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Family Law

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Divorce
A divorce—referred to as a dissolution of marriage—is a decree by a court that a valid marriage no longer exists. A divorce leaves both parties free to remarry. A judgment of divorce (the formal paper issued by the court) usually provides for division of property and makes arrangements for child custody and support, if applicable.

Although divorces may be emotionally contentious, most divorces (probably more than 95 percent) do not end up in a contested trial. Usually the parties negotiate and settle such things as division of property, spousal support, and child custody between themselves, often with an attorney’s help. Sometimes parties reach an agreement by mediation, with a trained mediator who tries to help husband and wife identify and accommodate common interests. The parties then present their negotiated or mediated agreement to a judge. Approval of a mediated agreement is virtually automatic if the agreement appears to meet a minimal standard of fairness.

If parties are unable to agree about property, support, and child custody, they may ask the court to decide one or more of those issues.

A threshold requirement for obtaining a divorce in most states is residency or domicile of one or both parties who are to be divorced. “Residency” refers to the state in which a person lives; “domicile” refers to the state that the person regards as “home.” Usually the state of a person’s residency and domicile are the same, but sometimes they can be different. For example, a couple may reside four months each year in the state of their “summer home,” but regard another state where they spend the rest of the year as their true home (and that state would be the state of their domicile).

Alimony/Maintenance
Alimony is a term that refers to payments from one spouse to the other spouse, for the benefit of the spouse who is receiving payment. Other terms commonly used are maintenance or spousal support; all mean the same thing The overwhelming majority of all alimony awards are from the husband to the wife, but in appropriate circumstances (such as a husband who takes care of the children and home while the wife works outside the home), payments from the wife to the husband also can be ordered. There are several types of alimony, each of which is designed to meet particular needs.

Other issues regarding alimony are:
  • Tax Aspects of Alimony
  • Criteria for Ordering Alimony
  • When Should Alimony Be Permanent?
  • Life Insurance to Guarantee Alimony
  • Health Insurance

California is a no-fault divorce state wherein, a divorce in which neither the wife nor husband blames the other for breakdown of the marriage. There are no accusations necessary to obtain a divorce—no need to prove “guilt” or “fault.” Common bases for a no-fault divorce are “irreconcilable differences,” “irretrievable breakdown,” or “incompatibility.” As those terms imply, the marriage is considered to be over, but the court and the legal documents do not try to assign blame.

Another common basis for a no-fault divorce is that the parties have lived separately for a certain period of time, such as for six months or a year, with the intent that the separation be permanent.

Premarital Agreements
A premarital agreement--also referred to as an antenuptial agreement--is a contract entered into by two people before they marry. The agreement usually describes what each party's rights will be if they divorce or if one of them dies. Premarital agreements most commonly deal with issues of property and support, describing the property and support, if any, to which each party will be entitled in the event of divorce or death.

  • Reasons for Premarital Agreements
  • Criteria for a Valid Agreement
  • Amount of Support
  • Related Documents
  • Post Marital Agreements

Child Support
The starting point for determining child support is the set of guidelines that haves been established by the state legislature or by court rule. Under federal laws passed in the 1980s, states must establish guidelines for determining child support. The guidelines were required because the federal government believed that the amounts ordered for child support had been too low and that there was too much variation in the amounts of support for children in similar circumstances.

Guidelines are formulas that consider the income of the parents, the number of children, and perhaps some other factors. The formulas are based on studies of how much families ordinarily spend on raising children.

Guidelines try to approximate the proportion of parental income that would have been spent supporting a child if the family had not been divided by divorce. Courts plug numbers into the formula and come up with an amount of support that should be paid for the child or children. The guidelines apply equally to children born to married parents and to children born out of wedlock.

Parents can argue that because of special circumstances, a court should order more or less support than the guideline amount.

  • Determining Parents' Incomes and Types of Support Guidelines
  • Departing from Support Guidelines
  • Effect of Joint Custody
  • Child Support During Summer Vacations
  • College Expenses
  • Modification of Child Support
  • Reducing Support When Child Reaches 18
  • Unpaid Child Support
  • Chart: Child Support Paid by Fathers and Mothers
  • Enforcement
  • The Uniform Interstate Family Support Act
  • Assistance in Enforcing Child Support Orders
  • Collecting Past-Due Child Support
  • Child Support and Visitation

Dividing Property
In the event of a divorce, the husband and wife generally are free to divide their property as they see fit. They may enter into what is called a marital settlement agreement. A marital settlement agreement is a contract between the husband and wife that divides property and debts and resolves other issues of the divorce. Although many divorces begin with a high level of acrimony, a substantial majority of divorces (95 percent or more) are settled by the husband and wife—with help from attorneys—without the need for a judge to divide property or decide other issues.

When the husband and wife have reached a marital settlement agreement, they can take the agreement to court, where a judge usually will approve the agreement after a short hearing. Some states with simplified divorce procedures might not even require a hearing if the husband and wife agree on everything.

Settlement agreements operate in what is sometimes called “the shadow of the law”—meaning that parties and their attorneys are aware of what a judge might do if a judge had to decide the case. It may not be possible to predict with complete precision what a judge would do, but an experienced attorney can give a range of possible results. With that knowledge, parties often prefer to reach their own agreements rather than go through the monetary and emotional expense of a trial.

  • Deciding Whether to Go to Trial
  • Separate or Nonmarital Property
  • Marital or Community Property
  • Factors Considered in Dividing Property
  • The Family Home
  • Liability for Mortgage Payments
  • Family-Owned Business
  • Information from Unhappy Employees
  • Looking for Hidden Assets
  • Pensions
  • Social Security Benefits
  • Dividing Personal Property
  • Personal Injury Awards
  • Lottery Winnings
  • Allocation of Debts
  • Modifying or Undoing a Property Division
  • Effect of bankruptcy

Custody and Parenting Time
Child custody is the right and duty to care for a child on a day-to-day basis and to make major decisions about the child.

In sole custody arrangements, one parent takes care of the child most of the time and makes major decisions about the child. That parent usually is called the custodial parent. The other parent generally is referred to as the noncustodial parent. The noncustodial parent almost always has a right of parenting time or visitation--a right to be with the child, including for overnight visits and vacation periods.

In joint custody arrangements, both parents share in making major decisions, and both parents also might spend substantial amounts of time with the child.

As with financial issues in a divorce, most divorcing spouses reach an agreement on custody before they go to court. Fewer than 5 percent of parents have custody of their child decided by a judge.

When parents cannot agree on custody of their child, the court decides custody according to “the best interest of the child.” Determining the best interest of the child involves consideration of many factors. The factors often are listed in the state’s family law or domestic relations statute as well as described in the decisions of the courts.

Other factors, along with more information about visitation and joint custody, are:
  • Preferences for Mothers or Fathers
  • Modification of Custody
  • Parenting Time or Visitation
  • Very Specific Custody and Visitation Orders
  • Joint Custody
  • Custody of the Dog / pets
  • Out-of-state Moves with the Child
  • Rights of Grandparents
  • Rights and Duties of Stepparents
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