1. The ABCs of Divorce/The Court Process

2. Residency Requirements for CA divorces/legal separation

To file for divorce in California, you must have been a resident of California for 6 months and of the county in which you are filing the divorce petition for 3 months immediately prior to the filing.

There are no residency requirements for filing for Legal Separation in California. Therefore, for persons who cannot meet the residency requirements for divorce can first file for Legal Separation and later amend their Petition into a divorce proceeding once they have met the residency requirements. In situations where it is necessary to obtain custody, support and other orders from the court as quickly as possible, filing for Legal Separation first and later changing the proceeding into one for divorce may make sense.

3. Division of Property

Under California law, most property and debts of the marriage will generally be characterized as either community property or separate property.

Community Property is all real property (i.e. real estate) or personal property that you and your spouse acquired through labor or skill during the marriage (i.e. from date of marriage to date of separation). Community Property means that each spouse has a one-half interest in such property, regardless of whether property is in only one of the spouses’ names or whether only one of the parties worked during the marriage.

In addition, debts incurred during the marriage are generally considered community obligations, even if the debt is in only one of the spouse’s names. There are some exceptions to this rule, such as student loans, which are considered the separate property debt of the spouse who incurred such student loans because they also get the benefit of the education obtained as a result of such student loans.

Pursuant to California law, Community Property assets and debts are generally divided equally between the parties. However, the parties can agree to a division of property that favors one spouse over the other.

It is highly advised that any marital debts be paid off from the proceeds of the property division so that both parties can start over with a “clean slate” and also so that there is no risk that the other party may default in paying a debt that they agreed to do in the divorce. However, this is not always an option in situations where the parties have more marital debts and obligations than assets.

Separate Property is property and debt acquired prior to marriage, property acquired and income earned after date of separation, and any gifts or inheritances received before, during or after marriage. Such property is not divided in the divorce because separate property is not marital property.

In addition, Family Code Section 2640 entitles the reimbursement of a spouse’s separate property contribution of the down payment made on a community property home and any improvements made to such community property home, if you can prove such payments with sufficient documentation.

Unfortunately, property division can become complicated in situations where separate property has become commingled (i.e. mixed) with community property, such as bank accounts. Moreover, there can be situations where one spouse contends that an asset is their separate property asset while the other claims that there was a “transmutation” of the character of the property from separate into community property. Such determinations can be complicated and you are best advised to seek legal counsel to deal with those issues.

3. Legal Custody (Who Gets To Make The Decisions Concerning The Health, Education and Welfare of The Child?)

Sole Legal Custody means that one parent shall have the right and responsibility to make the decisions related to the health, education and welfare of the child (Family Code Section 3006).

Joint Legal Custody means that both parents share the right and responsibility to make the decisions concerning the health, education and welfare of the child (Family Code Section 3003). In making an order for custody concerning both parents, the court may grant joint legal custody without granting joint physical custody (Family Code Section 3085).

Family Code Section 3003 does not spell out any details of exactly what “Joint Legal Custody” entails, and so it is highly advisable that any court orders reached in your case include a detailed listing of the specific rights and responsibility of both parties as they pertain to joint legal custody. These specified rights and responsibility should include:

1. The parents must confer in making decisions on the following matters:

a. Enrollment in or leaving a particular private or public school or daycare center.
b. Participation in particular religious activities or institutions.
c. Beginning or ending of psychiatric, psychological, or other mental health counseling or therapy.
d. Selection of a doctor, dentist, or other health professional (except in emergency situations).
e. Participation in extracurricular activities.
f. Out-of-country or out-of-state travel.

2. The parent who has the physical care of the children at any given time shall have the routine decision-making rights and responsibilities during those periods of time; however, all major decisions pertaining to health, education and daycare shall be made jointly by the parents. No prior consultation is required between the parents regarding emergency medical or dental treatment, routine checkups, or minor illness. However, the other parent shall be notified immediately in the case of an emergency. A sharing of routine health information is encouraged.

3. In the event that controversy arises regarding major decisions, both parents shall first consult together and if no resolution, meet and confer with an expert in the field related to the dispute, e.g. the child’s doctor, teacher, counselor, etc. If the consultation does not resolve the dispute, the parents shall return together to Mediation at the courthouse in an attempt to reach an agreement. Finally, if the dispute continues, it shall be submitted to the Court for a decision, and until then, the existing orders shall remain in effect.

4. Neither parent shall enroll the children in activities that require a commitment from the other parent or interfere with a previously agreed upon or Court-ordered schedule without mutual approval. Parents are encouraged to attend their children’s activities. Parents are responsible for keeping themselves advised and for advising each other of all school, athletic, and social events in which the children participate.

5. Pursuant to Family Law Code § 3025, both parents shall have the same access to psychological, medical, dental and school records pertaining to their children and shall be permitted independently to consult with any and all concerned professionals. The names of both parents shall be listed on school and extracurricular cards to be contacted in case of emergency.

6. Each parent shall notify the other of the name, address, and telephone number of each health practitioner who examines or treats the children; such notification to be made within one (1) day of the commencement of the first such treatment or examination.

7. Neither parent shall submit the children to any psychological /psychiatric testing or evaluation or to any extended course of medical, dental, orthodontic, psychiatric or psychological treatment/counseling without first obtaining the consent of the other parent.

8. Both parents are required to administer any prescribed medications for the children.

9. Each parent shall be entitled to reasonable telephone communication with the children at reasonable hours. Each parent shall not interfere with the children’s right to privacy during such telephone conversations.

10. Neither party shall change the surname of the children or cause the surnames to be changed on medical, dental, school, DMV records or other legal documents without the consent of the other parent or order of the Court.

11. Either party may travel out of the State of California with the minor children.

12. Should either parent move from their current residence, they shall advise the other parent of their new address and telephone numbers within 2 days prior to the move.

4. Physical Custody/Visitation

Joint Physical Custody means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared in such a way so as to assure a child of “frequent and continuing contact” with both parents (Family Code Section 3004). In making an order for joint physical custody, the court may specify one parent as the primary caretaker of the child and one home as the primary home of the child for the purpose of determining eligibility for public assistance (Family Code Section 3086).

Sole Physical Custody means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation with the other parent (Family Code Section 3007).

”Joint Custody” means joint physical and joint legal custody (Family Code Section 3002).

Domestic Violence and Child Custody

- The Court will consider your case to be a “domestic violence case” if the Court finds that a parent committed or was convicted of domestic violence against the other parent in the last 5 years.

- Pursuant to Family Code Section 3044, if the Court makes such a finding, there is a legal presumption that the party who perpetuated the domestic violence should not have sole or joint custody of the parties’ children. Such legal presumption can be overcome and custody awarded to the parent who committed the domestic violence if it is in the best interests of the child, the perpetrator has completed a 52-week batterer’s program, not committed any other domestic violence, and has complied with any other orders of the Court.

- The full text of Family Code section 3044, which details the specific requirements that the Court must follow in a domestic violence case, are as follows: INSERT TEXT.

- Minors Counsel
- 730 Evaluations
- Supervised Visitation (professional vs. non)
- Counseling Programs (FACES, KIDS FIRST, ETC.)
- Parental Alienation
- Parenting Guidelines

- Long-Distance Visitation

With the growth of the Internet and technology in recent years, some courts have ordered or otherwise encourage visitation on the computer, known as “Virtual Visitation” in situations where one parent lives a long distance from their child. Virtual Visitation requires the households of the custodial and non-custodial parents to have newer model computers equipped with webcams or other video conferencing equipment and Instant Messaging capabilities.

Although such visitation is not a replacement or substitute to real visitation in person and not intended to support or justify a relocation or move-away of the custodial parent with the child, it is certainly a substantial improvement over the telephone because the parent and child can see each other as they speak.

The website www.internetvisitation.org is one site created with the intent to support Virtual Visitation arrangements.

Other options in addition to the old standby of regular telephone visitation can include email communications, which can allow more instantaneous communications than simply mailing a letter. These options should all be utilized so that the long-distance (or even shorter-distance) parent has regular, quality visitation with the child.

- Paternity cases

What Does Paternity Mean? Paternity means who is the father of a child. Establishing paternity refers to the legal process of determining the biological father of a child where the parents are not married. While paternity is generally legally presumed for married couples, it is not automatic for unmarried persons.

The establishment of paternity and a parental relationship is important for the father to have legal rights (custody and visitation) and legal responsibilities (child support) concerning his child. Establishing paternity is the first step in the legal process before any court can make any orders concerning custody, visitation and child support, and can be done by either signing a “Declaration of Paternity” form or filing a “Petition to Establish Parental Relationship” in Family Court.

What is a Declaration of Paternity? It is a legal form signed by both parents that states that the man is in fact the legal father. A Declaration of Paternity form can be obtained at the hospital when the child is born, or otherwise from the Family Court or your county recorder’s office. However, it does not create any court orders concerning custody, visitation or child support, which requires going to court.

Can I Cancel The Declaration of Paternity If I Later Believe That I May Not Be The Father? Yes. Either parent can cancel the Declaration of Paternity by completing and filing a “Rescission of Paternity” form (available from your county’s Department of Child Support Services or recorder’s office) with the California Department of Social Services within 60 days from the date that the Declaration of Paternity was filed. The Rescission form would need to be mailed to:

California Department of Social Services
Attn: POP Unit
C/O Data Image Systems
3062 Prospect Park Drive, Suite A
Sacremento, CA 95670

What Are The Benefits of Establishing Paternity? For the father, establishing paternity in turn establishes his legal parental rights and right to seek custody and/or visitation, allows his name to be added to the child’s birth certificate, and assures that Social Security or Veteran’s benefits are paid to his child in the event of the father’s disability or death.

For the mother, it can allow for the sharing of the financial responsibilities of parenthood, including entitlement to child support, reimbursement for birth costs, reimbursement of one-half of child care costs necessary for the mother’s gainful employment, and the sharing of the child’s medical and dental expenses.

Finally, for the child, having both parents actively involved in his or her life and receiving emotional and financial support and love from both parents is in the child’s best interests and increases the chances of a better future for the child.

5. Spousal Support

California law makes a distinction between “short-term” and “long-term” Marriages in determining the duration of spousal support payments and the jurisdiction of the court to award spousal support. For marriages less than 10 years in duration, California law and precedent maintains that the spouse obligated to pay spousal support is obligated to do so for one-half the length of the actual marriage.

However, for marriages 10 years or more, the court generally has continuing jurisdiction over the issue of spousal support and the longer the marriage, generally the prospect of continuing spousal support for many years to come.

Pendite Lite (Temporary Support)

Permanent Spousal Support: To determine the amount of long-term spousal support, the Court will consider such factors as the standard of living during the marriage, the length of the marriage, the needs of the parties, the age, health, earning capacity and job histories of both parties. CITE FC SECTION .

1. The extent to which each party’s earning capacity is sufficient to maintain the standard of living established during the marriage;

2. The contributions of the supported party to the paying party’s education, training, career position, or professional license;

3. The ability of the supporting party to pay spousal support;

4. The needs of each party based on the standard of living established during the marriage;

5. The obligations and asset, including separate property, of each party;

6. The duration of the marriage;

7. The ability of the supported party to engage in gainful employment without interfering with the interests of dependent children;

8. The age and health of the parties;

9. Any history of domestic violence between the parties;

10. The immediate and specific tax consequences to each party;

11. The balance of the hardships to each party;

12. The goal that the supported party become self-supporting within a reasonable period of time (usually one-half the length of the marriage)

13. Any criminal conviction of an abusive spouse

14. Any other factors the court deems just and equitable.

In situations where neither party needs spousal support at the moment, the Court can reserve jurisdiction to order spousal support in the future if there were any change of circumstances, such as serious illness, disability, or loss of employment.

6. Child Support

Guideline Support

California has child support guideline formula that is used in all cases to determine the proper amount of child support. Generally, the courts and all attorneys in California use one of 2 recognized computer programs based on the child support guideline formula called “Dissomaster” and “X-spouse.”

The factors considered in making child support orders are primarily the income of the parties and the amount of time each parent spends with the minor child. However, other factors that can be considered include any itemized deductions the parties can claim on their taxes, medical insurance premiums paid each month, and any mandatory retirement payments and union dues for individuals whose employment requires them to be part of a union and to contribute to a deferred compensation retirement plan (i.e. a pension).

In addition to the basic monthly child support, the court will generally also order that the parents equally share the costs of childcare expenses necessary for the custodial parent or both parents to work, as well as any medical, dental, and vision expenses for the minor child not covered or reimbursed by medical/dental/vision insurance.

Child support can also include expenses for the special needs of a child, such as tutors or other services, as well as the transportation costs for visitation of a parent.

Finally, the Court generally orders that both parents keep their child medically insured with medical insurance if it is available at no cost or at reasonable cost to both parents.

Child Support is generally paid until the minor child reaches the age of 18, or age 19 if they are still a full-time high school student at age 18, unless the minor child dies or becomes emanicipated prior to becoming an adult.

Child Support orders can be modified if there is:

1. A significant increase or decrease in either parent’s income;
2. A change in custody or the amount of time the child spends with each parent; or
3. Any other change that would affect the child support guideline calculations.

- DCSS cases (process)

Generally, each county in California has a Department of Child Support Services (DCSS) governmental agency designed to either establish, enforce, or modify child support support orders.

There are 2 types of cases opened by DCSS: Public assistance (i.e. Welfare) and Non-Public Assistance. If you receive public assistance, you have automatically assigned to DCSS or the State of California your right to receive some or all of your current and past-due child support. In other words, you may be receiving Public Assistance but the agency from whom you are receiving such assistance will go after the supporting parent to get reimbursement for such assistance.

For Non-Public Assistance, you can open up a DCSS case to establish a child support order (generally in situations where non-marital parents are involved) or to enforce a child support order made in a divorce or legal separation case. The benefit of opening a DCSS case to enforce a child support order is that DCSS is part of a statewide and sister-state system of support enforcement and DCSS has powers of enforcement that include suspension of the supporting parent’s driver’s license and professional licenses, interception of state income tax refunds, etc., at no cost to you. Although DCSS deals with huge numbers of cases, the circumstances of your case may be such that opening a DCSS case is advisable once your attorney has established a child support order against the other parent.

- Wage Garnishments
- Health Care Costs
- Child Care Costs
- Paternity Cases

7. Tax & Financial Considerations

- Spousal support deductibility

Spousal support is generally considered under state and Federal law to be tax-deductible to the spouse who is paying such support, and is reportable income to the spouse who receives such income.

- Child Support deductibility

Child support is generally considered under state and Federal law to NOT be tax-deductible to the spouse who is paying such support, and so the spouse receiving such support does not have to report such support as income on his or her tax returns.

- Custodial Parent Entitled to dependency exemption for children unless waived

Generally, state and Federal law states that the parent who has at least 51% custodial timeshare has the right to claim the minor children as dependency tax exemptions on their income tax returns.

However, that spouse can waive such right and give the noncustodial parent the right to claim the children as exemptions, but it is advisable to have such waiver in written form. In situations where the non-custodial parent earns a much higher-income, giving the child tax exemption to that parent who will benefit much more by such exemptions may be a good faith gesture, but it is advisable to seek more support than what the non-custodial parent would have been liable to pay in exchange.

- Sale of Marital Residence

[a] I Want to Keep The Marital Home-Is That A Good Idea? You must first take a realistic assessment of whether you can afford the costs to maintain the expenses associated with the home on your own, including the mortgage, property taxes, utilities, and maintenance costs. You will have to make such payments on one income instead of two, and if you are the spouse that will be responsible to pay child and/or spousal support, your post-marital expenses will be even higher.

In addition, your spouse is likely entitled to one-half of the equity in the marital home as part of his community property share. If you wish to keep the house, then the property will need to be professionally appraised to determine the fair market value of the property, minus the mortgage and any home equity loans on the property. In addition, if either spouse contributed any separate property funds (i.e. generally, money that the spouse had prior to marriage) towards the down payments or for improvements to the property, Family Code section 2640 states that such spouse is entitled to reimbursement for such down payment or improvements first prior to any community property division of the remaining equity.

So, if you chose to keep the property, your option is generally to refinance the mortgage in your own name to pull out one-half of the equity in the property to pay off the other spouse’s interest in the property. It is prudent to get pre-qualified for a new mortgage that is, in reality, 50% larger because of the buyout of the other spouse’s interest, to see if you qualify and also if you can handle the new mortgage without losing sleep at night. This is where child support and spousal support can come into play, because if there are court orders in place for such support, a lender will generally view such monetary “income” streams in qualifying you for a new mortgage, if it is likely to continue for at least 3 years.

If you are the spouse leaving the home, you want to have written assurances that the other spouse will remain current on the mortgage until the property is refinanced in that spouse’s name alone, at which point you would quit-claim the title to the property to that spouse as their own. In certain situations where the other spouse may not be able to readily refinance the property in their own name, you can contact your mortgage lender and request to do a “Qualifying Name Delete Assumption,” wherein your name would be deleted from the existing mortgage obligation.

Remember that selling your home is always the last resort if these options are not available.

[b] My Spouse Wants To Keep The House Until the Children Graduate High School-Is That A Good Idea?

Trying to keep the marital house for the sake of the children is admirable and generally intended to be in their best interests, particularly during the instability of divorce and the adjustment of their life thereafter.

However, there are real considerations that have to be weighed in order to determine whether it is wise to enter into such agreement. First, you may have difficulty in qualifying for a new property you wish to purchase since you will be listed as a borrower under the existing mortgage for the marital property, thereby affecting your debt ratio that lenders use in qualifying borrowers.

Second, if the spouse remaining in the house makes late payments on the mortgage or defaults on payments, your own credit will also be detrimentally affected and seriously affect your credit score which in turn will affect your ability to borrow or lease anything in the future.

Finally, you will need to have a clear written understanding of what each spouse will be entitled to years from now after Junior has graduated from High School and now the time has come to sell the house. After all, should the spouse that did not keep the house still be entitled to one-half of the equity in the property at the time of sale, or at the time of the divorce? Having a clear agreement is vital to avoiding future, costly problems in how to divide a property sold years after the divorce was over.

[c] What Are The Tax Implications For Selling The Marital Residence?

Under current Federal tax law, if you have lived in the same house for two of the last 5 years as your principal residence, individuals are exempt from capital gains taxes of up to $250,000 in taxable profits on the sale of your house, and $500,000 in taxable profits for married couples. For any profits above these amounts, capital gains taxes are assessed of 15% would be assessed, which married couples would be equally liable for.

There are occasions where one of the spouses involved in a divorce wishes to “bifurcate marital status” while their divorce is pending, meaning that the Court can restore the parties to single persons while the rest of the dissolution case is still pending. For example, one of the spouses may wish to remarry, and they cannot legally do so without first terminating their marital status. However, the parties must first determine the approximate amount that their residence has appreciated in value since they bought it, because if one spouse decides to keep the marital residence and marital status has previously been determined, that spouse would be considered a single person for purposes of state and Federal tax laws and thereby only be entitled to the $250,000 tax exemption instead of the $500,000 tax exemption. The tax implications are be substantial and should be considered in any settlement negotiations.

- Estate Planning/Life Insurance:

After divorce, a review and change in the wills, estate plans, and life insurance of the the parties that was in effect during the marriage is vital, as generally the parties would prefer that their children and not their former spouse receive their inheritance or life insurance proceeds. Where substantial assets, children or family business are involved, such review and change is vital.

- What to Consider when Contemplating Divorce

Be sure that you have established your own credit in your own name, including at least one credit card in your name alone or even a small loan through your local bank or credit card. It is very important to have your own credit history, because you will likely want to buy a new vehicle or home in the future after your divorce is final.

Inventory all of your assets, including real estate, vehicles, household furnishings, furniture, jewelry, artwork, and other items. Videotaping the assets in the house and storing the recording in a secure place is highly advisable. Determine a fair market value of all assets that can assist in any future division of property.

Determine what debts and obligations you and your spouse have, including mortgages, equity lines of credit, car loans/leases, and credit card debts. Remember that debts incurred during the marriage, even if in the name of only one of the parties, is still generally considered community property debt for which both of you will be equally responsible for. Obtain a credit report for you and your spouse to determine whether there are any debts that you are unaware of.

Make a copy of all financial records available to you, including income tax returns. If your spouse has their own business, it is extremely important that you have a copy of all financial records for the business, including invoices, bank statements, receipts, account receivables, etc., because self-employed spouses oftentimes claim during a divorce that they earn a much lower income than they actually do.

Do NOT purchase or lease any real property or vehicles, or secure any credit lines for you and your spouse in your name alone because your spouse may have bad credit, even if you can afford the payments together. In a divorce, what incentive will your spouse have to make the payments if the loan or lease is in your name alone? NONE! You will potentially be stuck with making the payments at a time when you may not be able to afford to do so on your own. As a result, you could be left in the difficult position of having to default on such loans and seriously damaging your credit score in the process.

Seek legal advice from a family law/divorce attorney long before filing for divorce. Knowing your legal rights and learning how the divorce process works is vital knowledge to have prior to proceeding with divorce. Unfortunately, many people move out of the marital residence and only later do they seek legal advice without having determined what course of action is in their best interests. Although many family law attorneys offer free consultations, do not let that be the determinant of which attorney you consult. You are much more likely to obtain complete legal advice if you compensate the attorney for his or her time, and the relatively modest expense will likely save you much more money in the future.

- What to Do when Divorce is to Proceed

Unless you truly believe that there will be absolutely no disagreement between you and your spouse on any issue concerning your divorce, it is advisable to obtain competent legal representation with an attorney you feel comfortable being able to communicate regularly with. After all, you and your attorney need to work together as a team. Your divorce attorney will work towards an amicable divorce, if possible, while protecting your best interests.

If you have liquid assets (such as money in joint savings and checking accounts), withdraw one-half of such assets (i.e. which represents your community property interest) and deposit them into a new bank account in your own name if you believe that there is a risk that such accounts will be drained by your spouse once he or she is served with the divorce paperwork. However, be sure to advise your spouse of the withdrawal.

Close out or otherwise “freeze” all joint credit cards and lines of credit. Although debts incurred after date of separation are generally held to be the responsibility of the spouse who incurred them and the Family Law Court can ultimately resolve any such disputes, credit card companies do not care whether there is a pending divorce case---they only care whose name is on the credit card account and they will proceed with collecting what is owed to them. By closing out or freezing joint credit cards and lines of credit, you can avoid months of stress and collection efforts by these companies while your divorce is pending. Put the creditors on notice by following up with letters to creditors that you will not continue to be responsible for your spouse’s debts.

Attempt to work with your spouse to reach settlement of your property division and concerning your children. If both of you are represented by attorneys, an informal settlement conference can be scheduled to work towards resolution of some, if not all, of the issues. In the end, you will save money and avoid leaving decisions up to the Court to make.

However, negotiation requires that both parties be reasonable and reach a compromise that both parties can live with. If your spouse is unreasonable, intimidating, threatening, or otherwise unwilling to compromise, your attorney will fight for you in Court.

If you and your spouse are able to reach a complete Marital Settlement Agreement on property asset/debt division issues, consult with your tax advisor to determine whether there are any tax implications to consider from such division before executing the Agreement.

You should also consult with several competent financial consultants prior to even negotiating a Marital Settlement Agreement to determine your options and what is best for you in dividing the marital assets. For example, you may want to keep the marital home and buy out the other parties’ interest in the property. Another situation may be that there is a community business and your spouse wants to buy out your interest in it. However, that may or may not be in your financial best interests to keep the house or to receive a lump sum buyout of the community business, and there may be other options that may be more financially prudent for you.

- What to Do After Divorce (Change estate plan, etc.)

Review and revise your estate plan, including your will. If you had a revocable living trust with your ex-spouse, you should obtain one for yourself and revoke the prior one with your ex-spouse.

Change the beneficiaries on any life insurance and retirement policies to your children or others in place of your ex-spouse.

Consult with a tax consultant concerning your new financial circumstances. If you have physical custody of your minor children for more than 50% of the time, you generally get to claim the children as tax exemptions on your tax returns (unless you and your spouse reached a different agreement in the judgment). If you are receiving child and spousal support from your ex-spouse, remember that child support is not tax-deductible so you do not have to claim such support on your tax returns. However, spousal support IS tax-deductible, and is considered as compensation by the IRS which you must claim on your tax returns.

- What to do Before Remarriage

Seriously consider a Prenuptial Agreement if you have significant assets, or you are involved in family business. The first time around in marriage, most people marry young, have no money or assets, and have absolutely no idea what the laws are concerning marriage. The divorce rate is over 50% overall, but is even higher for subsequent marriages. Therefore, a Prenuptial Agreement is wise and prudent with those odds. Moreover, this time around, why not have the financial aspects of marriage dealt with upfront, so that hopefully you and your new spouse can concentrate on the romance of your marriage and hopefully avoid the problems and pitfalls of your first marriage in the process. Marriage and romance over the years is challenging enough without financial stress, so why not make efforts to reduce or eliminate the potential to argue over money issues when both parties can agree and understand the financial agreement from the start.

8. Stepparent Adoptions

In a stepparent adoption, one biological or legal parent retains custody control of the children, with the stepmother or stepfather of the child seeking to adopt the child.

Stepparent adoption cases are filed in Probate court, not Family Law court. An investigation case file is opened after the initial paperwork has been filed with the court and a Court investigator will be assigned to file a report with the Court within 90 days following the interview and a visit to the adopting stepparent’s residence.

Children that are at least 4 years of age should be advised by the parent and stepparent that the stepparent is requesting that the Court grant his or her request to adopt the child. The investigator will interview the child regarding his or her understanding of the adoption and what he or she wants. California state law requires that children 12 years and older must give written consent for the adoption.

Upon completion of the investigation and filing of the investigation report with the Court, the next step is to request and obtain a hearing date with the Court. The court will require written proof of the consent of the other parent married to the stepparent, proof of consent (or death) of the other biological parent, and proof of service on the other biological parent before setting a hearing date.

At the adoption hearing, the child to be adopted must be present in Court at the time of the hearing. The hearing is basically a formality for the Court to grant the stepparent adoption that has essentially been pre-approved by the time of the hearing.

9. Grandparent Rights

10. Prenuptial Agreements

Why Get A Prenup?

Enforceability of Premarital Agreements California Family Code section 1615 addresses the enforceability of premarital agreements and states that:

A. A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:

1. That party did not execute the agreement voluntarily. 2. The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:

a. That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.

b. The party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.

c. That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

B. An issue of unconscionability of a premarital agreement shall be decided by the Court as a matter of law. (DEFINE UNCONSCIONABILITY).

C. For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the Court finds in writing or on the record all of the following:

1. The party against whom enforcement is sought was represented by an independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.

2. The party against whom enforcement is sought had not less than 7 calendar days between the time that the party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.

3. The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information.

4. The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud or undue influence, and the parties did not lack capacity to enter into the agreement.

5. Any other factors the Court deems relevant.

DOMESTIC VIOLENCE

If you have been the victim of domestic violence, you can seek orders from the Court to protect you from such violence or threats of violence at the hands of a family member or someone you date or live with, by filing a Temporary Restraining Order with the Court.

You can generally obtain an emergency Temporary Restraining Order the same day as requested. Such orders can order the perpetrator of the domestic violence to stay 100 yards away from you, your home, your vehicle, and your place of employment. The order can also order the perpetrator to move out of the house temporarily and to not have any contact or communications with you of any kind. Finally, the Court can make temporary orders regarding child custody and visitation of the parties’ children, and payment of bills and child support under the Temporary Restraining Order.

If the Court grants the request for a Temporary Restraining Order, the Court will schedule an Order to Show Cause hearing within 21 days thereafter, and the temporary restraining order will only be effective until the next hearing. The purpose of the Order to Show Cause hearing is to give the perpetrator the right to respond to the allegations and for the Court to determine where the restraining order should be continued for up to 3 years.

The restrained person must be personally served with a certified copy of the emergency Temporary Restraining Order granted by the Court which provides notice of the Order to Show Cause hearing.

CALIFORNIA’S “SAFE AT HOME” CONFIDENTIAL ADDRESS PROGRAM

On January 1, 2007, a confidential mail-forwarding program administered by the California Secretary of State’s Office called “Safe At Home” took effect to protect victims of domestic violence.

The program allows such victims to escape abusive spouses and partners by providing a level of anonymity regarding their home address.

The Safe At Home program gives the victim an official, substitute address to use in place of their home address. All first-class mail, legal documents and certified mail are received by the offices of the Secretary of State and forwarded onto the victim, thereby keeping your residential address confidential.

In addition, you are able to register as a confidential voter and suppress your DMV records, thereby helping to insure that your home address will not be made public.

For most people, this mail forwarding service is free. Professional, including doctors, are only required to pay a small fee for this service.

To sign up, you…………