1. What does Divorce Mean?
Divorce is formerly known as a "Dissolution of Marriage" in California. A divorce occurs when a marriage legally ends. Divorces may be simple or complicated depending on how many assets the spouses have and the willingness of each spouse to cooperate when it comes to division of property, child and spousal support, and child custody/visitation schedules.
If the spouses are able to agree to a Marriage Settlement Agreement, a judge is required to review and approve the divorce settlement. However, if the spouses cannot agree to a settlement, a judge will decide how to divide the marital property and how much spousal support is to be allocated.
If the spouses have children, the judge will also decide how the parenting schedule with the children will be shared and how much child support should be allocated (See Child Custody and Visitation).
Contact me today to schedule a consultation if you are contemplating a divorce or are in need of an attorney to help your through your ongoing divorce.
1. Child Custody
(a) How does the Court Decide the Custody of the Children? In California, either parent can have custody of the children, or the parents can share custody. The judge makes the final decision about custody and visitation but will usually approve the arrangement (the parenting plan) that both parents agree on. If the parents cannot agree, the judge will make a decision at a court hearing. The judge will usually not make a decision about custody and visitation until after the parents have met with a mediator from Family Court Services. The meeting with the mediator is an important one because the mediator will make a recommendation to the court with respect to the parenting plan. This is significant because the court adopts the mediator's custody recommendation most of the time.
(b) Types of Custody There are two aspects to child custody:
(i) Legal custody. This refers to the parent(s) who make important decisions for your children when it comes to issues such as health care, education, and welfare. Legal Custody may be ordered as Joint, where both parents share the right and responsibility to make the important decisions about the health, education, and welfare of the children or Sole, where only one parent has the right and responsibility to make the important decisions about the health, education, and welfare of the children. Parents who share legal custody both have the right to make decisions about these aspects of their children’s lives, but they do not have to agree on every decision. Either parent can make a decision alone. But to avoid having problems and ending up back in court, both parents should communicate with each other and cooperate in making decisions together. Parents with legal custody make decisions or choices about their children’s:
(ii) Physical custody. This refers to whom your children actually live with. Physical custody can be Joint, which means that the children live with both parents or Sole (primary), which means the children live with one parent most of the time and usually visit the other parent.
Joint physical custody does not mean that the children must spend exactly half the time with each parent. Usually the children spend a little more time with one parent than the other because it is too hard to split the time exactly in half. When one parent has the children more than half of the time, then that parent is sometimes called the “primary custodial parent.” Sometimes, a judge gives parents joint legal custody, but not joint physical custody. This means that both parents share the responsibility for making important decisions in the children’s lives, but the children live with one parent most of the time. The parent who does not have physical custody usually has visitation with the children.
(a) What is Visitation?
Visitation is the plan for how the parents will share time with the children. A parent who has the children less than half of the time has visitation with the children. Visitation orders are varied, depending on the best interests of the children, the situation of the parents, and other factors. In general, visitation can be:
(b) How do Courts Decide Visitation? The law says that judges must give custody according to what is in the “best interest of the child. “To decide what is best for a child, the court will consider:
Courts do not automatically give custody to the mother or the father, no matter what the age or sex of your children. Courts cannot deny your right to custody or visitation just because you were never married to the other parent, or because you or the other parent has a physical disability or a different lifestyle, religious belief, or sexual orientation.
Contact me today to schedule a consultation to discuss your options pertaining to your child custody arrangement.
1. What is Domestic Violence?
In California, “domestic violence” refers to violence committed against persons with who he or she has a relationship. These persons may include:
(ii) Past or present Boyfriends and girlfriends (includes both homosexual or heterosexual relationships)
(ii) Past or Present Fiancés
(iv) Family Members
2. What is a Restraining Order?
Restraining orders can be issued in both civil (referred to as "protective orders') and criminal courts (referred to as "stay away orders). Protective orders end when the court's jurisdiction ends. However, judges have the discretion to modify the order or terminate the restraining order altogether anytime before the court's jurisdiction expires. With civil restraining orders, the process begins with the issuing of a Temporary Restraining Order ("TRO"), which allows the judge to order the abuser not to "attack, assault, threaten, harass, or call the victim," and may also include other provisions, including the exclusion of the batter from the victim's residence and awarding the victim temporary custody of the children. In California, a Temporary Restraining Order Hearing must occur within ten days of the filing of the TRO. The purpose behind a TRO is to provide immediate protection to victims, which is why TRO's are granted without notice to the abuser and why the abuser does not have the opportunity to be heard before it is granted.
In California, Emergency Protective Orders ("EPO") work similar by allowing a victim to obtain an order directly from law enforcement who are authorized to contact judges so that an EPO can be obtained in accordance with Family Code Section 6218.
Domestic violence laws are intended to give special protections to victims of domestic violence because of the potential vulnerabilities the victims face as a result of their relationship to the alleged abuser, Restraining Orders also severely punish alleged abusers who break these laws. In California, prosecutors have wide discretion to pursue the maximum sentence possible even if a victim's injury is minor. This means if you have been charged with domestic violence in California, you could face serious punishment.
3. What are some Common Defenses to Domestic Violence?
If you have been charged with one or more crimes involving domestic violence, some common defenses to domestic violence charges include but are not limited to:
(i) You acted in self-defense
(ii) You acted in self-defense of another;
(iii) The injury was caused by accident rather than a willful act
(iv) The alleged victim made a false or mistaken accusation
California law does not require a witness spouse to testify against his or her spouse. However, a witness spouse must invoke this right.
If you or a loved one is experiencing domestic violence or you need to defend yourself against a restraining order, contact me today so that we can schedule a consultation to discuss your options.
1. Child Support
In California, both parents have equal responsibility for the support of their children suitable to the children’s needs and circumstances.
California law requires parents to provide support for their children up until the child turns 18 years old. However, if the child is a full-time high school student that has not yet graduated, child support is required to continue until the child turns 19 years old or graduates, whichever occurs first.
The timeshare (time actually spent) with the children and the gross monthly income of both parents are probably the most important factors when determining the amount of child support to allocate. Time share is then calculated with the incomes of both parents in a computerized system called the "Dissomaster." This calculation is what is considered to be "California guideline" or "guideline support." In fact, if the time share of one parent is significantly less than the other, the income of the custodial parent (the parent who has the child over 50% of the time) becomes fairly insignificant to the child support calculations.
A parent may move to modify child support orders at any given time. However, child support orders that are at California guideline or above may only be modified upon a showing of a significant change of circumstances. Often times, a significant change of circumstances means that either:
(i) The timeshare of a parent and children is much less than what the court has ordered
(ii) A parent's income has significantly changed.
2. Spousal Support
Spousal Support is formerly known as "alimony." The goal behind spousal support is that the supported party is ideally supposed to become self-supporting within a reasonable period of time. Except in the case of a marriage of long duration, which is described in Family Code Section 4336 to be ten years or longer, a “reasonable period of time” is defined to mean one-half the length of the marriage. However, the Code does not limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed below.
California law states that in a divorce or legal separation case, the court may order a spouse to temporarily or permanently pay alimony based on the other spouse's needs and the paying spouse's ability to pay. However, the court considers all of following factors:
(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(i) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
(ii) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) Documented evidence, including a plea of nolo contendere, of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325.
(m) Any other factors the court determines are just and equitable.
Contact me today to set up a consultation today to discuss your individual circumstances to see whether or not you may be entitled to an increase or decrease in child support or whether you need to obtain first-time orders to protect you and your family.
1. Void Marriages and Domestic Partnerships
A void marriage or domestic partnership is as if the marriage or domestic partnership never even happened in the first place.
(i) Incestuous Marriages and Domestic Partnerships
Under Section 2200, an incestuous marriage or domestic partnership are always void. Incestuous marriages or domestic partnerships include but are not limited to relationships such as a parent and a child, siblings, half-siblings, and between uncles and nieces or aunts and nephews.
Under Family Code Section 2201, a marriage or domestic partnership is always void when it is bigamous.
(ii) Bigamous Marriages and Domestic Partnerships
Bigamous marriages and domestic partnerships occur when a spouse is already married to another person or when a domestic partner is already registered in domestic partnership with another person. However, a bigamous marriage may be considered valid under certain exceptions, not listed here.
2. Voidable Marriages and Domestic Partnerships
A marriage or domestic partnership that is voidable will become officially valid even if there are issues unless a family court finds the marriage or domestic partnership to be void. Alternatively, a court may find the marriage to be valid in which case, divorce would need to occur if the parties wished to terminate it later.
Under Family Code Section 2201, the grounds for a voidable marriage or domestic partnership include:
(i) Un-consentable age: A marriage or domestic partnership is considered voidable when either party is under the age of 18. A marriage or domestic partnership involving a person under the age of 18 is voidable if there was no consent from either of the minor’s parents or from a court at the time of the marriage or domestic partnership. However, if the parties ever freely cohabitate as a married couple after the minor turns 18 years old, then the marriage or domestic partnership would then become valid.
(ii) Unsound mind: A person is of "unsound mind" if the person is unable to understand the nature of the marriage or domestic partnership. However, the marriage may become valid if the unsound spouse voluntarily decides to live with the other spouse after coming to reason.
(iii) Fraud: Under Family Code Section 2210(d), a marriage is voidable and may be voidable if the consent of either party was obtained by fraud, unless the party whose consent was obtained by fraud afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as his or her spouse. The long standing rule in California is that a marriage may only be annulled for fraud only in extreme cases if the fraud relates to a matter, which the state deems vital to the marriage relationship. The concealment of incontence, temper, idleness, extravagance, coldness or fortune inadequate to representations cannot be the basis for an annulment.
(iv) Forced Consent: A marriage or domestic partnership is voidable If either party was forced to consent to the marriage or domestic partnership. However, if the forced party subsequently moves in and lives with the other as husband and wife voluntarily, the marriage or domestic partnership is deemed valid.
(v) Physical Incapacity: A marriage or domestic partnership is voidable if either party is physically unable to consummate the marriage or domestic partnership (i.e. have sexual intercourse) and when this incapacity cannot be cured.
(vi) Prior Existing Marriage or Domestic Partnership: A marriage or domestic partnership is voidable If either party is already legally married or in a registered domestic partnership.
Contact me today to set up a consultation to discuss whether or not you should obtain an annulment or fight against an annulment.
In today's day and age, the cost of living in places like San Diego County continues to sky rocket, which makes affordability an issue when deciding whether or not a parent can continue raising their children here. Does that mean a divorced parent can pack up and move to another city or state to afford a better quality of life for the parent and children? Not necessarily. The moving parent must either receive written permission by the non-moving parent or receive permission by court order. Obtaining this permission is complex as it may bring a string of challenges if the non-moving party does not agree with the move.
A custodial parent is one who has physical custody of a child over 50% of the time and a non-custodial parent is one who has physical custody of a child less than 50% of the time. Recent case law has held that a custodial parent has a presumptive right to relocate the children pursuant to Family Code Section 7501.
However, a parent is entitled to a change in residence of the children, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child. California courts have weighed the best interests of the children against the needs of the custodial and non-custodial parents in cases where the custodial parents have wanted to exercise their presumptive right to relocate.
The non-custodial parent bears the initial burden in showing that the proposed relocation of the children's residence would cause detriment to the children, requiring a re-evaluation of the children's custody. If the noncustodial parent makes such an initial showing of detriment, the court must perform the difficult task of determining whether a change in custody is in the best interests of the children.
Contact me today to schedule a consultation if a move-away issue is at stake.