Family Law

DIVORCE OR LEGAL SEPARATION

Divorce is painful. Divorce is emotional. Divorce is complicated. You need to consult with a lawyer if you are considering filing for divorce or if you have been served with divorce paperwork. We will discuss all of your options with you. We will explain your rights. We will advocate for you.

At The Buckley Law Firm, we listen to our clients. You have needs and concerns and so many questions. You are looking for answers. We are here for you.

Attorney Heather Sutton Buckley will provide you with an overview of the provisions of California law that are applicable to the divorce process including: the concept of no-fault divorce, the community property system and how assets and debts may be divided in your case, the principle of supporting a child’s frequent and continuing contact with both parents in setting custody and visitation orders, the potential of a reduced standard of living after separation, the policy of the legislature and the courts to encourage negotiated settlement over contested litigation, and an explanation of how spousal support and child support will be calculated in your case.

We provide our clients with the information needed to relieve anxiety about the legal system. We help our clients set appropriate expectations about the divorce process.

If you are considering filing for divorce or if you have been served with a Summons and Petition for Dissolution of Marriage or Legal Separation, call The Buckley Law Firm to schedule a consultation today.

FLOWCHART OF DISSOLUTION PROCESS

The Petitioner files and serves a Summons and Petition for Dissolution of Marriage (and Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act if there are minor children of the marriage)—->

The Respondent has thirty (30) days to file and serve a Response——>

If you need temporary orders for child custody and visitation, child support, spousal support, property control, etc., then you may need to file a Request for Order. The party responding to the Request for Order normally has thirty (30) days to file and serve a Responsive Declaration to the Request for Order —–>

The parties exchange important financial information, including a Schedule of Assets and Debts and Income and Expense Declaration. The Income and Expense Declaration and Declaration of Disclosure is filed with the court.——>

If the parties agree on everything and a Response has been filed, the parties may submit a Judgment for court approval. —–> Dissolution Judgment

OR

If the parties do NOT agree on everything and a Response has been filed, the parties may file a Joint At Issue Memorandum and request that the case be set for court trial. —-> Trial ——–> The parties submit a Judgment for Court approval —–> Dissolution Judgment

OR

If the parties agree on everything and a Response was NOT filed, the parties may submit a Default Judgment for Court approval —–> Dissolution Judgment

OR

If the parties do NOT agree on everything and a Response was NOT filed, the Petitioner may submit a Default Judgment for Court approval —-> Dissolution Judgment

OR

If the parties do NOT agree on everything and a Response has NOT been filed, Petitioner may request a Default Hearing ——> Default Hearing—–> Petitioner submits a Default Judgment for Court approval—–> Dissolution Judgment

Child Custody and Visitation

Under California law, child custody has two parts: legal custody and physical custody. Either type of custody may be awarded to one parent (sole custody) or to both parents (joint custody).

When we divorce, who will decide when and where the children will go to the doctor? To the dentist? To school? To daycare? To counseling and therapy?

Sole legal custody means that one parent will have the right and responsibility to make decisions regarding the health, education, and welfare of the child. Joint legal custody means that the parents will share that right and responsibility.

Who will my children live with when we divorce?

Sole physical custody means that the child will reside with one parent subject to the court’s power to order visitation for the other parent. Joint physical custody means that each parent will have significant periods of physical custody. Joint physical custody must be shared by the parents in a manner that ensures the child frequent and continuing contact with both parents. Joint physical custody does not require that exactly half of the child’s time be spent with each parent.

Before the court may make any orders regarding child custody and visitation in your divorce case, you must attend child custody mediation with Family Court Services. The mediation process is private and confidential. The mediator will assist you with discussing and coming to agreements related to the legal custody and physical custody of your children. If you agree on all or some issues related to the legal custody and physical custody of your children, the mediator will draft a Parenting Plan Stipulation and Order to be signed by all parties and the judge. Your Stipulation will be filed with the court. If you cannot agree with the other parent about the legal and physical custody of your children, the court will decide the issues for you.

Child Support

Family Code Sections 4050-4076 provide a statewide uniform guideline for making child support awards. The statewide guideline provides a formula for a tentative child support amount. That amount depends on the parents respective net monthly disposable incomes, the number of children for whom support is being determined, and the parents’ respective periods of primary physical responsibility for the children.

The statewide guideline directs the court to calculate the parties’ net monthly disposable income by ascertaining annual gross income, applying specified deductions (e.g. mandatory retirement, health insurance, union dues) to arrive at net annual disposable income, and dividing by 12 to obtain the monthly figure. If the monthly figure does not accurately reflect the actual or prospective earnings of a party at the time the support determination is made, the court may adjust the amount appropriately.

Gross income includes income from any source except income derived from (1) child support payments actually received or (2) any public assistance program for which eligibility is based on need. Gross income includes, but is not limited to, the following:

a) Income such as commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers’ compensation benefifts, unemployment insurance benefits, disability insurance benefits, social security benefits, and spousal support actually received from a person not a party to the order at issue;
b) Income from the proprietorship of a business (gross receipts less required expenditures); and
c) In the court’s discretion, employee benefits or self-employment benefits, taking into consideration the benefit to the employee or self-employed person, any corresponding reduction in living expenses, and other relevant facts.

The court may, in its discretion and consistent with the child’s best interest, consider a parent’s earning capacity instead of his or her actual income.

Call The Buckley Law Firm to discuss your child support case with Attorney Heather Sutton Buckley today. Whether you are requesting a child support order or responding to a request for child support, you need a lawyer to advocate for you and competently present evidence at your child support hearing.

Spousal Support – Temporary Support

While a divorce or legal separation action is pending the court may order either spouse to pay any amount necessary for the support of the other spouse. Temporary support may be ordered in any amount based upon the party’s need and the payor’s ability to pay. Arguably, the purpose of a temporary spousal support award is to enable the recipient to live in his or her accustomed manner pending finalization of the divorce. However, a court is often unable to provide fully for the financial needs of both parties. All the court is required to do is maintain the parties in as close to their pre-separation condition as possible pending the trial. Many courts use the statutory guideline amount displayed by state certified support calculation software (e.g. Dissomaster).

If the parties have children together, the amounts to be allocated for the children from the parents’ respective incomes under the statewide uniform child support guidelines will generally be deducted before the spousal support figure is calculated based on the remaining amounts.

Spousal Support – Long-Term Support

The court has wide discretion in setting the amount and duration of long-term spousal support. The court must apply, however, the criteria listed in Family Code section 4320. The court may not simply use the support guideline formulas. The court must base its award for spousal support on the following factors:

1) The extent to which each party’s earning capacity will maintain the standard of living established during the marriage;
2) The extent to which the supported party contributed to the supporting party’s attainment of an education, training, a career position, or a license;
3) The supporting party’s ability to pay, taking into account his or her earning capacity, earned and unearned income, assets, and standard of living;
4) Each party’s needs, based on the standard of living established during the marriage;
5) Each party’s assets, including separate property, and obligations;
6) The duration of the marriage;
7) The supported party’s ability to be gainfully employed without interfering with the interests of dependent children in his or her custody;
8) Each party’s age and health;
9) Documented evidence of any history of domestic violence between the parties, including emotional distress resulting from the violence;
10) The immediate and specific tax consequences to each party;
11) The balance of hardships to each party
12) The goal that the supported party be self-supporting within a reasonable period of time;
13) The criminal conviction of an abusive spouse when the court is reducing or eliminating a spousal support award;
14) Any other factors the court deems just and equitable.

Spousal Support -Support Modification

To obtain modification of a spousal support order, the moving party must show a material change of circumstances since the order was made. The circumstances referred to are the same factors the court is required to consider under Family Code section 4320 in making the initial long-term support order at the time of the divorce judgment. When the parties agree (stipulate) to a modification, no change in circumstances is required.

Division of Property and Debt

The first step in addressing property issues in a divorce is to characterize the individual property items held by the parties as community property or separate property.

Separate Property

Property acquired by either spouse before marriage and any “rents, issues, and profits” from such property are ordinarily the separate property of the acquiring spouse. Property acquired during the marriage but after separation is ordinarily the acquiring spouse’s separate property. Property acquired by gift or inheritance is separate property, regardless of when acquired.

Community Property

In most instances, property acquired during the marriage is community property. Except to the extent that an exception applies, the court must divide the community assets and liabilities so that net values received by the respective parties are equal. The parties may, however, divide their community estate by agreement in which event they are not limited by the equal-division requirement. The agreement must be written or made in open court.

Methods of Division

Under an in-kind division, each party is awarded a portion of a particular asset.

Under an asset distribution method, the court assigns one or more community assets to one party and one or more community assets to the other. To equalize what would otherwise be an unequal division, the court may order a payment by one party from his or her separate property to the other party.

The court may order an asset sold and the proceeds divided by the parties.

The court may order an asset held by the parties as tenants in common and retain jurisdiction to partition the undivided interests at a later date. The court may not order the property to be held in joint tenancy.

Business or Professional Practice

Although in-kind division is the judicially preferred method of dividing community property, that method is ordinarily not used when a family business is at issue. A business should be awarded to the operator spouse when he or she has qualities that are essential to its success and the other spouse does not.

Reimbursement

A party is entitled to reimbursement for contributions to the acquisition of community property to the extent that he or she traces the contributions to a separate property source, unless the party has waived the right to reimbursement in writing. Reimbursable contributions include down payments, payments for improvements, payments that reduce the principal of a loan used to finance a purchase or improvements.

MEDIATION

Mediation may be the most cost effective and amicable of the various approaches to finalizing your divorce process. A mediator is a neutral third party who may help you and your spouse come to agreements on child custody and visitation, child support, spousal support, asset and debt division, and more. Mediation is confidential. Contact The Buckley Law Firm today if you wish to mediate on some or all of the issues in your divorce.

PARENTAGE

For unmarried parents, parentage of their children needs to be established legally. If you would like court orders that establish your legal relationship with your child, you should contact Attorney Heather Sutton Buckley to discuss requesting a court order to establish parentage. Establishing parentage is necessary before custody, visitation, or child support may be ordered in your case. You may ask a judge for child support and custody/ visitation orders as part of your parentage case. If a person does not admit that he/she is the parent of your child, the court may order the alleged mother/father and child to submit to genetic testing.

Once a person is established as the father or mother of a child, he or she will have all the rights and responsibilities of a parent.

If a person is established as a legal parent of a child, that person must financially support the child. It is a crime to fail to support your child. A legal parent also has the right to obtain custody or visitation rights related to the child.

Establishing parentage is important to your child. It entitles your child to the same rights and privileges as those of a child whose parents are married including financial support, legal documentation identifying both parents, health and life insurance coverage from either parent, right to inherit from either parent, right to receive social security and veterans’ benefits, etc.

Call The Buckley Law Firm today to discuss your parentage action today.

RESTRAINING ORDERS

Domestic Violence Restraining Orders

Do you need protection from abuse or have you been served with a Request for Domestic Violence Restraining Order? Attorney Heather Sutton Buckley has extensive experience representing parties in domestic violence cases. Domestic violence is abuse or threats of abuse when the parties are or have been married or domestic partners, are dating or used to date, live or lived together, or have a child together, or when they are closely related by blood or by marriage. Abuse does not have to be physical. It can be verbal, emotional, or psychological.

If you are a parent and your child is being abused, you may also file a restraining order on behalf of your child.

If you do not qualify for a domestic violence restraining order, there are other kinds of restraining orders you may request, including:

* Civil Harassment restraining orders (for neighbors, coworkers, etc.)
* Elder or Dependent Abuse restraining orders
* Workplace Violence restraining orders

Call The Buckley Law Firm today to discuss your restraining order case.
 
GUARDIANSHIPS

A legal guardian has full legal and physical custody of a child and can make all of the decisions about the care of the child that a parent would make. A guardian may be anyone – relatives, friends of the family, or other people suitable to raise a child.

A guardianship of the estate is established to manage a child’s income, money, or other property until the child turns 18. A child may need a guardian of the estate if he/she inherits money or assets. In some cases, the same person can be the guardian of the person and of the estate. In other cases, the court will appoint two different people. The guardian of the estate must manage the child’s money, make wise investments, and manage the child’s property carefully.

If you would like to file a Petition for Guardianship of a minor child, call The Buckley Law Firm to schedule a consultation today.

STEP-PARENT ADOPTIONS AND TERMINATION OF PARENTAL RIGHTS

In order to begin a minor step-parent adoption, you need to file two cases at the same time. The first case will terminate the parental rights of one parent. The second case will request the adoption of the minor child. You should consult with a lawyer competent to handle petitions to terminate parental rights and step-parent adoptions. You should call Attorney Heather Sutton Buckley with The Buckley Law Firm today.