Family Law & Divorce Terms
The following is a list of terms and simple explanations of some divorce & family law common legal terms for your information. Not every divorce deals with all of these issues. For example, some people do not have children, and others do not own a home. But, the following will give you a bit of understanding regarding some issues in Family Law. Obviously, if you have additional questions, or would like additional information on any issue, feel free to contact us for a free consultation.
Divorce / Dissolution
In California Family Law, “Dissolution” is just another word for divorce. It is actually a word borrowed from Civil Law Practice. The word simply means to dissolve something, in this case, a marriage. Our laws used to call the process a Divorce, but changed to Dissolution of Marriage for several reasons. One interesting reason for the change was that the parties use to be called “Plaintiffs and Defendants,” just like the parties are titled in a Civil Suits. Those terms were found to be offensive and undesirable, so the civil term “Dissolution” was adopted. Also, they changed the terms “Plaintiff” and “Defendant,” to “Petitioner” for the person that files for the Dissolution, and the “Respondent” for the person who files a Response, responding to the Petition, so that neither party would be “Defending.”
The title given to the person who initiates the Dissolution by filing the “Petition for Dissolution”, “Legal Separation”, the paperwork to determine “Paternity” or parentage of a child, or any other Petition. Along with a Summons” and a couple other documents, this is one of the first documents filed in any Family Law case. If this is not filled out correctly, or if you do not write something you should have, you could profoundly harm your case from the very beginning. Because it is so easy to do this wrong, always get advice from a Family Law attorney before filing your own dissolution paperwork.
The “Respondent” in a family law case is the party responding to the Petition filed by the Petitioner. The Respondent is responsible for filing a “Response”. You have 30 days from the day the Respondent is served to file the “Response” to a Petition. The boxes that are checked and the things written into the Response paperwork is just as important as the language in the Petition, and if done incorrectly, you can easily harm your case in a profound way from the very outset of the process. Again, always get advice from a Family Law attorney before filing your own dissolution paperwork.
If you want more information than simply the basics, contact us for a free consultation.
I know, it is almost impossible to talk about custody without mentioning child support, and it is impossible to discuss child support, without mentioning custody. This is also true in court. This is because the amount of time your child spends with you is a huge factor in determining how much child support you will pay, or receive. BUT, everyone who reads this should be aware that even though the amount of child support a parent pays or receives from the other is based largely on the amount of time the child or children spend with you. Judges HATE any argument that smacks of “trading children” for money (support). Remember my earlier warnings about saying things that are a double-edge sword, such as a father requesting more time than he has ever spent with his kids before, just so his child support burden is reduced. Or, a mother (typically) who knows the Father is a good father, and knows the children want to spend more time with their father, but she fights for more time just to get a larger child support award. This common issue can cost thousands of dollars in a contested divorce case.
The first thing that MUST be noted with regard to the issue of spousal is this, it is NOT a gender driven issue. I have had many, many cases where the wife was the larger wage earner, and thusly, was ordered to pay spousal support to her husband. Obviously, and I feel I can say this without offending, as it is clearly factual, in most relationships, the male partner earns more than their female counterpart. Therefore, if I slip and call the “Payor” the husband, and call the wife the “Payee”, I apologize in advance.
That being said, every person that pays spousal support, typically says “That is too much, I can’t afford to pay that.” Furthermore, almost every receiving party says, “That’s not enough, I can’t live on that.” This leads to so many conflicting issues. Here I go.
Long Term vs. Short Term Marriage
The Family Home
The family home is the residence were the spouses resided primarily during their marriage and prior to separation. Thus, the family home can also be a property that is not determined to be community property (definition of community property follows below), but rather the separate property of one or the other of the spouses.
The Family Home can either be a very simple item to dispose off during a divorce, or it can be extremely complex, and the most difficult issue to deal with. A full array of issues can arise even if you do not anticipate any and just about every time you will need the help and guidance of a well seasoned Family Law Attorney.
The following are only outlines based on hypothetical questions typically asked by clients. The hypothetical solutions are not intended to be a representation of the laws or a potential outcome of your case. If you feel like you can identify your case with one, two or many of the following issues, call us today immediately so that we may help you asses your situation.
More on the family home.
Community Property is actually quite simple, it is the property that you and your spouse own together. Not always, but generally, all property that is acquired by the parties during their marriage and prior to separation is community property, even if one of you purchased the property on “your own” credit card. All items that are determined (by the Court) to be community property are equally owned by the parties. In other words, each party owns 50% of every item acquired during the marriage and before separation. Of course, certain exceptions do apply. More on community property
Separate property is, as obvious as it may sound, basically anything that is not community property. More specifically, separate property is an item or items deemed to be owned solely by one of the parties. That is important, because an item can be separate property even though the item was purchased during the marriage. In fact, there are many things that are purchased during every marriage that are deemed “separate property”. If something is separate property, the other party has no ownership interest over any items determined to be the separate property of the other.
The Process and Pitfalls
Service of Process or Personal Service
At the beginning of any Family Law case, the Petitioner will file their Petition and some other document. Then, those documents must be served on the Respondent. Without service, there will be no divorce. In fact, in most circumstances, the Respondent must be “Personally Served”. Personal service means face-to-face. Someone must actually hand the Respondent a copy of all the filed papers, plus a couple papers the Respondent will need to respond to the Petition. Any adult, who is not an “Interested party” in the case can serve the other side. The Respondent does not need to sign anything saying he/she received the documents. The person that serves the Respondent, must then fill out a “Proof of Service of Summons”, and that Proof of Service of Summons will then be filed with the court before the case is formally started.
After that, the Respondent is on the clock, they have 30 days to respond (file the “Response”), or the Petitioner can take the Respondent’s “Default”.
Additionally, in MANDATORY WAITING PERIOD: In California, you must wait 6 months and 1 day after you serve the other party to get divorced. The State calls this a “Cooling off Period”. They make sure you have time to really think about the divorce, and make sure you want to go through with it. To get a divorce in California, you must wait 6 months and 1 day after serving the other party to obtain a divorce.
If the Respondent does not file a Response within 30 days after they are properly served, and continue through the divorce without any further notice to the Respondent. In fact, if a default is taken, the Petitioner can proceed directly to trial and ask the Judge for anything reasonable, like custody of a child, or the exclusive use of the family home, and they would get what they ask for, even though the Respondent isn’t even present in court.
In a disputed Divorce, taking your opponent’s default can be a very valuable tool, but there is one major Caveat! Generally speaking, Judges do not like to take a person’s default, thusly, they are often relatively easy to get a default “Set Aside” (get rid of it) after they have been entered by a Judge. This is because the business of a divorce is very serious, children are often involved. Additionally, child custody, visitation, child support, spousal support, and all property issues are all usually involved. Therefore, Judges want each party to have their rightful chance to be involved in the divorce process if they want to be.
Filing Documents with The Court
This is one of the most difficult parts of the process for people representing themselves. So many people go to the courthouse, get the divorce packet, or the packet for obtaining child support, or a custody and visitation order, or whatever, and think, “It is just forms, I can fill them out, file them, and go tell the Judge what I want.” Good luck! We get at least one call per week from someone that attempted to start their own divorce, or do their own paperwork, or even asked some independent paralegal to “fill out” their paperwork, and now their case is screwed up, badly, or worse, or they lost custody of their kids, or they are only getting $210/mo. In child support, and now need our help to UNDO what they messed up.
The first thing you need to know is, those forms are “Legal Documents”. Everything you put on them, every box you check, or don’t check, can profoundly affect the legal outcome of your case.
Example: On the back of a Petition for Dissolution, called the “Petition,” is a section that simply asks you to list your community property. Do you literally list everything? Do you have to go through your house/apartment listing every plate, bowl, fork, spoon, pillow, sheet, TV, other TV, the third TV, VCR, stereo, blah, blah, blah? Then you realize there is not enough room on the form for that. So you realize that can’t be what they are really asking for.but then see a note that reads if you need more room, use an attachment. YIKES, maybe they do want you to list every plate, spoon and sheet. One answer is you have to give the other party “notice” of any item of property you want the Court to divide or disburse. “What the heck does that mean, right?” The truth is, the real answer to this is somewhere in between everything you own, and just the big items.
The sorts of issues you may encounter and how to resolve them can take years.
Feel free to contact us and we’ll show you how we can help you.