Bankruptcy
We represent clients in Chapter 7 and Chapter 13 Bankruptcy cases. No two cases are identical. Please contact us today for a free initial consultation to speak to an experienced Bankruptcy attorney regarding your unique case and circumstances.

Criminal Law
We represent clients facing misdemeanor and felony criminal charges. Please contact us today for a free initial consultation.

Family Law
We represent clients desiring to file for or defend against divorce, paternity, custody, visitation, child and spousal support, adoption, domestic violence restraining orders and property division. Please contact us today for a free initial consultation.

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What Is Bankruptcy?
What Can Bankruptcy Do?
Bankruptcy Cannot
Chapter 7 (Straight Bankruptcy)
Chapter 13 (Reorganization)
Chapter 13 is appropriate for debtors who:
Filing Fees for Bankruptcy?
Requirements Before Filing Bankruptcy?
What Can You Keep?
How About My Home and Car?
Can I Own Anything After Bankruptcy?
Will Bankruptcy Wipe Out All My Debts?
Will I Have to Go to Court?
Will Bankruptcy Affect My Credit?
Do I Need an Attorney to File Bankruptcy?

We represent clients in Chapter 7 and Chapter 13 Bankruptcy cases.
No two cases are identical. Please contact us today for a free consultation to speak to an experienced Bankruptcy attorney regarding your unique case and circumstances.

What Is Bankruptcy?
Bankruptcy is a legal proceeding in which a qualified person who cannot pay his or her bills can get a fresh financial start. The right to file for bankruptcy is provided by federal law, and all bankruptcy cases are handled in federal court. Filing bankruptcy immediately stops (“Automatic Stay”) all of your creditors from seeking to collect debts from you, at least until your debts are sorted out, according to the law.
A decision to file for bankruptcy should be only made after consulting with an experienced bankruptcy attorney to determine the best way to deal with your financial problems.

There have been many news reports suggesting that changes to the bankruptcy law passed by Congress in 2005 prevent many individuals from filing bankruptcy. It is true that these changes have made the process more complicated, but it may not be true that you cannot file bankruptcy. Let the experienced attorneys at Rodrigo Law Firm will help you navigate through the new laws and help you get a fresh start at life.

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What Can Bankruptcy Do?
Bankruptcy may make it possible to:

• Eliminate the legal obligation to pay most or all of your debts. This is called a “discharge” of debts. It is designed to give you a fresh financial start.

• Stop foreclosure on your house or mobile home and allow you an opportunity to catch up on missed payments. (Bankruptcy does not, however, automatically eliminate mortgages and other liens on your property without payment.)

• Prevent repossession of a car or other property, or force the creditor to return property even after it has been repossessed.

• Stop wage garnishment, debt collection harassment, and similar creditor actions to collect a debt.

• Restore or prevent termination of utility service.

• Allow you to challenge the claims of creditors who have committed fraud or who are otherwise trying to collect more than you really owe.

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Bankruptcy Cannot
Bankruptcy cannot cure every financial problem. In bankruptcy, it is usually not possible to:

• Eliminate certain rights of “secured” creditors. A creditor is “secured” if it has taken a mortgage or other lien on property as collateral for a loan. Common examples are car loans and home mortgages. You can force secured creditors to take payments over time in the bankruptcy process and bankruptcy can eliminate your obligation to pay any additional money on the debt if you decide to give back the property. But you generally cannot keep secured property unless you continue to pay the debt. However, under certain circumstances, you may be allowed to eliminate or strip the second and third mortgages from residential properties. Please consult with an experienced attorney to find out your rights.

• Discharge types of debts singled out by the bankruptcy law for special treatment, such as, child support, alimony, most student loans, court restitution orders, criminal fines, and most taxes.

• Protect cosigners on your debts. When a relative or friend has co-signed a loan, and the consumer discharges the loan in bankruptcy, the cosigner may still have to repay all or part of the loan.

• Discharge debts that arise after bankruptcy has been filed.

Types of Bankruptcy Cases
There are four types of bankruptcy cases provided under the law:

• Chapter 7 is known as “straight” or “total liquidation” bankruptcy. It requires an debtor to give up assets that are not “exempt” under state and/or federal law, for the benefit of the creditors. Generally, debtors who file chapter 7 keep all of their property, except property which is un-exempted or property that is subject to a lien which they cannot afford or want to pay.

• Chapter 11, known as “reorganization,” is used by businesses and a few individuals whose debts are very large.

• Chapter 12 is reserved for family farmers and fishermen.

• Chapter 13 is a type of “reorganization” used by individuals to pay all or a portion of their debts over a period of years using their current disposable income.

The experienced attorneys at Rodrigo Law Firm can assist you in choosing the right type of Bankruptcy case for you.

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Chapter 7 (Straight Bankruptcy)
In a bankruptcy case under chapter 7, a debtor files a petition requesting the court to discharge his or her debts. The basic idea is to wipe out (discharge) debt and in return the debtor surrenders un-exempt or unprotected property to the bankruptcy estate. It is extremely important that you consult with an experienced attorney in this area, because this area tends to be complicated.
For obvious reasons, not everyone qualifies for Chapter 7 bankruptcy. If your income is above the median family income in your state, you may have to file a chapter 13 case. Higher-income debtors must fill out “means test” forms requiring detailed information about their income and expenses.

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Chapter 13 (Reorganization)
In a chapter 13 case, the debtor files a proposed plan showing how his or she intends to pay off some portion of his or her past-due and current debts over three to five years. The most important thing about a chapter 13 case is that it will allow you to keep property—especially your home and car—which might otherwise be lost, if you can make the payments required to be made to your creditors under the bankruptcy law. In most cases, these payments will be at least as much as your regular monthly payments on your mortgage or car loan, with some extra payment to get caught up on the amount you have fallen behind.

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Chapter 13 is appropriate for debtors who:

• Own a home and are in danger of losing it because of money problems;

• Are behind on debt payments, but can catch up if given some time;

• Have valuable property that is not exempt, but can afford to pay creditors from income over a period of three to five years.

• Want to eliminate second and third mortgages.

Filing Fees for Bankruptcy?
It is currently $299 to file for chapter 7 bankruptcy and $274 to file for chapter 13 bankruptcy, whether for one person or a married couple. The court may allow some debtors to pay the filing fee in installments if they cannot pay it all at once.

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Requirements Before Filing Bankruptcy?
Debtors must receive credit counseling from an approved credit counseling agency within 180 days before the bankruptcy case is filed. Different agencies provide the counseling in-person, by telephone, or over the Internet. A debtor must have a valid certificate from an approved agency showing that they received the counseling before filing the bankruptcy case.
Most approved agencies charge between $30–$50 for the pre-filing counseling. However, the law requires approved agencies to provide bankruptcy counseling and the necessary certificates without considering an individual’s ability to pay. If a debtor cannot afford the fee, they should ask the agency to provide the counseling free of charge or at a reduced fee.

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What Can You Keep?
In a chapter 7 case, a debtor can keep all property the California law says is “exempt” from the claims of creditors. In some states, debtors are given a choice between using either the state exemptions or using the federal bankruptcy exemptions. The State of California has “opted” out of the federal bankruptcy exemptions. This means you will be required to choose exemptions mostly under California Code of Civil Procedure Sections 703 or 704. However, even in an “opt-out” state, you may use a special federal bankruptcy exemption that protects retirement funds in pension plans and individual retirement accounts (IRAs). Once again, this is a very complicated area of the law; it is highly advisable to speak with an experienced attorney at Rodrigo Law Firm regarding assets and exemptions.
While your exemptions allow you to keep property even in a chapter 7 case, your exemptions do not make any difference to the right of a mortgage holder or car loan creditor to take the property to cover the debt, if you are behind. In a chapter 13 case, you can keep all of your property if your plan meets the requirements of the bankruptcy law. In most cases, you will have to pay the mortgages or liens as you would if you did not file bankruptcy.
No two cases are identical. Please contact us today for a free consultation to speak to an experienced Bankruptcy attorney regarding your unique case and circumstances.

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How About My Home and Car?
In most cases, a debtor will not lose their home or car during his or her bankruptcy case as long as the equity in the property is fully exempt. Even if the property is not fully exempt, a debtor may be able to keep it by paying the bankruptcy estate for the unprotected value.
However, some creditors may have a “security interest” in homes, automobiles, or other personal property. In these circumstances, a debtor must continue paying the secured debt to keep the secured property. Bankruptcy does not make these security interests go away.
In a chapter 13 case, you may be able to keep certain secured property by paying the creditor the value of the property rather than the full amount owed on the debt. You can use chapter 13 to catch up on back payments and get current on the loan.

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Can I Own Anything After Bankruptcy?
Yes! Many people believe they cannot own anything for a period of time after filing for bankruptcy. This is not true. You can keep your exempt property and anything you obtain after the bankruptcy is filed. However, if you receive an inheritance, a property settlement, or life insurance benefits within 180 days after filing for bankruptcy, that money or property may have to be paid to your creditors if the property or money is not exempt.

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Will Bankruptcy Wipe Out All My Debts?
Yes, with some exceptions. Bankruptcy will not normally wipe out:

• Money owed for child support or alimony;

• Most fines and penalties owed to government agencies;

• Most taxes and debts incurred to pay taxes, which cannot be
discharged;

• Student loans, unless you can prove to the court that repaying them will be an “undue hardship”;

• Debts not listed on your bankruptcy petition;

• Loans you got by knowingly giving false information to a creditor, who reasonably relied on it in giving you the loan;

• Debts resulting from “willful and malicious” harm;

• Debts incurred by driving while intoxicated;

• Mortgages and other liens which are not paid in the bankruptcy case (but bankruptcy will wipe out your obligation to pay any additional money if the property is sold by the creditor).

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Will I Have to Go to Court?
Yes. You only have to go to a proceeding called the “meeting of creditors” to meet with the bankruptcy trustee and any creditor who chooses to come. Most of the time, this meeting will be a short and simple procedure where you are asked a few questions about your bankruptcy forms and your financial situation. We fully prepare all our clients before the hearing and your experienced attorney from Rodrigo Law Firm will be there every step of the way.
Occasionally, if complications arise, or if you choose to dispute a debt, you may have to appear at additional hearings. In a chapter 13 case, you may also have to appear at a hearing when the judge decides whether your plan should be approved. If you need to go to court, you will receive notice of the court date and time from the court and your attorney.
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Will Bankruptcy Affect My Credit?
Unfortunately, if you are already behind on bills, your credit may already be in poor condition. Bankruptcy will probably not make things any worse, but it will actually help you rebuild credit.
Under current laws, a bankruptcy can appear on credit records for ten years from the date of filing. After bankruptcy, discharged debts should be listed on credit reports as having a zero balance, meaning you do not own anything on the debt. Debts incorrectly reported as having a balance owed will negatively affect your credit score and make it more difficult or costly to get credit. You should check your credit report after bankruptcy and file a dispute with credit reporting agencies if this information is not correct.

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Do I Need an Attorney to File Bankruptcy?
Yes. Only an attorney is permitted to advise you of the law, determine the correct relief available to you, and recommend which documents you should file.
Avoid “Typing Services” and/or “Paralegal Services”
Document preparation services also known as “typing services” or “paralegal services” involve non-lawyers who offer to prepare bankruptcy forms for a fee. Problems with these services often arise because non-lawyers cannot offer legal advice on difficult bankruptcy cases and they offer no services once a bankruptcy case has filed. They cannot represent you in court, meet with the judge or trustees nor deal with the United States Trustee, if your case is audited.
Additionally, Typing Services and Paralegal Services are not governed, regulated or monitored by a State or government entity; whereas attorneys are licensed and disciplined by the State of California State Bar. In most cases, the fees quoted by Rodrigo Law Firm are less expensive and highly completive compared to fees charged by typing services or paralegal services.
In many cases, these typing services and paralegal services are not trained in preparing Bankruptcy petitions and have no formal legal training. Filing bankruptcy is not a step to be taken lightly. The bankruptcy process is difficult and debtors may lose property or other rights if a petition is incomplete or improperly prepared. It takes patience, careful preparation, and legal experience to successfully complete a bankruptcy case. At Rodrigo Law Firm, you will meet with an experienced and trained attorney.

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**Above information is provided for information purposes ONLY and not intended as legal advice. No two cases are identical. Please contact us today for a free consultation to speak to an experienced Bankruptcy attorney regarding your unique case and circumstances.

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Malum in se vs. Malum Prohibitum
Misdemeanors vs. Felonies
Types of Crimes
Property Crimes
Robbery
Burglary
Arson
Crimes Against Person
Murder
Generally, there are four ways to establish malice:
First Degree Murder:
Second Degree Murder:
Voluntary and Involuntary Manslaughter
Rape
Kidnapping
Assault and Battery
Traffic Violations
Parking Citations
Infraction Citations
Misdemeanor Citation
What happens when a Police Officer pulls you over?
Traffic Fines
Driving Under the Influence (DUI)

Malum in se vs. Malum Prohibitum
Criminal offences are divided into two categories: malum in se and malum prohibitum crimes. Malum in se is a Latin phrase used to refer to conduct that is inherently wrong by nature. Literally translated it means “wrong or evil in itself.”
Example: The killing of another human is universally regarded as conduct that is inherently wrong. Malum prohibitum is also a Latin phrase used to refer to conduct that is unlawful because of written law or statue. In other words, it is criminal or illegal because state legislature said so. Translated it means a “wrong that is prohibited.”
Example: Driving without a license is a good example of a malum prohibitum crime. The act of driving without a license, which is not inherently wrong in itself, is only illegal conduct because of written statute.

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Misdemeanors vs. Felonies
Under California law, like in most jurisdictions, criminal offenses are punishable as a misdemeanor or a felony.
Misdemeanors are generally punished much less severely than felonies. Those convicted can receive fines, probation, community service, jail time less than 12 months or even get to serve jail time on weekends. Typically, the incarcerated time is spent in local jails, as compared to that of felons, who are incarcerated in state prison.
A felony may be punishable by imprisonment for one or more years or death in the case of the most serious felonies, such as murder. Individuals convicted of felonies can also face severe legal consequences and loss of rights after their imprisonment. In many jurisdictions, felons are prohibited from voting, obtaining licenses, purchasing firearms, holding public office and serving on a jury.

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Types of Crimes
There are generally two types of malum in se crimes: crime against property and crime against person.

Property Crimes
There are many types of property crimes and they vary largely from state to state. Most serious and common types of property crimes are robbery, burglary and arson.

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Robbery
Robbery is trespassory taking and carrying away of personal property of another with force or threat of force with the intent to permanently deprive the victim of their property. “Carjacking” is a form of robbery. Robbery is a felony under California law, Penal Code § 211. California law has two degrees of robbery: first and second degree. First degree robbery is the robbery of any “person who is performing his or her duties as an operator of any bus, taxicab, cable car, streetcar, trackless trolley, or other vehicle, including a vehicle operated on stationary rails or on a track or rail suspended in the air, and used for the transportation of persons for hire” and “robbery of any person while using (or immediately after) an automated teller machine (or in the vicinity of)” (Calif. Penal Code § 211.5). All other kinds of robbery are considered second degree. Under California law, first degree robbery that is committed jointly with two or more persons in a home or a similar dwelling is punishable by imprisonment in state prison for three, six, or nine years. All other types of first degree robbery are punishable by imprisonment in state prison for three, four, or six years. Second degree robbery is punishable by imprisonment in state prison for to, three or five years. (Calif. Penal Code § 213).

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Burglary
Burglary is the trespassory breaking and entering of a protected structure with the intent to commit a felony. Burglary is a felony under California law, Penal Code § 459. California law has two degrees of burglary: first and second degree. First degree burglary is the burglary of a “inhabited” dwelling (occupied or unoccupied) and all other kinds of burglary are of the second degree (Calif. Penal Code §460). Under California law, first degree burglary is punishable by imprisonment in state prison for two, four or six years. Burglary in the second degree is punishable by imprisonment in county jail not exceeding one year or in the state prison.

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Arson
Arson is the burning of a protected structure with intent to burn or conduct that is likely cause risk of burning. Under California law, arson that causes great bodily injury is a felony that is punishable by imprisonment in state prison for five, seven or nine years. Arson that causes an inhabited structure to burn is also a felony that is punishable in state prison for three, five or eight years (Calif. Penal Code §451).

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Crimes Against Person
Similar to property crimes, there are many types of crimes against persons that vary significantly from state to state. Most serious and common types of crimes against persons are murder, rape, kidnapping, assault and battery.

Murder
Murder is the unlawful killing of human, or fetus, with malice aforethought (Calif. Penal Code §187). There are two levels of murder in California: first degree and second degree. In many cases the charge of murder is established by looking at whether the defendant acted with malice. Malice may be express or implied. It is express when there is manifested a deliberate intention to unlawfully take a life. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

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Generally, there are four ways to establish malice
Intent to kill;
Intent to injure;
Wanton conduct; and
During the commission of a felony. Intent to kill is evident by a defendant’s words and/or use of a deadly weapon during the murder, because such conducts are inferences of defendant’s intent to unlawfully take another’s life. Intent to injure is evident by a defendant’s state of mind to cause serious bodily harm to another human. Wanton conduct is evident by a defendant’s conduct that is reckless or extremely high risk of causing death. Finally, malice is established if a murder is committed during the perpetration of an inherently dangerous felony. In a few jurisdictions, non-dangerous felonies may also qualify if committed in a dangerous manner.

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First Degree Murder
All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree. (Calif. Penal Code §189) Under California law, first degree murder is punishable by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life.

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Second Degree Murder
Second degree murder is punishable by imprisonment in the state prison for a term of 15 years to life; however, if the victim was a peace officer who is killed during performance of his or her duties, it punishable by imprisonment in the state prison for a term of 25 years to life.

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Voluntary and Involuntary Manslaughter
Voluntary manslaughter is the unlawful killing of human, or fetus, with malice aforethought under mistake, anger, coercion or necessity. Voluntary manslaughter is punishable by imprisonment in state prison for three, six or eleven years. (Calif. Penal Code § 193) Involuntary manslaughter is the unlawful killing of human, or fetus, with without malice aforethought. Conduct with intent to slightly injure, criminal negligence or commission of a malum in se crime that results in death of a human, or fetus, is considered involuntary manslaughter. Involuntary manslaughter is punishable by imprisonment in the state prison for two, three, or four years.

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Rape
Rape is defined as an act of sexual intercourse with a person, not the spouse of the perpetrator:

(1) who is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent;

(2) where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another;

(3) where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused;

(4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused; OR

(5) without consent. (Calif. Penal Code §261) Rape is punishable by imprisonment in the state prison for three, six, or eight years.

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Kidnapping
A person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping. (Calif. Penal Code §207) Kidnapping is punishable by imprisonment in the state prison for three, five, or eight years.
If the victim is under 14 years of age, the kidnapping is punishable by imprisonment in the state prison for five, eight or eleven years. This does not apply to the taking, detaining, or concealing, of a minor child by a biological parent, a natural father, an adoptive parent, or a person who has been granted access to the minor child by a court order. If the victim is kidnapped to commit robbery, rape, spousal rape, oral copulation, sodomy, the kidnapping is punishable by imprisonment in the state prison for life with the possibility of parole.

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Assault and Battery
Assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. An assault is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or by both the fine and imprisonment. (Calif. Penal Code §240) A battery is any willful and unlawful use of force or violence upon the person of another. Battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment.

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Traffic Violations Generally, there are three types of traffic citations given police officers in California: parking, infraction and misdemeanor traffic citations.

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Parking Citations
Parking citations are non-moving violations and not filed with the court. They are typically handled in administrative/agency proceedings. The citation will clearly indicate the violation and the fine. Parking citations can incur late fees and may prevent an individual from registering their vehicle with the Department of Motor Vehicles. Parking citation will not require a court appearance, unless a request is made to appeal an administrative/agency decision.

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Infraction Citations
Minor traffic offenses are infraction citations. An infraction is not a crime, rather it is a civil public offense with a maximum monetary fine with no jail time. Since it is not a crime, a defendant is not arrested and not required to post bail. If you are pulled over by a Police Officer for driving too fast or failing to stop at a Stop sign, you are likely to receive an infraction citation with a “Notice to Appear,” which is a promise to appear in court. However, a court appearance is not mandatory. Individuals can request to plead guilty and pay the fine by mail, pay to go to traffic school, or have a trial by mail (also called a "trial by written declaration"). This will result in a negative diving record and an increase in car insurance costs. Failure to appear or pay the fine can result in a suspended license and receiving an arrest warrant.
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Misdemeanor Citation
More serious traffic violations are cited as misdemeanors. If the charges do not involve alcohol or drugs, the police officer can ask you to sign the ticket, also called the "Notice to Appear." Signing does not mean that you admit you are guilty. It just means that you promise to appear in court. Unlike infraction citation, a court hearing is required for misdemeanor citations. Court location, date and time are shown on the citation itself. You can ask the court how much bail you have to pay and how to pay it.

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What happens when a Police Officer pulls you over?
The police officer will ask for your driver's license, car's registration, and proof of insurance. Depending on the situation and the safety condition, the officer may also legally order you to step out of the car. For infractions and some misdemeanors, the officer can write a ticket and ask you to sign the "Notice to Appear" in court. The officer will give you a copy.

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Traffic Fines
The court will notify the driver of the violation and the amount of the fine. The fine, penalties, and fees for infractions can be $435 or more. Misdemeanor (other than driving under the influence (DUI)) fine, penalties, and fees can be up to $3,850.00

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Driving Under the Influence (DUI)
The first DUI offense is punishable up to 6 months in county jail, $3,850.00 or more in fines, loss of driver's license for 6 months and order to complete a 3-month or 9-month program. The second DUI offense within the last ten (10) years is punishable between 96 hours up to 1 year in county jail, $3,850 or more in fines, loss of driver's license for 3 years and order to complete an 18 or 30 month program. The third DUI offense within the last ten (10) years is punishable between 4 months up to 1 year in county jail, $3,850 or more in fines and loss of driver's license for 3 years.

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“Paternity” Actions
Dissolution of Marriage Actions
Child Custody and Visitation
Joint Custody
Sole Physical Custody
Custody and Visitation Considerations
Mandatory Mediation
Child Support
Child Support Considerations
Modification and Enforcement
Attorney's Fees and Costs
Community Property
Community Property Division
Spousal Support AKA: Alimony
Types of Spousal Support
How to Obtain an Order for Spousal Support
Modifying & Enforcing Spousal Support Order
Modifying & Family Court Time Line

We represent clients desiring to file for or defend against divorce, paternity, custody, visitation, child and spousal support, adoption, domestic violence restraining orders and property division. Please contact us today for a free initial consultation.

PATERNITY AND DISSOLUTION ACTIONS

1. “Paternity” Actions
All unmarried couples, who have children together and request the court enter orders for child custody, visitation and support, will have to file a petition to establish a parental relationship (also referred to as a paternity action). All documents, records, pleadings or other information submitted to the court for a paternity action are “confidential”. This means no one other than the parties, their attorneys of record and the court may view the file. This is not public information or made public. You may obtain copies of your pleadings and other documents directly from the court’s file, upon request and payment of copying fees. No outside party or person may obtain copies.

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2. Dissolution of Marriage Actions
Dissolution of Marriage Actions, also referred to as “divorce(s),” are cases where a married couple chooses to terminate their marriage and request certain orders to be made. All documents, records, pleadings, or other information, except social security numbers, submitted to the court is considered public information.

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CHILD CUSTODY AND VISITATION

1. Child Custody and Visitation
There are two forms of custody in the state of California. “Legal” custody refers to a parent’s “right and responsibility” to make decisions regarding the child’s health, education and welfare.1 “Physical” custody refers to the parent with whom the child resides.2

a. Joint Custody
Generally refers to both legal and physical custody, whereby the parents share the rights of decision-making and the child spends a significant period of time with both parents.3 However, the court may award joint legal custody and sole physical custody to one parent.

b. Sole Physical Custody
The child resides with and is under the primary supervision and care of one parent. The court may also enter an order awarding sole legal custody to one parent, if such an arrangement is in the child’s best interests.

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2. Custody and Visitation Considerations
The court will enter an order for a custody arrangement that is in the child’s “best interests”. The court cannot and does not consider the gender of a party in fashioning a custody order. Generally, the court will make every effort to ensure each parent has “frequent and continuing contact” with the child, to execute the policy of California.4 Therefore, the court will determine which parent is likely to allow frequent and continuing contact with the other parent.

1 Fam. Code § 3003.
2 Fam. Code §3007.
3 Fam. Code § 3004.
4 Fam. Code §3011 and 3020.

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3. Mandatory Mediation
Every party that requests the court to enter orders for child custody and visitation is required to attend mediation with the court’s family court services prior to the hearing. Since custody cases are generally highly contentious, the court prefers that the parties attend mediation to attempt a settlement of the issues, prior to the court hearing the matter, in order to preserve the child’s best interests.

a. Mediation is a court order. If you fail to attend you may be held in contempt of court and be subject to sanctions for your failure to attend mediation. Also, if a party fails to attend mediation, the court may require the parties to continue the matter and will be referred back to mediation.

b. You will receive a notice and packet to attend mediation and an orientation prior to the mediation appointment. This may come from your attorney or directly from the court.

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CHILD SUPPORT

1. Child Support
Refers to funds received by one parent from another for the support and maintenance of the parents’ child or children.

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2. Child Support Considerations
The court must generally fashion a child support order pursuant to the guideline calculation promulgated by the California State legislature. The most important factors are the parties’ gross income and the amount of visitation the non-custodial parent has with the child(ren).

a. The court requires that parties submit updated “Income and Expense Declarations” prior to the hearing to request child support. You will need to submit proof of your income, including two months of paycheck stubs and your income tax returns.

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3. Modification and Enforcement
Child support orders may be modified at any time, if there is a showing of change of circumstances in the parties’ finances or visitation schedule. Support orders may be enforced by the Department of Child Support Services, the court and by wage assignment (garnishing wages or other income).

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Attorney's Fees and Costs
A party to a family law action may request the other party to pay all of or contribute to payment of his/her attorney’s fees. The court will grant the party’s request for attorney’s fees and costs, if there is a significant difference in income between the requesting party and the other party. The court will require proof of income and expenses to make a determination whether to grant an order for attorney’s fees and costs. Additionally, the requesting party must show that without an order for attorney’s fees and costs, he/she will not be able to obtain or maintain representation by an attorney.

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COMMUNITY PROPERTY

1. Community Property
California is a community property state. Community property is all property and debts acquired by the parties during the marriage, unless received by gift, inheritance or income from separate property source by one spouse. This property is generally divided equally between the parties. If the parties cannot or do not agree on whether the property is community or separate, then the court may decide how it is characterized.

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2. Community Property Division
The parties may agree to a division of community property that is equal or offset by receipt of other property. All debts may be divided equally between the parties or each spouse will be responsible for their own debts. If the parties cannot decide on a division of the property, the court may divide the property equally or by a fair division. The property division is put into a judgment which is signed by the court and the parties must comply with the terms of the judgment.

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SPOUSAL SUPPORT (AKA: ALIMONY)5

1. Spousal Support
Alimony, spousal support, or maintenance is the payment of support from one party to another in order to keep the receiving party in the lifestyle that they were accustomed to during the course of the marriage. In California, the courts and legislature refer to alimony as spousal support. Either party may receive spousal support. Spousal support is ordered by courts far less today than it was many years ago. This is due in part to the fact that many households are no longer one-income households.

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2. Types of Spousal Support
You may receive temporary and/or permanent spousal support. Temporary support lasts for a specific period of time usually one to two years. It is awarded in circumstances when the recipient needs a bit of financial assistance for a short and fixed period of time. Temporary spousal support may also be awarded during the pendency of divorce proceedings. Permanent spousal support may last for up to one-half (1/2) the length of the marriage, or if it is a marriage which lasted for more than 10 years, then for a reasonable time period.

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3. How to Obtain an Order for Spousal Support
Whether a party is eligible for alimony is determined by the courts on a case-by-case basis. In California, the court will input the parties’ income and other factors into a computer program to determine “guideline support”. The court considers many factors including, but not limited to: age of the parties, the recipient's marital status, the recipient's need for continued financial assistance, and a change in the payer's ability to provide alimony. Courts may also consider any other economic circumstances in determining whether spousal support is proper and the amount that should be awarded. California does not take into account the fault of one of the parties for the break-down of the marriage when ordering support, because California is a “no-fault” state. Spousal support is taxable income to the recipient and must be reported on yearly tax returns. It is also constitutes a deductible amount by the payer.

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4. Modifying & Enforcing Spousal Support Order
The court may modify spousal support if circumstances have changed. For example, a modification may be granted if a decrease in the payer’s ability to provide the original amount of spousal support awarded to the recipient has occurred. A modification or cessation of spousal support may be granted if the recipient remarries or if their circumstances change. Spousal support ceases upon the death of the payer and/or recipient. The Department of Child Support Services will also enforce spousal support orders. Furthermore, all spousal support orders may be executed by wage assignment (garnishing the payer’s wages).

5 Some information in this section was retrieved from LexisNexis Newsletter. Copyright 2008 LexisNexis, a division of Reed Elsevier Inc.

*This is meant for informational purposes only. No legal advice is being given and this should not be considered a substitute for legal advice
Contact your attorney for specific advice about your case

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Family Court Time Line

*This is representative of the overall process of a Family Law Case. Each family law case may be different, depending on the facts and circumstances. This should not be considered a portrayal of your action. It is merely a overall review of the procedures in court. Please consult your attorney for more information on the process of your case.

Order to Show Cause, if Filed or Case Management Conference

Petition OR Response
Filed & Served

Judicial Mandatory Settlement Conference

Additional Order to Show Cause Hearings

Mandatory Settlement Conference Dept. ME

Mediation with Family Court Services, if children involved

Commencement	1st Court Matter	1st Hearing 3-6 months	Within 1st year of case, pre-trial	Within 1-2 years	Within 1-3+ years, depending on the case	End

Mandatory Settlement Conferences, Order to Show Causes and Trial

FAMILY LAW ACTION TIMELINE*

Settlement Negotiations & Conclude Discovery

Conduct Discovery

More Mandatory Settlement Conferences & Order to Show Cause Hearings

Judgment or Order, Entered by Court

Attorney(s) Withdraw from Case

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