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Frequently Asked Questions from Ane Murphy
Any unused portion of your retainer is refunded to you.
No. You can represent yourself. Some judges are very accommodating of persons without lawyers, known as "pro pers" or “self-represented” parties, and some are less so. You are, however, at a big disadvantage if the other party is represented by an experienced family law lawyer and you are representing yourself.
Every divorce is different. When parties complete and exchange the mandatory Disclosure forms and come up with a reasonable agreement to divide the assets and debts, determine spousal support (alimony) and if there are children determine custody and visitation and child support, the divorce can proceed smoothly and an agreement can be reached in a few months, but the divorce will not be final until the six month waiting period has run. On the other hand if the parties argue over any of the issues or complicated discovery needs to be done to divide the assets and debts the divorce can take years to complete. Complicated divorces often proceed in pieces as child custody will be litigated separately from property issues.
A retainer is required up front and deposited into a Lawyer Trust Account. You will receive an itemized billing statement once per month detailing the work done on your case for that period. The amount owed is then withdrawn from your Trust Account. We require a minimum retainer balance be kept current in all cases. That amount is determined at the in-office consultation.
When the parents cannot agree on a custody arrangement, the court will make the decision for them. When determining the child's best interests, the court may consider many factors, including:
- The child's age
- The child's gender
- The child's physical and mental health
- The parents' physical and mental health
- The parents' lifestyles
- Any history of abuse
- The emotional bonds between the parent and the child
- The parent's ability to give the child guidance
- The parent's ability to provide the basic necessities, such as food, shelter, clothing and medical care
- The child's routines, including home, school, community and religious practices
- The willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent
- If the child is above a certain age, the child's preference
- Who has been the child's primary caretaker
California Family Code § 4050 sets forth a formula used to calculate child support. The formula takes into consideration each parent’s income, the time each parent spends with the children and any tax considerations that affect the parties’ incomes. The Family Law Judge must use the formula and can only deviate from the guideline formula if he or she makes specific findings that doing so is in the best interest of the minor child(ren). Both parents have an obligation to support their children. The formula is complex and the Court and attorneys use support calculation computer programs approved by the Court. Common programs are “Dissomaster” and “SupportTax”. The Department of Child Support Services uses its own program. In addition to baseline guideline child support there may be additional child support known as “add-ons” for childcare needed for employment or education to gain employment and uninsured healthcare costs for the minor children. There may also be discretionary “add-ons” for education or special needs of the children.
There is not a typical cost for a divorce, as each situation is truly unique. After a consultation with Ane Murphy we can quote you a retainer for your action that is fine-tuned to your specific needs. We can also attempt to mitigate your costs by offering unbundled or limited scope services.
In California the court is mandated to use the state guideline formula, except in a few very rare cases. This is a complicated formula in which the factors weighted most heavily are each parent's income and the timeshare with each child. Tax factors, deductions for property taxes, deductions for mortgage interest deductions for child support paid for a child from a different relationship, deductions for spousal support paid to a former spouse, deductions for payments to retirement accounts, deductions for payments to pre-tax accounts, deductions paid for health insurance, and other deductions may be taken into consideration as well. At times the parties do not agree on the factors that are to be input into the guideline formula. Child support is very high in California and it is in the best interest of the parents and the children to make sure the calculations are done properly. Given the complexity of the support factors, it is a very good investment of time and money to have an experienced family law attorney determine the appropriate amount of guideline child support.
You can try http://www.scscourt.org/self_help/family/family_help.shtml, the self-help portion of the Santa Clara county Family Court's own website. We also have other resources that you can view on our Resources page.
In most instances, a case will settle without going to trial. However, there may be instances where a court hearing is necessary (i.e., if there is no agreement for a temporary visitation schedule, a judge will often need to make that call). If a contested hearing is scheduled, the parties are required to be present.
The amount of child support may be modified under certain circumstances and through a variety of methods. The simplest method is for the parents to agree to a change, but the court must approve even an agreed-upon change in order to be enforceable. When there is no voluntary agreement, the party seeking the change must request a court hearing at which each side will present, usually through counsel, the reasons supporting and opposing the modification. The court usually will not grant the request unless there has been a significant change in circumstances that justifies the change, such as a significant increase in either parent's income, a job change or a considerable change in the needs of the child. Changes in the child support laws, too, may justify a change in previously issued orders.
One of the biggest complaints people have with their lawyer is that they pay a lot of money and never hear from the lawyer, or cannot talk to him/her personally and instead get pawned off on their staff. At the Law Office of Ane Murphy we pride ourselves on our client service. Our office policy is to frequently access email and to return phone calls within 24 hours during the business week. To the extent necessary email and calls are responded to after-hours. We recognize that a family law matter can be very stressful and our clients need their questions answered.
The obligation of spouses to support each other does not necessarily terminate when they divorce. In California the term is “spousal support” under Federal Law the term is “alimony” both terms mean when the parties separate one spouse pays money to the other to support that spouse. Spousal support is distinguished from child support as spousal support is to support a separated or divorced spouse and child support is to support the children. If the divorce will leave one spouse with very little income and the other with enough to contribute to the low-income spouse's support, the court will usually award spousal support, at least temporarily. Historically, spousal support was awarded to homemaker wives, and paid by wage-earning husbands; that is no longer always the case. Now, either spouse may be awarded spousal support if the other has the more substantial income and the recipient spouse's income is insufficient to support him or her at the level to which the spouses were accustomed during the marriage. Spousal support is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties' children while the other climbed the career ladder and achieved a higher income. In such cases, the spousal support will often be temporary, providing income for a period of time to enable the recipient spouse to become self-supporting. This temporary, or rehabilitative, spousal support enables the recipient spouse to further his or her education, receive job training, reestablish himself or herself in a former career, after which time he or she can be self-sufficient.
Every parent has the duty to provide his or her children with the basic necessities of life, including food, clothing and shelter. This duty usually terminates when the child is emancipated, when the child graduates from high school, when the child enters the military or when the child marries, but the support obligation can extend beyond that point if the child is unable to support him or herself as a disabled adult child.
If you are unable to continue to fund the litigation, there are options available to you. We do offer unbundling as part of our service.
Some divorces are simple and can be handled with a minimum amount of court involvement. However, some divorces are more complex and can take many different courses. The following is a basic outline of the divorce process.:
- One spouse contacts a lawyer, who prepares a Petition for Dissolution of Marriage.
- The Petition is filed with the court and served on the other spouse, together with a summons that requires the spouse's Response.
- The served spouse must file a Response within 30 days or the Petitioner can request that a default be entered. Sometimes parties agree that it is not necessary to file a Response. However, both parties must still complete and exchange Disclosure documents. If agreement is reached on all issues the agreement is incorporated into the final Judgment. It is generally best for the Respondent to file a Response to the Petition for Dissolution in order to protect his or her interests. That does not mean that cannot divorce amicably.
- If agreement is not reached the parties, through their attorneys, engage in "discovery," during which they exchange all documents and other information relevant to deciding the issues in the divorce such as property division, spousal support, child support, etc.
- The parties may attempt to reach a settlement, which can be initiated voluntarily or facilitated by the parties' lawyers or a neutral third party, such as a mediator.
- If a settlement is reached, the agreement is submitted to the court.
- If the judge approves the agreement, he or she issues a divorce decree that includes the terms to which the parties agreed. If he or she does not approve it, or if there has been no agreement, the case will go to trial.
- At trial, the attorneys present the evidence and arguments for both sides; the judge decides the issues and grants the divorce.
- Either or both parties can appeal the judge's decision to a higher court.
The parties in a divorce can agree to the division of (or the judge will divide) all community property owned by the parties. Under California law property acquired during marriage is presumed to be community property unless acquired by gift or inheritance. Community property generally includes most of the property the couple acquired during the marriage. Examples may be the marital home, second home, furnishings and appliances, artwork, vehicles, financial assets, investments, retirement accounts and privately owned businesses. The value of intangible property may also be divided. Examples of divisible intangible property include the value of a patent on an invention, the value of the celebrity status of a spouse's name or the goodwill value of a business owned by one spouse. The value of these intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly. It is not always easy for a spouse to identify all of the assets that may be available for valuation and division. Under California law it is mandatory for the parties to exchange Preliminary Declarations of Disclosure which consist of a party’s Income and Expense Declaration, Schedule of Assets and Debts and Declaration of Disclosure. It is mandatory to disclose all assets and debts whether they are separate property, community property or quasi-community property. A party's lawyer may help with this issue through discovery. During discovery the parties' attorneys' exchange documents that disclose each party's income, assets and liabilities. In some cases the parties and other witnesses may be deposed. In some cases forensic accountants are retained to trace the finances and assets.
It is critically important that a spouse has a clear understanding of the family finances. If a divorce or separation is being considered it is important to obtain copies of all of the financial documents for at least the past five years, including but not limited to: tax returns, bank statements, check registers, Quicken or other financial accounting records, credit card statements, brokerage accounts, pay stubs, deeds, vehicle registration and other documents regarding the family finances. Each spouse has a fiduciary duty to disclose all assets, income and debts whether separate or community both during marriage and during a divorce. If a spouse fails to disclose such information that spouse can be sanctioned and the other spouse could be awarded 100% of the hidden asset. If your spouse is hiding assets, it unfortunately escalates the cost of the divorce because we must use formal discovery and often have to hire private investigators and forensic accountants to achieve resolution.
Ane Murphy deals with all issues concerning restraining orders and abuse allegations. These issues can dramatically impact a divorce and child custody cases. An abused spouse can seek restraining orders, which effectively provide temporary child custody and sole use of the marital residence and protecting the victim. Convictions of domestic violence can also significantly impact spousal support. Sometime vindictive false allegations are made which can significantly negatively impact a party. Child custody may be significantly impacted. Child support and spousal support may also be impacted. Having an aggressive and experienced divorce attorney is the best way to deal with those types of accusations.
Every divorce is different and therefore the terms of the Marital Settlement Agreement will be different. However, every Martial Settlement Agreement must set forth the agreement (or if no agreement by the parties, the orders by the court) on the following items::
- Division of Property;
- Division of Debts;
- Spousal Support (Alimony);
- Child Custody if there are children of the marriage;
- Child Support;
- Attorney’s Fees
Family Law cases are civil cases that consist of divorce, annulment, domestic partner dissolution, parentage, domestic violence, child custody, child support, spousal support, attorney’s fees, division of property and division of debts.
Ane Murphy will go to court with you. You will not be sent to court with a junior associate or another attorney.
The State of California has set rigorous standards for knowledge and experience in various areas of law before an attorney can become a Certified Specialist in Family Law. The State Bar certifies attorneys as specialists who have gone beyond the standard licensing requirements. Ane Murphy is a Certified Specialist in Family Law. Before attorneys can refer to themselves as a specialist in an area of law, they must obtain State Bar certification. Very few attorneys meet the requirements or rigorous demands necessary to become State Bar certified. Hiring a State Bar certified attorney helps ensure that you are retaining the services of an attorney who is a certified specialist in his or her area of law.
The general answer is the Family Court Judge will not appoint a lawyer to represent you in a family law matter. Family law is a civil action and you are not entitled to have a lawyer appointed for you unlike a criminal action in which you may have a lawyer appointed to represent you. The exception in a family law matter is a “contempt” matter in which it is alleged a party failed to follow a court order. A contempt action is a quasi-criminal matter in which if convicted of contempt you could be sentenced to jail. Therefore if you are accused of contempt and cannot afford to hire your own lawyer the court may appoint a lawyer to represent you if you meet certain financial criteria.