Family Law

Family law is a broad area of law that governs our most intimate relationships. At its best, family law appropriately balances privacy and autonomy with fundamental fairness and the protection of the innocent. Family law is mostly governed by state law, and California has been at the forefront of some of its most groundbreaking innovations. When the stakes are high, it doesn’t make sense to handle matters on your own. You need an experienced San Diego family lawyer.

What Do Family Lawyers Do?

Family lawyers practice in a wide variety of subfields, including:

• Adoption;
• Alimony;
• Child abuse;
• Child custody;
• Child support;
• Divorce;
• Domestic violence;
• Guardianship;
• Marital property division;
• Prenuptial agreements;
• Parental rights;
• Restraining orders; and
• Related matters.

Some of the foregoing issues, such as domestic violence, might be just as properly characterized as criminal law issues.

Jurisdiction Over Divorce Cases

California has jurisdiction over a divorce proceeding if the petitioning spouse has been resident in California for at least six months before filing the divorce petition, and resident in the county where the court is located for at least the past three months. The petitioning spouse must arrange to have the other spouse formally notified of the divorce petition. Other states must recognize a valid California divorce decree.

Jurisdiction Over Marital Property Division

California has jurisdiction over property located in California. As long as California has jurisdiction over both spouses (which is not always the case), it also has jurisdiction over personal property located outside of California. California does not have jurisdiction over real property (land and buildings) located outside of California. Nevertheless, you can petition a court in that state to deal with such property in a manner consistent with the divorce decree.

Jurisdiction Over Child Custody

In child custody cases, California’s jurisdiction is subject to several federal statutes. The issue of jurisdiction can get complicated, and it definitely requires the analysis of an experienced California family lawyer. Subject to exceptions,  the child’s “home state” is California if the child has lived in California with at least one parent for at least six months before a custody petition is filed.

The issue of jurisdiction must be settled before any other matter can be addressed.

San Diego Divorce Law

San Diego divorce law is actually California state law. In other words, divorce law is the same whether you are seeking a divorce in San Diego, Sacramento, or Bakersfield. Following is a description of some of its basic features.

AnnulmentーThe Easy Way Out

An annulment is not exactly a divorce. Instead, it is a statement that no valid marriage ever existed in the first place. California recognizes two types of annulments: void and voidable.

A void marriage is considered illegitimate from the moment wedding vows are exchanged. The two grounds for a void marriage are:

• Incest; and
• Bigamy/polygamy (marriage to more than one spouse at the same time).

A voidable marriage, by contrast, is not considered automatically illegitimate. It can be voided at any time with no need to undergo divorce proceedings. Grounds for a voidable marriage include:

• The spouse seeking annulment was under 18 on the date of the marriage;
• The spouse seeking annulment had a previous spouse who had been missing for at least five years or was thought to be dead;
• One of the spouses was not mentally competent at the time of the marriage;
• Consent to the marriage was obtained by fraud;
• One spouse was forced into the marriage (a “shotgun marriage”, for example); or
• One spouse was and remains incapable of consummating the marriage, and such incapacity appears to be permanent.

Legal Separation

A court can grant a legal separation on the same terms as a divorce. The court can also issue child custody and property division orders incident to the separation. Separating rather than divorcing allows you to retain certain tax and insurance benefits of marriage.

Since California does not enforce residency requirements for a legal separation, many couples separate while waiting for enough time to elapse to meet California’s residency requirements for divorce.

Divorce

The most important feature of California divorce law is the principle of “no-fault” divorce. California recognizes only two grounds for divorce:

• Irreconcilable differences; and
• The permanent legal incapacity of at least one spouse to make decisions.

Adultery, for example, is not in itself grounds for divorce in California, and neither is domestic violence. Although this may sound harsh, all it really means in practice is that either spouse can demand a divorce, even over the objections of the other spouse, with no need to allege or prove any misconduct on the part of the other spouse.

The San Diego Divorce Timeline

Following is a general timeline for a typical San Diego divorce:

1. Prepare to file for divorce. This stage includes preliminary matters that can include everything from changing your Internet passwords to obtaining a credit card in your own name. In an amicable divorce, it can include hammering out a divorce settlement agreement with your spouse.
2. Filing divorce papers. You are likely to need a lawyer to help you with the paperwork.
3. Formally notifying your spouse. You must do this in a precise way through a neutral third party, even if your spouse already knows about it. Your spouse has 30 days to respond.
4. Your spouse’s response. Your spouse can agree or disagree with the information in the petition. One thing your spouse cannot do is prevent the divorce from occurring.
5. Temporary orders. The court can issue temporary orders, such as child support and spousal support, that apply while divorce proceedings are pending.
6. Financial disclosures. Both parties must disclose information about their property and debts, for the purpose of property division.
7. Discovery. In the discovery process, both spouses may interview the other (and sometimes third parties) under oath, and demand evidence that is in the possession of the other spouse. The discovery process is all about collecting evidence.
8. Settlement: You must settle issues such as child custody, child support, and property division. You will present this settlement to the court in written form
9. Trial: If you and your spouse cannot come to an agreement, the court will schedule a trial to resolve these issues. The court might impose a settlement if you and your spouse cannot agree, or if your settlement is unacceptable to the court (it is not in the best interest of the children, for example).
10. Post-judgment issues: You must take certain actions to comply with the divorce decree You might need to transfer property to the other spouse, for example.

The Mandatory Six-Month “Cooling Off” Period

A judge may not enter a decree of divorce until at least six months have elapsed since the date the divorce paperwork was filed and the non-petitioning spouse is notified. The purpose of this rule is to discourage impulsive divorces and to give the spouses a chance to reconcile if possible.

Marital Property Division and California Community Property Law

California is the state that pioneered the community property standard for marital property division. “It all gets split 50/50” is a popular but grossly oversimplified summary of this concept. California treats inheritances, gifts, and property owned by one spouse before marriage as the separate property of one spouse. Almost all of the remaining property is treated as marital property, with each spouse presumed to have an equal interest.

Alimony/Spousal Support

San Diego courts seek to ensure that after a divorce, each spouse enjoys the standard of living that they enjoyed prior to the divorce. This can be difficult if one spouse lacks marketable employment skills. One spouse, for example, may have devoted themselves to domestic duties such as child care, while the other spouse built a medical practice.

Alimony, also known as spousal support, is a way of equalizing a party’s standard of living by requiring the higher-earning spouse to pay a monthly amount to the lower-earning spouse. Alimony payments are typically set forth in a marital settlement agreement signed by the other spouse. If not, the court has the power to impose alimony.

Duration of support

San Diego courts enforce two types of alimonyーtemporary and permanent. Temporary alimony applies during divorce proceedings, while permanent alimony applies afterward. Alimony payments typically continue for several years after the divorce. For marriages that endured less than 10 years, alimony payments typically continue for half the length of the marriage.  There is no certain rule for longer marriages.

Child Custody and Support

When it comes to child custody and support, one legal standard towers above all others: “The best interests of the child.” A San Diego court will resolve all disputed matters through this lens, regardless of whether the parents are or ever were married.

Child Custody

California recognizes two forms of child custody:

• Physical custody (who the child lives with); and
• Legal custody (who has the right to make decisions concerning the child’s upbringing ).

Custody can be sole (in favor of one parent) or joint (shared by both parents). This system does not change regardless of whether the parents are married to each other. Although the court will attach great weight to any custody agreement between the parents, ultimately the “best interest of the child” standard prevails over any agreement between the parents.

Although San Diego courts prefer joint custody arrangements, at least with respect to legal custody, they will order sole custody when the best interests of the child demand it.

When a court awards one parent sole physical custody,  it will typically allow the other parent visitation rights. This might not be the case, however, if the non-custodial parent has a history of child abuse, domestic violence, or some other problem that would render them unfit for visitation rights.

Factors in child custody determinations

Factor involved in custody decisions include:

•  The physical and mental health of each parent;
• The parents’ respective lifestyles;
• The emotional bond between parent and child;
• Each parent’s ability to provide for the child’s needs;
• The status quo and whether certain custody arrangements would alter it; and
• The child’s preference, if the child has reached a certain level of maturity.

A San Diego family court judge may take other factors into consideration as well.

Child Support

In San Diego, the parent without physical custody pays child support, since the custodial parent already supports the child by providing food, shelter, etc. California has enacted certain child support guidelines that help courts decide exactly how much child support to assess. Courts may deviate from these guidelines if circumstances demand.

Child support obligations typically endure until the child turns 18. A court may order a longer period of support if the child is disabled. Likewise, child support obligations may end before the child turns 18 if they become emancipated by, for example, joining the military.

A parent may agree to pay more than the amount set forth in child support guidelines. Under limited circumstances, a parent may even pay less than this amount. A parent can petition the court to modify child support obligations if circumstances change. Failure to comply with a court-ordered child support arrangement, however, can result in serious penalties including incarceration.

Don’t Delay. Contact SD Law Center Immediately for Your Family Law Needs

The longer a family law problem sits unattended, the more it will tend to fester. Some problems go away on their own (a marital reconciliation, for example), but most don’t. The longer you ignore it, the bigger the problem becomes.

To maximize your chances of a positive outcome, contact the San Diego family law lawyers at SD Law Center. Call 619-752-4677 or contact us online to schedule a free initial consultation. We’re waiting to hear from you.