Michael Capitina
Attorney at Law
Family Law, Divorce Attorney, Criminal Law

Family Law

Family Law is a complex area of the law made up of multiple, seemingly incomprehensible rules, procedures, language and abbreviations which can affect literally every aspect of ones personal, familial and financial relationships. Family Law is unique in that it requires one to make "business decisions" (i.e. money and property) as well as decisions concerning "personal relationships" (i.e. when and how often you will see your own children). These factors combine to make one's personal journey through a Family Law matter an emotional, and often distressing, experience. The guidance of a qualified Family Law attorney can minimize distress and maximize satisfaction with the outcome.

I. MAJOR TENETS OF SUBSTANTIVE FAMILY LAW

There are four major types of Family Law actions: Dissolution (divorce), Legal Separation, Nullity (annulment), and Paternity (support for children of unmarried partners).

  1. Dissolution of Marriage: In order to obtain a Judgment of Dissolution of Marriage, at least one party must have been a resident of the State of California for six (6) months and a resident of the county in which the Petition is filed for three (3) months prior to the filing. Family Code section 2320.
  2. Legal Separation: A legal separation has no residency requirements. After filing for a legal separation, one can amend to a dissolution of marriage once a party has met the statutory residence requirements. A major advantage to a legal separation is a new resident to the state may file for a legal separation and obtain temporary spousal support, child support and other temporary orders immediately after filing for a legal separation, without having to wait six months to obtain temporary orders.
  3. Nullity of Marriage: A marriage may be declared void, meaning the marriage is void as a matter of law, or voidable, meaning a court can declare a marriage void upon presentation of sufficient evidence. Family Code section 2200-2201 (void marriages) and 2210 (voidable marriages).
    1. Void Marriage: There are two types of marriages which are void as a matter of law:
      1. incestuous marriages i.e. parents to children, brothers to sisters including half-blood, uncles to nieces and aunts to nephews. These marriages are void at the beginning of the marriage. Family Code section 2200.
      2. Bigamous and polygamous marriages i.e. person is still married when that person enters into a subsequent marriage with out legally terminating the prior marriage. Family Code section 2201.
    2. Voidable Marriage: Voidable marriages can be declared to be a nullity upon valid court order. Unless grounds are shown in a court of competent jurisdiction, these marriages are still valid pending a judgment that they are annulled.

      The grounds are as follows:
      1. Minority: Where a petitioner is under the age of 18 at the time of marriage, this action must be within 4 years of the party obtaining the age of 18. A party's parent or guardian may file before the party reaches the age of 18. Family Code section 2210 (a).
      2. Bigamy: Marriage is voidable if either party was married to another person and (1) for 5 consecutive years prior to the marriage the party's spouse was not present and not known to be living, or (2) at the time of the marriage the party's spouse was thought to be dead. Family Code section 2211(b).
      3. Unsound Mind: Marriage may be voidable if either party was of unsound mind (unable to understand the concept of the responsibilities owed to a marriage), unless the party of unsound mind, after coming to reason, freely cohabited with the other as husband and wife. Family Code section 2210(c).
      4. Fraud: By far the most common ground to void a marriage is fraud. Fraud is found where the consent of the either party was obtained by fraud, unless the party whose consent was obtained by fraud, afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife. The fraud can be a false representation of some kind or concealment of fact. The fraud must go the very essence of the marital union.
      5. Force: A marriage is voidable if obtained by force, unless afterwards the party freely cohabited with the other. This can be by threat, where the party's free will was overcome by the threat.
      6. Physical Incapacity: Either party was, at the time of the marriage, physically incapable of entering into the marriage state, and that incapacity continues, and appears to be incurable. Physical incapacity is meant to be unable to "consummate" the marriage or have sexual intercourse. Family Code section 2210(f). This must be filed with in four years of the marriage.

II. JURISDICTION: Before a court may make orders concerning a family law matter, it must have legal jurisdiction over the parties.

Code of Civil Procedure section 3410.10 states a court of this state may exercise jurisdiction on any basis which is not inconsistent with the constitution of this state of the United States. Jurisdiction will generally be granted when an individual is present in the state, domiciled in the state, has residence in the state, citizenship, consent, appears in the action within the state, does business in the state, does an action which causes and effect within the state, has ownership, use or possession of a thing in the state or other relationships to the state that make jurisdiction within the state reasonable.

III. CHILD CUSTODY:

  1. TYPES OF CUSTODY: There are two types of custody, LEGAL which deals with the parties' rights to determine the child's health, education, and welfare. Family Code sections 3003 & 3006, and PHYSICAL which deals with where a party's child shall reside, under whose supervision, and subject to the other party's right to visitation.
  2. BEST INTERESTS OF THE CHILD: Custody must be granted to the party(ies) according to the "Best interests of the child" Family Code section 3040(a), taking into account the provisions of Family Code section 3011 & 3020.
    It is the public policy of the State of California that the non-custodial parent have "frequent and continuous contact" with the child(ren).
  3. FACTORS AGAINST CUSTODY TO A PARTY: Factors which must be considered by the court to determine custody and a "child's best interest" include: a history of abuse by a parent Family Code section 3011(b)(1)-(3); use of controlled substances Family Code section 30119d0; person required to register as a sex offender under Penal Code section 290 or been convicted of child abuse Family Code section 3030(e); a person convicted of rape or first degree murder Family Code section 3030(c).
  4. CHILD'S NEED FOR CONTINUITY OF STABLE RELATIONSHIPS: A court will attempt to make custody and visitation orders keeping in mind the child's need for stability and continuity of existing custody arrangements. This is especially true in initial custody/visitation orders or temporary orders which occur at the outset of a matter, before a final Judgment is rendered concerning custody and visitation, and in so called "move away" cases where one party desires to relocate from an area.
    In a move away situation, the California Supreme Court held that a non-custodial parent who opposes a custodial parent's move with the children must show that such a move will cause detriment to a child, and if such detriment is shown a court must evaluate all relevant factors to determine whether it is in the child's best interest to move with the custodial parent or whether a change of custody to the previously non-custodial parent should occur.
  5. CHILD'S PREFERENCE: Family Code section 3042(a) states that if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody.
    It is worth noting that here is no age requirement for the court to decide whether or not to give the child's wishes consideration, but its maturity. However, the older the child is the more likely the court shall consider the child's wishes, and conversely, the younger the child the less likely the court would do so.

IV. CHILD SUPPORT:

  1. Child support is based upon the Statewide Uniform Guidelines contained in Family Code sections 4050 - 4076. The amount of child support established by the child support formula contained in Family Code section 4055(a) is presumed to be the correct amount. This amount can be rebutted if
    1. the parties stipulate to a different amount,
    2. the sale of the family residence is deferred and the rental value of the family residence in which the children reside exceeds the mortgage payments, homeowner's insurance and property taxes the adjustment pursuant to this subsection shall not be greater that the excess amount,
    3. the obligor parent has an extraordinarily high income and the amount under the guideline would exceed the needs of the children,
    4. a party is not contributing to the needs of the children at a level commensurate with that party's custodial time,
    5. application of the formula would be unjust due to special circumstances in a particular case. Family Code section 4057(b)(1)-(5).
  2. GROSS INCOME: Gross income means income of the parties from whatever source derived, except child support payments actually received, or any public assistance program for which eligibility is based on need. Family Code section 4058(c).
    Income which is included for support calculations includes, but is not limited to: salaries, commissions, royalties, wages, bonuses, rents dividends, pensions, interest, trust income, annuities, workers compensation benefits, unemployment insurance benefits, disability benefits, social security benefits and spousal support actually received from a person not a party to the proceeding. Family Code section 4058(a).
    Also included is income from a proprietorship of a business deducted by expenditure required for the operation of the business [Family Code section 4058(a)(2)] and in the discretion of the court, employee benefits or self employment benefits, taking into account the benefit and any corresponding reduction in living expenses and other relevant facts (i.e. free housing). Family Code section 4058 (3
    The court can also look to the earning capacity of a party rather than their actual income if the court feels the party is artificially reducing his or her income form that which the party can actually earn. Family Code section 4058(b).
  3. NET INCOME: The annual net disposable income to each parent shall be computed by deducting from his or her annual gross income the actual amounts attributable to the following items stated in family Code section 405 (a) which includes State and Federal income taxes which includes parties tax filing status and number of dependents. The tax effects of spousal support ordered in a case must not be considered in determining net disposable income for child support, although they must be considered in determining spousal support. Family Code section 4059(a)
    Other deductions to be considered are employee contributions to FICA [Family Code section 4059(b)]; mandatory union dues and retirement as long as are mandatory [Family Code section 4059(c)]; health insurance premiums and deductions for State Disability Insurance premiums [Family Code section 4059(d)]; child support or spousal support pursuant to a court order to another person not a party to the present action; or child support being paid without a court order as long as it does not exceed the amount established by State Guideline for a natural or adopted child who does not live with the payor and who is not subject to an order by the court currently ordering child support [Family Code section 4059(e)]; necessary job related expenses [Family Code section 4059(f)]; a deduction for hardship as defined by Family Code section 4070-4073 [Family Code section 4059(g)].
    Also acceptable under Family Code section 4070-4073 as deductions from gross income for hardship circumstances are extraordinary health expenses for which a parent is responsible; uninsured catastrophic losses [Family Code section 4071(a)(1); and minimum living expenses of either parent's natural or adopted children for whom the parent has the obligation to provide support from other relationships or marriages who reside with the parent [Family Code 4071(a)(2). Step-children do not apply for a hardship deduction unless a non-marital partner or subsequent spouses income is considered for child support [Family Code section 4057.5].
    Granting of a hardship is discretionary with the court and should be made on a showing of extreme financial hardship from justifiable expenses enumerated in Family Code section 4071.
  4. After finding of each party's gross income and deductions, the court needs to find the percentage of time the children for whom support is to be decided have with each parent. For this calculation, computer software is usually applied. From the gross income, less allowable deductions, and using the percentage of time with each parent, a child support calculation is made.
  5. Mandatory additions for child support: Family Code section 4062(a) requires that in addition to the determination of guideline child support, child care costs and reasonable uninsured health care costs for children be added for child support.
  6. Discretionary additions for child support: the court may order additional child support for costs related to education or other special needs of children, or for travel expenses.

V. SPOUSAL SUPPORT

  1. Temporary Spousal Support: During the pendency of a family law action, from the time of filing a petition through a final determination on appeal, a party may be awarded temporary spousal support.
    Typically, an award of spousal support can and will be awarded retroactive to the date a party filed his or her Notice of Motion or Order to Show Cause requesting spousal support. However, in one case, The Marriage of Dick (1993) 15 CA4th 144, 165, the court allowed spousal support to be retroactive to the date of filing the Petition for Dissolution of Marriage.
  2. Determining Amounts of Temporary Spousal Support: Generally there are two factors which determine the amount of spousal support a court will consider: need and the other party's ability to pay.
    Most courts will consult guidelines by computer software to determine an award of temporary spousal support by plugging in the respective incomes of the parties and using various other factors to come to a figure. However, this is specifically disallowed in computing a spousal support award for long term support or post judgment support.
  3. Duration:
    1. Temporary spousal support is typically terminated by obtaining a Judgment, Dismissal of the action, expiration of the Temporary Support Order, or modification. However, without such termination, the Temporary Order may go on indefinitely.
    2. Temporary spousal support may be modified or terminated by Notice of Motion or Order to Show Cause without a showing of change of circumstances. However, most courts will refuse to modify a temporary order unless there us some change of circumstances, which can simply be time passing in which a temporary order has been issued. Without some change of circumstance, a disgruntled party can keep filing motions to terminate spousal support without any just cause, as a substitute for an appeal.
  4. Long Term Spousal Support: Family Code section 4330 allows a court to award spousal support in a Judgment of Dissolution of Marriage or Legal Separation, in an amount and for a period of time the court deems just and reasonable, based on the parties' standard of living and taking into consideration the factors enumerated in Family Code section 4320.
  5. Discretion to Award Long Term Spousal Support: The court is granted wide discretion in allowing or disallowing spousal support, and, if granted, for what length of time. However, the court must follow the criteria set forth in Family Code section 4320. It is improper to use the guideline spousal support software in ordering long term support, which is commonly used in awarding temporary spousal support.
  6. Martial Standard of Living: The threshold question in awarding long term spousal support is the marital standard of living obtained by the parties prior to the date of separation [Family Code section 4330(a)]. Brief marriages will be given less support, and for shorter duration, than long term marriages. Generally the court looks to actual expense, but this is not always the case in situations where the parties have lived beyond their means. Another factor against the "expense" method of determining spousal support is where the supporting spouse dedicated excessive work hours to support the marriage. Only reasonable hours will be used in determining a party's spousal support obligation. Other situations against the expenditure method include where parties had substantial savings which produced a low method of expenditures, as well as other unusual circumstances.
  7. Factors the Court Must Consider Before Determining an Amount for Spousal Support:

VI PROPERTY

  1. TYPES OF PROPERTY: In family law, property is either community, separate, quasi-community or quasi-marital in nature.
    1. Community Property - Family Code section 761 states: "Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in the state is community property."
    2. Separate Property - is defined as all property acquired prior to marriage [Family Code section 770(a)(1)]; property acquired after the date of separation [Family Code section 771(a); all property acquired by gift, bequest, devise or descent [Family Code section 770 (a)(2)]; and the rents, issues and profits of the property described in this section.
    3. Quasi-Community Property - is property acquired while domiciled outside of California that would have been community property had the property been acquired while domiciled in California [Family Code section 125(a) or, property which was exchanged for such property.
    4. Quasi-Marital Property - is property which would have been community property or quasi-community property but for an invalid marriage which the court determines qualifies as a putative spouse [Family Code section 2251].
  2. PAYMENTS TO SEPARATE PROPERTY FROM COMMUNITY FUNDS:
    Often times community earnings of a spouse are used to pay for a separate property asset of either spouse. This typically occurs when the spouses are living in a home which one spouse acquired before the date of marriage and the spouses continue to live in that home while making community mortgage payments on the separate property of the spouse. [Marriage of Moore (1980) 28 C3d 366, 371]When community finds are paid for an improvement of a separate property asset, the community acquires an interest, measured by a formula, if the capital improvement increases the value of the separate property asset. If the community property payment does not, the community is still allowed a reimbursement for the payment made on the separate property asset. [Bono v. Clark (2002) CA4th 1409.
  3. PROPERTY ACQUIRED DURING MARRIAGE FROM SEPARATE AND COMMUNITY SOURCES
    When separate property is acquired during the marriage, with separate property down payment, and a loan based on community assets, both the spouse's separate property AND the community acquire an interest in the property. The separate property acquires an interest in the same percentage the down payment is to the purchase price, and the community acquires an interest in the same percentage the loan bears on the purchase price. The separate property and community property also receive their respective percentage of any increase in the value. Marriage of Lucas (1980) 27 C3d 808.
  4. SPECIFIC TYPES OF ASSETS:
    1. Personal Injury Damages: Personal injury damages are community property if the parties were married at the time the cause of action for damages occurred, unless the cause of action is against the spouse, in which case the proceeds are separate property of the injured spouse, regardless of when the cause of action occurred.[Family Code section 2602(a); Family Code section 781(a).] However, Family Code section 603 (b) allows the court discretion to divide personal injury proceeds as the interests of justice require and in no event less than one- half to the injured party.
    2. Workers Compensation Benefits: A disability award to an injured spouse for diminished earning capacity a party will suffer after the date of separation is the separate property of the injured spouse.
    3. Retirement Benefits: Retirement benefits earned during the marriage are community property, and retirement benefits earned prior to marriage and after the date of separation are separate property. The most common approach to the division of retirement is known as the "time rule". Under this formula the community property fraction is the numerator, or the years worked during the marriage, and the denominator is the total of the number of years worked. Caution, the time rule will not always be employed when the retirement benefit is not equal in value for each year of service or greater weight or credit is given during a particular year(s) that the other years. In this case, the court has discretion in which to divide the pension in a fair and equitable manner.
    4. Stock Options: stock options are community property to the extent they are earned by the employed spouse during the time of the marriage. Thus, the court must look to whether the granting of the options were a reward for past performance (deferred compensation), for incentive to the employed spouse for future work performance, or both. Marriage of Hug (1984) 154 CA3d 780.
    5. Disability Pensions: Disability pensions for future wage loss acquired after the date of separation are generally separate property of the disabled spouse [Marriage of Flockhart (1981) 119 CA3d 2240]. However, disability payments elected over retirement benefits, and are thus a form of deferred compensation, would have a community property component. [Marriage of Stenquist (1978) 21 C3d 779] When a disabled employee spouse reaches retirement age the court may require a re-determination of the benefits received. Payments received after retirement age may be no longer for past work during the marriage, and, if so would be community property. [Marriage of Sammules (1979) 96 CA3d 122]
    6. Severance Pay: severance pay may be community property or separate property depending for what purpose the payments are made. If the payment is for past service or deferred compensation during the marriage, they would be community property. Should they be for future lost earnings after date of separation, they would be separate property of the employee spouse.
    7. Social Security Benefits: Social security benefits are the separate property of the employee spouse due to federal pre-emption. Marriage of Hillerman (1980) 109 CA3d 334.
    8. Debt: Generally, community property debt, incurred during the term of the marriage, is to be divided equally. [ Family Code section 2622(a)] However, there are certain exceptions for educational loans [Family Code section 2641] , debts in excess of the community assets [Family Code section 2622(b)], and tort liability of one spouse while not acting for the community benefit under Family Code section 1000(b)(2).
    9. Reimbursement for Separate Contributions to Community Property Acquisitions: A party has a right to be reimbursed for that party's separate property contributions to the acquisition of community property. The reimbursement shall be without interest. Family Code section 640.
    10. Community Property Contribution to a Party's Education or Training: Family Code section 2641 states the community shall be reimbursed for community contributions made to a party's education or training which substantially enhances the earning capacity of that party. Reimbursements must be directly related to the education itself, i.e. tuition, books, supplies, but not to living expenses. The reimbursement may be reduced if it is found that the community has substantially benefited. Family Code section 2641 (c).
    11. Post Separation Payment of Community Debt: When a party, post separation, makes separate property payments to a community debt, that party is entitled to reimbursement on the amount paid, unless circumstances would make it unfair to do so, or that it is determined the party intended the payment as a gift.