GRANDPARENT VISITATION

One of the most sensitive issues that often arises in a Family Law case is the issue of Grandparent Visitation. Under California Law, grandparents have the right in certain situations to request court ordered visitation of their grandchildren.

California allows grandparents to file their own special grandparent visitation case in situations where their child is unable to exercise any visitation, usually through death or imprisonment.

These can often be tragic cases. A typical situation would be where one of a child's parents has died, and the surviving parent will not permit the deceased parents to visit their grandchildren. In this situation, the grandparents can file a case with the Family Court and ask that the Court order that they be granted time with their grandchildren.

The other option for grandparents to obtain court ordered visitation is to ask the court to become a party to an already existing Divorce or Paternity case. This is a process known as Joinder.

Under this process, a grandparent would file a Request for Joinder with the Court and serve both of the parents involved in the case. The Judge would decide if it was appropriate for the grandparents to be joined to the case where they would be allowed to participate just as if they were one of the parents. The grandparents would ask the Court to order their own specific time with the grandchildren. This time would be separate from either of the parent's custody time.

Grandparent visitation can be a very technical and emotional issue. It is best that people dealing with these issues to become familiar with the law. It is also important to remember that everyone wants what is best for the children.

SEPARATE PROPERTY

It is common knowledge that under California Law, almost all of the assets acquired by a couple between the date of the marriage and the date of separation is considered COMMUNITY PROPERTY. The effect of this characterization is that the couple's community property assets must be equally divided in the divorce judgment. This is usually accomplished by such events as selling a home and dividing the net sale proceeds, or by equally dividing an assets such as a pension account.

Assets that are considered the SEPARATE PROPERTY of a spouse going through a divorce are not subject to the equal division requirement. A separate property asset or debt will be awarded entirely o the spouse that owns that asset.

The most common reason that an assets is considered to be a person's separate property is that he or she owned that asset before the date of marriage. For example, a person buys an item such as a house in 2010. They marry their spouse in 2011. The house is considered the first spouse's separate property due to the fact that the asset was bought prior to the marriage.

This rule is most commonly applied to assets like Pension plans. All the retirement plan contributions that are made before the date of marriage are the separate property of the person who made the contributions. Contributions that are made after the date of marriage are community property. It is very common for a person to have both a separate and community interest in their pension plans.

The other major reason that an asset can be considered separate property is if it is acquired by inheritance. If a married person inherits an asset such as a house, it will be that person's separate property. This rule applies equally to other types of assets such as bank accounts and stock portfolios.

Each person in a marriage should be aware of the character of their assets. Many people have been shocked to find that their comfortable lifestyle during the marriage was actually being supported by the other spouse's separate property assets. These assets will not be divided by the Court in a divorce. Instead, the assets will be confirmed to the person who owns them.

 

 

DEFAULT JUDGMENT

In most cases, a Divorce or Family Law case in California will end in either an agreement or by a Trial Decision written by a Judge. However, in cases where one of the parties does not contest the case, the matter will end in what is referred to as a Default Judgment.

A Default occurs when the person who was served with the divorce case does not file a Response to the Petition for Dissolution in the Court for one reason or another. The California Family Code requires that a Summons be filed and served at the same time as the Petition. The Summons informs the person served with papers, known as the Respondent, that he or she has 30 days to file a Response in the County Court House and serve a copy of the document on the Petitioner or their Attorney.

If there is no Response filed by the Respondent withing 30 days of the service, the Petitioner may file a document known as the Request To Enter Default with the Court Clerk. The Clerk will usually verify that no Response is filed, and immediately file and stamp the Request to Enter Default Form. This will now mean that the Respondent is “In Default”.

The will result in the Respondent being “locked out” of the case and unable to file a Response or contest the matter. The Petitioner will usually have the clerk set what is know as a Prove Up Hearing and bring a proposed Divorce Judgment to Court that day. The Judge will review the proposed Judgment prepared by the Petitioner and make sure that it divides the Community Property of the parties equally. Even if the Respondent is locked out of the case by the Default, the Court must still make sure that the community property is equally divided.

If the Judge finds the proposed judgment to be fair, the Court will than sign the Judgment and have the Clerk enter the Judgment of Dissolution.

It is important to point out that the Default of the Respondent will not block the Respondent's ability to contest Child Custody or Child Support issues. The Respondent will still be able to contest these issues. A parent will never give up their rights to contest a Custody or Support matter just because they did not file a Response to the case.

WHAT DO FAMILY LAWYERS DO?

A Family Law Attorney is an Attorney who primarily practices in the areas of Divorce and Family Law. This is a large field of law that can include various topics such as Child Custody, Child Support, Spousal Support or Alimony, and Property and Retirement division.

    Family and Divorce Law can involve  very complex legal concepts. For example, a complicated child custody matter may require the reports and evaluations of child counselors or physicians. It may be necessary to have the children and parents evaluated by a mental health professional in order to have a thorough recommendation presented to the Court.

    Another very complicated area of Family Law can be the division of complex property issues. The parties may have a business or professional practice that was built up during the marriage. Under California Law, this asset would be Community Property. The Court will typically need to determine the value of this business and which of the parties the asset will be awarded to. It will frequently be necessary to obtain the services of a type of Accountant known as a Forensic Accountant. This is a CPA with special training and experience in dealing with matters that are going through a legal action like a divorce.

    A Family Law Attorney does not an accountant himself, but it is necessary to be familiar with the general concepts of accounting.

    All Attorneys must keep up their skills and knowledge of developments in the Case Law and legal authorities. Unfortunately, Family Law and Divorce matters will often have to be litigated in a Trial or other Hearing. A good Divorce Attorney will be very familiar with trial tactics and the Rules of Evidence. It doesn’t matter how good the evidence is in a case if an Attorney cannot argue it effectively in front of a Judge.

    Finally, the most important task of a Family Attorney is to always remember that his client comes first. A Family Law Attorney represents people not just clients. Their clients are going through what may be the most stressful and painful times of their lives. Doing a good job in representing the client means that they can get on with the next chapter of their lives.