“Oh! You’re a lawyer – can I just ask you…?”

Happens all the time, right? At the neighborhood backyard barbecue, on the sidelines at your kid’s soccer game, waiting in line for your second booster. For those of you who are subject matter experts in civil litigation or criminal law, so long as the question is, say, about a Mary Carter agreement or a Faretta waiver, you are on solid ground. You clear your throat, and off you go, lawyersplainin’ away.

But let’s face it, most of the time the question from the civilian is about, yep, family law. And you don’t have a clue. Your questioner is stunned at your ignorance. You feel diminished and the situation is very awkward. You try to deflect with, “How about those Dodgers?,” but you cannot hide the fact that your lawyerly fund of knowledge has been unmasked as inadequate. I am here to help and just in time for that Memorial Day neighborhood get-together. Here are some family law basics about which civilians often ask.

“I gotta get out of this marriage. How long am I looking at to get that done?” You should say, “Well, it’s way faster to get married than unmarried.” A person who wants to get unmarried in California (professionals call that “a marital dissolution,” civilians call it “a divorce”) first must have been a resident of California for six months and a resident of the county in which the dissolution proceeding will be filed for three months. Those are table stakes for the court to exercise subject matter jurisdiction. (Btw, the person initiating the dissolution proceeding in family court is called the “petitioner,” not “plaintiff”). After the dissolution petition is served on the respondent, at least another six months must pass before the dissolution judgment may be entered. This latter provision is a seller’s remorse failsafe: the Legislature figured that maybe with a little cooling off time, the marriage can be salvaged after all. So, tell your questioner to be patient.

“I dated a guy a couple of times five years ago and I got pregnant. Then I never heard from him again until last week. He says he wants to ‘connect’ with ‘his’ daughter. My live-in boyfriend is the only ‘father’ my daughter has ever known. I want no part of this guy, for me or my daughter. What’s the court going to do?”

A “parentage” determination (used to be called “paternity”) is a collection of rights and responsibilities relative to a minor child. The family court decides who is and who is not a parent; it is a legal and not necessarily a biological conclusion. Your current boyfriend (generally called “non-bio dad” in this setting) may be determined to be the parent of your daughter following consideration of all the facts including whether he has received the child into his home and openly “holds her out” as his natural child. And the court may decide that bio-dad has no parental rights. Sometimes, a court will determine that a child has more than two parents.

“How is our property going to get divvied up in my divorce case?” In family court, property, real and personal, comes in two basic flavors: community and separate. Community will split 50-50, separate goes to its owner. (There is provision for various credit and reimbursement claims.) Property acquired during marriage is rebuttably presumed to be community.

“I worked my butt off during our marriage and everything in our bank account is my earnings during our marriage. While I was working, that louse stayed home and played video games all day. He doesn’t get half of my money, does he?” Answer: “Umm, yes, he probably does. Get over it.”

“Well, during our marriage, I inherited some dough when my dad died, and I stuck it in a bank account that I never even told my husband about. I get to keep that after the divorce, right?” Short answer, all other things equal, yes. Sure, it was acquired during the marriage, but an inheritance is specifically recognized as a species of separate property. But how about, “During our marriage, I inherited some dough when my dad died, and I stuck in our joint bank account. I get to keep that after the divorce, right?” The answer, after you wince, is “maybe.” Commingling separate property with community property is a way of automatically transforming (“transmuting” is the term of art) separate property into community property. It may still be possible to “trace” that once-separate money through subsequent financial transactions even though it has been commingled. Such tracing may permit you to reclaim its character as separate property, but now you’re talking about hiring a forensic accountant to untangle the plate of spaghetti. “Uphill battle,” you’ll say.

“Well, I’ll just hide some of the money until this is all over. She’ll never know otherwise.” You will say: “Don’t even think about trying to hide some assets from your spouse in the dissolution proceeding.” The rule in family law is complete, utter, and categorical disclosure under oath of every tiny little fact about your assets and liabilities. So, for openers, intentionally lying under oath on the mandatory disclosure about the existence of an asset is likely a crime. And the consequences for such shenanigans in the dissolution case itself are very severe. Tell your questioner that once the concealment comes to light, the concealer is looking at losing at least half and more likely 100% of the property as a penalty. “But my house in Vail—I bought it before I even married him. It’s mine and I don’t want to tell him anything about it.” You will say, “Very bad idea.” You must disclose all your separate property, too.

Nor will the passage of time immunize the non-disclosure. Years after entry of judgment, when the undisclosed and hence unadjudicated asset comes to light, the court will reopen the proceeding. Fun fact: family law cases are not “over” until a former spouse dies, or in a parentage action, the minor turns 18. A great proportion of the work of the family court concerns post-judgment modifications based on new circumstances (he remarried! she’s cohabitating! I lost my job! I have two new kids with my new husband!) and “unadjudicated assets” – like the assets not disclosed a decade earlier. As the veteran clerks in the family law division say, “there’s no dispo on a disso.”

“Since we separated, I filed my own tax returns. I don’t want her to see them. I don’t have to produce them, right?” Civil litigators are likely quite confident that their clients will not have to produce tax returns in family law discovery because, OMG, they are so private and privileged, right? Wrong. In the family court marital dissolution proceeding, the parties must sua sponte cough up the last two years of their federal and state tax returns to the other side within 60 days of first appearing in the action. The other party does not even have to ask.

“What about our kids? What’s going to happen to them in the divorce case?” Huge question. Nothing is more important to the family court than the question of the custody of minor children. The court is always looking to determine the “best interests of the child” and to make custody orders in furtherance thereof. “BIOC,” as the court sees it, and parental desire, as the court hears it, may not be the same. You might warn your questioner.

“Custody” also comes in two flavors: “legal” and “physical,” and the family court’s custody order will cover both. Legal custody means decision-making power for the kids. What school? What doctor? That sort of thing. In the absence of interpersonal parental pathology, the court likely will award “joint legal custody” which means the parents will need to talk to each other, post-divorce, about the decisions they face and ultimately come to agreement. A Hollywood fairy tale version of such post-dissolution parental godliness is portrayed in the final scenes of the movie A Marriage Story.

The court may elect to give “tie-breaking authority” to one parent if it appears that the parents are unlikely to agree following their discussion of the issue. Sometimes it is in the best interests of the child for only one parent to make all the decisions – this is “sole legal custody.” This often occurs when a parent perpetrates domestic violence on the other parent or the child, although even then the abuser gets a chance to convince the judge that an award of joint or even sole legal custody to him or her nonetheless is in the child’s best interest.

“When am I going to be with my kid?” When civilians ask about custody, they are usually thinking about physical custody. The physical custody order covers such specifics – down to the minute. The court will decide during which intervals of time the child resides in each of the parents’ households and, during those intervals, likewise determine the non-custodial parent’s visitation schedule. Often parties and the court use informal terms to describe physical custody such as “primary custody” and “parenting time.” In determining physical custody, the judge will be looking to effect the strong policy of the state, namely, that both parents should have frequent and continuing contact with his or her child so long as such contact is physically and emotionally safe for the child. A physical custody order typically sounds like this: (a) dad shall have primary physical custody of the child except (b) during mom’s parenting time consisting of every other weekend from Friday after school to Monday drop-off at school, (c) mom will have parenting time from 5:30 p.m. to 7:00 p.m. every Wednesday with the intention of having a dinner with the child, and (d) each parent will have 15 minutes of Facetime per day during the other parent’s parenting time. Often the court is called upon to divide up holiday and vacation schedules as well.

Nothing is more fraught in family court than custody disputes. The judge may appoint a professional counselor employed by the court to assist the parents in developing an agreed-upon parenting plan or in making a custody recommendation to the court. And the court may even appoint a separate lawyer at the parents’ expense to represent the best interests of the child.

“How do alimony and child support work?” You will barely be able to cover even the most basic points in the informal “can I just ask…?” setting. Still, you can convey these points. It’s not called “alimony” anymore; it’s “spousal support.” Upon the end of the marriage, the former spouses are each entitled to maintain the “marital standard of living,” and one spouse may have to make support payments, for a defined period or maybe forever, to the other to achieve that outcome. But the court cannot get blood from a stone and very often there is not enough money available to support two persons at the MSOL, so both will experience a decline. There are more than a dozen other factors (e.g., length of the marriage, who supported whom in graduate school back in the day) that go into the court’s determination of spousal support. It is an area of Montana sky-like judicial discretion: nearly endless and going from horizon to horizon.

Child support is far more cut and dried. There’s a formula and a computer program that are mostly driven by each parent’s income and the relative proportion of parenting time.

“Man, after paying down my credit card bills, my HBO Max, my cell phone bill and payments on my boat, I’m not going to have anything left at the end of the month for child support. The court will understand that, right?” Au contraire. As far as the State of California and the family court is concerned, no debt has a higher priority than one’s statutorily determined child support obligations. They come before, well, everything else. Don’t bother with bankruptcy; won’t work. What’s more, the State has created an agency to enforce and collect on such obligations, the Department of Child Support Services. Tell your questioner that he or she does not want DCSS coming for them for unpaid support.

“I’m really worried. My wife has so much money to pay for lawyers and accountants, and I can’t even pay the rent since our separation. I don’t think this divorce case is going to be fair because I can’t hire a lawyer. What should I do?” You can be very reassuring. “If your wife has plenty of money to pay for her lawyer, the court will probably make her pay for your lawyer, too!” Yes, you read that right. But wait – what about “the American Rule?,” the one that says everybody pays for his or her own lawyer? There is a supervening rule in family court, namely, given the stakes (including the welfare of minor children): there needs to be an even playing field. Thus, irrespective of all things, the “golden rule” is that he or she with the gold may have to pay for both sides’ lawyers. (Major exception for cases involving domestic violence, however. Courts often conclude that an abused spouse need not provide any form of support or attorneys’ fees to his or her abuser).

“But if I’m paying for my wife’s lawyer, isn’t that an opportunity for egregious mischief and abuse?” The answer is yes, but the court will do its best to keep a leash on counsel in those circumstances.

OK, so you’ve been able to handle a couple of family law questions. But you are not done. There is one more thing you must say: “Look, these matters are very serious and potentially very complicated. And, we’re talking about your kids, your money, and your future. It is easy to make a mistake. You absolutely should talk to a lawyer who specializes in family law, not me, about all of this.”

Enjoy the barbecue.