Family lawWill DUI affect my divorce proceeding?

August 29, 2014

Over the years I’ve noticed that quite a few of my DUI clients are also going through divorce proceedings. Or, they’ve gotten a DUI (or two) in the past, and are wondering how it could impact a divorce that is pending. So, long story short, a DUI generally does not affect a divorce proceeding, unless child custody is involved, and the party has had many priors to the extent that alcohol abuse can be inferred, or the DUI includes an allegation of child endangerment. That being said, I’ve decided to write an article that walks through the general ins and outs of a contested divorce.

Going through a divorce can be a daunting process, both emotionally and financially. So if there is a way to reconcile, then by all means do it. But when it has to be done, knowing the process can significantly reduce the mental anguish and financial strain.

So what do you do when your spouse has just served you with a Petition for Dissolution of Marriage (Form FL-100), and you realize that you don’t agree with something or everything your spouse is asking for? The first thing to understand is that California is a “no-fault” state, meaning that to file it is not necessary to prove any wrongdoing (ie. cheating, abuse…etc). The second thing to understand is you now have 30 days to file a response (Form FL-120, which currently costs $435 to file). If you don’t file a response timely, then the Petitioner can request a default judgement, which means that your spouse will get basically everything requested for in the Petition (ie. custody, alimony…etc), although a Judge can still have a say on the issue of child support. However, any judgment—default or not—will not be entered until at least 6 months have elapsed. This waiting period is meant for reconciliation, exchange of financial disclosures, mediation, negotiation, settlement…etc. During this waiting period (once the initial Petition is filed) Automatic Temporary Restraining Orders (ATRO) will immediately apply to both sides. For example, if your spouse is on your health insurance plan, you cannot take him/her off of it. Another example is property; whether it is community or separate, a house or simply a television, property cannot be transferred, removed, encumbered, or concealed during this period. When transfer of property is suspected, it is not uncommon for the other spouse to request an order to freeze the offending spouse’s bank account(s); this is often done not just to frustrate the transfer, but to compel the other side to come to terms quickly, since having a bank account frozen is extremely inconvenient. Another common example is minor child(ren), who cannot be taken out of state without the other parent’s permission. Violation of ATROs may result in not only monetary sanctions but also contempt of court, which can be punishable by jail.

After you have filed your response, the next thing to consider filing is a Request for Order (Form FL-300, which currently costs $90 to file). Filing a RFO is almost always a good idea for the lesser-earning spouse. Not to mention, during this waiting period certain things have to be sorted out. For example, who needs to move out, and when? Who will have temporary custody of minor child(ren), and what are the terms of child support/visitation? Who has to pay spousal support, if any? It is advisable to attach a declaration (Form MC-031) with the RFO to better address your specific needs. After a RFO is filed, a mediation date will be set up to determine temporary child custody/visitation, followed by a court date to determine all of the RFO issues. Both are usually set at least a month out, giving both sides the time to reach a negotiated agreement, which can be filed with the court, in which case the two proceedings will for the most part confirm the terms agreed upon. It is important to note that these temporary orders can become significant later on, especially if the case doesn’t settle and a Judge has to ultimately rule on whether to disturb or maintain the status quo (hint: Judges have a preference for the latter).

Whether the parties agree beforehand on the temporary terms that are the subject of the RFO, the mediation will still occur if the issue of child custody/visitation is involved. The mediation gives both sides the opportunity to bring supporting documents and to meet with the assigned mediator. Before the mediation both spouses are required to take a mediation class, which can be done online free of charge. If both sides can come to a stipulated agreement prior to mediation, then the mediation itself will be more of a formality. In any event the mediator will draft a report regarding agreement or the lack thereof on the issue of temporary child custody/visitation and send it to the Judge, who will hold a hearing shortly thereafter to make a ruling on not only child support/visitation but also the rest of the RFO issues. 

With regard to the latter the Judge will look at things such as the income of the working spouse, the anticipated living expenses of the other spouse, the duration of the marriage to determine the amount of temporary alimony (if any), the ability of one spouse versus the other to take care of minor children to determine temporary custody, a spouse’s work schedule to determine the amount and hours of visitation…etc. 

In addition to temporary child custody (see below), one of the more contentious issues at a RFO hearing is temporary spousal support; courts in Los Angeles County have informally adopted what is known as the “Santa Clara Guidelines,” whereby temporary spousal support can be up to 40% of of the net monthly income of the working or higher-earning spouse, minus one-half of the receiving spouse’s net monthly income (if any). Note that the court is mainly concerned with maintaining the status quo, so if a spouse was a homemaker during the marriage, Judges will not require/expect him/her to seek employment now that a petition for divorce has been filed. For marriages that last under 10 years, the general rule is that alimony can be paid up to half of the duration of the marriage. 

Another type of temporary order is a Temporary Restraining Order (Form DV-100). This is common when domestic violence has occurred. After one party files the TRO, it (if granted) becomes effective immediately (ie. the served spouse must stay away), making this a powerful tool. The order is usually valid for up to 20 days—requiring only the declaration of one party—upon which a hearing will be held for a Judge to determine the merits of the TRO. If minor child(ren) are involved, Form DV-105 can be attached with DV-100 for a temporary order on child custody and visitation (which may or may not be granted prior to the RFO). At the hearing the Judge may choose to extend the TRO beyond 20 days (up to 5 years), or terminate it.

Whether the issue of child custody arises at the RFO or the TRO hearing (or at trial), Judges have a general preference for joint legal and joint physical custody, because there is an assumption that it is in the best interest of the child (which happens to be the legal standard) to spend an equal amount of time with mom and with dad, both of whom make important decisions regarding the child together. Legal custody refers to decision-making authority (ie. which school the child attends, whether the child takes piano lessons…etc.). Physical custody, which refers to who the child lives with, can be sole/primary (the other spouse may get visitation) or joint (around 50/50). With that said, if what generally happens is what always happens, then there would be no need for lawyers right? For example, if a spouse is “convicted” in criminal court of one of several domestic violence charges in the penal code (ie. spousal abuse, child endangerment, violation of a DV protective order…etc.), a lawyer can argue that that spouse is presumed unfit for joint or primary physical custody. Even without a criminal conviction, a perpetrator of domestic violence or someone who abuses alcohol/drugs can still be presumed unfit for joint or primary physical custody. But remember that any legal presumption is still rebuttable, and any parent contesting custody would be well advised to complete at least the child CPR course and a parenting class before the first meeting with the Judge. These classes can often be done online with minimal or no fees. Of less contention is legal custody, which is almost always joint, unless one spouse is incarcerated.

Once the temporary orders have been issued, it is time for the parties to exchange Preliminary Declarations of Disclosures. This is basically the initial exchange of financial disclosures. Realize that California is a community property (CP) state, meaning that all assets acquired during marriage are split evenly between the spouses. This is true regardless of whether a spouse works or not. For example, suppose that during their marriage Joe worked 60 hours a week as a plastic surgeon, and Sally stayed home full time. Now suppose a house was purchased with Joe’s salary during the marriage. Upon divorce, Sally is entitled to half the value of the house. Note that CP excludes gifts (ie. a Rolex for a birthday) and separate property (SP), such as assets acquired prior to marriage, inheritance received during marriage, or life insurance purchased prior to marriage and paid out during marriage. It is common for one spouse (especially the working one) to know a lot more about the family’s finances and where and what the assets are, so some may wonder what would happen if one spouse chooses not to disclose certain assets that the other spouse probably wouldn’t know about anyway? In a well-known Rossi case from 1996, the Judge ruled (2 years later) that the undisclosed asset (in this case the proceeds of a jackpot lottery ticket purchased during marriage) now becomes the sole property (100%) of the other spouse!

After financial disclosures have been exchanged, the parties are in a good position to negotiate a settlement, which involves asset distribution and all the RFO issues discussed above (except now the terms are to be permanent). One of the most contentious issues during settlement negotiations is child support, which is usually paid to the lower-earning parent and/or the one with primary physical custody until the child is 18 (and sometimes beyond). Unless there is a good reason not to, Judges will use a mathematical formula—via a computer program called Dissomaster—that takes into account the gross incomes of both spouses and the percentage of time a child spends with each parent. For example, suppose in one scenario, the mother makes minimum wage and has primary physical custody (over 50%) of one child, while the father, whose gross annual income is $80,000, gets to visit this child 2 days per month. Now suppose in a second scenario (all else being equal) the father gets to visit this child 7 days per month. For obvious reasons, child support payments to the mother would be higher in the first scenario (approximately $1100/month) than in the second (approximately $800/month).

Given the potential duration, custody arrangement and child support should be addressed in detail to lessen the likelihood that any settlement agreement reached will be subjected to future litigation/modification. Whether minor children are involved or not, a second Final Declarations of Disclosures (hopefully nothing is hidden by this time!) will be exchanged just prior to trial. On the other hand, if the case isn’t complicated and/or settles early, the Final Declarations of Disclosures can be waived. The parties can then file a Stipulated Judgement or a Marital Settlement Agreement (the latter being in addition a legally enforceable contract). Depending on the location of the courthouse, it usually takes 3 months or longer from the time the Judgement Packet is received by the court and when the Judge stamps the seal which finalizes the divorce.

Some attorneys will strategically set the case for trial after the initial financial disclosures have been exchanged, because a trial date puts pressure on the other side to come to terms. However, most attorneys will charge you for setting the case for trial, and this is usually the most expensive portion of the legal fees for both sides. On the other hand, if no trial is set, the negotiation process may keep on going, and the hours and legal fees will also keep accumulating. For wealthy clients it is not uncommon for the settlement process to drag on for years, with rounds and rounds of depositions and work to be had for private investigators.

If all negotiations have broken down, and neither side is willing to settle on the other’s terms, a trial will be held. Since divorce is a civil matter, there is no entitlement to a jury trial, meaning the case will be heard and decided by a Judge, with both sides calling witnesses to testify. Witnesses may include either spouse, their child(ren), investigators, witnesses to domestic violence…etc. Some expert witnesses will analyze and testify for a fee, such as forensic accountants, psychiatrists…etc.

Whether the case ends by settlement or trial, a final Notice of Entry for Judgment will ultimately be stamped with a date of divorce and Voilà, you are officially divorced! 

by Jeff Yeh, Esq. (c) 2014


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