Your Options for Resolving a Contested Divorce in California
Michael Shook • Oct 09, 2022
The end of a marriage can be devastating enough without the looming possibility of a "messy" divorce. While some couples have been able to bring legal closure to their relationship amicably, others have unfortunately encountered unsettled issues that raise the stakes — and hostility — during divorce proceedings. Whether a divorce is somewhat smooth and simple or hotly disputed depends on so many variables, making it hard to predict how the process will go. Understanding the different avenues that parties can take to resolve a contested divorce can help you navigate potential challenges that may arise.
The Divorce Process
Divorce proceedings are initiated by whichever spouse files a divorce petition, which is a legal document setting out information about the marriage and the petitioner's position on how the couple's property should be divided, who gets custody of the children, and child or spousal support. A summons must also be completed. This document gets served to the respondent spouse to give them notice that divorce proceedings have been started and that they have 30 days to provide a response.
If there are children of the marriage under 18 years of age, a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act must be filled out as well. If the petitioner needs a court order granting monetary support, designating who remains in the matrimonial home and who pays the bills, and setting out where the children will live in the meantime (before the final resolution of the divorce), they will have to fill out more forms and request a temporary court order. The filing fee is around $450, but a fee waiver can be requested if the petitioner cannot afford to pay the filing fee.
The issues set out in the petition must be resolved before a divorce can be finalized by the court. If the respondent agrees to the terms set out in the petition and signs the divorce papers indicating this, the divorce is "uncontested." From there, a judge of the family court will read the divorce papers and ultimately — assuming everything is in order — will issue a final order that gives the terms the force of law. If the respondent disagrees with any of the main issues, it is a "contested" divorce and the expectation is that the case will be litigated.
Litigating The Divorce
If the respondent contests some or all of the petitioner's suggested terms, they fill out their response form to provide their version of the facts and set out how they think the court should resolve the disputed issues. Property division — and especially child custody and visitation — can be highly emotionally charged. Parties may accuse each other of misrepresenting income and engage in some "mudslinging" about behaviors during the marriage and competency to parent. During the trial — like any other civil action — both sides present their case, call and examine/cross-examine witnesses, and submit documentary or other evidence to support their side.
Apart from taking a lot of time and effort, litigation can be costly. Parties may have to take time from work to attend court and, of course, pay their lawyers to conduct the trial, court conferences, and motions.
Many couples take their case through alternative dispute resolution to see if they can work out the terms before they have to resort to litigation. This avenue tends to be less expensive than court proceedings, and the parties may end up agreeing to and adopting terms that are more agreeable and feel more fair. Some prenuptial agreements contain a clause directing the couple to seek alternative dispute resolution prior to litigation for these reasons. Otherwise, alternative dispute resolution cannot be forced upon a party. Unless both parties agree — or if the alternative dispute resolution process fails — the default is litigation.
Mediation is conducted by a neutral, professional mediator agreed upon by the parties or set out in a prior agreement. The mediator's objective is to see what issues the parties can agree upon. The mediator does not have the power to force either of the parties to adopt a particular term. They facilitate negotiations with an eye to encouraging compromise. Psychologically, they may also try to get the sides to understand each other's positions and concerns, making it more likely the parties will work out terms agreeable to both of them.
"Collaborative divorce" is basically the parties trying to negotiate a settlement of the issues with and through their legal representatives. The lawyers are there to ensure that their client's interests are protected and that whatever agreements are reached between the parties accord with California law. Ideally, this process results in a joint agreement that a judge can review and ratify in court.
Notably, child custody can not be "settled" outside of the courtroom in the same way as the other terms. If there are children of the marriage, the parties still have to go through the custody considerations and issues before a judge. The judge's job is to ensure that the best interests of the child(ren) are reflected in the terms of custody. Still, parties may agree on child custody arrangements informally, which can make custody easier and quicker to formally resolve in court if they can show that their terms reflect the best interests of the child(ren).
The Role of the Lawyer in Divorce Proceedings
A lawyer can assist their client — and the process — at any step. Having a lawyer draft the petition can ensure that the facts and issues are properly represented and that no potential issues are overlooked. Similarly, the respondent's lawyer can draft the response, making it more coherent and comprehensive than a lay person could. If the court documents are well-drafted to begin with, the parties can avoid having to make motions to alter the divorce papers because of missing something.
During mediation, lawyers can assist with framing the legal principles and issues and ensure that all agreements are in the best legal interests of their clients. In the case of a collaborative divorce, it is always smart to have lawyers assist in negotiations, to make sure that no party's interests are compromised and that agreements follow the law. The lawyers can also draft the final agreement that will end up as a court order, saving the judge some time and the parties, costs.
Lawyers can also help ground the parties so that reason is more likely to prevail. It is very common for parties to react emotionally and lose sight of what is important (and legal) — especially when the well-being of children is involved. By hiring lawyers early on, parties can actually save themselves a lot of aggravation.
Understanding Premises Liability in California
By Michael Shook • 15 Sep, 2022
If you suffer an accident on someone else's property due to unsafe conditions, the concept of premises liability may come into play. This type of personal injury claim is based on proof of negligence, which is a legal causation resulting from a breach of duty of care. If a property owner fails to protect visitors from dangerous conditions under their duty of care, they can be held liable for any damages that occur. Premises liability cases include a range of potential scenarios, some of which can lead to compensation. Let's review the basic principles of premises liability, including possible scenarios, key components, and duty of care considerations. Premises liability scenarios Premises liability covers a wide variety of personal injury cases, from dog bites and falls to fires and flooding. While a number of key components need to be fulfilled, all of which are listed below, this umbrella term covers the following situations and many others: Slips and falls Impact injuries Personal assaults Dog bites Water accidents Fires and smoke Toxic exposure These events can occur in a range of environments, from residential properties to commercial and industrial facilities. Common places include but are not limited to hotels, motels, retail spaces, parking lots, and construction sites. Personal injury claims originate for a variety of reasons, many of which are related to lack of maintenance or incomplete care. The following examples all relate to negligence, which means the property owner failed to use reasonable care: Defective property conditions Inadequate property maintenance Lack of mitigation or warning Inadequate security or lighting Negligent actions or lack of action Key components of premises liability In the state of California, premises liability law is based on proof of negligence by the owner or possessor of the property. This law falls under California Civil Code 1714, which covers the obligations of property owners in a wide range of cases. Anyone who owns, possesses, or controls property in California is obliged to provide “ordinary care,” which is based on the following two conditions: To maintain the property in a reasonably safe condition To warn visitors of any non-open and non-obvious dangers This law covers all injuries that caused harm and were caused by a lack of ordinary care. Premises liability is not always relevant, however, with the following components needed for any type of personal injury claim: The property is controlled by the defendant. The defendant did not provide “ordinary care” to prevent injury. The plaintiff was harmed as a result. The negligence was a substantial factor in the cause of injury. Essential facts of premises liability The best way to understand premises liability in California is to review the actual laws as they are stated. The following essential facts are listed under the Judicial Council of California Civil Jury Instructions (2022 edition): [Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed because of the way [name of defendant] managed [his/her/nonbinary pronoun/its] property. To establish this claim, [name of plaintiff] must prove all of the following: That [name of defendant] [owned/leased/occupied/controlled] the property; That [name of defendant] was negligent in the use or maintenance of the property; That [name of plaintiff] was harmed; and That [name of defendant]’s negligence was a substantial factor in causing [name of plaintiff]’s harm. What is duty of care? Duty of care is a legal term intrinsic to personal injury cases, including premises liability. In California, the “duty of care” is the legal obligation to use reasonable care in an effort to avoid injuring others. A duty of care includes specific statutes and court decisions. It can be created by various jurisdictions, including federal, state, local, and administrative statutes. At a federal and state level, including in California, it can also be the result of a court decision based on “common law.” To prevail in a California personal injury case, a plaintiff must show that: The defendant owed the plaintiff a duty of care. The defendant breached that duty. The plaintiff was injured as a result. Duty of care is a legal obligation relevant to individuals who own, lease, occupy, or control a property. In any of these situations, people must exercise reasonable care to maintain and inspect their property on an ongoing basis. If any dangerous conditions are noticed, they must carry out repairs and/or provide adequate warning related to this danger. Duty Of Care Considerations Legal obligations under duty of care can be difficult to quantify in some situations. A number of factors come into play when deciding whether or not the defendant used reasonable care. While premises liability is relevant whenever the defendant allowed a dangerous condition, the following elements need to be considered to measure reasonable care: The location of the property How the person came onto the property The likelihood of experiencing harm The probable seriousness of harm Knowledge of the risk of harm The difficulty of protecting against this risk Whether the person could control that condition Other relevant factors related to this risk Premises liability claims and damages If someone suffers an accident that led to an injury, and this event occurred on someone else's property, the person injured may have the right to seek compensation. If the elements listed above have been satisfied, and the person involved has failed their duty of care through negligence, the plaintiff has the right to recover the following damages: Medical bills Ongoing medical treatment Lost wages and earning capacity Physical therapies Physical scarring or disfigurement Psychological pain and suffering If you have experienced a personal injury as the result of unsafe property conditions, you may be able to make a premises liability case. Please review the information above to understand the basic principles of premises liability in California. If you need professional advice or want to move forward with a case of your own, it's important to contact a recognized and experienced personal injury attorney.
What to know about California drug laws
By Michael Shook • 02 Aug, 2022
Understanding Drug Laws in California Drug policy in California refers to a range of individual laws for different drug types and crime classes. Drug policy can be categorized and understood in two primary ways — either related to specific substances or related to specific crimes. Certain substances are associated with penalties based on their accepted medical use and ability to do harm, and specific crimes are measured in seriousness based on their severity and impact on society. California drug laws can be complex and difficult to understand. Different penalties and provisions are in place for different substances and drug charges. For example, while the US state of California is known to have lighter sentencing for the possession of certain controlled substances, penalties for cultivating, manufacturing, and distribution can still be very harsh. Let's take a detailed look at drug laws in California in terms of both specific substances and crime classifications. Overview of California drug laws In California, drug laws exist for a range of controlled substances. From illegal drugs like heroin and cocaine to legal prescription medications, a schedule of controlled substances has been created by the State of California. Five groups exist based on medical application and addiction potential, with drugs in each category linked with similar legal punishments. Schedule I drugs have a high abuse of risk and no safe accepted medical use. This group includes opiates, opium derivatives, base cocaine, MDMA, LSD, mescaline, peyote, and all forms of synthetic cannabis. Schedule II drugs also have a high potential for abuse, but they also have accepted medical uses. This group includes cocaine, methamphetamine, morphine, oxycodone, Adderall, Ritalin, and Vicodin. Schedule III drugs are potentially addictive and have a relatively low acceptance in the medical community. This group includes ketamine, mid-to-high dose codeine, anabolic steroids, methenolone, nalorphine, and benzphetamine. Schedule IV drugs have a potential for addiction and significant medically accepted use. This group includes many prescription drugs, including tramadol, Ambien, and benzodiazepines such as Valium and Xanax. Schedule V drugs are less likely to create dependency, and they also have accepted medical uses. This group includes a range of prescription drugs such as low-dose codeine, buprenorphine, Robitussin AC, Lomotil, and Motofen. What about cannabis? Cannabis deserves special mention, with laws surrounding its use having recently changed in California and across much of the United States. While marijuana, which describes dried material from the cannabis plant, is still included in Schedule I under United States law, it is increasingly noted for its medicinal benefits and lack of addictive properties. A number of Propositions and Acts surrounding marijuana have been adopted over recent years, with the following two being the most significant: In 1996, Proposition 215 was passed in California, which removed state-level criminal penalties for the use, possession, and cultivation of marijuana for medical use. The Adult Use of Marijuana Act went into effect in 2018. Adults in California can now possess or grow marijuana for personal use, although it is still illegal to sell or possess marijuana with intent to sell. Overview of crime classes Along with drugs themselves, drug policy in California can also be understood based on types of criminal activity and associated charges. From possession to distribution and manufacture, the following drug crimes and sentences are noted in California: Possession Most drug crimes are related to possession, which is defined under Drug Possession Law in California - Heath and Safety Code 11350. Also known as possession of a controlled substance, this is a felony offense that can be charged as a misdemeanor. The following types of possession are listed under California law: Actual Possession means the drug is physically on your person. Constructive Possession means the drug is somewhere “within your control” where you could easily access it. Joint Possession means two people have shared ownership of the drug. Possession with intent to sell implies distribution, which is listed below. To convict someone of drug possession, the following proof is required: You had control over the drug. You were aware that you possessed the drug. You had knowledge that it was an illegal drug. You had a usable amount of the drug. You did not have a valid prescription for the drug. Distribution Also known as drug dealing or drug trafficking, distribution describes a broad range of drug crimes linked with selling, transporting, administering, and importing various controlled substances. This includes the distribution of illegal drugs and the illegal distribution of prescription drugs. Manufacturing Drug manufacture describes a broad range of drug crimes linked with producing, processing, or cultivating controlled substances. This crime includes direct involvement with the manufacture and indirect involvement with the supply of chemicals and equipment. Drug manufacture is a serious crime that involves heavy penalties. Overview of criminal charges and penalties When someone is charged with a drug crime, the potential conviction and sentence received depends on a range of factors. Common factors include the type and quantity of the drug, with distribution cases also affected by the location of the transaction and whether or not minors were involved. Most drug crimes in California involve possession or small-scale transactions, with large-scale trafficking and manufacture associated with longer sentences. Depending on the crimes listed above, drug charges fall under one of the following three groups: Infractions - don’t include jail time Misdemeanors - charges with minor penalties Felonies - often involve jail time What is Proposition 47? Proposition 47 was passed in 2014, with this law reducing some felonies to misdemeanors. While drug crimes are highly variable, and various factors affect penalties, this law reduced the legal severity of some drug crimes. In California, drug diversion programs are sometimes used instead of jail time, as a form of alternative sentencing for less serious drug crimes. If you or someone you know has been arrested for any kind of drug crime, or you are currently being investigated, it's vital to speak with a lawyer as soon as you can. Please contact our legal experts to discuss the specifics of your case, including possible defenses, strategies, and tactics to help you achieve the best possible outcome.
Factors In Child Custody Decisions
By Michael Shook • 06 Jul, 2022
If you’re a parent currently in a child custody dispute, it’s essential that you have all of the information concerning which factors the courts use to make decisions with child custody cases. After all, this decision will span legal custody. Legal custody is the right to participate in any decisions regarding your child’s life, visitation rights, and physical custody. Many court systems prefer the negotiated parenting agreement when it comes to child custody arrangements because they’re amenable to both parties involved. However, there are some situations where a negotiated custody agreement isn’t in the child’s best interest, or it may simply be impossible. The overarching determining principle in a child custody dispute is to find out what is the child’s best interest, including the child’s financial welfare, safety, health, and general well-being. The decision will rest heavily on the evidence each side of the dispute presents to the court. Courts Prefer Joint Legal And Physical Custody When you have a negotiated agreement, the courts favor joint legal and physical custody. If there isn’t such an agreement, the court won’t oppose or favor joint custody in any one case. The law also recognizes that joint custody may be impossible. However, the law does assume that this setup is usually in the best interest of the child, and the judge has to give a written explanation of any custody decision that doesn’t include joint custody to whichever parent requests it. Most laws will prioritize having both parents involved in the child’s life if possible. The judge has to consider whether or not one parent is more likely to consistently give the noncustodial party access to the child. If there is evidence that one party has a history of limiting this access, this could factor heavily into awarding primary custody to the other party. Also, the court may take into consideration if one parent is more likely to encourage an ongoing relationship and contact with the other parent. If there is evidence of one parent spreading unfounded claims of abuse against the other parent to prevent contact between said parent and the child, the court may limit visitation or custody of the parent who made the unfounded allegations. Child Custody Determinations — General Deciding Factors There isn’t an automatic expectation that the mother or father will get primary custody. Also, the court can’t consider physical disability, marital status, religion, or sexual orientation as custody determination factors. Instead, the court has to consider each parent’s ability to give the child a stable and suitable home. This includes physical necessities like clothing, food, education, shelter, and medical care. Each parent’s physical health, mental health, and general lifestyle will also factor in. The established patterns of the child’s routines and life, including home, community, religious activities, school, and social activities, are important considerations, too. The courts usually keep minor siblings together except under exceptional situations. Judges also consider: The child’s preference, especially if said child is 14 or older Any potential impact changing custody can have on the child’s overall well-being Education quality The emotional bond between each parent and the child Evidence Of Physical Abuse Any evidence that points toward a history of physical abuse, either occurring in the household or by a parent, can factor against that parent’s visitation or custody agreement. A criminal record for parental abuse, child abuse, or sex offender status, or any evidence of this abuse without a conviction needs a third-party corroboration. Child Protective Services could act as this third party, and it can prevent a parent from getting unsupervised visitation or custody. Substance Abuse History Evidence that points toward a history of alcohol or drug abuse, whether habitual or continual, can negatively weigh against the parent during a custody hearing. However, allegations of this type require corroboration and can be very difficult to prove. Non-Parental Custody In instances where the court finds that neither parent is suitable for custody of the child in question, Guardianship Custody is an option. A third party — usually a family friend or a relative — will typically request custody. Factoring In Grandparents Any grandparent who has an established relationship with the child involved in the custody dispute has the right to ask the court to grant them visitation rights. It doesn’t matter if the custody dispute is still ongoing when the grandparent asks the court for visitation. However, the courts have to effectively balance the child’s overall best interests with the bond between the grandparent and the child. The court also has to factor in the parent’s rights to make decisions regarding their child. Contact Michael D. Shook Attorney At Law To Set Up A Consultation The child custody attorneys at [Law Office] understand that child custody disputes can be confusing and stressful, and they always keep your child’s best interests at the forefront. We’ve very experienced with all of the aspects, issues, and factors that go into a custody dispute. Contact us to set up your initial consultation today.