It's important to consult an experienced family law attorney in Los Angeles county for your legal needs, because Family disputes are like fingerprints - each one is different.
Whether it's a divorce, child support, an addoption or hammering out a legal custody agreement.
Family law regulates the legal relationships of people who are connected to each other by marriage, civil unions, family and relations.
Are you having legal issues regarding marriage, adoption, divorce or seeking custody of your children? We focus much of our practice on family law, so we can guide you through the challenges you face, no matter what they are. We can help to ensure that in the event of a divorce, your legal rights remain secure.
If you are considering an annulment do not wait to seek legal advice. Contact us today about your potential annulment so you can receive advise about your legal rights and options.
Overview of a Divorce in California
The breakdown of a marriage is likely one of the most stressful times in a person's life, and divorce is a daunting task to undertake alone. An experienced California family law attorney from Malhotra & Malhotra, can guide you, professionally yet compassionately, through this often difficult time. If you are contemplating dissolution of marriage, call Malhotra & Malhotra today.
Many individuals experiencing divorce find themselves so involved in the emotional and psychological aspects of the breakup of their family that they are unable to focus on the fact that the process of dissolution of marriage is a legal process. It is wise for parties to have a working knowledge of the legal issues involved in the divorce to avoid being overwhelmed by the emotional aspects. An experienced attorney will work to protect your legal interests in a dissolution of marriage, allowing you to focus on yourself and your family.
A California divorce, also known as “dissolution of marriage,” is the legal ending of a marriage. After the divorce is complete a person is considered single and may marry again or enter into a
domestic partnership. Many issues may arise with divorce such as residency,
mediation, legal separation, annulment, property distribution, and child custody. If a divorce is granted, you may be able to ask the judge for orders in the areas of partner support, spousal support, child support, custody and visitation, domestic violence restraining orders, property division, and others.
California provides individuals the option for obtain a summary dissolution to expedite the divorce process. After filing for divorce in California, there is a mandatory 6-month waiting
period before you divorce may become final. A spouse in California may also choose to legally separate or, under the right circumstances, request an annulment. Many of the forms used in California divorce, separation, and annulment proceedings may be found here. You should contact a California divorce attorney when deciding on whether divorce is right for you.
Grounds For Divorce
1.The grounds for divorce are simply the stated reasons why you want out of the marriage. California is a no-fault divorce state. The spouse that is filing for divorce does not have to
claim that the other spouse is at fault to get a divorce. The idea in no-fault divorces is that if a spouse is unhappy in the marriage they should be able to get a divorce regardless of what the reasons are. The other spouse will not be able to stop a no-fault divorce, but will be able to contest other issues in relation to the divorce such as child custody and property distribution.
2.As California is a no-fault divorce state, your grounds (reasons) for wanting a divorce are set out in a document called Petition for Dissolution of Marriage that you file with your
local Superior Court. Appropriate grounds for divorce in California are: (1) irreconcilable differences which have caused the irremediable breakdown of the marriage; or (2) incurable insanity (only by proof). Irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.
Annulment - An annulment is an option if the validity of the marriage is called into question. There are two main categories for Annulment.
Nullity of Void Marriage and Nullity of Voidable Marriage.
Nullity of Void Marriage must be based on Incestuous Marriage or Bigamous Marriage.
Nullity of Voidable Marriage on the other hand has six basis for able to possibly void the marriage which are: (1) Petitioner's Age at the Time of Marriage; (2) Prior Existing Marriage; (3) Unsound Mind; (4) Fraud; (5) Force; and (6) Physical Incapacity.
Legal Separation -For some couples, filing for legal separation instead of divorce is the preferred option. Unlike a divorce, a legal separation does not end the marriage. It does, however, allow a husband and wife to legally separate and settle certain matters, such as child custody, child support, spousal support, child visitation, and division of property issues, as if they were getting a divorce. Malhotra & Malhotra will work with you to make decisions that will allow you to feel satisfied with the terms of your separation agreement
There are many reasons why spouses want to legally separate but not get divorced—religion being one of them. Maintaining medical insurance eligibility and staying within a specific tax bracket are other reasons. A couple may also want to try a “temporary” separation while they are considering ending their marriage permanently.
Rather than a mere verbal agreement between the married couple, a legal separation helps to ensure that your finances and liabilities remain separate in the eyes of the law. A husband and wife that are legally separated cannot marry other people because they are still married to each other. A legal separation can always be converted into a divorce later on. It can also be reversed at any time.
There are no residency requirements that have to be met in order to file for legal separation in California. Unlike a divorce, a legal separation allows a couple—if neither of them are California residents—to file for this status change without having to wait six months to establish residency.
Child Custody/Visitation- Visitation for how the parents will share time with the children. In California, either parent can have custody of the children, or the parents can share custody. The judge makes the final decision about custody and visitation but usually will approve the arrangement (the parenting plan) that both parents agree on.
If the parents cannot agree, the judge will make a decision at a court hearing. The judge will usually not make a decision about custody and visitation until after the parents have met with a mediator from Family Court Services.
- Physical Child Custody, is when your children live with you by Court Order.
- Joint Child Custody, is where both parents share the right and responsibility to make the important decisions about the health, education, and welfare of the children.
Child Support- Under California law, the amount of child support paid by the non-custodial parent is determined using a very specific formula of income and parenting time of both parties. What qualifies as legitimate income to be used in the calculations is often the legal matter that has to be worked out by the attorneys and judge involved.
When married parents divorce or separate, or when only one of the unmarried parents has custody of a child, the court may order the non-custodial parent, or the one with whom the child does not live, to pay a certain portion of his or her income as child support. When the child is in the custody of both parents, however, and the parents are providing a reasonable level of support, the law usually does not interfere with or regulate the amount of financial support provided.
In the United States, nearly half of all marriages end in divorce and almost one-fourth of all children are born to unmarried parents. As a result, the regulation of child support is an important social issue. Whereas once the arrangement for and payment of child support was left to the parents, now state child support enforcement agencies are taking an aggressive role in seeking payments from non-custodial parents. Frequently, the agency and the court will work together to implement a child support withholding order, by which the child support amount is automatically taken from the payer's paycheck. If the child support payments become delinquent, the agency can implement other collection mechanisms, such as withholding support amounts from tax refunds, or seizing real estate or personal property.
Child support orders are issued by the family court, which bases the amount of support on state child support guidelines. These guidelines establish the amount of required support, based largely on the non-custodial parent's income and the number of children. The court will also take into account other relevant factors, such as the custodial parent's income and the needs of the children. The court can deviate from the guidelines if there are significant reasons to do so. The fact that the custodial parent has a high income does not justify deviation from the guidelines; by law, children have the right to benefit from both parents' incomes. Child support can be increased if there is a change in circumstances justifying the increase, such as an increase in the payer's income or the cost of living, a decrease in the custodial parent's income or an increase in the child's needs. Similarly, the amount can be reduced if the circumstances justify the reduction.
In cases involving unmarried mothers seeking child support, the first step may be to legally establish the father's paternity of the child. The father can do this voluntarily, but if he does not the mother may need to bring a lawsuit to establish paternity, which is usually done using genetic (DNA) testing. The court will order the putative, or alleged, father to submit to the testing if he does not agree to do so voluntarily. Once paternity is established, the court will issue an order for child support.
When the non-custodial parent moves to another state, the custodial parent may have to rely on the Revised Uniform Reciprocal Enforcement of Support Act to implement or ensure payment of child support. This Act provides the procedure by which a support order issued in one state can by enforced by the courts of another state.
A lawyer experienced in family law may assist a parent in obtaining an order for child support, and in enforcing the order once issued. Family law lawyers may also represent either parent in a support modification proceeding or in a proceeding to establish or disprove paternity. Given that the well-being of a child is at stake, child support issues are an important concern, and the assistance of an experienced lawyer is essential to the process.
Spousal Support- Two issues arise with regard to spousal support:
The amount of spousal support and the duration of spousal support.
The duration of spousal support is closely linked to the length of the marriage.
Frequently, practitioners speak of the ‘rule of thumb’ that spousal support will last for one-half the length of the marriage.
The duration of spousal support is left to the sound discretion of the court within certain general equitable principals and guidelines most often set forth in the common law case histories. However, in marriages of less than ten years, the statute provides a presumption that support should be granted for half the length of the marriage.
The California legislature has enacted a statute which indicates that when permanent support is established at the time of trial, it is an abuse of discretion for the court to set a future termination date if the marriage is of lengthy duration. The statute goes on to indicate that any marriage of ten years in duration is considered a lengthy marriage.
The circumstances vary from person-to-person, but the courts tend to disfavor “lifetime support.”
The court has a broad discretion in ascertaining the amount of spousal support as well as its duration.. Some California counties have adopted a guideline which suggests the appropriate range of spousal support on a temporary basis. Many counties do not allow the guideline to be the sole indicator of the amount of permanent spousal support. California State law provides that spousal support is determined by a careful review of a number of factors. The controlling statute states as follows:
4320. In ordering spousal support under this part, the court shall consider all of the following circumstances:
(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote
time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.
(n) Any other factors the court determines are just and equitable.
Spousal support awards and agreements are modifiable throughout the support period except as otherwise provided by agreement of the parties.
However, unlike child support, the court’s continuing power to modify spousal support is dependent on the terms of the court’s order. Unless jurisdiction to award support has been reserved, post-judgment spousal support is limited by the stated duration of the order.
Once the Court has “terminated its jurisdiction” over the issue of spousal support, the supported spouse will generally not be able to return to court and seek to extend spousal support.
However, if there is a step-down spousal support order that provides that spousal support will terminate on a certain date absent the party petitioning the court prior, it is possible for the supported spouse to seek that the court further extend support as long as the supported spouse files their request prior to the termination date
Name change or Correction to birth record - generally refers to a legal act allowing a person to adopt a name different from their name at birth, marriage, or adoption. The procedures and ease of a name change depend on the jurisdiction. In general, common law jurisdictions have loose limitations on name changes while civil law jurisdictions are restrictive.
A pseudonym can be regarded as a name adopted to conceal a person's identity, and does not always require legal sanction. Additionally, there are other reasons for informal changes of name that are not done for reasons of concealment, but for personal, social or ideological reasons.
State laws regulate name changes in the United States. Several specific federal court rulings have set precedents regarding both court decreed name changes and common law name changes (changing the name at will).
The applicant may be required to give a reasonable explanation for wanting to change their name. A fee is generally payable, and the applicant may be required to post legal notices in newspapers to announce the name change. Generally the judge has limited judicial discretion to grant or deny a change of name, usually only if the name change is for fraudulent, frivolous or immoral purposes.
Property Division - While a divorce or legal separation can be granted without a division of property, property division is an issue that should be addressed and gotten out of the way.
There are two ways to divide property:
- (1) You and your spouse agree.
- (2) The Court decides for you.
The general rule in California is that all property acquired during marriage is
“community property”. Property that is acquired by gift or devise is “separate property” as is property acquired before or after marriage. The general rule is that community property should be divided equally; however, that is not always the case. When there is an unequal division the court will look at a variety of things in order to make a distribution that is fair and equitable under the circumstances. The division of assets can be very complex and it is advisable that you seek the advice of an attorney if you have any of the following: real property, annuity, pension, 401K, etc.
To learn more or get advice on your property issues
Have questions or would like to make an appointment? Call us at (562) 806-9400 or use our contact form.