Practice Areas

SADDLEBACK LAW CENTER
EXCLUSIVELY PRACTICING FAMILY LAW

Divorce, Annulment, Legal Separation, Uncontested and Simple Divorce
Child Custody and Visitation 
Child Support, Spousal Support
Domestic Violence and Restraining Orders
Marital Property Settlements and Distribution
Paternity Actions
Post Judgment Modifications


Divorce, Annulment, Legal Separation, Uncontested and Simple Divorce

Divorce 
California is a “No Fault State,” meaning it does not matter what happened, or who did what to cause the divorce, so long as a party seeks to end a marriage, the court, after a series of steps will grant that request. All the community assets and debts are divided between the parties equally and in case of child custody and visitation, the court will always consider what arrangement is in the best interest of the child.

Legal Separation
Even though legal separation in California is based on the same grounds as divorce, a judgment of legal separation does not terminate marital status of the parties. It is an alternative to divorce and is generally pursued where the parties for religious or other personal reasons do not want the legal status completely cut off.

One very common reason to seek a legal separation is to maintain eligibility for medical insurance that would otherwise be lost by termination of the marriage. A legal separation proceeding is similar to any marriage termination proceeding in that a judgment of legal separation resolves the issues of support, custody/visitation and community property rights and obligations under the same standards and in the same manner as a judgment of divorce. Unlike divorce, a judgment of legal separation leaves the marital status intact and the parties remain married in name only, without the rights and responsibilities of a married couple. The parties to a legal separation action cannot enter into a new marriage unless the existing marriage is dissolved by death or divorce.

Annulment 
A marriage could be annulled when validity of the marriage is uncertain. Following are some of the grounds to obtain a Judgment of annulment:

Incest: A marriage between parents and children, ancestors and descendants of every degree, brothers and sisters (of the half or whole blood), or uncles and nieces or aunts and nephews is incestuous and void from the beginning.

Bigamy: A subsequent marriage is illegal and void from the beginning if either party has a spouse still living.

Minority of A Party: The party who commences the nullity proceeding was under the age of lawful consent (under age 18) when entered into the marriage and did not obtain the requisite parental/court consent unless, after reaching age of 18, the party "freely cohabited with the other as husband and wife."

Unsound Mind: Either party was of "unsound mind" (unable to understand the subject matter of the marriage contract and obligations) unless, after coming to reason, he or she "freely cohabited with the other as husband and wife."

Force: Either party's consent to the marriage was obtained by "force," unless the coerced party thereafter "freely cohabited with the other as husband and wife.”

Physical Incapacity: Either party was "physically incapable" of entering into the marriage state (unable to engage in normal copulation), and such incapacity continues and appears to be "incurable."

Fraud: Either party's consent to the marriage was obtained by "fraud," unless the defrauded party after discovering the fraud, "freely cohabited with the other as husband and wife.”

Child Custody and Visitation
The courts have the power to make a determination about custody and visitation of a minor child and must be guided by several basic statutory principles. Paramount among these policy considerations are Safety & Welfare of the child, and Frequent and Continuing Contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship. This is to encourage parents to share the rights and responsibilities of child rearing, except where the contact would not be in the child's best interest.

The court must consider several factors in making custody awards in contested cases. The court always takes into consideration the best interest of the child and in making the "best interest" determination, the court can consider any "relevant" factors which some are listed below:
  1. History of physical abuse by one parent or any other person seeking custody or the current spouse against the child, but allegations of physical abuse must have "substantial independent corroboration" . . . including, but not limited to, written reports by law enforcement agencies, child protective services, etc.
  2. Certain violent crimes restrict custody or unconditional visitation awards. A registered sex offender or any child abuse conviction would fall into this category.
  3. Child conceived by rape would without exception prohibit any visitation with respect to a child conceived by that act of rape, and the same applies to the first degree murder of the other parent, unless the court finds there is no risk to the child’s health, safety, and welfare and states its reasons in writing or on the record.
  4. History of drug and alcohol abuse which would be habitual or continual illegal use of controlled substances or continual abuse of alcohol.
  5. Stability and continuity of environment: Although not reduced to express statutory terms, a significant component of the "best interest" assessment is the policy goal of protecting a stable custody arrangement.
  6. Separation of siblings: California policy affords strong protection to sibling relationships. Absent compelling circumstances, such as extraordinary emotional, medical or educational need, an order separating siblings between custodial households ordinarily will be reversed as detrimental to the children's best interest.
  7. Child's Wishes: The court must "consider" and give "due weight" to the wishes of children who are of "sufficient age and capacity to reason so as to form an intelligent preference as to custody."

 


Child Support

All minor children of the parents, whether natural or adopted, or born during marriage or out of wedlock, are owed a statutory duty of support. The obligation is not tied to the existence of a marriage. In determining the appropriate amount of child support all California courts must adhere to the "statewide uniform child support guideline" and may depart from the guideline only in the special circumstances. The guideline formula for computing child support is stated algebraically in (California Family Code § 4055(a)). You could also visit the California Department of Child Support Service at:

http://www.childsup.ca.gov/Resources/CalculateChildSupport.aspx to use their online calculator to determine the amount support.


Spousal Support
A spousal support or alimony award is not mandatory in dissolution or legal separation proceedings in California. To the contrary, courts have discretion to deny spousal support altogether or to limit it in an amount and duration that reflects the ability of both parties to provide for their own needs.

In exercising their broad discretion on the question of spousal support, trial courts must consider and weigh several factors prescribed by California Family Code § 4320. Following is a list of these factors:
  1. Ability to maintain marital standard of living in light of earning capacities.
  2. Contributions to other spouse's education, training, etc.
  3. Supporting spouse's ability to pay.
  4. "Needs" in light of marital standard of living.
  5. Parties' assets and debts.
  6. Duration of marriage.
  7. Employability of custodial spouse vs. impact on children.
  8. Age and health of the parties.
  9. History of domestic violence.
  10. Tax consequences.
  11. Relative hardships.
  12. Goal of self-support.
  13. Spousal abuse conviction (mandatory factor for support reduction/termination).
  14. Other "just and equitable" factors.

Domestic Violence and Restraining Orders
Although women are mostly victims of domestic violence, however lately men too have been coming forth and seeking help from our justice system to protect themselves and their children from an abusive spouse. Regardless of gender of the victim, domestic violence is not something anyone should endure and suffer. Aside from physical harm, domestic violence could leave lasting emotional scars on the victim and the children in an abusive and violent household. While obtaining a temporary restraining order which generally lasts about three weeks, may not be that difficult, but obtaining a long term restraining order may be challenging as the victim has to properly present her/his case and prove to the court that protection from the abuser is necessary to ensure the safety and welfare of the victim and the children.

On the other hand, in some occasions the allegations of domestic violence are false and the accused person must aggressively defend against such accusations. A domestic violence restraining order against someone could have a big impact, as it may result in the loss of job, loss of prospect of future employment as some employers routinely conduct a background check in order to continue employment of an employee, or offer a job to begin with. In addition, a restraining order (CLETS) is entered into most if not all law enforcement agencies database in order to alert the officers that they are probably dealing with a violent person and to take extra safety precautions in case they confront that individual.

Whether you need a restraining order or you have been falsely accused of domestic violence, consult with an experienced family law attorney to find out about your legal rights.

Marital Property Settlements and Distribution
Sometimes a couple comes to the conclusion that their marriage is no longer working and they need to go their separate way and since there is little or no animosity between them they choose to resolve all issues amicably, with least amount of stress and expense. Under these circumstances and prior to taking any formal steps to start the divorce process, the parties reach a general agreement about custody, visitation, support, and division of marital assets and debts. Every so often they have a dispute about some issues which they then consult with an attorney to see what their legal rights are, and who would be entitled to what. Once all the issues have been resolve, then the agreement is reduced to a legally binding document and then it is filed with the court along with other documents to finalize the divorce. This is the most cost effective and least stressful way of ending an unhappy marriage.

Paternity Actions
This action is for determination of child support, visitation, custody, as well as paternity of a child who has been born out of wedlock. In most cases, both parents sign the Voluntary Declaration of Paternity and file it with court admitting that they are the legal parents of the child who is the subject of litigation. In these cases, parties either agree to child support, visitation, and custody and reduce their agreement into a binding legal document and file it with the court, or if the parties cannot reach an agreement then one party petitions the court for resolution of issues in dispute.

In some cases the father denies having fathered the child either to avoid paying child support, or he honestly believes that he is not the father. However, in other cases, the mother denies that the man is the father in order to prevent father from having any contact with the child or some other reasons. In either case, parties must seek court’s assistance to determine paternity.

Post Judgment Modifications
After the final Judgment of Dissolution or other orders are entered, either party can petition the court to modify certain orders, such as custody, visitation, child and spousal support. Generally, there has to be some change in the circumstance and in case of modification of visitation and custody the change has to be “Substantial.”

If a parent wants to change an existing court order and the other parent won't agree to the change, he or she must petition the court and show the change in circumstance that would justify a modification to the existing order. This requirement encourages stability of arrangements and helps prevent the court from becoming overburdened with frequent and repetitive modification requests.
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