Finish a Divorce Case: Default Hearing Checklist
1. STATUS OF MARRIAGE
Standard: Irreconcilable differences have arisen. If you were married, then the judge will want to know if “irreconcilable differences have arisen leading to the irremediable breakdown of the marriage.” This means that there has been a breakdown of the marriage and that no amount of counseling will reunite the two of you.
2. CHILD CUSTODY AND VISITATION
Standard: Best Interest of Child. If there are minor children of the marriage, then you will want to explain to the judge what you want and why. If you are requesting no or supervised visitation don’t forget to tell the judge why you believe your proposal is in the best interests of the child or children.
3. CHILD SUPPORT / HEALTH INSURANCE / CHILD CARE
Main Factors to Determine Child Support: Dad’s Income, Mom’s Income, Percentage of Time each Parent.
If you are going to request a specific amount of child support at your default hearing, you may have the Self-Help Center / Family Law Facilitator calculate the possible guideline child support amount or you may want to calculate it on your own at www.childsup.ca.gov. In order to calculate child support you should bring a copy of your FL-150 Income and Expense Declaration. Also, you will have to make an estimate for the judge as to the other parent’s gross income before taxes. If you tell the judge, “I don’t know what s/he makes,” then the judge will have a difficult time making an order. Remember, you know more about what the other parent earns or is able to earn than the judge does. For this reason, you can describe the other parent’s occupation, experience, etc., and let the judge know what you believe the other parent is capable of earning. The judge can then use this figure in setting the other parent’s earnings.
At your hearing, you may also request an order that the other parent carry the minor children on health insurance available through the other parent’s employment even if they don’t have insurance now. Note that the judge may make the same order for you that each of you carry the children on insurance that is available at no or reasonable cost through your employment. You may also request that each parent pay one-half of any reasonable health care expenses that are not covered by the insurance.
If you incur child care expenses while you are at work or school, you may request that the other parent pay for one-half of any child care expenses incurred while you are at work or school.
If there is a case with the Department of Child Support Services, you will want to let the judge know this. Bring a copy of the child support order with you to your hearing. If the case is in another county, you will want to tell the judge the name of the other county where the DCSS case is located.
4. SPOUSAL SUPPORT
Main Factors: Ability to Pay; Need for Support; Standard of Living During Marriage; Length of Marriage; Age and health of each spouse; How much income each can earn on their own; What the expenses of each spouse are; Whether there are minor children at home; The history of the way the couple handled money during the marriage; What each person needs; What each person pays or can pay (including earnings and earning capacity); Whether having a job would make it too hard to take care of the minor children; Debts and property; Whether one spouse or domestic partner helped the other get an education, training, career, or professional license; Whether there was domestic violence in the marriage or domestic partnership; Whether one spouse's, or domestic partner's, career was affected by unemployment, or by taking care of the children or home, and; The tax impact of spousal support.
If you want to request a specific amount of spousal support, you will need to tell the judge all the facts in your case that are related to the factors listed above.
If you do not ever want spousal support (now or in the future), then let the judge know you are “waiving” spousal support. If you waive spousal support, you will never be able to ask for spousal support in the future, even if you need it. If you have a marriage of 10 years or more the court will want you to explain why this is a reasonable request.
If you do not ever want to pay spousal support to the other party, then let the judge know that you want to “terminate jurisdiction” over the issue of spousal support. If you have a marriage of 10 years or more the court will want you to explain why this is a reasonable request.
If you want the court to make spousal support orders in the future, then let the judge know that you want to “reserve jurisdiction” over the issue of spousal support.
5. ASSETS AND DEBTS
Standard: Equal Division of Community Property and Debt. Remember that community property is defined as any asset or debt that was purchased or incurred after date of marriage and before date of separation. There are some exceptions to this rule, such as gifts or inheritance. Generally, in a default hearing the court wants to be able to divide that community property assets and debts equally between the parties.
If there are assets or debts to be divided by the judge, you should review the FL-160 Property Declaration(s) that you previously completed. If you are requesting that the community property assets and debts be divided unequally, you will need to tell the judge why your unequal proposal for division is a fair and equitable division.
If you are requesting that the court divide a pension or retirement plan then you may need to seek legal advice from an attorney before you get divorced. In most cases, the pension plan will not be able to disburse any money until a Qualified Domestic Relations Order (QDRO) is signed by the judge. In addition, if the employee spouse dies before a QDRO is signed then the pension will not pay out any money to the spouse.
6. RESTORING OF YOUR FORMER NAME
If you want the judge to order that your name be restored to your former name, be sure to request this at the time of your hearing.