California Family Law Frequently Asked Questions
What should I take to my free consultation with my family law Attorney?
It is suggested you bring recent paycheck stubs for the last 3 to 4 months; in addition, your spouse’s paycheck stubs as well. Income tax returns for state and federal.
- All real property deeds
- Net worth estimate
- Estimated worth of household goods
- Mortgage information (monthly payment)
- Property estimated value
- Any written agreements with spouse
- Savings, checking, stock certificates, bonds, brokerage statements
- Liabilities list (outstanding bills)
- Insurance policies (life), pension or retirement plans
- Vehicle registrations
- Current will, trusts
- Jot down your concerns and questions for the family law lawyer to make the best of your free consultation.
What is a Post-nuptial Agreement and Pre-nuptial Agreement?
Pros:
Premarital agreements may guard your children and grandchildren inheritance rights from a prior marriage.
Businesses may also be sheltered. If one spouse has more legal responsibility than the other, a premarital agreement can protect the debt-free spouse from having to take on the obligations of the other.
If you sacrificed a lucrative career after your marriage, a premarital agreement can make sure that you will be rewarded for that sacrifice if your marriage does not endure.
A prenuptial agreement can concentrate on more than the financial portions of your marriage, it can include any details, accountability sharing to which both parties agree to in advance.
Premarital agreements can control the quantity of spousal support that one partner will have to compensate the other should they divorce. Premarital agreements can preserve the interests of elders who intend on remarrying.
Cons:
Premarital agreements can force you to give up your right to inherit from your spouse’s estate when he or she passes on. California law, permits a spouse to a share of the estate even if the spouse does not includes such a condition in the will. If you play a role to the continuing success and growth of your spouse’s business or professional practice by entertaining clients and taking care of the home, etc., thus permitting him or her to concentrate on professional activities, you may not be permitted to demand a share of the increase in worth if you agree otherwise in a premarital agreement. This increase in value may be considered dividable marital property.
Starting a marital relationship with an agreement that sets forth the details of what will happen upon the death of your spouse or the termination of your marriage can produce a feeling of lack of trust.
A low or non wage earning spouse may not be able to maintain the lifestyle to which he or she has become used to during the marriage if the contract considerably limits the amount of alimony to which that spouse is permitted.
In the “honeymoon” period of a relationship, one spouse may concur to terms that are not in his or her best interests because he or she is “too in love” to be troubled about the financial parts and can’t visualize the marriage coming to an unfortunate end.
What is a Post Nuputial Agreement?
Postmarital arrangement or postnuptial agreements are contracts entered into after a marriage has taken place, but before the parties request to end their marriage. As with premarital agreements, one or both of the parties typically is seeking to safeguard assets or income in the aftermath of divorce or death.
What is a Dissolution?
What is the difference between a legal separation, divorce, and an annulment?
A “Legal separation” does not terminate a marriage or domestic partnership. You may not marry or enter into a partnership with someone else if you are legally separated (and not divorced). A legal separation is for couples that do not want to get divorced but want to live apart and make a decision on money, assets, and parenting issues. A legal separation may be favored for religious reasons.
A divorce is a “dissolution of domestic partnership” or a “dissolution of marriage” and ends your marriage or domestic partnership. After a divorce you will be viewed as a single person and can remarry if you wish.
An Annulment is a “nullity of domestic partnership” or a “nullity of marriage” and take places when a court declares your marriage or domestic partnership is NOT legally valid. A marriage or domestic partnership that is incestuous or bigamous is by no means valid. Other partnerships and marriages can be declared “void” because of force, fraud, or physical or mental inability; one of the spouses or partners was too young to legally marry or enter into a domestic partnership; or one of the spouses or partners was married or in a registered domestic partnership. Annulments are very rare
What is the difference between Visitation and Child Custody?
What is Legal Custody?
“Legal custody” provides a parent the right to create long-term choices about the raising of a child, and key parts of the child’s welfare – together with the child’s education, medical care, dental care, and religious teaching. In nearly all child custody cases, legal custody is awarded to both parents (labeled “joint legal custody”), except it is shown that one parent is one way or another unfit, or is unable of making decisions about the child’s rearing. Legal custody is dissimilar from “physical custody,” which involves concerns such as where the child will reside.
What is Physical Custody?
A parent who possesses “physical custody” of a child has the right to give day-to-day care for the child. The key facet of physical custody in most child custody situations is that the child will live with the parent who has physical custody. The majority of modern custody preparations give physical custody to one parent (referred to as the “custodial” parent) and grant visitation rights and shared “legal custody” to the non-custodial parent. In general, visitation rights give the non-custodial parent exclusive time with the child every other weekend, alternating main holidays, and a number of weeks during summer vacations.
What is Sole Custody?
A parent with “sole custody” of a child more often than not has exclusive physical and legal custody rights with reference to the child. Sole custody arrangements are uncommon, and are usually restricted to situations in which one parent has been considered unfit or incapable of having any form of accountability over a child – for instance, due to drug addiction or proof of child abuse. In sole custody circumstances, the child’s other parent (also known as the “non-custodial” parent) has neither physical nor legal custody rights, but may be entitled to periods of visitation with the child (though those visits might be supervised, particularly in conditions involving domestic violence or child abuse).
What is Joint Custody?
Child custody state of affairs, “joint custody” typically refers to one of two possible circumstances: joint legal and physical custody, or joint legal custody. In true “joint custody” arrangements, parents share equal “legal custody” and “physical custody” rights. This means that parents contribute equally in making choices about the child’s rearing and wellbeing, and split time equably in having day-to-day care and responsibility for the child – as well as the parent’s right to have the child live with them.
Joint custody – from time to time referred to as shared parenting or shared custody – has two parts: joint legal custody and joint physical custody. A joint custody order can have one or both parts.
Joint legal custody refers to both parents sharing in key decisions affecting the child. The custody order may explain the issues on which the parents must share decisions. The most common matters are school, health care, and religious training (although both parents have a right to expose the child to their respective religious beliefs). Many joint custody orders specify procedures parents should follow in the event they cannot concur on an issue. The most common course of action is for the parents to seek advice from a mediator.
Joint physical custody refers to the time the child spends with each parent. The amount of time is flexible. The length of time could be relatively moderate, such as every other weekend with one parent; or the amount of time could be evenly divided between the parents. Parents who decide on for equal time-sharing have come up with many options such as: alternate two-day periods; equal division of the week; alternate weeks; alternate months; and alternate six month periods. If the child is attending school and spends a considerable amount of time with both parents, it generally best for the child if the parents live moderately close to each other.
Child, Spousal and Family Support Issues
How is Child Support determined?
In 1984 California law recognized minimum degrees of child support and required the courts to institute guidelines for awards of child support above the statutory minimums. This is known as the Child Support Guideline. To compute the minimum amount of child support to be paid by a parent, the law directs a judge to first add up the total net monthly incomes of both parents. Then, the percentage of that income that is being earned by the non- custodial parent must be determined. In conclusion, that percentage is multiplied by the appropriate level of welfare payments for the number of children in the household. The result of this calculation is the minimum child support. It should be understood that in the vast majority of cases, the court orders child support above the minimum level, as determined by local support guidelines. The majority of child support orders are paid under the Child Support Guideline. The guideline is based on a complex mathematical formula.
How long is child support supposed to be paid?
Child support is required to be paid until the child becomes 18, unless the child has not graduated from high school, in which case the child support continues until the child has graduated high school or becomes 19, which ever occurs first. Presently, the law does not allow for child support beyond the age of 19, unless a child is physically or mentally disabled. However, the parents may agree that child support is to continue into the college years, and such an agreement will be enforced by the Family Law Court.
How is the Amount of Spousal Support Determined?
Unlike child support, which in most states is mandated according to very specific monetary guidelines, courts have broad discretion in determining whether to award spousal support and, if so, how much and for how long. The court may consider the following factors in making decisions about spousal support awards: the age, physical condition, emotional state, and financial condition of the former spouses; the length of time the recipient would need for education or training to become self-sufficient; the couple’s standard of living during the marriage; the length of the marriage; and the ability of the payer spouse to support the recipient and still support himself or herself.
