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FAQ : Frequently Asked Questions

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  • Why Andy Cook is the Best Choice

    • What type of cases do you handle?

      Andy Cook handles family law cases, which are cases that involve child custody, child support, dissolution of domestic partnerships, divorce, domestic violence, legal separation, nullity of marriage, paternity, property division, spousal support (i.e., alimony), and visitation.

    • What Can Andy Cook do for me?

      I can make sure you get the best orders for your children so that they are safe and are with you as much as possible. I can maximize the amount of child support you get or limit the amount you pay. The same goes for alimony (which is also known as spousal support). I can protect you if there’s been domestic violence, or if you’ve been wrongfully accused of domestic violence. I help with the division of property and debt.

      I go to Court, if necessary, limiting the time you have to be there as well, and limiting the amount of talking you have to do. I do all the paperwork for you.

      I keep you informed and answer your questions. I listen to what you have to say. I also give you advice.

      I do everything possible to put this unpleasant experience behind you with the best outcome in the shortest period of time.

      Because I used to volunteer and substitute for some judges and commissioners in Los Angeles and San Diego Counties, I can help forecast what your judge or commissioner is likely to do.

    • You are a Certified Family Law Specialist. What does that mean?

      A certified Family Law specialist in California means someone who has been specially designated as a specialist in Family Law by the State Bar of California, Board of Legal Specialization. The vast majority of attorneys who handle Family Law cases in California or just San Diego County are not certified Family Law specialists. San Diego Family Law attorney Andy Cook is certified as a Family Law specialist by the State Bar of California, Board of Legal Specialization. In order to be a specialist in Family Law in California, a lawyer must pass not only the Bar Examination but a special test in Family Law given just once every two years. Also, he or she must receive recommendations from judges and lawyers and have sufficient experience in trials and other complicated Family Law matters.

      Specifically, applicants for Family Law specialization must have been substantially involved in the practice of Family Law in the five years immediately preceding their application and must also have completed at least 45 hours of continuing education in Family Law. Perhaps most importantly, certified specialists must be recertified every five years and must take 36 hours of legal specialist approved education or an equivalent every three years.

      Be wary of lawyers who claim on their letterhead or in other ways that their practice is “limited” to Family Law or that they simply “specialize” in Family Law or that they “emphasize” Family Law. None of this means that they are a specialist as licensed by the State Bar of California, Board of Legal Specialization, like Family Law attorney Andy Cook.

      To give you some idea of how rare it is to be a Certified Family Law Specialist, like divorce attorney Andy Cook, there were over 10,000 active California licensed attorneys with official addresses in San Diego County in March, 2016, according to the State Bar of California web site. However, based on the same information, out of those 10,000 or more attorneys, only 183 others, besides Andy Cook, were licensed as Certified Family Law Specialists by the State Bar of California, Board of Legal Specialization.

      That number drops to 61, according to data from the State Bar of California from January 12, 2018, when you look at family law specialists whose official office is in the 92101 zip code, which encompasses the downtown courthouse at 1100 Union St. That courthouse handles cases from all but two of the communities in the City of San Diego, as well as cases from the cities of Coronado, Del Mar, and Poway.

      Also, Andy Cook has been certified as a family law specialist for a long time — over 15 years, to be precise.

      You can go to the State Bar of California’s web site to find out whether any given attorney who is licensed in California is a certified family law specialist. If that person is, her or his profile will indicate so. However, this web site, at the present time, does not state, if the person is a family law specialist, how long he or she has been a specialist. It only states how long he or she has been licensed to practice law in California.

    • What Should I Look for in a Divorce Lawyer?

      When you call, do you get to speak to the attorney directly or is it only an assistant? Maybe the attorney isn’t there, but is your call returned promptly? If you’re thinking about hiring an attorney and the attorney cannot remember to return you call, what does that say about the attorney’s attentiveness after you have put down a deposit?

      Also, when you talk or meet with the attorney, is it all about her or him? The divorce process is not funny or something to take lightly, so make sure the attorney seems sympathetic to your situation and is not just making jokes, or treating you like someone who doesn’t matter.

      Constant interruptions in the meeting by phone calls or other members of the staff constitutes rudeness at best and disorganization or other problems at worst.

      Does the attorney seem rushed and not willing to answer your questions. Does he or she get defensive when you ask certain things?

      Does the attorney explain things in a way that you can understand? As alluded to above, does the attorney ask questions about you and seem interested in what you say?

      Does the attorney practice in any area of law other than Family Law? Hopefully the answer is no, because a person who handles just one area of law is more apt to know what he or she is doing than someone who dabbles in a number of fields but really doesn’t know the ins and outs of Family Law.

    • Why should I hire you?

      As stated above, Andy Cook is one of the few California lawyers certified as a Family Law specialist by the State Bar of California, Board of Legal Specialization. He is also highly respected by his peers throughout the legal community. For example, in 2013, in an election involving ten lawyers, Andy was one of just four persons elected to the Board of Directors of the San Diego County Bar Association with an electorate made up of over 7,000 attorneys. He is presently the only Family Law Specialist (as rated by the State Bar of California, Board of Legal Specialization) on the 18-person Board.

      Andy’s peers have allowed him to receive the Peer Review of “AV Preeminent” by Martindale-Hubbell. Talk to any established attorney and he or she will tell you that the AV Preeminent rating is reserved for the very best.

      In addition, there are few attorneys who are as reliable and dependable or who work as hard as Andy Cook. He does what he says. He keeps you informed. He has a great memory and an ability to pay attention to detail. He is a great writer and a poised, strong advocate in court.

    • Do you Know the Family Law judges?

      Yes, most of them. But more importantly, they know Certified Family Law specialist Andy Cook. His reputation is for being extremely hard working, always prepared, and very knowledgeable.

      To be more specific, Andy Cook is well known by the judiciary, not only because of his service on the Board of Directors of the San Diego County Bar Association, but because he had cases against two of San Diego County’s family law judges and two of the county’s family law commissioners before they became members of the judiciary.

    • Do you handle military divorces?

      Yes. The Law Offices of Andy Cook represents men and women who are serving our country as well as spouses of service members (“non-member spouses”) as well. We have represented officers as well as enlisted personnel. We are familiar with military pensions, Thrift Savings Plans, Survivor Benefit Annuities, variances in BAH pay and other issues unique to the United States military.

      Here’s a test. If you’re considering divorce attorneys, ask them if they know about the change to military retirement made effective 12/23/16 and the other changes that were made in 2018. If your case involves military retirement, your attorney needs to know the answers. Andy Cook does!

    • Who else do you represent or have you represented?

      Physicians, dentists, nurses, attorneys, pilots, software engineers, business owners, corrections officers, border patrol agents, police officers, teachers, college professors, casino workers, and others with all types of jobs.

      Other clients are stay-at-home spouses or retired persons.

      Clients range in age from their early 20s (or late teens) to their 70s and even older.

      Our clients are either married, or unmarried but with children, or in a same-sex registered domestic partnership. Also, some clients are here because of a domestic violence issue.

    • Where do you appear in court?

      Andy Cook handles Family Law cases throughout San Diego County (downtown, North County/Vista, East County/El Cajon and South County/Chula Vista). The cases downtown are now at the new courthouse at 1100 Union St, rather than the buildings on Sixth Ave., Fourth Ave., and Broadway. Andy Cook has also handled Family Law cases in the following counties: Riverside (Hemet and the City of Riverside); San Bernardino (Rancho Cucamonga and the City of San Bernardino); Imperial (El Centro); Los Angeles (Burbank and Long Beach); and Orange (Santa Ana).

    • Do You represent Same-Sex Couples?

      Yes. With national recognition of same-sex marriage comes an increase in the number of same-sex divorces. Andy Cook has represented members of the LGBT community for many years in divorces, dissolution of domestic partnerships and other family law issues. He has been a member of the Tom Homann LGBT Law Association since 2014 and twice received its endorsement leading up to his successful campaign for the Board of Directors of the San Diego County Bar Association.

    • What are prenuptial agreements and do you handle them?

      Prenuptial agreements are written agreements made between people who are engaged, and yes, Andy Cook handles prenuptial agreements, either by reviewing them when they are written by another attorney or writing them in the first place.

      In California, prenuptial agreements are allowed. They are used to state an agreement on what will happen with regard to alimony or spousal support; and what will happen with respect to property — should the marriage end in divorce. For example, the parties, in certain circumstances, can agree that in spite of huge differences in their earning capacities, should there be a divorce, nobody will have to pay the other party alimony or spousal support. Or, even though California is a community property state, should there be a divorce, all money earned during the marriage by one spouse and placed in that person’s retirement account will not be divided and will remain that person’s separate property.

      Prenuptial agreements are heavily regulated in California, so you don’t want to handle writing up one yourself. If you do –and if you’re the spouse who really wanted the prenuptial agreement in the first place– you may find yourself upset to learn (in the event of a divorce) that the court will not enforce some or any of the prenuptial agreement. If you’re the other spouse — in other words, the prenuptial agreement is your fiancé’s idea, not yours — you should get an attorney as well, so you understand what you may be giving up.

      Don’t wait until the last minute either. If you do, there could be complications.

      Note that this answer talks about property and alimony/spousal support. but not child custody or child support. That’s because California family courts are not allowed to enforce a prenuptial agreement that says in the event of a divorce, one person (or neither person) will be free of any child support obligation or will have to pay a certain amount of child support. Likewise, a prenuptial agreement cannot be used to give one person certain custody or visitation rights. In other words, when it comes to prenuptial agreements in California, leave the kids out of it! (There’s a reason for this; child support and custody/visitation issues affect the children, so the judge has to be able to make decisions in these areas should there be a separation or divorce.)

      There are also other things that are not supposed to be in a California prenuptial agreement, and certain things that basically have to be in one. Again, this is why you should not try to handle a prenuptial agreement yourself.

    • How soon can I see you?
      Usually, you can be fit in the same or next business day. Sometimes it is not even necessary to come into the office.
    • Do you have any other lawyers who help you out?

      Yes. Kevin A. Alexander II –the son of a paralegal– joined the Law Offices of Andy Cook in October 2021 as a full-time associate attorney. A graduate of the University of San Diego School of Law, Kevin worked in civil litigation for about seven years in the San Diego area before joining our team. Originally from Simpsonville, South Carolina, Kevin is a cum laude graduate of the University of South Carolina. Since arriving in San Diego, Kevin has been active in the Tom Homann LGBT Law Association and previously served on its Board of Directors.

  • The Divorce Process

    • What does it mean to “serve” someone with divorce papers?

      This means handing some blank forms, along with the divorce papers after they have been filed with the Court, to your spouse or, if unmarried, to the other parent. Anybody who is 18 or older can serve the papers, unless he or she is the husband or wife (or father or mother). In other words, you may not serve papers in your own divorce or paternity case.

      The person doing the serving then fills out a form called “Proof of Service” and files that form with the Court.

      The side that was served has 30 days to file a Response or risk a default judgment.

      Note that when a person gets served, he or she is not required to sign anything. Even if the person who is being served refuses to take the papers, the server can simply leave the papers at the individual’s feet.

      On the other hand, until a person has been served, the Court is unable to make orders, except for certain emergency orders involving domestic violence, or grant a divorce or paternity judgment.

      There are other ways to serve people besides handing the papers directly to them. However, most of these alternate methods have very specific requirements and are not as favored as direct personal service (the method described in this paragraph). Simply mailing the papers is not enough, although mailing the papers via certified mail, return receipt requested, restricted delivery, should work, but only if the person signs the green Domestic Return Receipt from the Postal Service and that receipt is then filed with the Court. Also, this method of service is only allowed if the individual being served is in another state.

    • I was just served with divorce papers. What do I do?

      You need to figure out the deadline for responding. There are different deadlines in a divorce case. For example, if you have been served with a Request for Order, your papers must be filed and served nine “court days” before the hearing, unless the Court has granted something called “an order shortening time”. On the other hand, your response to the Petition is due 30 calendar days (not court days) from the date you were served.

      Remember, the months of the year vary in length, so be sure to count the days properly. Also, when you have your papers served on the other side, you cannot be the person who serves the papers. Someone else who is 18 or older must serve the papers.

      There are many other requirements as well. However, the Law Offices of Andy Cook will usually be ready to help you. Make your phone call to 619-515-9900 as soon as possible.

    • Is it Possible to stop the divorce?

      A divorce may be stopped if the parties reconcile or if neither of them has lived in California long enough. A divorce may be stopped if the parties have another divorce case in a different county or state (or even country) and the “other divorce” case is started or finished before the one in the local county here in California.

      Also, the divorce will be dismissed by the court if the case is abandoned. In other words, if nobody does anything after filing for divorce, the divorce will not be granted and the case will be dismissed. Then, if the person who filed (or the other side) decides that he or she really does want the divorce, the case will have to be started all over again.

    • Do both sides have to sign the papers for the divorce to go through?

      No. A person does not need permission from the other side for a divorce to be granted.

    • Where is my case heard?

      For people who live in downtown, Carmel Valley, Coronado, Del Mar, La Jolla, Mission Hills, Poway, Pt. Loma, Rancho Bernardo, Rancho Penasquitos, Scripps Ranch and the rest of the City of San Diego (except Otay Mesa and San Ysidro, which are served by Chula Vista), the courthouse is in downtown San Diego at 1100 Union St., just 1.1 miles from the Law Offices of Andy Cook.  This courthouse opened up on December 18, 2017, replacing facilities that were at 1501 Sixth Ave. and 1409 Fourth Ave.From Solana Beach, Rancho Santa Fe and north up to the Orange County border, cases are usually filed in Vista. In the East County, cases are filed in El Cajon, and in the South Bay, the filing location is Chula Vista.

      Still have questions about where to file?  Click here and look up the zip code where you or the other party lives.

      If one party lives in one region and the other party lives in another region, the party who files first gets to choose where to file among the two regions.

      Once a case is opened, it usually, though not always, stays at the same courthouse even if one or both parties move.

    • Does proof of adultery matter?

      It varies from case to case and whether there are minor children or not.  Basically speaking, during a court hearing (or even a deposition), Family Code section 2335 prohibits evidence of specific acts of misconduct.  But if a judge is aware of adultery, especially if the facts are bad, it could silently affect the decision making process.  Also, while there is section 2335, there is also the spousal support statute entitled Family Code section 4320.  Under Subdivision (n) of section 4320, a court –at least in a case involving whether or not to award spousal support, and if so, how much — is allowed to consider “[a]ny other factors the court determines are just and equitable”.  Some have said that this subdivision has introduced the element of fault into divorce, even though California is supposed to be a no-fault state.  But the fault referred to is usually domestic violence, not adultery. 

    • Is it O.K. to Record the Other Party?

      I wouldn’t do it unless I obtained permission from the judge.

      Penal Code section 632, subdivision (a) states: “A person who, intentionally and without the consent of all parties to a confidential communication uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or another device” is subject to certain penalties”. A confidential communication, as defined by section 632, is “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto”. The law further states that a conversation is confidential if a party to the conversation “has an objectively reasonable expectation that the conversation is not being overheard or recorded”.

      An exception to this law applies if a judge allows a domestic violence victim or person seeking a domestic violence restraining order to record communication against the abuser or alleged abuser.

      Section 632 is a California law. The law in other states may be different.

    • What about dating or remarriage?

      There are no longer any valid rules under California law prohibiting competent, consenting adults from engaging in a dating relationship just because a divorce is not yet granted.

      A person is generally free to remarry after six months from the service of the petition for divorce on the other side, provided that a judgment dissolving the marriage has been entered by the court during that time. If no judgment dissolving the marriage has been entered by the court during the six month period, either party is free to remarry just as soon as the judgment dissolving the marriage is entered.

      In certain cases, the court will enter a judgment ending the marriage but resolving no other issues, such as custody or support or property matters. This is called a “bifurcated” judgment. If a bifurcated judgment is entered, dissolving the marriage, either party can remarry after entry of the bifurcated judgment dissolving the marriage.

  • Child Custody & Visitation

    • Can I have my husband/wife/partner drug tested?

      It depends. California law says the court may order drug testing but only if the judge makes a determination that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol. If drug testing is ordered, hair follicle procedures won’t do the trick. Basically, the testing has to be done with a urine sample.

      Only the parents and their attorneys and the court get to see the results.

      Even if the results are positive, the court does not have to automatically rule against the “dirty” parent.

      If there are no minor children involved, the court won’t be able to order drug testing.

    • Will the Court Order that Visitation be Supervised?

      It’s possible. If a parent is the subject of a domestic violence restraining order, the Court is supposed to “consider” issuing visitation orders that require supervision.

      Also, unless the Court finds that there is no significant risk to the child, visitation must be supervised if the person in question has been convicted of specified child abuse offenses; is required to be registered as a sex offender because the victim of the sex offense was a minor; or has residing in her or his household, any person who is required to register as a sex offender because of a felony conviction where the victim was a minor.

      On the other hand, supervised visitation can also be ordered if the Court finds substantial evidence that he or she made a report of child sexual abuse that he or she knew was false when made, and that he or she did so for the purposes of interfering with the other parent’s lawful contact with the child.

      The Court must also consider supervised visitation if it determines that there is a risk a parent will abduct the child.

      Obviously, if there are problems with alcohol abuse or drug use, supervised visitation might be ordered.

      Ordering that visitation be supervised is really just the first step. The judge then has to decide how many hours of visitation per week the person being supervised is to get. Next comes the decision of whether the supervisor has to be a professional, i.e., a person who works for an agency or runs one, and gets paid for doing that; or merely a lay person who is willing to volunteer time and watch over the visits. Usually, if the visits are done by a lay person (this is referred to as non-professional supervision), the judge will find out whether the person is acceptable to both individuals. But be careful; if the supervisor gets sick or gets burnt out from the parents arguing, he or she may quit. Then the person being supervised in theory has no right to supervised visitation because the judge ordered person “A” and now person “A” is not available. (Actually, if this does happen, some judges will entertain an emergency hearing to reword the order so that supervised visitation can take place as ordered.)

      If the visits are to be professionally supervised, someone has to pay for this. The cost could be divided in half, or one person could be ordered to advance the entire cost. In making this decision, the Court will often look at who is the person whose conduct or alleged conduct requires the supervised visitation, or who has the superior ability to pay. Later on, the judge might reallocate the cost (after receiving more information about the case and about the parties’ finances).

      Most professional agencies have an orientation process that both parents must attend. You can pay the regular rate, or pay a higher rate for expedited processing. If you are the person who is subject to the supervised visitation order, pay for the expedited processing, so the visits can start as soon as possible.

      The best way for parties and their lawyers to get ready to address supervised visitation is to look at Judicial Council form FL-341A. This forms contains an outline of the issues that the Court must address. If you are not familiar with the contents of this form, you’ll find that some judges will forget to address some of the key issues.

      For example, it’s also important, especially if you are the person whose visits are going to be supervised, to get the judge to just indicate how many hours you get per week, especially if the visits are going to be professionally supervised. This is because if a judge gets very specific and says, for example, “Mondays, Wednesdays, and Fridays”, from 3 p.m. – 6 p.m., the parties may show up at the office of the professional supervisor only to find out that those hours have already been taken. Then, unless the parties are good at working together (which they probably are not at this time), visits don’t take place at all, and that’s probably not what the judge wanted.

      I could probably write a textbook about supervised visitation. It is a very highly regulated area. And the rules probably vary from state to state. And it is hard to handle this issue without an experienced Certified Family Law Specialist like San Diego’s Andy Cook, who has been certified for over 20 years by the State Bar of California, Board of Legal Specialization, and can be reached at 619-515-9900.

    • What if one of us wants to move somewhere else with our child or children?

      Once a divorce or paternity case has been filed and served, neither party is allowed to take the child or children out of California unless the other parent approves in writing or the judge gives special permission. So even leaving the state just temporarily with a child is not automatic, unless the courts have not become involved yet, in which case there are no travel restrictions in the United States as to parents and children.

      To actually move somewhere else, once the divorce or paternity case is underway, look at the history of the case. If one of the parents has significantly more parenting time than the other parent and if the court has already made what seems like a final decision on custody and visitation, the parent with the child (or children) for the majority of the time has a presumptive right to move away with the child or children. But, the parent who opposes the move can still stop the move if it can be proven that the move is in bad faith or will be detrimental to the minor child. (Most court orders and judgments in San Diego County will provide for written notice of, say, 45 days before a parent may relocate; this allows the other side to file papers with the court to stop the move.)

      That’s a lot to digest, so let’s look at it another way. If the parents have just split up, or if they have 50/50 custody (or close to it), neither parent is supposed to have a leg up on the other. The person who opposes the move starts the legal battle with no greater burden of proof than the person who wants the court to say yes. The same answer applies if the parents are still living together even though one person has already filed papers in court. Either way, the court has to look at simply what is in the best interests of the child.

      Some parents will decide not to risk uncertainty and to compromise. Maybe the person who wants to move away with the kids will get to do it, but the parent who stays behind will get the kids all summer and every holiday. Sometimes, the person who moves away will agree to pay for the other parent’s travel costs.

      Move always are serious legal issues, especially if the proposed move is to the other side of the country or even outside of the United States. Major changes in custodial time are at issue as are changes in child support. This is an anxiety producing experience and it is dangerous to go at it alone or to wait until the last minute to hire an attorney because of all of the deadlines involved in move-away cases. Be sure to consult attorney Andy Cook well in advance of any court hearing that will decide a move-away. Remember, Andy Cook is certified as a Family Law specialist by the State Bar of California, Board of Legal Specialization.

    • What If I have custody but then get deployed?

      The Court can change custody and visitation to take into account the fact that you will no longer be near the kids, but the Court will review the custody and visitation orders when you return, upon your request. Indeed, Family Code section 3047 presumes that the old custody/visitation orders (from before your deployment) go back into effect when you get back, unless the Court decides that would not be in the best interest of the child or children. In fact, when you return, your hearing to revert back to the old orders gets priority. Thank you for your service!

    • I don't have children, but I have a pet. Is there anything the judge can do for me?

      Actually, yes. Regardless of whether you have children or not, the court may make an order for animal care pending the outcome of the case, and/or make an order at the end of the case assigning sole or joint ownership of a pet taking into consideration the care of the pet animal. This is as a result of Family Code section 2605, which was enacted in 2018 and which went into effect January 1, 2019. This law covers divorce and legal separation matters only; cases involving parents who are not married are not covered by this section of the Family Code.

    • What Does “Legal” Custody Mean?

      Based on Family Code section 3006, legal custody is “the right and the responsibility to make the decisions relating to the health, education and welfare of a child”.  When both parents share these rights, each of them is said to have “joint legal custody”.  This is based on Family Code section 3003.  If a parent has sole legal custody, the other parent has “no decision-making authority” on things such as where the child or children of the relationship go to school.

    • How does the family court decide custody and visitation?

      The Family Court generally has to make a determination about what is in the best interests of your child or children. This involves looking at the age of a child and what schedule he or she was following before the case went to court; any history of illegal drug use or alcohol abuse; any history of domestic violence; and the general goal that children have frequent and continuing contact with both parents. There are other factors the court looks at in certain cases. For example, a child 14 years or older is now allowed to address the court regarding his or her wishes with respect to custody and visitation, in most cases.

      Before the Court gets to decide custody and visitation, however, the parties have to go to mediation, which now has the formal name of “child custody recommending counseling”. The purpose of mediation is for the parties to try to reach an agreement. If no agreement can be reached, the counselor sends the parties and their attorneys a written report containing recommendations. Then the report is sent to the judge. At the hearing, the judge decides whether to follow the counselor’s recommendations in full, in part, or not at all. The counselor’s report is confidential, meaning that it is not made a part of the public record.

      Counseling is held in the courthouse and is free. There are no judges or lawyers. Just the parents and the counselor. (The counselor will meet separately with each parent if there are allegations of domestic violence.) The counselor is not a judge or a lawyer. Rather, he or she is someone with a background in psychology, social work, marriage, family and child counseling, or other behavioral science substantially related to marriage and family interpersonal relationships.  Based on Family Code section 3025.5 and a case interpreting that statute called Marriage of Yeager, you are not supposed to show the child custody report to anyone other than your own lawyer, unless you get the judge’s permission to show it to someone else.  Even verbally revealing what is in the report may be prohibited, so be careful.

      Child custody and visitation is an emotional issue and can have a dramatic impact on the future relationship between a parent and child. The amount of time each parent spends with a child also affects child support. Because of the importance of child custody and visitation, be sure to consult Family Law attorney Andy Cook well in advance of your court hearing. Remember, Andy Cook is certified as a Family Law specialist by the State Bar of California, Board of Legal Specialization.

  • Child Support

    • How does the family court decide child support?

      State law requires California to use a computer formula, called “the Guidelines”, to determine child support in virtually all cases. The Guidelines take into account your income or ability to earn an income; the other party’s income or ability to earn an income; the number of children the two of you had together; and the amount of time that you spend with your child or children. Sometimes it is difficult to determine what a person, especially a self-employed person, earns. Other times there may be a dispute over whether a person who is not working really could work, and if so, how much he or she could earn. This dispute is a dispute over whether income should be “imputed“.  That is why you need the services of a Family Law attorney like Andy Cook, who is certified as a Family Law specialist by the State Bar of California, Board of Legal Specialization.

    • Does the judge have to go with the Child Support Guideline result?

      Not always. If the parties agree on a higher or lower figure, the judge can make that figure the court order as opposed to the result generated by the guideline formula. Also, in rare cases involving a person with an “extraordinarily high income”, the judge is allowed to decide that the guideline formula would yield an amount of child support that is in excess of the child’s needs. There are other, rarer exceptions.

    • Will the judge look at expenses when calculating child support?

      The expenses the judge must consider are taxes (including things like FICA); health insurance; mandatory union dues; and mandatory retirement. The judge will also look at “necessary job related expenses” and spousal support being paid because of a court order in another case; or child support being paid, even if voluntarily, in a situation involving another parent.

      Stated differently, the judge, with the help of a laptop computer, starts out with gross income. Then the computer figures out the taxes, After that, the judge enters information in about the other deductions mentioned above. The number that’s left at the end is the number used to calculate a parent’s obligation to pay child support, or right to receive child support.

      All of this assumes the parent is an employee of some agency or company and gets a W-2. For people who are self employed with a dispute over what they earn, the judge may look at the Schedule “C” from the person’s most recent tax return, or a profit and loss report. The judge wants to know how much money the person is taking in and what the expenses are to run the business, like workers’ compensation insurance, rent, advertising, etc. The difference between these two numbers, i.e., the money being received and the money being spent, is often what the judge uses for the self-employed person’s “gross income”. Then the judge uses the same methodology as outlined above, deducting for things like spousal support or child support being paid in another case.

      Sometimes, an expert will be hired to look at bank deposits, bank statements, receipts, tax returns and other documents to figure out what the real income is. This can be a tricky process if the person’s income changes dramatically from year to year or if the person deals primarily in cash.

      As far as other expenses are concerned, the judge is allowed to look at “hardships”, which are either extraordinary health expenses, uninsured catastrophic losses, or the minimum basic living expenses for children who live in the home but who are products of different marriage(s) or relationship(s). There is, however, a ceiling on how much can be deducted for each “hardship” child.

      A cautionary note: without a lawyer, particularly a certified family law specialist, you’ll end up getting too little or paying too much. It can feel like the hearing is going 100 miles an hour if you try to do this yourself, but you’ll be stuck with the outcome for years, so you want to make sure there’s someone who’s quick to spot mistakes and other issues to get you the best possible outcome. That’s why you should call Andy Cook to help you at (619) 304-9769.

    • How long does child support last?

      Usually until the child turns 18 or graduates from high school, whichever is later, but no later than 19, unless one of two exceptions applies. The first exception is if the parties agree in a written document filed with the court that one of the parents will keep on paying for child support, usually for a period of time, such as college. The other is based on Family Code section 3910, which requires child support for “a child of whatever age who is incapacitated from earning a living and without sufficient means”;.

    • How soon can a child support order start?

      On the date that you file for divorce or the date you file a paternity case (which you would do if you were never married to the other parent).

      The actual hearing where the judge decides how much to order in child support does not take place on the same day that you file, but on the date of the hearing, the judge is allowed to make the effective date the date that you filed your case. This means that the other side may owe you back-support or arrears, plus ten percent on the amount that accumulated between the date of filing and the date of the hearing. If the Department of Child Support Services is assisting you and the other side fails to timely respond to your response, the judge has no choice but to make the effective date the date that the request was filed.

      These rules apply for “initial” requests for child support. If you wish to change an existing child support order, the rules are a little different, but the concept of looking back to when the request was filed is still applicable.

      Does this sound confusing? If so, make sure you call the Law Offices of Andy Cook so you don’t miss out on one or more months of California guideline child support.

    • If I overpay child support, can I get my money back?

      Possibly.  On August 25, 2020, the California Court of Appeal –by a 2-1 vote—said that if a noncustodial parent is ordered to pay child support but then the child goes and lives with that parent, but the parent still keeps paying child support, he (in this case) or she may apply for a refund.  In this case, entitled Marriage of Silva, the Court of Appeal approved a lower court’s order that a mom pay back a dad $18,000.00 in monthly installments of $1,000.00.  But this is no guarantee of what will happen in your case.  First, one of the three justices dissented (disagreed) with this conclusion, meaning the answer was not clear cut.  So that could mean that other branches of the Court of Appeal might reach different conclusions; the branch involved here was in Alameda County.  And second, the justices in the majority said that trial courts in the future may deny such a refund or “credit” “in similar circumstances”.

    • What about daycare?

      Under California law, daycare is considered a form of child support called an “add-on”.  An “add-on” is anything the child support payor is required to pay as additional child support besides the computer generated result for base child support.  Another way of saying this is that the payor has to pay the amount generated by the computer plus one half of the day care costs.  “Day care” costs are usually understood to include “afterschool” care, “babysitting”, “preschool”, and in some cases “summer camp” (because the camp is needed to watch the children because non-school hours are greater and because any “afterschool” care provided by the school district may be in recess, no pun intended, during the summer).

      There are limits on the daycare obligation.  The cost of daycare must be related to employment or training for employment, if the person incurring the cost wants the other side to pay one-half.  Daycare should not be ordered if the child or children are too old to need supervision.  But it may be ordered even if the issue is prospective daycare – that is daycare not incurred now but needed in the future so the supported parent can get a job.  In any event, it is a good idea for the person incurring the daycare cost to provide corroborating evidence by way of receipts or something similar to show that the cost was actually incurred, although technically this is not mandatory.

      In rare cases, the allocation of daycare costs might be other than 50 percent, but this does not happen frequently.  Also, the parties –as is the case with base child support—are free to enter into an agreement to handle daycare in a different fashion.

      While we are on the subject of “add-ons”, the parties are also required to share equally the cost of all “reasonable” health care costs for the minor child or children not covered by insurance.  There are other add-ons as well, but they are optional.  That is, it is up to the judge whether to order them or not.

      The issue of daycare costs is covered in California Family Code sections 4061 and 4062.

    • Can the judge make the other parent get a job?

      The judge may order a party to make job contacts.  Some people call this a “seek-work order”.  The judge’s discretion to make such an order occurs when the court determines that the income of the person in question is insufficient to survive and to adequately care for the minor child or children; and that the parent has both the ability and opportunity to work.  The judge probably also must find that the “seek-work” order is in the best interests of the child or children.  If a person ordered to make job contacts does not do so, the judge’s remedies include “imputing” or assuming that the parent could earn a certain amount of money based on the totality of evidence in the case.  The issue of “seek-work” orders is discussed in the case of Haley v. Antunovich (2022) 76 Cal.App.5th 923.

    • If I am paying support but the other party has a new spouse or a significant other, does that person’s income count?

      Usually, no.

      The issue is governed by Family Code section 4075.5, which states:

      The income of the obligee parent’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award, in which case the court shall also consider whether including that income would lead to extreme and severe hardship to any child supported by the obligee or by the obligee’s subsequent spouse or nonmarital partner.

      The statute goes on to state, “[a]n extraordinary case may include a parent who voluntarily or intentionally quits work or reduces income, or who intentionally remains unemployed or underemployed and relies on a subsequent spouse’s income”.

      The key is that the judge must make a finding that the exclusion of what we like to call “new mate income” would cause extreme and severe hardship for the children.

  • Spousal Support/ Alimony

    • My ex makes more than me. Does that mean I get alimony?

      Under California law, daycare is considered a form of child support called an “add-on”.  An “add-on” is anything the child support payor is required to pay as additional child support besides the computer generated result for base child support.  Another way of saying this is that the payor has to pay the amount generated by the computer plus one half of the day care costs.  “Day care” costs are usually understood to include “afterschool” care, “babysitting”, “preschool”, and in some cases “summer camp” (because the camp is needed to watch the children because non-school hours are greater and because any “afterschool” care provided by the school district may be in recess, no pun intended, during the summer).

      There are limits on the daycare obligation.  The cost of daycare must be related to employment or training for employment, if the person incurring the cost wants the other side to pay one-half.  Daycare should not be ordered if the child or children are too old to need supervision.  But it may be ordered even if the issue is prospective daycare – that is daycare not incurred now but needed in the future so the supported parent can get a job.  In any event, it is a good idea for the person incurring the daycare cost to provide corroborating evidence by way of receipts or something similar to show that the cost was actually incurred, although technically this is not mandatory.

      In rare cases, the allocation of daycare costs might be other than 50 percent, but this does not happen frequently.  Also, the parties –as is the case with base child support—are free to enter into an agreement to handle daycare in a different fashion.

      While we are on the subject of “add-ons”, the parties are also required to share equally the cost of all “reasonable” health care costs for the minor child or children not covered by insurance.  There are other add-ons as well, but they are optional.  That is, it is up to the judge whether to order them or not.

      The issue of daycare costs is covered in California Family Code sections 4061 and 4062.

    • How does the Family Court decide alimony cases (i.e., spousal support)?

      Traditionally, most San Diego Family Law judges have used the same computer formula to determine temporary spousal support (i.e., alimony) as they use to determine child support. Temporary spousal support (i.e., alimony) is support that is designed to help the person receiving the support until there is a trial where there is more time to listen to each side explain to the Court what spousal support (i.e., alimony) should be.

      At trial, by contrast, the Court is not allowed to use the computer formula. Instead, the court has to consider about 14 different factors (which are listed in Family Code section 4320), including income; age and health; assets and debts; the marital standard of living; any time off from work devoted to domestic duties; any history of domestic violence; and the need for spousal support (i.e., alimony) and the other party’s ability to pay. Once the court considers all of these factors, it has broad discretion with respect to the duration and the amount of spousal support. If you are dissatisfied with what the court decides, it is very hard to get a reversal on appeal.

      Then there’s a third way of looking at all of this — namely, a spousal support order made after the judgment. In other words, the court may change the amount of spousal support even after the divorce is over. For this to happen, the court must find a material change of circumstances that has occurred since the time of the divorce. When changing or modifying spousal support, the court looks at the same factors in Family Code section 4320 as it would in making a spousal support order at trial.

      So, to sum up, in a spousal support (i.e., alimony) case, the issues include how much spousal support (i.e., alimony) should be and how long the payer should have to pay it. Remember, there are lots of cases where no spousal support (i.e., alimony) is awarded. Because of the wide possibilities in a spousal support (i.e., alimony) case, you need someone like Andy Cook, a San Diego County Family Law attorney certified as a Family Law specialist by the State Bar of California, Board of Legal Specialization.

    • Is It True that Spousal Support Lasts Half the Length of the Marriage?

      That depends. According to Family Code section 4320, there are about 14 factors a court is supposed to look at in setting spousal support. Most of those factors have to do with the amount of spousal support, not the duration. But one of the factors, subdivision (l), does address length. According to this subdivision, the Court is supposed to heed “[t]he goal that the supported party shall be self-supporting within a reasonable period of time”. The language goes on to state, “[e]xcept in the case of a marriage of long duration as described in Section 4336, a ‘reasonable period of time’ for purposes of this section generally shall be one-half the length of the marriage”.

      Section 4336, in turn, states that there is a presumption that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration.

      Of course, these two provisions — sections 4320 and 4336– have exceptions, but, in general, if you’re trying to figure out how long spousal support will last, start out by figuring out how long the marriage has been. If it is less than ten years, there is a good chance –though nothing is guaranteed– that spousal support, if it is awarded, will be for half the length of the marriage. If the marriage was over ten years, it is not possible to predict exactly how long spousal support will last.

      Remember, spousal support can change in amount a number of times from the beginning to the end. And in many cases, there is no spousal support at all.

    • How is support affected by bankruptcy?

      Family law support obligations are not dischargeable in bankruptcy. (In addition, since 2005, debts incurred “to a spouse, former spouse, or child of the debtor . . .in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record” are not dischargeable in bankruptcy.)

    • How is spousal support affected by domestic violence?

      In a number of ways.

      Family Code section 4320, which discusses 14 factors for a judge to consider, requires consideration of whether there is documented history of domestic violence between the two spouses or whether one of them has been convicted of a crime of abuse against the other.

      Family Code section 4325, a more recent enactment of the Legislature, says that if a spouse has been convicted of a misdemeanor crime of domestic violence against the other spouse within five years of the filing of the divorce case, a rebuttable presumption against an award of temporary or spousal support in favor of the abusing spouse goes into effect, which means the abusive spouse can only get spousal support if he or she overcomes the presumption by showing that h/she –the abuser—was herself or himself the victim of domestic violence. This showing by the convicted spouse usually must be made by “documented evidence”. Documented evidence means evidence that is in writing, such as voicemail messages, text messages, social media posts, cellphone recordings, police reports and 911 calls, medical records, photos, employment records, and court records from criminal prosectutions reflecting convictions for domestic violence offenses. Getting these types of “documented evidence” admitted into evidence in a courtroom is difficult and requires an understanding of the rules of evidence.

      Section 4325 is designed to make sure a victim of domestic violence does not have to unnecessarily finance her or his abuser. But section 4325 only comes into play if there has actually been a criminal conviction of domestic violence. An arrest for domestic violence without a follow-up criminal case is not enough.

      Section 4325, which was last changed at the start of 2020, also affects entitlement to attorney fees payable by the victim of the spouse who has been convicted; and potentially even the distribution of community property.

      If all of this has you feeling confused and you want to figure out where you stand, call certified family law specialist Andy Cook at 619-515-9900. He is licensed as a specialist by the State Bar of California, Board of Legal Specialization.

    • What stops a person from quiting employment to avoid paying support?

      The short answer is nothing. In fact, it could be tempting for an employee, who is getting her or his wages garnished, to stop working with the belief that it is better to be jobless and not give a single penny to the other party in satisfaction of a support obligation that is viewed as unfair, than to be gainfully employed. In addition, quiting a job, at least in the context of family law cases, is not illegal in California.

      But this is theoretical. Even for the most bitter spouse or parent, it is better to make money and pay support than to not make any money and pay no support. In addition, while it is not a crime to quit a job, there are criminal penalties in California for not paying court ordered child support or spousal support. Specifically, the defaulting party faces five days in jail for each month that the full amount of support is not paid. In addition, when support is not paid, there is ten percent per annum interest. Other possible penalties include loss of a driver’s license, a lien on property, loss of a professional license, and loss of a passport.

      What about quitting a job and going back to court and asking the judge to reduce or eliminate support because the payor’s income has been reduced? Surprisingly, there are a number possibilities. In one California case, from 2008, a 42-year old woman retired early from her job in law enforcement. The court held that support could not be imposed against her unless there was evidence that the woman could get her old job back for the asking, or that, based on her experience, there were other jobs that paid what she was getting in law enforcement. But the 2008 case was different because at the time of retirement, support between the two parents was already zero because of an earlier agreement between them. But the lesson learned is that the court was not about to impose a support obligation on this woman just because she used to have a job and then, basically, quit (or retired).

      But a 2014 case produced a more harsh result. There, a man diverted business to his father, who did not work at his son’s company. When the son’s bosses found out, they said they would let him keep his job but only if he admitted to his wrongdoing, and reimbursed the employer for the lost income. The son, i.e., the husband, refused to do this, and he was fired. By the way, at the time of his firing, the husband was under court order to pay both child and spousal support.

      The court was not impressed. The court refused to adjust support, finding that the husband had it within his means to keep his job and had deliberately divested his earning ability.

      There are cases that come in the middle. If a person is laid off or exercises poor judgment or does any of a number of things that cause people to get fired (like poor performance, insubordination, a failure to get along with others, etc.), support could be reduced to zero, with orders from the court that the discharged worker make “job contacts”, i.e., that is, contact a number of employers each week until a new job is obtained. A review hearing might be set, so that the judge can see if the fired worker has followed through on the job contact orders. If that person has not, support could be reinstated, especially if there is evidence that there are job openings in the geographic area that match the fired person’s experience.

      If a person loses her or his job, for whatever reason, it is important to file a motion with the court as soon as possible. This is because a new order for support, based on either no income or income only from unemployment compensation, can only take effect on the date that the motion for a reduction in support is filed with the court.

      This is a complicated area of the law, with the results often turning on whether “separation” from employment occurred while there was already a motion to change or establish support on calendar, and a number of other issues. To make things even more complicated, the answer to this “frequently asked question” focuses on people who are wage earner or salaried individuals. If someone is self-employed, claims of changed compensation are often more difficult to resolve and may require experts to analyze tax returns and other documents, including loan applications.

      If support is substantial, you will have trouble handling any future court case involving modification of support without the assistance of an attorney who is certified as a family law specialist by the State Bar of California, Board of Legal Specialization. So regardless of whether you are the payor, or the payee, if you are faced with facts similar to those discussed in the answer to this “frequently asked question”, call San Diego divorce attorney Andy Cook as soon as possible at 619-515-9900.

    • Is spousal support (alimony) tax deductible?

      As we lawyers like to say, “it depends”.  Because of major federal legislation enacted in 2017, spousal support is no longer tax deductible under federal law for federal tax returns for the person who pays it IF the divorce case was not filed until 2019 or later.  Under these circumstances, the recipient of the spousal support does not have to pay taxes on whatever he or she receives.  Spousal support is not affected, however, with respect to California state income tax returns.

      There are other circumstances in which spousal support is no longer deductible for federal returns, depending on when the divorce judgment was entered by the court and when the court first made a spousal support order.  These two things are not necessarily the same, so don’t just listen to what your friends say or try to find out on the internet.  Call us at 619-515-9900 if you are presently dealing with spousal support issues, but please also speak with a competent tax advisor like a Certified Public Accountant.

      The older the case is, the more likely spousal support remains tax-deductible under federal law, but if someone tries to modify (i.e., change the amount) of spousal support now from an order made years ago, the answer is not as clear.

      At the Law Offices of Andy Cook, we do not give out tax advice, but we sure know what we’re doing in the California courtroom!

  • Property Division

    • Can I change separate property to community, or the other way around?

      Yes. One’s separate property may be changed to community property, or community property may be changed to the separate property of one of the spouses. But certain procedures have to be followed under California law if later on you find yourself going through a divorce and you want the judge to recognize the change in your property made during the marriage.

      So how do you do it? First, follow the provisions in Family Code sections 850-853, inclusive. To begin with, there must be a writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. The writing must contain a clear and unambiguous expression of intent to transfer an interest in the property. Also, the writing must expressly state that the characterization or ownership of the property is being changed. Even if all these provisions are followed, the change it title, called “transmutation”, will probably not be accepted by a judge in a California divorce case if the process was the product of undue influence by the party who stood to benefit.

      Finally, the spouse who benefits must also expressly, at the time of the transmutation, agree to the transfer, even though he or she may be the one who benefits. This is based on a 2020 case from San Diego called Marriage of Wozniak (2020) 59 Cal.App.5th 120.

      Be careful! Millions of dollars could be at stake.

      And the law is constantly changing, but this pretty much sums it up as of now.

    • How is property divided?

      In California, a family court has to divide all community property assets and all community property debt equally. Community property is all property, wherever located, acquired by a married person while domiciled in (which usually means living in) California, with certain exceptions. Because the law of community property affects what happens to your house, your retirement, your cars, your credit card debts, and your bank accounts (regardless of whether these items are in your name or the other person’s name or both parties’ names), you should consult with Andy Cook, a San Diego County Family Law attorney certified as a Family Law specialist by the State Bar of California, Board of Legal Specialization.

    • I heard that California is a community property state. What does that mean?

      Yes, California is a community property state. The law says that all property acquired by a married person while (basically) “living” in California is community property, regardless of whether the property is in California or not. The significance is that at the time of a trial for divorce, the judge must divide community property evenly.

    • Will the judge make us sell our home?

      If you and your spouse can reach an agreement on what to do with the house that you own, most judges will simply go with that arrangement and make it part of the judgment of the court.

      If you cannot reach an agreement, the first question the judge has to answer is whether the house is community property or not. Generally speaking, if you or your spouse or both of you acting together bought a house after the date of marriage, the house will be characterized as community property. All community property assets and all community property debts must be divided equally in a California divorce, unless the parties agree otherwise.

      You obviously cannot divide a house in half, so what the Court will do is figure out what the community property equity is in the house. You can figure out what the equity is by determining what the house is worth now and what the debt on the house is now. The difference between those two numbers is the equity. All of the equity will be community property, unless there is an enforceable prenuptial agreement that says otherwise, or unless the down payment for the house or some improvements in the house were paid for by separate property funds (or unless the mortgage was paid for by money other than the earnings of one spouse or the other).

      Let’s assume, then, that all of the equity is community property. The judge can order you to pay 50 percent of the equity to your spouse but give you the house. Or your spouse can be ordered to pay you the 50 percent and then he or she keeps the house. The judge may look at who is getting primary custody of the children and where the children primarily live at the present time. Perhaps one of the biggest issues is which spouse actually lives in the house. Or, the judge could also figure out that only one spouse has the ability to get the funds together to buy out the other party; or that only one spouse can afford the monthly mortgage.

    • If a house was purchased before marriage and always remained in one person’s name, what will the judge do?

      The judge should determine that the house is separate property, not community property. So the person whose name is on the title will not have to pay 50 percent of the equity to the other spouse. If the mortgage was already paid off before marriage, that hopefully will be the end of the story. But if someone’s earnings – either those of the property owner or those of the other spouse – were used for the mortgage after marriage, California law provides a formula through which to apportion the property’s value at the time of divorce. This is called the Moore/Marsden rule. Under this rule, there is a right to reimbursement for the other spouse based on the amount of contributions from earnings to the mortgage during marriage and the amount of increase in the equity of the property during the marriage. So, no, the property owner does not have to pay 50 percent of the equity but there may be some percentage of equity that does have to be paid.

    • What happens to retirement?

      No matter whose name a retirement plan is in, all benefits of the plan earned or acquired after marriage but before the parties separate is community property. The exception is if the parties agree to a different arrangement in writing or if there was a prenuptial agreement entered into in writing before marriage that is enforceable at the time of the divorce.

      Sometimes, it is not clear whether retirement benefits were acquired during, before, or after the marital period. Sometimes it is a combination of more than one of these time periods.

      Offering guidance, one panel of the California Court of Appeals has stated “[E]ven where a benefit is dependent in part on total years of service accrued during marriage, if the contractual right to the benefit is not acquired until after separation, the benefit is separate property”. (In re Marriage of Kelpe (2021) 64 Cal.App.5th 103.  At issue in Kelpe was a $928,243.00 lump sum payment to the husband.

      Over 20 years earlier, the California Supreme Court –facing different facts—ruled the opposite way, in favor of the non-employee spouse. In In re Marriage of Lehman (1998) 18 Cal.4th 169, the justices held that when an early retirement incentive added value to a retirement plan that was started before marriage, the community estate’s interest in the plan had to be based on the enhanced value.

      Every person’s retirement situation is different. And the laws of the states are different. The stakes can be huge, like in the Kelke case, where the husband ending up keeping all of the $928,243.00. You do not know what you are entitled to or what you are not entitled to or what your spouse is entitled to (or not entitled to) until speaking with a California certified family law specialist. So do not try to learn your rights just by looking at the internet. Instead, pick up the phone today.

    • Do military pensions work the same way?

      California courts are allowed, under federal law, to treat a servicemember’s monthly retirement as community property but only if the requirements of the Federal Uniformed Services Former Spouse’s Protection Act (FUSFSPA) are met.  Under FUSFSPA, there is jurisdiction to divide a military pension by a California court only if the servicemember “resides” here other than because of military assignment; is domiciled here; or consents to the jurisdiction of the California court.  If there is no FUSFSPA, the non-member spouse may have to look to another state to take care of the pension, even if the divorce itself is handled in California.

      According to the San Diego case of Marriage of Sullivan (2023) 2023 DJDAR 2440, a servicemember may be deemed to have consented to jurisdiction to divide the pension merely by being the one who starts the divorce by filing the petition for dissolution.  The thinking is that if a person chooses California as the place where he or she is going to ask a judge to grant a divorce, that person is implicitly giving the judge permission to divide the pension.

  • Other Questions

    • This is an amicable divorce. Can you represent both of us?

      In most cases, no. Rule 1.7 of the California Rules of Professional Conduct states that a lawyer “shall not, without the informed written consent of each client . . . [a]ccept or continue representation of more than one client in a matter in which the interests of the clients actually conflict”. If this regulation is violated, the attorney is subject to automatic disqualification.

    • What about mediation? Do you handle that?

      Yes. Andy Cook has been hired on a number of times not to represent one side or the other but to serve as a lawyer who tries to get the two sides to come to an agreement by predicting what a judge might do if the case went to trial or simply to suggest compromises that the parties and their own attorneys may not have addressed.

      In these matters, each of the parties had an attorney to advocate for her or his client’s interests. Andy Cook was thus the third attorney in the room. This is an important point, because while mediation is often a more relaxing way to settle a family law case, it is a bad idea to go into mediation without each side having an attorney. This is because a mediator does not offer strategy or legal advice or serve as a lawyer for either side, and yet it is crucial that people going through the family court system have a lawyer representing them.

      Besides serving as a privately retained mediator, Andy Cook has served 80 times as a temporary judge at mandatory settlement conferences in San Diego County Superior Court, going back to 2005. Settlement conference judges in San Diego County work with the parties and their attorneys to come up with an agreement and avoid the uncertainty of a trial if there is no agreement. It is also less expensive to settle the case than to pay for a trial, which can last numerous days and be subject to numerous delays.

    • Do I have to go to court?

      No, not in every case. If the parties settle the case out of court by filling out the proper paperwork early enough in the case, there is no need for a court appearance. Also, if one side refuses to participate in the process, the other side can fill out court papers and get a default judgment without having to go to court.

      There are other situations where only the lawyers are required to attend and you attend only if you wish.

    • Is it possible to settle the case without having to speak before a judge?

      Yes. After both parties have exchanged their Preliminary Declaration of Disclosure (“PDOD”) and filed the proof of service of the PDOD with the Court (FL-141), the parties can now focus on settlement negotiations and avoid having to go to Court.

      There are two directions parties can take. One would be to draft a martial settlement agreement and the other would be to appear at a marital settlement conference. Depending on how well the parties get along, one option might be better than the other. Each option will be discussed in more detail.

      Parties who are amicable, have little community property to divide, or have no minor children, may want to draft a marital settlement agreement (“MSA”) instead of going to a settlement conference. An MSA provides a list of everything the parties agree to. It can vary in terms of length of pages, but the goal of an MSA is to cover all aspects of the divorce proceeding. Of course, both parties must agree to all the terms of the MSA and the MSA requires signatures from all parties involved in the case. Once the MSA is fully executed, it gets attached to the judgment and submitted to the Court for processing. You wouldn’t want to do this without the advice of a certified family law specialist like Andy Cook, because if something is written in a vague fashion, or is not worded properly, the consequences could be disastrous.

      For parties who cannot come to an agreement, they may have had to go to a mandatory settlement conference, at least here in San Diego, before a trial will be set. Indeed, this is the last formal attempt to settle the case before the parties go to trial. The Court assigns a voluntary experienced family law attorney to act as a neutral judge to help the parties come to an agreement and avoid trial. This person is called a settlement conference judge, even though he or she will not wear a black robe. To obtain an MSC date in San Diego, parties must file a Joint Readiness Declaration. This form requires parties to obtain the dates of when they served their preliminary declaration of disclosures. Once a settlement conference is set, the parties must each prepare their own Marital Settlement Conference Brief stating their opinions on how the case should end. The brief is exchanged between the parties and a copy is also served to the settlement judge.

      At the MSC, the parties will first meet with a real judge in a black robe, and that judge will give a brief explanation on what to expect and the goal of the MSC. The judge will also provide one party with a 13-page term sheet as guidance to make sure every issue in her or his case is addressed. Then the parties are released to the settlement judge. If the parties come to a full agreement, the term sheet gets processed and one of the parties will prepare the judgment packet that mirrors all the terms stated in the term sheet.

      If no agreement is reached, the judge overseeing the MSC will refer the parties back to their assigned judge who will then set the trial date. Because trials cost a lot of money and because you never can be sure what a judge is going to do, it is usually- though not always – better to settle the case.

      If you can compromise, and the other side can compromise, each of you may think you got a raw deal, but a raw deal that you had a part in creating, is better than having to provide testimony to the judge, and subject yourself to cross-examination from a hostile attorney.

      Even if you don’t have a nervous breakdown over the stress and anxiety, a settlement gives you a piece of mind that you can walk out of the courthouse divorced, ready to begin your new life. It’s hard, but we know you can do it.

    • Should I get a legal separation instead of a divorce? What does that mean?

      People may opt for a judgment of legal separation rather than a judgment of divorce. The rules regarding child custody and visitation, child support, spousal support, domestic violence, and attorney fees are pretty much the same, and so, too, are most rules regarding property division.

      The difference is that in a legal separation case, the parties remain married after the case is over. In a divorce case, the parties become single persons again once the case is over.

      Some people prefer to pursue a legal separation case for religious reasons or reasons having to do with immigration or insurance issues. Also, if California’s six month residency requirement has not been met by either party, one or both spouses may choose to file for legal separation.

      “Legal separation” is not the same as the “date of separation”. The date of separation is the date when the law no longer considers future marital property acquisitions and future marital debt to be community property. Because of legislation enacted in the summer of 2016, the date of separation is now defined as “the date that a complete and final break in the marital relationship has occurred”. To figure out this issue, a judge has to look at the date one “spouse has expressed to the other spouse his or her intent to end the marriage” and whether the “conduct of the (first) spouse is consistent with his or her intent to end the marriage”.

      This new rule comes from Family Code section 70. Before section 70, parties could not be considered “separated” unless they lived separate and apart. So the requirement that the parties not live together in order to be considered separated is no longer the law in California.

    • Is it possible to get the other side to pay for my attorney fees?

      Yes. If the other side makes considerably more money than you do, the Court may award attorney fees so as to give both sides a fair playing field, i.e., equal access to attorneys. Also, if one side has behaved unreasonably, the Court may use the unreasonable behavior as a separate basis for an award of attorney fees. There are other statutes or rules that allow a Family Law court to award attorney fees.

    • I already have a judgment. Does Any of this information apply to me?

      Possibly. Orders for child custody and visitation, along with child support, may be modified (“changed”), based on a showing of a material change in circumstances since the last court order. The same applies to many, though not all, orders for spousal support.

      Also, if certain property issues have not been resolved, it may be necessary to get a new court order.

    • What about appealing what the judge decided?

      Many Family Law decisions can be appealed, but you only have a certain amount of time to do it! You need to speak to an attorney fast to figure out how many days you have from the time the court ruled against you to appeal. You also have to figure out when the “clock starts ticking” regarding the number of days that you have. Of course, you also have to figure out whether you stand a chance of winning, and, if so, how much it will cost.

      If you do appeal, three “justices” will review the court record before deciding what to do. Although this may be an oversimplification, the justices are usually trying to figure out whether the judge in your case made a mistake, and, if so, whether the mistake had any impact on the decision that the judge made.

      The justices work in a separate courthouse called the “Court of Appeal”. The justices are appointed by the governor of California and do not include the judge or commissioner who ruled on your case.

      The decisions of every decision made in appeals cases for California courts may be found online.

      The Court of Appeal that is located in San Diego is called “the Fourth District, Division One”.

      The filing fee is $775.00 for family law appeals in California.

      Individuals not happy with the result in the Court of Appeal may ask the California Supreme Court to hear their cases, but the Supreme Court is not required to hear every case presented to it. Accordingly, the overwhelming number of family law cases that are appealed in California end at the Court of Appeal.

      Still, there are exceptions, and there are a number of high profile cases in family law that have gone to the Supreme Court, which consists of seven justices appointed by the governor of California and which usually hears matters in a courthouse in San Francisco. Indeed, some cases with family law aspects have made it all the way to the Supreme Court of the United States!

    • Are there any risks in appealling?

      Yes.  If you lose, the Court of Appeal will usually order you to pay the other side’s costs, which do not include attorney fees, but are not limited to, such things as filing fees, printing costs and the cost of obtaining the trial court record.

      However, if you not only lose but the appeals court finds that your appeal is “frivolous”, you can be ordered to pay the other side’s attorney fees and other forms of sanctions.  An appeal is considered “frivolous” when any reasonable attorney would agree that the appeal is totally and completely without merit.

      There are other risks as well.

    • Is there anything else I can do If I don't like the judgment?

      Is There Anything Else I Can Do If I Don't Like the Judgment?

      Yes. Family Code section 2122 allows the judge to set aside a judgment based on actual fraud; perjury in connection with financial disclosures filed by the parties; duress; mental incapacity; mutual or unilateral mistake (when the judgment was the result of an agreement not a trial); or the noncompliance with financial disclosure requirements as provided by California law.

      Just like an appeal, there are time limits to asking the judge to set aside the judgment.

      Unlike an appeal, the set-aside request is decided by the trial judge who entered the judgment or any other trial judge who has replaced the judge who entered the judgment. An appeal is decided by a different court, namely the Court of Appeal, which reviews the case by assigning three justices to the matter.

      Provided all applicable deadlines are complied with, a person unhappy with what happened in Court may ask to set aside the judgment, or appeal, or do both. In the case of a set-aside that is granted based on fraud or perjury, there is a good chance the Court will award you attorney fees, especially if the other side can afford them. There are also other remedies, especially in the area of custody, child support, and spousal support. None of this easy, so your best decision is to not go at it alone. Rather, call 619-515-9900 and ask for Andy Cook, certified as a Family Law Specialist by the State Bar of California, Board of Legal Specialization.

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