All of the Important California Family Law Statutes and Court Rules, and
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Attorney Ethics and Relevant State Bar and Related Codes and Rules
State Bar Rule 3-110 defines the minimum standards of "competence"
required of all California divorce and family law attorneys.
California Divorce Lawyers cannot enter into self-dealing transactions
with their clients.
State Bar Rule 3-410 describes the duty of matrimonial lawyers to disclose
when they do not have malpractice liability insurance.
State Bar Rule 4-100 requires marital attorneys to maintain and place all
unearned retainer deposits into an "IOLTA" - an Interest on
Lawyers Trust Account, and not into their general office account! The
State Bar takes this obligation seriously, and attorneys are regularly
disciplined for misappropriating client funds in this fashion.
State Bar Rule 5-200 prohibits family law attorneys, as 'officers of
the court,' from lying or intentionally misleading the court or from
'vouching' for their clients, i.e., speaking as if they have personal
knowledge or were witnesses to events they did not in fact observe.
B & P Code section 6148 requires family law attorneys to submit and
execute, together with the client, a written fee contract whenever clients
advance more than $1,000, or the costs of the attorney's services
are reasonably expected to exceed $1,000 - and to provide the client a
signed copy for their records.
Attorney Fees in California Family Law Proceedings
This statute states the threshold requirement for any family court fee
award - a party must have the ability to pay. However, the fact that a
party's expenses exceed their income does not equate with an inability
to pay lawyer's fees.
FC § 271 is the key, all-purpose family law and divorce related "attorney's
fees and costs" sanctions statute for conduct that frustrates the
California public policy favoring settlements and punishing behavior that
increases the costs of litigation.
Section 272 covers situations where an attorney fee award with an unpaid
balance was awarded to an attorney who has been discharged or quit the
case, so that this money might be tapped to pay for the fees needed to
conclude the case.
FC § 2030 is the starting point for all attorney fee requests for
orders in dissolution, legal separation, or annulment proceedings and
states what factors a court must consider, chief among them being a "disparity
in access and ability to pay."
An oral attorney fee request made by made in open court, at any hearing
until the time final judgment is entered.
FC § 2032 grants family courts jurisdiction to order attorney fees
to be paid from the separate property of the other spouse or domestic partner.
FC § 2033 establishes the procedure for creating a "FLARPL"
- a family law attorney's real property lien, which are strictly governed.
This Family Law Act statute explains how any person affected by the creation
of a FLARPL can object.
Family Code § 2040 contains the "ATROS" - automatic temporary
restraining orders that become effective the moment the a party to a marital
or domestic partnership dissolution files the Petition, and the moment
the other party is served with the Petition and the Summons (which sets
forth this statute's terms). It authorizes the use of community property
funds, or the sale of assets, for purposes of hiring a family law attorney.
This Family Law Act statute authorizes a "husband" or "wife"
to seek attorney fees where no petition for dissolution, legal separation,
or annulment has been filed if one brings an action for "exclusive
custody." This is rarely seen, but arguably the section applies to
custody proceedings between parents who never married or registered as
FC § 3557 authorizes family court judges to award attorney fees to
a party who incurs legal fees to enforce a judgment or orders relating
to child or spousal support.
Section 3652 specifically authorizes the recovery of attorney fees in certain
situations involving spousal support.
This statute authorizes courts to award attorney fees, and costs including
deposition expenses, incurred by reason of a party's false or incomplete
income statements contained in their
Attorney fees and costs may be recovered to either party in actions involving
domestic violence requests for orders.
Lawyer fees incurred in paternity cases may be ordered by the family court
parentage has been established, in order to maintain the action. The actual
standard to be applied is as set forth in sections
Expert fees and the costs of forensics like blood tests, may also be awarded
in paternity actions.
This rule provides the framework for seeking monetary sanctions, including
but not limited to attorney fees and costs, under the Family Code. This includes
FC section 271 applications. It also empowers courts to set their own sanctions'
motions. It makes clear that motions for sanctions must be supported by
an independent RFO.
Attorney fee applications must now conform to, and provide all the information
required by, new CRC Rule 5.427.
Rarely used in family law cases, CCP is an independent ground for seek
sanctions beyond attorney fees and costs for bad faith conduct that would
otherwise be covered by
Family Code section 271!
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FC section 2200 declares what constitutes incest and makes a marriage void
Exceptions to marriages otherwise void by reason of bigamy.
FC section 2210 state the grounds for annulment.
This section sets forth who can request an annulment and when they must
make the application.
Family code section 2251 is a very important statute for protecting the
marital rights of spouse who learns their marriage is void, for instance
because they "spouse" never completed their prior divorce; this
is because, absent a legal marriage, there is no right to spouse support
and no community property to divide.
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Child Support Issues
FC section 3103 addresses the burden of proof that grandparents must meet
in order to obtain visitation orders with their living children's
children. It also authorizes family courts to order them to pay child support!
Child support can terminated by the Court, or by operation of law.
Enforcement of existing child support orders cannot be enforced for the
period where parties are reconciled and living together. Arguably,
reconciliation has the same effect on spousal support orders.
You continue to be on the hook for child support that accrued prior to
the date that you file an application to modify or terminate it, if that
request is successful.
Mandatory Statement of Decision on Support Modification or Set Aside: Family Code section 3654
You are entitled to a "statement of decision" from the Family
Court whenever it changes child or spousal support orders, but these are
tricky and you must understanding the timing of the request and how to make it.
Section 3900 has been applied in situations involving statutory rape (i.e.,
minor father seduced by adult woman who thereupon becomes pregnant) or
to void agreements between parents by which a mother says "I waive
child support if you get out of our life and agree to terminate your parental
Family Code section 3901 is important in that includes the traditional
limitation that the duty to support a child who is not incapacitated ends
when that child reaches the age of 18, or 19 where the child is a full-time
high school student and is not otherwise self-supporting. This is standard
language in most stipulations, marital settlement agreements, and Stipulated
Parents are responsible for for life to "maintain" according
to their "ability" adult children who are incapacitated. This
duty cannot be waived by a stipulation as between the parents that one
or both will not be so responsible.
Grandparents who don't seek court orders for custody or visitation
of grandchildren cannot be ordered to pay child support. Those that do
seek such orders can be liable not only for child support,
but also for attorney fees incurred by one or both of the child's parents. See FC section 3103.
Beyond direct court orders for child support, parents are not required
to reimburse the other parent, a relative, or strangers who voluntarily
support a child without an agreement that they will do so. This section
really is applied to bar efforts by county agencies to recover monies
expended by non-parent relatives.
Family Code section 4007 provides that where a court has issued specified
child support orders subject to a contingency, if the other parent collects
money beyond the contingency, they must refund the monies.
While Family Code section 4009 seems to say that family courts can make
child support orders retroactive to the date that, for instance, a Petition
for Dissolution (or Paternity Complaint) is filed (that has the 'child
support request box' checked), that is not how it is interpreted by
the appellate decisions or the Law Revision Commission Comments.
Fam. Code section 4050 states the general rule that California is to be
in compliance with federal regulations for uniform support obligations,
which assures that the state will receive certain federal monies.
California family courts are supposed to not deviate from the guideline
support numbers except when specifically authorized by statute.
This statutes guides courts in setting child support where there are more
than two legal parents.
This section delineates general principles that family courts must apply
when utilizing the state-wide formula.
This is the actual algebraic formula that the support programs must crunch
in coming up with the guideline support amounts.
Family Code section 4057 is a child support statute that you must read
if you hope to persuade your family court judge to deviate from the presumptively
correct child support numbers.
Section 4058 defines what is "income" for purposes of inputting
information into the guideline formula software programs.
The statewide child guideline child support formula derives a "net
disposable income" number that is "tax-effected" by subtracting
standardized deductions from a party's gross income.
FC section 4062 is important because these child-related expenses are add-ons
to the basic child support numbers kicked out by the support software
programs. Usually, but not in all cases, they are split equally between
Read FC § 4063 carefully if you expect to have recurring health-care
reimbursement issues relating to your children.
For people who earn income based upon commissions, or receive large bonuses,
this is an important family law statute. Income figures inputted into
the support software programs must be truly representative of expected income.
I've recently blogged about the treatment of bonuses and commissions
as "additional child support."
"Family support" orders and stipulations can be a terrific way
to cause the state of California to underwrite some of your child support
obligation by giving you deductions that typically only apply to spousal
Civil and Family Code Discovery In Family Law Cases
Parties and nonparties can be subpoenaed to appear at hearings and to testify
at a hearing by a lawyer or party acting as their own attorney.
CCP section 1987.1 allows parties and witnesses, including "consumers"
whose records are being improperly sought in a proceeding, to attempt
to quash or limit the scope of a subpoena.
CCP section 2025 sets forth the rules that apply to oral depositions in
California. Section 2025.010 is the starting point, and sets forth what
a deposition notice must state - including when a video deposition will
Absent a court order otherwise, a deposition cannot be taken earlier than
20 days after the other party has been served with the Summons and Petition
for Dissolution or Legal Separation. As a practical matter, and except
in emergency circumstances, it is not reasonable to expect the other party
to be available for deposition that quickly.
This section governs deposition notices when the witness is also being
requested to appear and produce documents. someone only once assuming
the deposition is completed.
You must give at least 10 days notice of a deposition to a party or third
party witness, and 20 days' notice if you are asking them to bring
"consumer" or employment records.
Effective January 1, 2013, depositions are limited to 7 hours of questioning
by the asking attorneys (or parties), absent a court order declaring the
case to be complex or other order of Court.
Interrogatories are highly useful, and have advantages for instance as
compared with attempting to obtain information about the other party's
case through deposition, because they can ask about legal contentions.
There are two types of interrogatories that are very useful in family law
litigation: Form and specially prepared interrogatories.
CCP section 2030.030 limits the number of interrogatories that can be asked
in a case to 35; however, all that is needed is a properly completed declaration
for additional discovery in order to ask a greater number.
It is critical that special interrogatories be drafted in accordance with
this section, and that you make them as simple and clear as possible.
Be sure to answer interrogatories in the manner prescribed by this section.
Answers are due within 30 days of the date you mail your interrogatories,
plus five more for mailing unless they are personally served.
Production demands are an essential form of discovery that should be used
early on in a case. In contrast to interrogatories and requests for admission,
which are limited to 35 questions as a "matter of right", there
is no limit on demands for production.
Follow the rules for how to draft these to avoid unnecessary argument and
objections over form.
"RFAs" require the other party to admit or deny a certain fact,
the truth of a legal claim or defense, or the authenticity of important
As a general rule, don't ask more than 35 questions in any one sitting
anyway - when you create that much work for the other side, you increase
the likelihood that they will give you objections or worthless answers.
Since each side is only entitled to 35 request for admission as a "matter
of right," use this declaration if you need to exceed that number
over the life of your case.
Section 3660 is intended to allow family law and divorce litigants to obtain
certain types of updated financial information from the other spouse,
partner, or parent by using an abbreviated request mechanism, without
necessarily having to first file proceedings for modification.
Once a judgment has been entered in any particular type of family law proceeding,
except as set forth in Family Code sections 3663 and 3665, you cannot
undertake discovery absent some post-judgment modification request that
has been filed with the Court.
Absent a pending motion or request for order, you can't undertake discovery
requests except as set forth in Family Code sections 3664 and 3665.
You can demand that the other side prepare and submit a completed Income
and Expense Declaration every 12 months. Often these requests are ignored,
however, and this section allows you to recover attorney fees and costs
if you are forced to file a motion simply to compel the other party to
This is how you obtain the other party's tax returns so you can decide
whether it is time to file an request to modify spousal or child support
orders based upon a change in their financial circumstances.
Family Code section 3667 sets forth the penalties, sanctions, and attorney
fees and costs that you may recover if you set your request to exchange
financial information once year up correctly, if the other side ignores
you or perjures themselves in what they do produce.
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Community and Separate Property Assets and Debts
Effective January 1, 2017, the legislature by section 70 abrogates and
rejects the California Supreme Court's decision in
Marriage of Davis.
While FC section 752 states the basic rule that neither spouse has a financial
interest in the separate assets of the other, there are many exceptions
to this rule - particularly where one party's separate property has
associated debt that gets paid from community property earnings during
FC section 760 states the fundamental "community property presumption"
that assets (and debts) incurred during marriage belong to the community estate.
"Separate property" consists of all property owned by a spouse
or domestic marriage before marriage, or which is acquired as a gift or
inheritance during marriage (but gifts between spouses may not qualify per
FC section 852), and includes everything that flows from an asset (i.e., rents and profits).
Money earned during periods of separation are not community property.
"Transmutations" constitute changes in the character of property
from community to separate, and vice-versa.
Transmutations cannot occur unless certain formalities are satisfied and
You can safely protect your spouse as an heir in a Will without risking
an inadvertent transmutation.
Liability of Marital (Community) Property For Debts of Spouses Incurred
Before or During Marriage:
Family Code section 910
Subject to certain exceptions, community property assets can be tapped
to satisfy the separate (i.e., premarital) debts of either spouse as well
as community debts they incurred during marriage - whether or not you
also signed on to the debt!
Community property earnings are not liable for the other spouse's premarital
debts so long as the monies are not commingled in a joint bank account.
Liability of Community Property For Debts Paid or Payable After Marriage
But Before Separation: Family Code section 913
According to FC section 913, a married person's separate property is
liable for their own separate debts whether incurred before or during marriage.
Family Code section 914 makes a married person's separate property
liable for debts incurred by the other for necessaries of life while the
parties are still married and are living together.
General Rules of Liability Relating to Child or Spousal Support Obligations
of a Married Person: Family Code section 915
Family Code section 915 treats a spouse's child or spousal support
obligations to a former spouse or children born outside this marriage
as a debt incurred prior to marriage, regardless when the child or support
obligation is created or modified (i.e., during this marriage).
Liability of Marital Property For Unpaid Debts After Trial or If Unallocated
by a Judgment: Family Code section 916
Separate property is liable for a party's unpaid debts after trial
if owed at the time of division of the community estate, as is a party's
share of community property that is awarded in the property division.
A right of reimbursement must be exercised within specific time limits
or it is waived.
This section limits the liability of spouses for the other spouse's
car accidents, or other torts, causing a third party personal injuries.
The language of Family Code section 2040 is set forth in the Summons that
issues when a dissolution, legal separation, or annulment action is filed.
It creates automatic restraining orders which bind the Petitioner when
they sign the Petition and the Respondent when they are served with the
Summons and Petition.
Obtaining a court order to sell, liquidate, or encumber real or personal
property before final judgment in a marital dissolution is a challenging endeavor.
This statute is one of the basic premises of California community property
laws. Family court judges must divide the community estate equally as
between the parties.
Family Code section 2552 is based upon the premise that assets are, generally
speaking, to be valued at time of trial. However, there are many exceptions
to this rule.
This is a critical statute to invoke where you learn, after the fact, that
an asset or obligation that existed when the case was filed, settled,
or tried to a judge was somehow forgotten, ignored, or omitted from the
equal division that is required by
Family Code section 2550.
Family Code section 2581 creates a presumption that property which is acquired
in joint names during the marriage, whether or not the title document
uses the words "community property", is in fact presumed to be CP.
Section 2601 augments the power of the family court bench officers to divide
community property equally, as is required by
FC section 2550.
Family Code section 2602 permits family court judges to charge a spouse
or domestic partner from their share of the community estate for property
which they deliberately misappropriated. Misappropriation is something
much larger than mere "mishandling" an asset.
Family Code section 2610 simply states the obvious duty of the family court
judges to ensure that each party receives their full community interest
in retirement plans and assets.
Family Code sections 2620 through 2628 describe the powers of the court
to confirm and divide community and separate property debts.
Section 2621 makes it clear that debts incurred prior to marriage must
be awarded to that spouse without offset.
This divorce statute is important to understanding the powers of divorce
judges to divide debts incurred during the marriage, including for instance
debts that were incurred in bad faith as part of a deliberate misappropriation
Section 2623 should not be overlooked when considering how a court might
assign debts incurred by a spouse after the date of separation. For instance,
debts for the "common necessaries of life" of either spouse
or for children of the marriage can be assigned according to who is in
a better position to pay them. Debts for "non-necessaries" of
life are assigned to the party who incurred them.
Debts of whatever nature that are incurred by a spouse after entry of a
judgment dividing the community estate, where the parties have yet to
terminate their marital status, are assigned to the party who incurred
Family Code section 2625 assigns debts incurred by one spouse during the
marriage to that spouse alone, IF the debt was not for the benefit of
the community estate.
Family courts are authorized by Family Code section 2626 to order reimbursement
as it deems appropriate for debts paid after separation but before trial.
This section may be used to require reimbursement when community property
has been applied after separation to satisfy any of the separate debts
enumerated in sections 2621 through 2625.
Family Code section 2640 is essentially a reimbursement statute that requires
that traceable separate property contributions to the acquisition of community
property must be repaid from the value of the asset before any remaining
community property equity can be found to exist and hence be subject to division.
Generally speaking, student loan debts are assigned to the party who incurred
them. However, that reimbursement may be modified or reduced to the extent
that the student party can establish that the community estate substantially
benefited from the education, training, or loans incurred therefor.
When parties acquire title to real or personal property prior to the date
of marriage, but for this statute the Family Law Act would require them
litigate their claims relating to such property in civil court, typically
through a partition action.
Joint bank accounts can create their own unique issues when dividing cash
accounts established during the marriage.
Joint deposit bank accounts affected by Probate Code section 5305 generally
don't include business accounts.
Financial Code section 1450 is a critically useful tool for maintaining
the status quo and protecting funds on deposit from being raided by one
spouse to the exclusion of the other, which is all to common during the
early stages of separation preceding divorce.
This statute allows you to ensure that your spouse doesn't empty the
contents of a safe deposit box.
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Confidentiality, Evidence and Privilege Rules
An Evidence Code section "352 objection" asks the court to refuse
to hear testimony or to admit other evidence that is inflammatory and
really wastes the Court's time. For instance, possibly a party wants
to introduce allegations of fault concerning the break-up of the relationship
which bears no connection to issues involving support or property division
in a divorce proceeding.
EC section 622 is an extremely useful presumption that recitals or other
facts set forth in a deed, or stipulated judgment, or a premarital agreement
were conclusively true at the time the document was executed and so cannot
be challenged at a later date.
If a deed or other title document recites who the owner is (or whether
the property is community or separate or percentages of interests) it
creates a presumption that both legal and beneficial title are so held
which can only be rebutted by "clear and convincing" evidence
- a high burden to overcome.
Evidence Code section 776 is the authority for you to call the other party,
or hostile witnesses, in your case in chief and allows you to cross-examine
them and ask them leading questions which would otherwise be objectionable
if they were own witnesses.
Except where a statute otherwise provides, people cannot refuse to be called
as a witness in family court proceedings.
Even where a privilege otherwise exists that would allow someone to avoid
testifying, these privileges can be waived if certain conditions are met.
If someone exercises a valid privilege not to testify, or refuses to answer
based thereon, no unfavorable inference can arise from the exercise of
Evidence Code section 917 creates legal presumptions that a valid, enforceable
privilege has arisen in certain relationships - like disclosures between
attorneys and clients, psychotherapists and patients, a husband and wife
(which must include same-sex marriages now), and so on.
The privilege against self-incrimination in California civil and marital
proceedings only applies to the extent it has been interpreted according
to the federal and state Constitutions.
If a lawyer reasonably believes a client has disclosed something confidential
that may lead to a criminal act likely to result in someone's death,
or substantial bodily harm (i.e., "I am going to kill my Wife - I
really mean it!), the attorney-client privilege that otherwise precludes
disclosure does not apply.
When a client sues their lawyer, or former lawyer, for professional negligence
or otherwise they waive the attorney-client privilege.
Married persons cannot be compelled to testify against each other, except
when otherwise permitted by statute.
If a married person is called as a witness by a party whose interests are
adverse to that witness's spouse, prior express consent of the spouse
is required before the witness can testify.
Evidence Code section 972 sets forth the limitations and exceptions of
the marital privilege not to testify.
A married person who testifies against his or her spouse does not have
a privilege that they can assert against the other's response to their
testimony, unless the court erroneously compelled that married person's
A married person cannot be compelled to disclose confidential communications
with his or her spouse while they were husband and wife.
Evidence Code section 1152 serves to make privileged from disclosure negotiations
EC section 1271 is important to read if you are trying to overcome a hearsay
objection to business or similar records.
The absence of certain types of entries in business records may be used
to prove their non-existence.
While tax returns generally cannot be obtained from the other party in
civil proceedings absent a court order, they can be obtained in family
law proceedings - except the Court can seal them so that they are confidential
from public scrutiny.
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Custody of Children and Visitation
Joint Custody refers to both legal and physical custody.
Joint legal custody refers to equal rights to make important parental decisions.
Joint physical custody implies that both parents are having the minor children
for considerable periods of time.
Sole legal custody gives one parent the right to make decisions concerning
the children’s interest without consulting the other parent or obtaining
their prior agreement.
Sole physical custody is the holy grail for many high conflict parents,
and those where the other parent has serious personal issues.
Without court orders saying otherwise, both legal parents are entitled
to the custody of their children.
“Best interests” of the child, or “BIC”, is the
starting analysis for any custody dispute. Know this family code section!
This statute affects custody rights for those who are detained because
of immigration and visa problems.
Another major disputed custody statute, Section 3020 states the fundamental
policy of the law favoring the right of both parents to be involved in
their children’s lives.
An often ignored provision by lawyers and self-represented parties, a parent
who knows this statute and brings it to the court’s decision can
force a statement on the record of what evidence the judge relied on in
making her or his decision.
This a standard provision in most CCRC mediation orders, and should be
included in any stipulation or settlement agreement involving kids.
Section 3027 empowers courts to make orders to protect children where abuse
is alleged, and to cause an investigation to be undertaken.
Section 3040 states the hierarchy of preference for placing children, always
first to parents, and second to qualified non-parents.
Section 3041 sets forth what showing is required for a nonparent to obtain
custody of a minor children. It frequently is invoked by adult siblings
and grandparents, but it could include any unrelated person.
Family Code section 3041.5 sets forth when a court can order drug testing.
Please note, courts never can order hair follicle tests unless the affected
person so agrees.
This is a critical statute that authorizes courts to hear directly from
a child, although there remains a lot of judicial reluctance to do it directly.
Cal. Rule of Court sets forth how testimony from a child regarding their
parental preference may be gotten into evidence.
A commonly used sword – in fact, the reason for a huge amount of
domestic violence litigation – Family Code section 3044 creates
a presumption of no joint custody on the part of a DV perpetrator.
Section 3046 mostly deals with consequences for relocation and attempted
move-aways, or the absence of a parent where there is no intent to abandon
a child. It is particularly intended to preserve the parental rights of
parents who flee because of domestic violence, but has a wider application.
This section empowers court’s it issue and extend emergency or ex
parte temporary custody orders.
Section 3063 grants courts explicit authority to issue orders prohibiting
a person who receives custody from taking the children out of state without
an express order so permitting.
This is a very important statute that many judges, especially newly minted
ones, don’t seem to know. Courts are not supposed to make ex parte
orders changing custody except when there is evidence of immediate harm
to a child, or that the child will be removed from the State.
Where the parents agree to joint custody, courts are supposed to follow
Except in cases involving agreement per section 3080 and so long as it
is in the children’s best interest per section 3011, section 3081
authorizes family court bench officers or order joint custody or first
direct an investigation be undertaken if they believe it necessary.
Another underutilized provision, a parent can force a judge to explain
why he or she ordered joint custody, or refused to do so, on the record.
This is an important provision for parents who feel the other acts in making
parental decisions without the input of the other. Courts can require
This is the key stepparent visitation rights’ statute.
This authorizes grandparent visitation where their child, the former parent,
has died. It can be a difficult and expensive fight, however, if there
is extreme hostility towards the GPs on the part of the living parent.
This is the key grandparent visitation rights’ statute.
Section 3104 establishes the procedures and basis for seeking grandparent
This is a general statute about who can be a “court-appointed investigator.”
An extremely important provision, Family Code section 3111 empowers courts
to appoint a person to conduct a limited or general child custody evaluation
which is then reported back to the court, and to the parties.
Section 3150 authorizes courts to appoint “Minor’s Counsel,”
who are generally private attorneys who’ve had some training doing
Minor’s counsel is literally the attorney for the child. Unfortunately,
often minor’s counsel takes a position adverse to one parent or
the other, under the guise of the child’s best interests.
Family Court Mediators work for the county. They meet with parents, try
to broker agreements, and in some California counties make recommendations
to the court where the parents cannot agree.
This section authorizes custody judges to order parents to participate
in counseling or therapy for not more than one year. This includes substance
This allows a parent who has been the victim of domestic violence, typically
with prior restraining orders issued in their favor, to meet separate
with the court custody mediator.
The UCCJEA is the Uniform Child Custody Jurisdiction Enforcement Act. It
pertains to inter-state custody situations, and is intended to avoid inconsistent
orders in different states and to resolve which state should undertake
exclusive jurisdiction over the parents and children.
Where custody proceedings are pending in two different states, the bench
officers in each are required to get on the phone and speak in an effort
to agree upon which state should exclusively control the proceedings.
Section 3421 sets forth how which state should take over the case must
This is California’s rules for asserting jurisdiction over interstate
minor children where another state has also been asked to undertake, or
already has, jurisdiction. Often parents move from a home state with the
children to a new jurisdiction.
California courts can assert emergency jurisdiction over parents and children
while the larger jurisdictional issue gets sorted out.
This section gives California courts the power to decline jurisdiction
where the most relevant evidence regarding children’s best interests
is in another State.
This is the basic “Burgess” rule, which creates a presumption
that parents are entitled to change the residence of a child where such
relocation will not prejudice the rights or welfare of the child.
Cal. Rules of Court prohibits ex parte contacts between lawyers, or parties,
with custody evaluators.
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Deferred Sale of Family Residence
In Re Marriage of Duke orders authorize courts to defer the sale of the family home in divorce
cases following entry of judgment and the division of everything else,
where one former spouse has been awarded physical custody of a minor child
and there are good minor child related reasons for continuing to live there.
Section 3801 sets forth what economic considerations a court must consider
before issuing a Duke order.
Section 3802 states what child-centered considerations the court must consider
before deferring the sale of a residence.
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Dissolution, Legal Separation and Other Family Law Procedures
This is a very important statute. It provides that all other procedural
and evidence statutes apply to family law proceedings.
An important procedural statute to know, section 213 limits what a responding
party can seek by way of affirmative relief to the menu items of the initiating party.
Trial courts can exclude the public from family law proceedings, but rarely
do except in adoption and guardianship cases.
Section 215 permits post-judgment motions to modify custody, visitation,
or child support by mail, whereas other types of motions must be personally served.
Family law litigants and their attorneys are entitled to demand live-witness
testimony on law and motion (RFO) matters, with certain qualifications
and requirements set forth in the Cal.Rules of Court.
Section 2013 is an explicit recognition that parties may opt out of the
adversarial court system and engage in collaborative processes. It exempts
them from having to participate in the court process, even though they
may have filed a Petition and Response for Dissolution.
Family Code section 2021 authorizes courts to join third parties, or entities,
to a divorce proceeding according to the Rules of Court.
This sets forth the form of notice that will force insurers not to cancel
insurance without first giving notice to both parties.
In order to file for dissolution in California, you must be a residence
of the State for at least 6 months. You need not live here to file for
a legal separation.
This section is intended to assure that the same judicial officer preside
over a case over time, to the extent possible.
Family Code section 2337 sets forth what orders must be issued when marital
status is terminated before the conclusion of the entire case.
California courts cannot impose a legal separation on the parties; it can
only be granted by agreement or by default.
Courts may order parties to family law cases to engage in a family centered
resolution plan, but most jurisdictions don’t have the resources.
Case management plans can be effective, however, for high-conflict cases
and can be used to reign in the parties.
Once the time limit for disqualifying a judge without cause per CCP section
170.6 has passed, they can only be recused upon a showing of bias or for
certain other grounds.
Within a limited time, you can disqualify a judge assigned to your case
for good reason, bad reason, or no reason.
Under certain circumstances, parties can request a statement of decision
setting forth how the judge ruled the way they did. We have sample Requests
for Statements of Decision in our forms Portal.
While this section applies to civil actions generally, it can be utilized
to get control of a high-conflict family law case.
An extremely important code section for enforcing settlements that are
reached out of court, every single stipulation and settlement agreement
must contain reference to this provision in order to be enforceable if
the other party attempts to weasel out.
This provides a possible method for attempting to recover attorney fees
in family law cases, although its application to them is uncertain.
A good rule to know, if you want to try to get attorney fees or derail
a pending motion.
Many courts will not read pleadings if they exceed the length limitations,
or if they do they may well be pissed. Some judges will even sanction
parties or their attorneys for failing to follow these rules!
Motions in Limine are an incredibly useful tool for excluding evidence and limiting trial
issues. They are filed before trial commencement. See our Blog!
Read our Blog to determine what to do when the other side stupidly
files your confidential financial information with the Court!
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Domestic Violence and Intimate Partner Abuse
Section 6203 is the only DV that actually defines what "abuse"
is. It must be read together with section 6320.
This statute distinguishes who are "intimate partners" and related
by blood and so eligible to use a DV application to obtain restraining
orders as opposed to a Petition against Civil Harassment.
Basically residence exclusion and orders enjoining specific behavior or
acts of misconduct.
Called EPO's, these orders may be obtained on an emergency basis like
over the weekend to give someone the time they need to come to court on
their own DV application. Often issued when a perpetrator is arrested for DV.
EPO's may be issued if a present danger of abuse or DV exists, to an
adult or a child. It may prohibit child abduction.
This protects the address of a DV victim and their children from disclosure.
Courts are forbidden to split the baby and just issue mutual DV restraining
orders, without independent evidence of justification.
This is the key statute that catalogs what DV conduct may consist of. It
is being expanded by appellate decisions.
DV cases must be heard in 20 days and be served not less than 5 days before
the hearing. Judges have to state why they refused to grant ex parte orders
on the application.
You are entitled to one continuance as a matter of right at your first
appearance at a domestic violence hearing. This will give you time to
retain a competent domestic violence attorney.
Often DV is falsely alleged to get possession of the family residence.
The court will usually issue "no-contact" and no-visitation orders
in its temporary DV orders.
Family Code section 3044, which creates an presumption against joint custody where permanent domestic
violence orders have issued.
Penal Code section 273.5 is the felony criminal statute that domestic violence
perpetrators will be charged with. If you are convicted or plead guilty
or no-contest even to a lesser offense like disturbing the peace, the
FC section 3044 no joint custody presumption will be triggered! The no spousal support
FC section 4325, likewise!
See our Blog articles about excluding evidence, and motions in limine,
that has been illegally obtained and which the other side commonly seeks
to introduce in domestic violence proceedings!
Enforcing Support Orders and Judgments in California
Per Family Code section 155, and CCP sections 685.010 and 685.020, interest
on delinquent support payments accrues at 10% from the date each installment
is actually due.
Section 290 states money orders can be enforced by execution, contempt,
or the imposition of a receiver - or any other way the Court determines
Support judgments never go away! For this reason, the best practice is
to have your spouse or the support recipient parent acknowledge in writing,
or better yet by a Stipulation filed in the case, that you are paid up!
Section 4560 is rarely used, but is a means of forcing a parent support
payor who has chronic payment issues to put money into a trust for up
to one year’s worth of upcoming support installments. It would only
be useful with high-asset folks, or someone who just came into a large
sum of dough.
This is a very important and underused section for chronically late support
obligors – and it applies to every person who owes child support!
Upon giving of a proper demand for payment, you may apply for court orders
that interest accrues on the late payments @ 6 percent per month, up to
a maximum of 72 percent of the overdue balance. See section 4726.
This section describes when you can dodge the child support interest penalty bullet.
Section 5100 makes it clear that child support arrears can be enforced
by levy or execution. See our support enforcements blog article!
Enforcing Support Orders Against Pension Plans: Family Code section 5103
This section describes how to collect child support arrears from pension plans.
This section sets forth what must accompanying a Writ of Execution application
for child support.
Using Earnings Assignment Orders to Collect Child and Spousal Support: Family Code section 5230
Section 5230 provides that you are entitled to an earnings assignment order
as a matter of right.
Liability of Employers Who Fail to Company with Wage Assignments: Family Code section 5241
Use section 5241 where you have an employer, like a family member, who
refuses to comply with earnings assignments or garnishments.
Abstracts of Judgment issue upon the determination of support arrears and
interest. They are filed in every county where the obligor owns, or may
come to own, real property and ensures that balance is paid upon sale
Issuing Writs to Enforce Family Law Orders and Judgments: Code of Civil Procedure section 699.510
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Ex Parte Procedures In Family Law Cases
Giving Notice of an Ex Parte Application: Family Code section 241
Notice of an ex parte application must always be given, unless you can
demonstrate that irreparable injury would otherwise occur.
Section 242 requires a hearing following the ex parte issuance of temporary
restraining orders not later than 25 days thereafter, unless the orders
are reissued under section 245.
Following the issuance of an ex parte orders, including DV TRO’s,
the applicant must be ready to proceed but the respondent can request
one reasonable continuance.
Ex parte hearings are supposed to take precedent over any other matters
on the court’s calendar that day.
This section states the one continuance as a matter of right rule, but
the temporary orders may be left in place and extended to the new hearing date.
Judges are supposed to rule on ex parte applications the same day as they
are received by the court clerk.
These are super-temporary orders that extend beyond, or apply more specifically,
then the ATROS’s that come into existence under section 2040 –
which, of course, only apply to actions for marital dissolution. Use this
if there is no marriage or RDP.
You are required to give the other side notice of your filing of an ex
parte application by 10:00 a.m. the day before.
You must comply with Rule 3.1204 or you ex parte application will be denied. Read it.
Clerks have no discretion to reject an ex parte even if it is doesn’t
comply with Rule 3.1203.
Time for Serving Ex Parte Papers: California Rules of Court, Rule 3.1206
Ex parte papers must be served upon the other party.
This Rule deals with continuance with the grounds you must meet in order
to continue a hearing or trial.
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Expert Witnesses and Evaluations
730 experts are commonly agreed to by the parties, or they may be appointed
by your bench officer. They answer only to the Court.
These are experts you can hire to challenge the report of the 730 expert,
but only on limited grounds.
Cal Rules That Apply to 730 Custody Evaluations: Cal.Rules of Court, Rule 5-220
These are rules that apply specially to 730 custody evaluators.
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Fiduciary Duties Between Spouses and Declarations of Disclosure
FC section is the statutory basis for interspousal fiduciary duties. It
applies from the moment parties are married.
Another important section that many lawyers and probably almost all self-represented
parties misunderstand. It means that parties have the equal right to manage
the marital estate, but it also imposes obligations on the marital partner
who, per the conduct of the parties, makes the financial decisions.
Section 1101 is the remedies and penalty statute governing what happens
when one spouse breaches a fiduciary duty, including most commonly hiding
assets. It only applies to community, and not separate property. Penalties
for a breach covered by this section range from 50 to 100% of the value
of the CP asset that is hidden.
This section limits what transactions a spouse can enter into with third
parties buyers or sellers or lenders, among other things.
This covers the uncommon situation where one or both spouses have serious
mental or physical problems that make them particularly vulnerable to
undue influence or some other form of abuse.
Section 2100 and those that follow all have to do with disclosure rules
and procedures once some kind of divorce, annulment, or legal separation
has been instituted. They are procedurally very important.
Fiduciary duties, that arose because of the fact of marriage, continue
after separation until such time as each and every particular asset has
been divided or otherwise awarded.
Preliminary declarations of disclosure must always be served by the Petitioner,
and usually by the Respondent, and are supposed to transparently reflect
marital assets, opportunities, and other material facts and information
that either spouse would require to make informed decisions about the
valuation and division of the marital estate.
This sets forth the nature of what must be disclosed in the preliminary
declaration of disclosure (PDD).
Final declarations of disclosure are different, and are supposed to be
much more detailed, then the initial exchange of information of the PDD.
They are supposed to be supported by all material facts and information
(“MFI”) including documentary back-up.
Judges are not supposed to make trial rulings or findings on contested
dissolution cases without the prior exchange of the “FDD”.
These are remedies for set-aside where the PDD or FDD is somehow defective.
In default cases, the Petitioner can waive service by the Respondent of
the Respondent’s PDD.
Sets forth grounds for set-asides of settlement agreements or orders, and
the time limits for filing these set-asides.
This section provides additional remedies for property that has been stolen
by a dissolution party.
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Joinder in Family Law Cases
Joinders of third parties, beyond the spouses, is disfavored and must meet
Mediation Privilege in Divorce and Family Law
These sections are Evidence Code provisions because they all deal with
the “mediation privilege” Section 1115 describes what qualifies
as a protected mediation.
Oral agreements reached in mediation can be effective and enforceable if
certain conditions are met.
This is the core of the privilege: Nothing said or heard or submitted in
mediation can be disclosed by either party, or the mediator. California
is thought to have the strictest protections for mediation in the country.
No court or other administrative body can be told of the mediator’s
findings or recommendations, unless all parties to the mediation, and
the mediator, sign a writing allowing the information to be submitted
or orally agree to do so per section 1118.
This provides exceptions when a communication or writing that is made or
prepared in the course of mediation may be admitted into evidence.
Written settlement agreements reached in mediation may be admissible under
Section describes when and how a mediation is ended, for purposes of the
expectation of confidentiality.
The fact that mediation has ended does not mean that what was previously
inadmissible becomes admissible.
Where materials are erroneously admitted in a court proceeding, this is
a basis for modifying or undoing the ruling based upon such an admission.
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Military Divorce Statutes and Related Rules and Regulations
Payment of Community Interest in Military Retirement Plan Per Court Orders: 10 U.S. Code section 1408
This section has specific application to support orders of persons who
are on active duty with the military or national guard.
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When a child is born to a couple who are living together, where the husband
is not impotent or sterile, the law conclusively presumes the husband
is in fact the child’s legal father.
Notwithstanding this conclusive presumption, the Court can find –
within a limited time – that he is not the legal father if the experts
determine he is not the bio-parent.
VDOP’s, also known as VDP’s, establish legal paternity for
purposes of support and custody and visitation in the same manner as a
Judgment of Paternity. They are typically signed at the hospital by the
father who is present for the child’s birth.
VDOP’s can be rescinded, and so undo the paternity judgment, under
Section 7611 establishes legal presumptions of parenthood under its stated
The presumptions of section 7611 are rebuttable and are given a relative
hierarchy when one presumption conflicts with another.
Section 7613 protects donors and obligates “intended parents”
to be treated by the law as the legal parent.
Section 7630 also sets forth legal presumptions about who the legal parent
of a child is.
This section sets forth statutes of limitations about when the right to
challenge a finding of paternity may be attacked and/or set aside.
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Personal Injury Awards in Divorce
The starting presumption with personal injury settlements is that they
are community property if the accident or other claim arose during marriage.
Section 781 states when what would otherwise be community property settlement
funds are, or become, the separate property of the person who had the claim.
Section 2603 deals with personal injury monies that get commingled, or
is not the separate property of the injured spouse per section 781, and
gives discretion to trial courts how to award those funds as between the parties.
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Pension and Estate Related Matters
Section 755(b) provides a method of giving notice to a pension administrator
about the other spouse’s community interest in the plan.
Section 2060 authorizes pension to be joined into the proceedings in order
to bind it to the court’s adjudication of the parties’ respective
This section describes how and what must be served upon the Plan.
Probate section 5601 deals with severance of joint tenancies, or upon death
of a joint tenant.
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Section 1612 describes what can, and what cannot, be the valid subject
of a premarital agreement and further requires what is necessary for a
valid spousal support waiver contained in a prenup.
Premarital agreements can be free revoked after marriage, if both parties
agree to do so in writing.
Section 1615 sets forth defenses that a spouse may have to the enforcement
of a premarital agreement.
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Same-Sex Marriages and Domestic Partnerships
FC section 297 defines who is eligible for registering a domestic partnerships.
All provisions of the Family Law Act apply to registered domestic partners
Section 299 permits domestic partners to accomplish a summary dissolution
for those who qualify.
Legal unions lawfully formed in any other jurisdiction must be given full
faith and credit in California.
Section 308 provides that marriages, implicitly including same-sex marriages,
contracted in other states are valid in California.
You can file for a divorce in California if you married here, where your
State doesn't recognize your union and so refuses to dissolve it.
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Service of Pleadings in Divorce and Family Law Proceedings
The Summons and Petition must be personally served upon the other party,
unless service is accomplished in the following sections.
This is an alternate method of service, besides personally on the other
party, if certain conditions are met.
This is the most gentle method of service where the other party agrees
to sign for it.
This section allows service outside of California by certified mail.
A court order is required to obtain service by publication.
This section describes the general rules for serving motions, after the
other party has appeared in the proceedings by paying their filing fee
and filing some form of Response.
This describes how service of motions can be served upon the attorney of
record for a party.
This section deals with post-judgment motions, which in certain situations
can be served by mail.
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Setting Aside Judgments and Orders
The timing rules and form of making motions for reconsideration are critical
to success with them, as courts don’t want to relitigate every decision
that makes some one party unhappy.
Family law judgments can be set aside, within certain time frames, on the
grounds of fraud, perjury, duress, mental incapacity, and mistake.
CCP section 473 only gives people 6 months to set aside orders entered
against them by reason of mistake, inadvertence, excusable neglect, or
extrinsic fraud. Section 3690 gives court’s discretion to set aside
orders if some missed the 6 month deadline.
Section 3691 sets forth the time limits for filing set-aside motions as
to support orders depending upon the basis alleged for justifying that
It is not a basis to set aside a support order that was inequitable when
made, or where later circumstances now make it unfair.
Trial courts can set aside all of a support order, or portions of one.
This section is a civil statute with full application to orders issued
against you in family court proceedings. It is also used to correct lawyer mistakes.
This section is used to set aside entries of default or default judgments.
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Spousal Support and Alimony
“Family” support is spousal and child support combined, and
can have positive tax consequences.
Section 3600 is the starting point for temporary spousal support requests.
Support may only be made retroactive to the date a motion is actually filed
with the court.
This expressly gives family law courts discretion to make support orders
effective the date of the filing or afterwards.
New-mate income cannot be directly considered by court in awarding child
or spousal support.
Separate property can be liable for the support of the other spouse, and
particularly for the other party’s necessities of life.
A spouse is not liable to pay the other spouse support if they are living
apart, absent a written agreement.
Section 4320 is the key spousal support statute in California divorce.
It also applies to applications for attorney fees.
There is a statutory presumption of a reduced need for spousal support
when the support recipient is residing with another person in a romantic
Section 4325 is used to cut-off the obligation to pay spousal support to
a person against whom permanent restraining orders have issued.
Section 4330 states the California rule that supported spouses should make
reasonable efforts to become self-supporting within a period equal to
half the length of the marriage; however, as commonly known as a Gavron
Warning, the supported spouse has first to be given notice of that policy
by the court.
Vocational exams are used, among other things, to impute income to the
Specifically relating to spousal support orders, this statute limits retroactive
support orders to a date of commencement on or after the date a request
for support is filed.
Trial courts can issue orders that terminate or reduce or modify spousal
support based upon the happening of a stated contingency. To the extent
that the contingency occurs but the supported spouse fails to tell the
payor, the may have to refund what was thereafter received in support.
Marriages of long duration are at least 10 years in length, but can also
be marriages of less than 10 years under certain circumstances.
Spousal support rights terminate upon death or the recipient’s remarriage.
Courts can force a supporting spouse to buy an annuity or insurance policy
that provides for a spousal support equivalent even after the payor’s death.
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Divorce and Family Law Attorneys Palm Desert, Palm Springs, Indian Wells,
La Quinta, Joshua Tree, Riverside, San Bernardino, Hemet, Indio and the
Blythe Family Courts
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