San Diego Divorce,
Child Custody & Support Lawyers

Divorce can be one of the most stressful times of your life. This is particularly true when minor children are involved. When you are married and living together, both parents can spend 100% of the time with their children and see them every day and evening. During a divorce, however, it is unlikely that one parent or the other will have 100% time with their children and, rather, there will be a division of time for each parent to have their children. As such, when you are not living together, it will be a hardship for you and your children. The process of divorce can be very complicated. In order to process a divorce to judgment, there are many procedures which are necessary. In some cases, court hearings are necessary and for a Judge to make a decision. For some cases, settlement can be negotiated between the two parties. A San Diego divorce attorney can help you settle by advising you of what you could expect if you go to court. Some issues in a divorce can be extremely discretionary with the Judge, such as the parenting plan, while others are very straightforward such as child support which is calculated by the guideline from a computer program. For all divorce cases, there are mandatory requirements such as filing a petition and summons and completing the preliminary declarations of disclosure which include the income and expense declaration and the schedule of assets and debts. There are many other mandatory requirements in order to obtain a judgment of dissolution and can be complicated. The preferred method of resolution, when at all possible, is by agreement. If an agreement cannot be reached, then the only alternative is litigation.

In San Diego, due to the State of Emergency and Governor of California Stay At Home Order, this is a time of crisis for all. Unfortunately, domestic violence is seen to be rising now with all forced to live together and, in many cases, during a contentious divorce or legal separation or even paternity case. The Family Law Court, in San Diego, is open for filings for Temporary Restraining Orders and a Judge is assigned to grant or deny on same business day basis. Victims of domestic violence are entitled to legal protection under California Law. Our San Diego TRO lawyers are available for temporary restraining order cases to (1) prepare initial pleadings (2)process filing with San Diego Family Court and (3) lawful service. There are two primary Family Law Codes which detail the conduct needed for temporary restraining orders. These are Family Law Codes 6320 & 6203. There is no initial hearing before a Judge. As such, mandatory to legally analyze for evidence and facts which support the legal request for the Court to grant the TRO prior to filing. The Judge reviews the pleadings and then makes an order either granting or denying the request. The burden of proof for Judge to issue TRO is preponderance of the evidence. The legal burden of proof is on the party requesting the temporary restraining order. Evidence should be attached to the initial TRO filing. Evidence can consist of [but not limited to] police reports, texts, e mails, social postings, photographs and other documents and evidence. Written declarations of witnesses may also be included with the initial filing. Family Law Code Section 6203 defines abuse as any of the following: recklessly or intentionally attempt or cause bodily injury; a sexual assault; placing a person in reasonable apprehension of bodily injury which is serious and imminent to that person or the person of another and also includes any conduct which could have been or is included for grounds in Family Law Code Section 6320. It is important to note that the term "abuse" as used in this Family Law Code Section is not limited to an actual infliction of assault or physical injury. Family Law Code Section 6320 lists good cause for issuance of a TRO. The following conduct is specifically listed but this is partial list and not all inclusive: harassment; disturbing the peace; attacking; molesting; threatening; striking; battering; destroying personal property; stalking and others. If the temporary restraining order is granted, a protective order will be issued by the Judge to the requesting party. This can include stay away orders as well as custody and visitation orders and temporary exclusive use of a residence and any residence removal order. An order is granted or denied same day in normal procedure. The orders must then be lawfully served. This can be a very complicated procedure and legal advice is strongly recommended. Contact our San Diego TRO attorneys for help now at (800) 769-4748.

Domestic violence may be increasing. Domestic violence victims deserve legal protection in San Diego. A question that is often asked is "What Is Domestic Violence?" DV does not have to include an physical battery or harm to have conduct which is included for the issuance of a temporary restraining order. DV is very serious and the Court's are available for ex parte [emergency] hearings during their normal business hours. Domestic violence, for the legal analysis under Family Law Code Sections 6203 & 6320, is a list of conduct's. Documenting DV is mandatory for presentation to the Court in the form of a written statement of facts which is also sometimes called a declaration. Other evidence can include photographs, medical records, reports from the police department, texts, e mails, social media postings and others. You may also submit, for the filing for a temporary restraining order, declaration from third party witnesses. Conduct for domestic violence, under the Family Law Codes, are numerous. There are others which are not included. First, Intentionally or recklessly attempting to and/or causing bodily injury will constitute DB conduct. Second, sexual assault is included as well as placing another person in reasonable apprehension of bodily injury [both serious & imminent] to the person of another or that person. Other conduct which can be considered domestic violence also include attacking, stalking, threatening, battering and others.

The parenting plan may be among the most contentious in family law court. There are two types of custody: legal and physical. Legal custody means decision making ability for education, welfare and health. The vast majority of parents have joint legal custody. There are some instances when the Court will grant sole legal custody. These include health, safety and welfare issues and also if one parent is incarcerated or on deployment or out of the State of California or the United States for an extended period of time since decisions may need to be made which are urgent. Physical custody means the parenting plan itself. There are many different types of parenting plans. Joint physical custody, in San Diego Family Law Court, may be what is called a "2-2-5". This is Monday and Tuesday with one parent and Wednesday and Thursday with the other parent and Friday and Saturday and Sunday rotate. If the parents practice this schedule for a period of 60 months, statistically, many of the holidays and school breaks will rotate evenly. For some parents, this is not practical due their work schedule or where the parents live in relation to each other and school or for other reasons. There are also parenting plans where one parent is the primary physical custodian and the other parent has parenting time. This may be an every other weekend with a mid week visit or may be more limited and can even be supervised if there are safety, welfare or health issues. If the parents agree on the parenting plan, then they can write up their agreement. If the parents do not agree on a parenting plan, in San Diego, then they must attend the mandatory mediation which is called Family Court Services with a mediator who is a Licensed Clinical Social Worker and hired by the Court to try and have parents reach an agreement. If the parents reach an agreement at mediation, then the mediator writes up the agreement. If the parents do not reach an agreement at mediation, then the mediator prepares a written recommendation and a copy is sent to both parents and also to the Judge. The Judge will follow this recommendation most of the time. The standard is the best interests of the child or children which includes bonding, stability and frequent and continuing contact by both parents. Child visitation and custody orders, when permanent, are still modifiable under a change of circumstances. Contact our San Diego child custody attorneys for any custody and/or visitation issues.

Legal separation, for all intents and purposes, is the same as a divorce. For example, the Court will make orders [which are same as in a divorce] for the issues: child custody; child visitation; spousal support; child support; division of debt and division of assets. Also, attorney fee contribution may be an issue. As with a San Diego divorce, you must complete the preliminary disclosure declarations which include the schedule of assets and debts as well as the income and expense declaration. The most significant difference in a legal separation judgment {as opposed to a divorce judgment} is that you are still married. There are, in most cases, two sets of persons who would want a legal separation instead of a divorce. The first set are those who have a religious conviction such that they will never get divorced. There are still countries in the world which do not have divorce and these are Vatican City and the Philippines. The second set has to do with ongoing medical coverage. If one spouse has insurance coverage through their employment [member spouse] then the other [non member spouse] will lose coverage once a divorce judgment is entered and the parties are legally single and not married through many insurance plans. As such, if both spouses agree, then the legal separation will do same as divorce with substantive issues but the legal status is still married so the insurance coverage may continue for the non member spouse. If your religious beliefs are such that you would never divorce, then a legal separation may be the most appropriate. If you file for a legal separation, and the other spouse does not agree and wants a divorce instead, then the Court will grant a divorce over objection.

Paternity are cases where the parents are not married to each other. This is one of the last gender biased areas of the law as a father has no rights to his child unless he has a judgment of paternity through the Court or signs a Voluntary Declaration of Paternity. As the father, unless one of these occur, has no rights he also will have no obligations. There are no issues of division of debts and assets in a paternity case and only the parenting plan and child support. In a paternity case, the parties have a right to ask for a DNA test to determine parentage. The DNA test, in San Diego Superior Court, is preemptively conclusive. There may also be issues with children from another relationship and the Court will consider the relationship between the siblings. The Family Law Court in San Diego, per the Family Law Code, does not make a distinction between full siblings and half siblings. Once a paternity judgment is entered, fathers have the same rights to their children as if they were married. As to child support, in a paternity case, this is determined by the Disso Master program and is the same calculation as in a legal separation or divorce case.

Child support is determined, in San Diego Family Law Court, by a computer program which is called the Disso Master. This program will calculate guideline child support. There are many numbers which are entered into the program including the number of children, the percentage of the time share, tax filing status, taxable income, non taxable income, property tax on residence, interest payments on residence, union dues and many others. It is very important to know what the guideline number will be so that an intelligent and informed decision can be made whether to litigate the child support amount or reach an agreement. Our San Diego child support lawyers can help you make this determination. In addition to the base amount of child support, there are also additional amounts known as the mandatory add-ons. These include day care for education or employment and one half of any unreimbursed and uninsured dental, vision, orthodontic and medical and education and special needs of the child or children. There is also what is called a negative add on which is for travel expenses and also a hardship deduction if you have children from another relationship who you are legally obligated to support. There is also the possibility of asking for a deviation from guideline however this is not common. The amount of child support, in San Diego Superior Court can be high and there is an inverse relationship between the amount of the child support and the timeshare. As such, a payor will have a vested interest in increasing the time share to lower the child support base amount and the payee will have a vested interest to decrease the time share to increase the child support amount. Once a child support order is entered, the payee has the right to ask for an income and withholding order for garnishment which is routinely granted by the Court without a hearing. Whether the order for child support is temporary [pre judgment] or permanent [post judgment] and for any modifications, the Court always uses the guideline from the disso master.

Spousal support can be extremely contentious and can be complex. There are two procedural postures to be considered: pre judgment and post judgment. These are important since the determination of the amount of spousal support is calculated differently. For pre judgment spousal support orders, the Court can consider the disso master program or can consider the factors under Family Law Code Section 4320. The Court, for pre judgment, routinely uses the disso master program. For post judgment spousal support and modification of spousal support, the Court does not use the disso master program per California law and uses the Family Law Code 4320 factors which include earning capacity and income of each spouse, ability of spouse to pay support, need of a spouse for support, age and health of the spouses, any documented domestic violence and many other factors and the Judge has discretion in the amount. If the marriage is of a duration less than 10 years, normally, the Court will set a termination date for spousal support of one half the duration of the marriage. If the marriage is of a duration of more than 10 years, then the Court will not set a termination date at the date of judgment. This does not mean a lifetime spousal support award and a motion to modify can be brought. For modifications of permanent [post judgment] spousal support orders, the Court also uses the factors in Family Law Code 4320. The goal is that the supported spouse will be able to become self supporting within one half the duration of the marriage. In many cases, an issue is earning ability since one spouse may not be working or may not want to work or may be working but underemployed. In these cases, the supporting spouse may ask the Court to order a vocational evaluation with a qualified expert who will give an earning ability to the supported spouse for purposes of income and, also, the Court can order that the supported spouse make job contacts and report these to the supporting spouse. Our San Diego divorce lawyers have experience representing clients in these matters.

Division of debts and assets is another potentially contentious area our San Diego divorce attorneys have great experience. For division of assets and debts, as a general rule, the Court looks to date of marriage and date of separation. It is important to understand that there are three types of assets in a California divorce or legal separation: separate; community and quasi community. Separate property assets are those which are acquired prior to the date of marriage or after the date of separation. This is where the date of separation may become significant and sometimes this is an issue which needs to be resolved before the settlement of the case if disputed. Community property assets are those which are acquired from date of marriage through date of separation. There is a presumption that community property assets are divisible one half each although this is not always correct such as in cases of an inheritance or gift. This can be further complicated if a community property asset was commingled or transmuted during the marriage which may turn a non divisible asset into a divisible asset. Quasi community property is real property which would be community property but is located outside the State of California. There can also be requests for reimbursements under Family Law Code Section 2640 and this can be complicated and, in some cases, will require a forensic CPA. Division of debts is also, normally, divided one half each from date of marriage to date of separation. There are some exceptions and one of these are student loans which may be assigned to the spouse who took out the loan but may still be divided under certain conditions. It is mandatory to serve the schedule of assets and debts which will list all and very important that all are listed so that none are omitted. A careful legal analysis of all debts and assets need to be determined for division purposes.

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