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Family Law

What is family law?  California family law (also called matrimonial law) is an area of the law that deals with family matters and domestic relations.  Some of the areas covered by family law attorney are briefly discussed below.

Divorce

How do I get a divorce?  Divorce, also known as dissolution, is the legal process that terminates a marriage.  The divorce process begins when one spouse decides to terminate the marital union.  This includes ending the legal duties and responsibilities of marriage.   There are many aspects of a California divorce.  The first decision is to decide if you want to be the first to file for divorce or wait until your spouse files for divorce.

Marriage Contracts

Should I sign a prenup?  What is a postnup?  Couples getting married or who are married often consider prenuptial and postnuptial agreements.  A prenuptial agreement is entered into before marriage.  A postnuptial agreement is entered into after marriage.  Both agreements are contracts that characterize the parties’ assets, distribution of those assets, and/or other specific interests.  Both documents require specific language and “disclaimers” to be enforceable.  What is often at stake is community property or potential community interests.  To characterize property as one person’s separate property, it must be disclosed.

Annulment

What is an annulment?  A California annulment, also known as a judgment of nullity,  is found when a marriage is either void or voidable.  You either never were in a valid marriage or your marriage can be invalid based on information newly discovered.  A California annulment may be granted only when a marriage is adjudged void or voidable under conditions provided by statute.   See Family Code §§2200–2201 (void marriages) and Family Code §2210 (voidable marriages).  When you get an annulment, you are not getting a divorce.

What is bigamy?  What is incest?  In brief, a marriage is void in cases of incest and bigamy, and is voidable in cases of minority, a current spouse mistakenly believed to be deceased, unsound mind, fraud, force, and physical incapacity.  A California annulment may not be granted on any other ground.  See Price v Price (1938) 24 CA2d 462, 466.  Further, the statutory grounds must have existed at the time of the marriage.  See Family Code §§2200–2201, 2210;  McDonald v McDonald (1936) 6 C2d 457, 460.

Cohabitation Claims

I live with someone.  What can I get from my roommate?  Cohabitation claims result when people live together but never get married.  You may have a cohabitation claim if you can prove that it was your intent to simply live together and not get married.  Should you have a cohabitation claim, you may be entitled to a division of any and all property that was accumulated during the relationship.  Your cohabitation claim could also provide you with financial support.

Do I have a common law marriage?  California does not recognize common law marriages.  Unmarried parties who cohabitate and have a relationship over long a period of time may have rights to financial support and property.  Unmarried parties can enforce promises of support or property rights through a civil court action rather than in family court.  These “cohabitation” actions are referred to as Marvin claims, named after the case involving the late actor Lee Marvin.

The California Supreme Court in Marvin expressly declined to treat unmarried cohabitants like married persons but did state that agreements, including oral contracts, between unmarried parties are enforceable.

A “Marvin claim” is a civil action and not a family law matter.  The statute of limitations (the time that you have to file an action) for a Marvin claim will depend upon which legal theories are asserted.  Cohabitation can result in a claim for breach of an express or implied contract, implied partnership or joint venture, quantum meruit, unjust enrichment, constructive fraud, or the imposition of constructive or resulting trust.

Palimony

What is palimony?  Can I get support from my roommate?  Palimony refers to support payments that can be made to unmarried partners following a breakup.  These lawsuits are often called “Palimony Actions” or “Marvin Action.”  Such support payments have been permitted in California ever since a 1976 decision in the state Supreme Court which addressed premarital cohabitation.  Requests for support based on premarital cohabitation are not made through the family law courts because it’s not part of a divorce proceeding – palimony lawsuits are not family law matters.  Instead, these claims are filed as general civil actions, usually in conjunction with breach of contract or even implied partnership claims, among others.

California does not recognize common law marriages unless it was a common law marriage that was validly created in another state.  California does allow one partner to recover under a palimony action or as a putative spouse.

Child Custody

I want full custody.  How do I get sole custody?  Child custody is the legal relationship that parents have with their children.  It can be established by an agreement entered into by the parents or by a court order.  Custody agreements and orders start by establishing legal custody and physical custody.  Legal custody is the parent’s right to make decisions regarding the child’s care and development.  Physical custody is the right for parents to spend time with their children.  Parents can reach an custody agreement without court intervention.  This agreement can then be entered as a court order.  Otherwise, parents will attend mediation and receive recommendations about custody and parenting time.

Child Support

I need child support.  How much can I get?  Child support is periodic payments made by a parent for the financial benefit of a child.  Child support can be requested by a parent or by the State of California.  Child support is determined by each parent’s parenting time and each parent’s income.  Child support can be requested at any time and child support cannot be “waived.”  Alternately, if your child is receiving assistance from a county or the State of California, both parents can be requested to pay child support to compensate for the financial aid provided to the child.

Spousal Support

I need spousal support.  How much can I get?  Spousal support is also known as alimony in other states.  Spousal support is the legal obligation one spouse has to provide financial support to the other spouse.  Temporary spousal support is support that is either agreed to or awarded after the date of separation and until a divorce is finalized.  Permanent spousal support is support that is agreed to or awarded after a divorce is finalized.  Spousal support is available to either a husband or wife and is awarded to help one spouse attain the marital standard of living.

Marital Assets

Are marital assets community property?  All assets and debts acquired during a marriage is characterized as community property.  All property acquired before marriage, after to date of separation, by gift or from an inheritance is characterized as one spouse’s separate property.  All community property acquired during marriage is community property.  Community property is to be divided while all separate property is awarded to the acquiring spouse.  The division of property requires that all property be first characterized after which reimbursements and credits must be considered.

Domestic Violence Restraining Orders & Civil Harassment Orders

What is domestic violence?  What is civil harassment?  A domestic violence restraining order is a court order that restrains a party from abusing another person with whom they share a close relationship.  Civil harassment orders are made by those who are not sharing a close relationship.  Abuse is defined as intentionally or recklessly causing bodily injury, sexual assault, placing a person in reasonable apprehension of imminent serious bodily injury, threatening, striking, harassing, destroying personal property, or disturbing the peace of another.

Guardianship

I want to get a guardianship.  How do I get guardianship?  Individuals often hire family law attorneys to apply for guardianship.  Guardianships are granted when a court finds a need for one individual to care for another individual’s well-being or property.

Adoption

How do I adopt a child?  Do I need to go to court to adopt?  Attorneys practicing family law can be very helpful to those who wish to assume the parenting role of another.  Most adoptions involve adults who want to adopt a child.  During adoption, the biological or legal parents rights are terminated.  Adoption not only creates a new legal relationship but also severs a prior legal relationship.

Grandparent’s Visitation

I want to see my grandchild.  How do I get to see my grandchild?  The legal right that grandparents have to see and interact with their grandchildren will most likely require the assistance of a family law attorney.  Should a grandparent be denied contact with their grandchild, they will have to obtain a court order granting them the right to visitation.

Estate Planning

Who gets my things when I die?  An area of family law that addresses the disposition of a person’s estate.  The process of anticipating and arranging for the management and disposal of a person’s estate is undertaken during the person’s life to ensure their requests are enforced after death.

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