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Ashley Sedaghat

Filing Your Petition for Dissolution of Marriage & the Next Steps

By | Divorce, Legal Document Preparation | No Comments

Filing Your Petition for Dissolution of Marriage & the Next Steps

Starting Your Dissolution Case

To open a dissolution of marriage action in family court, the “Petitioner” (the spouse initiating the case) must file a Summons (Family Law) (form FL-110), Petition for Dissolution of Marriage (form FL-100) and any local form(s) required by your jurisdiction.  For example, in Orange County family court the Petitioner must also file a Family Law Notice Re Related Case (form L-1120).  Additionally, if there are minor children, the Petitioner must file a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (form FL-105).

Once the above documents are filed with the family court, the Petitioner must complete service of process.  There are options for completing this required procedural step, as follows:

  1. Personal Service:  Through this service method, the spouse or “Respondent” receives the documents personally, through a process server, a California sheriff, or a non-party who is at least 18 years of age.  This means the Petitioner cannot be the individual to personally serve their spouse.  If personal service is the method of service used, a Proof of Service of Summons must be completed and filed with the court (form FL-115).

 

  1. Substituted Service:  Through this service method, the Respondent can be served through service on a third party.  More specifically, if personal service is attempted at the Respondent’s business or workplace and the Respondent is not available to receive the service packet, the server may leave the documents with “a person at least 18 years of age who was apparently in charge at the office or usual place of business” of Respondent.  Such person must be informed of “the general nature of the papers”.

If personal service is attempted at the Respondent’s home and the Respondent is not available to receive the service packet, the server may leave the documents with “a competent member of the household (at least 18 years of age)”.  Such person must be informed of “the general nature of the papers”.

The server must try to serve the Respondent at least a few times (3 or more attempts is best) before leaving the service packet with the third party.  Different days of a particular week and/or different times of the day must be attempted.  “Due diligence” in attempting to serve the actual party spouse must be shown.

Under both the business and home options, the server must also thereafter mail an additional copy of the service packet to the Respondent at the location where the server left the initial copy.

Substituted service is deemed complete 10 calendar days after the mailing.

If substituted service is the method of service used, a Proof of Service of Summons must be completed and filed with the court (form FL-115).  A written declaration of due diligence, regarding attempts to serve the Respondent himself or herself, is also required.

  1. Notice and Acknowledgement of Receipt:  Through this service method, the Respondent receives the documents through the mail.  Included in the service packet is a Notice and Acknowledgment of Receipt (form FL-117).  Service is deemed complete on the date the acknowledgment of receipt form is signed.  The recipient spouse must cooperate and return the signed form to the Petitioner or his/her attorney, so the form can be filed with the court. If the recipient spouse does not cooperate with this process, another service method will need to be used.

Once You Complete Service of Process

Following service (as described above) on the Respondent, the Respondent has 30 calendar days to file his or her Response (form FL-120).  With the Response form, the Respondent must also file any required local form(s), and a UCCJEA (form FL-105) if there are minor children.  The service packet provided to the Respondent must include a blank copy of the responsive forms.

If the Respondent does not file his or her Response with the family court within 30 calendar days from service, the Petitioner can move forward with a default divorce.  There are specific steps that must be taken to properly complete a default divorce.  Contact us today so we can explain the default process to you and answer your questions.

How Long Does It Take to Get Divorced?

You cannot finalize your divorce for at least 6 months from the date your spouse is served (or from the date your spouse files their Response if they file it prior to being served – and yes, that sometimes happens).

 

Your divorce case is final once a judge signs your final Judgment.  You are returned to the status of “single” on the date the court indicates your marital partnership ends.  (The date is written or stamped on the first page of the final Judgment.)

If a divorce case is dealt with amicably and cooperatively, it is plausible to have all the procedural steps completed and your Judgment submitted to the court for review within the 6-month waiting period.

If your divorce case is contested or has a need for litigation (either in a request for temporary orders or through a court trial), the divorce process can far exceed the 6-month waiting period, years even in many cases.

FREE CONSULTATION

The divorce process, whether you are the spouse initiating the case or responding to documents you were served with, can be overwhelming and stressful.  Our attorneys are experienced in dealing with both amicable and contested divorce matters.  We strive to alleviate some of that stress and concern for our clients.

 

Contact us today for a free, confidential phone consultation to discuss the process in further detail.

Registering Your Out-of-State Custody Order

By | Child Custody & Visitation, Court Orders, Divorce, Legal Document Preparation, Parentage | One Comment

Enforcement of Your Out-of-State Custody Order

If you have moved to the state of California from another state, you may register your out-of-state custody order for purposes of enforcement.  Once the order has been registered in your local court, if the other parent violates the custody order, you can pursue legal remedies to enforce the order.  Without the order being properly registered, the California court cannot enforce it.  

How to Register Your Out-of-State Custody Order

There are a few steps in the registration process.  

First, you must complete the required court form titled, “Registration of Out-of-State Custody Order” (FL-580).  You must attach two copies of your out-of-state order to the FL-580 form.  One of the copies must be a certified copy.  The other may be a photocopy.  You will sign the form under penalty of perjury asserting that, to the best of your knowledge and belief, the order has not been modified.  

Second, you must complete the required court form titled, “Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)” (FL-105).  This court form references other related cases involving your children, if any, an address history for your children and other related information.  

Last, you must complete any additional local forms required by your jurisdiction. For example, in Orange County the court requires a local form titled, “Family Law Notice Re Related Case” (L-1120) for all new matters.  

Once you submit your custody order to the court for registration, the court clerk will send notice of your registration packet to the other parent.  If the other parent wants to contest the validity of the out-of-state custody order, they must do so within 20 days of the date the notice was mailed to them.  The request must be in writing and filed in the court case.

The Court Hearing Process if the Validity of the Custody Order is Contested

At the court hearing, in order to avoid the court confirming the out-of-state custody order, the other parent must prove at least one of the following three things:

1.The issuing court did not have jurisdiction.
2.The child custody order you requested registration of has been vacated, stayed or modified by a court having jurisdiction to do so.
3.The other parent was entitled to notice of the original order, but did not receive proper notice.  

Modifying the Out-of-State Custody Order Once Properly Registered in CA

Once your out-of-state custody order is registered in California, you may request a modification of the order under certain circumstances.  The circumstances in which you may request a modification involve a more complex analysis.  Our experienced attorneys can explain the process to you in more detail.

Free Consultation

Contact us today for a free confidential phone consultation so we can discuss your questions about the registration process to see if you qualify to request a registration in California and further, if you have sufficient basis to request modification of the order once registered.

Disclosure in Divorce

By | Child Support, Division of Community Assets & Debts, Divorce, Legal Separation, Spousal Support | No Comments

Spouses often wonder whether they have to disclose their separate financial accounts a divorce proceeding.  How about accounts held only in their name? The answer to both questions is yes.

California Has Mandatory Disclosure Requirements in Divorce

California law requires the spouse initiating the divorce case (referred to as “Petitioner”) to complete a Preliminary Declaration of Disclosure packet and serve the packet on the other spouse. (Family Code § 2104)

The exception to this disclosure requirement is when the Petitioner serves the Summons and Petition on their spouse via publication.  If service of the Summons and Petition was completed through publication (versus personal service or through the notice and acknowledgment of receipt process) and the recipient spouse has not filed a formal Response and is in default, the Petitioner does not have to complete the otherwise necessary disclosure paperwork.  (Family Code § 2110)

If the responding spouse (referred to as “Respondent”) filed a formal Response with the court, he or she must also complete and serve a Preliminary Declaration of Disclosure packet of their own.

The 3 components of a Preliminary Declaration of Disclosure are the following:

  1. Declaration of Disclosure (FL-140)
  2. Income and Expense Declaration (FL-150)
  3. Schedule of Assets and Debts (FL-142)

You Must Exchange Copies of Your Tax Returns

The Declaration of Disclosure form is not filed with the court but must be served with the disclosure packet.  Under Family Code § 2104, the “preliminary declaration of disclosure shall include all tax returns filed by the declarant within the two years prior to the date that the party served the declaration.”  In some marriages, the taxes filed the two years prior to the date of the disclosure declaration are joint tax returns.  Do you still need to attach the joint returns?  The answer to this question is yes.  You must include copies of the two tax returns, whether individually or jointly filed.

Your Income and Monthly Expenses are Included in the Disclosure Process

An Income and Expense Declaration can be filed with the court.  This form discloses to the other party your income, both monthly and for the past 12-month period, and your monthly expenses.  If you are someone who has been in the dark about your spouse’s income during your marriage, the disclosure process may be quite eye opening.  The Income and Expense Declaration form also includes line items for investment income, self-employment income, certain monthly deductions, work related expenses, the sum of money held in deposit accounts and household members, among many other items.

Your Schedule of Assets and Debts is Not Just About You

On your Schedule of Assets and Debts form you must list all assets you have an interest in, including assets held jointly with any third parties.  There is a place on the form to indicate if something is your separate property or your spouse’s.  You should also list any assets of your spouse’s that you know of, even if you do not have complete information about the asset(s). As to debts, those must be listed too.  Debts include loans, credit card debt, student loans and taxes owing.  This form is the most cumbersome of the three disclosure components.  There are specific documents that must be attached for each category of assets/debts listed.

The Schedule of Assets and Debts form, along with its requirements, can seem daunting to some and a bit unsettling as you may, for the first time, be disclosing an asset or debt your spouse did not have any knowledge of.  Nonetheless, you must disclose it.  The court wants to ensure that each spouse has a full and accurate picture of all assets and debts before a judgment is processed and approved.

Failure to disclose a community asset can have severe consequences. It can expose you to a motion to set aside a judgment or a claim for breach of fiduciary duty. As a penalty for failing to disclose a community asset, the court may award at least one-half of the value of the undisclosed asset and attorney’s fees. In cases where the party has been found guilty of “oppression, fraud or malice” in concealing a community asset, the court may award 100% of the value of the undisclosed asset and attorney’s fees. (Family Code § 1101 et seq.Civil Code § 3294.) Moreover, failing to disclose separate property assets is sanctionable conduct. (Family Code §§ 2107(c) and 271.)

Thus, although the forms seem simple and straightforward, there can be legal consequences if not completed properly.

Free Consultation

Contact us today for a free confidential phone consultation so we can discuss your questions about the disclosure process and your divorce case in general.

How to Protect Yourself from an Abusive Partner

By | Domestic Violence | No Comments

CALL 9-1-1 IN CASE OF AN EMERGENCY

In an emergency situation, do not hesitate to call “9-1-1” to request immediate assistance from law enforcement. If the circumstances permit it, law enforcement can issue an Emergency Protective Order (referred to as “EPO”).

The EPO is not a long-term order for protection, but it will allow you some time to then submit a request to the Family Court for further protection. A domestic violence abuser can be prosecuted by the District Attorney’s Office, but such action is separate and apart from the relief you can seek in Family Court. 

FAMILY LAW REMEDY FOR DOMESTIC VIOLENCE

The family law remedy for acts of abuse is a Domestic Violence Restraining Order (referred to as “DVRO”). A family law judge can issue a DVRO based on acts of:

·      Physical violence

·      Threats of violence

·      Sexual assault

·      Destruction of personal property

·      Harassment

Harassment comes in many forms such as emotional and verbal abuse, disturbing your peace, stalking and even excessive phone calls, emails and/or text messages.

YOU MUST MAKE AN AFFIRMATIVE REQUEST TO THE COURT FOR A DVRO

A victim of domestic violence must submit an application to the Family Court in order to request protection. You can submit a request to the court for a DVRO with or without notice to the abuser. Notice is favorable, but not required (as notice to the abuser could place the victim in further danger).  

NO FILING FEE

 The Court does not charge a filing fee for a DVRO application or a response, if one is filed. If you intend to subpoena witnesses to come to the court hearing, statutory and/or expert witness fees will apply, unless waived by the Court.

WHAT IS YOUR RELATIONSHIP TO YOUR ABUSER?

Abuse is considered domestic violence when a certain relationship exists (or used to exist) between the victim and the abuser.

A DVRO would be the appropriate remedy when the victim and abuser are, or have been, in an intimate relationship such as:

·      Marriage

·      Domestic partnership

·      Dating or used to date

·      Living or used to live together

·      Have a child together

A DVRO would also be the appropriate remedy is when it involves a relationship with a parent, grandparent, grandchild, sibling, stepparent or an in-law (although an in-law must be through your current marriage and not a prior marriage).

ALTERNATIVE REMEDIES FOR ACTS OF VIOLENCE

If your relationship does not fit within one of the categories above, the appropriate remedy may instead be a Civil Harassment Restraining Order, Dependent Adult Restraining Order, Elder Abuse Restraining Order or Workplace Violence Restraining Order.

Orange Coast Family Law specializes in Domestic Violence Restraining Orders only. If you are unsure about whether your relationship falls within one of those that qualify for a DVRO, contact us to inquire.

THE COURT HEARING PROCESS

At the initial court appearance, there is not an actual court hearing where testimony is taken. The judge will generally make a ruling to grant or deny a request for a DVRO based on the documentation submitted.

The court is looking to see if there is “reasonable proof of a past act or acts of abuse”. While it is helpful to have documentary evidence in support of your request for protection (such as a police report, pictures or text messages), it is not required. The judge can make a ruling based on a victim’s testimony or declaration alone.

If the judge denies your request for a DVRO at the initial stage of the process, the judge is required to state the reasons for doing so in the order. If orders are made (in the form of aTemporary Restraining Order, also referred to as a “TRO”), in part or in full, you will receive those court orders, in a certified form, on the day the orders are made.

You should keep a copy of your TRO with you at all times and extra copies at home, in your car, at work, and at your child’s daycare or school. You should also provide a copy to your local law enforcement agency.

After the initial stage of the DVRO process, the court will set a return court hearing date within a 21-day time window.

There are statutory timelines that apply to service of the TRO if the responding party was not in court and served with the TRO by the courtroom deputy. Law enforcement can assist in meeting the service requirement. Alternatively, you can use a process server or have someone you know (who is age 18 or older) assist with this step.

TYPES OF ORDERS INCLUDED IN A TEMPORARY RESTRAINING ORDER (“TRO”)

The types of orders the court can include in a TRO are the following:

1.     Stay-away orders (from you, your residence, school, place of work, etc.) The court can extend the stay-away orders to family or household members specifically named in the order.

2.     Move-out order. The court can order one party to move out of the common dwelling.

3.     Order for rights to a mobile device and wireless phone account. The court can direct a cell phone provider to transfer the responsibility for the bill and the right to the telephone number to the requesting party to protect from cancellation of the phone account by the abuser.

4.     Order to turnover firearms. An abuser who is under such an order cannot own, possess, purchase, attempt to purchase or receive a firearm or ammunition for the duration of the order.

5.     Personal conduct order. The court can order an abuser to not “molest, attack, strike, stalk, threaten, assault (sexually or otherwise), batter, harass, telephone, destroy the personal property of, contact (either directly or indirectly, by mail or otherwise), come within a specified distance of, or disturb the peace of the other party.”

6.     Order to record unlawful communications.

7.     Order regarding care and possession of an animal. 

8.     Order for maintenance of insurance coverage.

9.     Property control orders. This includes use, control and possession of named items of property.

10.  Property restraint orders. This is only an option if the two parties are married or registered domestic partners.

11.  Debt payment orders.

12.  Child custody and visitation orders. These orders can include supervised visitation orders or a “no visitation” order until the next court hearing.

The following orders can be requested in your application for a DVRO, but will not be ordered until after a noticed hearing (meaning after the abuser has been served and provided with an opportunity to appear and respond at the return court hearing):

  • Child support
  •  Spousal support
  • Attorney’s fees and costs
  • Batterer Intervention Program

THE EVIDENTIARY HEARING

The evidentiary hearing is basically the return hearing date on your DVRO application. The judge will revisit your application, review any response filed, consider updates either through testimony or a further written declaration, hear from witnesses and receive exhibits relevant to the proceeding. Documentary evidence is not required, but extremely helpful to the judge in corroborating the allegations made.

Lack of documentary evidence should not deter you from seeking a DVRO if you need protection. The judge will hear, review and consider the facts on a case-by-case basis.

A “permanent” (until expiration or further order of the court) DVRO can be issued for a period of up to 5 years.

FREE CONSULTATION

The process for requesting a DVRO or responding to one can be overwhelming and paperwork intensive. We are experienced in dealing with domestic violence issues and can help ease an already very stressful and scary process.

Contact us for a free, confidential phone consultation to discuss the process in further detail. We can also provide you with referrals to domestic violence shelters if needed.

How to Deal with an Alienating Parent

By | Child Custody & Visitation | One Comment

When a family unit breaks apart or deteriorates over time, children often suffer as a result. Emotions can run high between parents in a divided family with children feeling torn in their emotions to not disappoint either parent by choosing sides. Most parents would say with confidence their child is the most important person in their life, yet many lose sight of that fact during a divorce or break-up of a relationship. The pain of rejection, betrayal or failure can consume a parent and cause backlash towards the other parent—through their child.

WHAT IS ALIENATION?

Parent alienation is a prevalent theme in many family law cases. Alienation by one parent can be an intentional, conscious choice and a tool used cause the other parent pain. Alienation can also result without intention.
Alienation of a child is a form of manipulation. A parent will try to manipulate the love and affection of their child through guilt, subtle comments and even purposeful, disparaging remarks about the other parent.

CAN A PARENT BE DETERRED FROM ENGAGING IN ALIENATING CONDUCT?

Child custody orders can contain provisions to deter one parent (or both) from speaking negatively about the other parent in their child’s presence.
For example, the court can make the following orders to deter one parent from alienating the other parent:

1. “The parties will not make or allow others to make negative comments about each other or about their past or present relationships, family, or friends within hearing distance of the children.”
2. “Other than age-appropriate discussion of the parenting plan and the children’s role in mediation or other court proceedings, the parties will not discuss with the children any court proceedings relating to custody or visitation (parenting time).”
3. “The parties will communicate directly with each other on matters concerning the children and may not use the children as messengers between them.”
The above three examples are found on State Judicial Council form number FL-341(D) titled: Additional Provisions – Physical Custody Attachment.

SIGNS OF PARENTAL ALIENATION

Signs of parental alienation, although not an all-encompassing list, are as follows:

1. A child’s withdrawal emotionally from a parent.
2. A child’s parroting of the negative comments spoken by one parent about the other.
3. A child being overly protective of a parent.
4. A child’s lack of desire to spend time with a parent.
5. A child’s separation anxiety at custodial exchanges.
6. A child’s inquiry about matters related to the court case and details they would not be privy to unless heard from a parent.
7. A child’s refusal to engage in parenting time or activities with a parent.
The above indicators are common in family law cases where there is parental alienation (but of course can result from other causes as well).

THE RULE OF HEARSAY UNDER CALIFORNIA LAW

From an evidentiary perspective, you must consider how to get the information about parental alienation to the judge. When you file a motion called a “Request for Order” to address custody issues (either preliminary orders or a modification of current orders) you can declare, under penalty of perjury, the details you want to share with the judge, but in doing so you may draw from the opposing party (or their attorney) an evidentiary objection based on the “hearsay rule”.
“Hearsay” is defined by California Evidence Code section 1200 as follows:
(a) “Hearsay evidence” is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.
(b) Except as provided by law, hearsay evidence is inadmissible.
(c) This section shall be known and may be cited as the hearsay rule.
Translation: If you want to share with the judge the details of what your child told you, a declaration alone will likely not be sufficient.

APPOINTMENT OF MINOR’S COUNSEL FOR YOUR CHILD

A tool that can be used for the purpose of addressing parental alienation (and other concerns related to your child) and additionally getting the details to the judge for consideration, is something called “minor’s counsel”. Minor children are allowed to testify in a family law proceeding only under very limited circumstances and it is not common at all. Due to this reality, the judge can choose to appoint an attorney for your child (called “minor’s counsel”) to interview your child about your child’s concerns. If minor’s counsel is appointed, the attorney is for your child only and not either parent. Minor’s counsel is appointed by the court to protect the best interest of your child.
California Rules of Court, Rule 5.240 deals with appointment of counsel to represent a child in family law proceedings.

CHILD CUSTODY EVALUATIONS

Another mechanism used to address parental alienation is a child custody evaluation. California Rules of Court, Rule 5.220 deals with court-ordered child custody evaluations. The rule states, in pertinent part, the following:
Purpose: “Courts order child custody evaluations, investigations, and assessments to assist them in determining the health, safety, welfare, and best interest of children with regard to disputed custody and visitation issues. This rule governs both court-connected and private child custody evaluators appointed under Family Code section 3111, Evidence Code section 730, or Code of Civil Procedure section 2032.”
A custody evaluation provides the court with an overall assessment of the family dynamics, each parent’s ability to meet their children’s needs as well as a recommended parenting schedule that is in the children’s best interest based on the assessment.
The process of a custody evaluation includes, but is not limited to, interviews of each parent and their children by the evaluator, observations of the parents and children together, review of the case file and interview with collateral contacts (e.g., extended family, school personnel, medical providers, etc.).

FREE CONSULTATION

Parental alienation is serious and can have a lasting impact on the parent-child relationship if not addressed promptly and properly through the court process.
Consulting with an attorney about the options of minor’s counsel and a child custody evaluation will help ease your mind about the process and arm you with information necessary to prepare yourself for what lies ahead.
Contact us today for a free, confidential phone consultation so we can discuss your situation and advise you about the options available to you.