Family Law

DIVORCE

In order to file for divorce in the state of California, you must meet the following residency requirements:

  • You must have been a resident of California for at least six months.
  • You must have been a resident of the county that you are filing in for at least three months.

Once you file your divorce paperwork, you are required by law to wait six months before the divorce becomes final.

California was the first U.S. state to allow the concept of a "no-fault divorce." This means that a court can grant the dissolution of a marriage if it finds that the marriage has irrevocably broken down due to irreconcilable differences. Also, one spouse can end the marriage even if the other person does not wish for it to be terminated.

An "no-contest" divorce is where both parties agree about the terms of their divorce. A "contested" divorce is where both spouses cannot agree over at least one issue, and the court must intervene to resolve the dispute.

The general steps for filing a divorce in California:

  1. The petition to dissolve the marriage is filed by one spouse and served to the other spouse (known as the Respondent).
  2. The Respondent has 30 days to reply.
  3. One of the parties may file an Order to Show Cause hearing where the judge may make temporary child custody or support terms. The judge may even issue a restraining order against one of the spouses.
  4. The discovery process: Both parties exchange documents and information, including the disclosure of income, expenses, and assets. Written questions and depositions may also be given at this time.
  5. Both parties discuss the settlement terms. If an agreement is reached, a Marital Settlement Agreement will be filed and signed by the spouses and their lawyers. If an agreement can't be reached, the case goes to trial.
  6. After signing the agreement or once the trial has ended, one of the divorce lawyers will prepare and file a Judgment of Dissolution of Marriage.

Joint Petition for Summary Dissolution of Marriage
If a couple that wishes to divorce have been married less than five years, do not have any underage children, and fulfill the following requirements (see below), they may be able to file a Joint Petition for Summary Dissolution of Marriage instead of going through the regular divorce process. This can happen when:

  • Both parties have waived the right to receive spousal support.
  • They do not own or have an interest in any real estate.
  • They acquired less than $32,000 worth of marital property.
  • Neither own property worth more than $32,000.
  • Since their marriage, they have not acquired or owe more than $4,000 in debts.

Legal separation: For couples who do not wish to end their marriage or domestic partnership but would like to live separately as well as delineate the separation of their assets and responsibilities.

Annulment: When a court declares a marriage or domestic partnership null and void.

Dissolution of Domestic Partnership: The legal termination of a domestic partnership between couples of the same or opposite sex.

If you wish to retain more control over the terms of your divorce or separation, you may want to consider Alternative Dispute Resolution (ADR), which allows for the resolution of conflicts without going to trial. In addition, ADR is a mechanism which can be utilized to resolve disagreements for which courts do not recognize rights, such as issues between same-sex partners, grandparent custody, and visitation claims. Clients are often more satisfied with the results of a mediation, and our lawyers will able to determine which cases may be best resolved in this forum.

Either through the courts or ADR, one of our goals is to work toward a fair resolution for your case while avoiding the unnecessary public exposure of private issues.

Paternity

 Establishing paternity involves determining who is the father of a child. The law always recognizes the mother of the child as a parent. But if the mother and father were not married when the child was born, then the law only recognizes the father if paternity is legal established. Paternity gives your child the same benefits and rights as those children born to parents who are married. These include:

  • Legal proof of of both the father's and mother's identities.
  • Family medical history information, in case of inherited health problems.
  • The father's name on the birth certificate.
  • Life or medical insurance from either parent (if they have insurance).
  • Financial support from each parent.

Whether or not a child's parents are legally together at the time of birth, they can sign a Voluntary Declaration of Paternity to legally determine the identity of the child's father. If the parents are in disagreement about the identity of the father, any man who believes he may be a child's biological father is entitled, under California law, to a DNA paternity test (by blood or saliva) to legally prove his identity. If the child and the possible father live in different cities, they can each take their tests in separate locations.

Establishing paternity will be very important for a child if his or her parents become separated, divorced, or were never married—especially if the child's father wants to ensure that he has custody and visitation rights. It also allows the child to be legally entitled to receive child support  and gives a father the right to make certain legal decisions regarding his child. In California, there is no statute of limitations for establishing paternity.

A child's parents may also want to establish paternity in the event that there is a disagreement over the father's identity. A person may deny that he is the child's father, and filing a paternity lawsuit can resolve this dispute, ensure that the child's rights are taken care of, and require the child's father to meet his financial and legal obligations to the child. Should the case go to trial, a California Superior Court will hear the case.

Should you decide to go through the courts to establish paternity, you will have to file a Complaint to Establish Parental Relationship. A Judgment, reached either by agreement between both parties, by default, or after the trial, will be issued by the court.

Adoption

 Adoption is the legal process that permanently gives the adoptive parents legal parental rights over a child. In the state of California, according to:

Family Code §§ 8600; 8601—an adult generally must be at least 10 years older than the child that he or she wishes to adopt.

Family Code § 8600—a person must be unmarried and under 18 years of age in order to be eligible to be adopted; unless, of course, the person is an adult who has consented to be legally adopted by another adult.

Family Code §§ 8801.5; 8704—only an underage child's biological parent or parents, a licensed adoption agency, and the California Department of Social Services are allowed to legally authorize an adoption.

Examples of the types of circumstances in which adoption may apply are as follows:

  • Independent Adoptions: Adoptions arranged directly between the birth parent and a specific family.

     
  • Agency Adoption: Adoptions through a state licensed adoption agency or a private agency.

     
  • International Adoption: For the family that wishes to adopt a child from another country.

     
  • Stepparent Adoption: A stepparent wishes to become the adoptive parent of their spouse's biological child(ren).

     
  • Single Parent Adoptions: Adoptions involving only one adoptive parent.

     
  • Contested Adoption: A situation where a person who is close to the child—usually the biological parent, the foster parent, or a relative of the child—is opposed to an adoption taking place and decides to contest the adoption in court.

     
  • Surrogacy: An arrangement where a woman agrees to carry to term a baby so that someone else may become the child's parent or parents. The child may or may not be biologically related to the surrogate.

     
  • Child Placement: Placing a child in a home that can best fit his or her needs.

     
  • Grandparent Visitation:  The right of a grandparent to visit a child in the event of death, divorce, or estrangement from that child's parent or parents.

     
  • Paternity: Unless a child's parents are married at the time of birth, a father must prove that he is legally the father.

     
  • Foster Parent Rights: The rights of the person or persons who are taking care of a child over whom they do not have legal custody.

     
  • Termination of Parental Rights: Legally severing the rights and responsibilities that a parent has over a child. This may be a voluntary act or an involuntary one imposed by the court.

A California court must approve all adoptions in this state. The adoptive parents are required to file a petition for the adoption and then participate in a hearing. Before the hearing can take place, anyone who must give their consent in order for the adoption to take place—such as the biological parents, the adoption agency, a legal representative of the child, or the child (if he or she is 12 years of age or older)—has to be notified that the process is taking place. This can include a child's biological parents, the adoption agency, the child (if he or she is 12 years of age or older), or the child's legal representative. At the hearing, the court will decide whether to issue an order known as a final decree of adoption that legalizes the adoptive parent-child relationship.

Child Custody & Visitation

Child custody and visitation decisions are some of the most important aspects of a divorce or dissolution proceeding. Whoever has legal custody of a child will have the right and obligation to make decisions about that child.

In the state of California, either parent may be entitled to sole custody or both parents can share joint custody of their child(ren).

When determining how parental responsibilities should be shared, you and your former spouse or partner must determine:

  • The primary and secondary residences of your children.
  • Whether you and your former partner or spouse desire a rotating custody arrangement.
  • How to establish a visitation schedule.
  • How you and your former spouse or partner will make decisions that will affect your children.

Overall, when determining child custody and visitation matters, it is important to carefully consider your children's current and future needs, keeping in mind each parent's economic situation, personal circumstances, caretaking ability, caretaking availability, as well each child's bond with other siblings.

It is up to a judge to approve the arrangement, and if the parents are unable to agree upon an arrangement, a judge will determine the custody/visitation arrangements at a court hearing.

Some factors that are in the "best interests of the child" that a court may consider when deciding custody issues:

  • The child's gender, age, physical, and mental health. If a child is 12 years of age or older, what he or she wants will be considered.
  • The child's established, day-to-day schedule
  • How changing the current living situation mght impact the child.
  • Both parents' physical and mental health.
  • Each parent's lifestyle, as well as other social factors such as whether there is any history of child or sexual abuse.
  • The emotional connection between each parent and the child.
  • Each parent's ability to provide for the child.
  • Both parents' ability and willingness to foster contact and healthy communication between their child and the other parent.

In certain instances, a judge may decide to award sole legal or physical custody of a child to just one of the parent.

Establishing a visitation schedule, regardless of the custody arrangement (unless, of course, one of the parents is considered a danger to the child), is important for the child's sense of stability and well-being. Parents sharing joint custody are expected to work out housing arrangements. If the parents cannot agree on these arrangements, then a California court will intervene.

In California, it is important, when making the Child Visitation Order, that the court not take into consideration:

  • Whether or not the parent is paying child support.
  • Whether a parent is absent from the family's home or whether the parent has relocated to a different city or state.
  • A parent's sexual orientation, lifestyle, or religious beliefs.

In certain instances, where allowing a child to spend time alone with the parent could endanger the child, a court may issue an order for supervised visitation where a parent is allowed to visit with the child in the presence of an authorized third party.

If neither parent is fit to assume custody of the children—either due to mental health problems, drug or alcohol abuse or physical absence—a court may grant child custody to someone else (such as a relative) or ask that the child be given a foster care or temporary guardianship arrangement.

Child Support

 In California, as part of a divorce or dissolution of a marriage or domestic partnership, a court will decide whether one parent will receive financial support from the other parent for the care of their child(ren). This type of financial support is called child support.

Child support decisions are some of the most important aspects of a divorce or dissolution proceeding given that they deal with your child's current and future well-being.

You can request a child support order from a judge when you:

  • Request an annulment.
  • Get divorced or legally separated.
  • Request a restraining order for domestic violence.
  • Are establishing parentage.

California has established guidelines for calculating the amount of child support that a parent must pay.

The statewide formula is dependent upon a number of factors, such as:

  • The amount of money both parents are able to earn.
  • The amount of time both parents spend with their child(ren).
  • The number of children that require child support.
  • Each parent's tax filing status.
  • Health insurance expenses.
  • Whether the children receive support from other sources.
  • Mandatory retirement contributions.
  • Daycare costs, education costs, and other expenses.

A court usually tries to come up with a child support amount that is fair to both parents and their circumstances.

Parents may be able to work out a child support amount without using the California formula, but a judge must approve this amount.

Court-ordered child support can continue until the child:

  • Turns 18 years of age and is no longer a full-time high school student.
  • Turns 19 years of age.
  • Becomes emancipated.
  • Gets married.
  • Forms a domestic partnership.
  • Dies.

A court may also order the parents of a disabled adult child to pay child support for longer than what is usually required.

Spousal Support & Alimony

 In California, when a couple legally separates or becomes divorced, the court may mandate that one person pay the other person a certain amount of financial support every month known as spousal support or alimony.

Even while the separation or divorce process is going on, a spouse or partner can ask a court to issue a "termporary spousal/partner support order." Each county in California has their own formula for calculating the amount of temporary support, and, depending on where you are filing for support, one of our attorneys can show you how this is worked out.

According to California Family Code section 4320, a judge must take the following factors into consideration when issuing the final judgment for support/alimony:

  • Each person's needs.
  • Each person's earnings, earning capacity, and what he or she is able to pay.
  • The number of years that the marriage or domestic partnership lasted.
  • The age and mental and physical well-being of both spouses or partners.
  • Property owned and debts owed.
  • Whether requiring both parties to work will make it too difficult to properly take care of the child(ren).
  • If there was a history of domestic violence in the relationship.
  • Whether the career of one partner or spouse has been affected by having to stay at home with the children.
  • How responsible one partner or spouse might have been in helping the other person build their career.
  • Each person's history of managing money during the marriage or domestic partnership.

Once the judge issues the final judgment for support, monthly payments can continue until:

  • One of the spouses or partners becomes deceased.
  • The person obtaining support gets married again or files for domestic partnership with a new partner.
  • A judgment or court order terminates the support.

Domestic Violence

Domestic violence exists in any relationship (e.g., where people live or have lived together and/or are family members or sexual partners) where one person threatens/inflicts another person with physical or sexual harm or emotional harassment, violates their personal sense of space or peace, or destroys personal property.

Domestic violence abuse can include:

  • Verbal or written abuse.
  • Any kind of physical violence.
  • Coerced or forced sexual behavior or acts.
  • Psychological or emotional abuse.
  • Stalking someone in person, over the phone, or through the Internet.

Domestic Violence Victims:
If you are a victim of domestic violence you obtain a "kick-out" or temporary restraining order (TRO). A restraining order may direct the named party not to approach you, your home, work, or vehicle. It may also prohibit a person from making any efforts to communicate with you or transfer money or other property.

A domestic violence restraining order is a court order that protects a person from being abused by another person. You will have to go to court to prove your domestic violence case, and it is important to have an attorney who can represent your best interests.

You can ask for a restraining order if you have been abused by:

  • Someone you are dating.
  • A relative.
  • A spouse or ex-spouse.
  • A romantic partner who you live or used to live with.

A restraining order can force the restrained person to:

  • Not contact you.
  • Stay away from you, your family, or the people that you live with.
  • Move out of your home.
  • Pay child support, spousal, or partner support.
  • Obey child custody and visitation  orders
  • Not be allowed to possess a weapon.

Once a restraining order is issued, only the judge is authorized to revise or terminate the order. The TRO usually lasts until the next scheduled court hearing, during which time the judge will rule whether to continue or terminate the restraining order. If the person who is restrained violates the order, they can be charged with committing a crime.

If a person is charged with committing a felony or misdomeanor domestic violence crime, their case will also be heard in one of the superior courts.

Time is of the essence when seeking a domestic violence restraining order. In all domestic violence matters, we will do all we can to resolve such very personal and often painful legal matters as quickly and sensitively as possible.

Restrained Persons
If a restraining order has been issued against you and you would like to respond to it, you should file an Answer to Temporary Restraining Order form prior to the hearing. It is important that you send a copy of this order to the person who requested the restraining order. A family law attorney can represent you in court and offer you legal advice. If you violate the restraining order, a lawyer can take your case for you.

Division of Property

 Community Property

The state of California is a community property state, which means that all property acquired by a couple during the marriage is considered "community property" and—unless otherwise agreed upon or barring a premarital agreement—must be equally divided in terms of total net value when the marriage is dissolved. California defines community property as any income earned or asset acquired by someone while married to another person. Property obtained before or during the marriage as a gift or inheritance is considered separate property. Any debts incurred by either person during the marriage is considered community property debt.

In order to ensure the equal division of property, the amount of assets do not have to be equally split, but the value must be equal. .

A family law attorney can help you work with your ex-spouse or former partner to figure out how to best divide your assets. If the two of you are unable to agree on how to divide the property, a judge may divide the property for you.

Once a property division is agreed upon or mandated by a judge, the agreement is very difficult to revise. Most states will allow a certain time period when a request can be made called the Motion to Vacate the Judgment (sometimes known as a Motion to Reconsider) so that the party can explain why the court may have made a mistake when ordering the property division. Duress and fraud are two other reasons that are given when requesting a motion to reconsider. A party can also appeal their case with a higher court if they are not happy with the division of property order that was granted to them. Appealing the case can be costly and time consuming, and you will need a lawyer to represent you in court when you make your appeal.

Hiding Assets

Hiding assets during a divorce is against the law, yet it does happen. Some ways in which a spouse may try to hide their assets:

  • Paying wages to a nonexistent employer
  • Getting an employer to postpone raises, bonuses, or other options
  • Setting up a custodial account in the child's name
  • Not reporting certain income
  • Skimming money from their own business
  • Undervaluing certain collectibles
  • Not telling their spouse about certain accounts
  • Hiding money in their child's bank account
  • Placing assets in a safety deposit box

If you find yourself wondering if your spouse has hidden any of your community property assets, you may want to ask a lawyer for help.

Domestic Partners

Since January 2005, registered domestic partners are now allowed many of the same rights as married couples, and by California law, they must equally divide their property when they decide to dissolve their union. The new law is retroactive to the date that the domestic partnership was registered. This means that any property acquired by a couple that registered their partnership before January 2005 will be considered community property. Domestic partners who are registered in California are also free to sign a pre-partnership agreement that will allow them to make their own decisions about how their property will be divided. It's important to note that because many states won't recognize a domestic partnership that was registered in California, these rights won't necessarily be upheld in another state.

Grandparent Visitation & Custody

 Every state has a grandparent visitation statute that allows grandparents and other relations to ask for visitation rights in order to maintain their relationships with loved ones. This is especially important to grandparents who are no longer on good terms with the child's parent(s) because of divorce, separation, or other reasons. Grandparents who wishes to file for visitation must do so in the area where their grandchild resides.

Circumstances where a grandparent may find that they have to file for visitation in order to see their grandchild:

  • They are the parents of the non-custodial parent.
  • They are the parents of a deceased parent.
  • Their grandchild has been adopted  by a stepparent.

Family Code Section 3102: Gives grandparents the right to petition for visitation after one of the child's parents has died.

Family Code Section 3103: Lets grandparents file for custody visitation during a custody proceeding.

Family Code Section 3104: Lets grandparents file for visitation when their grandchild's parents are divorced, not married, or separated. It also allows for grandparents to make a visitation claim when the grandchild isn't living with either parent.

However:

  • A relationship between the grandparent and child must already exist.
  • Any visits must be in the child's best interests.
  • Visitations cannot interfere with any birth parent's visitation rights.

Custody:

A grandparent can file for custodial rights if:

  • A probate court grants custody of a child to a relative.

     
  • The parents of a child are not able to care for their son or daughter and a guardian must be appointed. A grandparent can also ask to become a co-guardian to a child.

     
  • Both parents' rights have been terminated due to neglect, abuse, or the inability to properly care for their child's needs.

     
  • Both parents have died.

     
  • The parents have given custody of their child(ren) to the grandparent(s).

A grandparent can also file for adoption of their grandchild if they want to take total and permanent legal responsibility for the child. In every case, a grandparent must prove to the court that it is in the child's best interest to live with them rather than anyone else. Courts will also consider a grandparent's health, age, and ability to take care of and financially support their grandchild.

When issues such as these arise in a family, Alternative Dispute Resolution (ADR) is a mechanism which can be utilized to resolve disagreements for which courts do not recognize rights, such as grandparent custody and visitation claims. Our lawyers are able to provide guidance through the process, and we are committed to obtaining a fair resolution for your case while maintaining your privacy to the best of our abilities.