Do you need an attorney?
Legal Fee
Divorce- How long does it take?
Divorce- Grounds For Divorce
Legal Separation
Annulment
Paternity
Child Custody
Child Support- Income
DO YOU NEED AN ATTORNEY?
That depends, if yours is a short marriage, both spouses work, no children, no property and you have the time to educate yourself, probably not. Self-help books, paralegals, and courts may be useful. Unfortunately, such resources are not a substitute for professional assistance as the issues become more complex. The more possessions you have, and the more urgent the need for relief is, the more complex the dissolution becomes. Knowledge, tactics and timing are essential parts of the process. There is no substitute for experience. The long-term cost of making a bad decision can be enormous. Some bad decisions can be straightened out, unfortunately the cost to straighten things out could easily cost more than the cost to retain counsel and do it right the first time. Attorney conduct is policed by California State Bar and local bar associations. Attorneys are required to attend continuing education seminars. Most attorneys have errors and omissions insurance. If you use an experienced paralegal, they should be able to do the basic paperwork, but there is much more to the process than checking boxes and filling in blanks on a form. There are substantial economic consequences associated with checking the right boxes, completing the forms, and taking timely action - it pays to know your rights and to do it right the first time. If you appear in court without an attorney and are representing yourself, you will be held to the same standard as an attorney. . . you should not expect to get a break because you are representing yourself. If you decide to represent yourself, be prepared to invest your time to learn the process. The more you, know the better.
LEGAL FEES
Most attorneys bill on an hourly basis. This means that all time (phone calls, court appearances, research, etc.) spent on your case is tracked and then used to calculate the total fees due. Hourly rates will vary by area and the experience level of the attorney. Generally, the more experienced the attorney, the higher the hourly charge will be. On the other hand, the more experienced the attorney, the more likely he or she will not have to research every issue or procedure that arises in your case. This will translate into lower fees and better results in the long run. Attorneys will also require a retainer (advance payment for services to be rendered) prior to the commencement of the services. The amount of the retainer will vary based on the complexity of your case and the need for immediate action. When the retainer has been used up, an additional retainer may be requested unless your attorney will let you make payments. Some attorneys will charge a fixed fee that is one price for the entire case. The problem with fixed fee agreements is that they have the potential of putting the attorney and client in conflict with each other. Clients in fixed fee cases tend to take unrealistic litigation positions, instead of making realistic litigation positions. It is usually very difficult to predict what the total fees will be. There are many variables that effect litigation: your spouse and your spouse's attorney; your attorney; the issues; how aggressive you want your case litigated; and the down time in court waiting for court rooms to hear your case. That is why most attorneys will not quote a fixed fee.
DIVORCE - HOW LONG DOES IT TAKE
By statute, it takes a minimum of six months from the date the divorce petition is served on your spouse for the divorce to become final. However, once an agreement is reached, the divorce paperwork can be completed and filed with the court at any time. If all procedures have been followed, the divorce will automatically become final six months following the service of the petition. If there are contested issues (custody, visitation, support, property division, etc.) the process can take substantially longer to complete.
California is a no-fault divorce state. This means that you can obtain a divorce by establishing irreconcilable differences. Since differences can be about anything, simply citing these grounds is sufficient to obtain a divorce. A divorce can also be obtained on other grounds when necessary.
When a default is taken it means that a spouse has not filed his/her response to the divorce within the time allowed and the other party has decided to request the court to grant the relief requested in the petition. The effect of taking your spouse's default means that the petitioner will generally receive all the relief they have requested in their petition, provided it is consistent with the law. If the response is not filed in a timely fashion and the spouse's default taken, the defaulted party may have the right to file a motion and request the court to set aside the default and file their response. This is a very technical area of the law; there are critical time limits and procedures that must be followed. The ramifications of not having the default set aside could be significant. It is common for a default to be taken by agreement, if the parties have entered into an agreement resolving all of the issues.
The grounds to obtain a legal separation are the same as a divorce. The primary difference between a divorce and legal separation is that, while they both resolve property, debt, custody, support, visitation and other marital issues, you are still legally married to your spouse at the end of the process. Legal separations are requested for many reasons, some of the more common reasons are to maintain insurance coverage for a spouse or for religious reasons. In some cases individuals file for legal separations because they believe that the marriage can be saved at some point in the future, yet still want to formalize the division of their property and obtain orders for custody, visitation and support. If one spouse requests a legal separation, the other spouse has the absolute right to request a divorce.
If an annulment is requested it means that you are asking the court to treat the marriage as if it never happened. Upon the granting of the annulment the parties are immediately restored to the status of unmarried persons. The decision to request an annulment, separation or divorce may simply be a personal choice, or it may be driven by substantial legal considerations. Unlike a no-fault divorce, those seeking an annulment must establish the necessary legal grounds. Neither a marriage of short duration or the infidelity of a spouse are grounds for an annulment. Unlike a divorce, your spouse can contest the annulment, and the court can deny your request for an annulment if the grounds cannot be established. For these reasons, divorces are usually requested in the alternative. Property acquired during a marriage that is annulled, is still subject to division by the court.
Paternity actions are more appropriately called complaints to establish a parent-child relationship. As the name implies, its purpose is to establish parental rights and responsibilities between a parent and their child(ren). Such actions can be brought by the district attorney or by either parent. In some cases a person who is not the biological parent of a child may be able to bring a paternity action. The court has the jurisdiction to resolve custody, support, visitation and welfare reimbursement issues in such actions. The court does not have the jurisdiction to resolve property issues that may have developed as a result of unmarried parents of the child who live together. The action is usually commenced by filing a Petitioner to Establish a Parental Relationship. If there is an issue of biological parenthood the parties generally have the right to request DNA testing to determine parentage. DNA testing is generally accepted by the courts for establishing or excluding parentage. But such tests have limits and are not absolute. Paternity can also be established by signing a paternity declaration at the hospital of through legal presumptions. Your conduct and actions can result in a judgment of paternity being made even if the person who thinks they are the father turns out not to be the biological father. Married couples can, in some cases, dispute the parentage of a child born during the marriage. Conversely, the biological father of a child born to a married couple can, under some circumstances, assert his parental rights to a child conceived during a marriage. Once the issue of parentage has been determined, the court will make custody, visitation and support orders. Paternity can also be raised by the District Attorney in welfare and non-welfare support proceedings. Unfortunately, if the District Attorney is involved, the issues of custody and visitation are not automatically placed before the court. In such cases, a parent must request the court to have those issues brought before the court either in a separate proceeding, or by filing a motion to have the issue resolved in the District Attorney action.
When making an award of custody, the court is driven by the concept of what is in the best interests of the child. This is a very broad concept and it can include many facets of the person’s relationship with their child. Generally the courts look to which parent is better able to provide for the heath; safety and welfare of the child; history of contacts with the child; history of custodial responsibilities; which parent will be more likely to provide for the frequent and continuing contacts of the child with the other parent; substance abuse by a parent; and prior acts of domestic violence, to name a few. The courts generally prefer to rely on expert testimony when making custody orders. This usually takes the form of Evidence Code 730 Evaluation or a referral to the mediation department of the superior court for a investigation. In a 730 Evaluation, a mental health care professional conducts a battery of tests on the litigants, coupled with interviews with the parents, children and collateral witnesses. The expert may also draw on other confidential information and sources to assist them. These reports can be ordered by the court or agreed to between the parties. Many custody disputes are resolved in conjunction with the recommendations made by the expert. If the investigation is conducted through a court's mediation department, it is generally based upon the interviews and other confidential criminal and court records. The decision to choose a particular type of investigation (or for that matter, a specific 730 evaluator) could have a major impact on the final disposition of your matter.
Establishing income is critical. Income used in calculating support includes wages, bonus, overtime, social security, disability payments, rents and royalties. If a person is not working, suddenly quits working or cuts back on their income in anticipation of a court hearing, the court has the power to impute income to that person. Overtime, bonuses and distributions from stock option plans that are in the form of non-retirement incentives are considered as income; and some courts will also consider income earned from second jobs. If a party is self-employed and that person's income is based on cash receipts or factors totally within the control of that person, establishing income will be difficult and will require thought and discovery prior to the hearing. The income of a new spouse or a new mate is generally not considered by the court in establishing child or spousal support. The exception is dictated by statute and has limited application
Law Offices of Kate M. Schreurs, 12395 Lewis Street, Suite #201; Garden Grove, CA 92840
Phone: (714) 621-0628 | Fax: (714) 621-0623 | E-mail: attykate@aol.com
Law Offices of Kate M. Schreurs, 12395 Lewis Street, Suite #201; Garden Grove, CA 92840
Phone: (714) 621-0628 | Fax: (714) 621-0623 | E-mail: attykate@aol.com
