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Overview of Family Law Facilitator services provided and program operation

 

 

Child custody and visitation

 

 

Child support

 

 

Child support and the Department of Child Support Services (DCSS)

 

 

Child support modifications

 

 

Interest on child support

 

 

Duration of a child support order

 

 

Health insurance

 

 

Spousal support

 

 

The difference between a divorce and a separation

 

 

Community property and separate property defined

 

 

Annulment/Nullity

Overview of services provided and program operation

The Family Law Facilitator (FLF) program in the Santa Cruz County Superior Court assists people who do not have attorneys with the following: child support orders, health insurance orders, spousal support orders, custody and visitation orders, and starting, responding to, or finalizing a divorce, separation or parentage case. The Facilitator program was established by state law (AB1058) in 1996. The Superior Court in each county in California has a Family Law Facilitator program.

Assistance from the Santa Cruz County FLF includes providing information about the law, completion of court forms and instruction regarding how to file and serve court forms, and referrals to community agencies assisting parents. The FLF also assists parents/spouses with the preparation of support calculations to help estimate what support order a court may make. In non-welfare cases, the FLF can mediate support issues if the parents wish to mediate (try to settle out of court once a court case has been started) support. The FLF can also prepare an agreement for parents. In order to mediate support and/or have the FLF prepare an agreement, both parents need to be present at the FLF office. FLF assistance includes those parents who have cases involving the Department of Child Support Services (DCSS). The services provided by the FLF are free of charge.

The FLF office is located inside the courthouse building at 701 Ocean Street , Santa Cruz , CA 95060 . The telephone number is (831) 420-2200. The office is open, Monday through Thursdays, 8:30am to 11:30am and 1:30pm to 4:00pm . On Fridays the office is open 9:00am to 11:30am . These are drop-in hours only (no appointments are available). Effective 1/14/2008 we will be closed on Fridays. Additionally, we are open at the Watsonville Courthouse at 1 Second Street in Watsonville every Wednesday 9:00am to 12 noon and 1:00pm to 3:00pm. Effective mid February 2008 we will be closing our Watsonville services and will reopen in mid April 2008 and the new Watsonville Court located at One Second Street, Watsonville, CA. Our monthly schedule is available with all of our other handouts right outside our office.

If you are coming for help completing court forms, these are the items you will need to bring with you:

 

-copy of your 3 most recent pay stubs

 

-copy of last year's federal tax return and W-2 form(s), 1099 form(s) (if applicable)

 

-proof of income from self-employment, disability, unemployment, worker's compensation or other such "non-pay stub" income from last month and/or last year, if applicable

 

-copy of most recent ORDER or JUDGMENT for child support and/or custody/visitation, if applicable (if you do not have a copy, you will need to have the court clerk of the county in which the order was made make a copy for you; the clerk will need your court case number; a small fee is charged for copies)

 

-copy of the MINUTE ORDER and Judge's support calculation (if applicable) if you need a Findings and Order After Hearing and/or a Wage and Earnings Assignment Order prepared (you can get a minute order at the court clerk's office, Room 110, for a very small fee).

 

-a copy of all papers filed in the case if you are coming for help responding to, or finalizing, your divorce, separation or parentage (unmarried parents) case.

The FLF is a licensed California attorney, but works for the court, and does not represent the people who use the services. This means is no attorney-client privilege of confidential information, and no legal advice is provided.

If you want to obtain legal advice, you need to speak with an attorney of your own choosing. For $40.00, Lawyer Referral Service, run by the Santa Cruz County Bar Association, can give you a one half hour appointment with a family law attorney. The phone number for lawyer referral is (831) 425-4755. Family law attorneys are also listed in the yellow pages of the telephone book.

Below is specific information on selected topics. If you want more information, you can access the California Family Code (the law) by going to www.leginfo.ca.gov, and then clicking on "California Law" and then selecting "Family Code" or click here:  California Code.  You may also want to visit the Santa Cruz County Law Library, located on the basement floor of the County building at 701 Ocean Street . The Law Library’s hours of operation are 8 am – 5 pm daily and their phone number is (831) 420-2205. Again, if at all possible, you should consult with a family law attorney.

CHILD CUSTODY AND VISITATION

There are two types of custody, and the court needs to make orders concerning each type.

(1) Legal custody means which parent will have decision-making power over the child's health, education and welfare issues. This can mean where the child goes to school, or whether the child will have her tonsils taken out.

The court can order that the parents have joint legal custody (meaning they have equal decision-making power), or the court can order that one parent have sole legal custody (the only right to make decisions about the child).

(2) Physical custody means where (with which parent) the child will primarily reside. A court can order that both parents have significant time with the child. This can be called "joint custody". The court could instead order that one parent will have physical custody, and the other parent will have visitation.

No matter what labels are used to describe the physical custody order, the court will often refer to the entire custody/visitation order as a "parenting plan".

The legal standard that the court uses to determine what type of custody orders to make in your case is the best interests of the child. This is a flexible standard that allows each family's and each child's needs to be considered. In determining what is in the best interests of the child, the court may consider the health, safety and welfare of the child, the nature and amount of the child's contact with both parents, the habitual or continual illegal use of controlled substances or alcohol by either parent, and/or any history of abuse by one parent against any related child, against the other parent and/or against any person with which the parent has been romantically involved.

It is the public policy of the state of California that a child will have frequent and continuing contact with each parent, unless such contact is deemed not be in the child's best interests.

The Santa Cruz County Superior Court has several layers of interventions designed to help parents reach their own agreement concerning custody and visitation issues. Trained and highly experienced counselors work for the courts, and with parents, to try to resolve the parents' custody/visitation dispute. When parents are not able to agree to a parenting plan, then the counselor will recommend to the court what the orders should be.

All parents who become court-involved over custody and/or visitation issues will be referred to mediation directly from the court hearing (as applicable). There is no fee charged for the first three hours of mediation. Mediation involves a meeting between the parents and the mediator. If the parents reach an agreement, even if it is just temporary, that agreement will become the court order. If the parents do not reach an agreement, the mediator will recommend to the court a custody/visitation arrangement, and the judge will make orders after listening to the concerns of each parent.

If the parents need more time and help resolving their issues, they could continue on to confidential counseling. The total fees vary depending on the issues. Here, an extended amount of time is spent with the parents, and the confidential counselor will help the parents reach their own agreement. If the parents cannot agree, the custody counselor does not report to the court.

More complex issues and/or cases that cannot be resolved after mediation and/or confidential counseling are referred to an assessment or full evaluation (depending on the issues and allegations involved). Fees are determined by the court. Standard fees are about $1,600 for an assessment and about $2,000 for a full evaluation.

Parents who are involved in a divorce or separation case are also required to complete the CO-PARENTING CLASS, a three hour class. Parents are not required to attend at the same time. The charge for the class is $40.00. Other parents may also be required to complete the class if the court so orders.

CHILD SUPPORT

The child support guideline: Child support in California is based on a mandatory uniform guideline which uses an algebraic formula to determine the amount of child support. It is primarily based on each parent's tax filing status (single, married or head of household) and average monthly income. Allowances are made for mandatory deductions such as federal and state taxes, and health insurance premiums and union dues paid. A deduction is also given for any child and/or spousal support order that a parent pays for a child and/or spouse from another relationship.

There is no deduction given for either parent's specific living expenses (such as rent, car payment, credit card bills, etc.) Depending on the number of children and the amount of income the paying parent has, the percentage of take-home pay which goes for child support can be anything from about forty percent to fifty percent or more of that parent's after-tax income (net income).

Besides each parent's income, the other important factor that influences the amount of support that will be ordered is the amount of time each parent has physical responsibility for the child (called timeshare). If a parent not living with the child sees the child every other weekend, including overnights, and some additional time such as vacation, that timeshare is about 20%. That 20% timeshare is factored in to the child support calculation, so that the child support ordered represents the contribution the non-custodial parent makes to the custodial parent for the 80% of time that the child is with the custodial parent. In comparison, parents who have no substantive relationship with their child pay more child support because the child is with the custodial parent 100% of the time.

The child support guideline has been in effect since 1992, and is applied by all courts in California . Judicial officers must order the guideline child support amount, even if the amount of support seems high, unless there are very special circumstances that allow the court to decrease or increase the guideline amount. By contrast, parents can agree to a child support figure that is below or above guideline (note: parents are not able to make their own agreement regarding child support if either parent receives welfare).

Tax aspects of child support: Child support is not tax deductible to the parent paying it, and it is not taxable income to the parent receiving it. Spousal support has a different tax treatment (see below). However, in a divorce or separation case, sometimes a court orders, or the parents agree to, a "family support" order. This means that the child and spousal support order is combined and characterized as a family support order. The amount of the order is increased, and the entire amount is made tax deductible to the spouse paying it, and must be claimed as taxable income by the spouse receiving it. Family support is usually only ordered or agreed to in cases where at least one parent has an extraordinarily high income.

Allocation of dependency exemptions for minor children: Under state and federal tax law, a parent is entitled to claim a child as a tax dependent if that child has been in the parent's home more than half of that tax year. In a child support context, this usually means that the parent who is the "custodial parent", or who has the child more than 50% of the time, has the right to claim the child as a tax dependent.

One of the factors in determining guideline child support is a parent's tax filing status, which includes the number of dependency exemptions that a parent is entitled to claim under state and federal tax law. The judicial officer's child support calculation will include an allocation of the dependency exemption(s) for the child(ren) involved in your case. This means the child support calculation and order made thereon is based, in part, on assigning one of the parents the applicable dependency exemption(s).

If a parent is entitled to claim a dependency exemption, that parent will also be eligible for the child tax credit and the earned income credit (as applicable, and if available at that parent's income level).

If you have a child support order, look at the calculation upon which it is based to see how the court allocated the dependency exemption(s). Usually, the dependency exemption(s) is allocated to the custodial parent. Sometimes, a support calculation will release the dependency exemption(s) to the non-custodial but higher net income parent because that has a better tax effect for both parents.

Child support orders based on earning capacity: A court usually bases a child support order on each parent's actual income. Income from all sources (including overtime, bonuses, rental income, investment income, etc.) is considered. If a parent is unemployed or under-employed (below 40 hours per week), a court can base a child support order on a parent's earning capacity. The court then considers what a parent is capable of earning. The court must find that a parent has an opportunity and ability to work before it can "impute" an earning capacity to a parent and base a child support order on a parent's earning capacity. Either a custodial parent or a non-custodial parent can be imputed an earning capacity in calculating guideline child support.

Child care expenses: Separate and apart from the guideline child support ordered, the court must order the parents to share equally any work-related child care expenses (day care, baby sitters) that either or both parents incur. Sometimes the cost of child care, even when it is equally split with the other parent by court order, can be more than a guideline child support order.

Additional factors influencing child support: A court may adjust the amount of guideline child support that would otherwise be ordered to take into account a child's educational or other special needs, or travel expenses that one parent incurs for visitation (for example, the non-custodial parent pays for the child to travel to and from another state for court-ordered visitation with the non-custodial parent).

A court may also adjust the amount of guideline child support that would otherwise be ordered if it finds circumstances evidencing hardship to a parent. Such circumstances are defined as extraordinary health expenses for which the parent is financially responsible, uninsured "catastrophic losses" and the minimum basic living expenses of a parent's natural or adopted child(ren) from other relationships for whom the parent has the obligation to support and who reside with the parent.

Wage and Earnings Assignment Orders: A court must issue a Wage and Earnings Assignment Order each time a court makes a support order. One of the parents must prepare and file with the court clerk the Wage and Earnings Assignment Order - the Judge does not prepare it for you. If the Department of Child Support Services (DCSS) is involved in your case, that office will prepare file, and serve the Wage and Earnings Assignment Order on the employer. If the DCSS is not involved one of the parents can then provide a filed copy of the Wage and Earnings Assignment Order to the paying parent's employer. The Order instructs the employer to withhold the amount of support ordered from the employer's wages, and forward the support payment to the State Disbursement Unit (SDU). See further down for an explanation of the SDU.

The FLF can help you obtain a Wage and Earnings Assignment Order if you do not have one yet.

Calculation of Child Support: The algebraic formula and tax aspects of a child support calculations can be complicated therefore many different computer programs, such as Dissomaster and XSpouse, have been designed to assist with the calculation. An attorney, using one of these programs, can calculate support for you. You may also use the computers at the Law Library located in the basement of 701 Ocean Street , Santa Cruz , CA , open Monday-Friday 8 am – 5 pm . The public may also now run their own child support calculation using a free calculator designed by the Department of Child Support Services. This calculator can be used on the computer by going to www.childsup.cahwnet.gov, click on the left side “Guideline Calculator.” The calculation is only accurate if you are imputing accurate information such as your income and timeshare. Also you may run different calculation scenarios because some factors are considered discretionary by the court (this means that the court does not have to take into account all possible factors in calculating support).

CHILD SUPPORT AND THE DEPARTMENT OF CHILD SUPPORT SERVICES

The Department of Child Support Services (DCSS): The Department of Child Support Services (DCSS) operates in each County in California to establish, modify and enforce (collect) child support orders. The DCSS will also establish a paternity (parentage) order and health insurance order when applicable. The DCSS office will become automatically involved in a child support case when a child receives welfare. In non-welfare cases, a custodial parent can request that the DCSS open up a case to establish, modify and/or enforce (collect) a child support order. DCSS services are provided free of charge.

If you are served with a Summons and Complaint packet by the DCSS's office, you have 30 days to file an Answer with the court clerk. If you don't, the court will make orders against you by default, including paternity, child support, child support arrears (if applicable) and health insurance. Filing an Answer to the lawsuit with the court clerk will mean that the DCSS cannot get any orders against you by default, or without you having an opportunity to present your case to a judicial officer, including requesting a genetic test if you are not sure you are the parent of the child(ren).

The DCSS in Santa Cruz County is located at 420 May Avenue, Santa Cruz , CA 95060 . Their mailing address is P.O. Box 1841 , Santa Cruz , CA 95061-1841 . Their telephone number is (831)454-3700 and their web address is www.dcss.co.santa-cruz.ca.us. The state DCSS web site is www.childsup.cahwnet.gov .

In cases where a child has received or is receiving welfare, federal law allows the DCSS to automatically open a child support case. Many parents incorrectly believe they are being sued by the DCSS to pay back the amount of the welfare the other parent and/or the child received. This is wrong. The law requires that the court make an order for the amount of guideline child support that the "absent parent" (or non-custodial parent) should have been paying during the time that the child received welfare and the non-custodial parent was not living with (and contributing to the support of) the child.

The DCSS has special enforcement (collection) powers to collect child support. If any arrears (back support) are owed, the DCSS can suspend a non-paying parent's drivers', professional or recreational license and/or suspend a passport. The DCSS can intercept (take) a non-paying parent's state and federal tax refunds.

Sometimes each parent is asked to pay child support. If a child is not in the custody of either parent and the child receives welfare, the DCSS will sue each parent in order to obtain a child support order. This happens when a child is in group home, foster care, or living with a relative or other caretaker and receiving welfare. If the parents do not live together, they will be sued separately by the DCSS, and their child support obligation will be determined independent of the other parent's ability to pay child support as calculated under the guideline.

Collection of Child Support: Federal law requires states to have a single unit responsible for collecting and processing child support payments. In California that unit is called the State Disbursement Unit or SDU. The SDU collects and distributes child support, when there is a wage assignment in place, whether or not you have a case open with DCSS. For instance if you have a wage assignment from you divorce case the employer collecting the support is suppose to send the child support collected to the SDU first and the SDU then forwards the money to the parent receiving support. The SDU knows where to send the money because family court form FL-191, Child Support Case Registry, is supposed to be completed and given to the clerk’s office at the Superior Court. The clerk’s office then forwards form FL-191 to the state. If you have questions regarding the SDU call their help desk toll free at 1-866-325-1010.

CHILD SUPPORT MODIFICATIONS

Child support cannot be modified (changed) for periods of time in the past (after an order has been made but before a "paying" or non-custodial parent makes a court request to reduce the amount of support, or before the "receiving" or custodial parent makes a court request to increase the amount of support). In other words, the court-ordered child support figure continues in effect until the court later modifies it and makes a new order. Usually, the earliest effective date for a modification is the date a parent files or serves a motion (a request for a court order) requesting a modification.

Here's an example: Let's say that the court ordered father (the non-custodial parent in our example) to pay mother $500.00 per month in child support in August, 1998. Assume that order was based, in part, on father earning $2500.00 per month. Mother learns in September, 1998, one month after the order is made, that father is now earning $5000.00 per month, or double his former salary. If mother waits until September, 1999 to file her motion requesting an increase in child support, the earliest effective date of the new order is the date she files that motion. She is not entitled to a modification back to (or retroactive to) September, 1998, when father's salary doubled.

What if that father's salary decreases? Let's say the court ordered father to pay mother $500.00 per month in child support in August, 1998. Assume again that the order was based, in part, on father earning $2500.00 per month. Father loses his job in October, 1998, and begins receiving unemployment income of $920.00 each month. If father waits until September, 1999 to file his motion requesting that the court decrease his child support order, the earliest effective date of the new court order is the date he files that motion. Father is not entitled to a modification back to (or retroactive to) the date he first became unemployed. All unpaid amounts owed under the prior order ($500.00 per month) (called back support, or "arrears") continue to be owed until paid in full.

A parent who feels the need to have the child support order modified because of a change in circumstances since the last order was made needs to file a modification request in a timely manner. Under California law, child support is modifiable any time a parent can show the court that a material change in circumstances has occurred since the last order was made.

If a parent believes there is such a change in circumstances, that parent needs to bring the new information to the court's attention right away (by filing a motion for modification) in order to obtain a new order that takes effect right away.

INTEREST ON CHILD SUPPORT

Interest at the legal rate (currently 10% per year) is owed on all unpaid child support (called back support, or "arrears"). The interest does not compound, meaning interest does not build up on the interest, but it accrues on the principal amount owed only (the child support amount ordered). Left unpaid, the amount of support arrears owed over time grows to sometimes astronomical numbers once the interest is added on. California law gives judicial officers no power to waive or adjust arrears that have accrued, or the interest that has accrued on those arrears.

DURATION OF A CHILD SUPPORT ORDER

A California support obligation ends, normally, when the child turns 18. If the child is 18 but still residing at home, still attending high school full-time and still not self-supporting, then the child support obligation ends when the child graduates high school or turns 19, whichever comes first.

The court may extend the duration of child support if an adult child is disabled. Parents can agree on their own to extend the duration of a child support order.

Any arrears continue to be owed until paid in full, regardless of the child's age. Arrears means that there was a valid court order that support be paid, but the parent ordered to pay support did not pay some or all of the support while the obligation continued.

HEALTH INSURANCE

California law requires both parents to provide health insurance coverage for their child if such coverage is available at no cost or at reasonable cost. What is a "reasonable" cost is different from case to case.

For parents who do not have health insurance coverage for their child, there is a state program called HEALTHY FAMILIES. Under this program, regular health, visitation and dental insurance is available to children up to 19 years old if one or both parents is eligible for the program. The monthly premiums costs are between $4 and $15 for one child, up to $45 for three or more children. Program eligibility is determined based on a parent's income.

For more information and/or for an application, you can contact the program directly at 1-800-880-5305.

Both parents are also required to share a child's uninsured health care expenses (out-of-pocket or unreimbursed expenses such as co-payments) equally if an order is in place that requires parents to share such expenses. This means that if a child has orthodontia (braces) and the uninsured cost will be $1000.00, each parent will be required to pay $500.00 as long as there is an order in place that requires the parents to share such an uninsured expense.

Make sure you request this order from the court so it applies in your case.

SPOUSAL SUPPORT

Spouses can request that the court make a spousal support order as part of a divorce, separation, or domestic violence case (for the domestic violence case parties still must be married and the order is temporary). Spousal support is a discretionary order, meaning the court has great freedom in determining what amount of support, if any, should be paid in a particular case, and for how long spousal support should be paid.

At the "temporary" stage of a case, meaning from the time the divorce or separation case is filed up until the time a final Judgment is entered, the court often uses the support guideline (see above discussion on child support for guideline factors) to determine what amount of spousal support should be paid. The court is not required to order the guideline amount (compare: the court is usually required to order the guideline amount of child support). The guideline amount is based on each spouse's income, tax filing status, and certain allowed deductions such as health insurance and union dues.

At the "permanent" stage of a case, meaning after a final Judgment of separation or divorce has been entered; the court must consider certain statutory factors in deciding (1) what amount of spousal support to order, if any; and (2) the duration (how many months or years) of the order. The court considers factors such as the age and health of the spouses, the length of the marriage, and each spouse's job skills. See Family Code section 4320 for more information.

Unlike child support, spousal support is tax deductible to the spouse paying it (only those payments made after a court order is in place are tax deductible), and the spouse collecting it must claim the amount received in any given tax year as taxable income.

Spousal support may terminate per court order, or naturally by the death of either spouse or the remarriage of the supported spouse. If you want the court to modify or terminate a court order for spousal support, you will need to file and serve a motion to request a modification or termination unless the order itself has a built-in modification amount and/ or termination date.

THE DIFFERENCE BETWEEN A DIVORCE AND A SEPARATION

The end result is really the only difference between a separation and divorce (known in the law as a "dissolution") case. In a divorce case, at the time a final Judgment is entered, the spouses are returned to the status of single people. In a separation case, at the time a final Judgment of separation is entered, the spouses are still married to each other. Divorce has residency requirements: the person who files for divorce (known as the "Petitioner") must be a resident of the state of California for at least 6 months, and a resident of the County in which the divorce is filed for at least 3 months, immediately preceding the time when a divorce case is filed.

Otherwise, a separation and a divorce case are very similar: in each case, the court will have to make orders concerning division of community property and debts, confirmation of separate property and debts, and make orders, as applicable, concerning child custody, child support, spousal support and any other orders the court deems appropriate. The grounds for filing for divorce or separation are the same too: irreconcilable differences and incurable insanity. California court is a "no-fault" state, which means the court does not need to find that one spouse is at fault for the breakdown of the marriage. The existence of irreconcilable differences provides the court with the grounds to make a divorce or separation Judgment.

The earliest possible date a divorce Judgment can be made effective is 6 months and 1 day from the date Respondent was served with the Petitioner's Summons and Petition. However, in many cases, it takes much longer than this to bring the case to final Judgment.

It is important to know that you will not receive a Judgment of divorce automatically. You will not receive a divorce Judgment just by filing and serving a Summons and Petition, or just by filing and serving a Response. In most cases, you and your spouse will either need to negotiate, prepare and file with the court a MARITAL SETTLEMENT AGREEMENT and some related forms, or if you cannot agree, set the case for trial, present your evidence, receive orders and then prepare and file the Judgment according to the court's orders. In some cases known as "true default cases", where Respondent never files a Response and the spouses do not have a Marital Settlement Agreement, it is possible for Petitioner to get a final Judgment of divorce without Respondent needing to be involved, however court forms must be filed out requesting entry of default and final judgment.

Do not assume that you are divorced until you have seen a file-stamped Judgment from the court that says you are divorced. Remember, this will not happen automatically - you and/or your spouse must continually work the case through to the Judgment stage. You are not free to remarry until you are divorced.

For all divorce or separation cases filed in the Santa Cruz County Superior Court requires that spouses attend a STATUS CONFERENCE. The status conference is automatically scheduled when Petitioner files the Summons and Petition. Petitioner is provided 2 notices that contain the status conference date; one is for Petitioner's records, the other must be served on Respondent with the Summons and Petition. The purpose of the status conference is for the court to make sure that the spouses are taking the necessary steps to move the case along to a final Judgment.

COMMUNITY PROPERTY AND SEPARATE PROPERTY DEFINED

To be able to characterize your assets or debts as community or separate, it helps to know what your "date of separation" is. The date of separation is generally defined as that date you knew the marriage was irremediably broken. This means the date at which at least one spouse knew there was no hope for saving the marriage. For some people, this may be the date you moved out, or the date you filed for divorce.

Community property is generally defined as assets acquired through a spouse's time, labor and skills, from date of marriage through and including date of separation. Community property is usually everything that a married couple own together (title to certain assets does not have to be in both spouses' names in order to be considered community property), such as money that you now have which either spouse earned during the time they were living together as husband and wife, or anything either spouse bought with money earned during that time period. Community property can be things like a car, a house, a security deposit on an apartment, a 401(k) account, a pension, a bank account, home furnishings, etc.

Community debts are generally defined as the debts that a husband and wife owe together. In most cases, that includes anything you still owe on any debts either of you took on during the time you were living together as husband and wife. For example, if you bought furniture on credit while married and living together, the unpaid balance at the time of separation is part of your community debt. Community debt can be things like credit card debt, outstanding tax debt, a mortgage debt, a car debt, etc.

California law requires that the spouses divide community property and debts equally. To equalize the division of assets and debts, one spouse may get more assets because they also got more debts. Spouses can agree to divide assets and debts unequally if they would like.

Separate property is generally defined as everything that a husband and wife own or owe (if it is a debt) separately. It includes assets acquired, or debts incurred, before date of marriage or after date of separation. It also includes any assets acquired by the spouse during the marriage by gift (to that spouse alone) or inheritance.

California law requires that separate property assets or debts be confirmed to the spouse who acquired or incurred them.

Family law attorneys can be extremely helpful with property and debt issues.

Mandatory disclosure California law requires spouses in a divorce or separation case to provide each other with forms to disclose assets and debts, and income and expenses. This is to help each spouse develop information about the "marital estate" - what property and debt issues there are. This in turn helps prepare the case for final Judgment. Disclosure must be done even if you or the other party has no community property or debt.

ANNULMENT/NULLITY

Under California law, a court can order that the marriage be annulled. This means that the marriage is not valid because of some condition that affected the ability of the parties to marry. To be eligible to receive a Judgment of nullity, the grounds that have to be proved by Petitioner (the spouse who starts the case) are:

(1) Petitioner was underage at the time of the marriage;

(2)There was a prior existing marriage (one of spouses was already married, so did not have the capacity to re-marry);

(3) unsound mind;

(4) fraud;

(5) force; OR

(6) physical incapacity.

See Family Code section 2210 for more information.

Unless you can prove one of the above grounds, the court will not have the authority to annul your marriage. It is not grounds for an annulment if you were just married for a short amount of time.

In an annulment case, the court may need to make other relevant orders as in a divorce or separation case, such as custody, support, and property and debt division, as applicable.

LAST UPDATED: 6/26/07