While you may feel isolated from your family as a result of a family law case, you certainly aren’t alone in going through this type of ordeal. In fiscal year 2015-2016, marital filings in California accounted for 138,520 cases, and other types of filings involving family law accounted for 249,329 cases. The majority of these cases were handled prior to trial, with about 94% of marital cases being handled before trial, and 76% of other family law cases also being handled before trial. However, just because these cases were resolved without a trial does not mean the people involved in the family legal clash went through their cases without help. Many people utilize the aid of an attorney who is trained in family legal matters to help them with negotiations outside of a trial setting. This lawyer has the ability to not only make sure you emerge from the family law process with the best deal possible, they can also greatly reduce your stress load by taking care of the most challenging aspects of the process and by filling out all of the complex paperwork. If you think you might want to hire a legal professional, or just want to ask an expert a few questions about your case, get on the phone and call 619-610-7425 to speak with an attorney based in Oceanside, CA.
No two family law cases are alike. However, a few topics generally come up in family law cases, summed up in the passages below.
Marriage Law
In California, the definition of marriage is a contractual relationship between two citizens, and is available to both same-sex couples and heterosexual couples. Unlike with some other states, there is no requirement of residency associated with marriage in California. For a couple to receive a certificate of marriage, it is only required that the marriage take place in the state. You don’t have to hold a fancy ceremony, but the marriage does need to be solemnized in some fashion. This means each spouse must express an intent to be married to a licensed officiant, and the officiant must sign the marriage license, along with at least a single witness. Many of the county clerk offices in California are able to perform marriage ceremonies, including the county clerk office in San Diego County. After the ceremony takes place, the county clerk must review the marriage license, and if everything is up to code, then the couple is officially married and receives a wedding certificate. Also, for a marriage to be valid in California, neither party can be coerced, both parties necessarily must be fully mentally competent, neither party can be simultaneously wedded to another person, and the two parties can’t be close relatives.
Quick note: California does not give recognition to so-called common law marriages. It does not matter if a couple has been living together for a long period of time, or has children together, without a certificate of marriage the union is not recognized by the California legal system.
Domestic Partnership
There is an alternative to marriage for couples in California, called a domestic partnership. Prior to the legalization of gay marriage, domestic partnership was used as an alternative for gay couples who would have preferred to get married but were barred from doing so. However, some same-sex couples still do elect to pursue a domestic partnership rather than a marriage, if they do not feel the institution of marriage is right for them. Domestic partnership is also available to opposite-sex couples, if one of the partners is at least 62 years of age. Older couples sometimes don’t want to deal with going through a marriage at such an advanced age, and feel domestic partnership is a better option for them.
Domestic partners are given almost all of the same rights given to married couples. People in domestic partnerships get the same hospital visitation rights, inheritance rights, healthcare packages, and family leave privileges available to married couples.
If you think you might be interested in a domestic partnership, or are looking to end your domestic partnership, an Oceanside family attorney can direct you through the process.
Divorce Law
Sometimes, marriages just don’t end up working out, and couples decide to get divorced. If both or just one of the people in the marriage wants to pursue a divorce, then a divorce will always be allowed in California. This is because since 1970 and the passage of the Family Law Act, California operates through a no-fault divorce system, which means, “irreconcilable differences,” and also in rare circumstances, “incurable insanity,” are the only permitted grounds for divorce. As with a marriage, a divorce must be fully approved by the California court system to be recognized by the law.
There are a few different avenues a divorcing couple can utilize when attempting to get a divorce. If the divorcing spouses concur on the divorce terms, then the divorce is deemed uncontested, although the courts must still approve the settlement to guarantee its legality. If they end up not agreeing on the divorce’s terms, then the divorce is deemed contested, and must be resolved through mediation sessions, arbitration, or a courtroom trial. Divorces can also be settled through a new process called collaborative law, which involves each person hiring attorneys, who help the couple come to a joint agreement.
Asset (and Debt) Division
When two people decide to get divorced, they must decide precisely which person will collect what property after the separation. California operates according to a community property system, which means that all assets and debts acquired between the inception of the union and the separation must be evenly divided between the two of them. Separate property is property that was obtained by a person before the inception of the marriage or post-separation. This type of property belongs only to the person who originally acquired it. Mixed assets, which are assets that were in part obtained before the marriage, and in part obtained after the marriage, are trickier to divide. Generally, an attempt will be made to ascertain what percentages of the value of the asset are separate or communal, and then the asset will be divided according to that judgement.
Asset and debt division is a major part of a divorce settlement, and is either settled amicably by the couple and approved by the court, or settled through mediation/arbitration/trial. To determine if the couple agrees on the property division, each fills out a Schedule of Assets and Debts, and compares them to establish the level of similarity.
Alimony Payments
Alimony payments, otherwise known as spousal support payments, are payments made from one ex-partner to the other after their separation. The purpose of spousal support payments is to help the spouse with less disposable income smoothly transition into a situation where they can become self-supporting.
After the couple separates, but before the divorce is officially finalized, the higher-earning spouse may be ordered to engage in temporary spousal support, which lasts until the divorce is approved by the court system. After the divorce is fully completed, the higher-earning spouse may also be ordered to engage in permanent spousal support. For marriages lasting under ten years, which is usually the case with divorcing couples in California, the alimony payments will last no longer than half the length of the marriage. For marriages that lasted more than ten years, the length of alimony will either be decided by the couple if they come to an agreement outside of trial, or through a judge’s discretion if decided in court. The permanent version of spousal support is almost never literally permanent, but may last for an extended period of time depending on the circumstances of the marriage. A judge is much more likely to grant long-term permanent spousal support if it can be shown the lower-earning spouse missed out on real income opportunities as a result of the marriage.
Child Custody
Parents who separate, whether they be divorced or never married, must come up with a plan for their children regarding living arrangements and decision-making responsibilities. As with asset/debt division and alimony, this may be settled by the parents with court approval, or dictated by a judge if the parents cannot come to a consensus. In contested child custody cases, the judge will almost always call on the assistance of a family court mediator, a trained specialist whose goal is to help the parents come to an agreement on custody issues.
There are two classes of custody to be determined. Legal custody regulates which parent gets to make choices for their children. Physical custody regulates which parent the children will live with. Both forms of custody may be joint or sole, meaning they can be shared by the parents or controlled 100% by one parent. If you are in the midst of a child custody battle and feel you need professional assistance, please reach out to an Oceanside attorney at 619-610-7425.
Child Support
According to California law, both parents of a child are legally required to assist in the financial support of that child. This means that the divorced parent or unmarried parent who is not caring for the child on a day-to-day basis is required to send money regularly to the parent actually raising the child. The sum of money a parent owes for child support every month is set according to a guideline formula found in California’s Family Code. The main factors involved in the calculation include the sum of money each parent makes and the time each of the parents devotes to spending with the child.
A common problem encountered with child support is a failure to pay. There are a number of enforcement mechanisms used to punish a parent who fails to pay monthly child support. This parent can have their wages reassigned, driver’s license suspended, or welfare benefits revoked.
Adoption and Guardianship
While both adoption and guardianship are processes by which an adult gains custody over a minor that is not that adult’s biological child, adoption and guardianship do not involve the exact same rights and responsibilities. Generally, adoptive parents have more complete rights over their child than a guardian does.
With guardianship, the birth parents of the kid retain their given rights as parents, and can request reasonable contact with the child. With adoption, the rights of the birth parents are terminated permanently. While a court can end guardianship if it is determined that the birth parents of the child can once again look after the child, adoptive parents can never have their rights as parents revoked by the court system. Adopted children automatically receive inheritance from their adoptive parents, whereas children of guardians do not necessarily maintain that right. Guardians are supervised by the court system, and adoptive families are never supervised by the courts.
Child Dependency Law
A child dependency process is initiated when a person reports possible child abuse and/or neglect to the Department of Social Services. A social worker will then investigate the authenticity of the claim, to see whether or not the child was really neglected and/or abused. After the investigation, the social work may choose to not take action, file a petition with the court for the protection of the child, or in extreme cases the social worker will immediately take the child away from the abusive parent/parents. At this point, the social worker may place the child with the other parent if the two parents are separated, a family relative, or a foster home.
The child dependency case then proceeds to a hearing, to determine the future placement of the child. After hearing evidence and arguments from the parent, the social work, and any other relevant parties, a decision will be made by a judge to return the child to the parent, or permanently place them with the other parent, family relative, or foster care system.
Link with an Oceanside Family Attorney Near Me
Hopefully, this guide did an effective job of introducing you to some of the more common family law issues. However, it is normal for you to want to talk with somebody about the specifics of your unique individual case, in order to see where you stand. Call 619-610-7425 to speak with an Oceanside family law attorney who works with San Diego Family Law Attorney, who can provide you with a free case consultation or even serve as your legal representative if requested.
