CALIFORNIA FAMILY LAW FOR PARALEGALS, 5 th Ed. Chapter Eight The Litigation Process.

CALIFORNIA CALIFORNIA FAMILY LAW FAMILY LAW

FOR FOR PARALEGALS, 5PARALEGALS, 5thth

Ed.Ed.Chapter EightChapter EightThe Litigation ProcessThe Litigation Process

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A. OVERVIEW OF THE A. OVERVIEW OF THE LITIGATION PROCESSLITIGATION PROCESS

Much of the paralegal’s time will be devoted to Much of the paralegal’s time will be devoted to assistance at virtually every phase of the litigation assistance at virtually every phase of the litigation process, from the initial commencement of the process, from the initial commencement of the proceedings, obtaining relief pending trial, obtaining proceedings, obtaining relief pending trial, obtaining judgment, and finally any post-judgment judgment, and finally any post-judgment modifications that may be necessary.modifications that may be necessary.

Litigation is merely the act of marshaling the facts in Litigation is merely the act of marshaling the facts in support of your position and against those offered by support of your position and against those offered by your opponent and presenting them in a clear and your opponent and presenting them in a clear and convincing manner to the trier of fact, in this convincing manner to the trier of fact, in this context, the judge.context, the judge.

While most courts differ as to time parameters and While most courts differ as to time parameters and local procedures, the basic structure of a lawsuit is local procedures, the basic structure of a lawsuit is for the most part the same in all locales.for the most part the same in all locales.

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Some form of initial presentation of a party’s Some form of initial presentation of a party’s position is required to get the ball rolling.position is required to get the ball rolling.

This is typically called the This is typically called the ComplaintComplaint in most in most civil matters, the civil matters, the IndictmentIndictment or or informationinformation in in criminal matters, and the criminal matters, and the PetitionPetition in family law in family law cases.cases.

The Petition is basically a position paper The Petition is basically a position paper setting forth the petitioner’s (the person setting forth the petitioner’s (the person commencing the litigation) position on the commencing the litigation) position on the various issues to be addressed in the case.various issues to be addressed in the case.

The Petition is then The Petition is then servedserved upon the other upon the other party to the proceeding, thus giving him party to the proceeding, thus giving him noticenotice of what it is the petitioner desires by virtue of of what it is the petitioner desires by virtue of this action.this action.

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Because all parties to litigation are allowed Because all parties to litigation are allowed an opportunity to be heard (that is, a chance an opportunity to be heard (that is, a chance to tell their side of the story), the next step in to tell their side of the story), the next step in the litigation process is typically taken by the the litigation process is typically taken by the opposing party by filing his own position opposing party by filing his own position paper.paper.

In family law, this document is known as the In family law, this document is known as the ResponseResponse..

In most other civil matters it is called an In most other civil matters it is called an AnswerAnswer because its function is to answer the because its function is to answer the allegations made in Complaint.allegations made in Complaint.

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Once the Petition (Complaint) and the Once the Petition (Complaint) and the Response (Answer) have been filed, the Response (Answer) have been filed, the matter is ready to be scheduled for trial.matter is ready to be scheduled for trial.

There next ensues a sometimes There next ensues a sometimes significant waiting period during which significant waiting period during which time discovery is conducted, pretrial time discovery is conducted, pretrial orders are requested and often made, orders are requested and often made, and general preparations for trial are and general preparations for trial are undertaken by all sides to the litigation.undertaken by all sides to the litigation.

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Once the matter is called for trial, assuming all Once the matter is called for trial, assuming all parties are ready (and sometimes whether they parties are ready (and sometimes whether they are ready or not), the parties are usually are ready or not), the parties are usually required to present themselves to a judicial required to present themselves to a judicial officer who conducts a officer who conducts a mandatory settlement mandatory settlement conferenceconference in an attempt to achieve and in an attempt to achieve and amicable resolution of the issues without the amicable resolution of the issues without the necessity of trial.necessity of trial.

On the day of trial, the trial judge may refer the On the day of trial, the trial judge may refer the parties to parties to mediationmediation in yet another attempt at in yet another attempt at settlement, and a trip to the settlement, and a trip to the conciliation courtconciliation court is is also required if there are issues of child custody also required if there are issues of child custody or visitation involved.or visitation involved.

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When the trial starts, the issues are presented When the trial starts, the issues are presented in an orderly manner with the petitioner in an orderly manner with the petitioner going first, and the respondent responding to going first, and the respondent responding to the petitioner’s claims, raising issues of his or the petitioner’s claims, raising issues of his or her own as the circumstances may require.her own as the circumstances may require.

Following the trial, the judicial officer weighs Following the trial, the judicial officer weighs all the evidence, makes various findings all the evidence, makes various findings (factual and legal conclusions based upon the (factual and legal conclusions based upon the evidence presented), and renders a decision evidence presented), and renders a decision on all issues in controversy.on all issues in controversy.

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In the family law context, this decision will In the family law context, this decision will typically divide all community property and typically divide all community property and obligations, determine custody of the children, obligations, determine custody of the children, determines issues of support and all other determines issues of support and all other matters relevant and necessary to an orderly matters relevant and necessary to an orderly termination of the relationship.termination of the relationship.

Like most other court orders, the orders made Like most other court orders, the orders made at trial are subject to review by the appellate at trial are subject to review by the appellate court.court.

Many orders made at trial in a family law Many orders made at trial in a family law matter are also subject to post-trial matter are also subject to post-trial modification as the circumstances may require.modification as the circumstances may require.

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B. THE INITIAL CLIENT B. THE INITIAL CLIENT INTERVIEWINTERVIEW

Many attorneys will want to include their Many attorneys will want to include their paralegal in the initial intake interview and so paralegal in the initial intake interview and so familiarity with this process is a must.familiarity with this process is a must.

The paralegal’s role in this process may rise to The paralegal’s role in this process may rise to the level of collecting much of the information the level of collecting much of the information him or herself or may simply consist of him or herself or may simply consist of observing the dialogue between the client and observing the dialogue between the client and the attorney, taking notes of the meeting as the attorney, taking notes of the meeting as the context requires, depending upon the the context requires, depending upon the particular attorney and client involved and the particular attorney and client involved and the degree of experience of the paralegal.degree of experience of the paralegal.

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The The client information sheetclient information sheet is simply a list of is simply a list of information collected from the client in order information collected from the client in order to create as complete a “database” as to create as complete a “database” as possible about that client.possible about that client.

There is no particular form and there are few There is no particular form and there are few rules regarding its preparation except these rules regarding its preparation except these two: 1) it must be maintained; and 2) it must two: 1) it must be maintained; and 2) it must be thorough.be thorough.

Unless it is so required for any particular Unless it is so required for any particular purpose, the listing should be relatively short purpose, the listing should be relatively short and succinct, and easily browsed to facilitate and succinct, and easily browsed to facilitate locating a particular piece of information.locating a particular piece of information.

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Whether the client information sheet Whether the client information sheet is done in the office with the is done in the office with the attorney, in the reception area, or at attorney, in the reception area, or at home, the important point is that it home, the important point is that it should be should be donedone..

See Figure 8-1 on pages 318 to 320 See Figure 8-1 on pages 318 to 320 for an example of a client for an example of a client information sheet.information sheet.

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C. CHOICE OF ACTIONSC. CHOICE OF ACTIONS

Obviously, when two people decide to Obviously, when two people decide to terminate their relationship, decisions terminate their relationship, decisions must be made regarding how this will must be made regarding how this will be accomplished: put succinctly, what be accomplished: put succinctly, what typetype of action will be filed. of action will be filed.

There are three types of actions There are three types of actions available when commencing litigation available when commencing litigation in this area: in this area: dissolutiondissolution, , legal legal separationseparation, and , and nullitynullity..

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C. CHOICE OF ACTIONSC. CHOICE OF ACTIONS

Family Code section 310 instructs that a Family Code section 310 instructs that a marriage can only be terminated by marriage can only be terminated by death, a judgment of dissolution of death, a judgment of dissolution of marriage, or a judgment of nullity of marriage, or a judgment of nullity of marriage.marriage.

A judgment of legal separation, while A judgment of legal separation, while available, will not terminate a marriage.available, will not terminate a marriage.

Thus, if termination of marriage is the Thus, if termination of marriage is the goal, only two options are available: goal, only two options are available: dissolution or nullity.dissolution or nullity.

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1. NULLITY1. NULLITY

An action for nullity is actually somewhat of a An action for nullity is actually somewhat of a rarity due to the very specific and unique rarity due to the very specific and unique grounds under which it is available.grounds under which it is available.

An action for nullity presumes (or at least An action for nullity presumes (or at least argues) that the marriage was not in fact argues) that the marriage was not in fact valid, and as such must not be given any valid, and as such must not be given any recognition at all.recognition at all.

The marriage is declared void, and the parties The marriage is declared void, and the parties are returned to the status of unmarried are returned to the status of unmarried persons as if the marriage had never taken persons as if the marriage had never taken place.place.

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1. NULLITY1. NULLITY Several other factors might prove attractive in Several other factors might prove attractive in

selecting an action for nullity over one for selecting an action for nullity over one for dissolution.dissolution.

For example, the six-month waiting period before For example, the six-month waiting period before a judgment of dissolution becomes final does not a judgment of dissolution becomes final does not apply.apply.

Neither does the six-month residence Neither does the six-month residence requirement.requirement.

Unlike a dissolution of marriage, nullity can be Unlike a dissolution of marriage, nullity can be directly concerned with fault, especially when it directly concerned with fault, especially when it comes to assessing attorney’s fees and costs comes to assessing attorney’s fees and costs against one of the parties.against one of the parties.

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In order to provide some relief for innocent parties to In order to provide some relief for innocent parties to an invalid marriage when dealing with the property an invalid marriage when dealing with the property of that “marriage,” the law has created a separate of that “marriage,” the law has created a separate category applicable to such persons.category applicable to such persons.

They are called They are called putative spousesputative spouses.. This is an equitable concept designed to provide an This is an equitable concept designed to provide an

innocent spouse (one who in good faith believed the innocent spouse (one who in good faith believed the marriage was valid and acted accordingly) with a fair marriage was valid and acted accordingly) with a fair realization of the expectations formed during the realization of the expectations formed during the marriage.marriage.

Such spouses will generally be granted certain rights Such spouses will generally be granted certain rights usually reserved for parties to a valid marriage usually reserved for parties to a valid marriage regardless of the fact that the marriage was in fact regardless of the fact that the marriage was in fact not valid.not valid.

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Another interesting distinction between a Another interesting distinction between a nullity action and one for dissolution has to nullity action and one for dissolution has to do with the do with the partiesparties to the litigation. to the litigation.

While in a dissolution (or legal separation) While in a dissolution (or legal separation) action, the party commencing the action, the party commencing the proceeding must be one of the parties to proceeding must be one of the parties to the marriage, such is not necessarily the the marriage, such is not necessarily the case in an action for nullity.case in an action for nullity.

Other interested persons such as parents Other interested persons such as parents and other relatives can commence a nullity and other relatives can commence a nullity action on behalf of one of the parties to the action on behalf of one of the parties to the “marriage.”“marriage.”

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a) a) Void versus Voidable MarriagesVoid versus Voidable Marriages In the context of an action for nullity, a In the context of an action for nullity, a

distinction is made between a distinction is made between a voidvoid marriage and one that is merely marriage and one that is merely voidablevoidable..

In the latter case, the marriage is In the latter case, the marriage is actually valid until such time as actually valid until such time as whatever defect rendering it subject to whatever defect rendering it subject to attack in the nullity action is proven, at attack in the nullity action is proven, at which point the marriage will then be which point the marriage will then be deemed deemed voidvoid..

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Some “marriages” however are never Some “marriages” however are never validvalid, , and never carry with them the benefits of a and never carry with them the benefits of a valid marriage, not even for a short time.valid marriage, not even for a short time.

The grounds upon which a nullity action The grounds upon which a nullity action can be brought are specific and are can be brought are specific and are provided by statute. They are:provided by statute. They are:

Void: (1) Incestuous marriage: Family Code Void: (1) Incestuous marriage: Family Code §2200§2200

(2) Bigamous; polygamous marriages: (2) Bigamous; polygamous marriages: Family Code §2201.Family Code §2201.

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Voidable: (1) Petitioner’s age at the time Voidable: (1) Petitioner’s age at the time of the marriage: of the marriage: Family Code §2210(a)Family Code §2210(a)

(2) Prior existing marriage: (2) Prior existing marriage: Family Code Family Code §2210(b)§2210(b)

(3) Unsound mind: (3) Unsound mind: Family Code §2210(c)Family Code §2210(c) (4) Fraud: (4) Fraud: Family Code §2210(d)Family Code §2210(d) (5) Force: (5) Force: Family Code §2210(e)Family Code §2210(e) (6) Physical incapacity: (6) Physical incapacity: Family Code Family Code

§2210(f)§2210(f)

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b) b) Nullity Based on Void MarriagesNullity Based on Void Marriages Statutorily speaking, there are only two Statutorily speaking, there are only two

grounds upon which a marriage will be grounds upon which a marriage will be declared a nullity as void or of never of any declared a nullity as void or of never of any force and effect.force and effect.

These are These are incestuousincestuous and and bigamousbigamous and and polygamouspolygamous marriages. marriages.

Family Code section 2200 describes as Family Code section 2200 describes as incestuous any marriage between “parents incestuous any marriage between “parents and children,” “brothers and sisters” (half and children,” “brothers and sisters” (half brothers and sisters also), “uncles and brothers and sisters also), “uncles and nieces,” “aunts and nephews,” and “ancestors nieces,” “aunts and nephews,” and “ancestors and descendants of every degree.”and descendants of every degree.”

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Family Code section 2201 describes a bigamous marriage Family Code section 2201 describes a bigamous marriage as one created when a person, after having married one as one created when a person, after having married one person subsequently marries another person without person subsequently marries another person without having terminated the first marriage (by dissolution or a having terminated the first marriage (by dissolution or a decree of nullity).decree of nullity).

An exception to this rule of an automatically void marriage An exception to this rule of an automatically void marriage is found in Family Code section 2201(a)(2), which provides is found in Family Code section 2201(a)(2), which provides that the result mandated generally by section 2201 will be that the result mandated generally by section 2201 will be avoided if the former spouse is absent (that is, missing), avoided if the former spouse is absent (that is, missing), and has been for at least five successive years immediately and has been for at least five successive years immediately preceding the subsequent marriage, or is generally preceding the subsequent marriage, or is generally presumed to be dead at the time of the subsequent presumed to be dead at the time of the subsequent marriage (without waiting the five years).marriage (without waiting the five years).

In these cases the marriage is considered valid until its In these cases the marriage is considered valid until its nullity is declared.nullity is declared.

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c) c) Nullity Based on Voidable MarriagesNullity Based on Voidable Marriages Not all defective marriages are void right Not all defective marriages are void right

from the start.from the start. Several marriages may start out valid on Several marriages may start out valid on

their face and later end up being declared their face and later end up being declared null and of no force or effect.null and of no force or effect.

These marriages are said to be These marriages are said to be voidablevoidable.. It is important to note that these marriages It is important to note that these marriages

are completely valid for all purposes until are completely valid for all purposes until such time as they are declared a nullity.such time as they are declared a nullity.

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The legal defect must exist The legal defect must exist at the at the time of the marriagetime of the marriage..

If the marriage is valid at its If the marriage is valid at its inception (that is, there are no legal inception (that is, there are no legal defects then in existence), it cannot defects then in existence), it cannot be set aside later and declared a be set aside later and declared a nullity.nullity.

It can only be terminated by It can only be terminated by dissolution.dissolution.

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The basic distinction between these The basic distinction between these marriages and those that are void primarily marriages and those that are void primarily has to do with the has to do with the availabilityavailability of the nullity of the nullity action.action.

For all practical purposes, in a void marriage For all practical purposes, in a void marriage no rights or incidents of the marriage can no rights or incidents of the marriage can attach to the relationship.attach to the relationship.

A void marriage is A void marriage is never validnever valid.. A voidable marriage, on the other hand, A voidable marriage, on the other hand, isis

valid on its face until someone attempts to valid on its face until someone attempts to have it set aside.have it set aside.

If no one ever does, then it simply continues If no one ever does, then it simply continues until it is terminated in some other way.until it is terminated in some other way.

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Section 2210(a) provides that a marriage can Section 2210(a) provides that a marriage can be annulled if the petitioner in the nullity be annulled if the petitioner in the nullity proceeding was not old enough to legally proceeding was not old enough to legally consent to the marriage.consent to the marriage.

Once the underage party comes of age, Once the underage party comes of age, however, if he continues to cohabitate with his however, if he continues to cohabitate with his spouse as husband and wife, this avenue of spouse as husband and wife, this avenue of nullity will no longer be available.nullity will no longer be available.

Section 2210(b) provides the answer to the Section 2210(b) provides the answer to the missing/presumed dead spouse question.missing/presumed dead spouse question.

Under those circumstances, the second Under those circumstances, the second marriage is marriage is voidablevoidable..

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Section 2210(c) makes a marriage voidable if Section 2210(c) makes a marriage voidable if either party was of unsound mind at the time of either party was of unsound mind at the time of the marriage.the marriage.

Section 2210(d) makes a marriage voidable when Section 2210(d) makes a marriage voidable when the consent of either party was the product of the consent of either party was the product of fraud.fraud.

Section 2210(e) is similar to (d) above, only it Section 2210(e) is similar to (d) above, only it speaks to consent through the use of force.speaks to consent through the use of force.

Section 2210(f) renders a marriage voidable if, at Section 2210(f) renders a marriage voidable if, at the time of the marriage, either party was the time of the marriage, either party was physically incapable of entering into the marriage physically incapable of entering into the marriage state, and the incapacity continues and appears state, and the incapacity continues and appears to be incurable.to be incurable.

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Family Code section 2211 provides the Family Code section 2211 provides the limitation period and proper petitioning limitation period and proper petitioning party in these actions.party in these actions.

Actions brought under 2210(a) are limited Actions brought under 2210(a) are limited to those brought within four years after to those brought within four years after reaching the age of consent.reaching the age of consent.

If a parent or guardian wishes to bring the If a parent or guardian wishes to bring the action, it must be done before the underage action, it must be done before the underage married person comes of age.married person comes of age.

Once a party turns 18, he has four years to Once a party turns 18, he has four years to seek to have the marriage declared a seek to have the marriage declared a nullity due to the fact of his minority at the nullity due to the fact of his minority at the time of the marriage.time of the marriage.

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Only the spouse who was underage at the Only the spouse who was underage at the time of the marriage (or a party acting on time of the marriage (or a party acting on his behalf) may bring the action.his behalf) may bring the action.

Family Code section 2211 answers the Family Code section 2211 answers the question of just who this other person who question of just who this other person who commences the action on behalf of the commences the action on behalf of the underage spouse is: that spouse’s underage spouse is: that spouse’s parent(s) or legal guardian.parent(s) or legal guardian.

According to Family Code section 2211(a)According to Family Code section 2211(a)(2), they must bring their action (2), they must bring their action beforebefore their child becomes an adult.their child becomes an adult.

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Family Code section 2201 does not declare Family Code section 2201 does not declare marriages that fall into this area of “presumed marriages that fall into this area of “presumed dead/missing” void.dead/missing” void.

In fact, that section specifically recites that In fact, that section specifically recites that such marriages are such marriages are notnot void. void.

The statute makes it clear that when a party The statute makes it clear that when a party enters into a subsequent marriage under enters into a subsequent marriage under circumstances where the former spouse is circumstances where the former spouse is missing or presumed dead, the missing or presumed dead, the subsequentsubsequent marriage is marriage is voidablevoidable, not void, upon the timely , not void, upon the timely request of either of the “new” spouses as well request of either of the “new” spouses as well as the previously believed to be dead or as the previously believed to be dead or missing spouse.missing spouse.

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Section 2211(c) limits section 2210(c) Section 2211(c) limits section 2210(c) actions to the injured party (or a relative or actions to the injured party (or a relative or conservator of a person of unsound mind).conservator of a person of unsound mind).

There is no time limit for bringing this There is no time limit for bringing this action.action.

It can be brought at any time before the It can be brought at any time before the death of either party.death of either party.

For marriages voidable by reason of fraud, For marriages voidable by reason of fraud, the injured party must bring the action the injured party must bring the action within four years of first discovering the within four years of first discovering the facts constituting the fraud.facts constituting the fraud.

This is also the case when dealing with This is also the case when dealing with issues of physical incapacity.issues of physical incapacity.

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d) d) The Putative SpouseThe Putative Spouse Family Code section 2251 provides that, in the Family Code section 2251 provides that, in the

context of a void or voidable marriage, context of a void or voidable marriage, whenever one or both of the parties believed whenever one or both of the parties believed in good faith that the marriage was valid, the in good faith that the marriage was valid, the court shall decree such person(s) to have the court shall decree such person(s) to have the status of status of putative spouseputative spouse and as such be and as such be eligible to receive the benefits of the eligible to receive the benefits of the provisions of Family Code sections 2500 et provisions of Family Code sections 2500 et seq. regarding property acquired during the seq. regarding property acquired during the “marriage” that would have been community “marriage” that would have been community or quasi-community property had the marriage or quasi-community property had the marriage not been void or voidable.not been void or voidable.

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Section 2254 of the Family Code provides Section 2254 of the Family Code provides that a putative spouse is also entitled to that a putative spouse is also entitled to the benefits of an award of spousal the benefits of an award of spousal support in the same manner as if the support in the same manner as if the marriage had not been void or voidable.marriage had not been void or voidable.

Section 2255 makes an award of Section 2255 makes an award of attorney’s fees and costs available to a attorney’s fees and costs available to a putative spouse, and section 2080 gives putative spouse, and section 2080 gives the court the power to restore the wife’s the court the power to restore the wife’s former name to her following entry of a former name to her following entry of a judgment of nullity.judgment of nullity.

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2. DISSOLUTION AND 2. DISSOLUTION AND LEGAL SEPARATIONLEGAL SEPARATION

In California the most common method of In California the most common method of terminating a marital union is through the terminating a marital union is through the procedure of procedure of dissolutiondissolution..

Also available is an action that results in a Also available is an action that results in a decree of decree of legal separationlegal separation..

Procedurally these two actions are virtually Procedurally these two actions are virtually identical; and, with the exception of the rather identical; and, with the exception of the rather major distinction of the continuing marital major distinction of the continuing marital union, the results available in a legal union, the results available in a legal separation are exactly the same as those separation are exactly the same as those obtained through dissolution.obtained through dissolution.

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Issues of child custody and visitation, child Issues of child custody and visitation, child and spousal support, attorney’s fees and and spousal support, attorney’s fees and costs, property division, restraining orders, costs, property division, restraining orders, and other injunctive relief are all equally and other injunctive relief are all equally available whether through dissolution or legal available whether through dissolution or legal separation.separation.

The same procedure is applied and the same The same procedure is applied and the same forms are used in the prosecution of the forms are used in the prosecution of the action for legal separation and dissolution.action for legal separation and dissolution.

The fundamental differences between the two The fundamental differences between the two procedures are noted below: see pages 327-procedures are noted below: see pages 327-328.328.

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The grounds for obtaining a dissolution and The grounds for obtaining a dissolution and legal separation are the same and are found in legal separation are the same and are found in Family Code section 2310: irreconcilable Family Code section 2310: irreconcilable differences and incurable insanity.differences and incurable insanity.

Incurable insanity, while available, is virtually Incurable insanity, while available, is virtually never used as grounds for a dissolution action.never used as grounds for a dissolution action.

To prove incurable insanity requires To prove incurable insanity requires introduction of medical expert opinion introduction of medical expert opinion testimony attesting to the party’s incurable testimony attesting to the party’s incurable insanity at the time the Petition is filed and its insanity at the time the Petition is filed and its continuance through the hearing on the continuance through the hearing on the dissolution.dissolution.

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Family Code section states as follows: Family Code section states as follows: “Irreconcilable differences are those “Irreconcilable differences are those grounds which are determined by the court grounds which are determined by the court to be substantial reasons for not continuing to be substantial reasons for not continuing the marriage and which make it appear that the marriage and which make it appear that the marriage should be dissolved.”the marriage should be dissolved.”

Substantial reasons for not continuing the Substantial reasons for not continuing the marriage are usually found when one party marriage are usually found when one party testifies that the marriage is over and not testifies that the marriage is over and not capable of being saved.capable of being saved.

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3. SUMMARY 3. SUMMARY DISSOLUTIONDISSOLUTION

Under certain very limited and very strict Under certain very limited and very strict circumstances, parties to a marriage may be circumstances, parties to a marriage may be able to avail themselves of the statutory able to avail themselves of the statutory procedure known as procedure known as summary dissolutionsummary dissolution..

This process is quick and inexpensive and is This process is quick and inexpensive and is designed to be obtained easily and without designed to be obtained easily and without participation by attorneys.participation by attorneys.

This procedure does not require a court This procedure does not require a court hearing or appearance and is set out in hearing or appearance and is set out in detail in Family Code sections 2400 et seq.detail in Family Code sections 2400 et seq.

Summary dissolution is only available if Summary dissolution is only available if allall of of the following conditions are met: see page the following conditions are met: see page 329.329.

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D. THE SUMMONSD. THE SUMMONS

One of the documents that must be One of the documents that must be prepared and accompany the Petition prepared and accompany the Petition when taken to the clerk’s office for filing when taken to the clerk’s office for filing is the is the SummonsSummons..

This document is This document is issuedissued by the court by the court clerk and acts as an officially issued clerk and acts as an officially issued document that gives notice to the document that gives notice to the respondent that legal proceedings have respondent that legal proceedings have been instituted against him and advises been instituted against him and advises him to retain counsel.him to retain counsel.

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Following the expiration of 30 days Following the expiration of 30 days following service, if no Response to the following service, if no Response to the Petition has been received (or some other Petition has been received (or some other acceptable responsive document), then the acceptable responsive document), then the petitioner (or her attorney) prepares and petitioner (or her attorney) prepares and sends down to the court clerk a document sends down to the court clerk a document called Request to Enter Default (form FL-called Request to Enter Default (form FL-165) and includes with this delivery the 165) and includes with this delivery the original summons (to prove that it was original summons (to prove that it was issued) and the original Proof of Service issued) and the original Proof of Service (to prove that the papers were served).(to prove that the papers were served).

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““Notice” is extremely important in the context Notice” is extremely important in the context of a legal proceeding and is necessary to of a legal proceeding and is necessary to satisfy the due process considerations satisfy the due process considerations mandated by the Constitution.mandated by the Constitution.

Properly serving these documents will satisfy Properly serving these documents will satisfy the constitutional requirements of notice and the constitutional requirements of notice and opportunity to be heard, and thus the manner opportunity to be heard, and thus the manner of service is very important.of service is very important.

Improper service can, absent a general Improper service can, absent a general appearance entered by the respondent, result appearance entered by the respondent, result in a in a voidvoid judgment. judgment.

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Once the appropriate documents have Once the appropriate documents have been served (the Petition and been served (the Petition and Summons), the person who actually Summons), the person who actually served the documents must complete a served the documents must complete a separate document known as a “proof of separate document known as a “proof of service,” which is maintained by the service,” which is maintained by the attorney until such time as it needs to be attorney until such time as it needs to be filed with the court.filed with the court.

When reviewing the Family Law When reviewing the Family Law Summons, care should be taken in Summons, care should be taken in examining the back side.examining the back side.

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Family Code sections 213, et. Seq. provide for Family Code sections 213, et. Seq. provide for the the automaticautomatic issuance of temporary issuance of temporary restraining orders against both the petitioner restraining orders against both the petitioner (effective when the summons is issued by the (effective when the summons is issued by the clerk) clerk) andand against the respondent (effective against the respondent (effective once the respondent has been personally once the respondent has been personally served with the summons and petition).served with the summons and petition).

They are primarily designed to maintain the They are primarily designed to maintain the status quo between the parties during that status quo between the parties during that time after filing the petition and before a time after filing the petition and before a court hearing.court hearing.

See Figure 8-2 on pages 332-333.See Figure 8-2 on pages 332-333.

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E. THE INITIAL FILINGE. THE INITIAL FILING

Once the initial interview has been completed Once the initial interview has been completed the attorney is prepared to “officially” the attorney is prepared to “officially” commence the proceedings.commence the proceedings.

These initial papers are actually preprinted These initial papers are actually preprinted forms, which are filled out and modified as forms, which are filled out and modified as needed.needed.

These forms are, for the most part, designed These forms are, for the most part, designed and promulgated by the California Judicial and promulgated by the California Judicial Council.Council.

Most of the forms available for use in family law Most of the forms available for use in family law proceedings are mandatory and proceedings are mandatory and mustmust be used. be used.

See Figure 8-3 on pages 335-336.See Figure 8-3 on pages 335-336.

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1. 1. The Petition and Response FormsThe Petition and Response Forms The Petition and the Response are the rough The Petition and the Response are the rough

equivalent to the complaint and answer in a non-equivalent to the complaint and answer in a non-family law proceeding and can generally be family law proceeding and can generally be described as “position papers.”described as “position papers.”

Essentially, the parties set forth the nature of their Essentially, the parties set forth the nature of their request (that is, dissolution of marriage, legal request (that is, dissolution of marriage, legal separation, or nullity), their contentions as to basic separation, or nullity), their contentions as to basic statistical information (date of marriage and date statistical information (date of marriage and date of separation), property rights (both separate and of separation), property rights (both separate and community), and their various requests pertinent community), and their various requests pertinent to issues of custody and visitation of children, to issues of custody and visitation of children, support (spousal and child), and attorney’s fees support (spousal and child), and attorney’s fees and costs.and costs.

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E. THE INITIAL FILINGE. THE INITIAL FILING The Petition (form FL-100) is the form used The Petition (form FL-100) is the form used

whenever a party seeks to change his marital whenever a party seeks to change his marital status whether by dissolution, legal separation, status whether by dissolution, legal separation, or nullity.or nullity.

Once this document is properly completed and Once this document is properly completed and filed, the proceeding has started.filed, the proceeding has started.

Both the Petition and Response (form FL-120) Both the Petition and Response (form FL-120) are substantially identical both in structure and are substantially identical both in structure and substance.substance.

See Figure 8-4 on page 338; see Figure 8-5 on See Figure 8-4 on page 338; see Figure 8-5 on page 339; see Figure 8-6 on page 340; see Figure page 339; see Figure 8-6 on page 340; see Figure 8-7 on page 342; and see Figure 8-8 on pages 8-7 on page 342; and see Figure 8-8 on pages 344-345.344-345.

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E. THE INITIAL FILINGE. THE INITIAL FILING 2. 2. Additional Options Available to RespondentAdditional Options Available to Respondent Although the petitioner is restricted to filing the Although the petitioner is restricted to filing the

Petition when commencing the proceedings, the Petition when commencing the proceedings, the respondent actually has several choices other respondent actually has several choices other than merely filing the Response (depending than merely filing the Response (depending upon the facts and circumstances of the upon the facts and circumstances of the particular case).particular case).

Once served, the respondent must decide Once served, the respondent must decide whether to submit to the court’s jurisdiction or whether to submit to the court’s jurisdiction or challenge the court’s exercise of power over challenge the court’s exercise of power over him.him.

This decision is usually based upon a contention This decision is usually based upon a contention by the respondent that the court does not have by the respondent that the court does not have personal jurisdiction over him.personal jurisdiction over him.

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To challenge jurisdiction, the respondent To challenge jurisdiction, the respondent must make a must make a special appearancespecial appearance and and contest jurisdiction by filing a contest jurisdiction by filing a motion to motion to quash the service of summonsquash the service of summons..

This will have the effect, if successful, of This will have the effect, if successful, of denying the petitioner’s attempt to seek denying the petitioner’s attempt to seek relief against the respondent in that state.relief against the respondent in that state.

Another motion available to the respondent Another motion available to the respondent is called a is called a motion to quash the proceedingmotion to quash the proceeding..

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The basis for such a motion is set out in detail The basis for such a motion is set out in detail in CRC 5.121 and includes challenges based in CRC 5.121 and includes challenges based upon allegations that the petitioner lacks the upon allegations that the petitioner lacks the capacity to file a lawsuit, that residence capacity to file a lawsuit, that residence requirements have not been met or that there requirements have not been met or that there is another action already pending between is another action already pending between these parties on the same issues.these parties on the same issues.

CRC 3.1326 gives the respondent the CRC 3.1326 gives the respondent the opportunity to request, by motion, that the opportunity to request, by motion, that the venue (location) of the proceedings be venue (location) of the proceedings be changed.changed.

This is called a This is called a motion to change of venuemotion to change of venue..

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Finally, CRC 3.1322 makes provision Finally, CRC 3.1322 makes provision for filing a motion to strike (remove) for filing a motion to strike (remove) certain items contained in the certain items contained in the Petition not specifically required by Petition not specifically required by FL-100.FL-100.

A similar motion can be made by the A similar motion can be made by the petitioner regarding improper items petitioner regarding improper items contained in the Response.contained in the Response.

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3. 3. Filing and Service RequirementFiling and Service Requirement Once the various papers have been Once the various papers have been

prepared, they must be filed with the prepared, they must be filed with the appropriate office of the superior court appropriate office of the superior court clerk and then served on the responding clerk and then served on the responding party.party.

The fee for an initial filing is currently The fee for an initial filing is currently about $320 for the Petition and roughly about $320 for the Petition and roughly $320 for the Response.$320 for the Response.

Indigent litigants can have this fee Indigent litigants can have this fee waived.waived.

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F. DEFAULT AND F. DEFAULT AND UNCONTESTED HEARINGSUNCONTESTED HEARINGS

It is not uncommon for many family law It is not uncommon for many family law matters to resolve either through default or matters to resolve either through default or uncontested proceedings.uncontested proceedings.

From a procedural standpoint, once service From a procedural standpoint, once service of the Petition has been effected, the of the Petition has been effected, the respondent has 30 days within which to respondent has 30 days within which to either file and serve a Response or some either file and serve a Response or some other appropriate paper.other appropriate paper.

If that time passes with no responsive If that time passes with no responsive papers having been filed, the petitioner can papers having been filed, the petitioner can request that the clerk enter the request that the clerk enter the respondent’s default in the case.respondent’s default in the case.

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F. DEFAULT AND F. DEFAULT AND UNCONTESTED HEARINGSUNCONTESTED HEARINGS Once the Request to Enter Default is Once the Request to Enter Default is

properly completed and filed with the properly completed and filed with the court, the court clerk will enter the court, the court clerk will enter the default of the respondent, and the default of the respondent, and the respondent will thus be precluded respondent will thus be precluded from taking further action in the case from taking further action in the case until the default is set aside.until the default is set aside.

See Figure 8-9 on pages 348-349.See Figure 8-9 on pages 348-349. At this time the matter can be set for At this time the matter can be set for

hearing on the default “prove-up.”hearing on the default “prove-up.”

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This typically involves an appearance by the This typically involves an appearance by the petitioner by the in court in front of the judge petitioner by the in court in front of the judge with all of the paperwork involved pertinent to with all of the paperwork involved pertinent to obtaining the relief requested in the Petition, obtaining the relief requested in the Petition, and then giving testimony to support his or her and then giving testimony to support his or her requests.requests.

In some of the larger counties, the personal In some of the larger counties, the personal appearance of the petitioner is not required: appearance of the petitioner is not required: The petitioner may simply send all of the The petitioner may simply send all of the various documentation to the court along with various documentation to the court along with an evidentiary declaration supporting the an evidentiary declaration supporting the requested relief, and with a proposed judgment requested relief, and with a proposed judgment to be signed and entered by the court.to be signed and entered by the court.

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There are several other papers that must be There are several other papers that must be completed by the petitioner and submitted to the completed by the petitioner and submitted to the court.court.

They include:They include: 1. Declaration for Default or Uncontested 1. Declaration for Default or Uncontested

Dissolution (form FL-170)Dissolution (form FL-170) 2. Income and Expense Declaration (form FL-150)2. Income and Expense Declaration (form FL-150) 3. Declaration of Disclosure (form FL-140)3. Declaration of Disclosure (form FL-140) 4. Judgment (form FL-180)4. Judgment (form FL-180) 5. Notice of Entry of Judgment (form FL-190) 5. Notice of Entry of Judgment (form FL-190)

along with two along with two stampedstamped envelopes, one addressed envelopes, one addressed to the petitioner and one addressed to the to the petitioner and one addressed to the respondentrespondent

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A close relative to the default procedure is one A close relative to the default procedure is one which is uncontested.which is uncontested.

Many individuals wish to avoid the Many individuals wish to avoid the inconvenience and expense associated with a inconvenience and expense associated with a protracted trial in a family law matter.protracted trial in a family law matter.

As such, they are free to sit down with each As such, they are free to sit down with each other and work out a mutual basis for other and work out a mutual basis for agreement on all issues.agreement on all issues.

The process for an uncontested dissolution is The process for an uncontested dissolution is basically the same as with default matters, the basically the same as with default matters, the only fundamental difference being that it is only fundamental difference being that it is based not upon failure of the respondent to based not upon failure of the respondent to participate, but on a judgment to which both participate, but on a judgment to which both parties have stipulated.parties have stipulated.

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Assuming the matter proceeds as uncontested Assuming the matter proceeds as uncontested rather than by default, the respondent rather than by default, the respondent willwill participate in the proceedings by virtue of filing participate in the proceedings by virtue of filing an “Appearance, Stipulations, and Waivers.”an “Appearance, Stipulations, and Waivers.”

See Figure 8-14 on page 367.See Figure 8-14 on page 367. In both default and uncontested dissolutions, In both default and uncontested dissolutions,

the effective date of the dissolution of marriage the effective date of the dissolution of marriage is that date which is six months from the date is that date which is six months from the date the respondent was served with the summons the respondent was served with the summons and petition, entered a general appearance in and petition, entered a general appearance in the action, or the date the judgment was the action, or the date the judgment was entered, whichever is later.entered, whichever is later.

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G. CONTESTED TRIALSG. CONTESTED TRIALS

Most family law trials are conducted in Most family law trials are conducted in much the same manner as any other civil much the same manner as any other civil trials.trials.

Once a case approaches the trial date, it Once a case approaches the trial date, it becomes necessary to organize all of the becomes necessary to organize all of the evidence acquired during the discovery evidence acquired during the discovery process and to distill that information process and to distill that information into a cohesive body of facts that can be into a cohesive body of facts that can be presented to the trial judge in an presented to the trial judge in an organized manner.organized manner.

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G. CONTESTED TRIALG. CONTESTED TRIAL

Once a lengthy or complex case is within 60 to Once a lengthy or complex case is within 60 to 90 days of the date of trial and has an 90 days of the date of trial and has an estimated trial date in excess of on or two estimated trial date in excess of on or two days, the trial judge will generally call both days, the trial judge will generally call both counsel into chambers to informally discuss counsel into chambers to informally discuss certain aspects of the trial in hopes that it can certain aspects of the trial in hopes that it can be streamlined by dealing with certain be streamlined by dealing with certain objections, obtaining stipulations to the objections, obtaining stipulations to the admissibility of certain evidence, pre-marking admissibility of certain evidence, pre-marking exhibits, and exchanging and identifying lists exhibits, and exchanging and identifying lists of exhibits and witnesses.of exhibits and witnesses.

The lawyers and the judge will also discuss the The lawyers and the judge will also discuss the order in which the various issues will be tried.order in which the various issues will be tried.

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The pretrial conference can also lead to The pretrial conference can also lead to settlement discussions.settlement discussions.

Following the informal pretrial Following the informal pretrial conference, the judge will typically conference, the judge will typically schedule a mandatory settlement schedule a mandatory settlement conference.conference.

Once the parties have gone through the Once the parties have gone through the informal pretrial conference and the informal pretrial conference and the mandatory settlement conference, it is mandatory settlement conference, it is time to start the trial.time to start the trial.

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G. CONTESTED TRIALG. CONTESTED TRIAL

At the trial, the petitioner will go first and At the trial, the petitioner will go first and will present witnesses and documents to will present witnesses and documents to support her position and requests.support her position and requests.

After the petitioner has completed her After the petitioner has completed her presentation, the respondent presents presentation, the respondent presents witnesses and documents in support of his witnesses and documents in support of his position.position.

Once all the evidence has been presented Once all the evidence has been presented to the court, the lawyers are entitled to to the court, the lawyers are entitled to give a closing or give a closing or finalfinal argument to the argument to the judge.judge.

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Once both sides have given their closing Once both sides have given their closing arguments, the judge will either make a decision arguments, the judge will either make a decision on all of the contested issues right then from the on all of the contested issues right then from the bench or will take the matter under submission, bench or will take the matter under submission, preferring to give additional thought to the preferring to give additional thought to the evidence that has been presented and formulate evidence that has been presented and formulate an opinion accordingly.an opinion accordingly.

Following entry of the court’s decision and Following entry of the court’s decision and judgment with respect to the issues presented at judgment with respect to the issues presented at trial, if one or both of the parties are unhappy trial, if one or both of the parties are unhappy with the outcome, under appropriate with the outcome, under appropriate circumstances they will have the right to appeal circumstances they will have the right to appeal the decision.the decision.

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H. CONCILIATON H. CONCILIATON PROCEEDINGSPROCEEDINGS

The Family Code makes provision for the The Family Code makes provision for the superior court to intervene on an informal superior court to intervene on an informal basis and work with the parties to save their basis and work with the parties to save their marriage.marriage.

Not all counties are required to establish and Not all counties are required to establish and maintain a conciliation court.maintain a conciliation court.

As a practical matter, however, most larger As a practical matter, however, most larger counties do.counties do.

Either parent (or spouse) or both may file a Either parent (or spouse) or both may file a petition for conciliation.petition for conciliation.

It is intended that this petition will be filed It is intended that this petition will be filed beforebefore any litigation is commenced. any litigation is commenced.

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H. CONCILIATION H. CONCILIATION PROCEEDINGSPROCEEDINGS

Once the petition has been filed, the court sets Once the petition has been filed, the court sets a time and place for the hearing and will give a time and place for the hearing and will give notice of this hearing to all interested parties.notice of this hearing to all interested parties.

The hearings themselves are informal and are The hearings themselves are informal and are conducted not as trials but as conferences, conducted not as trials but as conferences, much like more traditional marriage much like more traditional marriage counseling.counseling.

The supervising and associate counselors take The supervising and associate counselors take the laboring oar in conducting these hearings, the laboring oar in conducting these hearings, making recommendations to the judge as making recommendations to the judge as appropriate.appropriate.

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H. CONCILIATION H. CONCILIATION PROCEEDINGSPROCEEDINGS

The goal of the Family Conciliation Court is to The goal of the Family Conciliation Court is to provide provide reconciliationreconciliation services, not to generate services, not to generate court court ordersorders; after all, no judge can order ; after all, no judge can order parties to stay together.parties to stay together.

Everything about the proceedings of the Everything about the proceedings of the conciliation court is designed to allow the conciliation court is designed to allow the parties easy access to the court free of charge parties easy access to the court free of charge and the opportunity to present their differences and the opportunity to present their differences to counselors trained in the fields of to counselors trained in the fields of psychology, social work, marriage and family psychology, social work, marriage and family counseling, child development, child abuse, and counseling, child development, child abuse, and many other related areas.many other related areas.

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I. MEDIATIONI. MEDIATION

A concept closely related to A concept closely related to conciliation is conciliation is mediationmediation..

Mediation presupposes that Mediation presupposes that litigation has already commenced.litigation has already commenced.

The purpose of mediation is to The purpose of mediation is to reduce acrimony and help the reduce acrimony and help the parties come to an agreement parties come to an agreement regarding custody and visitation regarding custody and visitation issues.issues.

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I. MEDIATIONI. MEDIATION

The mediation proceeding itself must be The mediation proceeding itself must be set so that it will take place either set so that it will take place either before or on the same date as the before or on the same date as the custody or visitation matter has been set custody or visitation matter has been set for hearing.for hearing.

Not all mediation sessions produce Not all mediation sessions produce agreement between the parties, and in agreement between the parties, and in those instances the mediator usually those instances the mediator usually refers the parties back to the court for refers the parties back to the court for resolution of the dispute.resolution of the dispute.

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J. PARENTAL COUNSELINGJ. PARENTAL COUNSELING

In order to facilitate communication In order to facilitate communication between parents regarding their children’s between parents regarding their children’s best interest and to improve the parenting best interest and to improve the parenting skills of both parents, the court is skills of both parents, the court is empowered to require parents who are empowered to require parents who are involved in a custody or visitation dispute involved in a custody or visitation dispute to participate in “outpatient counseling to participate in “outpatient counseling with a licensed mental health professional, with a licensed mental health professional, or through other community programs and or through other community programs and services that provide appropriate services that provide appropriate counseling . . . for not more than one counseling . . . for not more than one year.”year.”

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J. PARENTAL COUNSELINGJ. PARENTAL COUNSELING

The parties will typically each pay for their own The parties will typically each pay for their own counseling under these provisions and share counseling under these provisions and share the costs of the counseling for the child in a the costs of the counseling for the child in a proportion deemed appropriate by the court.proportion deemed appropriate by the court.

The Family Code gives the court the The Family Code gives the court the opportunity to evaluate the situation existing opportunity to evaluate the situation existing between the parties and, rather than simply between the parties and, rather than simply imposing its orders on them, refer them to imposing its orders on them, refer them to counseling in hopes that the facts and counseling in hopes that the facts and circumstances at the heart of the problem can circumstances at the heart of the problem can be addressed and remedied.be addressed and remedied.

CALIFORNIA FAMILY LAW FOR PARALEGALS, 5 th Ed. Chapter Eight The Litigation Process.

Documents

Transcript of CALIFORNIA FAMILY LAW FOR PARALEGALS, 5 th Ed. Chapter Eight The Litigation Process.