The sanction depends on how each spouse's conduct frustrated or furthered California's public policy to reach reasonable compromises of disputes. We often see this code section during a divorce in California when one spouse takes such unreasonable positions that it causes the other spouse to incur significant attorney's fees and costs. This code section does not necessarily apply to every divorce in California. Instead, it applies to domestic violence restraining order actions.
It states:. Whether the respondent shall be ordered to pay attorney's fees and costs for the prevailing petitioner, and what amount shall be paid, shall be determined based upon 1 the respective incomes and needs of the parties, and 2 any factors affecting the parties' respective abilities to pay. Divorce and domestic violence do sometimes cross paths so a spouse entitled to fees under this code section can bring such a request in the divorce case.
This code section allows for attorney's fees against a party or other persons who knowingly make false allegations of child abuse against another party. We sometimes see this in divorce cases. If one spouse does knowingly make false allegations of child abuse against the other spouse, the falsely accusing spouse may face the harsh and punitive consequences of this code section.
Even that false accusing spouse's attorney may have exposure to an attorney fee award against him or her.
We encourage you to read the following amazing guides on attorney's fees and costs spouses may seek during a divorce in California and even post judgment. Spouses often lump attorney's fees and costs into one category. However, fees and costs are different and spouses who expect to go through a divorce should understand the differences. That will help those spouses better prepare for the fees and costs ahead and therefore avoid surprises. Costs unlike fees may be internal or external.
Internal costs are those an attorney may charge pursuant to the retainer contract for items such as copies, facsimile charges, parking, etc. We are not going to focus on internal costs since those are usually minimal. External costs are costs incurred to other persons or entities as part of the divorce in California. It is of course acceptable to look at money paid to other lawyers as simply other fees versus costs. When we think of "costs", we think of anything not directly related to the money you pay to the family law attorney for the family law representation.
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Regardless, in whatever way you want to categorize such expenses should not take away from the importance of you understanding them and anticipating whether they may become necessary during your divorce in California. At the end of this section, we provide you with a link to our extensive guide on the California divorce process. If you want to know the details of the divorce process in California, that guide provides you with one of the best we believe, the best reading materials you may find on the Internet. The process of getting a divorce in California starts with a petition for dissolution of marriage and ends with a judgment for dissolution of marriage.
Dissolution of marriage is the legal terminology for "divorce. For this summary, we assumed the respondent actually responded to the dissolution petition and it was not a default case.
A default case is one where:. Here is a bullet point summary of that process. When you read the words, "if necessary", that means not every divorce includes that specific process. Filing for dissolution of marriage, service of the entire package and response to dissolution of marriage,. Petitioner's service and respondent's service of their respective preliminary declaration of disclosure,. Discovery requests and responses, if necessary.
Discovery is the formal request for information or documentation from the other spouse,. One or more requests for order that seeks temporary orders, if necessary. A request for order is a request to the court for temporary orders during a pending divorce.
These requests usually include:. Both the petitioner and the respondent may file a request for order and there is no limitation on how many either may file. Most divorces in California include a request for order regarding custody and child support. Those where there is a disparity in income usually also include spousal support.
The filing of a request by either spouse to set a trial setting conference, if necessary. The trial setting conference, which depending on the county may have a different name, is the date where one or both spouses ask the court to set the divorce for a trial. The final declaration of disclosure is similar to the preliminary declaration of disclosure, except it usually comes near the end of the case. For most divorces in California, the final declaration of disclosure is the last opportunity to make complete and accurate disclosures.
Some spouses choose to waive the final declaration of disclosure. There are specific forms designed for such a waiver. The exchange of trial related documents, if necessary. These usually include a trial brief and various types of joint statements as well as witness and exhibit lists. The final judgment for dissolution of marriage, which may be by settlement, trial or a combination.
While the petition and response come first and the judgment or judgments come last, the order of everything else may be different depending on the divorce case.
Divorce or Separation
Some cases launch immediately into the request for order process even before the spouses exchange disclosures or conduct discovery. Similarly, discovery may come before or after disclosures. In some divorces in California, settlement negotiations may start early. In others, it may start later. In most, there is a combination of some issues ripe for settlement discussion early while others have to wait until the exchange of disclosures or discovery. Just as you are a unique person and your spouse is not the same person as you, your dissolution of marriage will be different from those of others.
Do not assume there is a one-size-fit all process of divorce in California. Highly experienced and skilled divorce lawyers like those at our law firm will provide you with a strategy customized for your specific divorce case. Here is a link to our guide on the California divorce process. A petition for dissolution of marriage is the beginning of a divorce in California.
What leads to that beginning? Before a spouse files a divorce petition, there is a breakdown in the marital relationship. In this section, we will discuss:. Infidelity is a common cause of the breakdown in the marital relationship. At its core, spouses treat infidelity as a breach of trust and respect. A marriage usually does not last if one or both are lacking. Marriages do recover from infidelity when the spouses are able to restore trust and respect.
Difficult financial circumstances also cause a breakdown in the marital relationship.
The more extreme the financial difficulties, the greater the hardship on the relationship. Our experience is this issue affects those marriages that lacked good communication between the spouses regarding the finances. This disconnect existed because the spouses did not freely share information about the marital estate, and its income to debt ratio.
Accurate legal information shouldn’t be locked behind expensive attorney fees
Nearly every divorce we have seen with the root cause as financial difficulties involved spouses who lived as islands within the marriage and communicated little about financial issues. It is not difficult to see why this would be the case. If spouses are open and honest with each other and take the time to inform each other of the marriage's finances the good and bad , they can collaborate to resolve problems. Even great problems are not a surprise. Either concealment or deception causes marital breakdowns in this respect. Sometimes, good people with all the right intentions just drift apart.
It may not be anything either spouse did.