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DIVORCE - FAMILY LAW: DISSOLUTION, LEGAL SEPARATION & NULLITY

The Law Office of Christine D. Thielo — Thu, 08 Mar 2012 00:44:00 GMT

DIVORCE - FAMILY LAW:

DISSOLUTION, LEGAL SEPARATION, & NULLITY OF MARRRIAGE PROCEEDINGS

Legal Separation and Dissolution actions are both commenced by filing a Petition in the Superior Court. The grounds for requesting a legal separation and dissolution action are the same but the residency requirement does not apply to the request for Legal Separation. A judgment for legal separation may be granted if both parties consent to a judgment of legal separation or the Respondent fails to make a general appearance. A party responding to the legal separation can file a response requesting dissolution and the action will proceed as a dissolution action.

A dissolution action requires the filing party to reside in the county three months and six months within the state of California immediately prior to filing the Petition for Dissolution of marriage. If you do not meet the residency requirements in your county, you can file for legal separation, and later file an amended petition for divorce in the county in which you live once the residency requirements are met. Pursuant to Family Code Section 2321 (a), “…The date of the filing of the amended petition or pleading shall be deemed to be the date of commencement of the proceeding for the dissolution of the marriage for the purposes only of the residence requirements of Section 2320.”

The legal separation and dissolution action can both proceed by default, as uncontested actions or as contested actions. A judgment for legal separation does not terminate the parties’ marital status whereas a judgment of dissolution of marriage terminates marital status. A party can proceed by default if the other party failed to respond or the parties agree. To proceed by default the Petitioner files a Request to Enter Default thirty one days after the date of service of the Petition on the other party.

An uncontested action can proceed with the other party filing a Response within thirty days after the date of service and later submitting a Stipulated Judgment signed by both parties to the action. If an action is uncontested and the responding party does not file a Response to the action the parties can file a notarized stipulated judgment to finalize the action.

The earliest a divorce is effective is six months and one day from the date the Summons and Petition is served on the other party. Contested cases are rarely completed within six months and a day. Pursuant to Family Code Section 2337 a party can request the court to sever and grant an early and separate trial on the issue of the dissolution status of the marriage before granting judgment on other issues in the court action, which would permit a party to remarry. There are some consequences to early termination of marital status prior to division of all property which should be discussed in detail with counsel.

A contested proceeding requires the Response to be filed with the superior court within thirty days from service. A party can request a hearing for temporary orders by filing an Order to Show Cause. A contested action will proceed to trial and a judge will make a decision regarding each of the issue placed before the court.

NULLITY

In California marriages are valid, void or voidable. The validity of the marriage is determined by the state of country where it was contracted. A valid marriage is only dissolved through a judgment of dissolution or death.

A nullity proceeding is commenced by filing a petition in the superior court. A declaration for a nullity of marriage annuls, or declares void, a void or voidable marriage.

A void marriage is invalid from the beginning but since a marriage license is issued the court must determine that it is void pursuant under the Family Law Code. A person can request the marriage to be determined void on the basis that it is an incestuous marriage, a bigamous marriage or polygamous marriage.

Voidable marriage may be declared a nullity when a Petition requesting such relief is filed on the following basis:

· The court finds either party was under the age of legal consent and contracted the marriage absent consent of the parent or guardian, unless after attaining the age of consent the party freely cohabitated (Fam.Code 2210(a));

· Either party has a former spouse that was living at the time the parties entered into the contract of marriage. Although believed to have been dead (Fam.Code 2210(b));

· Either party was of unsound mind. This will not apply if such party after coming to reason freely cohabitated with the other party (Fam.Code 2210(c));

· One party obtained consent to marriage by the other party by fraud. However, if the party afterward with full knowledge of the facts constituting the fraud freely cohabitated with the other the marriage will not be found voidable (Fam.Code 2210(d));

· If a party obtained consent to the marriage by force the marriage is voidable. However, if a party later freely cohabitated with the other as husband and wife the court will find the marriage valid (Fam.Code 2210(e)); and

· The physical incapacity of either party existed at the time of marriage and such incapacity continues and appears to be incurable (Fam.Code 2210(f))

Child Custody

The Law Office of Christine D. Thielo — Thu, 22 Sep 2011 00:34:00 GMT

Temporary child custody orders are based on the best interest of the minor child. In determining best interest the court will look at relevant factors and all circumstances that establish the best interest.

In determining the best interest of the minor child the court determines whether there has been a history of past abuse by either parent to each other or to the minor child. The court also considers the health, welfare and safety of the minor child. The court will also look at the stability and continuity of the environment of the minor child. The courts also factors in whether the requested modification would separate siblings. California has a strong policy to protect the sibling relationship. Additionally, in determining the best interest of the minor child pursuant to family code section 3042 the court must "consider" and give "due weight" to the wishes of children who are of "sufficient age and capacity to reason so as to form an intelligent preference as to custody." [See also Fam.C. 3030(c)(1)].

Where there is a permanent order the moving party must establish that there is significant change of circumstances that the court should consider in determining whether to modify the court order. Some examples of changes in circumstances include but are not limited to: the child's inability to adjust to their home, school and community; child's inability to get along with other siblings or an abusive step parent; a parent becoming incarcerated; parent becomes mentally or physically ill; substance abuse; sexual abuse by a parent or sibling; death of a parent; or relocation of a parent.

The modification process starts by meeting with experienced counsel to review existing orders and to discuss the likelihood of the desired outcome based on whether there is a temporary or permanent order in effect.

The second step requires filing an Order to Show Cause to place the modification request before the court. Prior to court the parents are required to attend a Family Court Services mediation to discuss whether the two can reach an agreement. If the parties are unable to reach an agreement the mediator often makes a recommendation to the court depending on the county that your case is heard.

At the hearing the parties can either adopt the mediation agreement or recommendation or request a full hearing with testimony in a contested matter. Family Code 217 states,

(a) At a hearing on any order to show cause or notice of

motion brought pursuant to this code, absent a stipulation of the

parties or a finding of good cause pursuant to subdivision (b), the

court shall receive any live, competent testimony that is relevant

and within the scope of the hearing and the court may ask questions

of the parties.

(b) In appropriate cases, a court may make a finding of good cause

to refuse to receive live testimony and shall state its reasons for

the finding on the record or in writing. The Judicial Council shall,

by January 1, 2012, adopt a statewide rule of court regarding the

factors a court shall consider in making a finding of good cause.

than the parties shall, prior to the hearing, file and serve a

witness list with a brief description of the anticipated testimony.

If the witness list is not served prior to the hearing the court

may, on request, grant a brief continuance and may make appropriate

temporary orders pending the continued hearing.

The acceptance of live testimony is currently in practice. Due to the code provision for live testimony short cause hearings less than twenty minutes may become a thing of the past. Family Code Section 217 does allow the court to limit or find good cause not to allow live testimony in appropriate circumstances which will be defined by a new rule of court outlining the factors for "good cause."

**The information contained on this page has been prepared by the Law Offices of Christine D. Thielo for informational purposes only. The information contained herein is general in nature and may not have application to particular factual or legal circumstances. This information does not constitute legal advice or opinions and should not be relied upon as such. This information is not intended to create and does not constitute an attorney-client relationship. Readers of this page should not act upon any information on this page without seeking professional counsel. All rights reserved.

CHILD SUPPORT

The Law Office of Christine D. Thielo — Fri, 16 Sep 2011 19:36:00 GMT

Parents have a duty to support their minor children

Each parent has a duty to support their child/children in a manner suitable to the child's circumstances, and that duty is applied to each parent regardless of their gender. If the other parent is interfering with your custodial time you cannot just stop paying child support because your obligation to pay is required by a legal court order. Do not confuse your child support with custody and visitation since every parent has a duty to support their children. You have a legal remedy which you can exercise by filing an Order to Show Cause to obtain a hearing date to request enforcement of your custodial rights.

As set forth in Family Code Section 17502 when you cannot deliver the child support payment or locate the custodial parent you should make your child support payments directly through the local child support agency. If the child support agency cannot locate the custodial parent for a period of six months it shall return the undeliverable payments at which point the funds should be set aside or placed in a trust in case the custodial parent appears and seeks collection of the undistributed amounts. (Fam.C. §17502). In addition to contacting the local child support agency you should also contact the California Parent Locator Service (Fam.C. §17506).

If a noncustodial parent fails to pay child support fines and possible imprisonment could be imposed by the court. Support could be collected from wage assignment, federal and state income tax refunds, state or property tax credits, and lottery winnings. Additionally, Liens may be filed against his or her real property or other assets. Failure to pay child support could result in suspension or denial of renewal of state issued driver licenses and professional licenses. Moreover, workers compensation lump sum payments could be attached to pay past due child support.

There is a very limited exception in international move away cases when a parent lacks the normal remedies to enforce visitation rights through contempt or modification actions since the custodial parent is beyond the jurisdiction of California courts where the court has reduced or terminated child support. (Marriage of Condon, (1998) 62 Cal.App.4^th 533, 548, 73 CR2d 33, 43, fn. 10)

Duration of Child Support:

Family Code Section 3901 states that the duty to support a child continues as to an unmarried child who has attained age eighteen, is a full-time high school student, and who is not self-supporting until the time the child completes the twelfth grade or attains the age of nineteen, whichever occurs first.

Also, pursuant to section 3901(b) there is nothing which limits a parent's ability to agree to provide additional support or the court's power to inquire whether an agreement to provide additional support has been made.

Pursuant to Family Code Section 3910 the duration of child support can be extended at the court's discretion for a child whatever age if the court finds the child is incapacitated from earning a living and without sufficient means to provide support. The order will continue until the happening of a contingency stated in the order.

Child support orders can also be extended through a stipulated agreement by the parties.

Statute of Limitation for Child Support Orders:

A statute of limitations is a law which sets the maximum period time that one can file a lawsuit, depending on the type of case or claim.

There is no statute of limitations when it comes to enforcing a child support order which was entered prior to the child turning the age of majority. Child Support is enforceable until paid in full. Child support orders which include any interest and penalties are enforceable until paid in full irrespective of the fact that the child has reached the age of majority. [Fam. C. §4502; see also In re Marriage of Garcia, 67 Cal. App, 4th 693, 79 Cal. Rptr. 2d 242 (1997)].

Welcome to our Upland Legal Blog

Upland Attorney — Thu, 18 Aug 2011 22:39:00 GMT

We are pleased to announce the launch of our Upland Legal Blog.