It takes two to marry, but only one to file for divorce (dissolution). That is, parties may be divorced even though only one person may want the divorce. California is a “no-fault” state. The reason for divorce, besides issues of domestic violence, is likely irrelevant and will not be considered. To file for divorce in California, you and/or your spouse must have been a resident of California at least 6 months prior to your date of filing. The divorce process takes at least 6 months and one day from the time the Petition is served on the other party. The purpose of the 6-month waiting period is to allow an opportunity for parties to reconcile prior to finalizing their divorce and returning to the status of a single person. If your divorce is not completed after the 6 month and one day waiting period, you may request the Court bifurcate status and dissolve your marriage.
There are two different forms of custody. Legal custody and physical custody. Legal custody is the major decision-making authority of a minor child and the right to information. Physical custody relates to the physical care of the minor child or who the child lives or spends time with. Visitation is the actual schedule the parties share in connection with caring for their minor child. The Court promotes frequent and continuing contact with both parents and will make custodial orders based upon the best interests of the child.
Child Support is the money paid by one parent to the other for the benefit of the minor child. Determining the appropriate amount of child support may be based on the parties tax filing status, the number of children, the percentage of time each parent spends with the child, and the parties respective gross incomes and other factors. Generally, the Court has jurisdiction over the issue of child support until the minor child is 18 years old and has graduated high school or 19 years old.
Spousal Support is money paid to the other spouse to help maintain the standard of living established during marriage. The two most important facets of spousal support are amount and duration. The different considerations determine the amount of monthly temporary support and permanent support. Temporary spousal support is any support order after the filing for divorce and before Judgment for Dissolution is entered. Permanent spousal support is any post-judgment orders for spousal support. Temporary spousal support, usually a higher number than permanent, may be based on a computer guideline while permanent orders are based on California Family Code Section 4320 factors. Duration of spousal support is based in part upon your length of marriage. Generally a marriage of long duration (over ten years) secures an indefinite order of spousal support, where a marriage of short duration (less than ten years) is half the term of marriage.
There are many differences between a divorce and a legal separation. The parties will remain “married persons,” but issues relating to custody, visitation, child support, spousal support, division of marital property assets and debts will be determined pursuant to an agreement or Court order. After Judgment of Legal Separation, parties are still “married persons” and may not remarry or remove/cancel ongoing health and other insurances. A Legal Separation is only attainable by mutual agreement.
While divorces and annulments both return parties back to the status of single persons, annulments terminate the present and past existence of the marriage. In other words, annulments treat the marriage as if it never occurred. Annulments require specific circumstances such as fraud or misrepresentation, incest, bigamy or lack of consent.
Paternity or Parentage cases are family law matters which involve parties who have a child(ren) together and are not married. Paternity issues often involve custody, visitation, child support and, if applicable, domestic violence restraining orders.
Modification of Custody and Support Orders
There are often different considerations in connection with modifying temporary (pre Judgment) or permanent (post Judgment) orders.
Child custody and visitation orders are generally modifiable throughout the child’s minority whenever the Court finds a modification is in the child’s best interests. Each case is fact specific.
Division of Marital Property
There are three different forms of property under California law. Property includes assets and debts. Community property, quasi-community property and separate property. Community property is any and all property (assets and debts) acquired by a married person that is not separate property. Separate property is any and all property acquired by a person before marriage, after the date of separation, or during marriage by way of gift, bequest, devise, inheritance, or descent. Quasi-community property is property acquired during marriage when the parties are domiciled outside of California and the parties still maintain that property when they are divorced in California.
Temporary and Permanent Restraining Orders
Move-Away issues involve a parties request to relocate the child(ren) out of the state of California, thus significantly limiting the custody of the non-moving party. Move-away matters are some of the most difficult proceedings in family law. The governing standards and burdens of proof in move-away cases are the same as in all custody adjudications. However, move-away cases often involve professional child custody evaluations, evidentiary hearings, and a consideration of case-law factors including, but not limited to, the distance of the move, the child’s age, the relationship between eh parents and their ability to communicate, the child’s interest in stability and continuity in the custodial arrangement.
Sternberg Family Law offers mediation services to those who wish to jointly determine the parameters of their divorce (dissolution), legal separation, or parentage matter. Sternberg Family Law will assist parties in open discussion and negotiation on how they wish to transition to the next stage of their lives and that of their children. With the legal guidance of our attorneys, the parties will commence and finalize their matter in an amicable and equitable manner and without appearing in Court.
Prenuptial and Postnuptial Agreements
More and more couples who intend to marry, or enter into a domestic partnership, are interested in Premarital (Prenuptial) Agreements. Premarital Agreements give individuals the ability, among other things, to govern their rights concerning property, assets, debts, expenses and liabilities in the event of divorce. Couples who are interested in Premarital Agreements are not forecasting a breakup. They are outlining a plan to reduce the emotional and economic difficulty of a divorce by identifying and controlling their rights. Each individual must be represented by counsel to create a valid agreement. Sternberg Family Law offers services regarding the construction and review of premarital agreements.
Domestic Violence Protection and Defense
Family Code Section 6220 states the purpose of the Domestic Violence Protection Act is to prevent acts of domestic violence, abuse, and sexual abuse and to provide separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek resolution of the causes of the violence. Domestic violence is defined as abuse perpetrated against a spouse or former spouse, a cohabitant or former cohabitant, or a person with whom the perpetrator is having or has had a dating relationship, or a person with whom the perpetrator of abuse has had a child with. Abuse is not limited to actual infliction of physical injury. It is extremely important you are represented by counsel if you are requesting or defending a domestic violence restraining order. Issuance of the order may influence your prospects of custody, visitation, child support, spousal support and the ability to become gainfully employed.