power to make such decisions alone.

Physical Custody

Physical custody refers where the child resides.

Sole physical custody means that the child resides with only one parent, subject to visitation rights for the other parent. Family Code § 3007.

Joint physical custody means that the child resides with both parents, splitting his/her time between the parents in a manner that assures frequent and continuing contact with both parents. Family Code § 3004. Note that if the child resides with one parent for over fifty percent of the time, that parent will be labeled as the primary custodial parent for tax purposes.

Visitation

The parent that does not have the child for over fifty percent of the time is entitled to reasonable visitation. Family Code § 3100. What is reasonable depends on the best interests of the child standard. Family Code § 3011.

In order to avoid potential conflicts, it is best to devise a visitation schedule specifying the dates and times of visitation, the beginning of the visitation schedule, the location of drop-offs/pickups, the parent that will perform drop-offs/pickups, etc.

Good Example:

“Father shall have visitation every 1st, 3rd, and 5th weekend of the month, beginning February 1, 2013, from Friday at 3:00 p.m., pickup at school, to Monday at 8:00 a.m., drop-off at school.”

Call  (916)877-6177 to learn more or for a free consultation on your specific matter.  You can also visit my website for more information.

Matthew Rosenthal

Using Requests for Admissions in Divorce Case

In addition to filing standard discovery requests in a Sacramento family law case, I usually send requests for admissions (“RFA”) to a responding party.  These requests can be issued as a matter of right without obtaining a court order.  Any matter admitted in response to a RFA is conclusively established for the pending action against the party making the admission, with some limited exceptions.  CCP §2033.410(a).

In general, RFAs are not used to discover facts, but to establish the existence or nonexistence of facts.  They may also be used to authenticate documents.  Use caution when drafting a RFA to make sure it is worded effectively without leaving the responding party with any wiggle room to admit or deny the admission.

If you want to establish that the other spouse has improperly used marital money to buy gifts for a lover, you might use a series of statements like these:

1.  You have used Visa 12345 during personal travel with M. Lover at least once in the last 12 months.

2.  You have used Visa 12345 to pay for a hotel room during personal travel with M. Lover at least once in the last 12 months.

However, you would not want to ask the other the following:

1.  You have purchased personal meals or hotel rooms during personal travel at least once in the last 12 months.

If the other spouse answers “Yes” to this question, then that is an ambiguous response which is not worth the paper it is written on because it will not be clear whether the admission refers to purchasing meals or hotel rooms with M. Lover or without.

RFA can be a great tool to use in a family law case to narrow the contested issues to resolve the case at mediation or trial.  Best of all, RFAs are much cheaper than deposing the other party.  I hope this gives you a better idea regarding how attorneys use RFAs in family law cases.  Next time, I will explain what to do if the other spouses sends you RFAs.  As your Sacramento family law attorney, I will explain how to do so. In the meantime, here is my contact information.

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Are you handling a Sacramento family law case pro se?

I am ready and willing to be your Elk Grove family law attorney if you need assistance.  However, many men and women handle a separation and divorce on their own.  If you are handling a family law matter on your own, please note that all local cases are held at the William R. Ridgeway, Family Relations Courthouse at 3341 Power Inn Road, Sacramento, CA 95826.  The telephone number for the courthouse is 916-875-3400 (telephone hours from 8:30 a.m. to noon).

The filing fee for a petition for dissolution or legal separation currently costs $435, and the response to same also currently costs $435.  Further information concerning family law fees can be found at the Superior Court of California, County of Sacramento’s website. For more information about the Family Relations Courthouse, click on this link.

Best of luck to you.

How does being a stepparent affect whether he/she owes support?

In most instances, establishing the existence of a parent-child relationship is usually a precondition to a support duty.  For a woman, the parentage is often established by “proof of her having giving birth to the child.”   A mother’s and father’s biological parentage can be determined in an action filed under the Uniform Parentage Act.  Parentage can also be shown by individuals who register as domestic partners with the California Secretary of State.

Parentage can also be shown by the court’s grant of an adoption order, which results in a complete substitution of parents.  Sometimes a party will enter into a stipulated judgment that names the child’s “other parent.”  That party is estopped from challenging that judgment’s parentage determination, irrespective of the judgment’s validity.

A stepparent ordinarily has no duty to support the children of his or her spouse.  But, sometimes when dissolution proceedings are instituted, a stepparent’s duty to support those children may arise if:

  • stepparent knew he or she was not the biological or adoptive parent of the child;
  • stepparent told the child that he or she was the child’s true parent;
  • representation was of “long continuance,” i.e., it was told repeatedly;
  • stepparent intended that his or her representation be accepted and acted on by the child;
  • child relied on the representation and treated the stepparent as his or her true parent; and
  • child was unaware of the true circumstances.

If all of these factors are present, then there is “parentage by estoppel,” which prevents the stepparent from denying his obligation to provide support for that child.

If you are a stepparent he is separating from your spouse and want to know if you have an obligation to provide support, please contact a Sacramento family law attorney.

When does child support end?

In general, a parent’s support obligation ends when the child reaches the age of 18, and becomes an adult. However, there are exceptions to this general rule. The obligation can extend beyond the child’s 18th birthday if the child (1) remains unmarried, (2) is a full-time high school student, and (3) is not self-supporting. This duty terminates if any conditions are not met, or once the child completes the 12th grade or reaches the age of 19, whichever occurs first.

Both parents have an equal responsibility to provide support for their adult child if he or she is incapacitated from earning a living and is without sufficient means of support. On the other hand, an adult child who is unable to pay for a college education without parental help is not “incapacitated” within the meaning of the law.

Moreover, children under the age of 18 may be statutorily emancipated if they do any of the following:

• enters into a “valid marriage, whether or not the marriage has been dissolved”; • goes on active duty with the US army; or • receives a judicial declaration of emancipation.

If you are not sure when your support obligation or the other parent’s obligation expires, please contact a knowledgeable Elk Grove family law attorney for a free consultation.  My phone number is 916-877-6177.

When can a parent choose not to pay child support?

Sometimes, a spouse will complain that the other spouse is interfering with their visitation rights, which is just a fancy way of saying that one spouse is not permitting the other to see their child. Under those circumstances, the spouse might ask if he/she still has to pay child support. The short answer is yes.

In Cooper v. O’Rourke, 32 Ca. 4th 243 (1995), the trial court entered an order terminating child support upon a finding that the child’s mother was intentionally frustrating the father’s efforts to maintain contact with the child. This order was based in part on the father’s testimony that he had tried to call his daughter twice, but he received no answer. Plus he sent his daughter a birthday card asking her to call him collect, but he received no response to this card.

One parent’s interference with the visitation rights of the other does not affect the duty of suppprt, unless the custodial parent actively conceals herself and the child from the noncustodial parent until the child reaches adulthood. Here, at most, the evidence establishes that the custodial parent interfered with the other parent’s visitation rights for only four months. Therefore, the appellate court ruled that the trial court erred when it altered the child support order.

An aggrieved parent can seek reimbursement for expenses resulting from the thwarting of a parent’s efforts to exercise visitation privileges. If you are dealing with a similar issue, please contact an Elk Grove family law attorney who knows the best way to aggressively protect your custodial rights.