Posts Tagged ‘Family Code’


December 19, 2012


by Sara B. Morgan, Esq.

Under existing law, upon the institution of divorce, nullity, or legal separation proceedings, certain temporary restraining order automatically go into effect. Family Code, Section 2040.

Included amongst these orders, commonly referred to as “Automatic TRO’s” or “ATRO’s”, is a temporary restraining order precluding either party from removing any minor children from the state without prior written consent from the other party, or a court order. Family Code, Section 2040(a)(1).

The State Legislature, in an effort to target and prevent child abduction, has enacted Keisuke’s Law, also known as Senate Bill 1206. Effective January 1, 2013, the automatic temporary restraining orders under Family Code, Section 2040 will now also restrain the parties from applying for new or replacement passports for any minor children of the parties without the prior written consent of the other party, or a court order. S.B. 1206.

This legislative change may prove quite beneficial to parents involved in divorce, nullity, or legal separation proceedings, as well as the Family Law courts in California. Removal of a child is a common fear for such parents, particularly when the other party has ties abroad. Many an ex parte hearing was borne of word that a child’s passport application has been submitted. With the passage of Keisuke’s Law, the legislature may be able to give parents peace of mind while simultaneously lessening the Family Law court’s caseload.

DIVORCE: MAKE YOUR EX PAY (for attorneys fees, that is)

November 21, 2012

By Sara B. Morgan, Esq.

While helping people with their divorces, I frequently hear them say that they had put off moving forward with their split because of the cost involved. What many fail to realize is that California law may provide for a way to pay for their attorney’s fees and costs.

In Family Law matters such as divorce, legal separation, and nullity actions, the Court has the ability to order the other party to pay your attorney’s fees. According to the Family Code, the Court may “render any judgment and make orders that are appropriate concerning … [t]he award of attorney’s fees and costs.” Family Code, Section 2010(f).

There are different types of attorney’s fees and costs awards. One type is about equality, and requires the Court to ensure that each party has access to legal representation to preserve each party’s rights. Family Code, Section 2030(a)(1). The Court considers the income, needs, and ability to pay of both parties.

Another is type of award is a sanction, to punish or avoid improper behavior which frustrates the policy of the law to promote settlement of litigation, and to encourage cooperation between the parties in order to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. Family Code, Section 271(a).

These types of awards can be requested upon the filing of the initial petition, or any time thereafter, including for postjudgment appellate, modification or enforcement proceedings. Family Code, Section 2030; Marriage of Green (1992) 6 Cal. App. 4th 584, 593; Bidna v. Rosen (1993) 19 Cal. App. 4th 27, 38.

So, whether you are currently involved in or considering a divorce, legal separation, or nullification, you should contact a qualified, knowledgeable attorney immediately to discuss your options. At the law firm of Heiting & Irwin, we offer free consultations to prospective clients, so there is no cost to find out if we can help you. Please call our office at (951) 682-6400.