Domestic Violence and Restraining Orders
Going through a dissolution or legal separation is difficult and can put a strain on those involved. It is not uncommon for one party to become violent and threaten, harass, or abuse the other party. Whether the abuse has been an ongoing issue during your relationship, or began after paperwork was filed with the court, it is important for a party to protect himself or herself before the situation gets worse or becomes deadly. The court allows an individual to file for a temporary domestic violence restraining order if a party fears for his or her safety or the safety of a child(ren) or family member.
Once a request for temporary domestic violence restraining order is filed, the court will make a decision on it within 24 hours. If the court grants the temporary restraining order, it will be good for two weeks, until the parties go to court for a hearing. At the hearing, the court will make a determination on whether the restraining order should remain in effect. Often times, if the restrained party objects to the restraining order, then the court will set the matter for trial so that each party can present evidence relevant to his or her case. While the trial is pending, the restraining order will usually remain in effect, unless the court feels that there is insufficent evidence to warrant it pending trial.
If the protected party is successful at trial, then the restraining order will become permanent for a period of time, not to exceed five years from the date the restraining order becomes permanent. Should the threat disappear before the end date, the protected party can petition the court to drop the restraining order. If, on the other hand, the restrained party continues the abuse or the protected party has a reasonable apprehension of fear that he or she will be harmed, the court may extend the restraining order another five years, or in limited circumstances, permanently.
Unfortunately, there are also times when a party abuses the restraining order process in an effort to gain an advantage at Court or get back at a spouse or domestic partner for filing for dissolution or legal separation. In these cases, it is important for a party to get the restraining order lifted quickly, so it does not affect future litigation. At Merus Law we can help you no matter what the situation.
Sometimes a problem will arise after a judgment for dissolution or legal separation has been entered. Maybe your spouse did not disclose all of his or her assets, or perhaps you need to modify child or spousal support because of a change in your finances or parenting plan. In many cases, it is possible to make post judgment modifications to your agreement, but it is important to contact an attorney to see if a modification is possible and in your best interests.
Prenuptial and Postnuptial Agreements
A prenuptial agreement is an agreement that is made prior to marriage. It can address many issues, including:
• Division of assets and debts should a divorce or legal separation between the parties occur
• How the parties wish to handle gifts, inheritances, or trusts that may arise during the marriage
• The way finances will be handled during the marriage
• Spousal support terms
• Issues arising from a jointly owned or solely owned business
• Administration of the separate and/or marital estate of a spouse who dies
• The handling of retirement, disability, or other financial benefits, and/or insurance coverage
Sometimes spouses may elect to enter into an agreement regarding their marital estate after their marriage. This type of agreement is called a postnuptial agreement. Postnuptial agreements are very similar to prenuptial agreements in terms of subject matter, but postnuptial agreements carry a much greater burden of disclosure for the parties. Because the parties are husband and wife when a postnuptial agreement is drafted, they have a fiduciary duty to one another, meaning that they are required to act in one another’s best interests. In order to meet the fiduciary duty, each spouse is required to fully disclose any and all information known to him/her regarding the matters contained in the postnuptial agreement. [Please be aware that, as a matter of firm policy, Merus Law does not engage in the preparation of postnuptial agreements.]
Please note that under California law, child custody and child support matters cannot be included in prenuptial or postnuptial agreements. If they are included, the Court will not uphold those portions of the agreement.
Whether you are looking to draft a prenuptial agreement; challenge an agreement for failure to disclose, coercion, or fraud; or enforce an agreement during dissolution or legal separation proceedings, an attorney at Merus Law can help.
Establishment or Termination of Parentage
In parentage cases, also called “paternity cases,” the court makes a determination of a child’s legal parents. If the child’s parents are married when he or she is born, then parentage is already established, as the law assumes that the husband is the father and the wife is the mother. The same is true for same-sex couples who are in a registered domestic partnership at the time of their child’s birth. However, if a child’s parents are not married or in a registered domestic partnership when he or she is born, then parentage needs to be legally established.
Establishing parentage means obtaining a court order or signing an official Declaration of Paternity. A voluntary Declaration of Paternity is a California governmental form that, when signed by both parents, establishes them as the legal parents of the child. This form can only be signed voluntarily and is considered invalid if either parent’s signature was obtained by force.
A properly signed Declaration of Paternity has the same effect as a court order establishing parentage for the child, but it does not require a court appearance. Instead, this form, once signed by both parents, must be filed with the California Department of Child Support Services Paternity Opportunity Program (POP) in order to be effective.
If there is a question as to whether a person is the child’s parent, then the court may order that person to undergo genetic testing to establish parentage. Genetic testing is a painless procedure in which DNA is collected from a person through their saliva. A sterile cotton swab is gently rubbed inside the person’s mouth and then sent to a lab for testing. Depending on where the test is performed and who ordered the test, there may or may not be costs to the person whose genetic material is being tested.
Furthermore, parentage must be established for a father to have any legal rights and responsibilities for his child(ren). More specifically, establishing parentage is required before the court can order custody, visitation, or child support, though these issues can be handled as part of the parentage case.
Establishing parentage is not required in circumstances where the law presumes that a person is the child’s parent. Presumed parent status occurs when:
• A man is married to the child’s mother when the child was conceived or born.
• A man attempted to marry the mother of the child, even if the marriage was invalid, and the child was conceived or born during this attempted “marriage.”
• A man marries the child’s mother after the child’s birth, and agrees to either have his name on the birth certificate or to support the child.
• A man welcomed the child into his home and openly held the child out as his own. Even if he is not the biological father, the court can find that a man is the presumed legal father of a child since he has raised the child as his own.
Sometimes a party may wish to seek an annulment of the marriage. An annulment is different from a legal separation or dissolution of marriage in that an annulment declares that the marriage is void (was never legal). An annulment can only be granted in the following circumstances:
• The party asking for the annulment was a minor at the time of the marriage, and thus was prevented them from legally consenting to the marriage. The marriage will be valid, however, if they freely cohabitated with the other party as husband and wife at any time after reaching the age of consent.
• Either spouse was still married to another person at the time of the current marriage, but the prior spouse was absent and presumed to be dead by the spouse asking for the annulment.
• Either spouse was of unsound mind, unless the party of unsound mind freely cohabitated with the other party as husband and wife at any point after coming to reason.
• Either spouse’s consent to the marriage was obtained by fraud, unless the party whose consent was obtained by fraud freely cohabitated with the other party as husband and wife after the fraud was fully disclosed.
• The consent of either party was obtained by force, unless the party who was forced freely cohabitated with the other party as husband and wife after the force ceased.
• Either party was physically incapable of entering into the marriage state at the time of the marriage, and the incapacity is continuing and appears to be incurable.
Since annulments are only granted in the specific circumstances outlined above, it is important to speak to one of our attorneys before determining whether or not you should file for an annulment.
Most people hear the term “legal separation” and assume that it is an opportunity for them to try living apart while they decide whether to proceed with a divorce. In fact, a formal legal separation involves the filing of a lawsuit much like filing a divorce petition. The process mirrors that of a divorce, except that at the end of the process you are still married. It requires spouses or domestic partners to settle all issues of their relationship, including child custody and visitation, child support, spousal support, division of property, etc. It is important to note that if one spouse does not agree to the legal separation and instead requests a divorce, then the legal separation automatically becomes a divorce proceeding. If you later wish to terminate marital status after the Judgment of Legal Separation has been entered, you must file a new Petition for Dissolution.
Unlike a divorce, there is no six month and one day waiting period to finalize a legal separation. As soon as the parties have reached settlement on all of the issues or have gone to trial, then the legal separation can be finalized. There is also no residency requirement for legal separation as there is for divorce. This means that the filing spouse does not need to have lived in California for any specific length of time prior to filing.
Finally, and possibly the most important difference between a legal separation and a divorce, is that the spouses who become legally separated are still considered married, and cannot remarry until they are officially divorced.
Dissolution of Domestic Partnership
Much of the procedure and process involved in ending a domestic partnership is the same as in a Dissolution of Marriage. If you want to end a registered domestic partnership, you must also file for dissolution of domestic partnership, legal separation, or annulment. The same is true for same-sex couples who married when it was legal to do so in California. This area of law is still relatively new and therefore presents many challenges as many other states do not recognize same-sex marriages or domestic partnerships. For example, there are more than 1,000 federal laws that factor in the marital status, and yet federal law does not similarly identify same-sex marriages or domestic partnerships. Due to these discrepancies in the laws, you may face complications regarding child custody, immigration, federal taxes, Social Security, and other types of benefits. Our attorneys can address these issues and advise you accordingly.
Division of Assets and Debts
California is a “community property state,” which means that any assets acquired or debts incurred during the marriage are considered to be community property and will be divided equally between the parties, regardless of which spouse actually purchased an item or took on a debt.
During a dissolution or legal separation, the parties will need to decide how to divide their community property. If the parties cannot decide, then the court will order a division such that each party gets 50% of the property. Debts are handled similarly and both parties are responsible for any debts incurred during the marriage, even if the other party is the spouse that actually took on the debt.
Separate property, conversely, is the sole property of the party that acquired it, and the other party has no legal rights to it. Separate property includes any assets acquired or debts incurred before marriage or after the date of separation, and any property received at any time by gift or inheritance. Thus, if a party had certain assets or debts before they got married, then those assets and debts would belong only to that party and would not be included in the division of community property.
Additionally, any income earned by either party after the date of separation is also the separate property of that party. The other party has no right to it unless child or spousal support has been ordered, or the income is earned from a joint business or community asset in which both parties have an interest.
There are certain circumstances in which a debt will not have to be paid by the non-incurring spouse, or when separate property is transmuted (“turned into”) community property. It is important to talk to an attorney about the specific property issues in your case. Our attorneys at Merus Law will advise you about the nature of your property and how to handle its division.
Spousal support, sometimes referred to as alimony, is a type of discretionary support used by the courts to maintain a standard of living for each party as close as possible to the standard of living enjoyed during the marriage. Spousal support that is awarded during the pendency of the divorce or legal separation is called temporary, or pendente lite, spousal support. Spousal support awarded after the dissolution or legal separation has finalized is called post-Judgment spousal support, and may be for a limited or permanent duration.
Temporary spousal support is awarded using a standard “Guideline” calculation, much like the calculation procedure used in determining child support. Long term spousal support, however, is largely discretionary and the court uses a set of fourteen factors (set forth in Family Code Section 4320) in determining the length and amount of post-Judgment spousal support. These factors include the length of the marriage, the marital standard of living, each party’s earning capacity and career potential, the available assets of each party, etc.
Regardless of whether temporary and/or post-Judgment spousal support is ordered, the supported party has an obligation to become self-supporting within a reasonable amount of time. How long is “reasonable” depends on the individual facts of the case, but is often related to the length of the marriage. For a short-term marriage (a marriage of less than ten years), one-half the length of the marriage is usually considered a reasonable amount of time, though this may vary depending on the other circumstances of the case. In the case of long-term marriages (marriages longer than ten years) there is a presumption of continuous support, meaning that spousal support will only end if either party dies, the party receiving support remarries, the receiving party cohabitates with another person, or further order of the court.
As explained above, the court must take into account many factors when determining how long spousal support should last. Whether you are the person paying for or receiving support, this process can be overwhelming and confusing. Our attorneys at Merus Law can help guide you through this process and review your case to make sure that no fact is overlooked and support is set at the correct amount.
Whether you were the primary wage earner in your relationship or the stay-at-home parent, you want to know that your child(ren) are provided for financially. Unless the parties reach an agreement, the court will order child support based on a calculation derived from the Family Code (commonly referred to as a “Guideline” calculation). In determining child support, the court will look at the parents’ respective gross incomes, as well as the custody and visitation timeshare. The court can also make orders regarding payments for the child(ren)’s health insurance, education, daycare, and extracurricular activities. In California, child support is payable until the child reaches the age of 18 and graduates high school, or turns 19, whichever occurs first.
If the party receiving support is on state aid, or the payor spouse is not paying child support as ordered, the Department of Child Support Services (DCSS) may get involved in the case. As a government agency, DCSS has the ability to implement collection procedures that are unavailable to an individual party.
Our attorneys can run a child support calculation for you during your consultation and give you an accurate projection of what to expect.
Child Custody and Visitation
One of the most important issues to arise during a divorce or legal separation is the issue of child custody and visitation. Parties want to know what will happen to their child(ren) as the marriage or domestic partnership dissolves.
The court addresses two types of custody when making orders — legal custody and physical custody.
• “Legal Custody” is defined as “the ability for a parent to make decisions regarding the health, education, and welfare of a child.” Legal custody is almost always joint unless one parent made decisions that are severely detrimental to the child(ten) or is mentally incapable of making decisions for his or her child(ren).
• “Physical Custody” is defined as “the parent with whom the child(ren) resides and who has supervision of the child(ren).” Determining physical custody is usually much more complicated than determining legal custody and it is often awarded on a case-by-case basis. Additionally, physical custody usually involves establishing a parenting plan or visitation schedule.
In California, the courts believe it is important for both parents to be actively involved in their child(ren)’s lives. There is no preference for mothers over fathers, or vice versa. If both parents appear to be willing and capable to parent their child(ren), then the court’s preference is to award equal physical custody to the parents. However, there are situations where a 50/50 parenting schedule is not possible or not a good idea. In these circumstances, the court has the ability to be flexible in order to do what is believed to be in the best interest of the child(ren).
In making custody orders, the parents have the ability to agree on custody and visitation without the court’s interference. The court will defer to the parents’ decisions unless one or both parents ask the court to become involved by filing a Request for Order (commonly called a “motion”). It is important to note that the process varies by county, but typically the parties will be referred to a Child Custody Recommending Counselor (CCRC) (previously called a “mediator”). CCRCs are not attorneys. They are counselors, therapists, or social workers.
The CCRC will meet jointly with the parties (except in cases involving domestic violence) in an attempt to facilitate an agreement with regard to custody and visitation. Typically it is just the parties that meet with the CCRC, however, in certain circumstances children over the age of five may be interviewed separately by the CCRC. Attorneys are generally not allowed to be present when the parties meet with the CCRC. If the parties cannot reach an agreement then the CCRC will draft a recommendation to the court stating what the CCRC believes will be in the best interests of the child(ren). The parties each have the option to agree with the recommendation at their court hearing or ask that the issue be set for an evidentiary hearing (trial) so that more evidence can be offered and considered. Pending the evidentiary hearing, the court will make temporary custody and visitation orders.
The welfare of your child(ren) is probably the most important consideration you have in your divorce or legal separation. At Merus Law, we will see to it that you are fully informed about your parental rights and assist you in taking the legal steps necessary to do what is in your child(ren)’s best interest.
Dissolution of Marriage - Divorce
California is a “no fault” divorce state, which means that the spouse that is asking for the divorce does not have to prove that the other spouse did anything wrong. To get a no fault divorce, the spouse who is filing for divorce simply has to tell the court that the couple cannot get along. In legal terms, this is a divorce based on “irreconcilable differences.” The majority of divorces in California are based on “irreconcilable differences.” A spouse can also seek a divorce based on “incurable insanity” of one of the parties, but this is less common.
In California, it is not necessary for both spouses to agree to end the marriage. Either spouse can decide to end the marriage and file a divorce petition with the court as long they meet the residency requirements. To file a divorce petition in California, you must have been a resident of the state for the six months prior to filing and a resident of the county where you are filing for at least three months. Once a divorce petition has been filed, the other spouse cannot stop the process by refusing to participate in the case, even if he or she does not want to get a divorce. Instead, if a spouse does not participate in the divorce case, the other spouse will still be able to proceed with the divorce by obtaining a “default” judgment.
Whether the divorce proceeds normally or by default, the earliest date that the marital status may be terminated is six months and one day after the Petition has been served on the other spouse. However, the divorce will only be finalized on this date if all issues have been settled. Many divorces take longer than six months to finalize so you should not rely on this waiting period as an accurate time frame for completion of your divorce.
The duration of the marriage is considered to be from the date of the marriage until the date of separation, and can have an impact on property division, spousal support, and retirement benefits. The date of separation is the date when either party realizes the marriage is over and there is no hope of reconciliation. Examples of events that mark the separation include the move-out of one of the parties, notifying friends and family of the separation, or the dividing of property.
See below for more in-depth information on some of the common issues that arise during a divorce, such child custody, child and spousal support, and division of assets and debts.
To better prepare yourself for what to expect in your situation, we encourage you to speak with one of our attorneys at Merus Law. We can provide you with a detailed analysis of your specific case and advise you how to best proceed.