FAQ:

DISCLAIMER:
The information that has been provided herein is merely a general description of family law and juvenile law issues, summarized to help the reader better understand the procedures involved and some of the common remedies available to them. This information should not be used as a substitute for legal advice; an attorney should be contacted to discuss your case specific concerns and problems. The Law Office of Debra A. Smith offers free telephone consultations for persons with potential or pending legal matters. You can contact our office at (951) 780-5300 to arrange a prompt and informative consultation by telephone, or to schedule an appointment to meet with an attorney in person.

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DIVORCE, SEPARATION AND PROPERTY

• Divorce
• Property, Assetts & Debts, Retirement/Pensions
• Legal Separation, Annulment, Common Law

CHILD CUSTODY AND VISITATION

• Custody And Visitation
• Move Aways
• Grandparents And Non-Biological Parents
• What is a Juvenile Dependency Case?

CHILD SUPPORT

• Child Support In General
• The Child Support Formula
• Collection And Enforcement
  

SPOUSAL SUPPORT

• Spousal Support In General
• Determing The Amount And Length

DOMESTIC VIOLENCE

• Domestic Violence
• Remedies For Domestic Violence
• Suing For Domestic Violence

JUVENILE dEPENDENCY

• What is a Juvenile Dependency Case?
• My child has been Taken! What should I do?
• Do parents have to pay for Juvenile Court Services?

PRENUPTIAL AND POSTNUPTIAL AGREEMENTS

• Prenuptial (Pre-Marital) Agreements
• Postnuptial (Post-Marital) Agreements

DIVORCE

What is a ‘divorce’?

A divorce, sometimes called a decree of "dissolution of marriage", is a court order terminating a marriage.  It no longer exists. Unlike an annulment, which states that the marriage never existed, a divorce is the termination of a valid marriage.

Typically in the divorce the parties and/or court resolve all issues between them, such as division of property, child custody and visitation, and spousal and child support.

What is a ‘no-fault’ divorce?

Many states now permit "no-fault" divorces.  California is a no-fault divorce jurisdiction.  A no-fault divorce is one in which neither spouse blames the other for the breakdown of the marriage.  Both spouses agree that "irreconcilable differences" have arisen, and that neither time nor counseling will save the marriage; it simply will not work.  A "no-fault" divorce is a more humane way to end a marriage in those states that permit it.

Do I need to have an attorney to get a divorce?

Although it is legal to obtain a divorce without representation by counsel, it is always inadvisable because of the complex issues involved.

If you have been married only a short time, have no children and little property, it may seem financially advantageous to "do it yourself".  However, a good lawyer will always pay for themselves.  Timing can often be crucial in getting a divorce; an attorney can best advise you when it will make the most sense in terms of insurance, taxes, retirement benefits, support and division of property.

A skilled attorney can help you avoid personal and/or property matters that may cost you money down the road, and will represent your best interests in resolving any financial complications that may arise.  An attorney also can help avoid the possibility of one party claiming that they were taken advantage of because all facts were not disclosed.

What do I do if I believe my attorney is not adequately representing my interests?

You, as the client, have a nearly absolute right to discharge your current lawyer and hire another lawyer. You may do so whether or not you have a reason anyone else would agree with, or even for no reason at all.

The major exception to your absolute right to bring in new counsel would be if you tried to do so just before, or during, a trial or hearing.  In such circumstances courts tend to frown on substitutions because they recognize them as delaying tactics or gamesmanship.  As it takes time for a new lawyer to get up to speed, and could seriously prejudice the other side and waste judicial resources, courts permit last minute substitutions only for extraordinary good reasons, such as a conflict of interest.

While you have the right to fire the old and hire a new lawyer, it does not mean that you do not have to pay the old lawyer for the work performed. 

Can I evict my spouse from our home during the divorce proceedings?

Courts do not typically exclude one spouse from the residence during the divorce proceedings unless there is the threat of physical or emotional harm.  It can be done in that circumstance if the court believes the imminent threat is real, and if so, it will then issue a protective order, known as a residence exclusion order.

Economics play a role in these issues as well, as the courts recognize that it is far more expensive for the parties to maintain two separate households than to continue living together in the family residence until the divorce is concluded.

How long will it take me to get a divorce?

In California, a final judgment of dissolution can not be entered until at least six months after the date the respondent was served the divorce papers.  Normally, all matters must be either agreed upon, or ruled on by the court, before a final judgment can be entered as well.  Child custody, visitation, support and division of property and debts are all matters that have to be decided before the divorce is concluded.  These may require separate hearings, and if so, can lengthen the process past six months.  The back log of the court will also have some bearing on the length of time it takes to get divorced, particularly if hearings on contested issues are required.  It can take six to eight weeks to calendar a short court hearing, and over a year if an actual trial is required

What is a ‘bifurcation’ of marital status?

In a dissolution of marriage action, one spouse may want to get married before all the other issues are resolved (child custody, visitation, child support, spousal support, distribution of property, attorney fees, and personal conduct).  Under state law, one spouse may be able to have the issue of marital status taken separately from the other issues, in order to remarry, while providing additional time to work to resolve the remaining issues.  The mandatory six month waiting period must be passed before a bifurcation will be granted.  By "bifurcating" marital status from the other issues, a spouse can be returned to the legal status of an unmarried (single) person, while the case continues on.  The court retains the ability to resolve the remaining issues even though a final judgment of dissolution has been ordered.

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PROPERTY, ASSETS & DEBTS, RETIREMENT/PENSIONS

What is community property?

There are nine community property states - Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. In addition, Puerto Rico is a community property jurisdiction.

 These states generally regard as community property all property that has been acquired during the marriage, other than a gift or inheritance.  Even if one spouse earns all the money to acquire the property, all the property acquired is considered to be community property.  While there are a number of differences in each state, all states have special laws that operate on the theory that both spouses contribute equally to the marriage; thus all property acquired during the marriage, unless purchased from community funds, or by gift or inheritance, is considered to be the result of the combined efforts of both spouses.  In community property jurisdictions, both spouses equally own all community property (fifty percent owned by the husband and fifty percent owned by the wife).

What is separate (non-marital) property?

The property that each spouse brings into the marriage, that is, the property that they owned before the marriage, is considered to be "separate" or "non-marital" property. For the property to remain separate, the spouse must keep it apart from marital or community property; that is, they must keep it entirely in their own name.  Once the separate property has been commingled (mixed) with marital or community property, it becomes part of the marital property.

For example, consider a bank account with $10,000 in it owned by woman before her marriage.  This woman then marries and both she and her husband regularly deposit their respective paychecks into the account and periodically withdraw money to pay for their living expenses.  At the time of separation twenty years later, the bank account has $5,000 in it.  Since marital property has gone into the account by way of deposits of the paychecks, and marital or community debts have been paid from it, it’s impossible to trace the original separate property money from that of marital or community property. The result is that this bank account has changed from separate property to marital property, and the remaining funds will be split evenly at the time of divorce.

California has a separate property rule that says that all property brought into the marriage, and gifts and inheritance received by one spouse during the marriage, if kept separate and apart from community property, remain the separate property of the spouse that owns it.

What is the major difference between community and separate property?

The important distinction is that separate property is owned by the spouse who acquired it.  Upon divorce, separate property goes completely to the spouse who owns it. Conversely, community property is divided equally between the spouses in the event of a divorce.

How is the debt incurred during the marriage divided?

In addition to the property acquired during the marriage, debt incurred during the marriage is divided upon divorce.  Dividing the debt upon divorce determines who is responsible to repay the debt.

If both spouses co-signed for a debt, both spouses will probably be held to "joint and several liability" for the debt.  "Joint and several liability" means that each spouse is responsible for the entire debt, but also the spouses are jointly responsible for the debt. When a joint and several liability is divided, the debt is attributed to both spouses. Often, however, one spouse is made responsible for the entire amount of the debt.  This is generally offset by an "equalization" payment; that is, the spouse who pays the debt receives more property in the settlement than the spouse who is left free from the debt.

Debts that were incurred for the benefit of the family are joint and several liabilities of both spouses.  For example, housing, furniture, furnishings for the home, child care and children's doctor expenses would be considered as being incurred for the benefit of the family.  Since both spouses benefited from these family expenses, both spouses would be responsible for the repayment of these debts.

Expenses that were incurred solely for the benefit of one spouse, such as a vacation for one spouse, or a hobby of a spouse, may be left as the responsibility of the spouse who obtained the benefit, but normally, both spouses are equally responsible for the repayment of debt incurred during the marriage, even if only one spouse enjoyed the benefit.

Typically, the debts that one spouse brings into the marriage (separate or non-marital debt) remain the responsibility of that spouse.  In special circumstances, both spouses can be held responsible for separate (non-marital) debt.  When a joint tax return is filed, the Internal Revenue Service holds both spouses to joint and several liability for the tax.

Why must some Retirement Plans be divided in a special manner?

Federal law governs most retirement plans. Most retirement plans receive special tax treatment, allowing contributions to the plan to go in before taxes are paid, and further allowing the income on the money in the plan to accumulate without current tax. Upon divorce, a special order, called a "Qualified Domestic Relations Order" (QDRO) must be issued by the court and served upon the plan's trustee.  The QDRO defines how much of each payment is to go to each spouse.

How are Retirement or Pension Plans divided in a divorce?

The basic rule of retirement and pension plans is that all contributions or benefits accrued during the marriage are split equally between the parties.  Depending on the type of plan, the division can be a cash out, a roll over, or a portion of the retirement benefits when paid.

Deferred compensation refers to pension plans, 401K plans, IRAs and other retirement assets.  Such plans are divisible as part of a property settlement in divorce regardless of which party is named on the plan.  How they are divided depends on the value and nature of the asset. 

Types of Retirement Assets:  There are three main kinds of deferred compensation plans.

(1) There are "savings plans", such as IRAs, 401(k) Plans, ESOPs, Thrift Savings Plans.

(2) There are also "defined contribution" plans.  A defined contribution plan is one in which the value of the plan is determined in part by the amount of contributions made into the plan.  The money contributed may be invested and grow.

(3) There are also "defined benefit" plans.  With a defined benefit plan, an employee is provided a monthly payment starting at retirement age and ending at the end of their lifetime.

Dividing Savings Plans:  Savings plans such as an IRA are considered "cash" plans since they may be liquidated before retirement age.  They are divisible as part of a divorce. However, before any division may occur, a custodian of the account must receive and review a certified copy of the court order dividing the plan.  Additionally, the spouse receiving a portion of the plan must fill out documents relating to the manner of payout. IRA proceeds may be cashed out and paid directly to the receiving spouse or they may be "rolled" over into a new IRA in the name of the receiving spouse.  However, the tax consequences related to cashing out the plan may reduce the plan proceeds by more than thirty percent (30%) for taxes and early withdrawal penalties.

Valuing and Dividing Defined Contribution Plans:  The valuation of a defined contribution plan can be determined by multiplying the account balance by the percentage of vesting.  This is a relatively simple way to value the plan and determine marital value.  Generally, such plans may be divided currently with each party receiving one half of the current vested value.

Valuing and Dividing Defined Benefit Plans. With a Defined Benefit Plan, generally the participant's benefits cannot be liquidated prior to retirement age and the non-participant spouse may receive a retirement plan in their name representing their marital interest in the participant's plan. This plan is generally subject to the same terms and conditions of the original plan. Often, the Participant may choose a payment method from several options.  The chosen method will affect the amount or timing of the payments to both the participant and any receiving spouse. This may mean that retirement benefits are received when the original participant decides to retire, not when the recipient spouse retires.

Dividing Defined Benefit Plans:  A defined Benefit plan may be divided in one of two ways.

(1) Cashing Out/Present Value Calculation. First, a recipient spouse may elect to receive money effectively cashing out their interest in the plan. To cash out, a present value of the plan proceeds must be determined.  "Present Value" is the current value of a future benefit. In simple terms, a dollar that you receive today is more valuable than a dollar you receive next week since you may invest the dollar or deposit the dollar and accrue interest. Therefore, retirement benefits that are received at retirement age would have a lower value if paid in a lump sum currently. Often, a calculation of present value requires an actuary or accountant.

(2) Division of Future Benefit. Rather than using a present-day cash value, a defined benefit plan may be divided by dividing the future stream of income. This is accomplished by drafting a Qualified Domestic Relations Order (QDRO).  This is a court order which instructs a pension plan to pay an Alternate Payee (or former spouse) a portion of retirement benefits accrued by a Participant due to an equitable distribution agreement in a divorce.  With this method, the court retains jurisdiction until the benefits are paid, in case they are required to rule on a contested issue involving the matter.

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LEGAL SEPARATION, ANNULMENT, COMMON LAW

What is a ‘legal separation?’

The term "legal separation" is more colloquial than legal in nature.  It can involve a court order declaring that a couple is no longer living together, and that all the issues concerning the marriage have been resolved (child custody, child visitation, child support, spousal support, distribution of property, attorney fees, and personal conduct) with the exception of marital status.  Spouses who are separated are not free to marry since neither has been returned to the legal status of an unmarried (single) person.

What are the advantages and disadvantages of a legal separation?

Legal separation is usually pursued when the parties want to stay married for religious reasons, want the advantage of deductibility of spousal support payments for income tax reasons, want to maintain various insurance coverage's, or are do not want to wait the state statutory waiting period for termination of marital status. For some people, a legal separation is desired to set the parameters for dealing with one another while living separate and apart (especially with respect to continuing support obligations and child sharing issues) while maintaining the status of being married, and leaving the door open for a reunion or resumption of marriage. Legal separation is not a prerequisite to divorce (dissolution of marriage).

The disadvantages of a legal separation lie in the agreement of both parties and the marital status. Filing and serving an action for legal separation effectively separates the party’s property rights, but it can be denied by the responding party. With the simple check of a box on the response form, the respondent can prevent the petitioner from obtaining a judgment of legal separation. Legal separation is particularly unsuitable in cases involving domestic violence, as the abuser rarely agrees to “allow” the victim to legally separate from them.  

The parties continue to remain married to each other, even after the entry of a judgment of legal separation.  If the party later desires to become an unmarried person, they will have to amend their legal separation action (if it’s still pending), or worse, file an entirely new action for dissolution if the legal separation matter has already been concluded.

What is an ‘annulment’ and when can it be granted?

An annulment is a ruling by the court that puts aside a marriage as though it never existed.  The most common ground for annulment is fraud; that is, one spouse never disclosed to the other spouse information about such things as a previous marriage, a criminal record, an infectious disease, the inability to have children, or the desire not to have children.  In addition, an annulment might be granted because one party is already married, the parties are too closely related (i.e. incest has been committed), or one party is underage, and did not obtain appropriate parental consent.

What is a ‘common law marriage?’

Traditionally, when a man and a woman lived together and held themselves out to the world as husband and wife for a certain period of time (such as 7 or 14 years), the law of the state in which they resided recognized them as husband and wife despite the lack of the formal legalities of marriage.

Most states no longer recognize common law marriages. However, if a couple meets the requirements for a common law marriage in a state that does recognize common law marriages, and the couple then moves to a state that does not have common law marriages, the new state will usually recognize the "common law" marriage.  For example, if a couple lived in Texas, a state recognizing common law marriage, and met the requirements for a common law marriage, and then moved to California, which does not recognize common law marriage, California will recognize the couple as being married.

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CUSTODY AND VISITATION

What is the difference between custodial parent and non-custodial parent?

The custodial parent is the term that is used for the parent that has primary physical custody of a child.  Typically the child resides with the custodial parent.

The term non-custodial parent is used for the parent that has the child for a lesser amount of time. Typically the child does not reside with the non-custodial parent except during the time that the non-custodial parent exercises his/her visitation right with the child.

Typically, the child is either with the custodial parent or the non-custodial parent but not both. This arrangement comes as a result of the separation of the parents and both parents maintaining separate residences. The child resides with the custodial parent most of the time and the non-custodial parent spends time with the child during periods of child visitation. This way, both parents get to spend time with the child despite having separate residences.

What factors go into determining custody and visitation?

The primary consideration is, "What is in the best interest of the child?" The focus is from the viewpoint of the child as opposed to the wants and desires of one of the parents or the other.

As a general rule, it is in the best interest of a child to have continuing and frequent contact with both parents and the parent who is most supportive of this concept often becomes the custodial parent.  If one parent attempts to undermine the relationship between the child and the other parent, or tries to alienate the child from the other parent, that could be considered in providing a change of custody, or additional visitation, to the other parent.  The impact of a proposed move on a non-custodial parent’s relationship with his children may be considered a relevant factor in determining what is in the best interests of the child.

The best interest of a child is determined on a case-by-case basis upon consideration of all relevant facts concerning the circumstances of both parents.

Do the wishes of a child have any influence in custody decisions?

Some states (NOT ALL) allow children of sufficient maturity to have an impact upon the determination of custody and visitation by considering their desire to reside with one parent or the other. Judges will listen closely to the child's stated preference and his or her reasons. The child does not have the final say and it will be the judge's decision just how much consideration is to be given to the child's wishes, depending on age, maturity, and the quality of the reasons. The overriding question will always be: what is in the child's best interest?

Is homosexuality, or religion an important factor in determining custody?

The courts in California treat gay or straight lifestyles in the same light. In other words, being homosexual does not automatically deny you child custody. The courts apply the same criteria, just as with a heterosexual parent -- how well the parent can meet the needs of the child involved and what is in "the best interests of the child".  If the gay parent measures best, then custody could be awarded to that parent, male or female.

Expert witnesses – psychiatrists, psychologists – may be a source of help in the courtroom. Credentialed professionals in their respective fields can give the judge an opinion as to who will better meet the needs of the children. Often, this means home evaluations and psychological evaluations about the fitness of a parent, the stability of the home environment, and the child’s emotional ties to each.

Religion, in and of itself, does not enter into the determination, theoretically. Whether one parent practices a religion or not is normally not a factor in deciding custody, unless there is evidence of potential or present harm to the child, such as if the parent engages in unusual "cult" activities or has an unorthodox lifestyle that might likely put the child in danger or be detrimental to the best interest of the child.

What happens when visitation rights are frustrated?

Frustration of visitation occurs when the custodial parent takes steps to prevent the non-custodial parent from having contact with the child. This could be an innocent isolated occurrence, such as taking a child to a doctor to receive medical attention at the time the non-custodial parent is to arrive at the residence to pick-up the child for a scheduled visit. On the other end of the spectrum, when one parent "disappears" with the child, this could be a kidnapping or abduction, which would result in criminal prosecution.

Frustration of visitation can be grounds for modification or termination of custody rights.  The courts frown upon frustration of visitation more than just about anything else, with the possible exception of domestic violence.

Can visitation be restricted, or denied to a parent all together?

Yes, but this occurs only in extreme cases.  When one parent has abused or neglected a child, placed the child in dangerous situations, threatened removal of the child from the state, or abuses alcohol or illicit drugs, this parent's right of visitation can be denied and the other parent may be awarded sole legal custody and sole physical custody.  Denial of visitation is not the norm and strong evidence must be presented in a court hearing to deny a parent from having any visitation rights.

In less extreme cases, visitation could be allowed but subject to certain restrictions.  For example, a court could order an alcoholic or drug addicted parent to refrain from use of alcohol or illicit drugs in the presence of the child and submit to regular alcohol and drug tests to show they are "clean."  A parent who has been accused of neglecting a child in the past, or threatening to take the child away from the other parent, may have visitation restricted on the basis that it take place only when supervised by a qualified third-party (so called "supervised visitation").  Supervised visitation is preferred to denial of visitation because there is a strong public policy to promote continuing and frequent contact between the child and both parents.  Having the visit supervised is better than completely denying the non-custodial parent the ability to spend time with their child.

If child support is not paid, must visitation be allowed?

Yes. The issues of child visitation and child support are separate issues.  Failure to pay child support is typically not sufficient grounds to stop the right of the non-custodial parent to visitation with their child. Visitation is typically ordered by a court in the best interest of the child to promote love and affection with both parents - custodial and non-custodial alike.  Child visitation is vital to the non-custodial parent so that a meaningful relationship between child and parent can be established or maintained.  On the other hand, child support is based upon the financial needs of the child and the ability of both parents to provide for the child's financial needs.  Thus it is typically treated as a separate issue, the failure of one not having a determinative effect upon the other.

The custodial parent must continue to allow visitation with the child despite failure of the non-custodial parent to pay child support.  Although this may be very frustrating to some, if the custodial parent "frustrates" the right of the non-custodial parent to visit with the child, the non-custodial parent could ask the court to change custody of the child based upon this frustration of visitation, even though they may be delinquent in their payment of child support.

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MOVING AWAY

What if the custodial parent wants to move away from the non-custodial parent?

Where the relocation distance is small, there might not even be a material change in circumstance upon which a parent could move the court to modify an existing custody and visitation order.  Typically a material change of circumstance is required before a court will modify an existing custody or visitation order; a move across town ordinarily is an insufficient basis upon which the existing order would be changed. Although the relocation may make the visitation exchange more difficult, it may remain practical to comply with the existing order, so no change would be made.

Where the relocation distance is great, the case becomes more complex.  The primary factor of best interest of the child continues to be considered along with facts such as (1) the existing custody and visitation arrangement, (2) the attachment and support of the non-custodial parent and other relatives, (3) the child's ties to the community, school, church, and friends, and (4) the child's desires and wishes.  A custodial parent must get the written consent of the non-custodial parent or a court order based upon a finding of the court that it is in the best interest of the child to allow the move. Often, a custodial parent can relocate if there is a valid reason for the relocation and the move does not result in harm to the child, although restricted contact with the non-custodial parent is usually considered to be contrary to the best interest of the child.

The ability of the child to have continuing and frequent contact with both parents, without a detrimental effect due to the relocation, is the primary consideration for a court in modifying an existing order to allow the relocation. The modified order of the court could provide additional time with the non-custodial parent during summer and other school recesses, and require the custodial parent to pay the additional transportation expenses incurred in facilitating the visitation exchange. The impact of a planned long-distance move on a non-custodial parent’s relationship with their children will be considered before the children can be moved out of the state.  If the move-away will detrimentally harm the relationship between a child and a parent, together with other factors, it may be sufficient to justify a change in custody to the non-moving parent.

Custodial parents who move away with the child without providing notice to the other parent may not only face a change in custody to the other parent, but also criminal charges of kidnapping. Before any move is entertained, the non-custodial parent should be informed of the impending move and an effort made to reach a mutually acceptable parenting plan based upon the proposed location of both parents.

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GRANDPARENTS AND NON-BIOLOGICAL PARENTS

Do grandparents have visitation rights?

The simple answer is "yes, but". The "but" is due to the limitations under which grandparent visitation can be ordered by a court.  Grandparents typically may join an action between the parents, or even start an independent action of their own for the purpose of obtaining a court order for visitation with grandchildren.

The problem is that the grandparent may have to prove to the court that harm will occur to the grandchild in the absence of visitation.  Since it is typically viewed that parents have a fundamental right to the care, custody and management of their child, only a compelling interest would be sufficient to allow a state (via its courts) to interfere with the parent's right to raise their child without such interference. This may be difficult to prove, since the grandparent has the obligation to prove that harm will result to the child's health and welfare should the court not order the parents to allow visitation with the grandparent. This is a difficult, yet not impossible burden of proof to sustain.

Any visitation granted to grandparents, naturally takes time away from one of the parents, and is usually awarded on a minimal basis.

Can grandparents be awarded custody of their grandchildren?

With respect to custody, while either parent is alive, there is typically a preference that custody of a child be with the parent. In the event of the death of one of the parents, the other surviving parent ordinarily has a preference in law for the custody of a child. When both parents are dead, ordinarily custody is preferred to go to a blood relative, providing a grandparent with a viable opportunity to show the court that it is better for the child to be in their custody as opposed to other blood relatives.  Courts will consider the age, health, and financial ability of the grandparent(s) to support and care for a child.

Can non-biological parents be awarded custody?

Courts in the past have usually awarded custody to someone other than the biological or natural parents in cases of abandonment or chronic abuse. This has begun to change in recent years.  Judges are awarding custody to anyone with an interest in the child (e.g., stepparents, godparents, aunts, uncles, surrogates) who can introduce evidence as to why they would be the better custodians than the natural parent(s). Again, the court’s guiding principle will be the welfare of the child.

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CHILD SUPPORT IN GENERAL

What is child support?

Child support is a payment by one parent (often the "non-custodial parent") to the other parent for the support of their common child.  It is in the best interest of a child for both parents to be obligated to pay for the support of their child.  An order for child support transfers the income/wealth from one parent to the other so that the combined incomes/wealth of both parents is available to use for the support of the child.

When can a child support order be changed or modified?

An order for child support can be changed or modified any time there is a "material change in circumstances" from the time that the existing child support order was issued.  A material change in circumstances can take many forms.  The change can be the result of changes in the parent's financial situation - such as appreciable difference in the amount of income earned, loss of a job, or a change in the amount of time spent with the child.  The material change in circumstance can be the result of a new situation for the child, such as large medical expenses, the need for special education, or other unexpected requirements.  A child support payment could be modified by stipulation between the parents (as long as guideline support factors have been accounted for) or by a noticed court hearing.

Is child support suspended during summer vacations with the non-custodial parent?

No, unless the parents agree to a different amount during vacation periods when the child(ren) are away for long periods of time with the non-custodial parent or the order says otherwise.

Normally, the time share calculation made at the time of the making of the support order would have already taken the summer vacations and holidays into consideration.  The primary custodial parent must continue to maintain the residence in which the child lives, even during visitation periods.

What are the tax consequences of child support?

For federal income tax purposes, child support payments received are not income, they are tax free.  The parent who makes the payments cannot deduct the amount as an expense on his or her federal tax return.  However, sometimes parents may negotiate higher "alimony", which is deductible by the parent making payments and taxable income to the receiving parent, to generate tax savings.

According to the Federal Internal Revenue Code, " ... any payment which theterms of the divorce or separation instrument fix (in terms of an amount of money or a part of the payment) as a sum which is payable for the support of children of the payer spouse" is not considered alimony or a separate maintenance payment.  Thus, such payments are a tax neutral event (they are non-taxable to the person receiving them and non-deductible to the person making them).

Federal Income Tax Regulations state "A payment is fixed as payable for the support of a child of the payer spouse if the divorce or separation instrument specifically designates some sum or portion (which sum or portion may fluctuate) as payable for the support of a child of the payer spouse. A payment will be treated as fixed ... if the payment is reduced (a) on the happening of a contingency relating to a child of the payer, or (b) at a time which can clearly be associated with such contingency. ... For this purpose, a contingency relates to a child of the payer if it depends on any event relating to that child, regardless of whether such event is certain or likely to occur. Events that relate to a child of the payer include the following: the child's attaining a specified age or income level, dying, marrying, leaving school, leaving the spouse's household, or gaining employment."

Thus, under Federal income tax law, regardless of the label that is used, most child support payments are a tax neutral event, while most support payments provided to the other (former) spouse are deductible to the payer and included in the taxable income of the supported spouse.

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THE CHILD SUPPORT FORMULA

How is the amount of child support determined?

Federal law now requires that the amount of a child support payment be set in accordance with a standard guideline.  Having a guideline prevents widely different amounts of child support being ordered from courtroom to courtroom.  Guidelines provide an objective basis for the determination of the amount of support to be paid.  As a result, most states have established formulas that are used to determine the amount of the payment from one parent to the other.

What income is included in the typical formulas?

The formula is based on the respective net incomes of the parents.  Federal and state income taxes, Social Security and Medicare tax, health insurance, union dues and other mandatory expenses are subtracted from a parent's gross income to arrive at their net income.

How do you show income?

The court can require documentary evidence, such as pay statements, profit/loss statements of sole proprietorships, and tax returns, to be produced and certified as true under penalty of perjury.  The intent is that all income received by a parent will be considered when their net income is being calculated.

If you suspect that a party is hiding income -- such as by not reporting "cash" or "off the books" income -- it may be difficult to prove, but an experienced lawyer usually is able to help you figure out how to do so.

What other items do formulas consider?

Time Spent With Child:  Besides the respective net incomes of the parents, the amount of time each parent spends with the child is factored into the formula.  Since a parent who spends more time with the child is most likely incurring greater expense in raising the child, the "custodial parent" (a term that is often used in association with the parent who has the physical custody and responsibility the majority of the time) is considered to spend more money on the child than the "non-custodial parent" (the parent without primary physical custody).  Since the custodial parent spends more of their income on the child, the child support formula includes this factor in determining the amount of child support to be paid by one parent to the other.

Number of Children:  Along with the amount of time that a parent spends with a child, the number of children in common between the parents is often considered. The theory is that certain fixed expenses do not rise with the number of children for whom support must be provided, so the actual amount of support per child is lower given the greater number of children in common.

Special Circumstances:  In addition, special circumstances may require a greater amount of child support to be paid.  Special circumstances, such as extraordinary medical expenses, special educational needs, travel expenses incurred for child visitation, uninsured catastrophic losses and the cost of basic living expenses for children from another relationship, can affect the amount of guideline child support that is to be paid.

Since there are a number of factors that go into the formula to determine guideline child support, California has an approved computer program designed specifically for determining the amount of child support.  Use of the computer program to determine the amount of child support is a very objective method for determining child support.  Proper analysis of all the factors can have a dramatic effect upon the determination of the guideline child support amount, therefore, seeking a lawyer's professional advice can be well worth the cost.

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COLLECTION AND ENFORCEMENT

What efforts can be taken to collect child support from the parent who does not pay?

In the situation where one parent does not cooperate in sharing the responsibility for child support, the controversy should be submitted to a court.  The first step is to obtain an order for the payment of child support.  Further action in the court for the purpose of collecting child support can be taken if the obligor parent fails to comply with the court order for payment of child support.  Like other enforcement of judgment actions, the available remedies range from simple to complex proceedings.

Wage Assignments:  The most common "tool" used to collect child support payments that are not voluntarily made, is through a wage assignment order.  A wage assignment order is an order of the court directing the employer to deduct the child support payment from the earnings of an employee-obligor parent and then make this payment directly to the obligee parent.  Violation of a wage assignment order could result in the employer becoming responsible for such payment.  Assignment orders can be obtained through a relatively simple court procedure. Once obtained, the wage assignment order must be served upon the employer of the obligor parent before it becomes effective.

Enforcement Action: When the obligor parent continually fails to make support payments, the total amount of the "arrearage" (payments due and owing but not yet paid) can be set as a judgment for further enforcement proceedings.  Interest on the arrearage is often included as part of the judgment, as interest continues to accrue on outstanding orders for support.  The expense of an enforcement action to collect a judgment is justified as the amount due increases.  When the obligor parent has income or property, there is financial incentive to pursue enforcement efforts and, with the assistance of professionals, well worth the effort and expense.

Attachment or Levy:  Child support can also be collected through other procedures. For example, if the obligor has money in a bank, a valuable automobile, an investment in a mutual fund, or an interest in a property in the possession of a third-party, an attachment or levy can be executed.  When executing a levy or attachment, care must be taken since some property is exempt.  In a levy or attachment proceeding, the court can have the property of the obligor parent "seized" or taken away and given to the obligee parent.  Although an obligor parent may challenge the levy or attachment in court ("claim an exemption"), it can be very effective in obtaining payment of a child support judgment. Strict adherence to the established rules for levy and attachment is required to protect an obligee parent from an allegation theft of property.

What other collection remedies are available?

The following are other alternative courses of action:

Department of Child Support Services (DCSS):  Many states have empowered local government agencies to collect child support for an obligee parent.  Under law, the local agency may (or must) take action to collect outstanding child support arrearages. Resources, such as parent locator services, and a staff of attorneys/clerks, are available to local agencies to assist in collecting court ordered child support.

Tax Refund Intercepts:  Local agencies have the authority to follow a procedure to "intercept" federal or state tax refunds which otherwise would be paid to the obligor parent.  Also, local agencies can provide information about child support arrearage to consumer credit reporting agencies who are then required include such information in the agency's report.  Although local child support enforcement agencies can be slow, because of the additional resources available to them, their assistance should be requested as part of the overall effort to collect a child support arrearage.

Real Estate Liens:  A "judgment lien" based on child support arrearage can be recorded against real estate owned by the obligor parent in the county in which the property is located.  When such a lien is recorded, the real property becomes security for the payment of the judgment.  A judgment lien for child support is then paid from the proceeds of the sale when the property is sold.  A judgment lien against real property should be established whenever an obligor parent owns real property that has an equity value.

Contempt of court:  A more complex proceeding is an action for contempt.  Since payment of child support is a direct order by a court to pay, failure to pay is treated as a contempt of a court order.  In this proceeding, which is quasi-criminal in nature, the obligee parent must prove to the court that the obligor parent had the income from which support could have been paid.  Although a contempt proceeding is complex, it is certain to gain the attention of the obligor parent.

Since collection of child support can be difficult, professional assistance is often needed.  Child support judgments can easily reach many thousands of dollars a year, and the cost of professional assistance is justified, since those who are familiar with collection procedures often obtain more favorable results.

What is the parent locator service?

The Federal Parent Locator Service (FPLS) obtains and transmits information about the location of any absent parent when that information is to be used for the purpose of enforcing child support.  The service is an arm of the Department of Health, Education, and Welfare.  The FPLS also can be used in connection with the enforcement or determination of child custody, visitation, and parental kidnapping. There are also state parent locator services in some states.

Recent federal legislation (Personal Responsibility and Work Opportunity Reconciliation Act of 1996) also expanded the FPLS’s services to include a National Directory of New Hires and a Federal Case Registry of Support Orders.  FPLS will match data between the New Hire and Case Registry every two days and report matches to states within two days.

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SPOUSAL SUPPORT IN GENERAL

What is spousal support?

Spousal support is payments made from one spouse to the other during a separation or a divorce (dissolution of marriage).  The payments are to enable the lesser earning spouse to support themselves, either partially or fully, until such time as they are able to provide for themselves.  It is also known as alimony.

Can medical insurance be included in spousal support?

A spouse is prohibited from changing or canceling medical insurance during the pendency of the divorce case.  Once the final judgment has been entered however, it may be impossible for the divorced spouse to continue receiving health insurance benefits from the policy of their spouse.  In a case where the supported spouse depended upon the other spouse for health insurance during the marriage and does not have sufficient means to obtain such insurance, the court may require the payer spouse to continue to provide medical insurance, or alternatively, the amount of alimony can be increased so that the supported spouse will have the ability to purchase their own medical insurance.

It should be noted that an employer sponsored group health insurance plan can be required under Federal law to offer continuation of benefits at the group insurance rates to the supported spouse for up to three years after the marriage has ended.

 How can I obtain a tax deduction for a support payment?

In order for a support payment (other than any child support payment) to be eligible for an income tax deduction by the payer spouse, the following requirements must be met:

(1) The payment must be made in cash (including checks and money orders payable on demand, but excluding transfers of services or property)

(2) The payment must be made under either

            (a) a divorce or separation instrument (a court order or decree of divorce or separation or a written instrument incident to such a decree or a decree which requires a spouse to make payments for the support or maintenance of the other spouse), or

            (b) a written separation agreement between a husband and wife who are living apart requiring periodic payments because of the marital or family relationship (whether or not the agreement is a legally enforceable instrument)

(3) The spouses do not file a joint income tax return

(4) The written instrument or agreement does not provide for other tax treatment, and

(5) The payer has no liability to continue to make payment after the death of the other spouse.

Any child support included as part of an alimony, family support, separate maintenance or spousal support payment is not eligible for a deduction by the payer and is not taxable income to the supported spouse according to Federal income tax rules.

Can a court order spousal support payments during a divorce or separation case?

Yes. While a divorce, dissolution of marriage or legal separation is pending, a court may order one spouse to pay "temporary" support to the other spouse.  Such an order, issued while the lawsuit is pending, is often called a "pendente lite" order (a Latin term meaning "pending the lawsuit") or "temporary support order".

Can a court order spousal support payments after divorce or separation? 

Yes. As part of the judgment of dissolution or legal separation, a court may order one spouse to pay the other support.

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DETERMING THE AMOUNT AND LENGTH

How does a court determine the amount of spousal support to be paid?

Subject to specific rules, standards and precedents in each state, a court sets the amount of spousal support it determines to be just and reasonable to be paid for a period of time, typically based upon the standard of living established during the marriage, and after taking into consideration the facts and circumstances with respect to the spouses.

What factors can be used to determine the amount of support?

Some of the factors (which vary from state to state) used to determine the amount of spousal support to be paid by one spouse to the other include:

• The ability to maintain the standard of living established during the marriage, considering the respective earning capacities of the spouses
• The marketable skills of the supported spouse, the job market for those skills, the education or training needed to develop marketable skills, and the need for retraining or education to acquire other, more marketable skills or employment
• The impairment of present or future earning capacity due to periods of unemployment during the marriage devoted to domestic duties
• The contribution of the supported spouse to enable the other spouse to the attain education, training, a career or a professional license
• The ability of the payer to make support payments taking into account his/her earning capacity, earned and unearned income, assets, and standard of living
• The needs of each spouse based on the standard of living established during the marriage
• The obligations and assets of each spouse
• The duration of the marriage
• The ability of the supported spouse to be employed without unduly interfering with child care responsibilities
• The age and health of the respective spouse

How long will a spouse have to pay (or be able to receive) spousal support?

Depending on the particular circumstances, spousal support is ordered to be paid during the time period that the supported spouse is seeking education, training, and marketable job skills in order to establish a career or otherwise become self-supportive. Consideration of the responsibility for providing child care during the early years of a minor child factors into this determination.

If the supported spouse is of advanced age or suffers from a medical problem which would prevent this spouse from obtaining a career, thus preventing them from becoming self-supportive, spousal support could be "permanent" (but still subject to future modification based upon a material change in circumstances).

If there was a long term marriage, (a marriage of ten years or longer is considered a long term marriage), a court may have continuing jurisdiction over the issue of spousal support.  With continuing jurisdiction, a court may change the amount or duration of support payments from one spouse to the other any time in the future, although a material change in circumstances is usually necessary.  In addition, typically a court order for spousal support terminates upon the death or remarriage of the supported spouse.

If a court does not have continuing jurisdiction over spousal support, it can not later modify or terminate the support payments regardless of any changes of circumstances or other unforeseen events.

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DOMESTIC VIOLENCE

What is domestic violence?

Domestic violence is abuse between family members or related persons.  Domestic violence may come in many forms: actual physical abuse, threats of physical abuse, emotional abuse, threatening telephone calls, disturbances at a place of employment, stalking, and other forms of dominance and control.  Domestic violence is distinguished from other kinds of abuse because of the special relationship between the persons.  Domestic violence cases may be treated differently than cases of civil harassment because of the interpersonal relationships involved.  At least one of the following relationship tests typically must be met in order to qualify a matter as a domestic violence case:

• the parties are married now or were formerly married to one another
• the parties are related by blood, marriage or adoption
• the parties are currently or were formerly living together
• the parties have now or used to have a dating or engagement relationship
• the parties have a minor child in common

In California, there does not have to be actual physical violence between the parties; emotional abuse, psychological abuse, or fear of physical harm is sufficient to qualify as domestic violence.

What is the difference between domestic violence and civil harassment?

Domestic violence cases are a special category of civil harassment.  Civil harassment occurs when one person annoys, harasses, injures, or threatens another person.  A civil harassment case does not have to meet the relationship test established for domestic violence; it is usually an action between neighbors, previous friends, or workplace associates.  Domestic violence cases can often be more volatile than civil harassment cases.  Because of the special relationship between the parties, a domestic violence case often results in greater harm caused by one person against the other.

In the event of domestic violence, what should a person do?

First and foremost, it is important for the person to get away from the aggressor. In the event of domestic violence, immediate police assistance should be requested. Often, local police officers and sheriffs have received special training with respect to domestic violence and can be extremely helpful to a victim. In addition to local law enforcement personnel, city and district attorneys may be very helpful not only in prosecuting the crime, but also in providing referrals to other local assistance; emergency shelters such as "safe houses," counseling, and legal assistance.

A victim of domestic violence should never try to "go it alone."  The usual profile of an abusive person is an aggressive, dominant personality that is both manipulative and controlling.  The victim of domestic violence is often very vulnerable and can be persuaded from attempting to obtain assistance.  Outside assistance is often essential in protecting a victim of domestic violence.

A victim of domestic violence can seek help through one of the many services offered by the community, such as battered women’s shelters, counseling programs and transitional living centers.  They can also seek help through the courts by way of restraining orders and residence exclusion orders.  Lastly, they can contact the police and have the abuser arrested.  The proper authorities will then prosecute the abuser and either provide services such as anger management counseling and probation, or incarcerate or otherwise punish the abuser.
 
As a final word on this subject, a victim of domestic violence should never shy away from requesting assistance because of a perceived stigma attached to being a victim of domestic violence.  Domestic violence pervades all socio-economic classes.  A "rich" person is just as likely to be a victim of domestic violence as a "poor" one.  Whatever your background, if you’ve been abused, get assistance with a domestic violence situation immediately, for your own health and safety, as well as the health and safety of those close to you.

HAD ENOUGH?  Debra A. Smith has written a comprehensive, interesting and easy to read book about the subject of domestic violence within relationships. The book details what is involved in domestic violence, why victims stay, and how to get out of an abusive relationship, both emotionally and physically. The book is packed with real life stories and examples of domestic violence, including the all pervasive emotional and psychological abuse. To order a copy, see the order form on the home page of this site.

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REMEDIES FOR DOMESTIC VIOLENCE

What remedies are available to prevent further domestic violence?

Upon petition to the court, temporary or lengthy restraining orders (also referred to as "protective orders") may be issued. Orders issued in a domestic violence case may include:

• that the restrained person shall not contact, contact, attack, strike, threaten, batter, telephone or otherwise disturb the peace of the protected person
• that the restrained person shall immediately move from the residence shared with the protected person
• that the restrained person shall stay at least 100 yards away from the protected person, the protected person's residence, and the protected person's place of employment
• that the restrained person is ordered to participate in batterer treatment counseling and to return to court with proof of completion of such a program
• that the restrained person is prohibited from purchasing a firearm

Other people, such as children and other family members who reside in the same residence, may be included with the protected person so as to reduce the potential for harm by the restrained person.

Is domestic violence a crime punishable under criminal law?

Whether the domestic violence is a crime depends upon the particular circumstances, as well as the laws of the state in which the act or acts occur.  Often domestic violence is both a crime subject to criminal punishment, and a civil wrong subject to restraint upon personal conduct and an award of a money damages.

It is a frequent pattern in domestic violence cases for the victim to be abused, call the police, press charges, then reconcile with her abuser, and seek to have the charges dropped, only to have the entire pattern repeated.  Because of this, in some local communities and states, domestic violence is now prosecuted as a crime by city and district attorneys, even without charges being brought by the abused person, and even without his or her assistance.  In these localities, a criminal case may be brought against the person causing the harm without a complaint being made by the victim.

Domestic violence is considered a crime against the community and the "state" prosecutes all harms against the community.  Such localities try to "get the word out" that local authorities will not tolerate domestic violence and that offenses will be prosecuted with or without the assistance of the victim.

 What is the difference between a temporary restraining order and a restraining order after hearing?

Restraining orders and protective orders are examples of orders issued by a court restraining the conduct of a person and protecting a victim from the activities of an abusive person.

A "Temporary Restraining Order" is ordinarily issued after an "ex parte appearance" (an appearance in court by one party without the other being present).  The Temporary Restraining Order is an order of the court that states that a person is to refrain from particular acts and to stay away from particular places.

A Temporary Restraining Order becomes effective only once it has been served on the restrained person (so they have notice and can seek an opportunity to be heard.  In addition to the Temporary Restraining Order, an "Order to Show Cause" hearing is scheduled so that both parties will have the opportunity to explain to the court the reasons why a more "permanent" restraining order should or should not be issued.  Temporary Restraining Orders usually can be issued the same day they are requested and remain in effect until the scheduled hearing on the Order to Show Cause. The Order to Show Cause hearing is typically scheduled to occur within 15 or 20 days.  

A Restraining Order After Hearing is a permanent restraining order.  Once the Temporary Restraining Order and Order to Show Cause have been served on the person to be restrained, a hearing will be held to determine whether there is sufficient cause for a court to issue a more "permanent" restraining order.  Based upon the evidence presented at this hearing, a court can order the restrained person from engaging in certain acts and from being in certain places (such as the victims' residence and place or employment).  After a hearing, a Restraining Order can remain in effect for a period of time, even several years.  This Restraining Order After Hearing can also be renewed for additional periods of time upon application by the protected person, and its duration may become permanent.

What is the penalty for violation of a restraining order?

Violation of a restraining order, whether a temporary order or a restraining order after hearing, is a contempt of a court order.  The restrained person found in violation of a valid restraining order may be immediately taken into custody and taken to jail.  In addition, the offender can be charged with a misdemeanor or a felony crime, and could be sentenced to serve time in jail and to pay a fine for the offense.

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SUING FOR DOMESTIC VIOLENCE

Can I sue my partner for my injuries?

In California, the courts allow an injured party to sue the perpetrator for recovery of damages suffered as a result of domestic violence.  In the past, family members were prohibited from suing each other for injuries because it was believed that allowing family members to sue each other would lead to a breakdown of the family. Today, however, many states recognize that if family members have committed torts against each other, the relationships are already suffering from breakdown. In California, partners may sue each other either during the marriage or after they have separated.
            Being married to the perpetrator however, is not a requirement of suing for damages; boyfriends, girlfriends, live-in partners, or persons with whom one has a child can avail themselves of these remedies as well.

How long after the injury do I have to sue?

        In California, the law allows a civil action to commence as long as three years after the last act of domestic violence, or three years from when an injury or illness is discovered to have resulted from an act of domestic violence.
            Continuing acts of domestic violence may extend the period in which a person may bring a lawsuit for damages against their partner.  In a relationship that encompasses a continuing pattern of domestic violence, it is the date from the last act of domestic violence that is determinative of when the three year period begins to run, not necessarily the date of when the sued upon injury actually occurred.

What kind of injuries can I sue for?

Tort law in the area of domestic violence continues to evolve. Some of the more common types of claims may include

• Assault and Battery
• Defamation
• False Imprisonment
• Intentional, Reckless or Negligent Infliction of Emotional Distress
• Infliction of a venereal disease
• Wrongful Death

The most common domestic violence tort sued upon is assault and battery.  Assault is defined as an act by one person that creates a reasonable fear of imminent harm in the mind of another, when the one threatening has the apparent ability to cause bodily injury to the other person.  A battery is defined as any intentional, offensive, nonconsensual touching.  This can range from a brutal beating to a shove or a tap in a rude, insolent, or angry manner.
Although the most common domestic violence tort that is normally sued upon is assault and battery, the tort most often committed is the infliction of emotional distress. An action brought for the infliction of emotional distress usually accompanies a claim of bodily injury that is so traumatic for the victim that it results in emotional and psychological damages needing treatment.  In cases of infliction of emotional distress, the court may require physical manifestations of the emotional distress, and/or require that the abuser's conduct to be "extreme and outrageous."  Courts use this criterion, like the physical manifestation requirement, to deter lawsuits without merit.  For example, a woman might bring suit for infliction of emotional distress against her husband of five years who hit her once while they argued--clearly a battery, but not sufficiently outrageous to cause severe emotional distress.  Emotional distress normally requires proof of actual psychological or emotional damages to the victim.

How can I collect against my partner for a damage award?

            Collection of a judgment for damages brought about by domestic violence is similar to collection of any other type of judgment.  A defendant’s assets may be levied upon, their wages may be garnished, or their property can be taken and sold.  If the judgment is against your spouse, you also have the availability of collecting the judgment from the spouse’s share of community property during a divorce.  In these type cases, an injured spouse can file for dissolution, sue for personal injury damages, and if successful in the civil suit, can take the entire community property estate of the parties in compensation for the injuries caused by the abusive spouse.

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JUVENILE DEPENDENCY

WHAT IS A JUVENILE DEPENDENCY CASE?

Juvenile Dependency law involves children that allegedly have suffered physical or emotional harm, that have been abandoned by their parents or caretakers, or that have special and unique problems that the parents or caretakers cannot deal with. It also deals with the adoption of children that cannot be returned to their parents, or that have been abandoned by their parents.

The law says that the court has to protect the children and look out for their best interest. The court tries to keep children with their families and make the families stronger. The court will take a child from the parents if it believes it has to do so for the child's well being and safety. If the court takes a child from the home, it will work with the family and the child to improve the home conditions so the child can move back home.

If the court takes a child away from the family, the court will make sure that someone has custody of the child. The child will get the care and discipline it needs to be safe and protected.

HOW DO DEPENDENCY CASES USUALLY START?

Dependency cases are normally initiated by Child Protective Services (CPS) workers who have received a report of potential abuse or neglect to one or more children. These reports usually come from anonymous callers, from law enforcement officers, from mandated reporters such as doctors or teachers, or from concerned relatives or acquaintances of the child.

When there is a report to a social service agency of a child that has been abused, abandoned, neglected, or has such special needs that the parent or caretaker is unable to provide care, an informal investigation is begun. Depending on the outcome of the investigation, the child may be removed from the home and placed in foster care, or with a relative, until the matter can be heard in the juvenile court.

MY CHILD HAS BEEN TAKEN! WHAT SHOULD I DO?

If your child has been removed from the home by law enforcement or social services, it is important to remain calm, to gather as much information as you can concerning the reasons for the removal, and to contact an attorney to assist you at your earliest opportunity. An attorney can assist you in efforts to have the children returned to the home, or placed with a relative at the earliest point possible.

Children that are removed from the home are normally placed in a foster home where they are provided shelter and care by licensed and approved caregivers. Although the removal can be a very traumatic event, children are typically well cared for and substantial efforts are made to ensure that the children are not unduly frightened or traumatized by the temporary relocation. The removal is often harder on the parents than on the children, and the system may seem to be agonizingly slow when parents are seeking the return of their children.

WHAT CAN THE COURT DO WITH MY CHILDREN?

The juvenile court has broad authority in juvenile dependency cases. It can remove children from their homes, order their placement with relatives or in foster care or group homes, terminate parental rights, create new parental rights, and join various agencies to provide needed services.
Whenever the court decides to remove a child from his or her home, placement and responsibility for that child is given to the state, typically the Department of Public Social Services. (DPSS). The agency is responsible for meeting the health and educational needs of the child, as well as providing the care, treatment, and guidance the child may need.

WHAT HAPPENS AFTER A CHILD IS REMOVED?

In a juvenile dependency matter the basic steps of the proceedings are:
A. Detention Hearing
B. Jurisdictional Hearing
C. Dispositional Hearing
D. Review Hearings
E. Permanent Plan and Adoption/Guardianship
In a juvenile dependency case the child is usually removed from the home by a social worker. Thereafter an immediate appearance in juvenile court is required by law, and the parents or guardians of the child are entitled to appear and be represented by an attorney. Relatives and foster parents can also be represented in court by an attorney in certain situations. There are certain time limits and rights of both the children and the parents that must be strictly adhered to by the court. Each step is part of a process that safeguards these rights and ensures that the best interest of the child is protected. Depending on the nature of the allegations, the efforts of the parents post-removal, and the legal representation a parent receives, cases can often be resolved swiftly, without emotional damage to the child, and without lengthy or costly litigation.

WHAT HAPPENS AT THE COURT HEARINGS?

The Detention Hearing: Once a child is removed from the home, the court must hold the Detention Hearing with 72 hours.

At this hearing:
" The court gives the parents official notice of the allegations.
" The parents get a copy of the petition and the detention report.
" The court explains to the parents what happens in a dependency case.
" The court advises the parents of their legal rights.
" The parents enter a denial or admission to the allegations.
" The court determines if there was probable cause to remove the children
" The court decides if the child should stay with a parent or live somewhere else temporarily.
If the court keeps the child away from the parents, it can make visitation orders so the parents can see the child. The court will also order that services be provided to the parents that will help them get the child back.
The Jurisdictional Hearing: The Jurisdictional Hearing must be held within 15 court days after the Detention Hearing if the children remain outside the home, or 30 days after the Detention Hearing if the children remain in the home.
At the jurisdictional hearing the court decides if what the petition says is true or not. The court has three ways to do this:
" The parents admit the petition is true.

" The parents don't disagree with the petition (called "submission").

" The parents contest the allegations in the petition. Both sides give the court evidence at a hearing, and then the court finds the petition to be true or not.
Before the judge accepts an admission or submission, the court has to be sure the parents want to give up, or waive, their right to a trial. This means they give up the right to see, hear and question witnesses, to bring their own witnesses, to testify, or to stay silent.
The Dispositional Hearing: The Dispositional Hearing must be held within 10 days after the Jurisdictional Hearing if the child remains outside the home, or within 30 days if the child is in the home.

If the court decides the petition is true, it will make orders as to what should happen with the child. The judge can:
" Dismiss the case.

" Let the child live with a parent on "family maintenance". This means that a social worker and the court supervise the child while living with the parent.

" Take the child away from the parent(s) and send them to live with a relative, a foster parent, or in a group home. The court will then offer the parents family reunification services.

" Take the child away from the parents and not offer family reunification services. This leaves the parents with no chance to get their child back. There will be a hearing within 120 days to decide where the child will live permanently.
The court won't let the parents have family reunification services if:
" The child or a brother or sister has been seriously abused or killed.
" The parent had another child taken away by the court.
" The parents tried family reunification services and failed.
" The parents have serious drug problems that aren't being treated.
" There are other significant reasons for the court to refuse reunification services.
If family reunification services are denied, the court will then proceed to make a permanent plan for the child, which precludes the return of the child to the parents.

The Review Hearings: Review hearings are required to review the status of each dependent child. These hearings occur every six months. Prior to the reviews, the supervising social worker will prepare a report and discuss the recommendation with the parents. This report describes the services offered or provided to the parents to correct the problems which resulted in the child becoming a dependent of the Juvenile Court originally. It also discusses the parents' progress and cooperation in these services.
If the child is with the parents, it reports on the continuing necessity, if any, of supervision. If the child is out of the home, it reports on whether the child can be returned to the parents, or on the development of an alternative permanent plan if the child cannot be returned. If the report indicates that the family problems are resolved, the Court may terminate dependency. If problems remain which require the help of the Department, dependency will continue. Review hearings will occur as long as the child remains a dependent.
6 Month Review Hearing: This hearing is a chance for the court to follow up on the progress of the child and the parents and lets the court see:

(1) How the child is doing, and
(2) How the parents are doing with the services the court ordered.

If the child lives with a parent, the court can:

(1) Dismiss the case, or
(2) Keep supervising the child with family maintenance.

If the child doesn't live at home, the court can

(1) Give the child back to a parent and keep the family with family maintenance
(2) Keep the child out of the house and order continuing family reunification services for another 6 months if the court feels that there is a substantial probability that the child will be returned to the parents within another 6 months..

Note: If the child was under 3 years old when the court took them away from the parents, the court can stop family reunification services. This happens if the parents don't participate or complete the services, and don't appear to want reunification with the child.
12 Month Review Hearing:
At this hearing the court decides if the child will go back to the parents. If not, the court will most likely cancel the services so the child can get a permanent plan, and will then set a hearing to decide the plan.
The court can let the family reunification services go on for one more 6 month period if there's a good chance that the child will then go back to live with a parent. If the Court determines that reunification of child and parent is not likely, the Court will attempt to find a permanent home for the child. This may take the form of freeing the child for adoption or guardianship or long-term foster care placement.
18 Month Review Hearing: This is the final hearing wherein the parents may attempt to gain reunification with their children. If there is no reunification ordered by the court, the child becomes eligible for adoption by a relative or third party, for guardianship by a relative or other interested person, or for placement in a long term foster care setting.

Permanent Plan and Adoption/Guardianship:

At this hearing, the court makes a permanent plan for the child. The plan will be to:
" End the parents' rights so the child can be adopted
" Name a legal guardian for the child, or
" Put the child permanently with a relative, foster parent or in a group home.
The most permanent, and preferred plan for the child is adoption. The second choice is legal guardianship, and the last choice is long-term placement. This is the least likely alternative to give the child a permanent home.

DO PARENTS HAVE TO PAY FOR JUVENILE COURT SERVICES?

When the Juvenile Dependency Court removes a child from its home, both the parents and the child's estate, if any, must pay for the costs incurred for taking care of the child during the period of removal. This can include costs of the Department of Social Services for providing services to the family. It also includes costs for foster care, housing, medical needs and other necessities provided to the child. Lastly, the parents can be required to pay for the services of appointed counsel that represented them in the case.

DO I NEED AN ATTORNEY?

Given that the decisions made in these cases are so serious and affect fundamental rights, it is very important that if a juvenile case involves you or your child, you consult an attorney who can advise you specifically about issues that are involved in your case. You are entitled to the services of a court appointed attorney, and in fact, most courts will not allow parents to proceed without being represented by an attorney, in part, because of the extremely important nature of the matter.

A privately retained attorney will work with you to develop a specific plan for your case, will get to know you as a parent, and will present a comprehensive defense to the allegations on your behalf. Whether you are able to retain your own attorney, or are represented by one appointed by the court, you should cooperate and participate as fully as possible in the matter, heed the advice of your attorney, and be prepared to spend as much time as required to successfully resolve the matter. Your children are your most valuable and loved asset. With the assistance of a skilled attorney, most parents will be able to get their children returned to the home, without any lasting emotional damage, and into a family unit that is usually stronger and more competent than before the state intervention.

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PRENUPTIAL (PRE-MARITAL) AGREEMENTS

What are prenuptial or pre-marital agreements?

Prenuptial Agreements are binding legal contracts between you and the one you intend to marry.

Among the purposes people have in wanting such written agreements is to try to ensure that their assets remain theirs if the marriage fails, to provide that their assets, or at least a large portion of them, go to their children in the event of death, and to work out, in advance, arrangements for matters that may become problems after the marriage.  For some, it is a smart and practical way to acknowledge the fact that nearly half of all marriages end in divorce.

Are prenuptial agreements valid?

Most states generally favor prenuptial agreements because they encourage people who might not get married to become married.  However, whether the prenuptial agreement you are considering will be valid depends on many facts and circumstances.

What is required to have a valid prenuptial agreement?

Generally you must:

(1) make full and complete written disclosure of each others’ assets and liabilities, well in advance of the wedding,

(2) make sure that the terms are not unreasonable, and would be considered fair, under the circumstances, and

(3) give both parties a reasonable opportunity to review the proposed agreement with his and her own independent legal counsel well before the wedding.  We do not advise springing an agreement on the bride/groom on the eve of the rehearsal dinner.

Can premarital agreements alter the division of marital (community) property?

Yes, as long as the agreement meets with the requirements under state law.  A premarital agreement is a legal contract between two people who are about to be married.  In the agreement, the prospective husband and wife may agree upon the rights that each will have to the property that they bring into the marriage or acquire during the marriage.  They may also agree as to the amount of support owed to the other in the event of divorce, and their respective inheritance rights.  The premarital contract, if properly made, with sufficient disclosure, alters the state's typical rules for the division of marital property upon divorce or death.

            Laws in each state governing these agreements vary from state to state. To be valid in most states the agreement must:

• be in writing
• be signed by both spouses
• have been accompanied by sufficient disclosure of all the assets, income and debt  of each spouse
• have allowed the parties ample opportunity to consider its contents, and obtain legal advice, before signing, and
• be free from fraud, duress and entered into freely and voluntarily.

What is typically covered in a prenuptial agreement?

Prenuptial agreements typically cover at least several of the following topics:

(1) Prior marital history, and family circumstances,

(2) What property and prospects each spouse is bringing into the marriage,

(3) Who will own the investment earnings from such property,

(4) What will happen with the earnings of each spouse,

(5) What happens with property one spouse may inherit,

(6) What happens in the event of death of a spouse,

(7) Where the couple will reside,

(7) How taxes will be handled (e.g. joint or separate returns),

(8) The level of support in the event of a divorce, and

(9) What happens to debts owed before the marriage and those thereafter incurred.

Where one or the other party is marrying for a second or third time, commonly provisions will be found bequeathing certain assets to a child of a previous marriage rather than to the new spouse.

Are there any practical alternatives we can use short of signing a prenuptial agreement?

Some, but they may not hold up.  That’s why if you want to protect your right and assets, you should contact an attorney with an expertise in family law before you marry.

As a preliminary step, each party should prepare a complete list of all their own property (e.g., inventory your assets) and finances (e.g. bank accounts, investment accounts, pensions, brokerage accounts), as well as the debts each owe, well before the wedding day.  Share the information with one another and have the inventory signed by each of you.

Then, at the very least, keep your own property acquired before your marriage separate and don’t commingle it with the marital property or the other’s property. Preserve its separateness by keeping it in your own name.  When you sell or liquidate any of it, deposit the proceeds in a separate account in your own name and do not deposit any marital funds into that account or use that account for the benefit of the marriage.  If you decide to use some of your funds for a common purpose and invest, the money will have changed from separate to marital property.  This may not protect your property from the other, but it will make it clear what you started with that was "yours".

Can pre-marital agreements be attacked down the road?

Yes, and they almost always are, particularly when one spouse, or sometimes the children or parents of a deceased spouse, figures out they would have been far better off without the agreement.  That's why having a lawyer for each side before signing the agreement is so critical.

What grounds are used to attack pre-marital agreements?

The arguments that can be expected to be used to set an agreement aside might include these:

• I didn’t understand it (or my late mother didn’t understand it)
• The other party physically or mentally forced me to do it, and at the last minute
• They never told me he they were that wealthy
• They told me it was not binding
• They promised it was temporary and we would tear it up on our first anniversary
• I was ill, confused, under stress or drunk
• They told me that if I spoke to a lawyer the marriage was off, a day before the wedding, with all the guests in town
• We both used his lawyer, and the lawyer told me it was very generous
• It wasn’t supposed to cover the house we lived in;  I bought it with my money
• They said it would not take into account money I inherited from my grandmother, after our marriage
• That’s not what we agreed on, and so on.

Whether they succeed or fail would depend on the facts and the party’s ability to prove them, and on state law.  Some clearly constitute legal grounds to set the agreement aside, some may not.  But one thing is certain.  The ensuing litigation will be costly and emotionally draining.

Can a prenuptial agreement contain provisions on future children’s custody and support?

Yes, but the court is not bound by such provisions.  Courts always have the power to decide on child custody, visitation rights, and child support, reasoning that parties cannot negotiate such issues, particularly before the birth of a child.

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POSTNUPTIAL (POST-MARITAL) AGREEMENTS

What are postnuptial (or post-marital) agreements?

These are agreements drafted after the marriage has taken place, but before either party separates, divorces, leaves, or dies.  These contracts contain provisions similar to those commonly found in premarital contracts.  The methods for protecting assets and income, and divvying it up in the event of divorce or death, vary widely.

The rules regarding the validity and enforceability of post-marital contracts vary from state-to-state.  We strongly urge that each spouse seek the advice of a separate attorney, if you have not already done so.  Make sure you are not waiving any of your rights and that you fully understand the contract’s repercussions in the event that "everything goes sour".   It is not unheard of for a spouse to suggest to his or her spouse that they sign a post-marital agreement and then, weeks later, announce that the marriage is over.

A post marital agreement is a similar contract between a husband and wife, but it is made after they are married.  This agreement may alter the rules for the division of property between the spouses in the event of divorce or death.  A particular form of post marital agreement, often referred to as a Marital Settlement Agreement, specifies the distribution of property and responsibility for debt between the respective spouses as part of the divorce proceeding.

Can postnuptial agreements alter the division of marital (community) property?

Yes, as long as the agreement meets with the requirements under state law.  A post marital agreement is a similar contract between a husband and wife, but it is made after they are married.  This agreement may alter the rules for the division of property between the spouses in the event of divorce or death.  A particular form of post marital agreement, often referred to as a Marital Settlement Agreement, specifies the distribution of property and responsibility for debt between the respective spouses as part of the divorce proceeding.

What are the key elements necessary for a valid agreement?

Laws in each state vary, but generally, each state requires the agreement must:

(1) be in writing,

(2) be signed by both spouses,

(3) have been accompanied by sufficient disclosure of all the assets, income and debt of each spouse,

(4) have allowed the parties ample opportunity to consider its contents, and obtain separate legal advice, before signing,

(5) be free from fraud, duress, and

(6) entered into freely and voluntarily

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