California Attorney Blog includes discussions and information regarding family law matters and issues encountered during civil litigation provided by California Attorney Edward Misleh.
The most recent post appears first, at the top of the web page, while prior posts appear last.
This Blog is the work of a single individual, California Attorney Edward Misleh, and covers Family law matters.
Prenup and Postnup Agreements
In California, couples can enter into prenuptial agreements (prenups) and postnuptial agreements (postnups). You have a “prenup” when you enter into an agreement with your partner before marriage. A “postnup” is an agreement you enter into with your spouse during marriage. Both agreements are contracts that characterize the parties’ assets owned by you and the other person. You will also address distribution of those assets, and/or other specific interests. Both documents require specific language and “disclaimers” to be enforceable. Read more in California Attorney Blog.
In California, Divorce, also known as dissolution of marriage, is the legal process to terminate a marital relationship. The divorce process begins when either you or your spouse decides to terminate the marital union and the legal duties and responsibilities of marriage by filing a petition for dissolution. There are many issues that you may encounter by filing as a petitioner or as respondent – some clients may want to initiated a divorce proceeding while other may find it advantageous to respond immediately to a divorce petition. You will find an abundance of information in our California Attorney Blog.
Divorce Residency Requirements
Residency Requirements for divorce in the State of California are that at least one spouse have resided in the state for at least six months prior to the date of filing, and that the filing spouse have resided in the county where they are filing for at least three months prior to the date of filing. In short, you must have been a resident of the county in which you are filing for at least 3 months prior to the date of filing and a California resident for at least 6 months prior to the date of filing.
In California, Child Custody is defined as the legal relationship that parents have with their child. This legal relationship can be established by a court during a divorce proceeding or agreed to by the parents. Contact a California Family Law Attorney to discuss the types of child custody you may encounter. You can also review articles in California Attorney Blog.
The parents’ right to make decisions regarding the child’s care and development. Parents can reach an agreement regarding custody without court intervention. The agreement reach is entered as a court order. Otherwise, parents will attend mediation and receive recommendations about custody and parenting time.
The time each parent spends with a child. Parents can reach an agreement regarding custody 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.
Joint Child Custody
Sometimes referred to as 50-50 custody. Joint Legal Child Custody and physical custody is the “favored” arrangements that courts would like for parents to have with their children. A court can address child custody should the parents be unable to do so. A judge, who has wide discretion in drafting a parenting plan, will order one that is in a the “best interests of the child.”
Sole Physical Custody
When you are awarded Sole Child Custody, you have the exclusive right to physically care for your child. The other parent, non-custodial parent, is awarded visitation. The court must consider the best interests of the child before it awards sole physical custody to one parent. Once the court awards sole physical custody to one parent, that parent has the right to control the physical care of the child without the need to consult the other parent.
Sole Legal Custody
A parent with sole legal custody holds exclusive rights to make critical decisions that affect the child’s safety, health and welfare. The court must consider the best interests of the child before it awards sole legal custody to one parent. Having sole legal custody means that you have the right to make all other decisions over the child’s life, without the other parent’s approval.
Child Custody Modification
Child Custody Modification, can occur once your have a parenting plan and custody order from the court. The parenting plan you now have may no longer be tenable because, as children get older and their needs, interests, and activities change. You can file a request to modify your present custody order when you move to advances your career or remarry. You must show that there has been a “change in circumstances” since the final custody order was made. This means that there has been a significant change that requires a new visitation arrangement for the best interests of the children. A significant change is required because it is best for children to have stable and consistent custody arrangements with their parents. Final custody orders should only be changed if it would be best for the children.
Child Support is your ongoing and periodic payment made for the financial benefit of your child following a divorce. You, the other parent, or the State of California can request payments of child support. The amount of child support you receive is determined by your parenting time and the incomes you and the other parent receive. You cannot “waive” child support which is for your child to prevent children from needing welfare. You and the other parent are each equally responsible for providing for your child’s financial needs. Payments of child support usually continue until the child turn 18. Child support payments can continue until the age of 19 if the child is still in high school full time, living at home, and cannot support themselves. California Attorney Blog discusses child support.
Requesting Child Support
Either parent can submit a request for Child Support. If one parent has been receiving public assistance from the State of California or a California County program, a local agency will automatically file a support case against the noncustodial parent.
Modifying Child Support
You make a request to Modify Child Support when there is a change in parenting time or the income of either parent. Remember, should you have a change in income and not request a modification of child support you will be charged with arrears for missed payments which may not be credited.
Spousal Support is also known as alimony in other states. It is a legal obligation for one spouse to provide financial support to the other spouse during separation and after divorce. You receive spousal support so that you can maintain the marital standard of living. Look into California Attorney Blog for other articles relating to spousal support.
Temporary Spousal Support
Temporary Spousal Support is ordered by a court during your divorce proceeding. A court is allowed to use a computer program, called Dissomaster or X-spouse, to determine temporary support. The only factors a court considers for temporary support is the supported party’s needs and the supporting party’s ability to pay.
Permanent Spousal Support
You receive Permanent Spousal Support once your divorce is finalized. In determining permanent spousal support, a court will address a number of issues which are known as the “4320 factors.” Permanent spousal support can be modified.
Spousal Support Duration
The amount of time that you will receive spousal support is left to the discretion of the court within certain general equitable principals and guidelines.” A general rule is that spousal support will last for half the length of a marriage that was less than 10 years long. However, in longer marriages, the court will not set a duration. The burden will be on the party who pays to prove that spousal support is not necessary at some future point in time.
Modifying Spousal Support
You can request to Modify Support Payments if you can show that there has been a “change in circumstances” since the spousal support order was made. The supported party no longer needs support or the supporting party can no longer afford to paid support.
Terminating Spousal Support
You can terminate the spousal support your spouse receives. This often occurs upon the death of one spouse, remarriage, or by a court order. You receive spousal support for a reasonable amount of time to help you become self-supporting. California law does not require lifetime support and spousal support can be terminated at any time.
The property you acquire during marriage is your marital assets. You divide your marital assets with your spouse once it has been characterized. During your divorce, you can agree on a division of the community assets and debts. You and your spouse can have the court order an equitable division if you are not be able to agree. Determining and dividing community property assets and debts can have a significant effect on your current lifestyle and future retirement. Take time to carefully determine the value of all community property and your interests. California Attorney Blog has other discussions regarding property and marital assets.
The property you acquire during marriage is Community Property. Remember,
Community Property includes all community assets and all community debts.
You can acquire Separate Property in a number of ways. The property you received before the marriage, by gift, inherited, or after separation is your Separate Property.
You must be in a close relationship with your abuser to assert an action for Domestic Violence. Domestic Violence can happen to anyone; men and women alike. If you, or someone you know, has being a victim of Domestic Violence, you should contact law enforcement for help and seek medical attention for any injury. Domestic Violence issues are discussed extensively in California Attorney Blog.
Domestic Violence Restraining Orders
A Domestic Violence Restraining Order is a court order restraining a party from abusing another person who they share a close relationship. Abuse includes physical violence, verbal attacks, emotional distress, economic restrictions and sexual attacks or molestation. You suffer abuse if someone intentionally or recklessly caused or attempted to cause you bodily injury or sexual assault; places you in reasonable apprehension of imminent serious bodily injury; or, engages in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property, or disturbing your peace of mind.
Acts of Domestic Violence
Domestic violence is a pattern of behavior which involves violence or other abuse by one person against another in a domestic setting, such as in marriage or cohabitation. Domestic violence often begins with an argument between spouses or those who are in a close relationship. An argument can become very emotional and possibly result in physical harm. And when it does, the argument often ends with someone contacting law enforcement to make a report.
Civil Harassment Restraining Orders
If you do not qualify for a domestic violence restraining order, you can file for a civil harassment Protective Order. You seek a civil harassment Protective Order to protect you from neighbors, roommates, coworkers, or more distant family members. California Attorney Blog helps you understand the difference in types of restraining orders.
Individuals often hire family law attorneys to apply for Guardianship. As a guardian, you have a legal relationship between you and another individual. The care you provide can be for the individual’s well-being or their property. Once done, you will have the authority, and corresponding duty, to care for that person and/or their property interests. Guardianship can be difficult to obtain. Look at articles in California Attorney Blog for further information.
Attorneys practicing family law can be very helpful to those who wish to assume the parenting role of another, usually a child, from that person’s biological or legal parent(s). Adoption not only creates a new legal relationship but also severs a prior legal relationship. When you adopt a child the court simultaneously terminates the parental rights of the child’s parents. An adopted child can inherits from you just as any child would. The Adoption can be complicated. Review articles in California Attorney Blog for a better understanding.