What is family law?
Most people think of a family law case as a divorce case. Divorce, also known as dissolution of marriage, is a legal proceeding brought by either spouse to terminate the marriage. Along with the termination of the marriage, other issues are decided such as division of property, determination of the appropriate amount of spousal and/or child support, if any, and child custody and visitation.
However, family law is not limited to divorce cases. Also included under the general heading of family law are paternity cases, cases defending or enforcing child support provisions, domestic partnerships, as well as adoption cases.
Do I need to prove fault to get a divorce?
California is a no fault state. That means that anyone who wants a divorce is entitled to one for the reason of irreconcilable differences. Essentially, if one spouse says that they can no longer get along with the other spouse, then the court will grant a divorce.
There are, however, other grounds for terminating a marriage, which may require that the spouse claiming those grounds prove the truthfulness of the claim. These grounds are rarely asserted, and usually come about if only one of the spouses is seeking something other than a typical divorce, for example, and annulment.
Does California recognize common law marriages?
The short answer is no. California does not recognize common law marriages. If you and your partner live in a state that recognizes Common Law marriages and do not want the state to consider you as married, you may wish to consult with an attorney and create a document that would establish your relationship as unmarried cohabitants.
Here are the rules of thumb for cohabitators and those interested in learning more about common law marriages:
- Common law marriages are not licensed by government authorities.
- Common law marriages are not blessed by religious authorities.
- Common law marriages are not solemnized.
There is no public record of a common law marriage (i.e., no marriage certificate).
Cohabitation alone does not amount to common law marriage but each individual making up the couple in question must act as husband and wife in all regards.
In some jurisdictions, a couple must have cohabited and held themselves out to the world as husband and wife for a minimum length of time for the marriage to be recognized as valid.
There is no such thing as common law divorce. Only a legal marriage can be dissolved by a legal proceeding. If you are cohabitating with another individual and want to know about your rights in the termination of that relationship, consult with a family law attorney.
How is Our Property Divided?
In California, most property acquired after the marriage is considered community property, which is evenly divided during a divorce. Property obtained prior to a marriage is considered separate property. These concepts, while seemingly simple, can often become intermingled, making your future financial security subject to interpretation. This requires an attorney who is familiar with the legal intricacies to ensure your property is fairly divided.
Who gets custody of the children?
It is the policy of the State of California that there be frequent, continuous, and ongoing contact between both parents and the children. However, in most divorce cases, the court will be required to determine which parent shall be the primary custodial parent.
The standard that the court tries to use is What is in the best interest of the children? Sometimes this is an easy question to answer. For example, if one parent is in jail, then that parent will not get custody of the children. However, other times this question is extremely difficult to answer, for example, when both parents are honest, loving, caring, and responsible.
When both parents are equally fit, then the court will usually place the children primarily with the parent who has been the primary caregiver. The primary caregiver is the parent who is primarily responsible for the everyday needs of the children in other words, who feeds them, who picks them up from school, who helps them with their homework, etc.
What about visitation with the children?
Occasionally, when both parents are equally fit and each has performed a substantial care giving role, then the court may order an equal custody split. However, what will usually happen is that one parent will get primary custody and the other parent will get visitation.
Visitation is time for the non-custodial parent to spend with the children. If the parents are friendly and reasonable, then the terms of the non-custodial parent's visitation may be quite vague and/or undefined. This is because, when the parents can get along with each other, then the court does not need to specify exact pick-up and drop-off times. When the parents are not friendly, then the court will usually order specific pick-up and drop-off times so that each parent is aware of their rights and obligations.
What about alimony?
The term "alimony" is actually no longer used in California. This is because alimony means payments made by a man to his ex-wife. What is now used is the term "spousal support." This is because either spouse may be ordered to pay spousal support to their ex-spouse.
The purpose of spousal support is to attempt to maintain the spouse who earns less at the standard of living that was enjoyed by both spouses during the marriage without unduly affecting the standard of living of the spouse who earns more. For most middle income couples, actually maintaining such a standard of living is impossible, and the court will simply order an amount, if any, that will try to equalize the income of each spouse. In making such an order, the judge hearing the case has substantial discretion to determine the amount of spousal support.
In many cases, there will be no spousal support ordered because the husband and wife are both working and each making similar incomes.
What about support for my kids?
Unlike spousal support, when a couple divorces and there are children, there will almost always be an order requiring one parent to pay the other child support. In nearly all cases, the non-custodial parent will be paying some amount of child support to the custodial parent.
Again, unlike spousal support, child support is rigidly determined by a mathematical formula that the judge must use. In determining the amount of child support, the judge hearing the case has almost no discretion to determine the amount and will, in almost all cases, simply order the amount that the formula produces.
Like spousal support, child support, in many cases, is used to attempt to equalize the income of the parents in proportion to the amount of time that the children spend with each parent.
Can I still get support for my kids if I was not married?
Yes. While the type of case that will need to be filed will be different, the results will be the same. Marriage, or lack thereof, does not affect the obligation to pay child support.
However, if the parents were never married, there will be no possibility of obtaining any spousal support.
What if something changes?
California has what is known as the "changed circumstances rule." In essence, this means that if the circumstances change, then the basis for the orders has been changed, and any such orders should be changed. This rule applies to spousal support, child support, child custody, and child visitation, and any orders affecting these issues usually can be changed when circumstances change.
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