Family Law Notes

Family Law

  • Family law encompasses legal aspects of marriage, divorce, custody, adoption, support, paternity, surrogacy, child abuse, abduction, and domestic relations, including non-marital couples and family units.
  • In California, the Family Code contains most family law regulations.

Family Definition

  • Family is defined as a primary group with mutual obligations and typically shared residence.
  • The definition has evolved to include:
    • Single-parent families
    • Blended families (resulting from divorce and remarriage)
    • Childless marriages
    • Common-law relationships (with or without children)
    • Same-sex relationships

Marriage

  • Marriage is a civil contract between two capable persons, requiring consent, a license, and solemnization as per Family Code Section 300 et seq.

Common Law Marriage

  • California does not recognize common law marriage, but unmarried cohabitating couples may have rights.
  • Common law marriage (marriage without formalities or informal marriage) is legally valid in some states, such as Texas, requiring the couple to:
    • Agree to be married
    • Live together as husband and wife
    • Represent themselves as married to others
    • Note: The "7-year myth" is false; no specific time is required.
  • A valid common law marriage requires a formal divorce to dissolve.

Prenuptial Agreements

  • Prenuptial agreements are generally binding if:
    • Full financial disclosure is made by both parties.
    • Independent financial advisors are involved in some cases.
    • Neither party is under duress.
    • The agreement is signed before the marriage.
    • Separate, independent legal counsel is highly advisable.
  • Prenups are smart planning, not necessarily indicative of future divorce.
  • Drafting a premarital agreement is akin to purchasing insurance for protection.

Termination of Marriage

  • Marriage ends through:
    • Death
    • Dissolution (divorce): Termination of a valid marriage.
    • Legal separation: Allows living apart without ending the marriage
    • Annulment (nullity): Declares that no valid marriage ever existed.
  • Post-divorce or annulment, individuals are single and can remarry or enter a domestic partnership.
  • A legal separation does not end the marriage.
  • A formal judgment signed by a judge with the courts is needed to finalize a divorce.

Legal Separation

  • Legal separation doesn't end the marriage but allows separate living and independent decisions on finances, property, and parenting.

Annulment

  • Annulment declares a marriage void from the beginning due to:
    • Force
    • Fraud
    • Bigamy or incest
    • Physical or mental incapacity
    • Underage marriage

Bigamy

  • A marriage where one party is already married is void.
  • Knowingly entering such a marriage constitutes bigamy.

Dissolution

  • Divorce is legally termed Dissolution of Marriage; for domestic partners, it's Dissolution of a Domestic Partnership.
  • Dissolution ends all legal bonds.
  • California residency requirements: living in California for the past 6 months.

Agreement for Divorce

  • Both parties don't need to agree to a divorce; one spouse cannot force the other to stay in the relationship.
  • Non-participating spouses can't halt the process but may face a default judgment.

Lack of Agreement

  • If parties can't agree, the court decides on division of debts, property, financial support, child-related issues, and other related matters.

Divorce Timing

  • Divorce takes at least six months from the date of service of the Petition and Summons or the date when the responding partner filed their first paper, whichever occurs first.
  • Finalization requires a judge's signature on the Judgment of Dissolution.

Fault needed for Dissolution

  • California operates under a no-fault divorce law.
  • Grounds for divorce: irreconcilable differences or incurable insanity.

Post dissolution orders

  • Either party can request orders for:
    • Child support
    • Spousal/partner support (alimony)
    • Child custody and visitation
    • Division of property
    • Domestic violence restraining orders
  • Defaulting on the Petition waives the right to participate in the settlement.

Summary Dissolution

  • A simplified divorce process (Summary Dissolution) is available for couples:
    • Married less than 5 years
    • Without children
    • With limited assets and debts
    • In agreement on asset division
    • Note: Not available for domestic partnerships.

Spousal Support

  • Spousal support (alimony) is court-ordered payments from one spouse/partner to the other.
  • Between married persons, it's spousal support; between domestic partners, domestic partner support.
  • A judge can order support in divorce, legal separation, or domestic violence restraining order cases.

Types of Spousal Support

  • Temporary spousal support: Payments before the case is final, determined by need and ability to pay.
  • Long-term spousal support: Orders made at the end of the case (Judgment). Also called permanent support orders.

Temporary Spousal Support

  • Judges consider:
    • Needs of the spouse with less money
    • Ability to pay of the spouse with more money
    • Varying circumstances like college costs, medical bills, or savings.
  • Spouses can agree to a different amount.

EXAMPLE: NEED AND ABILITY TO PAY

  • Needs: Spouse's net income is 34003400 a month; expenses are 37003700. They need 300300.
  • Ability to pay: The other spouse's net income is 50005000 per month; expenses are 35003500. They can afford support.
  • Decision: The judge might order the able spouse to pay 300300 per month for temporary support.

Long-term Spousal Support

  • Paid after divorce is final; may last for many years.
  • More common in long marriages or when one person earns significantly more.

Long-term Spousal Support - Duration and Amount

  • Determined by agreement or court order.
  • The longer the marriage, the longer support can last; support will last a reasonable amount of time that it would take for the spouse to become self-supporting.
  • Assumptions:
    • Marriages less than 10 years: Support lasts half the marriage length.
    • Marriages over 10 years: No assumptions about reasonable duration.
    • Support may last as long as needed if the other spouse can pay.

Long-term Spousal Support - Termination

  • Support ends when:
    • Parties agree in writing, and the court approves.
    • The court orders it to end.
    • The supported spouse remarries.
    • Either spouse dies.

Support calculations

  • The judge must use Family Code 4320 factors to decide the length and amount of support, including:

    • Length of marriage
    • Age and health
    • Incomes of each
    • Earning capacity
    • Standard of living during the marriage
    • Amount of property or debt
    • Contribution to the other spouse's education/career
    • Need and ability to pay
    • Impact of tax laws
    • History of abuse
    • Children together and how caring for children impacted either spouse’s careers

Child Custody

  • Custody must be established in divorces involving children.
  • Co-parents typically meet with a mediator to resolve disputes.

Child Custody Types

  • Legal custody: Authority to make decisions about education, religion, medical care, etc.
  • Physical custody: Determines where the child lives and visitation schedules.
    • Custody terms can affect child support obligations.

Child Custody Factors

  • Factors considered:
    • Child's health and safety (including domestic violence, criminal behavior, substance abuse).
    • Child's wishes (if mature enough).
    • Willingness to co-parent.
    • Stability of the child's status quo (routine, lifestyle, relationships).

Child Support

  • Determined by statutory guidelines.
  • Key factors:
    • Income levels of each parent
    • Number of children
    • Needs of each child
    • Number of overnights with each parent
    • Standard of living prior to divorce

Termination of Parental Rights

  • Not granted on request or mutual agreement for solving custody/support disputes.
  • Involuntary termination requires clear and convincing evidence of parental unfitness and determination that it is in the child’s best interests.
  • Grounds for unfitness:
    • Severe abuse and/or neglect
    • Sexual abuse
    • Abandonment
    • Long-term mental illness or substance-induced incapacity
    • Failure to support or maintain contact
  • Termination frees the child for adoption.

Adoption

  • Uncontested stepparent adoptions occur when:
    • The biological parent’s rights have been terminated or that parent is now deceased.
    • There is consent from the non-custodial parent.

Domestic Partnerships

  • Under California law, registered domestic partners have the same rights and responsibilities as spouses.
  • Domestic partners are two adults in an intimate, committed relationship.
  • A partnership is formed by filing a Declaration of Domestic Partnership with the Secretary of State.

Domestic Partnerships filing Requirements

  • Requirements:
    • Neither person is married or in another domestic partnership
    • The persons are not related by blood
    • Both are at least 18 years of age (with exceptions)
    • Both are capable of consenting
    • Both are members of the same sex or one or both is eligible for social security benefits and over the age of 62.
  • Note: SB 30 (effective 2020) eliminated limitations, allowing opposite-sex couples under 62 to form domestic partnerships.

Domestic Violence

  • Domestic violence takes many forms, with a non-exhaustive listing provided:
    • Financial control
    • Unauthorized access to electronic devices
    • Social isolation
    • Restricting movements
    • Location tracking without consent
    • Property damage
    • Threats of harm
    • Harassing communications
    • Stalking, battery, etc.

DVRO

  • DVRO is a domestic violence restraining order.
  • Issued to protect against abuse from family members or significant others in the same household.
  • Includes current/former spouses, dating partners, and co-parents, as well as in-laws, siblings, and stepparents.

DVRO components

  • A DVRO can:
    • Prohibit abuse.
    • Order specific actions.
    • Common orders:
      • No contact with the victim, children, or property.
      • No harassment or stalking.
      • Removal from a shared home.
      • Temporary child custody (pending formal hearing) and permanent custody (after the hearing).
      • Child and/or spousal support (after a formal hearing).
      • Prohibition of possessing firearms or ammunition.