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EXPERT FAMILY LAW HELP FOR YOU

Robin Yeamans is an esteemed attorney who has also tackled many child custody cases, family law disputes and has always reached out to those who could not afford legal help. Her self-help guides and DVDs have been tremendously helpful to people in all stages of dissolution and custody cases.

If you reside in Northern California and need an attorney well versed in child custody, family law, divorce law and California States laws in general, Robin is the expert consultant and help for you.

ABOUT ROBIN

Robin Yeamans has been a California lawyer since 1970 and a Family Law Specialist* since 1980. Robin as been California has been a certified family law specialist since the first year the specialty was created. In that time she has become one of the foremost experts in the field, especially regarding custody psychological evaluations and family law appeals.

*Certified by the California State Bar Association Board of Legal Specialization.

Experience

Experience

Education

Education

Publication

Publication

PROFESSIONAL

  • San Jose Superior Court, Judge Pro Tempore, volunteer program, 1986 to present.
  • Attorney specialist certified by the California State Bar Association Board of Legal Specialization
  • Family Law Specialist, 1980 to present.
  • Appellate Law Specialist, 2004 to present.
  • Legal Aid Society of Sacramento, Attorney, 1970.
  • Sacramento State University extension, Instructor of course titled “Women and Law,” 1970.

BACKGROUND

Robin has helped many children and parents who are tangled in the web that is Family Court. People dealing with serious issues such as sexual abuse or domestic violence often lose hope and find it difficult to wade through the increasingly complex process.Robin is known across the country as one of the foremost attorneys capable of attacking an inaccurate custody psychological evaluation. Robin discovered other local attorneys were losing their child custody trials while she won several in a row even though the court’s 730 evaluators had recommended against her clients. This was done by a skillful combination of discovery and cross-examination of the experts along with presenting positive testimony supporting the clients’ cases.

Robin’s method is completely different from attorneys who receive unfavorable psychological evaluations and think, “I didn’t know my client was so crazy,” and just try to make a deal to settle the case. If the client and others indicate that the psychological evaluation does not correctly reflect the client and/or other party, Robin scientifically scrutinizes it. She subpoenas the psychologist’s entire file and takes the psychologist’s deposition.

But Robin has gone way beyond this and has even evaluated bias written into the lines of the computer program that scored the psychological test. Robin has obtained testimony from the people who wrote the programs to expose problems far underneath the surface of the psychological evaluation. This method was successful in the case referred to below emochila-Statement.

Robin has evaluated psychological reports which used the MMPI-2, MCMI-3, Rorschach, the TAT, the Bender Gestalt, ADD/ADHD testing, DAPS and other PTSD testing. Robin has also researched the ethics of mental health personnel and obtained expert testimony on this subject

Robin is very well versed with all the facets of California Divorce and has helped ease many a client’s painful process of divorce. California Divorce may be complicated but with the expertise and experience that Robin has acquired over the years, she will be able to guide you through each step of the process.

While doing cases involving juveniles who have been abused, child custody, sexual abuse and/or domestic violence, Robin has managed over the years to remain caring yet professional. It is the combination of legal skill and professional commitment that places Robin at the top of her profession.

EDUCATION

  • Stanford Law School, graduated 1969; member of the 1968 Stanford Law Review.
  • University of Southern California, graduated 1966; Magna Cum Laude Phi Kappa Phi, Phi Beta Kappa.

ADMISSION TO PRACTICE

California
United States Supreme Court
9th Circuit Court of Appeal
Federal Eastern, Southern, and Northern District Courts of Appeal of California

HONORS AND AWARDS

  • Special Award for Pro Bono Legal Services awarded by the Pro Bono Project of Santa Clara County for leading community efforts to reform family court in relation to abuse of women & children, 1997.
  • San Jose Mercury News Silver Pen Award, for letter headed “Children must Testify Against Molesters,” 1984 (based on my helping a child testify in criminal court).
  • Reginald Heber Smith Fellowship, focus “Poverty Law,” 1969.

COMMUNITY ACTIVITIES

  • 1988 ran for State Assembly and received approximately 38,000 votes.

BOOKS

  • Trial in a Box: How to Do Your Own Trial or Hearing now available at
  • How To Do a Contested Divorce in California, published by Nolo Press.
  • Here’s How You Get a Divorce in Santa Clara County, over 20,000 copies of this book have been sold.
  • 1979 served as an adviser to local National Organization for Women (NOW) in writing “Dissolution–A Handbook in Divorce for Santa Clara County Women” under CETA and corporate grants.

ARTICLES

  • “Constitutional Attacks on Vagrancy Laws”, Stanford Law Review. “Creativity and Legal Education”, Journal of Legal Education.
  • “Defenses When District Attorney is Collecting Child Support”, In Brief, the magazine of the Santa Clara County Bar Association.

PUBLICATIONS & PRESENTATIONS RELATED TO DOMESTIC VIOLENCE

  • January 2004 & 2005 & 2006 presented at National Battered Mothers Custody Conferences at Siena College in Albany, NY.
  • 2002 presented “Dissecting Psychological/Custody Evaluations,” at the Family Violence And Sexual Assault Institute, San Diego, CA, qualifying for DV MCLE for custody evaluators under state law.
  • 1980 published “A Political-Legal Analysis of Pornography,” an article in the anthology “Take Back the Night–Women and Pornography,” (sold in the U.S. and other countries).

AFFILIATIONS

  • Rotary Club, San Jose, 1990-1999.
  • Community Companions, a nonprofit organization to assist the severely mentally ill, Board of Directors, 1989-1995.
  • 1986-1988 chair, San Jose/South Bay chapter of National Organization for Women (NOW).
  • 2004 to present, board member, Coalition for Family Justice, headquartered in New York. Feb. 2005—Chair of national Advisory Board
  • 2004 to present, Saratoga, CA Chamber of Commerce Feb. 2005—Member, board of directors

EXPERTISE/PRACTICE AREAS

Robin’s skills in the categories below have kept Robin at the top of her profession.

Domestic Violence

Victims of domestic violence who file for divorce often fear that they will lose custody of their children to their abusive spouses or lose their economic security if their spouses are awarded all the money and assets. This is a truly terrifying situation.

If your abusive spouse is contesting aspects of a custody arrangement, visitation schedule, or property division, you should speak with an experienced attorney immediately. Law Office Of Robin Yeamans has represented many victims of domestic violence with a proven track record of success.

Domestic violence can be physical, mental, or emotional. Abusers employ these forms of violence to instill fear and control their spouses’ lives and actions.

If you are a victim of domestic violence preparing for a divorce, it is vital that you keep records of the following:

All financial information. Keep secret copies of financial documents in a place where your spouse cannot find them.

  • Written records of all interactions with the abuser, including exact times and dates of the incidents. Record dates and times when children are picked up and returned, dates and amounts of child support payments, and any violations of court orders of protection.
  • Documentation of abuse, including police reports, medical records, photographs, and claims for crime victim compensation if they exist.
  • A certified copy of your marriage certificate.
  • Rent receipts, bank statements, utility bills, credit card records, and children’s report cards.
  • The court will refer to these documents to decide on the division of your marital property and custody arrangements or visitation. The documents will also be useful to support your case if there are future incidents of abuse.

At Law Office Of Robin Yeamans, we will stand with you and help you fight for your rights. Our attorneys will do everything possible to ensure safety and financial security for you and your children. You do not have to face these frightening challenges alone.

Contact Law Office Of Robin Yeamans to speak with a trustworthy, knowledgeable attorney today.

PHYSCOLOGICAL TESTING

This is an area where Robin has a great amount of experience and expertise. See the video. The video is not technologically outstanding, but the information is superb.

People often think their ex is nuts, and a psych eval will show how crazy the person is. This is usually a wrong assumption. The most frequently used psychological test, the MMPI-2 is based on 1930’s psychological concepts and doesn’t test for narcissism, PTSD, ADHD, and other modernly recognized issues.

When a custody/visitation recommendation purports to be based on psychological testing, the raw data and any printouts need to be obtained. Most people would be surprised to learn that not only the MMPI-2 but the Rorschach (inkblot) test is subject to computerized scoring, which may have its own biases built into it. To determine whether or not a psych eval is wrong, all this information must be obtained and analyzed—and this can’t be done in the month before trial. It has to be done a sufficient time in advance.

Custody Hearing Procedures

CUSTODY JURISDICTION

An Order to Show Cause or Trial is scheduled by the court in which the matter is filed. Often, the hearing will be set at least two months away. Many courts require the parties to attend Conciliation Court prior to any hearing on custody: the date of Conciliation Court must be scheduled when the Order to Show Cause is filed. (If you are filing in Los Angeles, the client may attend Conciliation Court at any courthouse, not just the one in the district where the action was filed.)

UNIFORM CHILD CUSTODY JURISDICTION ACT

These are the purposes of the UCCJA:

  • To avoid jurisdiction custody conflicts between states.
  • To promote cooperation between different states.
  • To provide for litigation to take place in the state with the “closest connection” to the child.
  • To discourage continuing controversy by encouraging binding decisions.
  • To penalize parents for “abductions and other unilateral removals of children.”

The UCCJA applies to custody and visitation and includes juvenile dependency, guardianship, and stepparent adoption cases. It has been adopted in every state and in the District of Columbia, but not in Puerto Rico and the Virgin Islands. Because it is a uniform act, state court interpretations may be cited as the authority. The provisions of the UCCJA apply in international custody disputes, even though foreign jurisdiction does not follow the UCCJA.

The UCCJA maintains that the child’s home state or “recent home state” (the home state if not for a recent abduction) is the preferred forum to determine custody. Thus, the state can assume jurisdiction if it is now, or if it has been within six months prior to the commencement of proceedings, the child’s home state.

A court may exercise jurisdiction in the following circumstances:

When a child and at least one contestant have a significant connection with the state and substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is available in the state.
If it is in the best interest of the child and no other state has jurisdiction, or if another state has declined to exercise jurisdiction on the grounds that the first state is a more appropriate forum.
If the child is physically present in the state and has been abandoned, or if the child must be protected because he or she has been subjected to or threatened with mistreatment or abuse, or is otherwise neglected.

EMERGENCY SCREENINGS AND HEARINGS

In Santa Clara County, when a child’s safety is in question, a judge may order Family Court Services (FCS) or, rarely, a private evaluator, to conduct an “emergency screening.” The goal is to determine the level of danger and take immediate steps to rectify the situation. This is not a mini-evaluation but literally an “emergency” screening.

The real issue arises for a parent who doesn’t agree with the screener’s recommendation. The judge will have calendared the cast to permit at most an hour of testimony. The FCS screener testifies first, and if a litigant disagrees with their recommendation, the party will want to cross examine the “expert.” Then the other party testifies. Maybe 15 minutes are left for the litigant to express his/her concerns. The whole hearing is set up in such a way that the screener’s recommendation will virtually always be adopted, and fighting it is very difficult.

It helps if one knows this in advance, and Robin has fought recommendations at such truncated hearings and won. To fight in a very rapid manner requires preparation and understanding the process as it exists here.

PARANTAGE CASES

It is not at all unusual for people to have children without marrying. California law treats children of a marriage or a non-marital relationship the same way. Custody/visitation are set the same way (once a person is determined to be father), and child support is set the same way.

However, a judge may allow less inquiry into a non-married parent’s finances than would occur within the context of a divorce.

Divorce records in California are public, and they are often on line; this is a convenience for litigants who can check their cases on line. However, unmarried parents’ records are confidential, and those files are considerably more difficult to access

ADD/ADHD

In families of divorce, often one parent will believe a child has ADD/ADHD, and the other parent is very opposed to the child being labeled and very opposed to medication. Each parent may feel he/she is virtually fighting for the child’s life, and the issue can spiral out of control in court.

There are ways to resolve these issues which include the parents and teachers and possibly others filling out questionnaires as well as individual psychological tests for a child. These tests determine things like whether the child processes information slowly. A good plan of action usually is to make reasonable environmental/behavioral changes and then reassess. If the child’s education is passing them by, or their behavior is extremely out of control after an ADD/ADHD diagnosis, medication should be considered.

The other issue which has to be addressed is whether the child has suffered trauma and may have PTSD (post-traumatic stress disorder). One symptom of PTSD is hyper arousal. So it is important to determine whether the child’s “hyper” symptoms are caused by ADHD or whether they are the result of PTSD following trauma.

Issues like this should not be ignored. They can be resolved reasonably, and if a parent simply won’t cooperate in the resolution, the court may need to step in.

CHILD CUSTODY

Many lawyers aren’t interested in child custody and prefer financial cases as being calmer. Our office is particularly interested in custody/visitation cases. Robin is a parent and has amassed a considerable knowledge of issues like psychological testing and child development.

Robin has presented to judges and attorneys for minor children on the subject of psychological testing. When people have received an unfavorable custody/visitation recommendation and come to us, Robin usually subpoenas the evaluator’s entire file and takes their in-person deposition. She doesn’t just ask questions from a commonsense point of view but based on the psychological literature and studies.

EXPERT DEPOSITIONS

If someone has received an expert recommendation that is unfavorable to them, Robin has a method for attacking the recommendation. First, the expert’s entire file is reviewed and analyzed. Many lawyers need to hire an outside paid consultant to do this, but Robin generally is able to do this without a consultant. Then the deposition of the expert will be set, and he/she will be examined under oath about the professional and factual bases of the opinion. Finally, an independent expert may be hired to testify against the deposed expert. It is very difficult to overcome the recommendation of a court-designated expert, but Robin has done it.

All this absolutely cannot be done at the last minute before trial. This is a long process and must be commenced long before trial, preferably shortly after the recommendation is received.

PHYSICAL AND LEGAL CUSTODY

Physical custody refers to physical responsibility for the care of a child. Joint physical custody means that both parents have significant periods of physical custody, although the time arrangements can be disproportionate (such as one parent having the children on alternate weekends and the other parent having them the rest of the time). Sole physical custody means that the children live with one parent all the time, although the other parent may have visitation rights.

Legal custody refers to decision-making authority over the children’s lives. Joint legal custody means that both parents have the authority to make decisions regarding the children’s education, health care, religion, etc.
A report of child abuse can result in the accused parent losing custody or shift jurisdiction to the dependency court. In such cases, the parents may need to retain counsel specializing in this area of law.

Custody litigation subjects the parents to close scrutiny: their actions and words will be reviewed and judged. Such battles are often very time-consuming for attorneys and clients, and therefore expensive.

APPLEAL IN FAMILY COURT

Differences between a “writ” and an “appeal.”

If your order is one from which an appeal can be taken, then the only remedy is appeal, and the Notice of Appeal must be filed within short time limits.

In some cases you do not do an “appeal,” you file a writ. Unlike the appeal, the writ is based on the documents you choose to attach. This CAN INCLUDE MATTERS NOT “ON THE RECORD.” You attach the evidence, which can include papers filed with the court, to the writ. Some writs have a specific deadline set by statute, and others are “common law” writs, for which there is no specific deadline, but if you file them more than 60 days after the problematic order/judgment, you need a good reason for the delay.

In general, a writ proceeds more rapidly than an appeal, but the appellate court will not grant a writ just because you want a fast outcome. You have to show that you have “no adequate remedy at law,” that is, that for some major reason appeal is inadequate. In general, merely having to pay money, or “merely” having your child in the custody of the wrong parent does not amount to a showing that appeal is an inadequate remedy, even if it will take a year or two. If you can appeal, then you must appeal.

Thus, the first question in an appeal (aside from when the Notice of Appeal is due) is: Do you have an “appealable” order/judgment? To answer that question, you probably need a consultation with an appellate attorney. To arrange a consultation with Robin Yeamans please call (408) 867-8137.

Since 2004, Robin has been an Appellate Law Specialist,* making her one of only a handful of California attorneys who specialize in both California family law and appellate law. Robin Yeamans can help you in three ways: (1) represent you on appeal within California, that is, challenging a recent court order that is unfavorable to you or which your ex has appealed; (2) through this website provide self-help legal materials on how to present your case convincingly to the court as well as challenging attorneys’ bills and dissecting child custody evaluations; (3) analyze your custody psychological evaluation throughout the US and do a deposition of the evaluator. While Robin Yeamans represents litigants at the trial level in custody cases, she does this only in Santa Clara County or in consultation with your attorney in other counties.

For more information on Appeals click here: http://www.divorcecal.com/appealsinfamily

BORDERLINE PERSONALITY

People often wonder if it’s “borderline” personality disorder, what’s it on the border of? In old terms, it was thought to be on the borderline between neurotic and psychotic. Nowadays, that isn’t the issue. The question is whether the person has a certain set of symptoms, listed in the DSM.

People with true borderline personality disorder have rage storms that come from nowhere. Sometimes an abuser will say their spouse is “borderline,” but further investigation indicates that the spouse’s anger was caused by abuse, not by psychological problems. In other cases the true borderline may simply have irrational rage storms that sweep in like a wind and are not based on anything currently going on in the external environment.

Borderline people have issues with closeness, and life with them often involves a dizzying interpersonal push-pull motion. First, the borderline feels lonely and pulls the other very close. This makes the borderline feel smothered, like they’re losing their identity. The borderline then gives the other person an emotional shove away. This brings the feeling of emptiness back and begins the cycle again. These folks are hard to live with.

I recommend two books on this subject:

I Hate You, Don’t Leave Me: Understanding the Borderline Personality by Jerold J. Kreisman and Hal Strauss–This book gives good advice on how to deal with a borderline as well as a good description of the condition.

The Abusive Personality: Violence and Control in Intimate Relationships by Donald G. Dutton (2002)— This book shows the similarity between being an abuser and being a borderline. This is the only book by this author that I recommend.

PTSD

A lot of litigants, particularly ones who have been abused, have PTSD. The three most common symptoms are:

  • Hyper-arousal (sleep disruption, buzzing about as if one were hyperactive);
  • Re-experiencing (nightmares, intrusive thoughts); and
  • Numbing-avoidance (which was the only way to live through the trauma in the first place).
    Particularly the symptom of avoidance may make it almost impossible for the traumatized litigant to confront the issues that need to be faced in the divorce.

Please view this excellent PDF by Robin Yeamans on the effects of P.T.S.D. in divorce:
http://www.divorcecal.com/siteAssets/site8725/files/PTSD_scanned_horizontally.pdf

NARCISSISM

Some diagnoses and characteristics are more toxic in parents than other diagnoses—and narcissism in a parent is very hard on a child. It can express itself in a million ways. For example, the parent will go outside in the winter and put on their own jacket but not even think of the shivering child needing a jacket. The narcissist’s children are like things to him/her—like decorations he/she might wear.

A major problem is that our society is geared towards producing narcissists. I recommend The Culture of Narcissism: American Life in an Age of Diminishing Expectations by Christopher Lasch (1991) to understand the societal causes of narcissism and how it expresses itself.

For advice on how to deal with a narcissist I recommend Malignant Self Love: Narcissism Revisited by Sam Vaknin and Lidija Rangelovska (2001). This book is neither entirely consistent nor reflective of scientific research, but it has some handy insights. For example, if you want to get rid of a narcissist, the message to convey to him/her is: “You bore me.”

I believe a narcissist puts up a great fake front to cover his/her terrible, low self-esteem. The self-esteem gradually shrivels smaller and smaller—until it’s like a tiny raisin. But a raisin covered up by a huge fake cover. The raisin is the private self. The fake front is the public self. These two are completely different. If someone hasn’t lived with people who have one public self and a completely different private self, it’s hard to believe they both exist in one person.

Unfortunately, manipulative and charming narcissists can slither into court or into the psychologist’s office and bring them under their narcissistic spell. They’re hell to live with, but in the 10 minutes when they face officialdom, nobody is sweeter or more appealing—men and women. These people can be dealt with in court, but one has fully to understand them.

BI-POLAR, MANIC DEPRESSIVE

The major feature of bipolar disorder, which was earlier called manic-depressive disorder, is wide mood swings from depressed to manic. In the depressed stage the person may be deeply depressed and “not be able to get out of bed,” not able to deal with daily duties. The manic phase tends to express itself in men as bouts of raging anger and in women in wild spending and gift giving sprees although both genders do both things. In both genders in the manic phase they are strongly motivated in a sexual way. They may also be grandiose with “flight of ideas.” Medication can be very helpful to people with bipolar disorder, but they tend to quit taking their meds.

Issues of child custody and visitation are problematic with a bipolar spouse or ex-spouse. When they’re in the depressed phase, they can’t get up and care for children. When they’re in the manic phase, they may hurt the children or subject them to bizarre experiences, terrifying the children. Due to denial, the person with the bipolar condition will strongly tell the court personnel about how it’s not a problem at all and they truly do believe this.

CONTEMPT

Robin has both defended from and prosecuted OSC’s re contempt.

One who is prosecuting a contempt is in the position of a District Attorney and must prove all elements beyond a reasonable doubt, and the other party has the right to remain silent. So the on pursuing the contempt must be ready to prove every aspect of the case even if the other party refuses to testify. This can involve subpoenaing records.
The elements are:

  • There was a valid court order/judgment.
  • The accused had knowledge of the order/judgment.
  • The accused had the ability to obey.
  • The accused willfully violated the order/judgment.

Whether you are prosecuting or defending, each of these elements must be examined in detail.

Link: http://www.divorcecal.com/contempts

DEPRESSION

Any divorce lawyer deals with a lot of depressed people. However, expertise is required because depression is the one mental illness that can readily be fatal as depressed people may commit suicide. On the other hand, most of the people in divorce who are depressed certainly don’t do this. The expertise is necessary to figure out who may hurt themselves. This isn’t easy, but in more than 40 years Robin has never lost a client to suicide—or, for that matter, an opponent to homicide.

Some people in divorce are afraid to have their depression treated because they fear the judge will thing they’re crazy. This is the wrong attitude. At least where we practice, in Northern California, it is very unlikely that a judge would hold it against a litigant that they were getting treatment. Indeed, the judges want people to get therapy and might well consider this to be a favorable factor. Depression is one of the most treatable mental conditions, and taking med’s for a short while to get through the difficult ending of a relationship would usually not be considered unfavorably at all.

CHILDREN WITH ASTHMA

Judges usually don’t realize how potentially dangerous asthma is and that it can be fatal. They need a presentation to educate them in this.

It’s not unusual for one parent to be very concerned about asthma treatment and for the other parent to be in complete denial, and in general in spite of facts and evidence, neither party changes their beliefs. The important thing is to educate the judge on these issues.

Asthma is a condition where it is important not just to avoid emergency room visits but in general to keep the condition well under control and ensure that the child always has an emergency inhaler. Of course, as so much of the treatment is steroids, it is important to use as little medication as will thoroughly control the asthma as possible.

Asthma is often related to allergies, and if one parent has a dusty house full of pets, and the child gets symptoms as a result, those conditions need to be addressed. It is possible that the child doesn’t make a parent aware of, say, a sinus infection until returning to the neat and tidy home—and then the other parent accuses the tidy parent of making the child sick as in Munchhausen’s by Proxy. If the reality of the child’s condition can be addressed to avoid such issues, that is preferable. If it comes to something like a Munchhausen’s issue, the important thing is to keep the focus on facts rather than on name-calling.

CHILD ABUSE

Child abuse is very difficult to address in the context of divorce. Although many, many children are abused, and we know this, including sexual abuse, when the issue is raised during a divorce, the judges are suspicious that the claim is fabricated to gain an advantage. Even when one party (usually mom) has a custody order, even if they have been allowed to leave the state, when the issue of abuse, especially sexual abuse, arises, the court tends to go into denial and to attack the parent who raises the issue. And this is true even when the parent themselves did not make the accusation but a pediatrician, teacher, or counselor is the one who reported it.

Prof. John E. B. Myers has a superb book about the double bind nature of the problem of child abuse. If a parent calls CPS, they are accused of false reporting. If they don’t call, they’re accused of failure to protect.

http://www.amazon.com/Mothers-Nightmare-Practical-Professionals-Interpersonal/dp/0761910581

In California a parent has a right to copies of their CPS (Child Protective Services) reports, and we have you immediately obtain these. This was a change in the law. But CPS does not operate transparently, and cases in Santa Clara County are heard in complete secrecy. The best way immediately to improve that entire situation would be for the juvenile courtrooms to be opened to the public, and the other, but more difficult, change would be to cut off federal funding that pays only to adopt out children, not to repair families.

We know who are the best child-abuse experts in the country and are prepared to take on false experts who just support abusers for money. Judges and others often think that sexual abuse always results in provable physical injuries to the child if it’s true. Experts are needed to debunk these erroneous ideas. See www.leadership council.org for such information.

A really problematic but popular book by Kathryn Kuehnle sets forth a proposed method of evaluating child abuse—which almost guarantees that abuse will never be found. For example, she sets forth three requirements one of which is having an independent witness to the abuse. Right, a lot of sexual abusers perform their crimes with a witness present. The unprofessional approach used in this book kicked off a 3-volume debate in the Journal of Child Sexual Abuse. We keep current on the professional journals and issues they reflect. And the authors of articles may in appropriate cases be contacted as potential experts in abuse cases, or the articles can at least be used in cross-examination.

These cases cannot be approached merely from the standpoint of an attorney’s common sense but require expertise and study.

CHILD SEXUAL ABUSE

This is an extremely volatile area of family law. If a judge feels such an accusation is not valid, the judge may well punish the make of such an accusation very severely, including imposing a strict limit on contact between the accuser and the child.

Some people feel it is as bad to make a false accusation as it is to molest a child. I do not agree with that. To think that one must have skipped the research on this subject, and they haven’t dealt with the molested children and their tremendous range of problems.

If someone believes their child has been molested, and the parents are in the course of a divorce or are divorced, one has to be very careful in handling the matter. If there is any significant delay in having the child interviewed by a professional, the parent who thinks something happened may be accused of “coaching” the child. Of course, if a child reports something of concern, the parent is going to talk with them (and any other children) about it. Even well-meaning parents don’t know how to interview a child in such a situation; asking questions that suggest answers can create a huge problem. If this problem arises, it is important to see a capable professional immediately.

A parent can find themselves in a “double bind” in a sexual abuse case. If they report the abuse to CPS, they may find themselves accused of making false accusations. If they don’t report, CPS may take the child(ren) for failure to protect. I recommend A Mother’s Nightmare – Incest: A Practical Legal Guide for Parents and Professionals by John E. B. Myers (1997) which discusses this double bind.

People don’t want child sexual abuse to exist, and they certainly don’t want to hear about it. Mental health professionals and judges are not immune from going into denial to avoid this reality. This is not to say that false charges are never made; I have experience disproving such charges. But in general people’s natural reaction is to go into denial, and it can be very difficult to protect young children.

DIVORCE (CONTESTED AND UNCONTESTED)

We represent people in all types of divorces, from entirely agreed on, to the most conflicted cases. Sometimes a client arrives thinking they can mediate an agreement, and the case blows up into a terrible fight. Because we handle all types of cases, we don’t abandon someone when the fight arrives. We hunker down with them, make a plan, and, when appropriate, come out fighting.

ASTHMA

Asthma in children in intact families is usually not a problem. In families of divorce the problem can be grave, as asthma is potentially a fatal illness. Of course, the problem of allergies flaring up the asthma is related.

I obtained an excellent power point from an MD, which shows how important it is to keep asthma under control. When asthma is not controlled, it can become very dangerous. Often, one parent may not understand this.

The courts tend to feel that after divorce each parent is entitled to have his/her home the way he/she likes it—including some degree of dust, pets, etc. So judges are hesitant to address conditions that aggravate allergies and asthma—except smoking. They are more likely to issue an order that the child not be around second hand smoke than other problematic substances.

This problem can lead to another problem—accusations of Munchausen by Proxy, if one parent alleges symptoms, and the other denies any problem. When that happens, allergy tests should be done, and other ways of ruling out medical issues should be used rather than labeling one parent.

PARENTAL ALIENATION

There are two types of alienation: real and that fabricated as an excuse for abuse. Sadly, real alienation is not uncommon in divorce as one parent may have no idea that a child needs both of its parents. When this occurs for real, the resources of the court in rectifying the situation are fairly limited as just changing a visitation schedule won’t resolve the problem.

When a child is angry with someone who has been cruel or abusive, this does not reflect alienation (or solely alienation) but a problem in the relationship. Too many times children who complain of mistreatment are ignored, or worse, their time with the non-abusive parent is cut down.

When alienation is alleged, a factual investigation of the matter should occur. One should not assume that just because a child speaks negatively of one parent, it is the other parent’s fault. Families vary, and each one’s situation should be carefully examined.

There are names short of “alienator” such as “gatekeeper” with which the favored parent may be branded. These issues, too, must be factually investigated. Did one parent “gatekeep” so the other parent couldn’t be involved, or did both of the parents agree to a division of labor where one earned the income while the other was with the child?

Avoiding labels and stereotypes is particularly important when these issues are raised.

CHALLENGING ATTORNEY’S FEES

Our office has a video that helps clients challenge fees of their former attorneys. Most clients who try to do that either by fee arbitration or in court takes a self-defeating approach in that they claim their lawyer charged them too much and should have done more work on their case. Unfortunately for them, it is self-contradictory to say that the lawyer charged too much (did too much work) and should have done more.

Instead of those generalized complaints, our video shows how to attack the specifics of attorney bills. For example, “lumping” is the practice of including more than one item in a billing entry. If an attorney bills for “conference with client and draft letter to opposing counsel,” the client cannot determine how much time was billed for the conference and how much for the letter. This practice is disapproved by the bar association.

The video calls attention to a State Bar advisory on “How to detect bill padding.” Showing that an attorney’s billing practices are described by this advisory is devastating.

People who’ve used the video have often said that it helped and they were happy with the result of fee arbitration where they followed our advice—even though the video is low tech, the content is high quality.

For additional help and resources please click here: http://www.divorcecal.com/shop

BECOMING A CLIENT

CONTACT US

CONTACT US

INTAKE PROCESS

INTAKE PROCESS

LIMITED SCOPE

LIMITED SCOPE

CONTACT INFORMATION

contact-info-1Having served confused and distraught clients for more than 2 decades, Robin Yeamans is not only experienced but has also proven consistently that she is naturally adept in handling tough legal situations. Despite all her achievements, Robin Yeamans still remains approachable and easy to talk and share your problems with. Female or male, child or adult, Robin Yeamans has a way of reaching out to her clients who have now become some of her long lasting friends.

Ever since Robin became an Appellate Law expert in 2004, she has the credibility of being only one of three attorneys who are California family law and appellate law specialists. With time, Northern California-based Robin Yeamans’ practice may have seen more of California family law appeals, but she still remains a formidable name in all aspects of California jurisprudence.

In 1969, Robin Yeamans graduated from Stanford Law School and in the next year she began her legal practice in the state. Robin Yeamans through her lifelong dedication has shown that not only is she a top notch attorney but also that she works tirelessly to achieve the best possible outcome in your case.

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Arthur Lin, Of Counsel:

The Arthur Lin practices exclusively in family law in Santa Clara County, San Mateo County and Alameda County. His main focus is providing personal attention and service in the complex family disputes. He personally talks to each one of his clients to guide them through the emotional stage in their family law case.

He specializes in the following fields:

  • Divorce / Dissolution
  • Child Custody and Visitation
  • Child Support
  • Spousal Support / Alimony
  • Property Division
  • Prenuptial Agreement
  • Domestic Violence
  • Restraining Order
Send Us A Message:

Law Office Of Robin Yeamans
Family and Appellate Law Specialist
Arthur Lin, Of Counsel
Speaks Mandarin
Office Hours: 10 am. to 5 pm.
(Monday – Thursday)
Friday: 10am to 12 pm.
Phone: 408-867-8137
Fax: (408) 608-1933
Email: KTE@divorcecal.com
Initial Consultation $500.00 Will Be Credited To Retainer
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Email Us Now!

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What is: *86 + = 89

INTAKE PROCESS

intake-processWe do two kinds of initial consultations. We don’t do ‘free’ consultations, as free consults are not actually consultations at all but basic fact finding missions before the lawyer tells you what your case would cost to put on and asks for the retainer fee.

What we do is send out a blank intake form, which you fill out and PDF or fax back to us. You put all relevant information, plus you can write a summary of your situation, and include any reasonable amount of paperwork that would assist us in reviewing your case. THEN you have an appointment with Ms. Yeamans. By telephone the cost is $300 per hour, billable to a credit card or MC/VISA debit. It comes out to $5.00 a minute, and it’s not a flat fee. We only bill for the time you actually speak to Robin.

The other type of appointment we have is a face to face at Ms. Yeamans office in Campbell. Her rate is $500 per hour, payable at time of service. We do take all major credit cards, including American Express, and Visa/MC logo debit cards.

The advantage of what we do over others is that Ms. Yeamans has actually already reviewed your info, which amounts to ‘free’ time in advance, and your appointment becomes a working appointment geared toward making the next move in your case.

If you are still interested in meeting with Ms. Yeamans, please give our office a call during business hours and we can schedule a phone or in person appointment.

LIMITED SCOPE

Problem: You need an attorney, but you can’t afford one
Solution: Using a Notice of Limited Scope, have attorney do only part of your case

Have an Attorney Represent You for Only One Issue or Only One Hearing Lawyers can do “limited-scope representation.

limited-scopeBeginning in July 2003, California adopted a Notice of Limited Scope Representation form (FL-950) which permits lawyers to be the “attorney of record” for only one issue (such as child custody/visitation or child support) or for a limited hearing (such as the hearing set to occur on Dec. 30, 2009). (See Rules 3.35-3.37 and 5.70 and 5.71.) This way people who cannot afford an attorney for the entire case can afford an attorney to come to one hearing or do a part of their case. For example, Attorney Yeamans often does only discovery regarding your custody/visitation evaluator—obtain all their documents regarding your case, take their deposition and/or examine only them at hearing or trial.

Caution: Lawyer may have to study entire file to represent you at only one hearing

If you have a long history of conflict with your ex, and a visitation motion is pending, in order to represent you, the lawyer would have to learn this long history not only by talking to you but by reviewing a multi-volume (or multi-box) file. This is expensive. You might decide to have Attorney Yeamans only write up one set of papers for you instead of having her review the entire file. This office crafts its services to fit your budget, understanding that many litigation budgets are limited.

Sometimes it is more effective to represent yourself

If you have something coming up, such as an emergency screening, that is completely dependent on a detailed factual knowledge of your case, it is sometimes better for you to continue to represent yourself at that than to send in a lawyer. If a lawyer not wholly familiar with your entire life rushes into an emergency screening, the other lawyer or your ex begins making a lot of accusations, and the newly retained lawyer has no way to answer them because there was no way to anticipate them. You, being familiar with your case, could answer them the minute they’re brought up to you, and sometimes this timely response is absolutely necessary.

Who cannot represent themselves
  • People with heavy accents who cannot always be understood may need to have an attorney, or they may need to bring a translator to the hearing. Even though you may speak English well enough for daily purposes, the stress and rapid pace of court may mean you need a translator so everyone can tell what you’re saying.
  • People who have ADD, ADHD, or PTSD related to the divorce may need an attorney.
  • Of course, many other people cannot represent themselves, but these surely cannot.
Attorney can write your papers and not be disclosed

If you cannot afford for the attorney to come to court, or if it is better for you to represent yourself, Attorney Yeamans can write your court papers for you, and you do not have to disclose that she has helped you. (Rule 3.35(c)(2).) However, if you want to request that your ex pay attorney fees for these services, you will be required to disclose various facts about the attorney’s services. (Rule 3.37(b).) If you do not make a fee request, the attorney’s assistance to you need not be disclosed. Of course, if the papers are written using language you would not know, your ex can figure out that you obtained help from somewhere. However, sometimes in trying to keep conflict to a minimum, it can be helpful not to disclose that you’ve consulted counsel; otherwise, your ex might feel compelled to obtain their own counsel, and things can escalate from there.

Conclusion

Even if you cannot afford counsel to do your entire case or to appear in court, you can obtain some form of limited-scope services by contacting Attorney Yeamans as (408) 867-8137. Our office prefers to render services that are cost-effective for you. Services like sitting a courtroom waiting (for which attorneys must either charge or go broke), continuing appointments/hearings, etc. are not particularly gratifying to us as this office prefers to provide you with services that meet your needs but minimize your costs.

SUPPORT AND EDUCATION

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MEDIATION

California law requires that you attend mediation before the court can make a custody/visitation order, unless there is a life-threatening emergency. Even if both parents and the judge feel it’s hopeless, and there will never be an agreement, this is the law, and you must go to mediation.

Some counties (not Santa Clara) have “reporting” mediation, which means that if you don’t reach an agreement, the mediator will make a custody/visitation recommendation to the judge. So at mediation the one who postures best tends to prevail, and, not unusually a narcissistic abuser is much better at that. Happily, in Santa Clara County we have confidential mediation where the mediator doesn’t make a recommendation, and, indeed, their notes are sealed in the FCS file. My explanation here is about the process in only Santa Clara County.

In Santa Clara Count the first step in the process is to attend an orientation class, which is where FCS tells about the custody process and encourages sharing of child(ren). It is important to listen to this as it gives you an idea of how FCS personnel think.

You go to mediation at FCS unless you both agree to a private mediator, and even if you do private mediation, the judge may make you repeat it at FCS.

The mediator is supposed to be a person educated in counseling and with training about children’s needs. The mediator is not, however, familiar with your case. Unless you have been to FCS previously, the mediator will not have any information about your family until you give it to them at mediation.

The mediator will NOT make a decision or a recommendation in your case. Their job is to help you and your spouse reach your own agreement. That is the advantage of mediation: YOU retain control of your life, if you and your spouse can agree. If you go beyond mediation, you do lose some control over your children, and you may find a judge making decisions you would prefer to make yourselves.

While the purpose of mediation is to help parents reach an agreement, you do not have to agree to anything. You must stand up for yourself and for your child(ren). Lawyers are not allowed, so you must do it yourself. Do not say you agree to something that you really can’t live with.

If you have been a victim of violence and have a restraining order in place, Family Court Services will allow you to bring a silent support person with you to mediation. They will also allow you to meet separately from your spouse if you want. FCS will have you fill out a DV questionnaire, and this document is very important. Although it is “confidential,” at a later stage in the proceedings it may be discovered.

Experts recommend against any mediation in domestic violence cases. Nonetheless, you are required to do this.

Attempting to mediate with an abusive spouse is usually not productive. You are still required to try, but if your spouse has abused you verbally or physically, you should not place a lot of hope on mediation. You should not fall back into your old habit of saying, “Yes, dear.”

Before the date of the mediation, you should make a written list of what you want, so you don’t overlook things in the emotions of confronting your spouse. Among other things, you should list specific holidays and specify which parent gets the child. I would suggest that you be sure to include the child’s birthday, Mother’s Day and Father’s Day. Also list major holidays to divide. (Don’t overlook Halloween which most mediators don’t mention, but which is important to children.)
The main problem we run into in mediation cases is that the client may misunderstand the mediator’s goal. The mediator is not trying to get a fair agreement. They are trying to get ANY agreement that you and your spouse may make. Unfortunately, this may mean that the mediator will figure out which of you is more aggressive, and then join with the aggressor to smash the passive one into an agreement; they will then believe that they have done you the favor of saving you from an ugly trial. Of course, if you are the passive one, particularly if your spouse is abusive, you may well find the mediator exerting emotional pressure to force you to enter into an agreement that you really don’t agree with. The bottom line is that if the proposed agreement is harmful to you or your children, all you have to do is: Just say no.

If you reach an agreement at mediation, this will not be a temporary agreement. The order is expected to be a long-term order. You may have had a temporary order or series of orders. This does not mean that the order you are entering into at mediation is only temporary. It is not just another order in a long string of orders. This is basically the end of the road for a year or two or longer unless something dangerous or harmful arises before that time.

After mediation if an agreement is reached, Family Court Services will write up the agreement and, they will hold the order a very few days after mediation and then submit it to the judge for signature unless we object to it in writing in that time period.

TRIAL LEVEL HELP FOR UNREPRESENTED PARTIES

DEFINITIONS AND GROUND RULES

DEFINITIONS AND GROUND RULES

OSC & MOTIONS

OSC & MOTIONS

SERVICE OF PROCESS

SERVICE OF PROCESS

DISCOVERY

DISCOVERY

CALCULATE CALIFORNIA CHILD SUPPORT

CALCULATE CALIFORNIA CHILD SUPPORT

DEFINITIONS AND GROUND RULES

VOCATIONAL EVALUATION SAMPLE

SETTLEMENT CONFERENCE

SETTLEMENT CONFERENCE

MOTION TO CONTINUE

MOTION TO CONTINUE

TRIAL

TRIAL

HOW TO BE A WITNESS

HOW TO BE A WITNESS

MODIFY JUDGMENT

MODIFY JUDGMENT

RESTORE FORMER NAME

RESTORE FORMER NAME

ENFORCEMENT CONTEMPT

ENFORCEMENT CONTEMPT

GRANDPARENTS RIGHTS

GRANDPARENTS RIGHTS

LINKS

LINKS

DEFINITONS AND GROUND RULES

Definitions and Ground rules for Your Survival in Divorce Court

“Divorce” or “dissolution”–does it matter?

In 1970, when the California state legislature eliminated fault in divorce and began no-fault divorce, officially the term in the state laws changed from “divorce” to “dissolution of marriage.” However, most people and lawyers still use the word “divorce.” (You just don’t hear someone saying, “My marriage was dissolved.” People say, “I got divorced.”) This website is intended for non-lawyers, and it uses the terms “divorce” and “dissolution” interchangeably as there really is no practical difference today.

Always keep a copy!

One rule that applies to everything that is said in this entire website is: You never give away your last copy of anything. If you give evidence to your lawyer, get a copy. If you have to give papers to the court clerk, keep a copy. Never, never give away your last copy.

Get endorsed copies when you file papers
homepage-level-help-1-1If you are representing yourself, whenever you file papers, be sure to have copies with you, and have the copies stamped endorsed to prove they have been filed. Whenever you file copies, the clerk stamps the upper right-hand corner with the court’s stamp, showing the date on which the document was filed. The clerk will also stamp your copies so you can prove they were filed and prove the date of the filing. Copies stamped like this are called “endorsed” copies. Be sure to keep at least one copy of each paper that is filed with the court; make sure you have an “endorsed” copy of each paper in your own records.
You may want to make one extra copy of everything

At various places, this website indicates how many copies you should make of a particular paper to be filed with the court. The number of copies indicated is the minimum number of copies the court will require. However, it never hurts to take an extra copy (in addition to the numbers indicated in this website) so that if the rules just changed (and everything in Family Court changes constantly), and the clerk suddenly demands an extra copy, you do not find yourself without a copy. If the clerk at some point in this process surprises you and asks for an extra copy, and this will leave you without a copy, do NOT give the clerk your papers. Go out, make an extra copy, and return. You never give away your last copy of any paper.

Go look at your file in court and on the internet

Every month or so, go down to the courthouse, and look at your file to be sure that you have a copy of everything that has gone into the file. You need your case number, which appears on each document that is filed with the court, and you can go to the courthouse and look at your own file. In addition, many courts have websites that permit you to monitor your file, and you should do this more often that once a month if your case is in active litigation.

Don’t miss out on court

If you have an attorney, whenever your attorney is in the courtroom, you should be in there too. You need to be sure that your attorney is representing you vigorously, and you need to know what is happening. If your attorney suggests that you can wait in the hallway, politely tell the attorney that you’d like to see what is happening in court, and go in too. It’s scary, but it’s important.

Papers should be typewritten

Some courts will accept handwritten papers. It is required by state rule that court papers be typewritten. However, if the document is typed, the court will occasionally accept a form that has a small amount of handwriting on it. Some even accept completely handwritten forms, but it is better to be safe and type them. Many courts and libraries have typewriters available for public use. These are California State Rules of Court regarding typing and handwriting papers:

Rule 2.104. Printing; type size.

All papers must be printed or typewritten or be prepared by a photocopying or other duplication process that will produce clear and permanent copies equally as legible as printing in type not smaller than 12 points.

Rule 2.135. Filing of handwritten or hand-printed forms

The clerk must not reject for filing or refuse to file any Judicial Council or local court form solely on the ground that:
(1) It is completed in handwritten or hand-printed characters; or
(2) The handwriting or hand-printing is a color other than blue-black or black.

State and Local Rules

Not only are there California State Rules of Court (www.courtinfo.ca.gov/forms) but all large counties have local family law rules. You cannot represent yourself without getting these rules and reading the part that applies to you. If you have counsel, you can help your attorney better in some cases if you are familiar with the local rules, particularly the ones regarding settlement conference statements. These local rules are of supreme importance in your case. You can obtain a copy of your local court rules by going to Google or other search engine and locating your county court’s home page.

Judicial Council forms
homepage-level-help-1-2The Judicial Council includes the Chief Justice of the California Supreme Court and other persons specified in Article 6, Section 6 of the California Constitution. The Judicial Council prepares approved printed forms that are used throughout the state in dissolution cases. You use a typewritten, individually prepared form only if there is no applicable printed Judicial Council form. To obtain these forms you go to www.courtinfo.ca.gov/forms.
Typewritten forms

Some forms in this website that are not Judicial Council forms are simply typed on ruled paper that has 28 numbered lines. You can copy it and use the copies for typewritten, non-Judicial Council forms.

All original forms must be on recycled paper

Beginning January 1, 1995, it became a requirement that all original forms filed in a California court must be on recycled paper. Copies, however, need not be on recycled paper.
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You can complete the divorce even if your spouse will not cooperate in any way

Nothing in the divorce process requires your spouse’s cooperation. For example, if he/she will not give information, you obtain it by subpoena or get a court order that he/she cannot introduce any evidence on the issue involved in the withheld documents. If your spouse will not accept service of papers, they can be dropped at his/her feet or mailed or published. If divorces required cooperation by both people, many people simply could not get through the process. The process is designed to work even if only one party wants to make it happen. If you cannot get your spouse to agree, you are entitled to a trial, and then the judge will decide the issues in your divorce.

Nothing is automatic

People often think that something in a divorce happens automatically. For example, many people assume that six months after the divorce was served, it will be final, and they will be divorced. This is incorrect. Unless one of the parties does papers and makes something happen, it will not happen. Nothing happens automatically in divorce.

You can always settle

Some people think that if the divorce progresses to a certain point, they can no longer settle. This is not correct. You can always settle your divorce. The problem is that it takes two to settle, but if the two of you agree, the court will not stand in the way. The only time the court would refuse to accept a settlement is if a party is on welfare (TANF) and that party wants to give up spousal support or child support. If one party is on welfare, the Child Support Services Office must be notified of your hearing, or the support order will not be valid. Other than that, the court encourages settlement and will adopt virtually any settlement, even if it seems stupid and unfair. The court always wants you to settle and encourages settlement.

Some attorneys treat pro per’s very badly

When someone appears in court without an attorney, in California state court they are called a “pro per.” In other locations they may be called “pro se” litigants. Some lawyers will try to take advantage of pro per’s, and they will do things like lying to the court, and generally the court believes the lawyer rather than the member of the public. This website tries to portray the courts realistically, and realizing that these things happen is part of taking a realistic approach. Some lawyers will lie and say they did not receive your papers, or they will deny that you said what you said in a phone call. For this reason, whenever you have a conversation of importance with your spouse’s attorney, you may want to send him/her a confirming letter, and if time is short, email or FAX the letter to him/her. Also, you may want to have a professional process server serve your papers so the lawyer will have less opportunity to deny that he/she received them.

OSC’S AND MOTIONS

Problem:
You need a court order but do not know how to get one.
Solution:
Learn how to make a motion or OSC to obtain court orders.

OSC’s & Motions— How to Get the Court’s Immediate Attention to Problems

When to use a motion/OSC

Whenever a problem arises in your case that needs the court’s attention before or after trial of the main divorce, a motion or order to show cause (“OSC”) is the way to do this. Whether you need to continue a hearing or obtain documents or try to force your spouse to undergo a drug test, or accomplish a broad range of other things, a motion or OSC is probably the tool you need.

What is a motion

A motion or OSC is a formal, written request to the court. A motion consists of (1) Judicial Council Notice of Motion form (FL-301), (2) Judicial Council Application for Order and Supporting Declaration form (which is often called “Application and Declaration”)(FL-310) and may include a (3) Memorandum of Points and Authorities. A motion or OSC always requires a court hearing.

How does OSC differ from Motion?

An OSC is used when you need an immediately effective order. It requires considerably more forms than a motion. If you need an OSC, contact Attorney Yeamans as (408) 867-8137 to help you prepare those papers. This chapter addresses only motions because they are simpler and amount to the key to the courthouse.

Must you have a Memorandum of Points and Authorities

A Memorandum of Points and Authorities is a brief statement to the court, setting forth the law that applies to your motion and explaining how the law applies to your particular facts. In divorce people may file motions without points and authorities. However, if you are in a hotly contested divorce or have a judge who is new to family law, you had better play it safe and attach a Memorandum of Points and Authorities.

Motions regarding money require an Income and Expense Declaration

Any motion having anything to do with financial matters, including support and attorney fees, must include a completed Income and Expense Declaration (FL-150) or a Financial Statement (simplified) (FL- 155). You must attach a copy of your last two months’ paystubs, so the judge can see your income is documented. You bring copies of most recent income tax returns to the hearing.

Time requirements

If a motion is served personally, it must be given to the other party or his/her attorney at least 16 court days before the hearing. If a motion is served by mail, it must be mailed to the other party or his/her attorney 5 calendar days plus 16 court days before the hearing. You cannot count both the day of mailing/delivery and the date of the hearing in calculating these days. For calendar days, you do count all days, including holidays and weekends. Deadlines are contained in California Code of civil Procedure (“CCP”) section 1005 which you can review at www.leginfo.ca.gov.

Time to respond

The other party, if they wish to oppose the motion or any part of it, must file and serve a formal, written responsive declaration (FL-320) at least nine full court days before the hearing. To calculate these days, you count only days on which the court is open, not weekends or holidays. If the responsive declaration is served by mail, this must be done five full court days plus five calendar days before the hearing. You must also FAX or otherwise deliver the responsive declaration to your opponent and/or their counsel on the first business day after you file the papers.

Reply by moving party

A person making a motion can file and serve a written reply five court days before the hearing. Serving a reply by mail is probably not possible, and you must deliver it to your opponent and/or their counsel by the next business day after you file your papers. The reply is for the purpose of counteracting the responsive declaration, not for bringing up things you just left out of your motion. Although state law okays a reply, there is no Judicial Council form for it. You must type up your reply on 28-line paper (a sample of which you can find on line).

Procedure for making a Motion

You prepare your motion and check with the clerk of the court to find out what date, time and department should go on the motion. Some counties require that you clear the time and date with opposing counsel before filing the motion, and if your local rules require that, you must call opposing counsel to make sure the date is one where he/she is not on vacation or in another court or deposition. If opposing counsel refuses to tell you what dates are okay and merely hassles you, you will use a declaration to inform the court of the problem and get a date without cooperation from opposing counsel. Once you are sure of your time, date and department, you complete the motion and file it and pay the filing fee.

Proof of service by mail

If your motion is being made after the other party has filed any paper with the court in the divorce, you may serve your motion by mail, and you use a proof of service by mail (FL-335) to prove the papers were delivered to your opponent. This form is extremely important. If it is not properly filled out and filed, when you go to court, the court may kick you out and refuse to hear your matter, and you will have to start your motion all over. There are two ways to do the proof of service by mail. Whenever you serve papers by mail, the proof of service by mail must be mailed along with the papers; this is not necessary for personally delivered papers.

Checklist of what to file with court
  • Notice of Motion form (FL-301)
  • Application and Declaration form (FL-310)
  • Proof of service by mail form (FL-335)
  • Declarations by witnesses (optional) (MC-030)
  • Memorandum of Points and Authorities (optional, typed, not form)
  • Check or cash for filing fee
Hearing

Some courts require all proof to be contained in your Application and Declaration, and they do not permit verbal testimony at the hearing. For those courts, the information in your Application and Declaration will necessarily be more detailed, and you need to attach declarations signed by any witnesses you have, not just your own declaration.

Whatever your particular court’s procedure is, you should check your local family rules regarding motions, and you should go to the court, preferably before you write your motion, and see a family law- and-motion calendar. In preparing for your hearing, you should type everything you want to say to the court and bring it to the hearing so you will not forget things. Also, if the judge cuts off your presentation, you can request to be permitted to file the proof you were going to offer, or to mark it as an exhibit.

Bring your proof of service by mail with you to the hearing.

Evidence at Hearing

Law and State Rules permit the judge to insist that all evidence be in your written papers and to refuse to permit oral testimony:

Rule 3.1306. Evidence at hearing
(a) Restrictions on oral testimony

Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown.

(b) Request to present oral testimony

A party seeking permission to introduce oral evidence, except for oral evidence in rebuttal to oral evidence presented by the other party, must file, no later than three court days before the hearing, a written statement stating the nature and extent of the evidence proposed to be introduced and a reasonable time estimate for the hearing. When the statement is filed less than five court days before the hearing, the filing party must serve a copy on the other parties in a manner to assure delivery to the other parties no later than two days before the hearing. . . . .

Use your Application and Declaration as a checklist in court

After the hearing of your motion, the only orders you get are the ones that the judge explicitly adopted at the hearing. If you asked for something very reasonable in your motion, but it got lost in the shuffle at the hearing, and the judge did not say anything about that particular request, you do not have an order for it. Therefore, while you are at the hearing and it is ending, quickly scan your Application and Declaration to be sure that you have verbally asked the judge and presented evidence on every single request, and the judge has made an order on every request. When the judge pronounces the decision, if any requested orders are not mentioned, you need respectfully to remind the judge that you requested such an order, and you would like a decision on it.

Order

You prepare Findings and Order After Hearing (FL-340) Most people assume that the judge will write up the order after deciding your motion, but this is not correct. You have to do all the paperwork for your own case, including writing the order.

Sometimes you can prepare the order in advance

Ideally, if you could predict the outcome of the case accurately enough, or if the issues were simple enough, you could take a filled-out, typed Findings and Order After Hearing (“Order After Hearing”) with you to the court hearing of your motion and have the judge sign it at the hearing immediately upon making the order. This is usually not possible. But if you think your spouse many not show up at the hearing or may not successfully oppose your requests, it is a good idea to bring the typed Order After Hearing to the hearing, and hand it to the judge at the end of the hearing for signature.

Prepare the Order After Hearing

If a hearing with evidence is required as to some or all issues, the court’s decision will be announced either verbally at the time of the hearing or later in writing (if the matter is “taken under submission” to be decided later). Once the parties know the court’s decision, it is the responsibility of the parties (or their lawyers, if they have lawyers) to fill out the Findings and Order After Hearing form (which is called “Order After Hearing” and, if you have restraining orders, the CLETS order as well. If support is to be paid by wage assignment, you also prepare that order

Opponent signs order before it is submitted to judge

Although local rules may be more detailed, State Rules set up a procedure for signing of the Order After

Hearing:
Rule 3.1312. Preparation of order
(a) Prevailing party to prepare

Unless the parties waive notice or the court orders otherwise, the party prevailing on any motion must, within five days of the ruling, mail or deliver a proposed order to the other party for approval as conforming to the court’s order. Within five days after the mailing or delivery, the other party must notify the prevailing party as to whether or not the proposed order is so approved. The opposing party must state any reasons for disapproval. Failure to notify the prevailing party within the time required shall be deemed an approval. Code of Civil Procedure section 1013, relating to service of papers by mail, does not apply to this rule.

(b) Submission of proposed order to court

The prevailing party must, upon expiration of the five-day period provided for approval, promptly transmit the proposed order to the court together with a summary of any responses of the other parties or a statement that no responses were received.

(c) Failure of prevailing party to prepare form

If the prevailing party fails to prepare and submit a proposed order as required by (a) and (b) above, any other party may do so.

(d) Motion unopposed

This rule does not apply if the motion was unopposed and a proposed order was submitted with the moving papers, unless otherwise ordered by the court.

One party prepares the Order After Hearing and puts his/her address and phone number at the top. This should be done promptly within five days after the hearing. The proposed original Order After Hearing is by that time mailed to the opponent (or his/her lawyer) with a letter requesting that they sign it and return it within two weeks of the date of the letter. If the Order After Hearing as written correctly states the judge’s decision, it must be signed by the other party, even if the party does not agree with the decision. If a party does not like the judge’s decision, that is not a reason to refuse to sign the order, although it may be a reason to appeal or to take other steps legally to challenge the decision. If your spouse did not attend the hearing, you do not submit the proposed order to him/her for signature; just submit it to the judge.

Prepare to obtain transcript or video

At the end of your hearing, if you think that your spouse or his/her lawyer is going to fight over the wording of the order, either obtain a video of the hearing, or get the court reporter’s business card and order a transcript. If you are in a horrible contest where everyone fights over every single word, go up to the court reporter at the end of the calendar and order a transcript immediately and get their business card or name and phone number so you can follow up. You pay for the transcript and for the video, which for a short hearing will cost from $25 to $150. Longer hearings, of course, cost more. If your hearing is videotaped, the video may be available immediately after the hearing, so you want to bring money with you to court for that purpose. It is much easier to buy the video or arrange for a transcript immediately after the hearing instead of trying to locate the court reporter later.

How to resolve disputes about the order’s wording

If there is a dispute as to the correctness of the order, that is, a dispute as to whether the order correctly reflects what the judge decided, each party needs to prepare his/her own version of the order and to explain his/her position to the other in writing. Of course, everyone keeps copies of his/her letters. If that does not resolve the matter, a transcript may be ordered from the court reporter to establish exactly what the judge ordered. To contact the court reporter, you phone the courtroom where the case was heard or the court executive. If the court reporter is not available, you ask the clerk how to locate the reporter. You can sometimes order a “partial” transcript, containing only the ruling of the judge rather than the testimony of all parties, and this will be cheaper than a complete transcript of all the evidence, but you do not do this if you had a videotaped hearing, only if there was a person using a steno-type machine to record the proceedings.

If the parties disagree, judge will decide wording of order

Sometimes, even with a transcript, the parties cannot agree on the wording of the order. In that event either party can make a request to have the order signed by the judge. Usually this can be done by sending the judge a letter explaining the problem, and including copies of all transcripts (including videotape) and correspondence from the opposing party or attorney as well and including copies to sign and a stamped, return envelope. Sometimes a hearing is necessary for this, and a written motion could even be necessary. First you send the judge a letter containing all proposed orders and all correspondence about the order, and then if the judge wants a hearing or a written motion, he/she will let you know this. Of course, you send the other party copies of everything you send to the judge at the same time as you send it to the judge.

What goes into the order

All the orders the judge announced at the hearing go into the order—and nothing more. Sometimes people talk after the hearing and want to add to the order. This is a very bad idea. If you reach separate agreements, put them into a written stipulation. They should not go into an order for a hearing unless the judge pronounced them.

Undue delay in obtaining an order after hearing should not be tolerated

Particularly if you have an attorney, there is no valid reason that it should take months and months to obtain an order after a hearing. Even if the other side is completely unreasonable, your attorney can use the process described above to obtain an order without the other party’s cooperation. The only valid excuse for delay, other than medical or personal problems, is that a court reporter may take a long time in getting a transcript prepared. If this occurs, you or your attorney must keep contacting the court reporter to ensure that the transcript gets done.

Filing the order

Once the judge signs the original Order After Hearing, you make copies of the order, and take the original order to the clerk of the court for filing. You file the original, and have the copies stamped endorsed to show they were filed. You must mail a copy of the order to the other party (or his/her attorney). If you have a CLETS restraining order against domestic violence, you take a copy of the filed CLETS order to the police. When you are filing your order, ask the clerk if you should obtain a certified copy for the police, as they should know.

When you need to serve the order

If the other party was not present when the decision was announced, or if the decision was sent by mail, in order to enforce the Order After Hearing, you need to have it personally served on the other party, just as you had the Summons and other papers served at the beginning of the divorce. If the party will comply with the order, you usually don’t have to worry about service, but if he or she is going to violate the order, you need personal service. If you’re not sure if they’ll obey the order, serve it. Proof of service by mail is insufficient in this situation. You need to prepare a proof of personal service. You then arrange service and you then file the signed proof of service with the clerk of the court (of course, keeping an endorsed copy for yourself). Then you will have no trouble later proving that the other party knew about the order.

SERVICE OF PROCESS

Problem:
You cannot locate your spouse, or you don’t want to go through all these complicated papers and then have them rejected because service of process or proof of service was done wrong.
Solution:
Learn how to serve even a spouse who has disappeared, and in all cases arrange service of process and proof of service.

Service of Process—
Delivering Papers to Your Ex and Doing Proof of Service

What is service of process?

service-of-process-01“Process” refers to various papers filed with the court, such as petition, summons, order, judgment, and subpoena. “Service” generally means personal delivery to the other party.

The one adult who cannot serve papers, you (CCP sec. 414.10). To avoid confrontations and lies, the law requires that the parties themselves cannot serve legal papers. Whenever papers must be delivered, someone other than you must do it. Any adult who can fill out the proof of service form can do this-except you. This applies to all service of all papers discussed in this website.

You cannot even do service by mail There are two types of service-personal and by mail. You cannot do personal service (giving the papers directly to the person), and you cannot do service by mail. If a proof of service by mail is needed, you must have someone else sign it. You can have a parent, a friend, or a neighbor do this for you. But you must be careful never to yourself sign a proof of service of any type.

How to serve papers
service-of-process-02For most steps in a divorce, service of process occurs when a copy of the papers is personally handed to your spouse. However, for most motions in divorce cases service by mail is permitted. When your opponent has an attorney, you must serve the attorney.
Some papers cannot be served by mail

In California a Summons, a Subpoena, and an OSCS re Contempt must be personally served on the opponent and cannot be served by mail.

Don’t try service by FAX

California Rule 2.306 contains detailed rules for serving papers and provides that without a written agreement by both parties, service by FAX cannot be used. The exception appears to be the requirement of CCP section 1005 that responding papers must be delivered to the opponent within one business day, and they can be delivered by FAX.

Spouse cannot refuse to accept papers
service-of-process-03If you are having your spouse personally served, instead of by mail, your spouse cannot prevent service by refusing to take the papers in his/her hand. If the spouse refuses to take the papers, the person serving the papers should simply drop the papers at his/her feet and say, “I am serving you with divorce papers.” If a court date has been set, such as for an order to show cause re contempt, the process server should also say, “You need to be in court on __________(date) at __________ (time).” The service will be effective even if the process server does not give the date and time, but the complete statement is the best way if a hearing has been set. This is called “drop service” because the server drops the papers at the person’s feet. It doesn’t matter if the person served does not pick up the papers; service is complete anyway. If the person served does not pick up the papers, the server should just leave the papers there.
Substituted service – leaving papers with an adult at spouse’s home or work

If you are required to do personal service, such as when you are serving the Summons and Petition at the beginning of the divorce, and your spouse evades service of process, it can be accomplished in two ways. First, it can be done by “sub-stituted service.” This consists of your server (1) writing a declaration of due diligence, showing many attempts to give the person the papers personally, and setting forth how likely it is that the person is aware of this (see completed form on page 44), and (2) leaving a copy of the papers at the person’s residence with an adult member of the household or at the person’s work with the adult person apparently in charge, and informing that person that the papers are regarding divorce, and (3) mailing a copy to the person served, that is, to your spouse, at the address where the papers were left. You need to fill out the proof of service in a different way when you use substituted service, and the form on page 45 indicates this.

Service by publication – for the spouse who hides from the process server or who disappears

service-of-process-04The second way to accomplish personal service of process, as when serving the Summons and Petition, on a spouse who is evading service is “service by publication” or by posting in the courthouse. This is a difficult and time-consuming process. You may want to contact Attorney Yeamans at (408) 867-8137 to obtain her help with these forms and this process. The same process is used when your spouse has disappeared. Because it is a very serious matter to begin a lawsuit against someone whose location you do not know, you must show the court that you have made every reasonable effort to locate your spouse, but you are unable to find the spouse. To obtain service by publication, you prepare a declaration, showing all the attempts to locate your spouse, and the spouse is not locatable. So your first step is to try to locate your ex, keeping a written record of each such attempt and its date. You may find them and be able to serve them personally.

You also obtain the name and phone number of a local newspaper that publishes legal notices, and ask them what is the cost of publication. You then submit your declaration to the court along with an order for publication. Some counties, such as Santa Clara (www.sccsuperiorcourt.org) have local forms for this. Usually it is a Summons and Petition which are served by publication, but, in fact, any court paper such as a Notice of Motion may be served by publication if time permits and the spouse has disappeared. However, if your spouse filed papers in the divorce and then disappeared, you are entitled to serve motions on the address shown in the court papers; if your spouse moves, it is their obligation, not yours, to notify the court of their current address and phone number.

Order is published or posted for four weeks

service-of-process-05Once you have obtained an order for publication or posting, you publish (in local newspaper of general circulation) or post (on courthouse bulletin board) your document once a week for four successive weeks, and then file the proof of publication (which the newspaper gives you) with the court along with your proof of service. You have a friend accompany you to the newspaper so your friend can sign the proof of service. Service is complete twenty-eight days after the publication or posting begins; after those twenty-eight days elapse, your spouse has thirty more days to respond to a Petition, and may have other specific time periods to respond to other types of papers. You cannot proceed further until thirty days or other appropriate time period after service of summons is complete. Thus, for example, with a Summons, twenty-eight days are needed for publication, and thirty more days for waiting are needed, and a party could proceed to take a default a total of fifty-eight days from the first publication. Other time periods apply to other types of documents.

Service after final judgment of dissolution

After the divorce is final, any papers must be served on both your ex-spouse and on his/her attorney of record if that attorney has not filed a formal withdrawal from the case, no matter how many years have passed since the divorce. Service on your ex-spouse may often be made by mail, but many attorneys and even judges believe such service must be personal, so you may want to arrange personal service just to avoid the hassle. If service is by mail, you use the regular proof of service by mail. If personal service is used, you use that proof of service. You will need to file two proofs of service with the court–one to show service on the attorney and one to show service on your ex-spouse.

Children and service of process

Although under the law an adult child could serve papers, we strongly discourage that. In addition, it is a very bad idea to serve papers when children are present; do that only if there is absolutely no other way to serve the papers.

Who can serve the papers
An adult friend

service-of-process-06You yourself cannot serve the papers, and you cannot sign the proof of service. You or your attorney will supervise the entire process, but you personally will not serve the papers or sign the proof of service. Someone else who is over the age of eighteen must do this for you. The papers can be served by any person who is not a party to the action and who is over the age of eighteen. Children are not technically “parties” in the divorce, but it is almost always best not to involve even an adult child in serving divorce papers. The person must be responsible enough to not only give the papers to your spouse but to carry through and sign the proof of service. If the person delivers the papers but fails to sign the proof of service, you will have to repeat the service. Also, if there is a problem with your proof of service, you could have to redo it, possibly years later, so you need the server to be someone you can contact even years later—someone stable.

Professional process server

service-of-process-07You need to look in the telephone book or on the internet for “Process Serving” in your locality to locate a professional process server. One drawback with a professional process server is that they will charge you for attempted but unsuccessful tries to serve the papers. That is, if they go to your spouse’s residence, and they try to serve your spouse, but your spouse is never there, you will get a bill from them for attempted service of process–and you will still have to go ahead and accomplish service by some other means. If you expect your spouse to be difficult to locate, you may want to ask the process server about such fees before you ask them to serve your papers, and you should tell them what are the most likely hours to find your spouse at home or at work as well as giving them information about the vehicle(s) driven by your ex.

Sheriff

In many counties the Sheriff’s Department Civil Division will serve the papers for you at a reasonable fee, but they may be very slow in serving the papers. Before you give your papers to the Sheriff to serve, you need to ask them when they will be able to get to your case.

DISCOVERY

Problem:
You are in the dark about family finances.
Solution:
Use the methods described in this chapter to get the information you need to do your divorce.

Discovery How to Get Evidence to Support Your Case

A. What is discovery
discovery-01
Discovery is the way you prepare your case

You may not have all the information you need for your divorce. If you have been the one who kept all the records, and your spouse was not self-employed and did not have “side jobs” that you didn’t report on your income tax returns, you may have all the information you need. If, on the other hand, you were not the record keeper or you have a secretive spouse, you may need to get more information before you can proceed with your case. “Discovery” is the legal mechanism for obtaining information from your spouse.

Fiduciary duty

Under California law you and your spouse both owe one another a “fiduciary duty.” This is a duty of highest trust and confidence, such as would be expected of the trustee of a disabled child. Your ex is supposed to give you information even without your request. If your ex gives you all the information you need, you won’t need this information on “discovery.” This information is for people who have to struggle just to get basic information.

B. What information do you need Get copies of tax returns, deeds, and bank statements

discovery-02The first and most basic thing you have to do is to obtain a copy of your joint income tax returns for the last two or three years. Also, if you own a home or other real property (that is, other things like homes, apartments, land), you must have copies of all the deeds and purchase papers for those properties. You need copies of bank statements for the present and for the time before your spouse knew there would be a divorce (so that this will be before the spouse may have drained or manipulated the accounts). You need copies of all credit card statements in your name, your spouse’s name and both names. This is the bare minimum of information necessary to make an intelligent decision in your case.

Some assets are hard to find

Deferred compensation (income your spouse received but has put in a savings-type plan and on which the spouse has not paid income taxes) may not appear on a paystub, on your income tax return, or in a bank account; these records must be separately obtained. Tax-free income will not appear on an income tax return. For example, California municipal bonds which are not subject to income tax probably will not appear on your income tax returns. Income from out-of-state municipal bonds will be on your California return, and you will have to get your California income tax return to get this information. Mu¬tual funds that produce tax-free income may be very hard to find. Recently, many people travel outside the US, and they may have opened up accounts in another country; if all those transactions were in cash, they may be difficult to find. If you have valid reason to believe your spouse has secret accounts outside the US, you may need the help of Attorney Yeamans at (408) 867-8137.

C. The cheapest way to get information informal discovery your family’s home computer

If you or your spouse has a computer in the home, locate a computer consultant, and have them copy every single thing that is in that computer, particularly any income tax returns, onto disks, and put those disks where your spouse cannot take them from you. This does not mean that you should put them into the trunk of your car. Put them at the home of a friend or relative whose home your spouse cannot enter.

If possible, ask your spouse

Of course, the simplest thing is to obtain a copy of documents from your spouse, but if he/she is not cooperative, you can still get copies of these documents from other sources. You can obtain information even if your spouse refuses to cooperate.

D. Get copies of documents from original sources
Tax returns
discovery-03You can get a copy of any joint income tax return that was filed by you and your spouse together. Even if he/she forged your name, you should be able to get a copy. In case of forgery, you could have to contact your representative in Congress for help in getting a copy, but this would be an extreme case. You need complete copies of your returns, together will all schedules and attachments, not just the form 1040.
Your tax preparer

You can contact your tax preparer and get copies of your tax returns from the preparer, but most of them do not keep W-2 forms. Even if your tax preparer is a great friend of your spouse, he/she knows he/she is obligated to give you a copy of any joint return in which you are listed as one of the spouses. If your spouse prepared the return with a computer, of course, you do not have a tax preparer to consult, but you may find the information on the family computer.

Internal Revenue Service

You can also contact the Internal Revenue Service and get copies from them. www.irs.gov/individuals. Do not merely ask for a “transcript” of your return; you want a complete, certified, copy. The IRS sometimes provides copies within a month, but sometimes they send you a letter that basically says, “We can’t find your return; ask again in 60 days if you really want a copy.” Therefore, you need to make your written request to the IRS long before you actually must have the copy in your possession as you may have to make more than one request to get the copy.

Franchise Tax board

If you have any reason to believe your spouse may have out-of-state tax-free municipal bonds, you may need to con¬tact the Franchise Tax Board at www.ftb.ca.gov for a form to request a copy of your California income tax return.

Get copies of deeds from county Recorder

You can get copies of deeds from the County Recorder of the county in which the property is located. You go to the County Recorder’s office and look up your and your spouse’s names in the “Grantor/Grantee Index.” A grantor is the person who gave the deed; a grantee is the person who received the deed. If you buy a property, you are the grantee. On the deed of trust that secures a mortgage, you would be the grantor. (In California we don’t use the word “mortgage” but “deed of trust.”) The Grantor/Grantee Index gives you the information that you need to obtain a copy of the deed at the Recorder’s Office.

Get bank statements from bank
discovery-04For joint accounts, you can get copies of bank statements from your own bank by asking and paying a fee or by downloading them on line. The bank will not give you copies of statements for accounts that are only in the name of your spouse. You have to subpoena those. Contact each credit card company for statements If you don’t have copies of your credit card statements, preferably for at least the past year, you need to contact each company by phone or on the internet and obtain copies.
Review documents carefully to locate hidden assets

Once you have copies of the tax returns and other documents, read them carefully. Even if you have a lawyer, you should read your own tax returns. Schedule B of the tax return, for example, may list interest income which may help you in locating hidden bank accounts. A deed will show which title company recorded the deed, and you can contact the title company to obtain copies of the closing statement from when you and your spouse bought the property. If you have significant property or complicated finances, these documents may not be suffi¬cient. But if you did not have at least this information, you would know that you did not have enough information to make intelligent decisions in your divorce.

Personally review all records even if you have a lawyer

If your lawyer obtains copies of your spouse’s records, such as bank records, you should personally go and review those records. You may notice things that the lawyer cannot. For example, once an accountant working for the wife’s di¬vorce lawyer reviewed the husband’s business records, and the accountant thought that everything was in order. But when the wife herself reviewed the records, she saw that the hus¬band had not only his mother but also his girlfriend (who did not work in the company) on the payroll. The accountant was a good accountant, but only the party had the vital information that made the difference in the case.

E. Formal Discovery
Do formal discovery early
discovery-05When a case is near the trial date, it is too late to do discovery. The Code of Civil Procedure requires that discov¬ery must be completed by thirty days before the first trial date in your case. If the trial is postponed, the discovery cutoff is not postponed. If you, for example, send out interrogatories (written questions that must be answered under oath) to your spouse by mail, your spouse has thirty-five days to answer; if he/she does not answer or he/she gives incomplete or evasive answers, you need to make a motion to compel, and your spouse is entitled to twenty days’ mailed notice of motion plus time after the hearing to prepare answers. So you can see that this one part of discovery alone could require two to three months, and if you have to complete it by thirty days before trial, you must start almost a half year before the trial to accomplish this one thing alone.
Do not use discovery for harassment

You should engage in formal discovery only regarding information that you really need for your divorce. Do not request filing cabinets full of papers just to harass or to vent anger. There are three reasons for this in addition to the basic reason that you should not engage in harassment or spite. First, if you need to make a motion to have the court enforce your request, if it is so broad it appears oppressive and burdensome, the judge may well deny your whole request for information. Second, the judge may make you pay sanctions or attorney’s fees to your spouse if it appears you were engaging in harassment. Finally, it is not unusual for a spouse to change the names on the papers and re-send the entire request to you, and you may find-yourself burdened by the very same requests you created.

Discovery cutoff

Formal discovery must be completed at least thirty days before the date on which your trial is first set to occur. Even if your trial is postponed, this does not reopen discovery.

Warning: Discovery motions can be dangerous

Many discovery statutes indicate that if a motion to com¬pel discovery is made and the judge denies the motion, sanc¬tions (that is, money fines to punish you) shall be awarded. If you are not sure you will win your discovery motion, maybe you should not make it. On the other hand, your spouse has a duty to disclose all relevant information, and the court should support your legitimate requests.

1. Request for Production

Assuming your spouse filed a formal Response with the court, you are entitled to send him/her (or his/her attorney if there is one) a Request for Production. In that request you will ask, for example, for copies of all income tax returns for the last three years together with all schedules and attachments as well as all amended returns, copies of all deeds to properties, and for bank statements from one year ago, one month before your spouse knew there would be a divorce and now. You pick a date for production that is at least thirty-five days away. You must also have someone sign a proof of service by mail for you to send with the request. Attorney Yeamans at (408) 867-8137 may help you write such a request.

Request must be clear and not too broad

The Request for Production must be clear enough that your spouse knows exactly what you are requesting be pro¬duced. Also, you cannot ask for so many records that it will be unfair, such as all bank statements and canceled checks during a twenty-year marriage. You probably need to specify the time period to limit your request, such as for bank records, to avoid this problem.

Response must be verified

You are entitled to a written response, under oath, from your spouse. If your spouse did not sign a verification form (a statement under penalty of perjury that the contents of the document are true) and attach it to his/her Response to Request to Produce, the response is inadequate, and you cannot rely on it.

Time limit to make motion to compel production

If your spouse completely ignores the Request to Pro¬duce, you do not have a legal time limit to make a motion to compel. But if he/she makes an evasive, inadequate or unver¬ified response, you have only forty-five days in which to file and serve a motion to force him/her to produce.

Prerequisite to making motion to compel production

Before making the motion, you must write your spouse a letter, keeping a copy, and explain why the response was inadequate and demand further response. If the letter does not produce an adequate response, you need to make a motion to compel production. After the hearing, you prepare an Order After Hearing, just as with any other motion. Be sure to include a deadline for production in your order.

2. Written interrogatories
What are interrogatories

Interrogatories are written questions that you can send to your spouse, which he/she is required to answer in writing under oath. The main purpose of interrogatories is to get basic information that will help you prepare for further discovery such as depositions or subpoenas.

Judicial Council form interrogatories

The Judicial Council has prepared standard form interrogatories for use in divorce cases (FL-145); also serve a blank Schedule of Assets and Debts (FL-142). If you want your spouse to fill out a Schedule of Assets and Debts, you must be sure to include this blank form. As to the other interrogatories, you simply put an x in the appropriate box.

Specially prepared interrogatories

You are not limited to the printed form interrogatories but can use typewritten, specially designed interrogatories. However, you are allowed to use only thirty-five of such specially drafted interrogatories (counting each subpart of each question as an interrogatory) unless you file a declaration explaining the necessity to use more questions. Writing interrogatories is not easy as each question must be broken into its simplest form, not combined with other questions. You would probably need Attorney Yeamans’ help at (408) 867-8137 to succeed in drafting non-objectionable interrogatories.

Proof of service by mail

When you send interrogatories, either form or specially drafted, you must prepare a proof of service by mail for your server to sign. You keep the original Interrogatories and the original proof of service by mail, and you send a copy of the interrogatories and the proof of service to your spouse or his/her attorney if he/she has one.

When are answers due

Your spouse has thirty-five calendar days from the date the inter¬rogatories are mailed in which to submit written answers to you. Deadlines falling on weekends or ocurt holidays are generally extended to the next day court is open.

Motion to compel

If your spouse refuses to respond or gives incomplete or evasive answers or fails to provide a signed verification, you are entitled to compel him/her to respond. This will require a written motion to compel answers. Detailed rules cover such motions, and you will probably need assistance from Attorney Yeamans at (408) 867-8137 to make the motion.

3. Depositions
What is a deposition

A deposition is testimony obtained in the office of one of the attorneys (or in some other office if neither party has counsel) under oath in the presence of a court reporter, it is just like testimony in court, but there is no judge present. Afterwards, the testimony is written up in a typed booklet and can be used in court.

Who may be present at a deposition
discovery-06Both parties (the husband and the wife) are entitled to be present at the deposition as well as any lawyers. The Code of Civil Procedure does not limit who can attend a deposition; it only provides for an order to exclude someone. Thus, unless the court excludes a person, anyone can attend although this is very rarely done. A battered spouse probably could bring a support person.
You can direct your ex to bring documents or things to the deposition

If you do the forms properly, you can not only take your ex’s deposition but also direct him/her to bring items to the deposition.

Whose deposition can you take

You can take the deposition not only of your spouse but also of other people, such as the custodian of records of your spouse’s employer or the custodian of records of your spouse’s bank or the custody evaluator. In that manner proof of income and bank records can be obtained. It does not matter that the spouse does not want to cooperate in this because the law permits this discovery. The place where a witness’ deposition is taken must be within seventy-five miles of where the witness lives. (CCP section 2026.010)

Depositions are very expensive and require you to arrange for a court reporter

Depositions typically cost about $4.50 per page for the original (with the copy being about $1.50 per page), and it is not unusual for a deposition to cover 150 pages for a total of $675 for the original. This is the most expensive book you will ever own! Therefore, depositions are used only when the information cannot be obtained in some less expensive man¬ner. You must arrange for a court reporter to be present to record the deposition. You may locate one through the phone book yellow pages or internet under “Reporters-Court.”

Records-only Depositions are cheap and effective

You may obtain employment and other information about your spouse by means of a records-only deposition. You can obtain documents regarding wages, retirement, benefits (in¬cluding stock options and stock savings plan) and deductions for 401 (k) or other savings plans by using a records-only deposition. If your spouse quit working for a company, you can obtain his/her personnel file, but you may need to serve one set of papers on the payroll department and a second one on the personnel department if the business is very large. The difference between this and a regular deposition is that a records-only deposition does not occur as a meeting in front of a court reporter but only by the custodian of records mailing records to you. So the Notice of Taking Deposition form says “RECORDS ONLY–NO APPEARANCE.”. While private companies handle this work efficiently (but not cheaply), they usually insist that you have an attorney of record or they will not work with you. In California you can use a Notice of Limited Scope Representation (FL-950). Using that form Attorney Yeamans at (408) 867-8137 can help you obtain records.

CALCULATE CALIFORNIA CHILD SUPPORT

CALCULATING CHILD SUPPORT IN CALIFORNIA

One can calculate California child support amounts by using the DCSS calculator at:

www.cse.ca.gov/ChildSupport/cse/guidelineCalculator

However, there are a couple of cautions about this process which are not apparent on the face of the program. Attorney Yeamans is aware of them because she handles so many cases and attends State Bar educational classes.

Family Code section 3830 authorizes the California Judicial Council to approve of computer software to assist in determining the appropriate amount of child support or spousal support obligations, and provides that non-approved programs shall not be used.

California Rule 5.275 sets forth standards for computer software to assist in determining support.

As of 2007, 5 programs had been approved:
  • DCSS
  • CalSupportPro
  • XSpouse
  • DissoMaster
  • SupporTax

In general these programs produce very similar results. However, at higher income levels, particularly levels affected by the Alternative Minimum Tax, results may differ.

The DCSS program does not have a bonus calculator. Thus, family court will usually order that if income fluctuates, base child support consider base income, but an order for increase/decrease of support in the event of bonuses, overtime, commissions, etc. will also be made. Such an order cannot be calculated with the DCSS program. You must use one of the other programs, or you can contact attorney Yeamans at 408 867 8137.

The DCSS program does not calculate spousal support, only child support.

Under the different programs if all children are in foster care, the result may be significantly different.

VOCATIONAL EVALUATION SAMPLE

VOCATIONAL ASSESSMENT

I. PERSONAL BACKGROUND

Wife was born in____________, Mexico on___________, 195_. She was educated, for the most part, in boarding schools in the United States. She graduated from ____________High School in____________, Tennessee in 197_. After high school graduation, Wife returned to Mexico City and worked as a secretary from 197_to 198_. Then she returned to the United States and joined the US Air Force and was stationed at ___________Air Force Base in_________________, California as a Personnel Specialist (198_ to 198_. On April____, 198_, Wife married Husband, and they had three children who are now ages 20, 22, and 24. Wife did not work outside the home in the formal sense, but she did volunteer work in the community and at the elementary and junior high schools that her children attended from 198_ to 200_. She also took advantage of her Veterans’ educational benefits and went back to school in 1994 and received an AA Degree in Sociology from____________ College. She attended_____________State University from 199_ to 200_ where she participated in undergraduate studies in Spanish and Psychology. In January 200_the parties separated, and divorce ensued. Wife has been working periodically as a receptionist through temporary agencies ever since.

II.CLIENT ASSESSMENT

Wife is a pleasant person, and appears, at least superficially, cooperative. My feeling is, however, that she has an undercurrent of strong resistance about obtaining a permanent job and becoming truly self-supporting. This feeling, though unstated directly by Wife is substantiated by her inertia relative to the assorted vocational suggestions I have extended to her. These suggestions have included:

  • 1. Registering with the State Employment Development Department. Not only could they help her find suitable employment parallel to her limited experience, but they could also provide veteran employment referrals for her, according to Mrs._____________of the San Francisco Veterans’ Benefits Administration Agency. (Wife served in the US Air Force from198_to 198_.)
  • 2.Attending seminars for displaced homemakers sponsored by the Commission on the Status of Women in our city. Often networking is established at these meetings to help ease displaced homemakers into the job market successfully.
  • 3.Submitting results from a typing test indicating how many words-per-minute she actually types. Wife thinks she types about 25 WPM, but without a certified typing test, no accurate assessment of her typing ability can be made. Since most clerical jobs these days require typing or word-processing ability, a definitive assessment of Wife’s typing skill is imperative.
  • 4. Registering in a college or business school Word-Processing Class to up-date her clerical skills. __________College, which is close to her home, offers such classes, as does_____________College and any of the local business schools in the area (Heald, Sawyer, etc.).
  • 5. Applying for governmental clerical jobs. This is the most practical approach for Wife at this point. Additionally, Attorney Robin Yeamans on behalf of husband submitted announcements for Wife’s consideration from at least 15 separate agencies currently recruiting clerical staff (see Appendix 1 attached).

The above suggestions were first recommended to wife on March____, 2007, during an interview at my office. To this date, Wife has not responded to any of them, but continues to work sporadically for temporary agencies.

III. REVIEW OF CLIENT’S EDUCATIONAL AND EMPLOYMENT HISTORY

Wife has an AA Degree in Sociology from______________College (199_ and had senior status in her undergraduate studies towards a B.A. in Spanish and Psychology. Her formal working experience ended after her stint in the Air Force in 198_, but she did of various types of volunteer work from 19_ to 200_ while raising her family. Even before the break-up of her marriage in 200_, Wife did clerical work through temporary agencies (from April 200_ and earned from $10.00 to $15.00 an hour, depending upon the job assignment. (See Appendix 2 attached.)

IV.CLIENT’S STATEMENT OF HER FUTURE GOALS

Subsequent interviews with Wife revealed that she would probably enjoy a job that involves use of her bilingual ability. She knows that older, divorced women often suffer from a dramatic decrease in their standards of living, and secretly fears being turned out onto the streets in poverty to become a “bag lady.” On the other hand, Wife feels that a job earning about $40,000 a year would give her a measure of security and validate her capacity to take care of herself.

V. CLIENT’S EMPLOYMENT STATUS AND SUMMARY OF OPPORTUNITIES IN HER FIELD

Wife currently works for temporary employment agencies, specifically______________and____________. She is usually assigned to perform receptionist’s duties.

If Wife wishes to pursue a career as a receptionist, she could work on a permanent basis earning about $15.00 to $20.00 an hour in private industries. Jobs for receptionists in this county are plentiful and readily available to individual with limited clerical experience and ability.

According to current job information in the local newspaper, often temporary workers are asked to stay permanently by the companies for whom they are doing temporary work. The demand for clerical workers is coming from all sectors of the economy, according to _________________, Regional Vice President of____________Temporary Services.

VI. POTENTIAL ADDITIONAL JOB OPPORTUNITIES RELATED TO CLIENT

Wife’s bilingual skills can be the key to a greater earning capacity for her. Currently, the following governmental jobs are available for bilingual applicants:

  • 1.Eligibility Worker I (for this county) – as of 2006, this position pays $5,538.35 – $6,701.07 ($66,460.20 – $80,412.84 a year). Additionally, after six months of training, the work of EWI’s is evaluated and if they successfully pass a qualifying exam, they are promoted to Eligibility Worker II status at a 2006 salary range $300- $600 per month higher. Spanish-speaking applicants are encouraged to apply. Recruitment for this County position begin in July of every year. (See Appendix 3.)
  • 2.Medical Receptionist (this county) – this position is found in the County Hospital Out Patient Department where Spanish-speaking ability is highly desirable. The 2006 salary for this position was $14 per hour on a full-time basis. Wife’s receptionist skills may readily qualify her for this job which also begins recruitment in July of every year. (See Appendix 4.)
  • 3.Interpreter (State of California, Judicial System) – according to the County’s Court Executive Department, the need for Spanish- speaking interpreters for the courts has increased dramatically over the years in this county alone, especially in the Criminal Division. An interpreter working for the courts alone earns $6,121.13 monthly ($73,453.54 annually). If an interpreter is called to translate for a deposition or any other legal matter outside the courtroom, the standard fee is $100.00 an hour. Wife’s age need not be a hindrance in this field either, because, according to the Court Executive Department, the average age of interpreters in this county is about 50 years old. There is a qualifying exam for interpreters given once every month, and the Court Executive Department gave me a test packet with the appropriate application and study aids for the examination. Wife’s experience in spoken Spanish and her supplementary college studies in Advanced Spanish Conversation and Composition should enable her to pass the qualifying test with little or no trouble at all. (See Appendix 5.)
VII. FURTHER RECOMMENDATIONS

It is strongly recommended that Wife overcome her inertia and take advantage of the many vocational suggestions given her by following up on any one or all of them. Her reluctance to plunge herself into full-time employment at her age and after being out of the active job market for over twenty years is understandable, but not at all reasonable. Regular employment will validate her ability to take care of herself rather than hoping someone will come along and “tell [her] that they’ll take care of everything.” It may even give her a new, sorely-needed self-confidence in addition to heightened self-esteem, so that she can become more actively in charge of her life and not just a stereotypical victim of circumstances.

http://www.divorcecal.com/siteAssets/site8725/files/7aVocationalEvalSample.pdf

SETTLEMENT CONFERENCE

Problem:
The court has given you a date for a settlement conference, and you don’t even know what one is.
Solution:
Learn about settlement conference in this chapter and how to use it to resolve your case.

Settlement Conference- How the Court Will Help You Settle Your Divorce

Settlement conference is mandatory
settlement-conference-01All large counties in the state require parties to attend a settlement conference before a divorce case will proceed to trial. Thus, neither party has to request the conference, which could be taken as an indication of weakness. It is automatically set by the court.
Judges encourage settlement
settlement-conference-02The attitude of most judges towards trials is this: They don’t want trials, and they do want parties to agree. This is not because the judges are lazy but because they realize that it is better for the parties, especially when they have children, to agree, and trials are very expensive and time-consuming. Nonetheless, it takes two to agree, and if your spouse is not cooperative, you may have no choice but to proceed to trial.
Settlement conference statement

Before your settlement conference, all large counties in the state require you to prepare a detailed Settlement Confer¬ence Statement which must be served and filed a certain number of days before the conference. The purpose of the Settlement Conference Statement is to summarize your entire case in one document. This document is very important to you because it will be considered in detail by the judge at your settlement conference and will also be used at trial. You need to cover custody/visitation, child/spousal support, restraining orders, property, attorney’s fees and costs and any other issues on which you require a decision.

Include all claims

Include ALL claims that you may assert in this action, even the ones that you expect you will give up in the course of negotiations. The Settlement Conference Statement is not a settlement offer. It is a list of every single claim which you may assert at trial. If you leave out a claim, you lose it. You need to keep your options open in the Settlement Conference Statement by listing all claims.

Temporary orders are lost if not included in Judgment

If a stipulation (agreement made formally in court or in writing, signed by the judge) was made or you had a court hearing, the orders based on the stipulation or the hearing were temporary. Although the Order After Hearing is not labeled “temporary,” it is only a temporary order. Once you have a Judgment in your case, your temporary orders cease being effective. If a party failed to make payments under a temporary order and accrued an arrearage, that arrearage would still be due, but in the future it will be the Judgment and not the stipulation or Order After Hearing that governs your case. It is best to specify in the Judgment any arrearages that you contend exist. If you still need a restraining order or an order that the other party keep children on health insurance or pay for your health insurance, you have to be sure that is included in your Settlement Conference Statement and Judgment. Otherwise you will find yourself without such an order.

Read local rules
settlement-conference-03Each county has very specific requirements as to what must go into a Settlement Conference Statement. You must read the local rule in your county to be sure your statement complies with those rules. These local rules are of extreme importance. You cannot do a Settlement Conference Statement without carefully reading the local rule for your county. If you have requested a trial date, and especially if you have received a trial date and are facing trial, you must read the part of your local family rules that applies to settlement conference and trial.
All property should be appraised or otherwise valued

All property of significant value should be appraised or otherwise valued, such as by obtaining the Blue Book value of a vehicle. This includes everything from furniture to businesses to residences. Most counties require that appraisals and reports such as those of vocational examiners be attached to the Settlement Conference Statement.

If you haven’t agreed on values in writing, get an appraisal or other valuation

Because of the cost of appraisals, it may be desirable to agree on the value of your property in writing rather than getting an appraisal, assuming that both of you are knowledgeable and informed about the value of your property. A verbal agreement is not enough. You two are getting a divorce, in part, because you are not communicating. Often, people think they have an agreement, but when it gets written down, it turns out there is no agreement. You need written agreements on values, signed by parties and counsel, or you need appraisals for larger assets.

Trial of issues regarding furniture may not be allowed

The court may not permit you to go to trial about the furniture. If furniture is not agreed on by the end of the settlement conference, the court may send those issues to arbitration. The arbitrator will charge more than $200 per hour, and this could buy a lot of furniture. It makes sense to agree on these issues. On the other hand, you should not give a houseful of furniture to your spouse just because your spouse will not agree to a fair division. It takes two to agree. You cannot do it alone.

File and serve the Settlement Conference Statement

You must serve the Settlement Conference Statement on your opponent or, on his/her attorney if there is one and file the original with the court. If you want to mail the statement rather than having it personally served on your spouse or spouse’s attorney, you have to mail it five days earlier. You need to attach a proof of service by mail to your original which is filed with the court and any copy you serve by mail.

You must meet deadlines
settlement-conference-04You should be cautioned that it is very, very important to serve and file your Settlement Conference Statement on time (which is established by local rule in each county). If you do not do so and you do not reach an agreement with your spouse, the judge may penalize you such as by giving you a fine or may refuse to let you go to trial as scheduled or may find you have admitted matters that you do not want to admit. The importance of prompt service and filing of this statement cannot be overemphasized.
Exchange of witness information

Each large county has a deadline and a procedure which requires you to give information about any expert witnesses you have to your opponent. Some counties even require exchange of information for non-expert witnesses. Finally, most counties require exchange of documents that will be used at trial. These deadlines are absolutely crucial to your case. If you miss the deadline, you could find yourself at trial with the judge prohibiting you from using any witnesses and any documents, which, simply put, means you would lose.

What happens at Mandatory Settlement Conference

Be prepared to spend an entire half day, or even a day, at the settlement conference. The purpose of the conference is to help you settle your case during that time. At the settle¬ment conference your case will be assigned to a judge or judge pro tempore for discussion. (Below the word “judge” is used, but this includes the judges pro tempore.)

Conference may occur in judge’s chambers

If the parties have lawyers, only the lawyers go talk to the judge. If the parties do not have lawyers, the parties go talk to the judge. This conference may occur “in chambers” (in the judge’s personal office) rather than in the courtroom.

Judge gives parties guidance
settlement-conference-05The judge first reviews the written Settlement Conference Statements of both parties. Then the parties have the oppor¬tunity to discuss major issues with the judge. Each party indicates that if the trial occurs, he/she will present certain evidence, and they argue how the law should be applied. The judge then lets the parties know: If your matter proceeds to trial, and each of you presents the evidence you say you will present, I will decide the case in the following manner. Thus, both parties are informed how the judge would decide the case. This means that there may not be much point in going to trial. There is no jury in a divorce trial in California. You get a “court trial” (trial by judge without a jury). Different judges tend to respond to cases in pretty much the same way, so even if you get a different judge, you may well get the same result.
Give serious consideration to what the judge says

The judge may write his/her recommendations on a paper which will be placed in a sealed envelope in your file. If the matter proceeds to trial, the envelope will be opened by the trial judge after he/she decides all of the issues in the case. If it appears from the results that one party was unreasonable in refusing to settle the case, the judge can award attorney fees or sanctions due to that party’s unreasonableness. For example, at the settlement conference the judge might be presented with a case where the parties were married thirty years, had five children (all of whom are now adults), the wife never worked, has no education and is in poor health, and the husband who has a good income is refusing to pay any spousal support at all; the settlement conference judge will probably recommend that spousal support be paid, and will write the amount onto the paper which will be placed in the sealed envelope. Under these facts, virtually any judge is going to award spousal support, and the judge will make the husband pay the wife’s attorney fees or part of them because of his unreasonable refusal to settle. Thus, you need to give very serious consid¬eration to the recommendation of the judge at the mandatory settlement conference. If he/she tells you something you don’t like, don’t just dismiss it, but consider it seriously.

If you agree, go straight to court

If a settlement is reached that is agreeable to both parties, the court may hear testimony as to the “jurisdictional facts” and will later sign the Judgment after you indicate that both parties agree with the agreement. With the judge’s approval in some California counties you can go to the courtroom at the end of the settlement conference, recite the agreement, and obtain the Judgment of Dissolution of your marriage. Some require you to write up the agreement instead of reciting orally. To be prepared for testimony, you can bring with you a list of the items you need to cover in court. At the hearing you use it so you will know what to say to the judge. You later present the Judgment and the Notice of Entry of Judgment and envelopes.

Judgment will not be changed later

Once you have gone to court and told the judge that you agree with the agreement, and the judge adopts it as an order of the court, you have to assume that, at least as to property orders, it is not going to be changed.

When a Judgment cannot be changed

“I changed my mind” is definitely not grounds for changing your Judgment. Nor is, “I was upset.” If you said you agreed to the Judgment, it does not matter that you have changed your mind or that you were upset. This Judgment is for real, and if you don’t agree to it, don’t say you agree. You get only one chance. It does not matter that the agreement may have been stated verbally in court rather than written. The court reporter makes a record of it, and it will not be changed later as to property. As to support and custody/visitation, you must later show a significant change of circumstances to obtain a changed order.

When Judgment becomes final

The Judgment will specify the date on which it becomes final. Until that date, you are still married and cannot validly remarry.

What happens if you agree on some, but not all, issues

If at the settlement conference you reach an agreement on some issues but not on all issues, then you will recite the agreement reached at the settlement conference in open court, and you will proceed to trial later only on those issues that have not been resolved. Even if one party wants to insist on a “package deal” with all issues settling or none of them, the court usually does not want to proceed to trial on issues where there is no disagreement just because there is disagree¬ment on other issues.

MOTION TO CONTINUE

Problem:
You have a trial rapidly approaching, and you cannot be ready with all witnesses and proof by that time.
Solution:
Make a motion to continue the trial.

Motion to Continue How to Postpone a Trial that was Set too Early

A trial can be continued due to witness unavailability
motion-to-continue-01If you have a crucial witness who cannot be available at time of trial, this is one reason to continue a trial. However, the court might feel that you could subpoena this person, and then they will have to work their schedule around your subpoena, which is a court order and very powerful. You must have tried early to subpoena the witness.
A trial can be continued if it was set too early

If your opponent asked too early for the matter to be set on the trial calendar, and declarations of disclosure have not been done, and you are within forty-five days of trial (the date when final declaration of disclosure is due under Family Code section 2015), it may need to be continued because the preliminary preparation for the trial has not occurred. If you have had plenty of time to prepare, and you were just too upset to prepare, this is not a reason that would prompt a judge to continue a case. You must show that you have tried diligently, and it was the other side that did things like delaying discovery, and then a court may continue your trial.

Vacations are a problem
motion-to-continue-02Often, people plan pre-paid vacations, and then later they get a court date. Most courts are sympathetic to the idea that before you got the court date, you made vacation plans, and you will lose your money if you do not go. However, if you are contending that you are financially strapped, the court will look askance on an expensive vacation.
Motion to continue

You need to find out from the court clerk when and in what department motions regarding trial dates are heard. Such calendar-related motions are often heard separately from other motions.

You may lose motion

Just making the motion does not guarantee that it will be granted. You need to (1) move to continue the dates and (2) prepare vigorously for trial in case you lose the motion. Until your motion is decided, you must subpoena information to trial, and you need to serve subpoenas’ and prepare for trial as your motion to continue may well be denied. Never, never assume that a motion to continue will be granted.

If you want discovery reopened, you must convince judge
motion-to-continue-03Usually, discovery is automatically cut off thirty days before the first date on which your trial is set to occur. There¬fore, if the reason you need to continue the trial is that you are lacking in information, in your motion you must explain why you have failed to obtain the information in a timely manner and convince the judge to give you a second chance. This is not easy. Unless the judge specifically orders that discovery will remain open, it will automatically be closed even if the trial is continued. If you do not have counsel, this would be a point at which to contact Attorney Yeamans at (408) 867-8137 and obtain help in drafting a motion to continue the trial.
Must be before settlement conference statement is due

Clearly, your motion to continue, in order to do you any good, will have to be heard not only before the trial date and before the settlement conference but also before the settle¬ment conference statement is due. If you prepare your motion to continue, and the court clerk cannot give you an early enough date for your motion, you may also talk to Attorney Yeamans about how to obtain an Order Shortening Time so you can obtain a hearing date which is early enough.

TRIAL

Problem:
You don’t have an attorney, and you have a trial coming up, and you don’t know how you can represent yourself.
Solution:
Learn about trial fundamentals and how to present your case in this chapter.

Trial How to Present Your Case to the Judge

trial-01
What is trial

The trial is the time to present your witnesses. It is not enough to bring letters or declarations from other people. If you want the court to know what they have to say, you need to bring the people to the trial.

What if no courtroom is available

Unfortunately, at the time and date set for trial, it some¬times happens that there is no courtroom available for the case, and it is necessary to wait anywhere from an hour to several weeks or even months for a courtroom. You need to be prepared to begin immediately on the time and date set for trial, but you also need to be prepared for the possibility that your case will be continued.

How you can find out whether a courtroom will be available

On the day before trial, you can phone the clerk in the courtroom to which your case is assigned, or phone the calendar clerk, and ask whether cases set for trial are actually getting courtrooms. They may sigh and say, “Nothing is getting out.” Or they may indicate they are not sure. Of course, you can never rely on a clerk telling you that there will not be a courtroom, but it is some indication.

Put witnesses on phone-call standby
trial-02You could ask your witnesses to be on phone-call standby so they do not waste their time coming to court when there is no trial. If you do this, however, you have to be prepared to phone them the instant you are assigned to a courtroom so they will be present.
Who testifies at trial

At a divorce trial in most cases only the husband and wife testify, although you are entitled to present any witnesses to the court who have relevant information. If custody/visitation is disagreed upon, the court’s evaluator may testify, and either party can present an opposing expert. If the value of property is disagreed on, experts such as realtors for houses, actuaries for pensions, and accountants for businesses testify regarding values. Anyone with relevant information, including a child, may testify, but a judge may refuse to permit a child to be involved.

Petitioner testifies first at trial

At the trial first the petitioner (the one who began the divorce) presents his/her evidence. As each witness finishes his/her testimony, the other party or lawyer will be allowed to question or “cross-examine” that witness. Once all of the petitioner’s evidence has been presented, then the respondent will be permitted to present all of his/her evidence with cross-examination by the petitioner or the petitioner’s attorney

Your testimony at trial

Because each case is different, of course, this website cannot tell you what you must say at trial.

No hearsay at trial

Generally, you cannot present a letter or a declaration at trial in place of live testimony. You could present a bill to show the amount of the bill, but you cannot present letters. Not even a declaration under penalty of perjury will be allowed. If the other party tries to submit letters or declarations, you need to object that they are hearsay. However, there are many excep¬tions to this rule, and the court may accept certain types of hearsay. DOCTOR, HOSPITAL, POLICE.

Sometimes you agree on the facts but not on what to do

Sometimes you may agree on some of the facts such as the value of the house and only disagree, for example, as to whether it should be sold or whether one party should be allowed to continue living in the home. If that happens, you explain in open court that both parties agree on the value of the home, and you state what that value is, with both parties stating their agreement to it. Then you proceed to present evidence as to the issues on which there is no agreement, which, in this example, is what should be done with the family home.

No jury

In most states a divorce trial there is no jury. The judge makes all the decisions

Should you accept a judge pro tempore

Sometimes when your case is called for trial, the judge will ask you whether you will accept a judge pro tempore. We lawyers never say “yes” to that question without knowing who the specific judge pro tempore is and making sure that he/she is a fair-minded person. It is difficult for you as a non-lawyer to know this about the judge pro tempore. This is one of the benefits of having a lawyer. If you do not have a lawyer, you will have to make the decision blindly whether to accept or reject the judge pro tempore. Rejecting that alternative may result in delay to your trial.

Don’t bicker at trial
trial-03While you may ask your spouse questions at trial, you do not want to argue with your spouse in front of the judge. Arguing will only make both of you look bad. You need to address your comments to the judge, not to your spouse, unless it is your turn to question your spouse.
How to introduce evidence at trial

For each document you wish to present to the court, you should have an original plus two copies, and the copies should be paper clipped to the original. You ask the court clerk to mark the original as an exhibit, and you give a copy to the other party or other attorney. You keep a copy for yourself. Then you or some other witness testifies about the document. Finally, you say, “I’d like to move this exhibit into evidence.” Unless an exhibit is “in evidence,” the judge cannot consider it.

Bring your checkbook to trial

If your trial lasts more than one half day, the court clerk may require you to pay for the use of the courtroom. Bring your checkbook so you can write a check for this expense if necessary.

Decision by the court

The judge may verbally announce the decision at the end of the trial, or the judge may “take the matter under submis¬sion.” When the court takes the matter under submission, this means that the judge is going to think about the decision for a while and may do some legal research on the issues; he/she will issue a written decision later. The judge is required to decide the case within ninety days after the end of the trial.

Judgment

After you are informed of the decision, it is your responsi¬bility to prepare the Judgment and obtain the judge’s signature on the Judgment.

Judgment by judge pro tempore
trial-04If your trial was heard by a judge pro tempore, you must obtain the signature of that specific person on the Judgment. It cannot just be submitted to the court for signature. It must be mailed to the office of the judge pro tempore with a letter requesting him/her to sign it. You should also send the judge pro tempore a return envelope to send the Judgment back to you so you can later file the original with the court.
Send draft Judgment to opponent for approval
trial-05You prepare the Judgment as indicated below, beginning on pages 216, just as when there has been a default or uncontested hearing. However, you add a block of writing on the last page that says:”APPROVED AS TO FORM AND CONTENT”
Name of attorney for other party or other partyBefore the judge will sign the Judgment, you must obtain the signature of the attorney for the other party on it, just as explained on pages 10-11 regarding the Findings and Order After Hearing above. Disagreements as to wording are re¬solved as in the section on Order After Hearing above, begin¬ning on page 11.
File Judgment and notice of Entry of Judgment

Once the other party or his/her attorney has signed the Judgment, you proceed with Notice of Entry of Judgment and envelopes as indicated below beginning on page 216.

HOW TO BE A WITNESS

Problem:
You have a trial or hearing approaching, and you’re terrified of testifying.
Solution:
Learn the basics of being a good witness in this chapter.

Witness Instructions How to Tell the Truth Convincingly Ensure the truth is clearly told

being-a-good-witness-01When you testify in court, you will, of course, tell the truth. You want to tell the truth in a clear and convincing way, not in a confusing and stumbling way. The purpose of these instruc¬tions for witnesses is to help you testify so that your testimony is clear and easily understood.
How to answer questions

Answer questions directly and simply. The best answer starts with a “yes” or a “no” (if the question can be answered “yes” or “no”), and then has one to three sentences of explana¬tion. For example, “Yes, we have three children.” “Yes, when we married, we put a down payment on the home; my parents loaned us $20,000, and the entire amount was used for the down payment.”

Listen to the question

Listen carefully to the question that is asked, and answer it. This is particularly true when it is the judge who asks the question. You may explain your answer, but answer the question. This is extremely important. If you don’t directly answer a question, the judge may think you’re lying or evasive, and it can destroy your credibility.

Do not worry about looking stupid
being-a-good-witness-02Do not worry about whether you look stupid. Just tell the truth, and do not make up answers when you are not sure of the answer. For example, if an attorney says to you in an indignant and shocked manner, “Didn’t you read that before you signed it?!” if you did not read it before signing it, say so. Do not let the attorney’s manner bully you into an incorrect answer. Do not let your fear of looking stupid push you into making up answers.
No guesses

Do not guess. If your answer is an estimate or only an approximation, say so. It is okay to say you are making an estimate, but you should not just guess at an answer.

It is okay not to remember
being-a-good-witness-03If you do not remember something, say, “I don’t remem¬ber.” This is very important. If you are asked about doing something, and you do not specifically remember what you did, say so. You can offer to testify as to your usual practice, and tell the court this is what you are doing: “I don’t remember what I did on February 27, but usually I go straight home from work, arriving about 6 PM.” If you can remember the answers your attorney asks for but then pretend you don’t remember the things the opponent asks you on cross-examination, this will look fishy.
It is okay to talk to people about your case

If you are asked who you discussed the case with, be honest and tell the court who you talked to. On the other hand, discussions with an attorney are privileged and confidential, and while you can say you talked to an attorney, you should not reveal what was said by you and by the attorney. Sometimes a lawyer will try to get around this by asking you, “Did anyone tell you ___?” Then you say yes. Then the lawyer asks who told you, and you say, “An attorney.” Only then does your lawyer know they should object on the basis of attorney-client privilege—and the cat is already out of the bag. Do not reveal anything that any attorney told you unless the judge orders you to do so.

State what you personally saw or heard

In court if you are asked if you “know” something, this usually means you are being asked whether you personally saw or you personally heard something. If your answer is based solely on what someone else told you, say so. In everyday life people feel they “know” things that others have told them, but in court this is not what is meant by “know.”

Be careful of questions with “all” or “none” in them

In court if a question has the word “all” or “none,” you need to understand that this does not mean “almost all” or “hardly any.” “All” means absolutely every single one with no excep¬tions, and “none” means not even one single one. Be very careful about questions with “all” or “none” in them. When asked, “Is that all?” you may want to say, “That is all that I can think of right now.” Do not say, “That’s all he said,” or, “Nothing else occurred.” You may well remember other examples later.

Do not guess about lawyer’s motives

Do not try to guess why you are being asked each question. Just focus on giving truthful answers. This is the best way to respond to tricky questions–with truth.

Loose lips sink ships

Do not discuss the case at all in the courthouse hallways, restrooms, or elevators. Do not discuss the case standing on a sidewalk near the courthouse. That nice lady near you may be your spouse’s lawyer’s secretary.

Miscellaneous rules

Do not put your hand over your mouth while you testify.

Do not chew gum,

You cannot allow yourself to get angry on the witness stand, no matter how insulting the questions you are asked may be. Some lawyers purposely make people angry because you cannot think as well when you are angry. Do not memorize your testimony.

Do not argue with the other party. Address your remarks to the judge, not to your spouse. The only time you will talk to your spouse is when you cross examine him/her.

How to dress in court
being-a-good-witness-04Do not wear anything that is sexy. A woman in court should never wear anything low-cut. Dress as your would for an important business appointment or for church, unless you are being asked to pay support, in which case you will want to dress more casually.

MODIFY JUDGEMENT

Problem:
You want to change your Judgment but don’t know how to.
Solution:
Learn how to modify a Judgment in this chapter.

Modification How to Change Your Judgment Which provisions of your Judgment can be changed

modify-a-judgment-01The provisions of the Judgment as to custody/visitation and support can be modified (changed) later, if there is a change of circumstances, although spousal support can be explicitly made nonmodifiable. The mere passage of time or the fact that a party has changed their mind is not sufficient reason for the court to modify a Judgment. An order for support will be modified when the children’s or party’s needs have greatly changed, in some cases when the party’s incomes have significantly changed, when expenses have increased, or upon other significant change of economic circumstances. Cus¬tody/visitation can be changed, for example, if the children begin to have problems they did not previously exhibit such as truancy, school problems, or behavior problems, and often as the children get older, the noncustodial parent gets more time unless they’re in conflict with the children.
What provisions of Judgment cannot be changed

If the spousal support part of the Judgment is explicitly made non-modifiable (and you’d have to check with Attorney Yeamans to see if language you think provides for non-modifiability really does so), possibly spousal support cannot be changed. The property provisions of a Judgment can never, under any circumstances, be changed, unless the court explicitly reserved jurisdiction to make such changes. Property provisions can be enforced but not changed; if necessary, they might be made more detailed, but the division won’t be reversed. If spousal support is waived (given up) in an order, this will never be changed, if the language is strong enough to have waived the support.

Motion to modify

Modification is obtained by means of a motion to modify, which will be set to be heard in the family law-and-motion department. The court will not look kindly on a motion to modify a judgment if the motion is made less than a year after the judgment was filed, except under unusual circumstances.

Attach prior order or Judgment

It is good practice to attach a copy of the order or Judgment you want to modify, and some courts require you to attach a copy of the prior order or Judgment.

No retroactive modification

Support will not be modified retroactively. That is, if the judge grants you a modification, the earliest it will be effective is the date on which you file the motion. If you have lost your job, file your motion as soon as possible.

Motion to modify support

Any motion pertaining to support always must be accompanied by a completed Income and Expense Declara¬tion or Financial Statement (simplified). Remember, you must do a proof of service for both your ex-spouse and his/her attorney of record if the attorney did not file a formal withdrawal. Also, there are special rules for modifying support when the other party is on active military service.

Motion to modify custody/visitation

The most important thing to remember is that in your Application and Declaration, you must state some change of circumstances, that is, how things are different now than they were at the time the court made its order or judgment.

Who is served with the motion to modify

When a motion to modify is made before the divorce is final, the papers may be served on the attorney if there is one or on the spouse if there is no attorney. After the divorce is final, the papers must be served on both your ex-spouse and on his/her attorney of record if that attorney has not filed a formal withdrawal from the case. Service may be made by mail, but your judge may prefer personal service for motions after judgment, so you may want to arrange personal service just to be safe.

You need two proofs of service-one for your ex and one for the attorney.
Time requirement for notice
modify-a-judgment-02Your ex-spouse is entitled to sixteen court days’ notice of the hearing (plus five extra calendar days if notice is mailed rather than personally delivered). To compute the number of calendar days, you count all days, including weekends and holidays. You may not count both the day of the hearing and the day on which you mail the documents.
The hearing

You must attend the hearing and bring any and all witnesses and documents that you have to court with you. Often parties want to submit to the court letters or declarations written by others; this is hearsay and is not permitted. You have to have the witness in court with you, not just a letter or declaration. At any hearing regarding support, you must have paystubs and your most recent income tax returns. See elsewhere on this website for information on subpoenaing employment and banking information. The judge’s job is to rule on evidence, not to take wild guesses. You have to supply the judge with the evidence that will permit him/her to make a rational decision in your case.

Order after hearing regarding modification
modify-a-judgment-03Just as with the Judgment, the court does not prepare the order regarding your motion to modify. Once the case has been heard, you yourself must prepare the Findings and Order After Hearing. You use only the parts that apply to your situation. It is very important that every time a matter is heard in the court, and the judge makes a decision or the parties make an agreement, a formal order is prepared. Without doing this, it is impossible to know exactly what are the obligations and rights of each party. The process for obtaining a signed Order After Hearing is discussed elsewhere on this website.
How do you know what to put in the order

If a hearing with evidence is required as to some or all issues, the court’s decision will be announced either verbally at the time of the hearing or later in writing (if the matter is “taken under submission” to be decided later). If support is modified, you should be careful to fill in the part of form FL-342 that begins, “THE COURT USED THE FOLLOWING INFORMATION …” The purpose of this is to clearly set forth the facts that the court found this time so that if you need another modification in the future, that motion will be made much simpler because you will only have to prove what are the facts then, not what the court found them to be now. To prove a change of circumstances, you must prove both what the facts were earlier and what they have changed to. If you fill out the Order After Hearing form and attachments in full detail as to the information the court used or attach a computer printout, for any future modification you will have to prove only what the new facts are as the old facts will have been clearly set forth in the order.

RESTORE FORMER NAME

Problem:
You are a woman, and when you got divorced, you did not have your former name restored.
Solution:
Use one-page form to have your former name restored.

Restoring Your Former Name After Divorce Restoration of former name when it was not requested earlier

former-name-restored-01If a party (usually the wife) did not request a former name (which can be either a maiden name or a former married name) at the time of the divorce, she can nonetheless request it later. This is a very simple process in which she fills out the form (FL-395, EX PARTE APPLICATION FOR RESTORATION OF FORMER NAME AFTER ENTRY OF JUDGMENT OR ORDER), has the judge sign it, and she files it with the court clerk. A husband may not request restoration of the wife’s former name; only she can make this request. The ex-wife who wants a former name restored does not have to give her ex-husband notice of this as he has no right to object. On the other hand, if he pays her support, he needs to know the name she uses so he can make out the check correctly.

ENFORCEMENT CONTEMPT

Problem:
You have a Judgment, but your ex-spouse just won’t obey it.
Solution:
Use the methods described in this chapter to enforce your Judgment.

enforcement-contempt-01
Enforcement OSC re Contempt You deserve to have your order enforced

Enforcement is in some ways the most important aspect of the divorce process. You have gone through all the work of getting your judgment or order, and now you need to enforce it. While there are cases where enforcement proves impossible, in most cases, if you make some effort to enforce your order, you can probably obtain compliance. The main thing is not to be passive and not to get worn down, but to be firm and insist on enforcement.

What is an OSC re Contempt
enforcement-contempt-02An order to show cause (OSC) re Contempt directs a party to come to court and show cause, if any they have, why they should not be held in contempt of court. If a person is found guilty of contempt of court, he/she can be sent to jail for five days for each count of contempt, although usually a lighter sentence is imposed. An OSC re contempt is used when a person has engaged in deliberate disobedience of a court order.
Advantage of OSC re Contempt

The advantage of using an OSC re contempt is that it requires only one piece of paper with two sides of writing, so it is a pretty simple document to prepare.

Disadvantages of OSC re Contempt

Unlike the document itself which is simple, the evidence required to prove a contempt can be quite complex. Not only that, but as it is similar to a criminal proceeding, you have to prove your case beyond a reasonable doubt, and the accused has the right to remain silent. You have to prepare your evidence with the assumption that your spouse will remain silent. Finally, judges tend to feel that here are two reasonably decent people involved in a nasty divorce, and neither one of them is a criminal. Therefore, judges tend to be very hesitant to convict someone of contempt even when the evidence is quite persuasive. For this reason, it is often a good idea to do both a contempt and a motion for some other type of enforcement at the same time.

OSC re Contempt form

You need to read the OSC re Contempt form very carefully. Each part of it is worded very precisely and probably pertains to aspects of criminal law. Your OSC re Contempt needs to be very specific and allege the exact date of each violation and clearly to specify what Order was violated. A vaguely worded OSC re Contempt will be thrown out of court.

How to obtain an OSC re Contempt
enforcement-contempt-03You fill out the OSC re contempt form and get a hearing date from the court. You fill in the hearing date, time and department on page one. You have to obtain the judge’s signature on your original OSC re contempt. This is done in the same manner as obtaining the judge’s signature on any other document. Then you make copies, go to the courthouse and pay the filing fee and file the original OSC re contempt, obtaining filed, endorsed copies.
Personal service, not service by mail, is required

The OSC re Contempt must be personally served on your ex- spouse; it cannot be served by mail. This will be done as you cannot yourself serve these papers. You must prepare a proof of personal service form after your ex is served, and file it with the clerk of the court. Your ex-spouse is entitled to receive the papers at least 15 days before the hearing of the OSC re contempt. If you do not serve the papers in time, you have to re-do them, get a new date, and start over.

Send courtesy copy to counsel

If your ex-spouse had an attorney, once the OSC re contempt has been served on your ex-spouse, you should also send a “courtesy” copy to his/her attorney if that attorney has not formally withdrawn from the case.

If spouse fails to appear in court, bench warrant may issue

If your spouse fails to show up for the hearing, if you have a valid proof of personal service on file with the court, the judge will upon request issue a bench warrant for his/her arrest. The contempt cannot be heard in the absence of the accused party. If necessary, he/she will be arrested and brought to court that way. One can choose not to appear at some court hearings, but one should not miss the hearing of an OSC re contempt.

You must prove four elements of contempt
1. A lawful order of the court exists.

There must be a signed, filed order of the court which has been violated. At the hearing of the OSC re contempt you ask the judge to take judicial notice of the order or judgment on which your OSC re contempt is based, indicating the name of the order or judg¬ment, and the date on which it was filed. (All of this information and the exact part of the order violated will be included in the OSC re contempt form. Attach a copy of the order which you believe was violated.)

2. Your ex-spouse knew about the order.

If he/she was present in court when the order was made, or if he/she signed a stipulation, this element will be no problem. You can ask the court to take judicial notice of the fact that he/she was present in court when the order was made, or you can testify that he signed the stipulation. If he/she was not present in court when the order was made, or if he/she did not sign a stipulation, you must make sure that the order or judgment was personally served on him/her after it was filed, and he/she has had a reasonable time to comply with the order after it was served; a proof of service, showing the order was served on your ex-spouse, must be on file with the court. This problem arises when the judge took the matter “under submission” and de-cided it later, or when your ex-spouse did not appear at the hearing, and it went by default. (This part of your proof is stated under item 3a on the first page of the OSC re contempt.) If you cannot prove your spouse knew of the order, you should now arrange personal service of the order you are trying to enforce, do a proof of service, and then later do the OSC re contempt.

3. Your ex-spouse had the ability to obey the order.
enforcement-contempt-04In some cases this is obvious with no proof. For example, if your ex-spouse was ordered to stay away from your house and not to harass you, and he/she came over to your house and broke your window, it is obvious that he/she had the ability to comply with the order or judgment. On the other hand, if you are trying to hold your ex-spouse in contempt for failure to pay child or spousal support or attorney fees, at the hearing you must prove that your ex-spouse had sufficient income and/or assets to comply with the court’s order or judgment. Your ex-spouse has the right to remain silent, and therefore you cannot compel him/her to testify or to bring documents. He/she is permitted to remain silent. You have to use other means than his/her testimony to prove your case; you cannot count on your ex-spouse to say anything
Your ex-spouse willfully violated the order.

For most violations, it is obvious that the violation was willful. For example, if you have a restraining order, and your ex-spouse beats you up, that is certainly a willful action. “Willful” is the equivalent of “intentional” or “malicious.” An example of a violation that would not be “willful” would be a parent’s return¬ing the child late after visitation when the parent’s car had a flat tire, and this caused the lateness. You have to prove not only a violation, but it has to be clear to the court that the violation was a purposeful ignoring of the court’s order or judgment. (Item 3 in the OSC re contempt form states that the disobedi¬ence was done “willfully,” and this is usually all you need to state about willfulness in your papers.

How to prove ability to comply with the Order

Usually there are two good ways to prove that your ex-spouse had the ability to make payments. First, you can serve a subpoena duces tecum on his/her employer, requesting copies of pay stubs and W-2 forms. Second, if you know where he/she banks, you can subpoena bank statements to show he/she had money in the bank at the time of the contempt. The subpoena for the bank must be accompa¬nied by a Consumer Notice and all these papers must be served on your ex-spouse by mail at least 15 days before the hearing. Doing both the subpoena on the employer and the subpoena on the bank is recommended. You will need to have some third person serve these subpoenas’ and fill out the proof of service form.

Ensure that witness and records are in court

You will need personally to accompany the person who serves the subpoena and explain to the employer and to the bank that the personal appearance of the custodian of records in cour on the day of the hearing will be necessary. In most cases, the employers and banks just mail the records to the person who has served the subpoena. However, in the case of a hearing of an OSC re Contempt, the mailing of records may not be sufficient, and you need the witnesses to come to court. On the day of the hearing, before the case is called, you have to find out if the witness is really in court, and if they have failed to appear, you will have to explain the problem to the judge and ask for a continuance upon showing the judge proof of service; you will also have to ask the judge to issue a bench warrant for the custodian of records to obtain their presence in court. This will not be done without a valid proof of service. (Item 3b of the OSC re Contempt states, “Citee was able to comply with each order when it was disobeyed.” Usually, that is all your papers have to say about ability to obey the order; it is the proof in court that is complicated.)

Violations must be recent

If the violation occurred more than three years ago for a support order or more than two years ago for other types of orders, the statute of limitations has run, and the person cannot be convicted of contempt although other remedies may be available.

If spouse testifies, you may cross-examine
enforcement-contempt-05You need to be very clear at the hearing in proving all four “elements” of contempt as listed above. You need methodi¬cally to prove all four elements for every single violation. Once that is done, your ex-spouse will have his/her chance to rebut your proof (to show that your proof is not really correct). In other words, he/she will be allowed to offer excuses. When he/she has testifies, the right to remain silent is given up, and you can then ask questions, that is, you can cross-examine your ex-spouse, and he/she must respond. You don’t want to get into an argument in front of the judge, but you are entitled to ask questions if you think that is necessary. It is best to write out in advance the exact questions your need to ask your spouse. Otherwise, you will find yourself snarled up in court.
Judges are reluctant to find people in contempt
enforcement-contempt-06The judge will then rule on the contempt, usually announc¬ing a decision as to each violation separately. You should be warned that the judges are very reluctant to find anyone in contempt. This is very frustrating when you have struggled to obtain your order or judgment, and now your ex-spouse is flagrantly ignoring your hard-won order or judgment, as if it meant nothing. Not only that but if you have children, the judge may get angry with you for continuing to fight with your ex-spouse. The judges all regard it as harmful to the children when parents fight. On the other hand, some “contemptuous” actions (violations of a court order) are so harmful to the child(ren) that you have no choice but to try to enforce your order. Also, if you really need the support, you may have to continue to fight for your support. The judges are more likely to find contempt when support is involved than when more personal things such as custody and visitation are involved. When a parent has paid zero support during a period when he/she had proven employment, the court is quite likely to find a contempt.
Punishment for contempt of court

The judge can impose various punishments on your ex-spouse if he/she is found in contempt. Community service and/or a jail sentence of five to ten days per violation is possible, and each month in which no support was paid can be treated as a separate violation. At the end of a hearing involving particularly willful repeat violations, judges have been known to have their bailiffs immediately take the accused into custody, sitting him/her in the jury box in the courtroom until transportation to the jail can be arranged. However, this is rare, to say the least. More likely is the judge suspending sentence and saying that if there are no further violations, and any arrearages of support are paid by a certain date, he/she will not impose any sentence. Also the judge can award attorney fees or impose any other punishment he/she believes to be proper.

You prepare the order

After the judge announces the decision, you have to prepare a written Order re Contempt. You then have to obtain the judge’s signature on that order in the same manner as on the Order After Hearing discussed. Unfortunately, if you have a very hard-headed ex-spouse, they may continue to disobey even after being found in contempt, and you will have to take further steps to obtain compliance, such as filing a second OSC re Contempt.

GRANDPARENTS RIGHTS

Grandparents Rights

In 2003 the US Supreme Court dealt a serious blow to grandparents’ hopes of visitation with grandchildren in Troxel v. Granville (2003) 530 U.S. 57, 120 S.Ct. 2054. In that case a Washington statute provided that any person may petition in court for visitation at any time, and that the court may order visitation rights for any person in the best interest of the child. The Court held that law violated the due process rights of the custodial parent, as applied to permit visitation to the parents of the other parent, who was deceased.

After the Troxel case lower courts were denying grandparents’ requests so widely that one California court refused to order that the grandparents could visit, even though both parties agreed to it; that court was reversed, and the visitation was okayed in In re Marriage of Ross and Kelley (2003) 114 Cal.App.4th 130, 7 Cal.Rptr.3d 287. But if all parties agree, normally a court order wouldn’t even be necessary so the case has little application.

Current California law as of July 2009 provides three ways in which grandparents may obtain court-ordered visitation with their grandchildren: Family Code §3104 (during parents’ marriage), §3103 (authorizes reasonable grandparent visitation in any custody proceeding), and §3102 (visitation for specified relatives of deceased parent).

California Family Code § 3102 appears to offer hope of visitation to relatives of a deceased parent:

  • (a) If either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child during the child’s minority upon a finding that the visitation would be in the best interest of the minor child.
  • (b) In granting visitation pursuant to this section to a person other than a grandparent of the child, the court shall consider the amount of personal contact between the person and the child before the application for the visitation order.
  • (c) This section does not apply if the child has been adopted by a person other than a stepparent or grandparent of the child. Any visitation rights granted pursuant to this section before the adoption of the child automatically terminate if the child is adopted by a person other than a stepparent or grandparent of the child.

However, in Punsly v. Ho (2001) 87 Cal.App.4th 1099, 1106, 105 Cal.Rptr.2d 139 a California Court of Appeal held that section 3102 is unconstitutional if applied to a fit parent who offers some visitation. In that case the Court of Appeal summarized its understanding of the Troxell case:

grandparents-rights-01The court … made three important determinations. First, the court noted the grandparents did not allege, nor did the trial court find, that the mother was an unfit parent. This fact ran contrary to the presumption that fit parents act in the best interests of their children. Second, the trial court in the case gave no special weight to the mother’s determination of her children’s best interests. Rather, the findings of the trial court indicated it effectively placed the burden on the mother to disprove a presumption that visitation with the grandparents was in her children’s best interests. Third, the court emphasized the trial court’s failure to give any weight to the fact the mother voluntarily agreed to allow visitation with her children’s grandparents. The dispute at hand arose because the grandparents wanted more than the mother willingly offered. Based on these factors, the court determined the Washington statute, as applied, was unconstitutional. The court concluded “this case involve[d] nothing more than a simple disagreement between the Washington Superior Court and [the mother] concerning her children’s best interest.” It further explained, “the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a ‘better’ decision could be made.”

Applying the US Supreme Court case to California law, the Court of Appeal held that:section 3102 authorizes a court to grant such visitation to a child’s grandparents solely upon finding it is in the best interests of the child. It is when a court exercises this discretion to substitute its own judgment of a child’s best interests for that of a competent custodial parent, that a parent’s fundamental rights are threatened. Further, this threat is not mitigated by the appointment of minor’s counsel, whose similar function is to provide an independent assessment of a child’s best interests. This injection of the state’s judgment into the affairs of a fit parent, not the details of the statute authorizing such an intrusion, fueled the Troxel opinion. (87 Cal.App.4th at 1107.)

Thus, if a parent is willing to permit some visitation to the grandparent(s), and that parent is not alleged to be unfit, the California courts will not intervene, even when one parent is deceased. This can have the unfortunate effect that the child loses its parent, and the loss is compounded by almost complete loss of the grandparents—but that’s the law at present.

In another case a step-sibling applied for visitation, and a California appellate court held that Family Code section 3102 is unconstitutional when applied to allow sibling visitation over the objection of a fit parent. Herbst v. Swan (2002) 102 Cal.App.4th 813, 125 Cal.Rptr.2d 836.

Family Code section 3014 gives grandparents some limited opportunity to request visitation, but it applies only if one parent is absent (whereabouts unknown), and the other parent joins in the grandparents’ petition.

If visitation has been granted to a grandparent, and then a step-parent adoption occurs, that is grounds for terminating the grandparental visitation.

The bottom line is: If you’re a grandparent, try to get along with your child and the other parent so you can see your grandchild(ren), even if it is only occasionally. Your rights as a grandparent in relation to an oppositional custodial parent are very, very limited at best.

LINKS

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