12. Divorce Trial – What happens during trial?

There are no jury trials in family law court. The judge decides the facts and applies the law. This is commonly referred to as a “bench trial.” Due to the overburdened nature of the San Diego Superior Court’s trial calendar, most judges will go to great lengths to attempt to get the parties to settle some, if not all, of the issues in a particular divorce. This is why the San Diego Superior Court requires all parties to appear for at least one a Mandatory Settlement Conference (San Diego Superior Court Local Rules, Rule 5.8.1; Cal. Rules of Court, Rule 3.1380). The Mandatory Settlement Conference requires the parties to provide the court with a proposed division of assets and debts along with a Mandatory Settlement Conference Brief identifying both contested and uncontested issues (see SDSC Forms D-241, D-274; Judicial Council Forms FL-142 & FL-150). This helps the judge and the parties identify what issues will be heard at a bench trial and which issues might be settled prior to trial.

However, there are many occasions when one or both parties to the divorce just won’t settle on one or more issues. In these cases, the court will set a trial date, cut-off discovery, and order that all exhibits be lodged with the court prior to trial (San Diego County Local Rules, Rules 5.8.2 & 5.8.3). Assuming that one or both of the parties want to be divorced, the remaining issues to be decided at trial are as follows:

  1. The custody of minor children;

  2. The support of children;

  3. The amount and duration of spousal support;

  4. Distribution of real and personal property of the parties; and

  5. An award of attorney fees and costs.

Before a case is called for trial, the judge will have reviewed the parties’ respective trial briefs and have a basic idea of the case. It is not unusual for the judge to call the attorneys into chambers to discuss any aspects of the case that the judge either needs clarification upon, or perhaps thinks the parties should settle. If there is no last minute settlement, the petitioner starts with an opening statement, which is limited to what the petitioner thinks the evidence will prove. The respondent may make an opening statement, or reserve an opening statement until the conclusion of the petitioner’s case.

After the opening statements, the petitioner calls witnesses and introduces evidence. Witnesses may testify to anything that might tend to prove a fact in controversy or reflect on the credibility of a witness (Cal. Evid. Code §§ 210 & 351). The respondent will have the opportunity to cross-examine all witnesses called by the petitioner. When the petitioner has called all witnesses and introduced all evidence (Cal. Evid. Code § 140 (including documents, recordings, or any other tangible thing)), then the respondent has the opportunity to call witnesses and introduce evidence. Essentially, the process is repeated so that each side has the opportunity to introduce all relevant evidence that is not inadmissible hearsay (Cal. Evid. Code § 1200; see Jefferson, Cal. Evid. Benchbook (4th Ed. 2013).

A child may be called as a witness by either party regarding issues surrounding custody (Cal. Fam. Code § 3042), but the child must be of sufficient age and maturity (Cal. Evid. Code § 701). The court must use special care when considering a child’s testimony and may have the child testify in chambers (Cal. Evid. Code § 765).

At the conclusion of all testimony and after introduction of all evidence, the parties are permitted closing arguments. However, because there are no jury trials in family law court, judges generally have a pretty good idea about what the evidence has proven or disproven, and usually don’t tolerate long-winded closing arguments. In other words, it’s not “Law and Order” or “A Few Good Men.” The judge may make a ruling immediately, or may defer a ruling to the parties in writing within a reasonable time after the trial.

The issues ruled upon at trial are generally limited to the enumerated letters (a)-(e) outlined above, and summarized by the corresponding paragraphs set forth below:

a. The custody of minor children.

The terms surrounding custody orders have the following meanings:

  1. Joint legal custody means both parents share the right and responsibility to make decisions regarding the child’s health, education and welfare (Cal. Fam. Code § 3003);

  2. Sole legal custody means on parent has the right and responsibility for decisions regarding the child’s health, education and welfare (Cal. Fam. Code § 3006);

  3. Joint physical means each parent has “significant periods” of physical custody such that each parent has “frequent and continuing contact” with both parents (Cal. Fam. Code § 3004); and

  4. Sole physical custody means that a child resides with and is under the supervision of one parent subject to visitation with the other parent (Cal. Fam. Code § 3007).

There is a presumption that there will be joint legal and physical custody of minor children (Cal. Fam. Code § 3080). In other words, to take away either joint legal or physical custody, one parent must have acted against the best interests of the children (Cal. Fam. Code § 3041 (i.e. a parent has done something bad that effects the child)). In deciding whether the presumption of joint legal custody shall prevail, the court will consider, among other things, which parent is more likely to allow frequent and continuing contact with the other parent. When a child doesn’t live with either parent, the court may order custody to a third party (Cal. Fam. Code § 3041). The court may order an evaluation to determine what is in the best interests of the child (Cal. Fam. Code § 3080; Cal. Evid. Code § 730).

In a joint legal custody order, the court may specify in which circumstances the consent of both parents is required to engage in a certain activity (Cal. Fam. Code § 3083). It is common for the court to require consent from both parents for all non-emergency situations. In a joint physical custody order, it is also common for the court to specify one household as the primary residence of the child (Cal. Fam. Code § 3086), which is important for school enrollment purposes and determining which parent receives the dependent tax deduction. The court may, and often does, award joint legal custody without awarding joint physical custody (Cal. Fam. Code § 3085). Even when one parent has sole legal and physical custody, the court will allow access to important records pertaining to the child (Cal. Fam. Code § 3025 (such as school and medical records)).

Some common scenarios where a parent will usually be denied joint legal and physical custody are where the parent has tested positive for drugs or alcohol (Cal. Fam. Code § 3041.5) and where one parent has perpetrated domestic violence within the past five years (Cal. Fam. § 3044). In both of these situations, it is not to say that the parent will be perpetually cast as a bad parent, but quite a bit of work must be done to show that the parent has overcome the obstacles that landed that parent in the situation in which he or she was cast.

A child of sufficient age and maturity (usually about 14 years old), may voice his or her opinion on which parent he or she may want to live (Cal. Fam. Code § 3042). The court shall give the child’s wishes due weight, but it is not unusual for a court to override the child’s wishes. The phrase “of sufficient age and maturity” is a very important one. The child shouldn’t be allowed to guide the court into making poor decisions.

Due to the diversity in ethnicity in San Diego County, a parent may often raise the immigration status of another parent, but there is a statewide ban on considering immigration status in a custody proceeding (Cal. Fam. Code § 3040(b)).

Another common scenario in San Diego County due to a large military population, are “move-away” cases. This issue arises when one parent must move-away, for example, due to a military order. There are other examples as well, such as when one parent is offered a much more lucrative job in another city or state. The parent can move wherever he or she chooses in the world, but the question is whether or not the child will go with that parent. The landmark California Supreme Court decision of In re Marriage of Burgess (1996) 13 Cal.4th 25, which set forth the rule that to move away, the relocating parent must prove: (a) the move is in good faith (i.e. not to frustrate the other parent’s custodial rights); and (b) the move is in the best interests of the child (i.e. the other parent is acting bad which effects the child). The various move-away situations are limitless, but suffice it to say that moving away with a child can be problematic especially where the parents share joint legal and physical custody.

San Diego Superior Courts require Child Custody Recommending Counseling (San Diego County Local Rules, Rule 5.11.1). The counseling occurs early in a case with a custody dispute. The parents would have a parenting plan that had been implemented well before the trial. As such, the courts will often look to what had been working for the parents and children prior to the trial. With appropriate modifications, this plan will often be implemented as the court’s judgment after trial. However, if it can be demonstrated that the plan has not been working to the detriment of the children, it is not unusual for the court to completely change the temporary custody arrangement.

This article is in no way intended to cover all custody scenarios, but provides a general framework for the common custody issues raised at trial.

b. The support of children.

The obligation to pay support is triggered by a finding of paternity. A child born during marriage when husband is not impotent or sterile is presumed to be the child of marriage (Cal. Fam. Code § 7540). The presumption may be rebutted with blood test results requested within two years of the child’s birth (Cal. Fam. Code §§ 7541, 7550). For a child born outside of wedlock paternity is generally established when the father is consensually named on the birth certificate, there is a written agreement or order for support of the child, or if the parent receives the child into their home and holds the child out as his or her own (Cal. Fam. Code § 7611).

Parents have an equal responsibility to support children (Cal. Fam. Code § 3900) which continues until the child who is not self-supporting ends full-time high school or turns 19, whichever occurs first (Cal. Fam. Code § 3901). The court may order any amount necessary for support, maintenance, and education of a child and reasonable security for payment may be ordered (Cal. Fam. Code § 4001). Child support takes priority over payment of any debts (Cal. Fam. Code § 4012).

Once paternity is established, child support is calculated pursuant to Statewide Uniform Guidelines (Cal. Fam. Code §§ 4050-4078). There is an algebraic formula (Cal. Fam. Code § 4055) that is translated through various computer software programs including Dissomaster (a paid software service). There is also a free child support calculator on the California Department of Child Support Services website at http://www.childsup.ca.gov/ (click on “Calculate Child Support” in the lower left corner and follow the prompts.

In the event that the custodial parent receives government assistance, such as Temporary Aid to Needy Families (“TANF”), Food Stamps (referred to as “CalFresh” in San Diego County), or MediCal, then that parent would have transferred the right to collect child support to the Department of Child Support Services (“DCSS”). DCSS offers a variety of services including a parent locator service, genetic testing, and enforcement of child support through a variety of means including wage garnishment, tax interception, suspension of driving privileges, and revocation of other licenses and passports.

c. The amount and duration of spousal support.

There are 16 factors the court considers in determining the amount of spousal support (Cal. Fam. Code § 4320), as follows:

  • The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:

  • The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment (Cal. Fam. Code § 4320(a)(1)).

  • The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties (Cal. Fam. Code § 4320(a)(2)).

  • The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party (Cal. Fam. Code § 4320(b)).

  • The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living (Cal. Fam. Code § 4320(c)).

  • The needs of each party based on the standard of living established during the marriage (Cal. Fam. Code § 4320(d)).

  • The obligations and assets, including the separate property, of each party (Cal. Fam. Code § 4320(e)).

  • The duration of the marriage (Cal. Fam. Code § 4320(f)). Generally, a long-term marriage can result in spousal support lasting the lifetime of the supporting spouse. A long-term marriage is around ten years, but there is no longer a bright line rule that a ten year marriage is automatically a long-term marriage. The duration of spousal support is generally half the period of marriage in short-term marriages (i.e. greater than one year, but less than ten years).

  • The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party (Cal. Fam. Code § 4320(g)).

  • The age and health of the parties (Cal. Fam. Code § 4320(h)).

  • Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party (Cal. Fam. Code § 4320(i)).

  • The immediate and specific tax consequences to each party (Cal. Fam. Code § 4320(j)). Note, effective January 1, 2019, all future spousal support orders are no longer a deduction to the paying spouse and income to the receiving spouse (see Internal Revenue Code § 71).

  • The balance of the hardships to each party (Cal. Fam. Code § 4320(k)).

  • The goal that the supported party shall be self-supporting within a reasonable period of time. Except 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. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties (Cal. Fam. Code § 4320(l)).

  • The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325 (Cal. Fam. Code § 4320(m)).

  • Any other factors the court determines are just and equitable (Cal. Fam. Code § 4320(n)).
    If the above factors weigh equally, or very close to equally, then the spouse with the greater earning capacity will generally be ordered to pay some spousal support. While it is not written anywhere in the California Family Code, a general rule often implemented by judges is that the spouse with the greater earning capacity is often ordered to pay 25-33% of his or her net earnings in spousal support. The goal of spousal support is to place the parties in a standard of living that is roughly equal and as close to the marital standard of living as possible.

d. Distribution of real and personal property of the parties.

California is a community property state. All property acquired during marriage is presumed to be community property (Cal. Fam. Code § 760) unless it is either traced to a separate property source or there is a prenuptial agreement (Cal. Fam. Code § 2581). All other property is separate property. The court has the power to order division of both community and separate property at trial (Cal. Fam. Code § 2650).

Property acquired before marriage or acquired by gift, bequest, devise or descent and the profits therefrom are separate property (Cal. Fam. Code § 770). Earnings while separate are the separate property of the earning spouse (Cal. Fam. Code § 771). A personal injury award is generally the separate property of the injured spouse with some exceptions (Cal. Fam. Code § 2603).
Real estate, referred to in the law as “real property,” held as joint tenants is presume to be community property (Cal. Fam. Code § 2580). Real property in another state with title as joint tenants or tenants in common is classified as “quasi-community property” and will be treated just as community property held in California (Cal. Fam. Code § 125). In determining the character of real property, the time of acquisition and the form of title are critical to classification of the property as either separate or community property.

Debts acquired during marriage are generally separate property (Cal. Fam. Code § 910). There are many nuances to debts acquired during marriage. For instance, a student loan is generally considered the separate property of the borrowing spouse provided the spouse didn’t cosign (Cal. Fam. Code 2641). If a lender depended solely upon one spouse for repayment, the loan may very well be the separate property of that spouse (In re Marriage of Grinius (4th Dist. 1985) 166 Cal. App.3d 1179).

The California legislature enacted a new code section effective January 1, 2019 regarding “custody” of pets (Cal. Fam. Code § 2605). The law has always regarded pets as goods just like a car or jewelry. This newly enacted code section allows the court to make orders requiring one parent or another to care for pets from the marriage. It remains to be seen how the courts will carry out this provision, but it seems unlikely that any shared custody will be ordered, rather the pet(s) will most likely simply be awarded to one party just as other personal property is distributed.
Retirement benefits are generally subject to division as community property. The mechanism to divide retirement benefits is called a Qualified Domestic Relations Order (“QDRO”). For example, the State Teachers Retirements Systems may be divided (Cal. Educ. Code § 22650) and the Public Employees’ Retirement System (Gov’t. Code § 21215 et seq.) are subject to division. Most, but not all, federally funded programs are also subject to a QDRO. However, the retirement benefits are not necessarily divided equally. The spouse is entitled to a one-half share that accrued from the date of marriage until the date of factual separation. QDRO’s are complicated and during trial, the court will make a finding as to the date of marriage and the date of factual separation. The court will then usually make an order that the retirement benefits are subject to a QDRO that each spouse receive a 50% from the date of marriage to the date of separation. The attorneys are then left to contact the retirement plan administrator who is responsible to crunch the numbers and decide each spouses exact share. The plan administrator will then offer alternative distribution methods, such as a lump sum payout (with tax consequences) or perhaps a deferred payout upon reaching the age of retirement.

e. An award of attorney fees and costs.

The court may award attorney fees in any amount reasonably necessary to maintain and defend a family law matter. The attorney fee award must be based upon the other party’s ability to pay and the parties’ respective income and need to insure access to attorneys (Cal. Fam. Code § 2030). Practically speaking, if one party has a much greater income, that party could be required to pay not only their own attorney’s fees, but their spouses as well.

The court must first determine that one party has the ability to pay the other party’s attorney fees (Cal. Fam. Code § 270). An attorney fees award not only applies to divorce actions, but to matters pertaining to custody in paternity actions as well (Cal. Fam. Code §§ 3150, 3416) as well as proceedings to enforce a family law court order (Cal. Fam. Code § 3557). Fees may also be awarded to the prevailing party in a proceeding under the Domestic Violence Prevention Act (Cal. Fam. Code § 6344).

The court doesn’t always award attorney fees. The court considers the relative circumstances of the parties (Cal. Fam. Code § 2032). It is important to consider tactics utilized in trial, what property each spouse is being awarded, and a variety of other circumstances in deciding whether or not to pursue an award of attorney fees. A court will be loath to award attorney fees to a party who utilizes unnecessarily aggressive tactics at trial. It is important to employ an attorney who understands the nuances of seeking an attorney fee award that can often exceed five to ten thousand dollars or more in a highly contested family law matter.

It should be noted that the above article regarding what happens at trial is a mere summary of the common issues that arise at trial. There are literally hundreds, if not thousands, of issues that may be raised at trial. It is important to identify what the high value issues are at trial, such as spousal support in a long-term marriage, division of real property, and child custody. By having a skilled attorney formulate reasonable goals and expectations at trial, proceeding to trial can be a rewarding for a spouse with realistic goals. In other words, it’s not worth spending houses of court time fighting over silverware, an old car, or a few dollars of support. Realize that at trial, there really are no winners in family law court because each spouse is going to lose something in the process.