FAMILY LAW TERMS

ANNULMENT

Declaration that a marriage is void (having no legal force) because marital status never existed.

ARREARS

Money which is overdue and unpaid; a person 'in arrears" is behind in payments.

ATROs

As a result of filing a petition for dissolution of marriage, by operation of law, pursuant to California Code of Civil Procedures 421-21, both spouses are subject to Automatic Temporary Restraining Orders (ATROs) which provide that, upon service of the Summons in a dissolution of marriage action, certain temporary restraining orders become effective immediately, and need not be specifically issued by the court.

The ATRO orders prohibit the following: (1) Removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court; (2) cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage including life, health, automobile, and disability held for the benefit of the parties and their minor child or children; and (3) transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life.

BIFURCATION

It is the policy of the State of California to permit parties to dissolve promptly and simply a marriage which has irrevocably failed. When the complexity of the case or other factors beyond the parties= control prevent them from resolving all issues in their case in one hearing, the principle of bifurcation allows the parties to separate out the status of the dissolution of their marriage from all other issues so that the parties may obtain a final decree as to the status of their marriage and thereafter become a single person. The remaining issues of their marriage will be litigated at a later date.

CASE MANAGEMENT CONFERENCE

Each case which is filed is given a case management conference date. The attorneys are required to appear in court and give the court an update on the status of the case. These are always on Friday and need not be attended by the party.

CHILD SUPPORT

A child is a son or daughter under the age of eighteen (18) years and a son or daughter of any age who is incapacitated and without sufficient means to support him or herself. Orders for child support generally continue until the child completes high school or reaches age 19, whichever first occurs. Child support constitutes money and/or other consideration ordered paid by either party for the support, maintenance, and education of children. Factors that the court considers in determining the amount of child support are as follows:
1. The earning capacity and needs of each party;
2. The obligations and assets including separate property of each;
3. The duration of the marriage;
4. The ability of the supported spouse to engage in gainful employment without interfering with the interest of dependent children in the custody of the supported spouse;
5. The time required by the supported spouse to acquire appropriate education, training and employment;
6. The age and health of the parties;
7. The standard of living of the parties and
8. Any other just and equitable factors.

Every county has a child support schedule to which the Courts adhere with rare few exceptions.

On July 1, 1992, state law provided for a new mandatory minimum child support which assures that, dependent upon the ability of each parent to pay, no child will receive support less than would otherwise be established as the need for that child under the Aid to Families with Dependent Children Program.
It is not unusual that the parties= needs exceed their combined income. The court is primarily concerned with the actual income of the parties and only secondarily concerned with the living expenses. The court is more concerned with the basic living expenses of the parties than their actual living expenses.

COMMUNITY PROPERTY

Community property includes both assets and obligations and is generally defined as all real property situated in the State of California and all personal property, wherever situated, acquired during marriage by a married person while domiciled in the State of California (with some exceptions See SEPARATE PROPERTY). Community property is also generally defined so as to include the earnings of either party from the date of marriage to the date of separation and any property of any nature acquired with those earnings, and any obligations incurred by either party from the date of marriage to the date of separation for personal, family, business, or household purposes other than obligations attributable to separate property.

CONTEMPT OF COURT

A party may be held in contempt of court when it has been established that the court has made a lawful order, the citee (person to be held in contempt) had knowledge of the order; the citee had the ability to comply with the order; and the citee willfully disobeyed the court order (any act calculated to hinder or obstruct the court or to lessen its authority or dignity). Punishment for contempt includes up to five (5) days in jail and a $1,000.00 fine for each count of contempt.

CUSTODY

The care, custody, and maintenance of a person or thing.

CUSTODY OF CHILDREN

The custody of children will be awarded according to the best interests of the children. The non-custodial parent will be granted reasonable visitation rights, unless there is a showing of emergency or unusual circumstances. Temporary orders regarding custody will generally keep the children in the home in which the children have been living for the past several months, unless there is a showing of unusual circumstances, which would be damaging or dangerous to the children's general welfare.

DECLARATION

A methodical specification of the facts and circumstances constituting a cause of action.

DEFAULT

Judgment taken by a party due to failure to plead (file an answer) by the party against whom a court judgment is sought. A judgment by default may be entered either by the clerk of the court or by the judge.

DECLARATION OF DISCLOSURE

Each party to a dissolution action must prepare a Preliminary Declaration of Disclosure. It is our practice to prepare this instrument early on in the case. The Declaration of Disclosure is made up of three different documents. The most important one to the client is the Schedule of Assets and Debts. A blank form is given to each client in their original packet. The Schedule of Assets and Debts required the client to disclosure all of the assets which were acquired during marriage or are claimed to be the separate property of the party. It includes an opinion of value of the asset and an indication of any debt associated with the asset. The client is given an appointment to meet with the attorney within sixty days of opening the file to prepare the Preliminary Declaration of Disclosure. Once we have served our Preliminary Declaration of Disclosure and have received the other party's Preliminary Declaration of Disclosure, a four-way meeting can be set for the parties to meet and attempt to settle the issues of their case. The Final Declaration of Disclosure is to be served forty-five days before trial. The Preliminary Declaration of Disclosure is mandatory. The Final Declaration of Disclosure can be waived if both parties agree.

DEPOSITIONS

A party may ask another party or anyone else with information relevant to the case to attend a deposition. The deposed party is sworn to tell the truth and than answers questions on a formal record. Depositions are not commonly used on simple cases because they are very expensive.

DOMESTIC VIOLENCE

Domestic violence is physical or mental abuse perpetrated against a family or household member. Abuse means intentionally or recklessly causing, or attempting to cause bodily injury, or placing another person in reasonable apprehension of immediate, serious bodily injury to himself, herself, or another. Family or household member means a spouse, former spouse, parent, child or any other person related by consanguinity or affinity within the second degree of any other person who regularly resides in the household, or who, within the last six (6) months, regularly resided in the household.

EMERGENCY PROTECTIVE ORDER

A protective order obtained by a judge over the telephone, when court is not in session, by the police or other law enforcement personnel, on behalf of a party who must demonstrate that an emergency exists in which immediate harm will occur if the order is not obtained.

EX PARTE ORDER

A judicial proceeding, injunction or order having been granted without the opposing party having notice of its application or having the opportunity to present his or her side of the issue to the court.

EXCLUSION FROM THE RESIDENCE

Such an order can be obtained by only upon a party showing that the other spouse has assaulted or threatened to assault the spouse or any other person under the care, custody, and control of that party or any minor of the parties or of the party. Upon a hearing, the court may make such an order after the hearing without a showing of violence or threat of violence, i.e., the order may be based upon a showing of physical or emotional harm whether or not the harm resulted from an assault or threat of assault.

FINAL DECLARATION OF DISCLOSURE

See explanation under Declaration of Disclosure.

FOUR WAY MEETING

Once the Declarations of Disclosure have been exchanged, it is our policy to set a meeting with the other party and counsel to see if the issues of the case can be resolved. The client is asked to meet with the attorney thirty minutes before the four-way.

INCOME AND EXPENSE DECLARATION

A form to provide the court other party with current information as to the financial structure of the financial structure of the Declarant. A completed Income and Expense Declaration must be filed whenever the Petition or Response requests money, property, costs, or attorneys fees, or whenever there is to be a hearing or court determination on any issue on which income and expense information is relevant. It is one of the most important documents in a dissolution proceeding.

INTERROGATORIES

There are two type of interrogatories used in family law settings: form interrogatories and special interrogatories. Form interrogatories may be served by either party. The purpose of the interrogatories is to determine the position of the other party on issues related to property and support. Special interrogatories are used when a specific item requires further questioning. For example, if the residence was owned by one of the parties before marriage, special interrogatories would be used to determine the amount of the loan paid during the marriage. Interrogatories can also be used to determine the other party's opinion of value of assets.

IRRECONCILABLE DIFFERENCES

The court may order the marital status terminated on the grounds of irreconcilable differences that have differences that have caused an irremediable breakdown of the marriage.
Irreconcilable differences means any substantial reason for not continuing the marriage and which makes it appear that the marriage should be dissolved. This is a no-fault ground for dissolution of marriage. The only other basis for terminating the marital status is incurable insanity.

JUDGMENT

The final decision of a court, resolving the disputes and determining the rights and obligations of the parties. The judgment finalizes the dissolution of marriage. This may be obtained not less than six (6) months after the date of service of a copy of the Petition and Summons on the Respondent.

MARITAL SETTLEMENT AGREEMENT

An agreement between the parties providing for disposition and distribution of their community property, custody of children, payment of attorney's fees, court costs, and allowance of one party to the other for support and maintenance.

MEDIATION

Discussion attempting to achieve a voluntary settlement of a dispute by action of a mental health professional trained in negotiation. When a Petition or other application for an order or modification of an order for child custody or visitation is contested, the matter must be set for mediation. The purpose is to reduce the acrimony existing between the parties and to attempt to develop an agreement assuring the children=s close and continuing contact with both parents after dissolution. Mediation proceedings are private and confidential and counsel may be excluded from participation when exclusion is considered appropriate or necessary by the mediator. The mediator has the duty to evaluate the children=s needs and interest and may interview them if appropriate and necessary. The mediator may: (1) Make recommendations on custody or visitation to the court; (2) When the parties have not reached an agreement, recommend that a custody recommendation be made by the probation office; (3) Recommend other action to be taken by the parties to resolve the orders to protect the well-being of the children pending determination of the issues.

MODIFICATION

A change in the terms and conditions of a court order made by stipulation of the parties or upon court order after a proper showing.

NOTICE OF ENTRY OF JUDGMENT

A notice to attorney or party of the date of entry of judgment, book and page number.

NOTICE OF MOTION

A notice in writing in a lawsuit, stating that on a designated day a motion will be made to the court for will be made to the court for the purpose or object stated in the notice. Such notice is required to be served on all parties.

ORDER

Direction of a court or judge entered in writing.

ORDER TO SHOW CAUSE

An order to show cause is in the nature of a mini-OSC trial, and is a direction by the court to the person or persons named to appear to submit to the court evidence or legal reasons why the court should not issue the order requested, continue or dissolve such order. If the party fails to appear to give sufficient reasons why the court should desist, the court generally will take the action requested. An order to show cause generally concerns issues such as child custody, child visitation, spousal support, attorney's fees and costs, restraining orders, and orders relating to property control.

ORDER TO SHOW CAUSE RE: CONTEMPT

An order requiring a party to appear at a hearing for examination to determine whether or not a pre-existing order should be modified to comply with the terms and conditions requested in the declaration in support of the order to show cause.

ORDER TO SHOW CAUSE RE: MODIFICATION

An order requiring a party to appear at a hearing for examination to determine whether or not a pre-existing court order should be modified to comply with the terms and conditions requested in the declaration in support of the order to show cause.

ORDER AFTER HEARING

The order after hearing in the order of the court based upon the order to show cause. It sets forth the rights and obligations of the parties with respect to each other.

PATERNITY

The state or condition of being a father.

PETITION

The document filed to commence an action for dissolution, nullity, or legal separation.

PETITIONER

The party who initiates the proceeding for a dissolution of marriage, nullity, or legal separation.

PRELIMINARY DECLARATION OF DISCLOSURE

See explanation under Declaration of Disclosure

PROTECTIVE ORDER

Any order or decree of a court to protect a person from further harassment, service of process of discovery.

RESPONDENT

The party who answers/responds to the petition in the form of a response.

RESPONSE

The party's (Respondents) reply to the petition.

RESPONSIVE DECLARATION

The declaration, given under penalty of perjury, to be used by the responding party if he/she elects to contest the order to show cause.

RESTRAINING ORDER

An order forbidding a party from committing particular acts until a hearing can be held.

SANCTIONS

Penalties imposed by the court for violation of a court order or of a law.

SEPARATE PROPERTY

A persons separate property includes both assets and obligations and is generally defined as property owned by one spouse before marriage or acquired during marriage by gift or inheritance, as well as rents, issues and profits from such property; and earnings and accumulations of the spouses living separate and apart from the other spouse.

SERVICE OF PROCESS

The delivery of writs, summons, etc. The service must furnish reasonable notice of proceedings instituted against the defendant to afford him or her the opportunity to appear and to be heard in court.

SETTLEMENT CONFERENCE

Before each trial and sometimes before a long cause hearing, the trial judge will set a date for a settlement conference. The parties are required to attend the settlement conference and be prepared to discuss settlement of the case.

SPOUSAL SUPPORT

Money or other consideration paid upon order of the court for the support of a spouse in an amount and for a period of time that the court would consider reasonable. Pursuant to Family Code 4320, in making a spousal support award, the court must consider:
(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
(2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
(c) The ability to pay of the supporting party, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party where the court finds documented evidence of a history of domestic violence, as defined in Section 6211, against the supported party by the supporting party.
(I) The immediate and specific tax consequences to each party.
(j) The balance of the hardships to each party.
(k) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a "reasonable period of time" for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
(l) Any other factors the court determines are just and equitable.

STAY AWAY ORDER

Order that one party remain a certain distance from another person and/or his or her residence or place of business.

STIPULATE

Arrange or settle definitely; agree.

STIPULATION

An agreement made by the parties or their attorneys on the opposite sides of a case, settling some or all of the uncontested issues or procedural matters. An agreement reached by and between the parties on an issue upon which a court may base an order without having to present evidence on the issue.

SUMMONS

A writ of process issued by the clerk of the court, served with a copy of the petition upon the Respondent for the purpose of obtaining jurisdiction and giving notice of the pendency of the action. OR Instrument used to notify a person that an action has been commenced against him or her that will require an answer in court.

TEMPORARY RESTRAINING ORDER

An emergency remedy of brief duration that a court may issue only in exceptional circumstances and only until the trial court can hear the controversy and otherwise determine what relief is appropriate.

TRIAL

A judicial examination and determination of issues of law and fact between parties to a lawsuit.

WAGE ASSIGNMENT

The transfer or assignment in advance of one's wages, or a portion of one's wages, generally in connection with a debt or judgment (such as child or spousal support order).