Family Law

At McNamara & McNamara we are here to help in each stage through this difficult time.  Our experience is here to assist you, through each and every step of the divorce or dissolution process. We will try to move this process as efficiently, cost effective, yet as effectively as possible.   We know when to fight and we know when to resolve and we can assist you in each step along the way.   Below is a brief and general description of the stages in any dissolution.  The information is here to provide you with a brief guideline, a brief understanding, and should you need further legal assistance we are here to help.  Call us when you’re ready.

California is a No Fault State

California is a "no fault" divorce state that requires the division of (community property) assets and debts equally between divorcing parties. Since fault for the breakdown of the marital relationship has been completely eliminated, the battlegrounds generally are located on the issue of the categorization of and value of property, allocation of the property and debts, parenting issues and support issues.

A Brief Discussion of the Divorce Process

A case is filed:

A dissolution proceeding begins with the filing of a Petition by one party. The Petition is then served (either personally or by mail) upon the responding party. The party originally filing the Petition is known as the "Petitioner" and the other party is known as the "Respondent". The date of service of the Petition on the Respondent is a significant date, as it commences the 6-month waiting period between the start of the dissolution and eligibility to request that the marital status of the parties be terminated. If all issues are not resolved at the end of the 6-month period, and you would like your marital status terminated, you can proceed to terminate the status of your marriage by utilizing a process called bifurcation. Until your marital status is terminated, you are not free to remarry. Following receipt of the Petition, the Respondent has 30 days (unless Petitioner's attorney grants additional time) in which to file his or her responding statement to the facts. After that time, the case may be set for a Court hearing. If there are custody and support disputes, it is customary to file what is known as an Order to Show Cause (OSC) to obtain a special early hearing for temporary orders for custody, support and for restraining orders.

Custody and visitation:

Custody and visitation disputes are now referred by the Court for mandatory counseling at "Conciliation Court" (within the Courthouse) prior to having a Court hearing on those issues. If an Order to Show Cause is filed on your behalf, a copy will be given to you, and if an appointment with the Conciliation Court is necessary, we will do that on your behalf as well. We will meet prior to the court hearing to discuss your situation and prepare you for your appearance in court as well as your appearance for conciliation if required.

How the case moves forward:

After service of the Petition, the parties may successfully negotiate and consummate a complete or partial Marital Settlement Agreement providing for equal division of their community property and debts, for custody, visitation and support of their children and/or spouse. Where the parties have arrived at such an agreement, that agreement is incorporated into a "Judgment" which is then signed by the Judge and made an Order of the Court. A personal Court appearance may be required of the Petitioner or the Judgment may be granted upon Petitioner's affidavit without an appearance, in the Judge's discretion.

Normally, an appearance is not required if both parties approve the Judgment by signing their name affirming their approval as to form and content. In more complex dissolution proceedings, time of trial is usually delayed considerably to allow time to determine, through "discovery," the fair market value, amount of encumbrances, etc., of each item of community and/or separate property. A trial date is usually not requested until all requisite discoveries is completed.

Discovery issues:

Discovery may require your completion of answers to written questions (interrogatories) from opposing counsel, production of documents for opposing counsel to review, or your testimony before a Court reporter (a deposition), and it is not uncommon to employ experts, such as accountants or appraisers, to assist us in evaluating the issues presented in your case. We will, of course, confer with you and provide you with all of the information and tools to enable you to make good decisions as to how you wish your case to proceed.

You will make all of the appropriate decisions for yourself, and we will provide you with all of the necessary information, and answer all of your questions, to make your decision making more informed and understandable. Discovery procedures can take a great deal of time, and this is done in an effort to properly represent your interests. Please understand that every procedural step is taken for a reason. We make every attempt to avoid any wasted time spent on your case, and if you do not understand any procedure, we want you to ask us about it.

General Guideline

In every dissolution of marriage proceeding, it is required (unless the parties otherwise mutually agree) that the amount of community property and community obligations be equally divided. This equal division may be accomplished by dividing each particular asset between the parties or by awarding one asset to one party and an asset or assets of equal value to the other. If one party assumes the obligation for a community debt, that debt will usually be deducted from the value of assets awarded to him or her in computing the equal division requirements. Please note that your agreement and a Court Judgment requiring one party to pay a particular bill will not legally relieve the other party of the obligation in the event of default if it is a joint obligation.

A Trial is necessary, if no agreement

A trial in any dissolution proceeding is when the parties cannot agree to a settlement.  It can involve all issues, such as finical, child custody, support, and other related issues.  Alternatively, the parties may agree on certain issues and thereby limit the issue for a trial.  

Some of the issues to discuss with your attorney prior to going to trail would be the expense versus the settlement.  Experts may be necessary, and a great deal of preparation to effectively conduct a trail.  The other concern is the courtroom in which your trial will take place, and does this court efficiently operate it calendar so that you can have a cost effective trial.

Ultimately, a trial means the parties cannot come to an agreement, so the judge will decide your fate based upon applying the law, after hearing the evidence by both parties. This comes in the form of decision after trial.  

Appeal of the decision

An appeal of the courts decision is a very expensive and legally intensive process.  A great deal of time guiltiness, and things need to be done in an appeal.  Essentially, and very generally an appeal is a request to a higher court to review the evidence, and the judges’ decision.  Then to say the trial court incorrectly applied the law in some manner.  Many people do not understand that an appeal is based only on the evidence heard, in the lower court.  Thus, no new evidence can be presented to a court of appeal.  

The thing to remember here is to act fast, as you may loose the right to appeal if not decided upon quickly.    Then be prepared for a lengthy, slow, and expensive process.  The best course of action is to make sure you did everything you felt you needed to in the trial court level.

Conclusion

The foregoing information is intended to provide you with a very general guide in the processing of a dissolution of marriage proceeding. The time and the effort involved in a particular dissolution proceeding will vary greatly depending upon the parties and the problems involved. Rest assured that McNamara & McNamara will provide you with the experience and ability to guide you through the process knowing at each juncture what your options are along the way.

We will always provide you with a copy of every important document generated on your case, as well as a copy of all-important documents from outside sources on your file, without exception. All telephone calls are returned and we encourage our clients to book telephone appointments so that we can all manage our time and resources effectively.

If you have a specific question regarding property and/or debt categorization, allocation issues, reimbursement issues, or any general family law question, or for more information, please fill out the following form.