CALIFORNIA FAMILY LAW FOR PARALEGALS, 5 th Ed.

CALIFORNIA FAMILY LAW FOR PARALEGALS, 5th Ed. Chapter Eight The Litigation Process

A. OVERVIEW OF THE LITIGATION PROCESS • Much of the paralegal’s time will be devoted to assistance at virtually every phase of the litigation process, from the initial commencement of the proceedings, obtaining relief pending trial, obtaining judgment, and finally any post-judgment modifications that may be necessary. • Litigation is merely the act of marshaling the facts in support of your position and against those offered by your opponent and presenting them in a clear and convincing manner to the trier of fact, in this context, the judge. • While most courts differ as to time parameters and local procedures, the basic structure of a lawsuit is for the most part the same in all locales.

A. OVERVIEW OF THE LITIGATION PROCESS • Some form of initial presentation of a party’s position is required to get the ball rolling. • This is typically called the Complaint in most civil matters, the Indictment or information in criminal matters, and the Petition in family law cases. • The Petition is basically a position paper setting forth the petitioner’s (the person commencing the litigation) position on the various issues to be addressed in the case. • The Petition is then served upon the other party to the proceeding, thus giving him notice of what it is the petitioner desires by virtue of this action.

A. OVERVIEW OF THE LITIGATION PROCESS • Because all parties to litigation are allowed an opportunity to be heard (that is, a chance to tell their side of the story), the next step in the litigation process is typically taken by the opposing party by filing his own position paper. • In family law, this document is known as the Response. • In most other civil matters it is called an Answer because its function is to answer the allegations made in Complaint.

A. OVERVIEW OF THE LITIGATION PROCESS • Once the Petition (Complaint) and the Response (Answer) have been filed, the matter is ready to be scheduled for trial. • There next ensues a sometimes significant waiting period during which time discovery is conducted, pretrial orders are requested and often made, and general preparations for trial are undertaken by all sides to the litigation.

A. OVERVIEW OF THE LITIGATION PROCESS • Once the matter is called for trial, assuming all parties are ready (and sometimes whether they are ready or not), the parties are usually required to present themselves to a judicial officer who conducts a mandatory settlement conference in an attempt to achieve and amicable resolution of the issues without the necessity of trial. • On the day of trial, the trial judge may refer the parties to mediation in yet another attempt at settlement, and a trip to the conciliation court is also required if there are issues of child custody or visitation involved.

A. OVERVIEW OF THE LITIGATION PROCESS • When the trial starts, the issues are presented in an orderly manner with the petitioner going first, and the respondent responding to the petitioner’s claims, raising issues of his or her own as the circumstances may require. • Following the trial, the judicial officer weighs all the evidence, makes various findings (factual and legal conclusions based upon the evidence presented), and renders a decision on all issues in controversy.

A. OVERVIEW OF THE LITIGATION PROCESS • In the family law context, this decision will typically divide all community property and obligations, determine custody of the children, determines issues of support and all other matters relevant and necessary to an orderly termination of the relationship. • Like most other court orders, the orders made at trial are subject to review by the appellate court. • Many orders made at trial in a family law matter are also subject to post-trial modification as the circumstances may require.

B. THE INITIAL CLIENT INTERVIEW • Many attorneys will want to include their paralegal in the initial intake interview and so familiarity with this process is a must. • The paralegal’s role in this process may rise to the level of collecting much of the information him or herself or may simply consist of observing the dialogue between the client and the attorney, taking notes of the meeting as the context requires, depending upon the particular attorney and client involved and the degree of experience of the paralegal.

B. THE INITIAL CLIENT INTERVIEW • The client information sheet is simply a list of information collected from the client in order to create as complete a “database” as possible about that client. • There is no particular form and there are few rules regarding its preparation except these two: 1) it must be maintained; and 2) it must be thorough. • Unless it is so required for any particular purpose, the listing should be relatively short and succinct, and easily browsed to facilitate locating a particular piece of information.

B. THE INITIAL CLIENT INTERVIEW • Whether the client information sheet is done in the office with the attorney, in the reception area, or at home, the important point is that it should be done. • See Figure 8-1 on pages 318 to 320 for an example of a client information sheet.

C. CHOICE OF ACTIONS • Obviously, when two people decide to terminate their relationship, decisions must be made regarding how this will be accomplished: put succinctly, what type of action will be filed. • There are three types of actions available when commencing litigation in this area: dissolution, legal separation, and nullity.

C. CHOICE OF ACTIONS • Family Code section 310 instructs that a marriage can only be terminated by death, a judgment of dissolution of marriage, or a judgment of nullity of marriage. • A judgment of legal separation, while available, will not terminate a marriage. • Thus, if termination of marriage is the goal, only two options are available: dissolution or nullity.

1. NULLITY • An action for nullity is actually somewhat of a rarity due to the very specific and unique grounds under which it is available. • An action for nullity presumes (or at least argues) that the marriage was not in fact valid, and as such must not be given any recognition at all. • The marriage is declared void, and the parties are returned to the status of unmarried persons as if the marriage had never taken place.

1. NULLITY • Several other factors might prove attractive in selecting an action for nullity over one for dissolution. • For example, the six-month waiting period before a judgment of dissolution becomes final does not apply. • Neither does the six-month residence requirement. • Unlike a dissolution of marriage, nullity can be directly concerned with fault, especially when it comes to assessing attorney’s fees and costs against one of the parties.

1. NULLITY • In order to provide some relief for innocent parties to an invalid marriage when dealing with the property of that “marriage,” the law has created a separate category applicable to such persons. • They are called putative spouses. • This is an equitable concept designed to provide an innocent spouse (one who in good faith believed the marriage was valid and acted accordingly) with a fair realization of the expectations formed during the marriage. • Such spouses will generally be granted certain rights usually reserved for parties to a valid marriage regardless of the fact that the marriage was in fact not valid.

1. NULLITY • Another interesting distinction between a nullity action and one for dissolution has to do with the parties to the litigation. • While in a dissolution (or legal separation) action, the party commencing the proceeding must be one of the parties to the marriage, such is not necessarily the case in an action for nullity. • Other interested persons such as parents and other relatives can commence a nullity action on behalf of one of the parties to the “marriage.”

1. NULLITY • a) Void versus Voidable Marriages • In the context of an action for nullity, a distinction is made between a void marriage and one that is merely voidable. • In the latter case, the marriage is actually valid until such time as whatever defect rendering it subject to attack in the nullity action is proven, at which point the marriage will then be deemed void.

1. NULLITY • Some “marriages” however are never valid, and never carry with them the benefits of a valid marriage, not even for a short time. • The grounds upon which a nullity action can be brought are specific and are provided by statute. They are: • Void: (1) Incestuous marriage: Family Code §2200 • (2) Bigamous; polygamous marriages: Family Code §2201.

1. NULLITY • Voidable: (1) Petitioner’s age at the time of the marriage: Family Code §2210(a) • (2) Prior existing marriage: Family Code §2210(b) • (3) Unsound mind: Family Code §2210(c) • (4) Fraud: Family Code §2210(d) • (5) Force: Family Code §2210(e) • (6) Physical incapacity: Family Code §2210(f)

1. NULLITY • b) Nullity Based on Void Marriages • Statutorily speaking, there are only two grounds upon which a marriage will be declared a nullity as void or of never of any force and effect. • These are incestuous and bigamous and polygamous marriages. • Family Code section 2200 describes as incestuous any marriage between “parents and children,” “brothers and sisters” (half brothers and sisters also), “uncles and nieces,” “aunts and nephews,” and “ancestors and descendants of every degree.”

1. NULLITY • Family Code section 2201 describes a bigamous marriage as one created when a person, after having married one person subsequently marries another person without having terminated the first marriage (by dissolution or a decree of nullity). • An exception to this rule of an automatically void marriage is found in Family Code section 2201(a)(2), which provides that the result mandated generally by section 2201 will be avoided if the former spouse is absent (that is, missing), and has been for at least five successive years immediately preceding the subsequent marriage, or is generally presumed to be dead at the time of the subsequent marriage (without waiting the five years). • In these cases the marriage is considered valid until its nullity is declared.

1. NULLITY • c) Nullity Based on Voidable Marriages • Not all defective marriages are void right from the start. • Several marriages may start out valid on their face and later end up being declared null and of no force or effect. • These marriages are said to be voidable. • It is important to note that these marriages are completely valid for all purposes until such time as they are declared a nullity.

1. NULLITY • The legal defect must exist at the time of the marriage. • If the marriage is valid at its inception (that is, there are no legal defects then in existence), it cannot be set aside later and declared a nullity. • It can only be terminated by dissolution.

1. NULLITY • The basic distinction between these marriages and those that are void primarily has to do with the availability of the nullity action. • For all practical purposes, in a void marriage no rights or incidents of the marriage can attach to the relationship. • A void marriage is never valid. • A voidable marriage, on the other hand, is valid on its face until someone attempts to have it set aside. • If no one ever does, then it simply continues until it is terminated in some other way.

1. NULLITY • Section 2210(a) provides that a marriage can be annulled if the petitioner in the nullity proceeding was not old enough to legally consent to the marriage. • Once the underage party comes of age, however, if he continues to cohabitate with his spouse as husband and wife, this avenue of nullity will no longer be available. • Section 2210(b) provides the answer to the missing/presumed dead spouse question. • Under those circumstances, the second marriage is voidable.

1. NULLITY • Section 2210(c) makes a marriage voidable if either party was of unsound mind at the time of the marriage. • Section 2210(d) makes a marriage voidable when the consent of either party was the product of fraud. • Section 2210(e) is similar to (d) above, only it speaks to consent through the use of force. • Section 2210(f) renders a marriage voidable if, at the time of the marriage, either party was physically incapable of entering into the marriage state, and the incapacity continues and appears to be incurable.

1. NULLITY • Family Code section 2211 provides the limitation period and proper petitioning party in these actions. • Actions brought under 2210(a) are limited to those brought within four years after reaching the age of consent. • If a parent or guardian wishes to bring the action, it must be done before the underage married person comes of age. • Once a party turns 18, he has four years to seek to have the marriage declared a nullity due to the fact of his minority at the time of the marriage.

1. NULLITY • Only the spouse who was underage at the time of the marriage (or a party acting on his behalf) may bring the action. • Family Code section 2211 answers the question of just who this other person who commences the action on behalf of the underage spouse is: that spouse’s parent(s) or legal guardian. • According to Family Code section 2211(a)(2), they must bring their action before their child becomes an adult.

1. NULLITY • Family Code section 2201 does not declare marriages that fall into this area of “presumed dead/missing” void. • In fact, that section specifically recites that such marriages are not void. • The statute makes it clear that when a party enters into a subsequent marriage under circumstances where the former spouse is missing or presumed dead, the subsequent marriage is voidable, not void, upon the timely request of either of the “new” spouses as well as the previously believed to be dead or missing spouse.

1. NULLITY • Section 2211(c) limits section 2210(c) actions to the injured party (or a relative or conservator of a person of unsound mind). • There is no time limit for bringing this action. • It can be brought at any time before the death of either party. • For marriages voidable by reason of fraud, the injured party must bring the action within four years of first discovering the facts constituting the fraud. • This is also the case when dealing with issues of physical incapacity.

1. NULLITY • d) The Putative Spouse • Family Code section 2251 provides that, in the context of a void or voidable marriage, whenever one or both of the parties believed in good faith that the marriage was valid, the court shall decree such person(s) to have the status of putative spouse and as such be eligible to receive the benefits of the provisions of Family Code sections 2500 et seq. regarding property acquired during the “marriage” that would have been community or quasi-community property had the marriage not been void or voidable.

1. NULLITY • Section 2254 of the Family Code provides that a putative spouse is also entitled to the benefits of an award of spousal support in the same manner as if the marriage had not been void or voidable. • Section 2255 makes an award of attorney’s fees and costs available to a putative spouse, and section 2080 gives the court the power to restore the wife’s former name to her following entry of a judgment of nullity.

2. DISSOLUTION AND LEGAL SEPARATION • In California the most common method of terminating a marital union is through the procedure of dissolution. • Also available is an action that results in a decree of legal separation. • Procedurally these two actions are virtually identical; and, with the exception of the rather major distinction of the continuing marital union, the results available in a legal separation are exactly the same as those obtained through dissolution.

2. DISSOLUTION AND LEGAL SEPARATION • Issues of child custody and visitation, child and spousal support, attorney’s fees and costs, property division, restraining orders, and other injunctive relief are all equally available whether through dissolution or legal separation. • The same procedure is applied and the same forms are used in the prosecution of the action for legal separation and dissolution. • The fundamental differences between the two procedures are noted below: see pages 327-328.

2. DISSOLUTION AND LEGAL SEPARATION • The grounds for obtaining a dissolution and legal separation are the same and are found in Family Code section 2310: irreconcilable differences and incurable insanity. • Incurable insanity, while available, is virtually never used as grounds for a dissolution action. • To prove incurable insanity requires introduction of medical expert opinion testimony attesting to the party’s incurable insanity at the time the Petition is filed and its continuance through the hearing on the dissolution.

2. DISSOLUTION AND LEGAL SEPARATION • Family Code section states as follows: “Irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.” • Substantial reasons for not continuing the marriage are usually found when one party testifies that the marriage is over and not capable of being saved.

3. SUMMARY DISSOLUTION • Under certain very limited and very strict circumstances, parties to a marriage may be able to avail themselves of the statutory procedure known as summary dissolution. • This process is quick and inexpensive and is designed to be obtained easily and without participation by attorneys. • This procedure does not require a court hearing or appearance and is set out in detail in Family Code sections 2400 et seq. • Summary dissolution is only available if all of the following conditions are met: see page 329.

D. THE SUMMONS • One of the documents that must be prepared and accompany the Petition when taken to the clerk’s office for filing is the Summons. • This document is issued by the court clerk and acts as an officially issued document that gives notice to the respondent that legal proceedings have been instituted against him and advises him to retain counsel.

D. THE SUMMONS • Following the expiration of 30 days following service, if no Response to the Petition has been received (or some other acceptable responsive document), then the petitioner (or her attorney) prepares and sends down to the court clerk a document called Request to Enter Default (form FL-165) and includes with this delivery the original summons (to prove that it was issued) and the original Proof of Service (to prove that the papers were served).

D. THE SUMMONS • “Notice” is extremely important in the context of a legal proceeding and is necessary to satisfy the due process considerations mandated by the Constitution. • Properly serving these documents will satisfy the constitutional requirements of notice and opportunity to be heard, and thus the manner of service is very important. • Improper service can, absent a general appearance entered by the respondent, result in a void judgment.

D. THE SUMMONS • Once the appropriate documents have been served (the Petition and Summons), the person who actually served the documents must complete a separate document known as a “proof of service,” which is maintained by the attorney until such time as it needs to be filed with the court. • When reviewing the Family Law Summons, care should be taken in examining the back side.

D. THE SUMMONS • Family Code sections 213, et. Seq. provide for the automatic issuance of temporary restraining orders against both the petitioner (effective when the summons is issued by the clerk) and against the respondent (effective once the respondent has been personally served with the summons and petition). • They are primarily designed to maintain the status quo between the parties during that time after filing the petition and before a court hearing. • See Figure 8-2 on pages 332-333.

E. THE INITIAL FILING • Once the initial interview has been completed the attorney is prepared to “officially” commence the proceedings. • These initial papers are actually preprinted forms, which are filled out and modified as needed. • These forms are, for the most part, designed and promulgated by the California Judicial Council. • Most of the forms available for use in family law proceedings are mandatory and must be used. • See Figure 8-3 on pages 335-336.

E. THE INITIAL FILING • 1. The Petition and Response Forms • The Petition and the Response are the rough equivalent to the complaint and answer in a non-family law proceeding and can generally be described as “position papers.” • Essentially, the parties set forth the nature of their request (that is, dissolution of marriage, legal separation, or nullity), their contentions as to basic statistical information (date of marriage and date of separation), property rights (both separate and community), and their various requests pertinent to issues of custody and visitation of children, support (spousal and child), and attorney’s fees and costs.

E. THE INITIAL FILING • The Petition (form FL-100) is the form used whenever a party seeks to change his marital status whether by dissolution, legal separation, or nullity. • Once this document is properly completed and filed, the proceeding has started. • Both the Petition and Response (form FL-120) are substantially identical both in structure and substance. • See Figure 8-4 on page 338; see Figure 8-5 on page 339; see Figure 8-6 on page 340; see Figure 8-7 on page 342; and see Figure 8-8 on pages 344-345.

E. THE INITIAL FILING • 2. Additional Options Available to Respondent • Although the petitioner is restricted to filing the Petition when commencing the proceedings, the respondent actually has several choices other than merely filing the Response (depending upon the facts and circumstances of the particular case). • Once served, the respondent must decide whether to submit to the court’s jurisdiction or challenge the court’s exercise of power over him. • This decision is usually based upon a contention by the respondent that the court does not have personal jurisdiction over him.

E. THE INITIAL FILING • To challenge jurisdiction, the respondent must make a special appearance and contest jurisdiction by filing a motion to quash the service of summons. • This will have the effect, if successful, of denying the petitioner’s attempt to seek relief against the respondent in that state. • Another motion available to the respondent is called a motion to quash the proceeding.

E. THE INITIAL FILING • The basis for such a motion is set out in detail in CRC 5.121 and includes challenges based upon allegations that the petitioner lacks the capacity to file a lawsuit, that residence requirements have not been met or that there is another action already pending between these parties on the same issues. • CRC 3.1326 gives the respondent the opportunity to request, by motion, that the venue (location) of the proceedings be changed. • This is called a motion to change of venue.

E. THE INITIAL FILING • Finally, CRC 3.1322 makes provision for filing a motion to strike (remove) certain items contained in the Petition not specifically required by FL-100. • A similar motion can be made by the petitioner regarding improper items contained in the Response.

CALIFORNIA FAMILY LAW FOR PARALEGALS, 5 th Ed.