2015: 6 Updates to Family Law for Divorce, Paternity or Legal Separation in San Diego Superior Court: Part Three

Below are seven updates for divorce, legal separation and paternity cases in San Diego Superior Court. Whether your issues involve the parenting plan [including legal and physical custody] or support or property issues or others, it is important to be knowledgeable about changes in the law which may affect your case. Laws and local rules and procedures change often so updating yourself is essential for assisting your attorney or representing yourself.

A temporary restraining order can be requested in any family law case including paternity, legal separation and divorce in San Diego Superior Court. There are many restraining orders including conduct as well as surrendering of firearms and others. A change in the law allows for the request for no cancellation of insurance coverage in the initial TRO pleadings.

In support cases, whether married [divorce and legal separation] or unmarried [paternity], there are issues of what is income for support and what is not. Clearly, earned income [W-2; K-1; etc] and unearned income [social security; interest on bank accounts; etc.] are included. In addition ot income available for support, there are also employment benefits which, while may not be included in income for support, can be divided. These are now included in community property division and are listed as the following: medical trust; vacation pay and sick pay. The value can be determined by present day value or by using the Brown formula [time line rule] with a reservation of jurisdiction.

In a divorce or legal separation case, the parties are in a fiduciary relationship. This includes full disclosure without discovery which include the income and expense declaration and schedule of assets and debts. In the schedule of assets and debts, must disclose all assets including those in which there is a potential interest and not just a present interest. Failing to do so can lead to monetary or evidentiary sanctions. Not disclosing can lead to a breach of fiduciary duty findings and the penalty can include 100%of the value of the non disclosed asset.

There is a significant change in the law. The issue is whether a parent who concealed a child from the other parent can ask for child support during the concealment period. The prior law was return to parent by concealing parent prior to age of 18 was not a defense to child support appears. Many thought this unfair since the other parent was not informed of where their child was and/or active concealment. New case allows equity of court to not order arrear payment. Factors include unclean hands of the custodial parent, unjust enrichment as well as when payor has actual physical custody of the child[ren] and is supporting them directly. This now applies to paternity cases as well as divorce and legal separation cases and is a very important change for payees of child support who have arrear [past due payments] and the other parent concealed the child or children.

Mediation is where the parties go to a mediator and work with them to settle the case. There is a public policy to encourage settlement and mediation and this results in the law that all mediation is confidential. While mediation privilege continues and policy is confidentiality of all in mediation there are exceptions for signed agreements and declarations of disclosure.

This is another significant change in the law. Post judgment discovery now allowed for issues which are in modification motion. The law is discovery cut off 30 days prior to trial under Family Law Code Section 218.

The law firm of Doppelt and Forney, APLC is a local San Diego law firm representing spouses and parents in family law cases in San Diego Superior Court. Feel free to schedule your complimentary and confidential consultation [up to 30 minutes] to discuss your case and all your individual legal goals so your legal rights can be protected.