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Basics of California Divorce and Family Law

 


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Family law is a category of law that deals with a person’s relationships with spouses, children, and even parents. This includes marriage, child custody, child support, and property rights.

There are very few federal regulations regarding families, so most family law is applied at the state level. Like the other states, California family law is slightly unique from the others so it is important for families living in San Diego to consult with a family law attorney in California.

Marriage in California

  • Who May Marry

Anyone who is 18 or older has the right to marry without permission from parents or guardians, as well as the right to vote, make contracts and serve on a jury. Those under the age of 18 may marry if they are capable of consent, have the consent of both parents or guardians, are capable of consummating the marriage and obtain a court order granting permission. Both parties must have premarital counseling. In no case can a marriage occur between ancestors or descendants, brothers and sisters (including half-siblings), aunts and nephews, and uncles and nieces.

Common law marriage is not legal in California, but California does recognized common law marriages that are valid in other states.

The status of same-sex marriage in California is unique among the 50 state because – by court order – California legalized same sex marriages from June 16, 2008 to Nov. 5, 2008, then discontinued to do so after the passage of Proposition 8, which amended the state constitution to prohibit gay marriages. Marriages granted by any civil entity, foreign or otherwise, anytime before the passage of Proposition 8 remain legally recognized and retain full state-level marriage rights. Subsequent state legislation established that any same-sex marriages granted by other jurisdictions after the passage of Proposition 8 retain the state rights that come with marriage, except for the legal term “marriage” itself.

  • Premarital agreements

A premarital agreement is an agreement made by both parties before they are married about how to divide assets in the case that the marriage ends in separation, divorce or death. These are legally binding in the case of divorce.

  • Marriage Rights

Spouses have the right to respect, affection, cohabitation, and fidelity in the marriage. They have a mutual obligation to support one another and their children. Necessities such as food, clothing, and shelter are the responsibility of both spouses. Spouses are responsible for each other’s contracts, debts, and damages. When one spouse dies, the surviving spouse typically has the right to receive property from the deceased spouse.

Divorce in California

  • Divorce

Divorce, also known as “dissolution” is the legal termination of a marriage. At the time of filing for divorce, at least one party must have lived in California for at least six months, and be a resident of the county where the action is filed for at least three months.

A California county superior court makes the final dissolution judgment and decree. The court makes the final determination on custody, visitation, child support, spousal support and division of property if both parties cannot come to an agreement about such issues on their own. There is a six month gap between the time divorce papers are filed and a court hearing is held which terminates the marriage.

California is a no-fault divorce state. Therefore, the court cannot consider a spouse’s actions in causing the divorce when making its determination for custody, visitation, property disposition or other dissolution matters.

  • Special issues – Child Custody

Child custody is determined by the court solely on what is believed to be in the best interest of the child. There are two different types of child custody: sole and joint. Under sole custody, one parent has primary responsibility for raising the children. In joint custody, both parents share that responsibility.

There are two types of joint custody. Under joint legal custody, the children reside with one parent who makes day-to-day decisions on the child’s behalf, but both parents share responsibility for making broader decisions regarding the children (such as religion). Under joint physical custody, both parents are involved in the day-to-day decisions and children spend time (though not necessarily equal amounts) with both parents.

In any case, the non-custodial parent is usually granted visitation rights unless there is reason to believe that would be detrimental to the children, such as when the non-custodial parent has been found to be abusive. If parents cannot reach an amicable agreement, the courts will impose one on them. Visitation rights can also be granted to others with whom the child has a close relationship, such as grandparents.

  • Special issues – Child and Spousal Support

Child support is financial assistance provided to the custodial parent by the non-custodial parent under court order. Spousal support is similar except that either party can seek spousal support. In the case of either spousal or child support, if the court determines that parties are not meeting their court-ordered obligations, the court may order their employers to withhold their wages until these obligations are met. The court may even order the employer to directly pay child or spousal support before giving the employee the remainder of his/her wages.

  • Special issues – Division of Property

Most property acquired through marriage is considered community property that is owned equally by both parties. In the case of a property that can’t be split, one party is usually awarded the property but must pay half of its value to the other party. Community debts are divided equally as well.

Property that belonged solely to one spouse prior to marriage, or is a gift or inheritance given to only one party is considered separate property and stays with the party who had it originally.

If you find yourself in need of professional, compassionate advice from an experienced San Diego family law attorney or San Diego divorce attorney , please call The Edmunds Law Firm at (800) 431-2526.

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