Family Law - Picture
Unlike a Divorce, a Legal Separation does not terminate a marriage or domestic partnership and therefore you are not able to marry or enter into another partnership with another person. An individual may decide to file for a legal separation instead of a divorce for several reasons. These may include religious reasons or personal beliefs, because they do not meet the residency requirements to file for divorce, for financial reasons such as to keep health insurance or other benefits that require a couple to remain married, to shield themselves from their spouse’s debts, or to simply give the couple some distance from each other to consider a divorce. A legal separation allows the couple to proceed and address issues such as child custody and child visitation, child support, spousal or partner support, and property division.
A divorce (also referred to as a “dissolution of marriage” or “dissolution of domestic partnership”) ends your marriage or domestic partnership. California is a “no-fault” divorce state and therefore you only need to tell the Court that you have “irreconcilable differences.” The Court’s role related to Divorce is to assist the parties with regard to child custody and visitation, child support, spousal or partner support, property division, and division of community debts.
The mandatory waiting period required by California law for a divorce is 6 months from the date the person who filed for a divorce officially notifies their spouse or domestic partner. Divorces can, however, take significantly longer depending upon the issues involved and the level of cooperation between the parties.
Child support is the term used to describe the payments made by one or both parents to help pay for the day-to-day care and expense of a child. Child support is typically paid until the child reaches the age of 18, unless the child is unmarried and still enrolled in high school full time (in which case support typically continues until the age of 19 or until high school graduation, whichever comes first). Parents do not have to pay child support for emancipated minors. Child Support may be ordered for a disabled child after the age of 18.
California has established a formula to calculate child support based upon each parent’s income, amount of time each parent spends with the child, and each parent’s available tax deductions. However, there are situations where this formula does not apply.
Child Custody and visitation
Determining who has custody of minor children (under age 18) and developing a parenting (visitation) plan are often the most difficult and emotionally charged issues addressed by couples when they divorce or separate. In situations involving custody and visitation, the Court’s first priority is the best interest of the child. We assist our clients through complex legal processes including requesting or responding to a request for custody and a parenting plan, changing an existing order for custody or a parenting plan, enforcing an order for custody or visitation, custody mediation, supervised visitation, custody and domestic violence, and visitation rights of non-parents (grandparents, stepparents, foster parents).
spousal or partner support
When a couple becomes legally separated or divorced, the Court may order, or the couple may agree, for one spouse or partner to pay the other spouse or partner a specified amount of money each month. This is referred to as “spousal support” if the couple was married and “partner support” in domestic partnerships.
Many factors are considered by the Court in determining spousal/partner support, including, but not limited to, each spouse’s/partner’s earning capacity and standard of living during the marriage or partnership, the length of the marriage or partnership, and whether there was domestic violence committed by the spouse or partner that would be paying or receiving the support.
Paternity concerns the legal relationship of the father of a child and involves determining whether a man is the biological father of a child. In California, there is a legal presumption that the child of a married couple is their child. However, the name of the parents on the birth certificate does not assure that those named on the birth certificate are the legal parents.
division of community debts
Under California family law, just as assets generally belong equally to the spouses, so do the debts. The community estate is liable for debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt.
Under California family law, real estate and personal property acquired by a married person during marriage while living in California, as well as money earned by each spouse during marriage, is community property and is jointly and equally owned by both spouses. Property acquired by a spouse prior to marriage, or during marriage by inheritance or gift, and property acquired after the spouses have separated are that spouse’s separate property. However, there are exceptions that could have a significant impact on how property is divided. In addition, retirement assets may take various forms and are therefore subject to specific rules of division that apply to the specific asset. We help our clients to understand complex property division issues and help them negotiate and litigate the settlement of property division issues.
Unlike a divorce, an annulment does not terminate the marriage. Instead, it is a determination by the Court that the marriage or domestic partnership never happened since it was never legal. The Court may determine a marriage to be legally invalid if it is a marriage between close blood relatives or if it is a bigamous marriage. The Court may determine a marriage or domestic partnership to be declared “void” if one of the individuals was under 18 years old at the time of the marriage or domestic partnership, the marriage or domestic partnership was induced by force or fraud, one of the individuals was physical or mentally incapacitated at the time of the marriage or domestic partnership, or one of the individuals mistakenly believed they were not married because their former spouse or domestic partner was absent for 5 years or more and was believed to be dead.
California law defines domestic violence as abuse or threats of abuse when the person being abused and the abuser are or have been in an intimate relationship with each other. An “intimate relationship” is one in which the individuals are married or registered domestic partners, divorced or separated, dating or used to date, living together or used to live together (more than roommates), parents of a child together, or closely related (parent, child, brother, sister, grandparent, in-law). Domestic violence law states that “abuse” includes the following:
- Physically hurting or trying to hurt someone, intentionally or recklessly (kicking, shoving, pushing, pulling hair, etc.)
- Sexual assault
- Making someone reasonably afraid that they or someone else are about to be seriously hurt
- Verbal abuse
- Emotional abuse
- Psychological abuse
- Disturbing someone's peace
- Destroying someone's personal property
- Physical abuse of family pets.