Divorce Overview

Quick Links
- Common Family Law Terms
- Custody Overview

- Child Support
- Spousal Support
- Property Division
- Community Debts
- Restraining Orders

Here is an overview of the major events that may occur during your dissolution of marriage case:

  1. Petition for Dissolution of Marriage is filed
  2. Petition and related documents are personally served upon the other party.
  3. The Respondent has 30 days to file a Response to the Petition.
  4. If the Response is not filed, the Petitioner may seek to “default” the Respondent.
  5. If a default judgment is granted, the Petitioner will be entitled to the requests made in the Petition.
  6. If a timely Response is filed, one or both of the parties may timely seek orders by way of an RFO (Request for Order).
  7. One or both parties may seek temporary custody of the children, temporary spousal support, temporary child support, or any number of other temporary requests. These orders are also commonly referred to as “pendente lite” relief.
  8. If the relief sought is urgent, such that “irreparable harm” will occur if the relief is not granted, a party can file an “ex parte” RFO and seek immediate relief from the court. An ex parte request differs from a standard RFO in the time frames involved. A standard RFO or motion for temporary relief must give the other party approximately 30 days to respond before the parties can discuss the matter with the judge. An ex parte RFO enables the parties to have the judge review the RFO and request in a matter of a day or two.
  9. After the respondent files a response, the parties must prepare and file preliminary declarations of disclosure and serve them on the other party. The disclosure documents are designed to reveal to both parties, the separate and community assets of the parties and the values of each. Additionally, an income and expense declaration is required and is designed to reveal the income and living expenses of the parties.
  10. The parties may engage in further discovery during the period before trial. Bank records and other financial documents may be requested or subpoenaed. The parties may be deposed.
  11. After discovery is completed, an at issue memorandum will be filed. This document simply advises the court that the case is ready to proceed to trial.
  12. The court will give notice to the parties that a TSC (trial setting conference) has been set. At the TSC, a MSC (mandatory settlement conference) date will be set as well as a trial date. Alternately, the court may simply set the matter for a mandatory settlement conference and a trial date. The parties will prepare and file final declarations of disclosure before trial, or may waive final declarations.
  13. If the issues in the case are not settled, the matter will go to trial. The judge will resolve the remaining issues and grant a judgment of dissolution of marriage. The judgment will not effective until the formal judgment documents are filed with the court.

Common Family Law Terms

RFO
Is an Request for Order, which is a formal pleading/request for an order from the court. This pleading is commonly used pretrial to request temporary custody, temporary child or spousal support, and any number of pretrial requests that require a hearing in which the parties testify. An RFO is also frequently used post-trial to request modification of permanent child support, spousal support, or custody, or other permanent orders contained in the judgment of dissolution or legal separation. Declarations describing the basis for the order to show cause are commonly attached to the RFO.
TSC
Trial Setting Conference: At this conference, the attorneys will talk to the judge and pick a date for the trial. If the case is settled before trial, the trial date will be vacated and an uncontested judgment of dissolution will be prepared and filed.
MSC
Mandatory Settlement Conference. This is a meeting that takes place about 30 days before the final trial. Both parties and their attorneys are required to attend the meeting and try to resolve the outstanding issues in the case prior to trial. A family court judge will assist the parties and attorneys to settle the issues. In many cases, custody, support, reimbursement issues, and even asset division can be settled at the MSC, thus eliminating the need for a contested trial on those issues.
Declaration
Is a statement by a party made by a party under oath, and submitted to the court. In family law, declarations are used to describe to the judge the issue or problem in the case that needs resolution.
Pendente Lite
a latin term meaning while the litigation is pending, in other words, before trial. Pendente lite orders are thus, orders made prior to trial and are temporary in nature, in that they will be superceded by permanent orders contained in the judgment of dissolution or judgment of legal separation.
Motion
a motion is very similar to an order to show cause in that it is a request to the court for an order. However, generally motions involve strictly legal issues/questions for the judge to decide, although a motion can also involve a question of fact. Motions differ from an order to show cause (RFO) in that the parties do not give testimony at a hearing. Factual information from the attorney or parties is submitted to the court via declarations.
Preliminary Declarations of Disclosure
These forms are documents which detail the clients' income, living expenses, and assets. The court requires both parties to fully complete declarations of disclosure at the beginning of the case (preliminary) and shortly before trial or settlement (final) declaration of disclosure. The purpose of the disclosure documents are to ensure that both parties have full and complete information as to the other party's financial information. Such disclosure is part of the “fiduciary obligations” each spouse owes to the other.
Limited Scope Representation
is a way that an attorney can help you with part of your case while you do the rest of your case. You may hire the attorney to simply give you legal advice, prepare pleadings for you, or even appear at a hearing or trial. This differs from full scope representation in which the attorney handles every aspect in the case to its conclusion. Limited scope representation is a very cost effective way to proceed with through the divorce process. Limited scope representation is “pay as you go.” It does not require a large retainer because the attorney is paid only for the limited work that the client requires. The client remains “in propria persona,” which means that he or she continues to represent him or herself. However, when the client “gets stuck” on some area, for example, on how to properly fill out a particular form, or what to say at a hearing, the attorney can provide that information.

Custody Overview

One of the worst fears any parent will have is that custody will be taken away from them, and that they will become a virtual stranger to their children. However, it is essential to remember that it is the policy of the state of California, and the family law court, to award joint custody whenever possible. Judges want both mom and dad to spend equal time with the children. When judges deviate from that rule, it is usually because the children have spent the majority of time with one parent, or there are issues of drug or alcohol abuse, physical abuse or anger issues, or one parent may live several hours away, or work hours that prevent an equal time share. Just because one or more of these issues arise doesn’t mean that joint custody is not an option for the court. The court must consider the “best interests of the children” and determine the custodial arrangement between the parents that serves the children’s best interests.

Legal Custody
is the right to make major decisions for the minor child, such as where the child or children will go to school, what their religion will be etc.
Physical Custody


simply refers to where the child or children will live. There are two types of physical custody, sole physical custody and joint physical custody. Sole physical custody means that the child(ren) will live predominately with one parent while the other parent will have “visitation.” One example of a sole custody arrangement is when the child(ren) spend Monday through Friday with one parent, while the other parent has the children every other weekend. Sole custody is also sometimes referred to as “primary” custody. Primary custody is simply a term of art, and is often used in custody orders to designate the parent with whom the child spends the majority of custodial time. Joint physical custody is when both parents have frequent and continuous contact with both children. One parent may have slightly more time with the children. An example of a joint custodial arrangement is when the children live with one parent for a week, then alternate the following week with the other parent.

Child Support

Child Support is based upon a complex mathematical formula. The amount of time the children spend with each parent is calculated, as is the income of both parties. Additional child support is also ordered, such as child care costs, and uninsured medical costs. A child support order can be obtained through a private attorney, or through DCSS, the Department of Child Support Services.

Spousal Support

Spousal Support is within the discretion of the court. Often pendente lite (before trial) support may be granted if one of the parties earns much less than the other, or/and is ill, or has a disability, has been out of the work force for a while and is in need of job training or additional schooling. “Permanent” spousal support is granted after a trial (or through settlement). If granted at trial, the court is required to consider several factors in determining whether to grant spousal support and in what amount. These factors are commonly referred to as the 4320 factors, after Family Code section 4320. Some of the factors include the standard of living during the marriage, the earning capacity of the parties, the needs of each party, the assets and obligations of the parties, the age and health of the parties, and the duration of the marriage. These are just a few of the factors. In marriages of less than 10 years, courts will often grant spousal support for one half the length of the marriage then terminate the support. Marriages over ten years are considered “long term” marriages. The courts are not allowed to set a termination date for spousal support when the marriage has been long term. However, unless the individual is ill or elderly, many courts will consider reducing spousal support to a spouse who, several years down the line, has made no effort to become self supporting.

Property Division

Property division can range from the simple to the complex. There may be a couple of vehicles and furniture to divide, or there may be separate property comingled with community assets such as homes, community businesses, or investment accounts. Dividing these assets often involve tracing the separate property to determine the respective separate and community interests. In multifaceted financial cases, it is often necessary to locate and value important financial assets. With complex property issues, you need an attorney with experience and knowledge to reach an equitable and accurate division of marital property. I have the experience to handle the most intricate asset division and business valuations. However, it is sometimes necessary to seek the advice and testimony of independent third party experts. I have established professional relationships with leading financial advisers, tax advisers, CPAs, therapists, and child psychologists. They routinely testify as experts on these matters, and their opinion is well respected in the Orange County Family Law Court.

Community Debts

Often, the client’s credit can be ruined if one of the parties decides to stop paying or can’t pay, the existing community bills. It is important to determine who will pay the debts pending the dissolution of the marriage. Often the parties can reach a temporary agreement on this issue. Other times, a court order is quickly needed to determine who will be required to pay which bills, such that the client’s credit score is protected.

Restraining Orders

TRO
Temporary Restraining Order. A TRO refers to any type of temporary restraining order, however, in family law, TRO usually refers to a temporary domestic violence restraining order, which restrains one party from contacting or getting within a certain distance of the other. Sometimes the restrained person is not permitted to see the child(ren) during the period that the restraining order is in effect. Restraining orders can be a necessary and important tool for the protection of a party and/or the children. However, restraining orders are often abused by unscrupulous individuals to gain leverage at the beginning of a divorce or legal separation action, in order to obtain an advantage in the case and try to wrongfully gain temporary custody of the children. This only ends of hurting the children.
ATRO
Automatic Temporary Restraining Order: These are automatic orders that spring into effect as soon as the respondent is served with the summons and divorce petition. The ATRO’s are written on the back page of the petition. Among other things, these ATRO’s prevent both parties from removing the children from the state of California, and from dissipating or concealing community property.

How Not to Be Served with a Restraining Order

It is important to remember that once a petition for divorce is filed, both parties are under the court’s microscope. This is due to the fact that, unfortunately, a minority of divorce cases are amicable. Most divorces are contentious. Accusations are leveled by one or both parties. The opposing counsel will dredge up some incident that happened years ago and suddenly every word you’ve said is twisted into something ugly by your spouse’s attorney. Something you thought was innocent becomes a major issue. Every raise of the voice, curse word, discipline of the kids, will be dug up and put into a pleading by the other party and worded to convince the court that you are the unfit parent. This doesn’t always happen, but it happens a lot. The bottom line is that divorce brings out frustration, sadness, and often rage in people. Sometimes, due to finances, the parties are forced to remain in the same house with each other pending the divorce. This can, of course, be an extremely uncomfortable situation, and can lead to heated arguments and sometimes, a physical alteration. When children are present, it is of particular concern to the court. The next thing you know, someone is running in to get a restraining order, and the children don’t get to see one of their parents for a month or two. Before it gets to that point, the best advice is the same thing you heard when you were a kid, “just walk away.”

Disclaimer

Julia L. Miranda is the attorney responsible for the content of this website. The materials on this Web site are for informational purposes only and are not legal advice.  The transmission and receipt of information contained on the website do not form or constitute an attorney-client relationship.  Any information sent to Miranda Family Law via this website, and before establishing an attorney-client relationship as evidenced by a mutually signed representation agreement will not constitute an attorney-client relationship.  If you contact Miranda Family Law regarding a matter in which the law office does not yet represent you by way of written representation agreement, any information you communicate may not be treated as privileged or confidential. Further, no reader of this website should act or refrain from acting on the basis of any content in this site.

The materials on this web site may not reflect the most current legal developments, verdicts or settlements.  The information contained within this website is general in nature and may not apply to any specific factual or legal circumstances. Prior results do not guarantee a similar outcome.  Any results set forth here were dependent on the facts of that case and the results will differ from case to case. Some links within the Miranda Family Law web site may lead to other sites.  The Miranda Family Law website does not incorporate any materials appearing in such linked sites by reference, and Miranda Family Law does not necessarily sponsor, endorse, guarantee the accuracy of, or otherwise approve of such linked materials. The content and law discussed in this website is geared only to Southern California residents, or to those individuals litigating a family law matter in Southern California, including Orange County, Riverside County, or San Bernardino County. Miranda Family Law does not litigate cases in Los Angeles County. This website is not intended to solicit clients outside the state of California. Further, the lawyers of Miranda Family Law are licensed to practice law only in the State of California. All materials, graphics, and text on this website are the property of Miranda Family Law and are not to be copied or reproduced in any form whatsoever, except for personal, non-commercial use, or with the express permission of Julia L. Miranda.

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