Family Law Overview

Family law touches most people at least once in their lives. When getting married or dissolving a marriage, reaching adulthood or having children, people need to be aware of how their legal status changes and what their rights are. Most family law is state law; there is very little federal regulation of families. Each state has the authority to regulate certain conduct relating to families within its borders.

California Marriage

In order to be entitled to spousal rights and to be bound by spousal obligations in California, people must be legally married. Common law marriage is not legal in California; however, California does recognize common law marriages that are valid in other states. In fact, California is obligated by the Constitution of the United States to give full faith and credit to any marriage recognized by any other state. Legal marriage in California requires obtaining a marriage license and exchanging vows before an official authorized to formalize the vows.

Officials authorized to conduct weddings include judges, magistrates, and licensed religious officials. The exchange of vows must be witnessed.

Prenuptial / Premarital Agreements

A premarital agreement is an agreement between parties made before they are married regarding property rights when the marriage ends. The issues covered by a prenuptial usually include the rights and obligations of the parties in property (including the right to encumber, exchange, sell, transfer, and use property) and the disposition of property upon death, separation, or dissolution of the marriage. Premarital agreements made in California are valid and enforceable if they are in writing and signed by both parties and are not the product of coercion or duress.

Termination of Marriage

Dissolution--also known as divorce--is the legal termination of a marriage. A marriage is dissolved by a judgment and decree issued by a California county superior court. If the parties cannot agree on custody, visitation, child support, spousal support, and the division of property, the court will decide these issues.

At the time of filing for divorce, at least one of the parties must have been a California resident for six months and a resident of the county where the action is filed for three months. Once one spouse files the dissolution papers, the petition for dissolution and the summons to appear in court must be served on the other spouse. After the papers are served, the parties must wait at least six months before either party can request the court for a judgment terminating the marriage.

Grounds for Divorce

California was the first state to have a no-fault divorce law. Under this law, the parties must show only that there are irreconcilable differences in the marital relationship. This means the couple cannot work out their problems, even with counseling. Because divorce is no-fault, a court cannot consider either spouse's fault in causing the divorce when making its determinations of custody, visitation, or other dissolution matters. Incurable insanity also is a ground for divorce under California law, but this ground is infrequently used.

Effects of a Dissolving of Marriage

People who are going through a divorce may agree with one another on how to handle many of the issues that arise. Matters on which the parties disagree, however, must be decided by a court. Court-ordered guidelines generally include instructions on child custody, visitation rights, child support, spousal maintenance, and division of marital property.

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: sole custody and joint custody. Sole custody gives one parent primary responsibility for raising the children. In joint custody, both parents share that responsibility. If the parents have joint legal custody the children reside mostly with one parent, known as the custodial parent, who is responsible for the routine decisions affecting the children, but both parents share the responsibility for making important decisions regarding the children. If they have joint physical custody, both parents are involved even in the day-to-day decisions affecting their children, and the children spend time with both parents, although not necessarily an equal amount of time with each.

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 make child visitation agreements themselves, but if a friendly agreement cannot be reached, the court sets a schedule for visitation, or it orders that the non-custodial parent be allowed reasonable visitation. Certain other people who have close relationships with the children, such as grandparents, also may be allowed some form of visitation.

Child Support

Child support is financial assistance provided by the non-custodial parent under a court order to help support the children. Factors affecting the amount of child support include the needs and income levels of the parents, the children's needs, and the number of children. Child support is an independent obligation and must be maintained despite any other problems between the parents, such as disagreements about visitation. A recently enacted federal law requires employers to withhold wages from employees who are under a court order to provide child support. In California, some courts have ordered the employer of a parent who is required to pay child support to make the payment directly to the other parent out of the employee's salary.

Spousal Support

Spousal support is financial support provided by one ex-spouse to the other. Either spouse may seek spousal support. Factors that a court evaluates in setting spousal support include the standard of living enjoyed during the marriage, the relative incomes or earning potentials of the parties, and the needs of each party. Spousal support may be either temporary or permanent. If neither party needs spousal support at the time the marriage is dissolved, the parties may request to reserve judgment on this issue. This means that if a party's needs change later, he or she may go back to court and request a court order of spousal support. Like child support, spousal support must be maintained despite any disagreements between the ex-spouses, and sometimes employers may be required to pay the support directly out of an employee's paycheck.

Property Division in California

Courts attempt to divide marital property on a fair, although not always equal, basis. Most property acquired by either spouse during the marriage is community property, including real estate, furniture, appliances, vehicles, cash, life insurance policies, retirement accounts, stocks, and businesses, as well as debts. One-half of all community property is owned by each spouse. At the time of dissolution, this property is divided equally, unless both parties agree in writing to divide it unequally. In the case of a business or another kind of property that cannot be split, the court will award the property to one spouse and order that party to pay the other for the lost interest in the property. Community debts must be divided equally between the parties as well. Property belonging solely to one spouse prior to the marriage, or a gift or an inheritance given only to one spouse during the marriage, is separate property. Separate property stays with the party who had it originally and is not included in the division of marital assets.

Finding a Good Divorce Attorney

Family Law attorney, Jonathan Chance, at JC Law Offices knows how important these issues can be. Attorney Chance has represented clients from all over the bay area. His office is centrally located in San Mateo, California. You may call, email, or FAX him via the contact information.