Family Law
WE OFFER REPRESENTATION WITH RESPECT TO:
- Divorce
- Legal Separation
- Nullity of Marriage
- Pre-marital Legal Counseling
- Marital Property Agreements (Prenuptials and Post Nuptials)
- Community Property Rights Division
- Marital Settlement Agreements
- Child Custody and Visitation
- Child Support
- Spousal Support
- Restraining Orders
- Paternity Actions
- Adoption
FREQUENTLY ASKED QUESTIONS
- WHAT IS COMMON LAW MARRIAGE?
- WHAT IS COMMUNITY PROPERTY?
- HOW LONG WILL MY DIVORCE TAKE?
- CAN I FILE FOR DIVORCE IF WE STILL LIVE TOGETHER?
- DO WE HAVE TO HAVE LAWYERS TO GET DIVORCED?
- WHAT WILL HAPPEN TO OUR CHILDREN?
- WHAT HAPPENS IF I DON’T CHANGE MY WILL AFTER DIVORCE?
- DO I HAVE TO PAY MY SPOUSE’S ATTORNEY FEES?
- HOW IS THE AMOUNT OF CHILD SUPPORT CALCULATED?
- WHAT ARE PARENTS’ OBLIGATIONS TO THEIR CHILDREN?
- HOW DOES A COURT DECIDE WHICH PARENT WILL GET CUSTODY OF A CHILD?
- WHAT KINDS OF ASSETS ARE DIVIDED IN A DIVORCE?
- CAN MY SPOUSE THROW ME OUT OF OUR FAMILY HOME?
- WHEN WILL I BE SINGLE AGAIN?
- WHAT IS THE DIFFERENCE BETWEEN AN AGENCY ADOPTION AND AN INDEPENDENT ADOPTION?
- UNDER WHAT CIRCUMSTANCES WILL THE COURT AWARD ALIMONY OR SPOUSAL SUPPORT?
- ONCE A COURT ISSUES A CHILD SUPPORT ORDER, CAN THE AMOUNT OF SUPPORT THAT IS PAID BE CHANGED?
- HOW IS CHILD SUPPORT COLLECTED IF THE PERSON RESPONSIBLE FOR PAYING IT MOVES TO ANOTHER STATE?
Traditionally, common law marriages occurred when a couple lived together for some period of time (usually 7 or 14 years) and held themselves out as husband and wife. Today, California and most states do not permit marriage to be contracted this way.
It is sometimes said that “California does not recognize common law marriage.” This is not entirely true. If a couple is validly married under the common law of another state, then California will recognize the marriage. However, California will not permit the formation of a common law marriage within its borders.
Community property is property acquired by the parties between the date of marriage and the date of physical separation. This can include the family home, automobiles, businesses, stock options, furniture, retirement plans, frequent flyer miles, season tickets, etc.
HOW LONG WILL MY DIVORCE TAKE?
This is one of the most often-asked questions, and one to which there is no set answer. We have seen divorcing couples negotiate and finalize their settlement agreement in a matter of weeks, and we have seen divorces take several years to work their way through the courts.
If your divorce is truly uncontested, you could potentially complete all the paperwork and have it submitted to the court in as little as 30 days. From there, it may take the court anywhere from three to eight weeks to process and return it to you.
This is a frequently misunderstood concept. California imposes a six-month waiting period from when the Petition and Summons are first served on the responding party. This means that the earliest you will actually be returned to the status of a single person is six months. But it doesn’t guarantee that you will be a single person in six months.
If you and your spouse negotiate a settlement agreement and submit the paperwork to the court quickly, then your Judgment will have a future date which will likely be the six-month date. But if your divorce is highly contested and continues for some time, you might possibly not be divorced for more than a year.
CAN MY SPOUSE THROW ME OUT OF OUR FAMILY HOME?
Unless there is domestic violence, or some kind of physical or mental abuse, then generally not. When a family residence is community property (which is usually the case), then each spouse has an equal, undivided one-half interest in the home. Neither spouse has a superior right to reside in, occupy or control the home. Your spouse may file a motion with the court to try and obtain a kick-out order, but the odds of obtaining such an order without violence or abuse are extremely low.
CAN I FILE FOR DIVORCE IF WE STILL LIVE TOGETHER?
Yes. It is not necessary to reside separately to file a divorce action. In fact, absent domestic violence issues we generally recommend that neither parent move from the home until there is some kind of an interim custody and visitation plan in place if there are minor children. Otherwise, you may find yourself in the position of begging the other parent for permission to spend time with your children and giving that other parent unilateral control over them until you can obtain a court order.
DO WE HAVE TO HAVE LAWYERS TO GET DIVORCED?
No, absolutely not. But it may be prudent to hire an attorney to review the settlement agreement to make sure that you understand it completely and that the agreement is properly drafted.
WHAT WILL HAPPEN TO OUR CHILDREN?
That’s a difficult question to answer. Parents are best able to decide what is best for their children, but are often unable to reach agreement. If one parent files a motion with the court to obtain custody and visitation orders, then the parties must first meet with a court-provided mediator who will attempt to bridge the gap between them before they appear in court.
Depending on your county, the mediator may write a report to the court with recommendations for temporary orders. But ultimately, if the parents cannot agree, then a judge will have to make the decisions for them. There is no preference anymore that kids stay with one parent or the other. Instead, the judge will use a “best interests of the child(ren)” standard to make orders that he or she believes will be best.
The preference is for children to have frequent and continuing contact with each parent, and for shared parenting. Despite your spouse’s threats, he or she will not be able to keep you from seeing your children unless you pose a legitimate danger to them.
WHAT HAPPENS IF I DON’T CHANGE MY WILL AFTER DIVORCE?
This is something we hope you don’t forget, but there is good news. If your spouse is a beneficiary under your will, or the executor of your will, California law automatically terminates those provisions in your will. That can, in and of itself, cause other problems, but it will remove your spouse from being able to benefit from your will.
DO I HAVE TO PAY MY SPOUSE’S ATTORNEY FEES?
Maybe, maybe not. Whenever possible, the courts tend to prefer to utilize community, or joint, funds for attorney fees, because then each party has a financial stake in trying to settle the case without litigation. When there are no such funds, the court will compare the assets and incomes of the two parties to see whether a fee order is warranted. When one spouse earns substantially more than the other, there may be an attorney fee award of some kind. However, when that higher-earning spouse is subject to child and spousal support orders, he or she may actually have less income at the end of every month than the other spouse, and it is quite possible there will be no fee award.
WHAT IS THE DIFFERENCE BETWEEN AN AGENCY ADOPTION AND AN INDEPENDENT ADOPTION?
In an agency adoption, the prospective adoptive parents contact an adoption agency to start the process, and the agency acts as an intermediary between the adoptive parents and the birth parents, matching them up and guiding them through all of the necessary hurdles to finalization.
In an independent adoption, the birth parents and adoptive parents locate each other and work together independently to accomplish the adoption without the benefit of agency involvement, although typically a lawyer is hired to make sure that all legal requirements are met.
Each type of adoption process has advantages and disadvantages. Using an agency can be beneficial because agencies are familiar with adoption requirements, which can be overwhelming to prospective parents and birth parents alike. Agencies can also provide counseling and other support services to the birth and adoptive families, both before and after the adoption. However, some agencies have selection criteria that may screen out certain prospective parents, and waiting times can be very long.
Independent adoptions may allow prospective adoptive and birth parents more control over the adoption process. All parties may have a greater opportunity to get to know each other. Adoptive parents may be able to circumvent an agency’s selection criteria and shorten the waiting time by going the independent route. On the other hand, birth parents may not receive counseling in an independent adoption, which could lead to greater uncertainty and even the possibility of a change of heart. Additionally, independent adoptions are not legal in all states, so it is essential to check applicable state laws before choosing this option.
UNDER WHAT CIRCUMSTANCES WILL THE COURT AWARD ALIMONY OR SPOUSAL SUPPORT?
The obligation of spouses to support each other does not necessarily terminate when they divorce. If the divorce will leave one spouse with very little income and the other with enough to contribute to the low-income spouse’s support, the court will usually award alimony, at least temporarily.
Historically, spousal maintenance was awarded to homemaker wives, and paid by wage-earning husbands; that is no longer always the case. Now, either spouse may be awarded alimony if the other has the more substantial income and the recipient spouse’s income is insufficient to support him or her at the level to which the spouses were accustomed during the marriage.
Spousal support is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties’ children while the other climbed the career ladder and achieved a higher income. In such cases, the alimony will often be temporary, providing income for a period of time to enable the recipient spouse to become self-supporting. This temporary, or rehabilitative, spousal support enables the recipient spouse to further his or her education, receive job training, reestablish himself or herself in a former career or complete childrearing responsibilities, after which time he or she can be self-sufficient.
HOW IS THE AMOUNT OF CHILD SUPPORT CALCULATED?
Each state has developed guidelines that help establish the amount of child support that must be paid. The guidelines vary from state to state, but are all based on the parents’ incomes, expenses and the needs of the children. In some states, the guidelines allow judges greater discretion in determining the amount of child support that must be paid, but in other states any variance from the guidelines must be carefully justified or it can be readily overturned on appeal. Often, the guidelines are set out in a chart-type format that calculates the child support amount as a percentage of the paying parent’s income that increases as the number of children being supported rises. The purpose of guidelines is to aid the judge in determining child support amounts. Judges are free to deviate from the guidelines when there are good reasons to do so. If, for instance, one party or a child has higher than average expenses, the amount can vary. Or if the court determines that the paying parent is voluntarily earning less than he or she could for the purpose of minimizing the child support obligation, the judge can calculate the amount of child support based on what the payer is capable of earning.
Despite the variations from state to state, there are some general factors that are almost universally considered by judges issuing child support orders, including
- The child’s standard of living before the parents’ separation or divorce
- The paying parent’s ability to pay
- The custodial parent’s needs and income
- The needs of the child or children, including educational costs, daycare expenses and medical expenses
- (health insurance or special health care needs)
ONCE A COURT ISSUES A CHILD SUPPORT ORDER, CAN THE AMOUNT OF SUPPORT THAT IS PAID BE CHANGED?
The amount of child support may be modified under certain circumstances and through a variety of methods. The simplest method is for the parents to agree to a change, but the court must approve even an agreed-upon change in order to be enforceable.
When there is no voluntary agreement, the party seeking the change must request a court hearing at which each side will present, usually through counsel, the reasons supporting and opposing the modification. The court usually will not grant the request unless there has been a significant change in circumstances that justifies the change, such as a significant increase in either parent’s income through a remarriage, a job change or a considerable change in the needs of the child. Changes in the child support laws, too, may justify a change in previously issued orders. Also, under certain circumstances, an increase in the cost of living can warrant an upward modification of child support. Generally, periodic increases can be provided for in the original order so that the parties do not need to make repeated court appearances each time there is a significant change in the cost of living.
HOW IS CHILD SUPPORT COLLECTED IF THE PERSON RESPONSIBLE FOR PAYING IT MOVES TO ANOTHER STATE?
Under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), an order for support issued by the family court in one state will be enforced by the family court in another state to which the paying parent moves if certain conditions are met. Under RURESA, the custodial parent has two options for how to proceed to collect support.
Under the first option, the custodial parent who receives the support must register the order for support in the county where the payer parent now lives. The family court will move to enforce the order and make the non-custodial parent pay. The payer parent can, however, go to court in his or her new home state and argue that the child support amount should be modified, and if he or she is successful, the child’s home-state court may be stuck with the reduced amount.
Alternatively, the custodial parent can go to the family court in his or her home state to commence an action to enforce the support award issued by that court. The enforcement agency that serves that court will notify the payer’s new home state so that enforcement actions, such as wage withholding, can be implemented there. Under this method, the payer cannot get the award modified in his or her new home state. The new state’s court can, however, determine that the amount of child support ordered is too high and require that only a portion of it be paid, but the original state does not have to accept the reduced amount. The payer remains liable for the full amount as originally ordered, and if he or she fails to pay it, the original state may issue an arrest warrant, and the delinquency can show up on the payer’s credit report.
WHAT ARE PARENTS’ OBLIGATIONS TO THEIR CHILDREN?
Every parent has the duty to provide his or her children with the basic necessities of life, including food, clothing and shelter. This duty usually terminates when the child is emancipated, when the child graduates from high school, when the child enters the military or when the child marries, but the support obligation can extend beyond that point if the child is unable to support him or herself. The law generally does not dictate the level of support that is provided when the children live with both parents, but when, through divorce or other circumstances, the child is living with one parent, there are laws specifying the amount of financial support the non-custodial parent must provide.
HOW DOES A COURT DECIDE WHICH PARENT WILL GET CUSTODY OF A CHILD?
When the parents cannot agree on a custody arrangement, the court will make the decision for them. When determining the child’s best interests, the court may consider may factors, including
- The child’s age
- The child’s gender
- The child’s physical and mental health
- The parents’ physical and mental health
- The parents’ lifestyles
- Any history of abuse
- The emotional bonds between the parent and the child
- The parent’s ability to give the child guidance
- The parent’s ability to provide the basic necessities, such as food, shelter, clothing and medical care
- The child’s routines, including home, school, community and religious
- The willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent
- If the child is above a certain age, the child’s preference
- Who has been the child’s primary caretaker?
WHAT KINDS OF ASSETS ARE DIVIDED IN A DIVORCE?
The parties in a divorce can agree to the division of (or the judge will divide) all marital or community property owned by the parties. Marital property generally includes most of the property the couple acquired during the marriage. Examples may be the marital home, second home, furnishings and appliances, artwork, vehicles, financial assets, investments, retirement accounts and privately owned businesses.
The value of intangible property may also be divided. Examples of divisible intangible property include the value of a patent on an invention, the value of the celebrity status of a spouse’s name, the goodwill value of a business owned by one spouse and the value of a professional degree earned by one spouse. The value of these intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly.
It is not always easy for a spouse to identify all of the assets that may be available for valuation and division. A party’s lawyer may help with this issue through discovery, During discovery the parties’ attorneys’ trade documents that disclose each party’s income, assets and liabilities. In addition, each spouse is usually deposed by the other spouse’s attorney. At the deposition, the questioned spouse will respond, under oath, to questions designed to gather all necessary information about his or her assets and income. If necessary, additional parties may be deposed, such as employers, bankers or business partners.
- The laws relating to families have changed in past decades as judges and legislators have reconsidered and revised the legal issues involved in divorce, child custody, child support, domestic violence and other family law matters. Family law has become entangled in national debates over family structure, gender bias and morality. Few legal areas are as emotionally charged as family law and even with previous changes, family law remains a controversial and ever-changing area of law, which will continue to evolve as families and society evolve.
- The division of marital property has also changed in recent years to give each spouse an equitable share of property upon divorce. One change that displays this trend is the recognition of the homemaker spouse’s contributions to the growth of marital property. Along the same lines, homemaker spouses are not considered as dependent as they once were, and as a result, alimony is now often temporary, with the thought that after a period of "rehabilitation" these spouses can become self-supporting.
- Issues such as child custody have also advanced in the courts as cultural and societal attitudes have changed. Mothers may have been favored in many custody disputes of the past, but fathers are given much more consideration than in the past. Custody battles, while always difficult and emotional, have become even more complicated as reproductive technology has increased the ways in which people can become parents. Family law lawyers and judges are faced with new, difficult and sensitive questions such as who gets custody of fertilized embryos when a couple that was involved in infertility/assisted-reproduction treatments separates. Surrogate parenting also presents custody issues when the surrogate fails to abide by the surrogacy contract or wants visitation with the child. Equally difficult issues can arise when sperm or egg donors make some claim to their genetic offspring. These issues involve questions relating not only to custody laws, but also to those involving adoption, children’s rights and paternity. And as technology advances, the law will be presented with an even greater challenge to keep pace.
- Another major change in family law in recent years is the recognition that many family disputes can be resolved through alternative dispute methods, such as mediation, as opposed to the traditional litigation process. As a result, many states have begun to explore other, non-adversarial alternatives, such as mandatory mediation in family law cases, which can save time and money and help maintain relationships.