Like all lawsuits, starting your divorce begins with telling the court. And, in California, this is done by filing what’s known as a complaint.
A divorce complaint (also known as a “petition for divorce”) is a legal document that initiates divorce proceedings; it notifies the court of your intentions to dissolve your marriage, asks for their help in doing so, and provides them with the necessary information to help get it done.
Here’s what you need to know about how to file a divorce complaint in California, and what the Maples Family Law team can do to help you start your divorce process.
Before Filing Your Divorce Complaint
A divorce complaint might mark the official kick-off of your proceedings, however, the process actually begins before you start filling in the blanks.
Before you file your divorce complaint, you’ll want to pause and consider these three things:
Residency Requirements. At least one of you must have been a resident of the state for at least six months, prior to filing for divorce, and a resident of that particular county, for at least three.
Type of Divorce. The type of divorce you choose will play a large role in the overall tone of your process. Pay particular attention to whether you qualify for an uncontested divorce. If not, alternative methods such as mediation and collaborative divorce are still much less expensive and time-consuming than traditional litigation.
Select Representation. While you aren’t required to have an attorney, the state of California highly recommends it. An attorney can help you avoid expensive—sometimes irreversible—mistakes, and will ensure your interests are fully represented at all times.
At some point during your divorce, you will inevitably be forced to contemplate each of these three questions. These pre-game warmups will help you determine where you want the direction of your divorce to go, and help you avoid pitfalls, once you’re there.
How to File Your Divorce Complaint
Once you’ve checked all the boxes for your pre-game warm up, it’s time to file your petition for divorce. While there are a lot of small nuances that will go into this, it can essentially be summed up in three basic steps.
Step 1: Acquire and Complete Petition
Your petition for divorce marks the official beginning of your divorce. However, in order to help you, the court will need some important personal and procedural information about your situation (which should be included in your petition). =
Before you sit down to fill out your divorce complaint, make sure to have the following information on hand:
Your personal information.
Your spouse’s personal information.
Your type of separation (i.e. legal separation, divorce, annulment, etc.).
This is the same form you’d use to initiate a legal separation, an annulment, and to terminate a domestic partnership. So it’s important to make sure you’re checking the right boxes when filling out this information.
Step 2: Complete Additional Paperwork
While your petition is certainly important, it is only one aspect of filing for divorce, and, in California, there will likely be other documents you’ll need to include in your packet, before filing.
These documents will vary, depending on the unique circumstances of your case (such as, whether or not you have children). However, some of these additional divorce documents will likely include:
Summons
Proof of Service of Summons
Declaration Under Uniform Child Custody Jurisdiction and enforcement Act (UCCJEA)
Child Custody and Visitation (Parenting Time) Application
Property Declaration
Declaration of Disclosure
Income and Expense Declaration
Schedule of Assets and Debt
When in doubt, best to talk to a family law attorney. Divorce errors can be costly, and can sometimes require you to refile. Hence, it’s best to make sure you have everything you need the first time around.
Step 3: File Your Paperwork
Once you’ve gathered and completed all the necessary forms—and have made at least two copies of everything for your personal records—it’ll be time to file these things with the court.
Divorces are handled at the county level, so you will need to submit these documents to the county courthouse over your jurisdiction.
At this time, you’ll also be expected to pay a filing fee. In California, the filing fee for divorce is $435. If you can’t afford this amount, then make sure to include a fee waiver in your stack of documents to file.
After Filing Your Divorce Complaint
After you have successfully submitted your completed divorce documents to the court, there is still one thing left to do, before you can relax: execute proper service on your spouse.
Service of process is a fancy legal phrase for, “tell your spouse you filed for divorce.” Except, in order for it to count, it must be done properly. This usually requires someone other than you to hand deliver copies of all paperwork to your spouse, and to return proof of service to the court.
A spouse who has been served with divorce paperwork has thirty days to respond. If they don’t, a judge could enter a default judgement in their absence. If they do respond, then you’ll both proceed on to either divorce settlement negotiations, or into preparations for trial.
Either way, the most successful outcome for you lies in making sure you have a trusted family law attorney fighting at your side.
Do You Need Help with a California Divorce Complaint?
Divorce law is complicated and highly nuanced, and–on your own–filing for one can be a daunting task to undertake. However, with an experienced attorney showing you the ropes, it doesn’t have to be as stressful as you might be thinking.
For more questions on how to file a divorce complaint in California—or what to do if you’ve been served with one—we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and let us help guide you through this important process.
Most people have heard of a prenuptial agreement before—the pre-marriage contract that (once upon a time) used to spell out “certain doom” for the soon-to-be-wed couples who entered into them. But for more than a few people out there, the concept of a postnuptial agreement is rather new.
Similar to its pre-marriage counterpart, postnuptial agreements are used to outline certain property ownership rights, and delegate important responsibilities between married partners. However, unlike a prenup, postnuptials aren’t created before spouses get married… instead, these are drafted while they’re married.
But why would you ever want one of those? you might be wondering. And how does that even work?
We’re glad you asked.
Here’s what you need to know about getting a postnuptial agreement in California, and what the Maples Family Law team can do to help you navigate this important marital contract.
What is a Postnuptial Agreement?
A postnuptial agreement is a type of contract that is initiated by a married couple, while they are married, in order to address certain areas of that marriage. It can be drafted to apply retroactively (back to the original marriage date), or to outline how things will operate, moving forward.
When valid, a postnuptial agreement essentially subverts the normal rules and protections of things like community property and marital finances, and inserts the couple’s individual preferences, instead.
Most of the time, California couples use this agreement to manipulate finances, and delegate property ownership (for example, to assign debt, or keep property separate). However, it’s not uncommon for the modern postnuptial agreement to go beyond the nitty gritty of those legalities, and address more personal areas of a couple’s day-to-day life, such as pet custody.
If you’re sitting there thinking that this all sounds an awful lot like a prenup, you wouldn’t be wrong. However, while the two agreements operate in nearly identical ways, there is one important difference:
Prenups are drafted before a couple gets hitched; post-nuptials, after.
If You’re Already Married, Why Would You Need a Postnuptial Agreement?
The short answer is: you might not… but that doesn’t mean you shouldn’t want one.
In days of yore, prenuptial agreements left a bad taste in peoples’ mouths. Many folks (erroneously) assumed they were only useful to the very wealthy, and that the presence of one doomed marriage to failure, right from the start.
These days, however, couples are getting smarter.
Rather than seeing pre and post-marital contracts as a precursor to sudden marital death, these savvy couples are viewing them more like a good insurance policy. They’ve learned from the divorces of parents and loved ones, and want to mitigate the destruction of a potential divorce by agreeing on many of its sticking points, now.
Here’s a closer look at some of the things a postnuptial agreement can and can’t include, and why you should consider this relatively inexpensive divorce “insurance.”
What a Postnuptial Can Include
One of the most expensive and time-consuming aspects of a divorce is property division. Hence, this is often one of the areas couples tend to focus on the most, when drafting a pre or postnuptial agreement.
To this end, a California postnuptial agreement can be used to:
Protect the financial interests of children from a previous relationship.
These contracts can also address the current affairs of the couple’s life, including things like pet custody, chore list responsibilities, and how they will handle things like job transfers and moving out state. Some couples will even try to dictate how much time each has to spend with the in-laws.
As a general rule, however, the more absurd the request, the less likely it is to hold up under judicial scrutiny, since California courts don’t like getting involved in a marriage’s personal affairs.
What a Postnuptial Cannot Include
While there’s a lot a postnuptial agreement can do, these documents are not all-inclusive, and there are some elements you’ll ultimately have to leave up to the fate of a future divorce court.
For example, in California neither pre or postnuptial agreements can include:
Clauses that cover, restrict, limit, or prohibit issues relating to a living or unborn child (such as abortion requirements, and/or the number of children a couple should have).
Clauses that attempt to restrict or require future child support obligations.
Clauses that try to delineate future custody rights and/or visitation schedules for the couple’s children.
When it comes to custody (including all matters involving child support and visitation), California courts have exclusive rights to determine what is in the best interest of a child.
Couples who ignore these rules (and try to include custody, anyway), run the risk of a future court invalidating their entire contract. So it’s best to simply leave those issues alone.
Elements of Valid Postnuptial Agreement
A car insurance policy that cuts corners isn’t worth much in an accident. Similarly, a postnuptial agreement without the right elements won’t be able to save you from the time and expense of a future divorce.
In order to be legally binding, a California postnuptial agreement must be:
In writing;
Voluntarily signed by both spouses; and,
Notarized.
The contract also must be fair to both parties, and must represent a full accounting of all of the couple’s shared and separate income, assets, debt, and property.
Postnuptial Mistakes to Avoid
While drafting your postnuptial agreement, be sure to keep an eye out for these potential pitfalls; if you don’t they could end up invalidating the whole party.
Undisclosed property. Trying to hide something from the court is never a good idea. First off, because it’s almost impossible to do (hello, financial sleuths). And secondly, it could potentially result in some financial and legal retaliation from the court for whoever dunit.
Fairness. The court will not look kindly on an agreement that attempts to leave one half of your duo completely penniless. Don’t be stingy. Make it fair to both sides, otherwise you’ll end up in court, anyway.
Timing and Duress. Any kind of signing deadline or ultimatum is a sure-fire way to get your agreement invalidated. These are serious financial considerations. Hence, if you rush or press your partner to sign, then the court may question whether the agreement was actually fair.
Representation. It’ll be much easier to argue that your contract is fair, if each side has their own attorney, while drafting your contract. While not as cheap as a D.I.Y. agreement, proper representation now will be significantly less expensive than divorce court, later on.
Cost of a Postnuptial Agreement
In California, postnuptial agreements don’t get filed with the court right away. This is simply a contract between you and your spouse, which can be produced to help mitigate and settle divorce issues, if the need ever arises. As a result, there’s no filing fee. The only cost you will have will be for your attorney.
Most family law attorneys bill at an hourly rate—regardless of the issue. However, with pre and postnuptial agreements becoming more popular, it’s not uncommon for some to offer a flat fee for these services.
While exact prices will vary between firms, hourly rates often run between $250-$400, with flat fee services often starting around $1,000.
How Long Do I Have to Wait to Get a Postnuptial Agreement?
It’s your wedding day and you just said, “I do.” Congratulations! You now qualify for a postnuptial agreement.
In California you do not have to be married for a certain amount of time in order to draft one of these contracts. The only hard line is marriage. So long as you meet that single requirement, you can call up your family law attorney today, and get the process started.
Do You Need Help Drafting a Postnuptial Agreement in California?
Pre and post-marriage agreements don’t spell out doom for a relationship. Far from being a harbinger of death, these contracts act as an insurance policy. They protect couples against the possibility of a future divorce trial, and ensure that each spouse is in the relationship for the right reasons.
If you have more questions about pre or post-nuptial agreements in California, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help protect your interests against an outcome we hope will never come.
Between school, play, chores, and extracurricular activities, kids are a busy bunch. Which means that when it comes to divorce, it can sometimes be tricky for California courts to divide a child’s time exactly equally between parents—even when both are evenly qualified.
That’s why, in California, it’s common for judges to assign one parent to be the child’s primary residence parent, while awarding the other ample parenting time in the form of visitation.
Visitation is an essential part of custody, and parental rights. It ensures each parent has access to their child, and that both can continue strengthening that relationship through in-person contact.
Here’s what you need to know about visitation in California, how it relates to child custody, and what the Maples Family team can do to help you navigate these important parental rights.
An Intro to Visitation in California
Visitation refers to the scheduled time that a noncustodial parent gets to spend with their child. It is also a major component of child custody; so much so, that you can’t really talk about one without discussing the other.
In California, “custody” encompasses all the rights, powers, and responsibilities that come with being a parent. Technically, someone could have custody over an incapacitated, ill, or aging adult, too; however, this concept is most commonly associated with children and divorce.
As a matter of law, only a child’s parents—whether biological, or adopted—have an inherent right to custody over their child. However, in some limited circumstances, the court might grant the child’s grandparents visitation.
When deciding custody for divorcing or unmarried parents, California will divide these powers into two major groups: legal custody, and physical custody. Here’s a closer look.
Legal Custody
First, there’s legal custody. This aspect of custody deals with a parent’s decision making and legal authority, and enables a parent to make choices about their child’s:
Medical care (including doctors, dentists, and emergency surgery);
Extracurricular activities; and even,
Religious and cultural exposures.
Legal custody packs a lot of important rights under one umbrella. From large-scale decisions, all the way down to signing that field trip permission slip, legal custody puts you at the forefront of how your child will be raised.
Physical Custody
On the other hand, is physical custody. And, like its name implies, this category of rights protects a parent’s right to have physical, in-person time with their child.
In legal speak, this time is called “access,” and it encompasses much more than just the occasional fly by.
Parents have a right to see their child—and not just briefly and sporadically—but long-term and extended. They have the right to live under the same roof as their child, where they can regularly interact, care for, and build the kind of a relationship that only an intimate home environment can really provide.
This is where visitation comes into play.
Because it can be so difficult to divide a child’s time exactly equally between parents, California courts will usually assign one parent to be the child’s primary residence, while awarding the other visitation. But how to decide who gets what?
The court makes these assignments by considering what is in the best interest of the child.
Best Interest of the Child
“Best interest of the child” is a legal standard that is applied for all decisions involving minors, and strives to choose an outcome that will serve a child’s long-term health and happiness the best.
Hence, when deciding who will be a child’s primary custodian, and who will receive visitation, some of the things your judge might consider will include:
As you can see, gender does not appear on our list of considerations. That’s because in California, custody decisions are completely gender neutral, meaning that the type of visitation order you receive will depend entirely on your merit as a parent, alone; not your sex (or sexual orientation, for that matter).
Visitation Orders
Visitation orders aren’t a “one-size-fits-all” kind of thing. Instead, these assignments will vary between cases, and are designed to work within your family’s unique circumstances.
To this end, there are four main ways California courts can assign visitation in California. These include:
Scheduled Visitation. In this situation, parents have an order that specifies all the details of their division of time, including dates, times, drop offs, pickups, holidays, and other special occasions. This type of visitation is typically the result of contested divorce litigation.
Reasonable Visitation. Here, a couple’s order is more open ended, leaving the parents to work out specific details, as needed. This type or visitation typically works best for parents who have a good working relationship.
Supervised Visitation. When a child’s safety and/or well-being cannot be trusted to the noncustodial parent, the court might assign supervised visitation. In these scenarios, visits must be chaperoned by either another adult, or professional agency (depending on the circumstances).
No Visitation. Finally, there’s always the option of no visitation. Here, the risks of harm to a child’s physical or mental wellbeing are so great, that the court is not comfortable awarding any type of in person time. In this scenario, the custodial parent would have “sole physical custody.”
In California, parents are always free to come up with their own custody arrangements, either on their own, or through mediation.
However, keep in mind that your parenting plan—including all decisions about custody, visitation, and child support—will still need judicial approval, whether agreed upon or not.
Tips for Reducing Custody Conflicts
Once finalized, your custody agreement will be enforceable, and you will be expected to carry out your obligations, as outlined.
In practice, this isn’t always easy (no one said dealing with your ex would be…) But sharing custody doesn’t have to be as hard as you might be thinking, either.
To help your custody arrangement operate more smoothly, try to use some of these tips when interacting with your ex:
Be polite and respectful.
Be clear and specific.
Stay on topic.
Write down what you discussed, and share a copy with your child’s other parent.
Keep a record of your visitation times, drop offs, and exchanges.
Avoid talking about custody problems while under the influence.
Avoid talking about custody problems while your child is around.
Avoid casual small talk, text messaging, or other non-essential communication.
Make sure you’re both present when discussing important matters with doctors, teachers, and other professionals.
Do not talk badly about your child’s other parent to that child.
Focus on what’s best for your child (not what you want).
If it helps, treat your child’s other parent the same way you’d handle a business colleague. This mentality will ensure that all your encounters stay short, sweet, and professional at all times.
In California, your attitude towards sharing custody can actually influence the division of custody. In some cases, a systematic failure to cooperate with your child’s other parent could actually result in the court awarding primary residence to the child’s other parent. So it’s best to keep things as civil as possible, at all times.
At the end of the day, if there is a legitimate reason why your custody arrangement is no longer working, then it may be time to talk to your attorney about modifying visitation.
Do You Need Help with Visitation in California?
As a parent, you want what’s best for your child, and turning them over to someone you no longer trust can be incredibly difficult. That’s why it’s so important to have a family law attorney you can trust. One who will fight tirelessly for an arrangement that’s in your child’s best interest.
If you have more questions about visitation in California, we want to hear from you. Call Maples Family Law at (209) 989-4425, or get in touch online, and together, we can find the custody order that’s right for your family.
So here you are. You’ve decided to get a divorce, but now you’ve got questions—a lot of them. Like, “Where do I even start?” and, “Should I hire an attorney?” and, perhaps the most worrisome of all, “How much does divorce cost, anyway?”
Unfortunately, while a lot of these queries have straight forward responses, the answer as to how much your divorce will cost is a little less than satisfactory. In a nutshell?
We don’t know.
The varying details between divorces make it virtually impossible to predict someone’s eventual bottom line. On the bright side, our team has seen enough breakups to know which divorce types are most likely to break the bank, and how you can be financially savvy.
Here’s what you need to know about how much divorce costs in California, and what Maples Family Law can do to work within whatever budget you have.
Breaking Down the Cost of Divorce
You can’t keep down the cost of your divorce without first knowing what the costs are. This is especially important, considering how widely the arc of our divorce cost pendulum can swing.
For example, in California, you can technically get a bare bones divorce for nothing more than a filing fee of $435 (assuming no one fights back, and there’s nothing to argue about, that is). Realistically, however, it’ll probably be a lot more, with some divorces easily racking up more than $50,000 for the same breakup.
The first step to curbing these numbers is knowing where the costs are coming from.
In general, there are four main areas that will keep you up sweating dollar signs at night:
Your attorney’s initial retainer.
Your attorney’s billable rate.
Paperwork filing fees.
Expert witness rates.
Here’s a quick peek at how each of these break down.
1. Attorney Retainer
A retainer is a large payment that you submit to your attorney, at the onset of your case. This money both reserves your attorney’s services, and acts as a kind of savings account, from which your attorney will draw from to pay expenses, as your case proceeds.
In California, an initial divorce retainer can range anywhere from $3,000-5,000. Your attorney will use this money to pay for things like:
Their own billable hours;
The billable hours of any staff who work on your case;
Filing fees for documents submitted to the court;
Compensation for any outside experts you call upon; and in some cases,
Office expenses relating to your case.
Different firms all have their own system of billing, which is why you should always take the time to thoroughly review your retainer contract, before signing anything. That way there won’t be any surprises.
2. Attorney Hourly Rate
In California, most divorce attorneys charge an hourly billable rate. This amount typically ranges between $250-$400 an hour, and will vary based on where you live, and who you hire.
“But wait!” you might be thinking. “Didn’t I already pay for my attorney? Wasn’t that what the retainer was for?”
Sorry, but no.
Remember, a retainer is just a reservation fee—an initial deposit, so to speak. While this money will go towards paying for your divorce, the biggest mistake you can make is in assuming that it will cover your whole divorce.
In reality, you’ll almost certainly have to replenish this account several more times, before your case is over. (Especially when you consider that the average price tag on a California divorce is a cool $17,500.)
3. Filing Fees
California might have some of the highest filing fees in the nation, but $435 to submit an initial divorce complaint suddenly doesn’t seem like very much, when you consider how much you’re going to spend, overall.
If you and your spouse file for an uncontested divorce, then this initial filing fee might be the only payment you’ll make. However, since this type of divorce doesn’t work for most couples, it’s much more likely you’ll have other filing fees crop up, as your divorce progresses.
The good news is if you’ve retained representation, then your attorney will take care of this cost for you (using funds from your retainer account). If not, you’ll be responsible for this cost—as well as the other logistics of filing for divorce—on your own.
4. Expert Witnesses
Depending on your situation, you may need to hire an expert witness.
The cost of these professionals will swing dramatically, depending on what you need them for, and how much time they put into your case. Most work on an hourly rate, and—similar to attorneys—will require an initial retainer.
The most commonly used expert witnesses in divorce are forensic accountants. These professionals can be used to:
These retainer fees typically start between $3,000-5,000, but can potentially be more, depending on the breadth and scope of the project.
Tips for Keeping Divorce Costs Low
By now, you’ve probably realized that the easiest way to cut down the cost of divorce, is to just skip the attorney altogether. After all, we lawyers easily have the highest price tag, so… it only makes sense, right?
Wrong.
Before you let these numbers scare you into a hasty, D.I.Y. divorce, remember that divorce laws are incredibly complex, and self-representation comes with a high likelihood of error. These mistakes can be incredibly costly—sometimes impossible—to reverse. Meaning that it’s almost always better to simply hire the attorney, and get it right your first time around.
If finances are a concern, there are much less riskier ways to cut costs during divorce. Here are just a few:
Educate yourself about California divorce laws (the library is a great resource).
Do your own legwork (such as gathering documents and making copies for your attorney).
Email your attorney, don’t call—calls take up more time, and time equals more billable minutes.
Utilize legal assistants and paralegals as much as possible; they have a significantly lower billable rate and are almost always just as smart as your attorney.
Hands down, the single biggest thing you can do to avoid high divorce costs, is to avoid court, altogether. Instead, opt for an alternative method of dispute resolution, such as mediation, or collaborative divorce.
Not only will these types of divorce save you a lot of time and money, but they’re also more flexible. This gives you the ability to set your own terms, rather than having them decided for you by the whims of an outside judge.
Do You Have More Questions About the Cost of Divorce in California?
While divorce might not come cheap, it also doesn’t have to be as bad as you might be thinking. With a little bit of planning, the right divorce type, and a willingness to compromise, it’s more than possible for couples to keep costs reasonable.
If you have more questions about how much divorce costs in California, and what this process might look like for your situation, we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and let us help you get divorced within whatever budget you have.
The only thing more stressful than a divorce is having to go back to court, to enforce the divorce order that your judge already handed down. (As if the first time wasn’t enough, right?)
Unfortunately, that’s exactly what some people have to do.
Whether you like them or not, the terms of your divorce are not optional. California courts will expect you to obey them, and failure to do so can result in some fairly significant financial and/or legal consequences—including a charge for contempt of court.
Here’s what you need to know about contempt of court in California, and what the Maples team can do to help you navigate these serious claims.
Contempt of Court: 101
Contempt of court occurs when someone willfully or intentionally refuses to comply with a court order. This is a criminal charge (meaning that it isn’t handled by civil courts) which can result in steep fines, and—yes—even jail time.
Before you run out and immediately call foul on your ex for screwing something up, though, take a step back and consider whether this hefty charge is really necessary.
In our experience, most non-compliance comes down to a simple misunderstanding—maybe the order was vague, or a certain requirement got overlooked. These errors can usually be figured out without going to court, and certainly without needing to charge someone with contempt.
For contempt to be appropriate in divorce, the level of defiance has to be fairly significant, and/or the subject matter quite serious. (Meaning that a dispute over pet custody or grandma’s heirloom silver likely won’t cut it.)
Examples of situations where contempt might be appropriate include:
If one of these scenarios sounds familiar to you, then you may be able to file for contempt, so long as you meet the elements.
Elements of Contempt of Court
A charge of contempt commences when someone files an “Affidavit for Contempt.” However, you won’t get very far in this process unless you also have all of the right elements.
In California, these elements require you to provide proof that:
There was a valid court order in place. In addition, the terms must be clear; California courts are unlikely to punish someone over a vague or poorly worded order.
The accused knew about the court order. A quick text won’t cut it here; instead, the accused must have received notice via proper service.
The accused willfully violated the court order. This element can be a bit tricky, but usually requires some sort of purposeful refusal to comply—meaning an accidental oversight or misunderstanding won’t be enough. Here, the accused knew about the obligation, and still refused to comply.
A claim of contempt that can’t check all these boxes is unlikely to be successful in California court.
Rights of the Accused
To protect the rights of the accused, California legislatures have outlined certain due process rights for those who have been charged with contempt.
In layman’s terms, “due process” is basically just fancy legal jargon that refers to a system of rules and rights that protect people who have been charged with a crime. Due process ensures that whatever legal process follows is done correctly, and that someone isn’t unfairly charged or convicted.
Those who are charged with contempt of court in California, also enjoy these due process protections. Some of which include:
The right to be notified of the charges against you. This notice must have been done via proper service; a text or casual email won’t cut it.
The right to have representation. Every person has the right to an attorney. If an accused can’t afford one, then the state is obligated to provide one for you.
The right to a hearing. California residents have the right to be present when charges are brought against them. At this time, they have the right to present their defense, and to cross examine any witnesses brought against them.
The right to a jury trial. Since contempt is a criminal charge, in some situations, an accused may even have the right to a trial by jury (although, the law is a little vague on exactly when this would be appropriate).
The right to have the charges dismissed, IF their accuser can’t meet their burden of proof.
Consequences of Contempt of Court
If a California judge upholds a charge of contempt, then the penalties will vary, depending on what terms of the divorce order were violated. However, some of these punishments might include:
A $1,000 fine;
Mandatory community service;
The seizure of assets;
Suspension of licenses;
Liens on property; and even,
Five days of jail time for each instance of contempt.
These are just some of the potential consequences for first time offenses. In California, the punishments for contempt of court will increase in severity, if convicted again. And even more for third time convictions, so it’s not something you want to mess around with.
At the end of the day, however, the ultimate goal of contempt is to pressure another party into complying with a valid court order, and you don’t always have to use contempt to do that.
To find out more about enforcing divorce orders in California, speak to your family law attorney today about your options.
Do You Have More Questions About Contempt of Court in California?
While contempt of court is a less commonly used method of enforcement, it’s still a possibility—especially in cases of extreme and repeated instances of noncompliance. And whether you need help fighting this charge, or pursuing it, you’ll need an experienced family law attorney on your side.
If you have more questions about contempt of court in California, and how it will work in your situation, we want to hear from you. Call Maples Family Law today at (209) 989-4425, or get in touch online, and let us help you navigate this important issue.
Child custody refers to the various rights and responsibilities associated with taking care of a child. These authorities and obligations are most commonly associated with divorce; however, they are also relevant to unmarried parents, grandparents, legal guardians, and individuals looking to adopt.
In this child custody overview, we’ll define important terms, talk about parental rights, and help you gain a better understanding of what to expect during this important process.
Child Custody: 101
In the family law arena, child custody refers to the myriad of rights, powers, and obligations associated with caring for a child. Most of the time, we think of these authorities when couples are getting divorce, however, child custody can also be relevant to:
Unmarried parents—couples who are not married, and want a structured parenting plan to govern interactions with their child.
Grandparents—who might be wanting to gain custody over a grandchild who isn’t receiving proper care from parents.
Legal guardians—who may need partial access to certain custodial powers in order to care for a child or incapacitated adult.
Adopted parents—who may want to take on the full mantel a of parental rights for a child who isn’t biologically theirs.
Regardless of circumstances, all child custody cases are governed by the same set of family laws. These laws attempt to make decisions based on what outcome is most likely to serve a child’s best interest.
In California, these custodial powers break down into two main groups: legal custody and physical custody.
Legal Custody
First off, there’s legal custody, which refers to a parent’s decision make authority, and their right to determine how their child will be raised.
This category of custody includes a parent’s right to make decisions about their child’s:
Medical and dental health;
Psychiatric and psychological therapy;
Education and child care;
Religious and cultural exposure;
Travel opportunities; and even,
What extracurricular activities they’re allowed to be involved in (if any).
Most of the time, California parents will end up sharing this authority, equally, meaning that both must pass off on all major decisions.
Physical Custody
The other branch of custody is physical custody. This category refers to a parent’s right to live under the same roof as their child, and to have regular, in-person face time.
Since it’s so difficult to divide a child’s time exactly equal between parents, California courts will almost always assign one parent to be the child’s custodial parent (or “primary residence” parent), while assigning the other ample parenting time in the form of visitation.
A child’s primary residence is where they live most of the time. This parent is in charge of meeting their daily needs, including food, clothing, as well as things like transportation, daily medication, and homework.
Child Custody: Joint vs. Sole
In California, legal and physical custody are assigned separately. To this end, each set of powers can be assigned to one parent, alone (in “sole custody”), or to both, as shared powers (known as “joint custody”).
Most of the time, legal powers are assigned jointly between parents. This means that both must pass off on decisions for their child, and that one cannot act without the express permission and authority of the other. Legal custody is easy to split fifty-fifty, since it doesn’t require a child to be living under the same roof as its parents.
Physical custody, on the other hand, is not as easy to divide equally. Between school, extracurricular activities, competing work schedules, and child care needs, it can be nearly impossible to give each parent an equal amount of face time with their child. Which is why it’s so common for courts to assign one parent to be the child’s primary residence.
To decide which parent will be the child’s primary residence, the court will analyze a number of individual factors, to determine what course of action will be in their best interest.
Primary Residence Factors
Some of the factors the court may consider when deciding on primary residence include:
The child’s relationship with both parents;
The child’s physical, emotional, and educational needs;
Keep in mind that in California, you can still be considered joint physical custodians, even if your arrangement has an uneven division of time.
Child Custody: Visitation
The parent who does not get assigned as the primary residence will still receive ample parenting time in the form of visitation.
A visitation schedule outlines the division of time with your child, and is determined based on what is in your child’s best interest. In California, visitation can be:
Scheduled—a detailed plan that outlines specific dates and times of exchange, including where the child will spend holidays and birthdays.
Reasonable—an open-ended agreement that does not make specific arrangements; instead, parents agree to work out the details between themselves.
Supervised—an arrangement that requires visits to be supervised by another adult, or a professional agency. This type of visitation generally occurs when the child has experienced harm or neglect because of the parent.
No Visitation—a situation where any contact with a parent (even supervised) would be physically or emotionally harmful to the child.
In addition to a visitation schedule, non-custodial parents are often assigned to pay child support.
Child Custody: Child Support
As all parents know, children don’t come cheap, and these expenses don’t end, just because parents get divorced, meaning that—without support—a child’s primary residence parent will inevitably end up shouldering the bulk of costs for these daily needs.
Hence, to offset this imbalanced financial burden, California courts will often require non-custodial parents to pay child support. This ensures both parents are responsible for meeting their child’s needs, and are held equally accountable, accordingly.
In California, child support is calculated using a formula that weighs each parent’s income against their percentage of parenting time. However, the court is allowed to deviate from this formula in situations like a high net divorce, when a higher monthly amount would be more appropriate.
Child Custody: Drafting your Parenting Plan
A family court judge is often needed to help finalize custody matters, however, they aren’t necessarily a requirement, and couples are always free to draft their own parenting plan.
This can be done between individuals—with or without attorneys—or through a more structured process, such as divorce mediation. For some couples, collaborative divorce can be another good, out of court option.
So long as your proposed custody agreement meets certain state guidelines (such as child support minimums), judges are usually happy to sign off on an agreement you reach on your own.
Child Custody: Enforcement and Modification
In California, decisions involving minors are all made under the scrutinizing lens of the best interest of the child. This legal standard requires the court to choose—not what you want, as a parent—but the outcome that will serve your child’s long-term health and wellbeing the best.
When a parent fails to uphold their duties under this order, it’s the child who ultimately suffers the most, and California courts do not take these infractions lightly. Penalties for noncompliance are dependent on the offense, but can result in serious legal consequences, including a restriction on parental rights, fines, and even jail time.
If there is a legitimate life change keeping you from carrying out your responsibilities, then talk to your attorney right away. In some situations, custody orders can be modified, however, these changes cannot be applied retroactively. So it’s important not to wait, if something comes up.
Child Custody Attorneys in California
As a parent, nothing is more important to you than your child. You want what’s best for them, and worry about how divorce will affect them. At Maples Family Law, we understand and empathize with these concerns, which is why we hope you’ll trust us to help.
If our child custody overview hasn’t answered all your questions, we hope you’ll reach out. Call us today at (209) 989-4425, or get in touch online, and let our team of experienced family law attorneys fight for your child’s best future.
In California, all custody decisions are made according to a child’s best interest. This includes being able to have a loving, healthy relationship with both of their parents, whenever possible. However, these relationships can’t blossom without quality time.
That’s why when parents don’t live together, the court will often issue a visitation order. These edicts ensure that the rights of both parents are being upheld, and that each has the chance to foster a meaningful relationship with their child.
California courts don’t make these orders lightly, and failure to uphold them can trigger serious legal consequences.
If your child’s other parent isn’t cooperating with your custody arrangements, here’s what you need to know about enforcing a visitation order in California, and how the Maples team can help protect your rights and your child’s best interests.
What is a Visitation Order?
Visitation orders dictate how a child’s time will be spent, including where the child will live, and how they will spend holidays. They are a key part of upholding parental rights—in particular, a parent’s right to have access to their child.
In terms of child custody, this access is often referred to as “physical custody.”
Both parents have the right to physical custody with their child. However, if they aren’t living under the same roof, this time must be shared. To this end, California courts will assign one parent to be the custodial parent (or, primary residence parent), while granting the other ample parenting time in the form of visitation.
Visitation orders are generally just one component of child custody. Along with visitation, your child custody orders will also address legal custody, and outline child support.
How to Enforce a Visitation Order When My Ex Has Primary Custody?
It’s hard being a non-custodial parent. You don’t get enough time with your child as it is, and when your ex stops complying with visitation, this puts you in a tough spot. Because now you have to decide if the stress of enforcing visitation is worth the strain on your already limited time together.
If this situation sounds familiar, start by asking yourself these four questions:
Is my order enforceable?
Does my order need to be updated?
Have we tried making things easier?
Is contempt really worth it?
Here’s a closer look.
1. Enforceability
Visitation orders are kind of like personalized laws made just for you. These edicts are backed by the full weight of the law, and breaking them warrants the same legal consequences as breaking any other law.
That being said, the police can’t enforce a law that’s too vague.
Before jumping through legal hoops, make sure that the terms of your visitation order are clear. In some cases, headaches can be cleared up by shoring up details like specific dates and times—something you may be able to coordinate together, without the court.
2. Updates
If your visitation order is sufficiently clear, then maybe the problem is that your order is dated.
As all parents know, a child’s needs change just about as fast as they grow. Hence, a visitation arrangement that worked well for your family five years ago might not be the best fit here, in the present. Indeed, some agencies won’t even help enforce orders that are too old.
If your order is no longer a good fit, then it might be time to consider a custody modification.
3. Alternatives
You don’t need to go back to court to resolve everything. Before drafting up a motion, try talking to your ex to see if there are tweaks you can make. Sometimes a simple change in drop-off location or an alternative pick up time is all it takes to keep things running smoothly.
If it helps, there are even exchange agencies, which can help supervise the transfer of children between parents. These professionals can be really helpful at both keeping parents honest, and tracking violations. And while they do charge a fee, it’s definitely cheaper than the cost of an attorney.
4. Contempt
If all else fails, the last step you should consider is contempt of court.
Contempt is a criminal action, which can be taken against someone who intentionally and willfully violates a court order. This is a serious charge, and one that comes with a very high burden of proof, meaning they’re tough to litigate—especially for visitation violations.
In terms of custody agreements, contempt is most often used as a means to enforce child support.
If you are thinking about pursuing contempt, it’s a good idea to consult your family law attorney, first. In many cases, the potential benefits aren’t worth the effort of pursuing in terms of visitation.
Visitation Order Modification
Judges don’t want to see you back right after delivering your original visitation order. However, under the right circumstances they are willing to consider a custody order modification.
Some of these circumstances might include:
A repeated, long standing pattern of custody order violations.
The child’s education needs have changed.
The custodial parent’s home environment has changed.
The child is being subjected to harm under the current order.
One parent is no longer fit to carry out parental responsibilities.
As always, California parents are free to draft their own parenting plan—and modifications. This can be done between the individual parents, or in a more structured environment, such as mediation.
Remember, however, that the changes will not be enforceable until they are approved by a judge—even if both of you agree. Until then, be sure to follow your original order, or else you could risk being held in contempt.
Enforcing a Visitation Order in California
Failure to comply with visitation isn’t just a violation of your parental rights. It’s also an affront to your child, who is being robbed of the opportunity to foster a loving, healthy relationship with their other parent.
That’s why if you have more questions about enforcing a visitation order in California, we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and let us help ensure your child’s best interests are being met.
Nothing is more important to you than your child. You want to protect them, and to give them the very best in life. Which is why it can be so infuriating when your child’s other parent violates a custody order.
Luckily, California courts get pretty upset when this happens, too, so you’re in good company.
Not only are custody orders mandatory, but failure to comply can result in some fairly hefty financial and legal consequences—not to mention the potential loss of parental rights. So there are plenty of ways to enforce compliance, when necessary.
Here’s what you need to know about enforcing a custody order in California, and how Maples Family Law can help you navigate this stressful situation.
What is a Custody Order?
A custody order is a legal document that divides parental rights and responsibilities between parents who are not living under the same roof. This usually happens as a result of divorce, but it is also relevant to unmarried parents, who may want a formal agreement to dictate co-parenting responsibilities.
Among other things, custody orders outline legal and physical custody, and dictate whether this authority will be shared between parents (as “joint custody”), or held by one parent, alone (called “sole custody”). It also specifies which parent will be the child’s primary residence, the terms of any visitation schedule, and the amount of child support.
In California, each of these decisions are made with a child’s best interests at the forefront, and with full consideration of which outcome will serve their long-term health, happiness, and well-being the best. This means that when one parent fails to meet their obligations under the order, the child is the one who ultimately suffers the most.
And, as we mentioned earlier, this isn’t something California courts take lightly.
Enforcing a Custody Order
If you child’s other parent is refusing to cooperate with a custody order, then there are a couple of different ways you can handle things:
Talk to the other parent to resolve the issue.
Contact the police and ask them to help enforce your order.
Contact the district attorney in your county.
File a motion of “contempt” with the court.
Here’s what each of these options looks like.
1. Talk It Out
If there isn’t a health or safety risk involved, you may want to consider simply talking to the other child’s parent, before trying anything else.
Many times, these disagreements arise accidently (for example, not understanding the order, completely), or because of an understandable life change. If your situation ends up being one of these things, then working it out between yourselves is going to be a lot cheaper than rounding up the attorneys.
2. Contact the Police
If talking doesn’t work, the next step is to contact the police.
Custody orders have the full force of the law. This means that failure to comply with one is tantamount to disobeying any other law, and can warrant police involvement.
That being said, it’s harder for police to enforce something that isn’t clearly defined. Examples of clearly defined terms in a custody order might include:
The dates, times, and locations of child handoffs.
Where the child is supposed to be on certain holidays and birthdays.
How the child will be transported between parents.
Without specifics, it may be more difficult for police to enforce anything. Regardless, if you’re contacting the police about enforcing custody, now would also probably be a good time to contact your attorney, as well.
3. Contact the D.A.’s Office
Most kidnappings in the United States (and globally) are committed by family members—specifically a child’s parent. However, just because a child is with their parent doesn’t mean they’re safe, or that the action is legal.
If you believe your child is in danger of being kidnapped by their other parent—or already has been abducted—you’ll need to contact the DA’s office, and look for the Child Abduction and Recovery Unit.
Parental abduction can be particularly difficult to counteract if the parent flees to another country. While many countries have committed to following certain international custody procedures, these terms can be difficult to enforce, once the child is out of the country. Hence, it’s important to act fast in these situations.
4. File for Contempt
A contempt of court action occurs when someone has willfully and intentionally violated a court order. If upheld, this charge can result in serious consequences, including steep fines, a black mark on your permanent record, and even jail time.
This process is not about asking the court to enforce your order. It’s about punishment. And because of that, it isn’t something that should be taken on lightly.
Where custody is concerned, contempt is generally reserved for more weighty and serious violations, such as the repeated disregard of child support, or abuse. If you think contempt might be applicable in your situation, talk to your family law attorney about what this action could entail, and whether it’s worth it to pursue.
Custody Order Modification
At times, there may be legitimate life changes that keep your custody order from working as well as it should. If this happens, you may need to request a custody modification.
In California, the court may allow modification, if:
Either parent develops a physical or mental health illness; or,
Evidence of abuse or neglect comes to light.
Court is not always necessary for a modification. Sometimes couples are able to negotiate these changes themselves; other times mediation is more appropriate.
Keep in mind that even if you and your spouse agree on changes, you will still need a judge to verify your agreement before anything is enforceable. Until that happens, it’s important to continue obeying your original order, or else risk being held in contempt of court.
Custody Order Attorneys in California
Failure to follow a custody order is a serious matter, and not one California courts take lightly. If your child’s other parent is not cooperating, then it may be time for legal action.
For more questions about enforcing a custody order in California, and how this process might work in your situation, we want to hear from you. Call Maples Family Law at (209) 989-4425, or get in touch online, and let us help ensure your child’s best interests are being met.
The last thing anyone wants to do after getting divorced is head back to their attorney’s office for post-divorce services—especially if those services involve enforcing a divorce order.
Unfortunately, that’s exactly what a lot of people have to do.
On the bright side, divorce orders are not optional, so this is one lawsuit you’re likely to win. These directives are like personalized laws made just for you and your ex, and failure to comply can carry significant legal and financial consequences.
Here’s what you need to know about enforcing a divorce order in California, and what the Maples Family Law team can do to help you navigate this stressful situation.
What is a Divorce Order?
A divorce order (or “divorce decree,” as it’s sometimes referred to in California) is a legal document that formally ends your marriage, and encompasses all the terms of your divorce.
These terms are kind of like directions, which tell the individual spouses what they need to do, after divorce. Some of the edicts might include:
These terms are specifically constructed to fit each family’s unique situation, and whatever your judge includes in this order must be followed by both parties.
However, that doesn’t always mean that they are…
Enforcing a Divorce Order in California
So now you’re here. Your divorce is over, the ink on your decree is dry, and you thought things would start getting back to normal, but they aren’t. Because your ex is refusing to follow the judge’s orders.
What now?
If you are dealing with an uncooperative ex, here are five steps you need to take when enforcing your California divorce order.
1. Make Sure You’re Squeaky Clean
First and foremost, do not open that “motion to enforce” can of worms until you’re absolutely sure you’re all caught up on compliance, yourself. Heading back to court any time before that is too risky because your judge certainly won’t be wearing blinders in that hearing.
Once you file a motion to enforce, the court has the liberty of reviewing all the terms of your divorce order—not just the ones you want to complain about. Which means they’ll be reviewing the things you may or may not be lax on, yourself.
Don’t give your judge the opportunity to find something wrong with you, too. Before doing anything—especially going to court—be sure that you’re 100% compliant with your own responsibilities. Otherwise, things could backfire.
2. Figure Out Exactly What They Aren’t Doing
While making sure your own compliance is up to snuff, be sure to take a look at your divorce order, and identify the specific terms that your ex is not complying with.
Whether they’re late on child support, have failed to vacate the house, or aren’t following through on specific custody or visitation arrangements. Whatever it is, be specific. Know the exact terms and the precise violation.
This attention to detail will help you document the problem more accurately. In turn, having specific, targeted evidence will help you negotiate succinctly with your spouse, and strengthen your arguments, if you do end up going to court.
3. Gather (Specific) Evidence
Now that you know the exact violations, you can start gathering specific evidence to support your complaints. If they aren’t keeping up with visitation schedules, then keep a journal of dates and times when things went wrong, as well as the conversations you’ve had to try and remedy the issue.
On the other hand, if they aren’t following through on alimony, or debt responsibilities, then perhaps gathering financial documents might be helpful.
Whatever the infraction, strong evidence will help you meet your burden of proof as the injured party, if you end up having to litigate.
4. Talk to Your Spouse
Hopefully, you’ve been doing this step the whole time, but if you haven’t yet, we recommend trying to work things out with your ex, before heading back to a judge.
As you already know, attorney’s fees don’t come cheap. While an injured party is often able to recover these expenses, it’s not necessarily a guarantee, and it’s always easier to just not have to in the first place.
Sometimes individuals are capable of working things out on their own. Other times, the structure of mediation is more effective. Either way, it’s almost always better to exhaust your “out of court” options before trying anything else.
5. File a Motion for Contempt of Court
If negotiations fail, then the only option you have left is to file a “motion for contempt” with the court.
Contempt essentially means that someone has either intentionally (or negligently) failed to follow direct orders from a judge. When filed, this motion should highlight the specific areas of the complaint that were violated, and list the reasons why contempt is the appropriate charge.
After you file this motion, your ex will have the opportunity to respond, and then both of you will be assigned a hearing date. At that time, you’ll be able to present all of that carefully gathered evidence you acquired in Step 3.
Contempt is a serious criminal charge, which can result in steep legal fines and even jail time. If your ex is not complying with your divorce order, talk to your family law attorney about whether or not this motion is appropriate for your situation.
Attorneys Who Can Enforce a Divorce Order in California
Going to court was stressful the first time around, and the last thing you want to do is head back there again. Unfortunately, sometimes that’s the only way to get an ex to cooperate, which is why you need an experienced family law attorney on your side.
If you have more questions about enforcing a divorce order in California, and whether legal action might be necessary in your situation, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help ensure your rights are being protected.
Divorce is never easy, but for families struggling with domestic violence, the transition can be even more complicated—especially for those who have children, need to file a restraining order, or are worried about retaliation.
Each state has different laws for handling domestic violence during divorce. In some jurisdictions, these offenses can warrant the filing of a fault-based divorce, and end up affecting the division of marital property in favor of the abused spouse. They can also impact child custody, alimony, and even result in criminal charges.
Here’s what you need to know about how domestic violence can impact your divorce in California, and what the Maples Family Law team can do to help you navigate this rocky transition.
Overview of Domestic Violence
In California, domestic violence is defined as any abuse—or threat of abuse—that comes from a romantic partner.
Naturally, this definition includes a spouse, but it actually goes further, encompassing any type of romantic relationship, such as someone you’re living with, a domestic partner, a co-parent you share a child with, and even just someone you’re dating (or used to date).
Under this definition, abuse can come in many different forms, and—according to the domestic violence guidelines on the California.gov website—can include things such as:
The act of physically hurting (or trying to hurt) someone, either intentionally or unintentionally;
Making someone think that they (or someone they love) is going to be hurt;
Sexual assault;
Harassment, stalking, threats, and disturbing the peace; and even,
The destruction of personal property.
As you can see, this type of abuse does not require physical contact with another person—or even their property—in order to be considered domestic violence. It can be as subtle as emotional abuse and threats levied against someone you love, and can even include unintentional physical harm.
But, what does this mean when filing for divorce?
Here are some of the ways that domestic violence can impact your divorce, including the division of marital property, child custody, and alimony.
Domestic Violence and Marital Property
At its most basic form, marriage is just a contract; a commitment between two people, who want to be seen as a single entity in the eyes of the law. That’s why several states allow individuals to file for divorce under fault-based grounds.
In a fault-based divorce, the court can assign blame, and hold one spouse financially accountable for their part in the marriage breakup. This is typically done by awarding the victim a larger share of the marital property.
Along with things like infidelity and drug abuse, domestic violence is one of the primary grounds used in these jurisdictions for filing under fault. That being said, California is not one of those states.
As a strictly, no-fault divorce jurisdiction, you cannot file for divorce in California using domestic violence as your grounds. In addition—because judges cannot consider guilt or blame when dividing marital property—you also cannot use domestic violence to receive a greater share of your community pot.
However, that doesn’t mean domestic violence can’t impact your divorce at all…
Domestic Violence and Child Custody
One of the biggest ways domestic violence can shape a California divorce, is in the area of child custody.
In California, custody decisions are made based on what is in a child’s best interest. This legal standard is driven—not by what parents want—but by what will serve a child’s long-term health and welfare the best.
Under these guidelines, sole versus joint custody decisions are determined by weighing factors such as:
Each parent’s ability to care for their child, post-divorce.
Any history or threat of domestic violence.
Any history of drug abuse.
When considering domestic violence, it is not even necessary that the child has experienced the abuse themselves. In California, domestic violence is still a consideration, even if the harm was only ever carried out on the child’s other parent.
Domestic Violence and Alimony
According to the California Family Code, courts are also required to consider domestic violence when making decisions about alimony.
Alimony (or “spousal support”) are regular payments that a judge orders one spouse to pay the other, in order to help support their care after the breakup. This money is often awarded to a homemaking spouse, to help get them back on their feet after so many years out of the workforce.
In California, judges cannot require victims of domestic abuse to pay their spouse alimony, however, this is somewhat contingent on what evidence is available at the time of divorce.
A conviction of domestic violence within the past five years is the strongest type of evidence. If available, this creates a “rebuttable presumption,” which essentially means that the court has to operate as if the abuse exists/existed. As a result, a victim of this violence cannot require to:
Pay temporary or permanent spousal support; or,
Pay their spouse’s attorney’s fees from separate property.
If you don’t have a conviction, you may still be able to get an exemption from alimony. Talk to your attorney about what evidence you may need, and be sure to document any further abuse in as much detail as possible, since the state may want to file criminal charges, as well.
Domestic Violence and Criminal Charges
Domestic violence might have been the reason you decided to file for divorce, but it’s also a crime, and—depending on the severity of the offenses and the available evidence—these actions could be enough to land your spouse with criminal charges.
But what, exactly, does that mean? And how does a criminal charge differ from what you’re doing in divorce court?
Civil vs. Criminal Court
In the United States, there are two main branches of the court system:
Civil court
Criminal court
Criminal court deals with offenses like rape, theft, battery, assault, and so forth. These are harmful crimes committed by one person against another, and can result in fines and even jail time. In a criminal case, the state acts as the prosecutor against the accused.
On the other hand, a civil case is filed by an individual (or business) against another individual (or business). This branch handles pretty much everything that criminal court does not, including real estate transactions, business, contracts, probate, economics, family law, and so forth.
Divorce—like adoption and child custody—is a subset of family law, which means that these cases are generally held in civil court. However, when domestic violence is involved, civil and criminal courts often intersect.
Depending on your situation, the state of California might decide to file criminal charges against your spouse for domestic violence. If they do, these charges will be filed as a separate case, held in criminal court, and handled by a criminal court judge.
Unfortunately, while domestic violence is always a crime, it’s also often a secret crime—one whose harm doesn’t always leave a mark. Hence, in many situations, the state lacks the necessary evidence to prosecute.
California Domestic Violence Resources
It’s important to understand that—even without a bruise or scar—domestic violence is never okay. California courts take these crimes very seriously, and if you or a loved one are currently experiencing abuse, it’s critical that you talk to law enforcement (as well as your family law attorney), to figure out the best course of action in your situation.
If you don’t know where to start, or simply need help, these online resources can assist you with the process:
These sites can help you find a shelter, retain a free or low-cost attorney, and walk you through the steps for things like filing for a restraining order.
In the meantime, if the danger is immediate, don’t wait, and call the police right away.
Domestic Violence Divorce Attorneys in California
If you are dealing with domestic violence in your marriage, the most important thing to do is to keep yourself—and your children—safe. The next step is to get out of the situation as quickly as that safety will allow.
If you have more questions about domestic violence in California, and how this might affect your divorce, we want to help. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and together, we can figure out the next best step for you.
