How do judges decide divorce cases? The short answer is by application of law to fact and use of judicial discretion. The law is found in our code books (mostly the California Family Code) and cases (appellate and supreme court). The facts are your specific situation. Judicial discretion is how much leeway the law gives judges to make decisions based on the facts. When judges decide divorce cases, that discretion is a big part of the decision making process.
This article is informative and based on our experience as California divorce lawyers. It is only about California divorce law.
This article is not legal advice about your specific situation. Our law firm represents husbands and wives in Orange County, California where we have offices in Santa Ana, Mission Viejo and Newport Beach. We hope you enjoy what you read here.
Settlement fell apart. So how do judges decide divorce cases?
If the judge is set to decide your divorce case, you and your spouse weren’t successful in settling your divorce. Was it one issue or more? Some California divorce trials can involve everything, from custody, support, property, you name it. Other divorce cases involve isolated issues. Regardless, your date with the judge is coming up and you are anxious about how it will start and end.
How do judges decide what evidence to admit and how much weight to give it?
One very important reason you need a lawyer is the rules of evidence and procedure. California evidence and procedural rules are tough to navigate. You may think you just show up with paperwork like letters, proof of this or that and present your case but it does not work like that. There are specific rules on how a case is presented and these rules dictate what can be submitted into evidence and what weight the judge gives it. “Weight” refers to the degree of importance a family law judge attaches to the evidence.
How do judges decide divorce cases that involve child custody?
California child custody laws can feel like a complex maze of legal concepts that let the divorce judge do whatever he or she wants. Fortunately, it’s not like that. Let’s take a closer look.
How do judges in divorce cases decide between sole or joint legal custody?
Family Law Judges typically decide to award joint legal custody unless it is inconsistent with the children’s best interest. The most common issues that cause a judge to decide against joint legal custody are child abuse, serious neglect, findings of domestic violence, substance abuse or other situations where the judge believes it is contrary to the children’s best interest. A finding of domestic violence can result in a presumption against joint legal custody.
How do judges in divorce cases decide between sole or joint physical custody?
Many parents don’t understand what joint physical custody means. Some mistake it for joint legal custody. Others believe joint physical custody is only for those situations where the parents share 50/50 custody. In our experience, judges typically decide to award joint physical custody in those divorce cases that involve significant time for each parent. While there is no set rule, parenting time of 40% or more usually results in joint physical custody. Parenting time less than that can too but it’s not as common.
Abuse, neglect, substance abuse and domestic violence can also result in a loss of joint physical custody.
What will a judge do if there are child abuse allegations?
If a judge believes an allegation of child abuse needs to be investigated, the judge has several options. The judge can decide to order an internal investigation (in Orange County, it is called a CCI) or an external evaluation. The external evaluation is typically appointing a private child custody evaluator or a lawyer for the children (called minor’s counsel).
Once sufficient information is gathered, the judge then hears from the investigator, evaluator or minor’s counsel and can also take testimony from the parents, typically by each parent’s lawyer. In Orange County, the hearing on most child abuse related cases is an evidentiary hearing which means formal testimony is taken from the parents, witnesses and experts.
How do judges decide divorces that involve move away cases?
We have written an article on move away cases in California child custody matters and we encourage you to read that. We won’t repeat its content here. However, realize judges are supposed to take great care when deciding move away cases, even more so than the typical child custody case. Evidentiary hearings are very common. Testimony can be extensive. Child custody evaluators are often involved. Opposing a California move away case requires a careful strategy.
How do judges decide divorce cases that involve disputes about parenting time?
What is the difference between custody and parenting time?
Parenting time (also called “visitation”) is different from “custody.” Custody attaches labels like joint or sole. Parenting time is all about the schedule and quality of the time with each parent and the children.
How do judges decide if the parents should have equal or one parent should have primary parenting time?
“I am a 50/50 judge.” Yes, I have heard judges say that. Yes, there are some judges that prefer equal parenting time. But don’t walk into a California family court and expect a judge will have a bias for or against one parenting time schedule versus another.
Equal parenting time starts with two parents who can handle it. Judges will look at each parent’s history of parenting, especially if the children are young. It is much easier for a judge to decide on equal parenting time when there is a history behind it. On the other hand, if one parent has historically been the primary caretaker and the other parent hasn’t shown the ability to parent effectively, 50/50 is less likely.
Judges however are trained to be practical. In a marriage, parents take different roles. One may be the breadwinner and the other the stay at home parent. Just because that is how the children were raised does not mean the judge will forever doom the noncustodial parent to his or her pre-separation role. Parenting time can evolve and often does if the noncustodial parent pursues it wisely.
Read the Orange County Parenting Guidelines
In Orange County, where we focus our family law practice, the Orange County Parenting Guidelines are a great way to evaluate the different schedules for different ages and the factors judges typically take into consideration. We break down the parenting guidelines in our California child custody FAQ page. Check it out.
How do judges decide divorce cases that involve domestic violence
Judges decide divorce cases that involve domestic violence in much the same way as other cases. If it exists, domestic violence is either in the foreground or background of a divorce case.
In the foreground, the alleged victim files a request for at temporary restraining order and sets forth in writing the basis for it. Judges rarely hear testimony or even speak to the spouses at this stage. The judge will read each spouse’s paperwork and then decide if an emergency request should be granted.
Regardless of what happens at the emergency hearing, the judge should then set a formal hearing to determine whether a more permanent order should be granted. The word “permanent” is an oxymoron because restraining order typically don’t go beyond five years. They can however be renewed and go beyond that.
At this second hearing, the judge will typically hear testimony from both spouses and witnesses. Family law domestic violence cases are often he said / she said so judges will not just listen to each side’s testimony but also the manner in which they testify. Of course, if there are exhibits (photos, text messages, emails, videos (and transcripts of them), etc., those can be useful.
How do judges decide divorce cases that involve child support?
We have written a comprehensive guide on California child support laws. It is lengthy but well worth the read.
California law intended to make the judge’s decisions easier on child support by creating a guideline formula. Instead of a lot of back and forth, the idea was to make child support a computer calculation.
Judges will take the numbers they determine are accurate and plug them into the formula. For example, the judge will determine the percentage of parenting time and place that into the formula. In cases that involve a dispute regarding parenting time, the judge will hear testimony from each parent (and often argument from each lawyer) before the judge makes the decision.
Some cases also have a dispute over income. That is most common when one spouse is self employed and the other claims the self employed spouse is not being truthful about his or her income. In such situations, the judge will often hear testimony from one or more forensic accountants who will testify as expert witnesses. In some cases, the Court will appoint a forensic accountant as the family court’s expert to determine the income amount.
Judges sometimes also have to decide on whether or not to impute income to one spouse. Imputation of income means to designate an income to a spouse even though the spouse claims he or she doesn’t actually make that amount. Judges sometimes want to hear from a vocational examination expert before making that decision.
How do judges decide divorce cases that involve spousal support?
What we have written about child support applies to spousal support with some exceptions. The biggest one is how the final spousal support decision is made. By final, we refer to the one at trial and yes, similar to child custody, it isn’t a true final award because spousal support is modifiable in the future under certain circumstances.
The judge makes the decision in the divorce case on the issue of spousal support by going through the Family Code 4320 factors. Once again, testimony is taken and evidence is presented on each of the factors. The focus is on the marital standard of living. Read our informative California spousal support law page to learn more.
How do judges decide divorce cases that involve sale or division of the family residence?
Family law judges are usually asked to make decisions about the family residence when there is a dispute regarding its “characterization.” That is a fancy word for dispute over whether the home is community property (shared equally), separate property (belongs to one spouse only) or a combination of the two (mixed character).
Decisions on whether a house is community versus separate property (or both) usually involve documented evidence. Deeds, escrow and loan documents, mortgage and bank statements, appraisals, etc. It all depends on what the issues may be.
For example, if a wife claims she owned the house prior to the marriage, she may produce a deed that shows that. There would also be source documents to show from whom she acquired it. The husband may then claim that mortgage payments were made during the marriage that reduced the principal balance of the loan. This can lead to a Moore Marsden claim, which we discuss in the previously referenced article.
Each of these claims will involve the spouses (through their lawyers) presenting documents to the Court and the judge then deciding on whether the documents are admissible into evidence and also what effect they will have on the ultimate decision.
How do judges decide divorce cases that involve contested separate property claims?
How a judge decides separate property claims in a divorce depends in large part on how contentious the issues are. Let’s use two common examples.
A wife owned a house prior to the marriage. During the marriage, the wife refinanced and executed a deed that also added her husband. Now, the wife claims the house should be her separate property and the husband claims the house became community property. In such a case, here are several pieces of evidence the judge may be asked to evaluate (this is not a complete list)
- The deed and proof the wife acquired the home prior to the marriage
- The deed and proof the wife added the husband to the property during the marriage
- The value of the house and equity in it as of the date of the marriage
- The value of the house and equity in it at the time the husband was added to title
- The increase in value and equity of the house from the date husband was added to title through the time the judge is asked to make the decision (sometimes, it can go to a date earlier than that depending on the facts)
Again, this is not a full list. There is more involved. But just taking the above, how would a judge decide such issues? He or she would look at the evidence and want confirmation the home was in fact owned by the wife prior to the marriage. The deed would be good evidence of that. Then, if the husband is claiming the wife “transmuted” her separate property to community property, the second deed would need to meet the transmutation requirements.
Let’s assume it did. The wife may argue that she is still entitled to the equity value of the house as of the date the husband was placed on title. For that, the judge will likely need to see an appraisal to know the value of the house then. What about any increase in value and the equity? Will the husband argue any such increase belongs to the community? For that, the husband would need to show the current value. The husband may then argue that he is also entitled to what is commonly called a Moore Marsden share of the home from the date of the marriage through the time he was placed on the deed. In such a case, the value of the home as of the date of the marriage as well as other numbers are needed.
We just scratched the surface of this issue but do you see how a judge would have to receive and weigh the evidence? A judge would decide these separate property issues one way or another in a divorce case based on the facts, evidence and the application of those things to the law. The wife’s lawyer would submit her evidence, the husband’s lawyer would submit his, each would present the judge with relevant testimony and the judge would then make the decision on whether the house is community property, separate property, both and how it would be divided.
Now imagine all of the various types of other separate property claims out there to different kinds of properties and assets. The issues may be different, the evidence will not necessarily be the same but its general presentation to the judge have a lot in common with each other.
How do judges decide divorce cases that involve division of a business?
This is a complex topic but we will give you one of the most important aspects of it. Judges typically want to see a business’ value through expert witness testimony. That expert witness may be a forensic CPA the judge appoints as the court’s expert or each spouse may have their own CPA. In some cases, it’s both. But some businesses really cannot be valued by only a CPA because they are so unique and in such cases, other types of industry experts are brought in to determine what value can be attached to it.
Judge decide divorce cases that involve division of a business the same as any other issue (facts, evidence and the law) but where business division cases are different is their factual and mathematical complexity. It is pretty rare to keep an expert out of such a case and it is also uncommon for the expert or experts to all see eye to eye with each spouse’s own opinion on the business’ value. That is why judges are often asked to decide these contentious issues, especially if the business has significant value and there are differences of opinion as to whether the business has a community property portion to even divide.
Check out our article for self employed husbands in California divorce cases. What we have written there applies equally to self employed wives.
How do judges decide divorce cases that involve one spouse’s request for attorney fees from the other spouse?
Judges decide attorney fee issues in different ways depending on the basis for the attorney fee request.
A fee request based on a spouse’s need and the other spouse’s ability to pay typically involve one spouse who claims there is a lack of “parity.” Lack of parity means one spouse has a greater access to money or assets to pay for fees compared to the other spouse.
The goal of the Family Code is to level the playing field. The judge decides such attorney fee issues in divorce cases by looking at marital lifestyle, income, expenses, liquid assets, the availability of non-liquid assets to be sold, the length of the marriage and complexity of the issues, etc.
Judges will receive evidence through a completed income and expense declaration as a starting point but there is more to it than that. Legislation in the past few years has made attorney fee requests based on Family Code 2030 and 2032 (the need and ability to pay statutes) more paperwork intensive in most cases. That is not to say you need to write a treatise to get fees. The statute even allows fee requests to be made orally.
Regardless, that is more uncommon and in cases that involve lawyers for each spouse and issues complex enough for formal, written fee requests, the judge will make the decision by wanting to see evidence on income (typically pay-stubs, W2, 1099, K1, tax returns and sometimes bank statements), proof of money in financial institutions and an understanding of the assets. The judge will want to hear from each lawyer on the issues for which the fees need to be paid to litigate. “I want money because I want it” is how many lawyers approach this issue and then they wonder why their fee request is denied. It is not enough for a lawyer to tell a judge he or she wants to be paid. The attorney has to justify it by taking the court through why the fee request is necessary and the fees requested are reasonable.
Judges can also decide fee requests based on “sanctions.” There are different types of sanctions requests in family law cases but the most common one is a Family Code 271 request.
How does a judge decide whether or not to sanction a spouse for violation of Family Code 271? First, the judge needs to hear evidence on the issue of how the spouse has violated the section. This is typically shown through settlement offers that were reasonably made and rejected, unreasonable settlement offers being made, taking positions during the family law case that were inconsistent with the facts or law or simply refusing to compromise and causing unnecessary litigation. We have also successfully obtained sanctions awards against spouses for causing litigation through false accusations.
How do judges decide divorce cases that involve a lying spouse?
This one is at the heart of many divorce cases. The lying spouse issue is one of the reasons some feel victimized by the family law process. Simply, some believe there is no justice in family law because a spouse who lies gets away with it and is rarely punished.
First, that is not true in most cases although I have heard of cases like this when the divorce case was handled poorly, either by a self represented person or ineffective representation, or the judge just did a poor job of evaluating the issues and facts.
Second, how a judge decides divorce cases that involve a lying spouse depends in large part on what the lie is about. Let’s take a look at one example.
Let’s say a husband has lied about his income. He is self employed, he keeps two sets of books, he has understated his income by a significant amount and essentially committed perjury on his income and expense declaration. The judge has a lot of options available to him or her.
First, if the judge finds all of these things as true, the judge can issue significant monetary sanctions against that spouse. These sanctions are attorney fees and costs and potentially more.
In addition, going forward, the judge may decide the husband has very little credibility and make the least favorable presumptions against him on the financial issues. That means the husband better have pretty solid evidence to back up his claims because his word may not mean a lot to the judge.
In extreme cases, if the issues involve failing to produce documents and playing games in the discovery (formal fact finding) process, the judge can even order issue or evidentiary sanctions against the lying spouse. This is serious because the judge is essentially making a ruling that limits or eliminates the husband’s (in our hypothetical) ability to offer testimony on one or more issues or the judge simply finds the issue in the wife’s favor.
This is just one of many examples and there is much more involved but hopefully this gives a general idea of how a judge may decide a divorce case that involves a lying spouse.
How will a judge decide your divorce case?
Whether you have filed, your spouse has filed, the divorce process is just getting started or it has been pending and you are frustrated with its progress, the answer to this question for your specific facts requires experienced and intelligent legal advice. Since no article can give you legal advice about your situation, it is time to sit down and talk to an attorney. If you have a family law matter in Southern California, we offer an affordable strategy session. Contact us for more information.
To learn more about our family law firm’s services and fees, check out the Farzad Family Law FAQ page.