Family Law

+ Dissolution of Marriage (Divorce)

A dissolution of marriage is an action that terminates your marital status upon a judgment issued by a court. Actions for Dissolution usually include other issues such as child custody and visitation, support, characterization of property rights, division and confirmation of property and payment of fees and costs.

The requirements to file a dissolution of marriage in California are: One of the parties must live in California for at least six months and live in the county where the action is filed for at least three months. California is a no-fault dissolution of marriage state. Thus, the reason for the dissolution does not matter for the termination of a party’s marital status. A dissolution is started by the filing of a petition for dissolution and summons. Generally, these documents must be personally served on the other spouse. The earliest date the marital status can be dissolved is six months after the earlier of the date of either service on the other party or the date a Response is filed, but this is can only be obtained if all required documents are filed.

+ Legal Separation

A judgment for legal separation is similar to a dissolution of marriage and the court will make orders all issues, including child custody, child support, spousal support, fees and property rights. The only difference is that the court will not dissolve the marital status of the parties, thus the parties remain married. The ground usually used for a legal separation is irreconcilable differences. There are no residency requirements for a legal separation. There are various reasons parties will obtain a legal separation instead of a dissolution, such as religious beliefs, the need to maintain health care or a recent move which causes a failure to meet the residency requirements for a dissolution but need orders in place prior to meeting those requirements.

+ Nullity

A judgment of nullity is a court finding that a couple's marriage never legally existed. A nullity may be granted if the marriage is either void or voidable. A marriage is considered voidable if one of the following conditions exists:

1. The Petitioner was a minor at the time of the marriage and proper consent for the marriage was not obtained;
2. There was a prior existing marriage;
3. One party is of unsound mind;
4. One party is physically incapable of consummating the marriage;
5. The marriage was obtained by fraud, or
6. The marriage was obtained by force.

Under certain conditions, a marriage is considered void from the beginning, such as when there is bigamy or incest.

+ Paternity

A Parentage action is filed by a party that seeks a determination of parentage of a child. Once a court determines the parentage of a child the court can determine child support and custody issues.

+ Domestic Partnership

A domestic partnership is established when persons meeting the criteria specified by Family Code section 297 file a Declaration of Domestic Partnership with the Secretary of State in California.

The domestic partnership can be terminated under certain conditions, as provided by Family Code section 299, by filing a Notice of Termination of Domestic Partnership with the Secretary of State. The domestic partnership shall be terminated effective six months after the date of filing of the Notice of Termination of Domestic Partnership with the Secretary of State provided that neither party has, before the effective date, filed with the Secretary of State a Revocation of Termination of Domestic Partnership, as provided by Family Code section 299. If all conditions of Family Code section 299 are not met, domestic partnerships must be terminated through proceedings in California Superior Court. These proceedings are similar to the proceedings for the dissolution of a marriage.

+ Non-Marital Relations/ Co-Habitation

Parties that do not marry or do not establish a domestic partnership can still make contractual agreements regarding their property, support or other issues by an actual or implied agreement. A legal action to enforce this type of an agreement is typically referred to as “Marvin” agreement, named after the famous case which initially set the framework of such enforceable agreements. As these involve actual agreements between the parties, the matters which are included differ greatly. The dissolution of these relationships requires a different type of legal proceeding.

+ Child Support

California law requires courts to adhere to statewide uniform guidelines in setting child support orders unless the parents agree to a higher or lower child support amount and the party receiving the support is not receiving state support/aid.

To help parties figure out what support is owed the State of California has a guideline calculator. It is very important that a party understands and accurately fills the information into the calculator. Many mistakes are made by parties not correctly inputting information into a program for support.

A wage garnishment should be filed to collect the support from the paying parent. This garnishment must have the support paid through the California State Disbursement Unit. Child support establishment and enforcement is available at no cost to the requesting party by the Department of Child Support Services. Each county has an office and, if the only issue is child support, contacting the office in your county may be beneficial.

+ Child Custody

Child custody is determined by a court based on the best interests of the children. There are two different types of child custody: legal custody and physical custody. A parent can have sole custody or joint custody. Sole custody gives one parent primary responsibility. With joint custody, both parents share that responsibility. Legal custody gives a parent the right to make decisions such as pick doctors, schools, and make other decisions for the child. Physical custody is actually having the child in the parent’s possession. If the parents have joint physical custody the children spend time with both parents, although not necessarily an equal amount of time with each. Even when a parent has sole physical custody of a child, the other parent can have visitation.

Typically, the non-custodial parent is granted visitation rights unless the court feels that such visits would be detrimental to the children. Parents may agree on a schedule, but if no agreement is reached the court will set a schedule for the visitation.

In California, if people cannot agree about child custody / visitation, they are required to attempt to resolve their disagreements through family court mediation. If mediation does not work, the judge will make a decision about custody.

+ Spousal Support

Spousal support is monetary support provided by one spouse / ex-spouse to the other. Either spouse may seek spousal support (both men and women). For temporary support, courts may use guideline support. For permanent support, the court weighs various factors including but not limited to the length of a marriage, the standard of living during the marriage, the relative incomes or earning potentials of the parties, the health of the parties, the time a party has not worked, and the needs of each party. Spousal support may be either temporary or long-term. If neither party needs spousal support at the time the marriage is dissolved, the parties may request the court to reserve judgment on this issue or terminate the support obligation entirely. Spousal support can be enforced by an order to pay the support directly out of an employee's paycheck.

+ Property Division

In general, with some exceptions, all property / debt accumulated during the marriage is community property and each spouse is entitled to one-half of the total of the assets less the debts. A court is required to divide the property / debt equally unless both parties agree to divide it unequally. The court cannot physically divide most property, so the court will award specific items of property to each spouse and, if there is a difference in the amount awarded to the parties, will order the party with the higher amount to pay an equalizing amount to the other.

Certain property is not community property, including that belonging to a spouse prior to the marriage, received as a gift, or an inheritance given only to one spouse during the marriage and is to be confirmed as separate property. Separate property stays with the party who had it originally and is not included in the division of marital assets. However, a separate property does not always remain separate and may become community property under certain circumstances.

The legal presumption is that property acquired during the marriage is community property and it is up to the spouse claiming it as separate to prove it is separate if it is disputed.

+ Grandparents' Rights and Visitation

It is possible that a grandparent may obtain visitation rights. To obtain grandparent’s visitation a grandparent must show that it is in the best interest of the child. Further, the court has to balance the interests of the child against the traditional right of the parents to determine who has contact with their children.

There are generally four situations in which a California court will give grandparents a legal right to visit their grandchildren:

1. When a parent has died, a court will grant visitation rights to a close relative of that parent, if it would be in the best interests of the child.
2. If parents divorce, a grandparent may be able to join in the proceedings to seek visitation rights or file a separate action on his or her own behalf. Visitation may be granted if it is in the best interests of the child. This is not a usual order.
3. If the child’s parents are not married, the grandparents may also seek visitation rights.
4. When a guardianship is implemented, a grandparent with a pre-existing relationship can join the action and request visitation.

The court presumes that fit parents will act in the best interests of their child. The presumption weighs against the grandparents seeking visitation rights. The grandparents will have to present significant evidence that visitation would advance the interests of the child to overcome this presumption and obtain visitation rights over the objection of the parents.

+ Domestic Violence Restraining Orders

Domestic Violence is both a civil offense and a criminal offense. Domestic violence is a general term for illegal conduct directed towards a spouse, former spouse, present or past romantic partner, child or other family members. Domestic violence can be stalking, repeated telephone calls, threats, physical violence, or other harm.

There can be huge ramifications if a domestic violence restraining order is made. You will be listed as an offender and put in the CLETS database for all law enforcement. Licensing agencies can and do review the list of offenders for licensing purposes (for example, teachers). You cannot own a firearm nor have possession of a firearm. A restraining order has serious consequences, so if you need one or are opposing one you should have legal help.

On many occasions, a party will improperly file an application for a restraining order to attempt to obtain an advantage in a custody or property dispute. On other occasions, a party really does need a restraining order, but they do not properly plead the necessary requirements to obtain the order or do not know how to get a temporary order.

+ Pre-Marital and Post-Marital Agreements (Prenup)

Parties often want to determine their rights and responsibilities prior to marriage, particularly for second and subsequent marriages or if either or both of them have significant assets. This is done prior to marriage by a pre-marital agreement. These types of agreements can be valid and enforceable, but there are several specific requirements which need to be met. The services of a qualified attorney for each party essentially required in order for their agreement to be enforceable and, if the parties desire to enter into one prior to their marriage, the early attention to this is most important.

A pre-marital agreement can, if properly drafted, resolve the ownership of property, the earnings of each of the parties, custody of children and support issues. Therefore, this can be an extremely valuable agreement which can reduce future problems.

Married parties sometimes decide that they want to resolve disputes regarding how they handle property or other issues even though they do not intend to separate nor dissolve their marriage. A post-marital agreement is the answer to their questions under such circumstances. There are substantial technical issues which need to be addressed in the preparation of a post-marital agreement, but, if properly addressed and drafted, such an agreement is permitted.

+ Adoption

Adoption involves the acceptance of parental responsibilities for a minor child by an adult. Most adoptions involve married persons who jointly adopt a minor child. However, there are adoptions involving single adults as well as non-marital partners. There are also step-parent adoptions where a new spouse adopts a child of his or her spouse.

An adoption involves very specific requirements as well as investigations either by a state agency or a county agency, depending upon the nature of the adoption. An adoption proceeding often involves multiple court appearance to determine how it is progressing prior to the finalization of the adoption and may involve an action for the termination of the parental rights of the biological parents.

There are adoptions which are from an adoption agency and there are also adoptions which are private adoptions arising out of, for example, a known relationship where a biological parent cannot handle the responsibilities of raising a child and determines that it is in the best interest of the minor to permit the acceptance of those responsibilities by a loving family.

+ Guardianship

A person may be appointed as the guardian of children when the children’s parents are unable to properly provide for them. The court can appoint a temporary guardian upon initial application or may require a full hearing prior to making an appointment. The guardianship can be over the person and / or the estate of the minor. The appointment will occur only if the court determines that it is both in the best interests of the minor and that the continuation of the minor with the parents would be detrimental to the minor. The court can make orders regarding the minor’s visitation with parents and other relatives.

The court will require annual reviews of the guardianship to determine whether it should continue.

+ Conservatorship

When an adult is unable to properly handle his or her assets, pay bills or make decisions regarding his or her health and personal needs a conservator can be appointed by the court. A conservatorship is the proceeding to appoint an adult to act for the person and / or the estate of the adult. This can be instituted by the County, usually upon recommendation of the mental health department, or by a concerned relative or friend. The Superior Court Judge can appoint a temporary conservator initially or wait until there is a hearing to make an appointment.

There will be an investigation by an appointed investigator who will file a report with the court regarding the application. The court may appoint an attorney to represent the proposed conservatee and there may be a contested hearing.

The person appointed as a conservator has many duties to perform, including, if the appointment is for the estate of the person, accounting for all funds received and disbursed. The court will require reviews of a conservatorship to determine if the conservatorship is still needed and to determine how the conservator has performed.

+ Juvenile Law/ Wardship Proceedings

There are two basic types of proceedings which occur in the Juvenile Court, which is a special division of the Superior Court. This court was established in recognition of the necessity to handle matters involving juveniles (those under the ages of 18).

+ Dependency Proceedings

This type of proceeding occurs for the protection of minors when their parents or guardians are unable to properly provide for and protect their children. This proceeding is usually instituted by the county department Child Protective Service (or similar agency) and the children are often removed from their home and placed in foster homes pending court actions.

The parents are generally entitled to be represented by appointed attorneys but often will seek private, retained counsel.

The orders that the court makes in this type of case can severely limit the contact between the children and the parents or other family members, can result in the placement of the children for extended periods of time with other family members or strangers. The purpose of the court is to try to reunify the children with their parents once the issues which lead to the children’s removal have been addressed. The court can require the parents to attend programs, have counseling, etc. The Child Protective Services agency often has extreme control over the parents and the parents may feel great frustration at the limitations of their parental rights.

This proceeding can last more than a year and may result in the termination of parental rights and the involuntary adoption of the children.

+ Wardship Proceedings

The Juvenile Court also handles cases when children commit crimes. Whether the court becomes involved usually depends upon the severity of the crime. Often the Juvenile Probation Department initially handles the matter for minor crimes and may just impose supervision on terms which they will monitor and the Juvenile Court never becomes involved.

However, when the prosecuting agencies believe that the conduct warrants, an accusation of a crime is filed in the Juvenile Court, which institutes these proceedings. The minor may have already been detained in Juvenile Hall or may still be at home. In either event, the initial hearing is a detention hearing which will advise the minor and parents of the allegations against the minor and will determine whether the minor will be permitted to be at home or will be placed in other homes or in Juvenile Home.

The next hearing is a jurisdictional hearing, which is best considered to be a trial on the allegations. The minor can admit the allegations (which is the same as a guilty plea or no contest plea in adult criminal court) or can deny the allegations and demand a trial. If the Juvenile Court Judge (there is no right to a jury in Juvenile Court) sustains the allegations, the minor may be permitted to remain in the confinement or home setting in which the minor was at the commencement of the proceeding or that may be changed based upon the information which came forward at the hearing.

The next hearing is the dispositional hearing, which is the same as a sentencing in adult criminal court. The judge will impose a sentence which can result in the minor being placed on probation terms, put in Juvenile Hall for some period of time or sent to the State Juvenile Prison system.

The court will usually appoint an attorney in these proceedings, but a private attorney may be retained to represent the interests of the minor or the parents.