Articles

Family Law is an evolving area of law. A judgment of dissolution cannot be granted until at least six (6) months have lapsed between service of the petition and service and termination of status. In 2015, the California Supreme Court in Marriage of Davis 61 Cal 4th 846 (Alameda County case) determined that parties where not separated while living under the same roof however Governor Jerry Brown signed Senate Bill 1255 in 2016 which now clarifies that living under the same roof is only a factor which the Court should consider when determining separation.

Date of Separation though remains the date that a complete and final break in the marital relationship occurred as evidenced by the spouse's expression of his or her intent to end the marriage and conduct that is consistent with the intent. Date of Separation is a significant issue to consider when preparing a petition in any divorce case.

Service of the petition can be daunting for even the experienced practitioner. If a spouse resides in another state or country, service will be quite involved. The Court requires diligence in locating the other party and attempting personal service before other means of service are allowed. Compliance with international agreements on service abroad will be required for out of country service.

Before a judgment, and once service is accomplished, the Court has the power to grant requests inclusive of restraining orders, support, exclusive use, move-out, custody, visitation, parenting plans, joinder of retirement account, joinder of indispensable third parties, to compel compliance with discovery and disclosure requirements, change of venue, reconsideration, vacate and set aside, appoint minor's counsel, etc. Some of these motions are available after judgment as well. Filing early and filing first provides advantages that cannot be over-emphasized. Delaying retaining an attorney will result in losing an advantage. An example of this is requesting spousal support a year after filing the petition for dissolution makes it difficult for the Court to grant the request when you have been able to survive for a year without it.

The process of determining self-employment income for support purposes require an investment of resources in expert professional services to examine cash flow and to claw back expenses from the business ledgers. Similarly, determining the value of an asset for purposes of division of the assets is also important. There are varying experts which assist in family law cases. We often hire experts for vocational evaluation, custody evaluation, psychologist on parental alienation, appraisal, and financial planning.

Family law proceedings sometimes cross over into criminal law, guardianships and juvenile dependency practice. It is important for your attorney to know and understand these areas of law, and be conversant with the law. Contempt proceedings involve both civil and criminal procedure which your attorney must understand. We have tremendous experience in civil contempt proceedings.

The family code allows for attorney's fees and costs based on need and ability as well as a sanction for conduct which frustrates the Court's policy and that leads to un-necessary litigation. Sanctions requests are not used often enough, and are often the proper procedures are not followed by the average practitioner. We know the rules, the law, and the limitations and can pursue sanctions against an attorney and/or the other party at the appropriate time.

It is important to maintain a record in each case. The record is useful in sanction proceedings, to impeach a party's testimony or simply to have sufficient irrefutable evidence for an appeal. Having a Court Reporter is important at critical hearings, trials or when there is an appearance of hostility from the bench. Having the right attorney to tactfully maneuver the court room is important.

We also represent grandparents and other parties seeking visitation rights in paternity and dissolution actions. The Court is empowered to grant visitation consistent with the child's best interest.

The Courtroom is where you have your day in Court. All litigants are entitled to be heard. The O'Neil Law Firm diligently ensures that you are heard. Trial practice is an art which we have a handle on. We ask the right questions, we follow up the answers to your advantage, and ferret out information that assists the Court in granting your requests.