What is a Certified Specialist?

The State Bar of California certifies attorneys in the following areas:  Family Law; Taxation Law; Appellate Law; Criminal Law; Estate Planning, Trust and Probate Law; Immigration and Nationality Law; Personal and Small Business Bankruptcy Law; and Workers’ Compensation Law.

If you have a legal matter in any of these areas, selecting a Certified Specialist assures that you have an attorney who does not just practice or specialize in the area, but who has met the rigorous standards and requirements of the State Bar for certification, and has demonstrated proficiency in these specialized fields of law.

A California attorney who is certified by the State Bar as a Family Law specialist must have taken and passed a written examination in Family Law, demonstrated a high level of experience in Family Law, fulfilled ongoing education requirements, and been favorably evaluated by other attorneys and judges familiar with his or her work.  

To obtain a listing by county of Certified Specialists in the various fields of law, visit the State Bar’s Website at www.calbar.org and click on Legal Specialization.  

The more complicated your situation, the more important it is to hire an attorney certified in the applicable area of the law.

 

What Are The Steps In Starting A Divorce?

To start a proceeding for a marital dissolution, a “Petition” is filed in the superior court of the county where the parties live.  The “Petition” is a printed form where certain statistical data is filled in (such as, for example, date of marriage, date of separation, names of children, etc.) and where boxes are checked to indicate what is being requested of the court (such as spousal support, either sole or joint custody of the children, determination of property rights, etc.).  A box is also checked to indicate the “grounds” for divorce, which almost always is “irreconcilable differences”.  As California is a “no fault” state, nothing needs to be proved; simply stating “irreconcilable differences” entitles the person to the divorce.

If there are children, the party also fills out a “UCCJEA” form (Uniform Child Custody Jurisdiction Enforcement Act) to state statistical data such as the names, ages, and places of birth of the children.

The Petition and the UCCJEA form are filed with the court, and the court issues a “Summons”.  The Summons is a form signed by the clerk of the court.  It, along with the other forms that have been filed with the court, is “served” on the other party (along with blank forms for him/her to fill out:  a “Response” form that is similar to the “Petition” form, and a UCCJEA form).  It is this “service” that triggers the start date of the case.  The significance of the start date is that the earliest that a person can have the marital status terminated is six months after the date of service.  (This means that six months after service, a person can take certain procedural steps to get a divorce judgment that restores both parties to the status of unmarried persons, even if the property, custody, support, or other issues of the case have not yet been resolved.)

“Service” of the Summons, along with the other filed forms, can be made on the other party in a number of ways.  Say, for example, that it is the wife who filed the Petition.  She can hire a process server to deliver the papers to the husband, and the date of delivery is the date of service.  Or, she can have someone like a friend or relative deliver the papers, though this is generally not advisable because it puts the friend or relative in the middle of things and, not surprisingly, can harm relationships.  The only restrictions on who can serve the papers is that the person must be an adult and must not be the Petitioner herself.  Another option for service is to mail the papers to the husband along with what is called a “Notice and Acknowledgment of Receipt of Service”, which he will need to date and sign and return to the sender.  The date he signs the form is the official date of service (to start the six-month clock running), and is a service method often used because it avoids having a process server knock on the door, which is often unsettling and perceived as needlessly provocative.  (Of course, if the person being served is not likely to cooperate in signing and returning the form, then personal delivery of the papers is necessary).  Another option in our hypothetical example is for the wife’s attorney to write a letter to the husband telling him that the divorce Petition has been filed, and requesting that he come to the attorney’s office to pick up the papers himself.  In that case, the day he picks them up is the date of service.

Effecting service of the Summons, at the earliest possible date after filing the Petition, is very important because the Summons contains automatic restraining orders that, among other things, restrain either party from removing the children from the state, canceling or changing life or medical or other types of insurance, or disposing of property or taking loans out against it.  Also, within thirty days of service, the party served must fill out, serve on the other party (which can be by mail), and file with the court a “Response” form.  This is a form similar to the “Petition”.  The “Respondent” fills out similar statistical information and states whether he/she agrees or disagrees with the requests stated in the Petition.  (Stating he/she does not agree that there are irreconcilable differences is meaningless; it is without legal effect.)

With the Summons served, the divorce case has started.  Early on in the case, California law requires each party to fill out and serve on the other party what is called a “Declaration of Disclosure”.  This is a two-part form.  The first part is an “Income and Expense Declaration” on which the person states his/her income for the preceding twelve months, and lists his/her expenses by line-item category.  The second part is a “Schedule of Assets and Debts” on which the person lists by category all existing property and debts, whether joint or separate.  The purpose of the form is to ensure that both parties know, at an early stage of the divorce, what assets and debts exist, and what the income picture of the other party is.  The Declaration of Disclosure is signed under penalty of perjury, and a form stating it has been provided to the other side is filed with the court. 

With the above steps taken, the divorce process unfolds.  The procedural ways it can unfold are many and varied, and your attorney can provide you with an understanding of the available options and processes.

 

What is Collaborative Law?

Collaborative Law is a relatively new approach to the resolution of cases which has gained popularity in recent years. The goal of collaborative law is to help parties complete all aspects of their divorce: child custody and visitation, division of the community estate, determination of any separate property or reimbursement issues, etc. - all without litigation. The collaborative approach is intended to reduce the mistrust, rancor and divisiveness that are often present during a divorce. This is accomplished through a cooperative information-sharing approach in which both the parties and the attorneys utilize creative problem-solving in order to create a “win-win” situation for everyone in the family. It has been said that, under the collaborative model, someone listening in to the discussion taking place would be unable to easily determine which attorney represents which party.

Cases are handled through a series of four-way meetings among the parties and attorneys. Attorneys and parties engaged in a collaborative divorce agree to avoid litigation, to voluntarily provide full disclosure of all information, and to jointly use neutral experts as needed. If the process comes apart and the parties need to have a judge decide issues, they need to employ new counsel, as collaborative attorneys do not represent parties in court. The rationale behind this is the same as that governing confidentiality of private mediation. A lawyer who has been privy to information disclosed in a safe environment where openness is not only encouraged, but expected, should not be able to turn around and use that information against the opposing side in court.

Collaborative practice is similar to mediation in that it promotes trust and the open exchange of information and is interest-based as opposed to position-based. However, it differs from mediation in that each party has an attorney to intervene where there may be a power imbalance. For example, let’s say the wife is better-versed in the family finances that the husband. Under the collaborative model, not only husband’s attorney, but also wife’s attorney would work toward creating a property division that ensures husband does not receive a lesser share of the community pie.

Bifurcation or "Status Only" Dissolution

California law provides for the severance and granting of a separate and early trial on the issue of dissolution of the status of marriage, reserving jurisdiction over all other issues. This means that either party can move the court for a hearing date to seek the issuance of a Judgment of Status Only Dissolution, even over the objection of the other party. Once entered, the parties are divorced and either party is free to remarry. The court will subsequently resolve the remaining issues of the case, such as property, support, attorney’s fees, etc. In the alternative, the parties can agree (or stipulate) to a Judgment of Status Only Dissolution and no hearing will be required.

Whether by noticed motion or by stipulation, the statutory waiting period of six months from filing of the Petition for Dissolution and service on the Respondent applies. Additionally, the moving party must complete and serve a Preliminary Declaration of Disclosure on the non-moving party (i.e., an Income and Expense Statement and a Schedule of Assets and Debts).

Until the Judgment on Remaining Issues is entered, the Court may also impose conditions on the party seeking the Status Only Dissolution, such as: (1) the moving party must maintain at his/her sole expense, health and medical insurance for the non-moving party; (2) indemnify the non-moving party for any adverse effect if the bifurcation results in the loss of probate homestead or family allowance as the surviving spouse of the moving party; (3) indemnify the non-moving party for any loss to the non-moving party for loss of pension benefits, elections or survivors’ benefits associated with pension and/or retirement plans; (4) indemnify the non-moving party for any loss of rights to Social Security benefits or elections.

These imposed conditions can be very expensive to the moving party and can result in significant long term liabilities for the moving party. Feel free to contact us to get more information about Bifurcation or Status Only Dissolution and its impact on your case.

What is an ATRO?

In the alphabet soup that a person encounters during a divorce, the ATRO’s are there from start to finish, and violating them can cause a person VBP’s (“very big problems”—not a divorce acronym, but we think it makes the point). 

What are they?  They stand for “automatic temporary restraining orders”.  They are printed on the initial Summons issued by the court at the start of a divorce of legal separation action, they are served on the other party along with the divorce or separation petition, and they apply to both parties during the entirety of the proceedings.
 
The ATRO’s restrain both spouses from doing any of the following:

1. Removing the minor child or children from California without the prior written consent of the other party or court order;
2. Cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance held for the benefit of the parties or children;
3. Transferring, encumbering, hypothecating (pledging property as security for a debt), concealing, or disposing of any property without the written consent of the other party or court order, except in the usual course of business or for the necessities of life; and
4. Creating a nonprobate transfer or modifying a nonprobate transfer in a way that affects the disposition of the property, without the written consent of the other party or court order.  Before revocation of a nonprobate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party. 

Violating any of these automatic restraining orders is a violation of a court order, so it’s important to remember them.

 

What Does the Office of the Court Facilitator Do?

Virtually every county in California now has an office that assists persons representing themselves in family-law matters.  These persons often cannot afford a lawyer; other times they are just “do-it-yourselfers”.  In either case, the facilitator’s office is an invaluable resource.  The facilitators do not give legal advice, but they assist self-represented persons to fill out applications for court orders, to prepare orders for submission to the judge, to prepare the paperwork for initial divorce filings, to prepare resulting judgments, to get information about accessing Family Court Services in custody disputes, and generally to navigate what can be a confusing court system. 

We are pleased that Lana Norris played an important role in getting this program started.  Some years ago, realizing the need to get help for self-represented persons, Ms. Norris, along with several other local attorneys, worked with several state legislators to draft and develop a pilot program that was tested in San Mateo and Santa Clara counties.  The pilot program was so successful that facilitators’ offices were set up throughout the state.  They have served thousands of persons, and continue to make their services available free of charge to whoever needs them.

 

Useful Resources

If you or someone you know would like to get information to help you navigate the family-law system, here are some sites that can provide useful information.

To see court forms and get general information, an online self-help website is www.courtinfo.ca.gov

To access the California Family Code, go to: www.leginfo.ca.gov (once on this site, select “California Law” at the bottom of the first page, then select “Family Code” and “Search” on the next page)

For information about California Department of Child Support Services and how they can help enforce and collect child support orders, go to: www.childsup.cahwnet.gov

Get information about attorneys at the website for the California State Bar: www.calbar.org

General help: www.LawHelpCalifornia.org and www.findlaw.org

To locate marriage records: www.vitalrec.com

To get a credit report: www.annualcreditreport.com

One of the best books about divorce in California, full of practical information and tips about everything from selecting an attorney to finalizing your divorce is: Divorce Handbook for California: How to dissolve your Marriage without Disaster, by Judge James W. Stewart, 5th edition, Impact Publishers, Inc.