Areas of Practice
Child Custody and Visitation
Child and Spousal Support
Prenuptial / Postnuptial Agreements
DivorceBack to Top ↑
Overview For Default Or Uncontested Divorces In California:
All Divorce proceedings are unique, complex cases requiring the resolution of multiple legal issues. These issues can include determining child custody and visitation, property characterization and division, and spousal/child support. Every divorce is distinctive presenting a host of emotional and financial pressures. Our knowledgeable and experience attorneys will help to identify the issues surrounding your divorce, analyze and clarify the options available to you, and work with you to get the result you so desire.
Typically, dissolution of marriage or domestic partnership is accomplished in a 3-stage process: the initial filing for dissolution, making request for temporary orders/disclosure and discovery, and obtaining a judgment. The majority of time and effort expended during a dissolution proceeding occurs during the “making requests for temporary orders” and “disclosure and discovery” stage. In these stages the court will hear requests from either party to issue orders relating to child custody and visitation, child and spousal support, counseling, exclusive use of the family residence, and payments of separate and community debts.
STAGE 1: The Initial Filing
Every family law case begins with the filing of a divorce petition with the court. The person who files the petition and thus starts the divorce process is called the “petitioner” the other party is called the “respondent”. There are different types of cases that can be filed with the court to terminate the status of a marriage or domestic partnership, including dissolution (also known as divorce), legal separation and nullity of marriage.
Grounds for Divorce in California
According to the California Divorce Laws and California Divorce Guidelines, to get divorced in California, the spouse filing the case must have been a resident of the state of California for 6 months and a resident of the county where the case is filed for at least 3 months.
The divorce process will take at least 6 months from the date the person filing for divorce officially lets his or her spouse or domestic partner know about the divorce. The case can take longer. BUT it cannot be faster than the 6 months. This is a mandatory waiting period required by California law and no couple can be divorced faster than 6 months due to public policy considerations.
There are three main ways to end a marriage or registered domestic partnership in California: divorce, legal separation, and annulment. In California, dissolution of marriage (also known as divorce) can be granted if the court finds “Irreconcilable differences” that have caused an irrevocable breakdown of the marriage, or incurable insanity.
It is not necessary for both spouses or domestic partners to agree to end the marriage. Either spouse or partner can decide to end the marriage under California Law. The other spouse/partner cannot stop the process by refusing to participate in the case even if he or she does not want to get a divorce. There is no “guilty” or “non-guilty” person, from the court’s point of view. This concept of a “no-fault divorce” which was developed in California means that if a married person wishes to end the marriage, he or she can do so, even if the other spouse disagrees.
The only thing the court is interested in is helping the separating spouses or partners reach a fair agreement about how their life will be restructured after the divorce so they can move ahead to rebuild their lives.
How the case is handled after the petition is filed depends on the actions of the other party – the “Respondent.” The Respondent can 1) fail to file a Response to the Petition or, 2) cooperates to settle the case by way of agreement; or 3) file a Response and contests any of the issues in the case.
Therefore, depending on the Respondents actions in a particular case, there are three ways to finalize the divorce:
1) California Default Divorce: The Respondent in the case fails to timely file a response to the petition for divorce, or legal separation. In such a case the Respondent is considered in “default” and the matter proceeds without the Respondent’s participation.
2) California Uncontested Divorce: A case is “uncontested” when the parties work together to settle the issues by way of a written agreement. This can occur in cases where the Respondent initially defaults or where the Respondent files a Response and the parties later decide to resolve their issues amicably and settle the case.
3) California Contested Divorce: A case is “contested” when a Response to the petition is filed, the parties are unable to agree on the issues in dispute, and the court must resolve them for the parties in a trial.
STAGES 2: Temporary Orders; and Disclosure and Discovery
Almost all divorce proceedings require the parties to attend a multitude of hearings relating to the divorce. These include, Status Conferences, Case Management Conferences, Mandatory Settlement Conferences, and when a child or minor is involved the parents are required to attend Family Court Services mediations.
Throughout this phase of the divorce proceeding each party is required under state law to accurately disclose their current assets and debts. It is the policy of the state of California to insure a proper division of community property and to insure that child and spousal support are fair and equitable. Our experienced attorneys will prepare the required financial disclosures for you and carefully and meticulously review the disclosures coming from the other party. Our experienced attorneys will also help you prepare for Family Court Services mediation in order to help reduce your stress and ensure the mediation runs smoothly and effectively in order to obtain the best result(s) possible.
Prior to a final judgment, either spouse may request the court to make temporary (pendente lite) orders by filing an Order to Show Cause, or a Notice of Motion. Either party can obtain temporary orders relating to child support, spousal support, child custody, and visitation. At this hearing the judge or your commissioner will enter orders that will last until the order is modified. These temporary orders can be modified throughout the pendency of the divorce or at the end of the proceeding. Permanent orders are made by way of a mutual agreement or through a trial and a final judgment determined by the judge.
STAGE 3: Obtaining a Judgment
A divorce case ends when the parties reach an agreement or there is a trial. When you and your spouse settle the case by way of an agreement, our attorneys will prepare an agreement known as a Marital Settlement Agreement (MSA) that resolves all of the issues in your case. Generally these issues include child custody, visitation, child and spousal support, division of community property, division of debts, and attorney fees. Our attorneys can also prepare and draft a Stipulated Judgment that is essentially a short form Marital Settlement Agreement when the case does not involve a high amount of assets requiring a detailed Marital Settlement Agreement. The terms of agreement are filed with the court and put into a court order.
When the parties cannot come to an agreement the case will conclude following a trial on the merits. It is important to note that unlike other civil or criminal matters, there are no jury trials in family court. There is only one Trier of Fact, which is the judge or a commissioner. Our attorneys can help you prepare for trial by drafting legal arguments in order to persuade the court to rule in your favor, call witnesses to testify on your behalf, and submit evidence in the proper manner so that the court will consider it when deciding the outcome of your case.
Whether you obtain a judgment through an agreement with your spouse or through adjudication of the issues at trial, the final goal of an action for dissolution of marriage, legal separation, or nullity of marriage is to obtain a judgment from the court. The Divorce Judgment dissolves the marriage and is a court order resolving issues between the parties.
Child CustodyBack to Top ↑
INITIATING A COURT PROCEEDING
Before a court can make a determination regarding custody or visitation of minor children, there must be an underlying action in the proper court. This is generally a proceeding for divorce, legal separation, annulment, or a petition for custody and support. However, issues relating to custody and visitation can also come up in guardianship proceedings, dependency court, and other similar matters.
In regard to custody/visitation, it is ideal for the parents to mutually agree to a parenting plan (aka a time-share plan or “stipulation”). Here, parents agree to share and divide their parenting responsibilities including both custody and visitation of children.
If the parents cannot reach an agreement, the judge will refer the case to a mediator who will assist in the decision making process. If the parents agree to a parenting plan (before or after mediation), this plan can be submitted to the judge for approval. The judge makes the final decision but usually will approve the arrangement both parents agree upon.
If mediation is unsuccessful and the parents cannot reach an agreement, the final determination will be made by the judge in a court hearing. The judge may also appoint an evaluator to recommend a parenting plan. A parent can ask for an evaluation, but the request may or may not be granted.
CUSTODY AND VISITATION BASICS
Child custody refers to the rights and responsibilities between parents for taking care of their children. There is a distinction between legal and physical custody. “Legal custody” refers to the right and responsibility to make decisions relating to the child’s education, health, and general welfare. This is a broad right construed by the court to include most significant decisions in the child’s life. On the other hand, “physical custody” refers to where the child will reside.
Custody orders can be “joint” or “sole”. In a joint legal custody order, both parents share the right and responsibility to make the important decisions in the child’s life. Either parent can make decisions alone and thus do not have to agree on every decision. But to avoid having problems and ending up back in court, both parents should communicate with each other and cooperate in making decisions together. If parents share joint physical custody the child will live with both parents. For example, the child will live one week with the mother, then the following week with the father. 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 due to the difficulty of splitting time exactly in half.
Parents can also be awarded “sole custody”. If a parent has sole legal custody, then they have the exclusive right to make important decisions in the child’s life. Similarly, if a parent has sole physical custody, the child will primarily reside with that parent while the other parent will simply visit.
Visitation refers to how each parent will spend time with the children. The court will grant reasonable visitation rights to a parent who has the children less than half of the time. However, there are situations where a court may restrict visitation rights. A court may order supervised visitation if the children’s safety and well-being require that visits with the other parent be supervised by you, another adult, or a professional agency. If the visitation would be physically or emotionally harmful to the children, then the court may refuse to grant any visitation. In these cases, it is not in the best interest of the children for the parent to have any contact with the children.
T he law relating to visitation plans is open to broad interpretation. One case has established what many courts have adopted as the standard, basic visitation plan. This plan contemplates visitation as follows: (1) alternating weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m., (2) one mid-week dinner (or sometimes overnight) visit, (3) equal division of holidays, (4) two uninterrupted weeks during the summertime for each parent, and (5) equal division of school vacations. Regardless of what plan is agreed upon, it helps the parents and children to have detailed visitation plans to prevent conflicts and confusion.
FACTORS IN DETERMINING CUSTODY AND VISITATION
Under California law, the judge must award custody and visitation according to what is in the “best interest of the child.” Under this standard there are a number of considerations the courts have used to determine what is best for the child. While this is not an exhaustive list, these factors are frequently used: (1) abuse of alcohol and/or drugs, (2) child’s preference, (3) parent’s general conduct, (4) finances, (5) change in the child’s residence, (6) history of domestic violence, (7) expert recommendations, (8) past criminal activity, (9) religion, and (10) work related issues. Although all of these considerations play a factor in the judge’s decision, none are determining factors.
Contested custody and visitation cases can become quite complicated. If your case is “contested” by the other parent; meaning an agreement cannot be reached between you and the other party, you should consider consulting a lawyer. Our attorneys will help advise you the best course of action to get the best results possible. Please contact our office for a free consultation at (619) 325-0283, or e-mail our office at email@example.com
Child and Spousal SupportBack to Top ↑
All minor children of the parents whether natural or adopted, or born during marriage or out of wedlock are owed a statutory duty of support under California law. The obligation exists regardless of whether there was ever a marriage.
Each parent is equally responsible for providing for the financial needs of his or her child. But the court cannot enforce this obligation until it makes an order for support. Child support payments are usually made until children turn 18 (or 19 if they are still in high school full time, living at home, and cannot support themselves). Child support can also be ordered as part of a case filed by the local child support agency (LCSA), which is the local government agency located in each county that provides services to establish parentage and establish and enforce child support orders. The court may make a child support order when the parties get a divorce, legal separation, annulment, or where one party obtains a domestic violence restraining order.
All California courts must adhere to the “statewide uniform child support guideline.” These guidelines determine the amount of child support that should be paid. The guideline calculation depends on:
- How much money the parents earn or can earn;
- How much other income each parent receives;
- How many children these parents have together;
- How much time each parent spends with their children (known as “time-share”);
- The actual tax filing status of each parent;
- Support of children from other relationships;
- Health insurance expenses;
- Mandatory union dues;
- Mandatory retirement contributions;
- The cost of sharing daycare and uninsured health-care costs; and
- Other factors.
The child support order may also require each parent to share the costs for child care to allow the parent to work or get training/schooling for work skills, children health-care expenses, traveling for visitation from one parent to the other, educational needs, and other special needs.
Spousal and Partner Support
A spousal support award is not mandatory in dissolution or legal separation proceedings in California. The courts have quite a bit of discretion (within statutory parameters) to deny spousal support or limit it to an amount and duration that accurately reflects the ability of both parties to provide for their own needs. When a couple legally separates or divorces, the court may order one spouse or domestic partner to pay the other a certain amount of support money each month. This is called “spousal support” for married couples, and “partner support” in domestic partnerships. It is commonly known as “alimony.”
After you have filed your case with the court, you can ask the court to issue support to be paid while your case is on going. This is called a “temporary spousal support order,” or a “temporary partner support order.” The court can also issue support to be ordered once the divorce or legal separation is finalized. This “permanent” (or long-term) spousal or partner support is issued as part of the final divorce or separation judgment.
For temporary spousal or partner support, judges in many local courts generally use a formula to calculate the amount. Courts in different counties may use slightly different factors in calculating a temporary support order. The judge will not use a formula to figure out how much spousal or partner support to order at the end of your case. When the judge makes his or her final spousal or partner support order, the judge must consider a number of factors including:
- The length of the marriage or domestic partnership;
- What each person needs based on the standard of living they had during the marriage or domestic partnership;
- What each person pays or can pay (including earnings and earning capacity) to keep the standard of living they had during the marriage or domestic partnership;
- Whether having a job would make it too hard to take care of the children;
- The age and health of both people;
- Debts and property;
- Whether 1 spouse or domestic partner helped the other get an education, training, career, or professional license;
- Whether there was domestic violence in the marriage or domestic partnership; ;
- Whether 1 spouse’s, or domestic partner’s, career was affected by unemployment or by taking care of the children or home; and
- The tax impact of spousal support (note: federal and state tax laws have not been changed to recognize domestic partnerships).
Every case is unique; due to the factual and equitable differences in each case the court cannot weigh each factor equally on a case-by-case basis. Determining the weight to be given for each of the statutory factors in a particular case, in order to arrive at a “just and reasonable” support award is “extraordinarily difficult” and case specific. As a result the court will consider all applicable factors but the decision is ultimately up to the trial courts sound discretion.
In considering and weighting the factors, courts must determine whether spousal support is appropriate, and if so, the amount, and the duration must be based on the standard of living that was established during the marriage or partnership.
The spousal or partner support order then becomes part of your final divorce or legal separation judgment.
Modification of Orders or JudgementsBack to Top ↑
MODIFICATION IN GENERAL
A “final” judgment in a family law action does not necessarily mark the end of litigation between the parties. A great number of case orders are modifiable and often are modified long after a judgment is issued. Most post-divorce decree modification requests are related to child custody, child support, and spousal support.
Child Custody Modification
Child custody and visitation orders generally are modifiable throughout the child’s minority whenever the court finds a modification is “necessary or proper” in the child’s best interests. The court will use the “necessary or proper” standard through out the pendency of a case.
A party seeking to modify a “final” or “permanent” custody order can do so only upon a showing of a significant “change of circumstances” affecting the child, and that modification would be essential to the child’s welfare. The “changed circumstances” rule is triggered only after a “final” or “permanent” custody judgment is entered.
While there is no formal definition of what constitutes a change of circumstances, some courts may consider the following a change of circumstances that may qualify for a court ordered modification:
- Relocation (especially to another state);
- Loss of job or increase or decrease in earnings;
- Unsuitable living environment for children;
- Unforeseen expenses; usually medical expenses;
- Drug or alcohol use or abuse.
Child Support Modification
Under “Statewide Uniform child support guideline(s)” dictated by the California Family Code §4050 et seq., child support orders are modifiable “at any time as the court deems necessary.”
As a general rule, courts will not revise a child support order unless there has been a “material change of circumstances.” This rule applies to any form of child support order–i.e., “pendente lite” (also known as temporary orders while litigation is on going) and “permanent” support orders issued at the conclusion of litigation.
The court does not use a rigid set of guidelines for determining whether circumstances have changed sufficiently enough to warrant a child support modification. So long as the statewide statutory support formula requirements are met the determination is made on a case-by-case basis and may rest on different factors such as:
- Change in visitation time with children;
- Increased travel expenses;
- Changes in ability to pay;
- Noncustodial parents increased wealth
- Statutory “hardship expense”
- Income from third parties
- Changes in need for support (such as, increased unforeseen medical expenses for the child);
The burden of proving a case for a child support modification (e.g., usually changed circumstances) rests with the party seeking the modification. Our attorneys have experience with collecting on family law judgments and enforcement of proceedings. Structured fee agreements may be arranged and looked into on a case-by-case basis.
The attorneys at Christmann & McConnell will help you enforce your court orders, and collect on your family law judgment. There are a number of legal theories and tools our competent attorneys utilize in order to procure enforcement of a judgment including but not limited to; contempt, filing sanctions, wage garnishment, lien assignment, and levying on bank accounts.
Spousal/Partner Support Modification
Either spouse or partner can ask the court to modify their spousal or partner support but only where they can show that there is a need based on a “change in circumstances.” This means something significant has changed since the previous spousal or partner support order was issued.
IMPORTANT NOTE! If you are the person paying spousal or partner support, you will still owe the full amount of support in your current court order until you get the order changed, even if your situation has changed. So, for example, if you lose your job today but you do not change your spousal or partner support order until 4 months from now, you will still owe spousal or partner support from today until 4 months from now, even though you were not working. Also, if you owe that amount but are unable to pay it, you will owe interest (at the rate of 10% per year) on any unpaid balance. For this particular reason it is important for you to have a knowledgeable attorney who can help you modify your support order. Our attorneys can help you get the results you get the best results possible as quickly as possible.
Terminating Spousal/Partner Support
Spousal or partner support can be terminated a number of different ways. The court can issue a judgment saying that it should ends. Support can also be terminated where:
- One of the spouses/partners die, or remarries/registers a new domestic partnership; or
- For “fixed-term” orders, the support obligation terminates at the end of the period specified in the order unless the court retains jurisdiction to extend the obligation; or
- For “contingent” orders, the obligation is terminated upon the happening of the specified contingency.
Summary DissolutionBack to Top ↑
There is a quick, easy way to get divorced in California called “summary dissolution.” Not everyone can get a summary dissolution. Most people have to get a regular divorce due to particular statutory factors. It should be noted that a summary dissolution is a divorce, NOT a legal separation.
DO YOU QUALIFY FOR SUMMARY DISSOLUTION?
For Married Couples:
To qualify for a summary dissolution of your marriage you must meet ALL of the following requirements.
- Have been married for less than 5 years (from the date you got married to the date you separated);
- Have no children together born or adopted before or during the marriage (and you are not expecting a new child now);
- Do not own any part of land or buildings;
- Do not rent any land or buildings (except for where you now live, as long as you do not have a 1-year lease or option to buy);
- Do not owe more than $6,000 for debts acquired since the date you got married (called “community obligations”);
- Court does not count car loans.
- Have less than $38,000 worth of property acquired during the marriage (called “community property”);
- Court does not count your cars.
- Do not have separate property worth more than $38,000;
- Court does not count your cars.
- Agree that neither spouse will ever get spousal support; AND
- Have a signed an agreement that divides your property (including your cars) and debs.
In addition, you or your spouse must meet the residency requirements for California, which are either you or your spouse, must have lived in California for the last 6 months and you or your spouse must have resided in the county for the last 3 months. If you do not meet the residency requirement, you can still file for a legal separation but you have to go through the regular legal separation process, or wait until you meet the residency requirements for a divorce.
EXCEPTION: Same-sex married couples who got married in California but do not live in California and live in a state (or states) that will not dissolve a same-sex marriage, can file to end their same-sex marriage in California, regardless of these residency requirements. You must file in whichever county you were married. If this is your situation, please contact our office for a free consultation.
For Domestic Partnerships:
To qualify for a summary dissolution of your domestic partnership you must meet ALL of the following requirements. You and your domestic partner:
- Both want to terminate your domestic partnership;
- Have not been registered as a domestic partnership for more than 5 years on the date you file your Notice of Termination of Domestic Partnership;
- Have no children together born or adopted before or during the domestic partnership (and neither of you is pregnant now);
- Do not own any part of land or buildings;
- Do not rent any land or buildings (except for where you now live, as long as you do not have a 1-year lease or option to buy);
- Do not owe more than $6,000 for debts acquired since the date of your domestic partnership;
- Court does not count car loans.
- Have less than $38,000 worth of property acquired during the domestic partnership;
- Court does not count your cars.
- Do not have separate property worth more than $38,000;
- Court does not count your cars.
- Agree that neither partner wants partner support from the other; AND
- Have signed an agreement that either divides your property (including your cars) and debts or says there is no community property or debts to divide.
If you or your spouse is considering a summary dissolution please contact one of the our trained attorneys to set up a free consultation at (619) 325-0283, or send us an e-mail at firstname.lastname@example.org .
AnnulmentBack to Top ↑
An annulment (or “nullity of marriage” or “nullity of domestic partnership”) is when a court says your marriage or domestic partnership is NOT legally valid. After you annulment is issued, the legal implications are as though your marriage or domestic partnership never happened because it was never legally valid.
A marriage is NEVER legally valid when it is:
- Incestuous (between close blood relatives); or
- Bigamous (where a spouse is already married to, or in a domestic partnership with, someone else).
Other marriages and partnerships can be declared “void” (invalid) because:
- One of the people was under 18 years old at the time of the marriage or domestic partnership;
- One of the people got married or registered a domestic partnership as a result of force or fraud or while physically or mentally incapacitated;
- Either side was already legally married or in a registered domestic partnership. This is different from bigamy (which is automatically illegal) because in this case, the marriage or domestic partnership took place after the former spouse or domestic partner was absent for 5 years and not known to be living or generally thought to be dead.
To get an annulment, you must be able to prove to the judge that 1 of these reasons is true in your case. This makes an annulment case very different from a divorce or a legal separation. “Irreconcilable differences” are not a reason for getting an annulment. Keep in mind that getting an annulment does not depend on how long you have been married. Even if you have been married only a very short time, you may not be able to prove to the judge that your case has 1 of the legal reasons that makes your marriage invalid.
Annulments are very rare. If you ask to have your marriage or domestic partnership annulled, you will have to go to hearing with a judge. Our attorneys can help you determine if filing for an annulment is possible or guide you in the direction of the proper legal recourse. Please contact our office for a free consultation.
Domestic Violence and Restraining OrdersBack to Top ↑
You may be a victim of domestic violence if: (1) you are the victim of “abuse” AND (2) you have a “close relationship” with the abuser.
There are many different forms of “abuse.” Abuse in domestic violence does not necessarily have to be physical like hitting or pushing someone. Abuse can also be verbal, written, emotional, or psychological. California law defines “abuse” as:
- Physically hurting or trying to hurt someone, intentionally or recklessly;
- Sexual assault;
- Making someone reasonably afraid that they or someone else are about to be seriously hurt (like threats or promises to harm someone); OR
- Behavior like harassing, stalking, threatening, or hitting someone; disturbing someone’s peace; or destroying someone’s personal property.
Domestic violence is also limited to situations in which the person being abused and the abuser have a “close relationship.” There is a close relationship when the person being abused and the abuser are or have been in an intimate relationship (married or domestic partners, are dating or used to date, live or lived together, or have a child together). It is also when the abused person and the abusive person are closely related by blood or by marriage. The court also requires that the acts of abuse/violence must have occurred within the last 30 days. If the abuser is a neighbor or other person with no relationship as described above, you must request a civil restraining order.
DOMESTIC VIOLENCE RESTRAINING ORDERS
A restraining order is a court order either preventing the abuser from acting in a certain way or requiring the abuser to act in a certain way (legally construed as “injunctive relief”). The court can order the restrained person to:
- Not contact or go near you, your children, other relatives, or others who live with you;
- Stay away from your home, work, or your children’s schools;
- Move out of your house;
- Not own or possess firearms;
- Follow child custody and visitation orders;
- Pay child and/or spousal support;
- Stay away from any of your pets;
- Pay certain bills or debts; and
- Release or return certain property.
A restraining order can protect not only the person applying for the restraining order but also their children, housemates, and even their pets. The Court can issue mutual restraining orders but only if both parties involved are present at the restraining order hearing and the court finds that both parties acted primarily as the aggressor.
THE RESTRAINING ORDER PROCESS
When you go to court to obtain a restraining order, you fill out court forms where you tell the judge everything that has happened and why you need the order. If the judge grants the order, he or she will issue a temporary restraining order initially.
Temporary Restraining Order (TRO)
A Temporary Restraining Order (also known as a “TRO”) is granted to ensure a period of separation between the parties in the event abuse or past acts of abuse have occurred. A TRO usually lasts between 20 and 25 days, until the hearing the court sets to decide whether a permanent restraining order should be issued. Even though a TRO is only “temporary,” it is still a valid, binding and enforceable court order. A temporary restraining order may be granted even though the abuser is not present in court and was not even provided notice of the hearing. The burden of proof for the person who seeks the restraining order is therefore low.
“Permanent” Restraining Order
When you attend court for the hearing that was scheduled for your TRO, the judge has the discretion to issue a “permanent” restraining order. A permanent restraining order lasts longer than a few weeks, and can last up to five years. A permanent restraining order may only be ordered by the court after notice of the hearing and an opportunity to be heard is provided to the abuser. At the end of those five years (or whenever your order runs out), you can apply to the issuing court for a renewal once your restraining order has expired so you remain protected.
OTHER TYPES OF RESTRAINING ORDERS
If you do not qualify for a domestic violence restraining order, there are other kinds of orders available:
- Criminal protective order (a district attorney initiates charges against the abuser);
- Civil harassment restraining order (can be used for neighbors, roommates, or more distant family members like cousins, etc.);
- Elder or dependent adult abuse restraining order (if the person being abused is 65 or older; or between 18 and 64 and a dependent adult).
- Workplace violence restraining order (filed by an employer to protect an employee from violence, stalking, or harassment by another person).
Legal SeparationBack to Top ↑
Differences between Divorce and Legal Separation
If you cannot (or do not want to) get a divorce, you can ask the judge for a legal separation. A legal separation does not end a marriage or domestic partnership. You cannot marry or enter into a partnership with someone else if you are legally separated (and not divorced). If you ask for a legal separation, you may be able to change to a divorce case later if you meet certain requirements.
To get a legal separation, you follow the same basic process used for a divorce.
For married couples to get a Legal Separation:
You can file in California if at least 1 of you is living in California. Once enough time has passed so that you meet the residency requirement for a divorce, you can file an “amended petition” and ask the court for a divorce (if you want a divorce).
For Domestic Partners to get a Legal Separation:
If your domestic partnership was registered in California, either 1 of you can file for legal separation in California, even if neither of you lives in California. If your domestic partnership was NOT registered in California, you can file for legal separation in California if at least 1 of you is living in California. If you and your domestic partner do not live in California, when you file to end your domestic partnership in California, the court may not be able to make orders about other issues like property and debt, partner support, or your children. If this is your situation, contact our firm to schedule a free consultation.
Property DivisionBack to Top ↑
GuardianshipBack to Top ↑
A guardianship proceeding is a process by which nonparents obtain custody of a child. The person appointed by the court is called the guardian, and assumes legal responsibility for the child. The appointed guardian will care for the child and make day-to-day decisions concerning the child’s well-being. A guardianship is commonly used if neither parent is able or willing to have custody, such as if both parents are deceased, or have left the child in the care and custody of a nonparent, for whatever reason.
In a guardianship, the parents of the child may still have parental rights and also maintain reasonable contact with the child. This differs from an adoption where the parent’s rights have permanently ended. A guardianship also differs from an adoption because the guardianship may be revoked at any time if a court deems that the guardian is no longer needed.
ESTABLISHING A GUARDIANSHIP IN CALIFORNIA
A petition for appointment of a guardian may be filed in probate court by a relative or other person on behalf of the child. The person filing the petition is the “Petitioner.” The Petitioner must allege the facts which require the establishment of a guardianship. The most common reason a guardianship is established is when the parents are unable to care for the child due to neglect, abuse or abandonment. Courts will also establish a guardianship for other reasons such as if the child has lived in the home of someone other than the natural parents for so long that removal of the child from that home would be detrimental to the child.
Upon the filing of the petition, the court will order the investigation of the proposed guardian’s home and interview the child. The proposed guardian must also submit to a criminal background check. A social worker will then summarize the findings in a written report. The report is then given to the court to help it determine what custody orders it should make, if any. If the court deems that a guardianship is necessary and determines who the best person to raise the child is, it will then establish a guardianship that will last until the child reaches the age of eighteen years.
DUTIES OF A GUARDIAN
Once the guardian obtains custody, the guardian will then have all the powers and all the obligations toward the child as if the child was his/her own biological child. It will be up to the guardian to ensure the children’s health, welfare, and safety needs are met. This includes: making all educational and medical decisions for the child; providing the child with food, shelter and clothing; providing financial support for the child; and stepping into the shoes of a parent.
Prenuptial and Postnuptial AgreementsBack to Top ↑
Marital agreements fall under two main categories, prenuptial agreements and postnuptial agreements. A prenuptial agreement is entered into before the parties enter into marriage and becomes effective on the date of marriage. A postnuptial agreement is entered into after the marriage. Although the timing is different, both of these agreements essentially effect the same thing: the contractual recitation of the rights and remedies of each party in regard to a marital relationship.
Content of the agreement
Generally, any financial or property issue can be dealt with in a premarital agreement. Issues relating to children, including child support and custody are not permitted based on public policy. Similarly, courts generally do not allow a waiver of spousal support. However, there are limited circumstances where courts will allow such a waiver. For example, if the party whose receipt of spousal support is limited or waived had independent counsel before entering into the agreement.
PaternityBack to Top ↑
If a child is born outside of marriage, or if there is a question as to who is the father of the child born to an unmarried woman, filing a paternity action is the only way for a parent to establish and enforce their legal right as a parent. This is true even if a parent executed a voluntary declaration of paternity at the hospital. If the parents were married when the child was born, the husband is presumed to be the biological father having legal rights concerning the child.
Usually a child’s paternity must be established before a parent can get child support or custody and visitation orders. The parent can ask the judge for child support or custody and visitation as part of a case that establishes the paternity of a child.
HOW TO ESTABLISH PATERNITY
The child, the child’s natural mother, or a presumed father can all bring an action to determine paternity. The party seeking to establish paternity must file a “petition to establish parental relationship.” In addition to an actual paternity action, there are several other ways to establish a parental relationship: voluntary declaration of paternity; parentage by estoppel; or a local child support agency can bring an action establish paternity.