Common Questions About Dissolution and Family Law Matters
This represents a collection of some of the most common questions I have been asked by clients and prospective clients in my experience as a Family Law attorney.
Explain a post-judgment discovery of previously undisclosed assets.What happens if, after your divorce and subsequent judgment ordering property division, you discover that your former spouse did not disclose a community property asset during the pre-judgment proceedings?
The answer is that you are generally still entitled to your 50% share (or more if fraudulent) of those undisclosed assets. The difference in your action can depend on whether the non-disclosure was done by mistake or intentionally, i.e., fraudulently.
The court has "continuing jurisdiction" (CA Family Code section 2556) over the community property asset even post-judgment. Meaning, the court may still make an order dividing the newly discovered asset. If the newly discovered asset was previously undisclosed by mistake, and the asset can be easily divided 50/50, the court may order an equal division. Or, if it's a real property asset, the court may order each party own as tenants in common, if not sold. If the asset is not easily divisible, the court may set aside the judgment and make a new order, applying the newly discovered asset to the new order.
If the non-disclosure is proven fraudulent, this is a violation of a fiduciary duty owed to you by your former spouse, even after separation. You may request to set aside the original order and ask the court for either a 50/50 split of that asset, as is normally done under community property law, or the court may also award you 100% of the asset if done by fraud, malice, or oppression.
In the case of fraud, you may also bring a tort action against a former spouse for fraudulent concealment of assets and/or breach of fiduciary duty. Under Dale v. Dale, the California Court of Appeal states: "A plaintiff who contends they suffered injury because their former spouse concealed community assets from them, preventing them from fully presenting their case in the dissolution proceeding, is entitled to bring a subsequent tort action based on the alleged concealment."
Explain a person's rights regarding spousal support following long-term marriages.California law states that a marriage that lasts ten years or more is a "marriage of long-duration." When a dissolved marriage is considered one of long-duration, the court "retains jurisdiction indefinitely." This means that the supported spouse or the supporting spouse may request a modification of a current spousal support order. So, if circumstances change in terms of income and expense ratio of either or both spouses, a modification request may be granted. This rule is compared to marriages of less than ten years, where the court normally retains jurisdiction for only half the period of the marriage, i.e., if the marriage was for four years, the court no longer enforces spousal support after two years. For marriages of long-duration, spousal support can be modified, but not necessarily terminated.
How does a DVRO affect child custody?When a domestic violence restraining order (DVRO) is ordered against a parent, the perpetrator-parent is required to stop the abusive behavior or face serious legal consequences. If the domestic violence occurred within five years of that parent seeking custody of a child, the court presumes that joint or legal custody in favor of that parent is "detrimental to the best interest of the child."
However, this presumption may be rebutted according to numerous factors that the court must consider. The factors include whether: (1) it's the best interest of the child for the perpetrator-parent to have custody rights, (2) that parent has completed a batterer's treatment program, (3) that parent has completed an alcohol or drug program, (4) that parent has completed a court-approved parenting class, (5) that parent has complied with any probation or parole requirements, (6) that parent has complied with any restraining orders, and (7) that parent has committed any further acts of domestic violence. (See California Family Code section 3044)
When can you request DNA testing to show paternity?"Paternity" is a legal determination of whom a father of a child is and must be established before child support can be ordered. One way to establish paternity is with DNA testing.
The child's natural mother, a man presumed to be the child's father, or the child themselves, may request an order for DNA testing to determine paternity.
The timing of the request for DNA testing depends on the circumstances. If the test is requested to show whom the biological father of the child is, this can be done anytime. If the test is requested to show that a presumed father is not the biological father, this must be brought within a reasonable time of learning facts that suggest the possibility he might not be the father.
If a party cannot afford attorney fees, can they ask the other party to pay?When a married person is involved in a legal proceeding regarding dissolution or separation of a marriage, the court is supposed to ensure that each side has access to legal representation for themselves. If one spouse has greater ability to pay for representation than the other spouse, and that spouse with greater ability can afford to pay attorney fees for both themselves and their spouse, the court may order that spouse to pay the other spouse's attorney fees. The amount that spouse pays for the other spouse's attorney fees must be reasonable within the needs and extent of the proceedings. (California Family Code sections 2030 and 2032)
What is an ex parte motion in child abduction cases?The court may grant an "ex parte" motion for emergency relief. Ordinarily an opposing side to a motion that is asking the court for a particular order requires notifying the opposing of that motion. An ex parte motion can be granted without notice to the opposing party. An ex parte application made without notice must be accompanied by a declaration stating why applicant should not be required to notify the opposing party.
The court may issue an ex parte emergency protective order where a law enforcement officer asserts reasonable grounds to believe that a child is in immediate and present danger of being abducted by a parent or relative. The belief must be based on a reasonable belief that a person has intent to abduct the child or flee with the child from the state, or based on an allegation of a recent threat to abduct the child or flee with the child out of the state. (California Family Code section 6250)
If children are abducted by a parent and taken to another state or country, what are the other parenThe court may issue an ex parte emergency protective order if law enforcement has reasonable grounds to believe that a child is in immediate and present danger of being abducted by a parent or relative. This belief must be based on a reasonable belief that a person has intent to abduct the child and/or flee with the child out of state.
An emergency protective order may be issued only if the court finds that a child is in immediate and present danger of abduction and that an emergency protective order is necessary to prevent its occurrence.
An emergency protective order expires no later than seven days after being issued.