California Family Law

At least once in their lives, most people will go through a situation involving family law. When reaching adulthood or having children, establishing a domestic partnership or dissolving a marriage, it is important to be aware that your legal status may change, along with your legal rights and responsibilities. In the state of California, family law is governed by the California Family Code, which is made up of 20 Divisions containing statutes on topics including (but not limited to) domestic partnership registration, marriage, divorce and legal separation, division of property, child custody, spousal and child support, and adoption.

Domestic Partnerships

In California, a domestic partnership is a legal relationship available to same-sex couples, and opposite-sex couples where at least one of the partners is over the age of 62, that grants the partners the same “rights, protections, and benefits” and also subjects them to the same “responsibilities, obligations, and duties under law”, as are granted to or imposed upon spouses. In order to legally establish a domestic partnership in California, the following requirements must be met:

• Both partners share a common residences. The legal right to possess the residence doesn't need to be in both of the partners' names and one or both partners may have additional residences.
• Neither partner is married to someone else or is a member of another domestic partnership.
• The two partners are not related by blood in a way that would prevent them from being married to each other according to California state law.
• Both partners are at least 18 years of age and capable of consenting to the domestic partnership.

To establish a domestic partnership, you must file a Declaration of Domestic Partnership with the Secretary of State. A copy of the declaration and a Certificate of Registration of Domestic Partnership will be mailed to you once your declaration has been reviewed and filed.

Marriage

In the State of California, marriage is defined as a personal relation between a consenting man and a consenting women which arises out of a civil contract. The registration of marriages is a local and state function. In order to establish a marriage in California, the following requirements must be met:

• The parties involved are of opposite genders. Currently, only marriage between a man and a woman is valid or recognized.
• Neither party is married to someone else.
• Both partners are at least 18 years of age and capable of consenting to the marriage. If one or both of the partners are under the age of 18 years old, you must obtain a court order granting permission (and many times you will need parental permission as well).

To establish a marriage, you must apply for a marriage license at least one month before your wedding ceremony at your local County Clerk's office. There are two types of marriage licenses issued in California, the public marriage license and the confidential marriage license.

A public marriage license is a public record. A confidential marriage license is only accessible by the husband, wife, or by decree signed by a superior court judge. At least one witness is required to sign a public marriage license and observe the ceremony. No witness is required to sign a confidential marriage license or observe the ceremony. A regular license may be used throughout the state of California. However, a confidential license may only be used in the county of issue. To apply for a confidential marriage license, the two parties must be living together and over the age of 18 years old. Below is a list of requirements for marriage licenses in California.

• Identification: Both applicants must be present to receive a California marriage license. A valid picture ID that includes date of birth, issuance and expiration date is required for both parties. Some counties also require state certified birth certificates.
• Age: 18 years and older. Minors may apply for a public marriage license with parental and court consent, but not a confidential marriage license.
• Residency: California residency and U.S. citizenship are not requirements
• Previous Marriages: You must provide any copies of divorce decrees to the clerk at the time of application. At least 60 days must have passed from the issuance date of the decree.
• Waiting Period: None
• Fees: Varies by county.
• Blood Test: Not required.
• License Validity: 90 days from the date of issuance.
• Proxy Marriages: No
• Copy of Certificate: Copies of the marriage certificate are usually available three to four weeks after the ceremony from the county clerk or recorder where the license was issued. This gives the officiant time to return the license to the county office where it is then processed. The fee is $13.00 for a copy of the marriage certificate.

Divorce

In the state of California, a divorce is referred to as a dissolution of marriage. A dissolution of marriage is a court order that legally terminates a valid marriage. The effect of a dissolution of marriage, when it is finalized, is to restore the parties to the state of unmarried persons.

As of January 1, 2005, domestic partners in the state of California must also file for dissolution in order to end their relationship. According to California State Law, the dissolution of a domestic partnership "shall follow the same procedures" and the partners "shall possess the same rights, protections, and benefits, and be subject to the same responsibilities, obligations, and duties," as apply to spouses in a marriage dissolution.

In order to file for a dissolution of marriage in California, one of the parties to the marriage must be a resident of the state for at least six months and a resident of the county in which the proceeding is filed for at least three months.

In California, “no fault” is the only available grounds for divorce. Under “no fault” grounds for divorce, there is no need for proof that either spouse did something wrong in order to dissolve the marriage. The pleading party needs only to claim that there has been an irreparable breakdown of the marriage due to irreconcilable differences or incurable insanity. Irreconcilable differences are those deemed by the court to be sufficient reasons for not continuing the marriage.

Incurable insanity is only acceptable grounds for a dissolution if there is proof, including competent medical or psychiatric testimony, that the insane spouse was at the time the petition was filed, and still is, incurably insane. Note that, according to California Family Code, a dissolution of marriage permitted on the basis of incurable insanity does not relieve the sane spouse from any legal obligations pertaining to support of the spouse who is incurably insane and the court may make such obligations for support if the circumstances require.

In California, the state's Superior Court handles divorce cases. The California Superior Court has facilities in each county. To begin a proceeding for a dissolution of marriage, one of the spouses must file a “Petition for Dissolution of Marriage” with the Superior Court in the county in which they reside. For a list of the locations and contact information of the Superior Courts of California, click here.

The petition must be entitled “In re the marriage of ______ and ______” and must include, among other matters, the following information:

• The date of marriage
• The date of separation
• The number of years from marriage to separation
• The number of children of the marriage, if any, and if none a statement of that fact
• The age and birth date of each minor child of the marriage.

The other spouse is then served with this paperwork and given time to respond. If the spouses are in agreement about property and debt division, as well as child custody and child support matters (if applicable), the divorce can be finalized with a court trial. If the parties cannot come to an agreement over one or more of these matters, the court will set up a hearing.

After the Petition for Dissolution has been filed, either party may request temporary court assistance for determining temporary custody and child support orders while they are waiting for the permanent decisions to be made.

Dividing the Property

California is a “community property” state, which means that all of the property and debts acquired during your marriage will be divided equally when you divorce. However, not all property is considered “community property”. The following are examples of property that is not included in “community property:

• Any assets or debts you had prior to your marriage will be considered separate property if you kept that property separated from property acquired during the marriage
• The income produced by a separate property investment, as long as it hasn't been mixed together with community money
• Property inherited from family during your marriage if it was willed exclusively to you and you did not mix it together with community assets during the marriage.
  
  

It's important to collect all the information you can about all your property, including when you purchased it, approximately how much it is worth, and details such as account numbers, serial numbers and so forth, as this will save you valuable time and money during the court procedures.

Alimony

Alimony, called spousal support in California, refers to payments from one spouse to the other spouse, for the benefit of the spouse who is receiving payment. The purpose of alimony is to limit any unfair economic effects of a divorce by providing a continuing income to a non-wage-earning or lower-wage-earning spouse. A court can order alimony in any case, and will generally consider the following factors:

• The financial resources of each party
• The needs of each party
• The age and health of the parties
• The standard of living established during the marriage
• The impact on the children (if applicable) of having the care-giving spouse working
• Any tax consequences
• All sources of income available to either party

Most spousal support is ordered for a specified amount of time. Usually, 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 if the length of the marriage is less than 10 years. Once ordered, it can be modified if one party proves a “change in circumstances”.

Child Support

Child support refers to the amount of money that the court orders one party to pay the other party every month for the support of the child or children adopted or born during the duration of the marriage.

In California, child support is granted in California according to a specific law passed in 1992, called the Child Support Guideline. The law prescribes a specific algorithmic standard to be applied to each child support case, depending on:

• The incomes of both parents
• The number of children the parent is responsible for supporting
• The amount of time the children spend with each parent

The resulting sum is the minimum value of child support to be paid by the non-custodial parent, though the presiding judge may decide to award a greater value. Child support payments are usually made until children turn 18, or 19 if they are still in high school full time, living at home, and can't support themselves. However, if both parents agree, child support may continue on for as long as the parents desire. As with spousal support, a California child support order can be modified if there has been a “change in circumstances”.

Child Custody and Visitation

There are different types of child custody that can be awarded to one or both parents in a divorce or separation case. Legal custody is the right to make decisions about your child, including those related to education, religion, medical issues, and discipline. Physical custody is the right to have the child physically present with you.

With Sole custody, you alone have legal and physical custody of your child or children. In a Joint custody arrangement, you and your ex-spouse share legal and/or physical custody of the child or children.

In some cases, the judge will give joint legal custody to both parents, but not joint physical custody. This means both parents have the right and responsibility to make important decisions about their child's life, but the child will physically live with one parent most or all of the time. The parent who does not get physical custody will be granted reasonable visitation rights by the court, unless it is shown that visitation would be detrimental to the best interest of the child. Because of the importance placed on “frequent and continuing contact” with both parents in the California Family Code, a court will only withhold a parent's visitation privileges if they find that any form of visitation would be physically or emotionally harmful to the child. Otherwise, there are two types of visitation orders:

• Visitation: A privilege granted to the parent who does not have the physical custody the child for the majority of the time, to spend a certain amount of time each day, week, or month with the child. Generally, the court will aid in creating a detailed visitation plan to prevent conflicts and or confusion.

• Supervised Visitation: Granted to a parent when the child's safety and well-being require that the visits be supervised by a third party. This third party can be the other parent, another adult, or a professional agency. Supervised visitation is generally used in cases where the child and parent need to get to know one another better, for example, when the parent has been out of the child's life for a long time due to jail time or career circumstances.

Grandparents have the legal right to visitation under certain circumstances. The judge's final decision will be based on the best interest of the child, but the parents of the child have a lot of say in the matter due to federal law. Under the 14^th Amendment of the U.S. Constitution, parents have a “fundamental right” to make decisions concerning the care, custody and control of their children. Therefore, any state law that, as applied, allows trial courts to grant nonparent visitation rights over a parent's objection whenever the court determines such visitation may serve the child's best interest, is an unconstitutional infringement on that right. However, the courts give special consideration to requests for visitation by grandparents when the child's parent (the grandparents' son or daughter) is deceased.

In California, the judge will not usually make a decision about custody and or visitation until after the parents have met with a mediator from Family Court Services, a section of the family court system that helps guide parents through child custody and visitation issues by providing services like child custody evaluations or counseling. The judge will usually approve whatever arrangements both parents agree on. If the parents cannot come to an agreement, the court will make child custody decisions based on what is in the "best interest" of the child. In making custody and visitation decisions, the court will consider the following:

• Which parent is more likely to allow the child frequent and continuing contact with the nonresidential parent

• The history of contact between the parents and the child, such as the parents' work schedules or other obligations

• The health, safety and welfare of the child

• The mental and physical health of the parents, including any history of continual alcohol or drug usage

• The preference of the child, if the child is intelligent and understanding enough to express a preference

• The preference of any older siblings of the child

• Evidence of child abuse

Once the judge makes a custody and or visitation order and files it with the county clerk, both parents are legally bound to it. If one or both parents want to change the order, the judge will usually approve a new custody or visitation order that both parents agree on. If the parents do not agree on the change, the parent wishing to modify the order must show that there has been a “change in circumstances” affecting the welfare of the child since the last order. Such changes in circumstances include (but are not limited to):

• change in residence of one of the parents

• desire of an older sibling to increase or decrease visitation

• evidence of child abuse

• alteration of the child's school schedule

Contesting or modifying a custody and or visitation order can be a very complicated procedure. It is smart to talk to a lawyer about how the law affects you and your rights as a parent.

“Summary” Dissolution

A “summary” dissolution is a more simplified, and usually faster, way of legally ending a marriage than traditional dissolution. It generally involves less paperwork, fewer court appearances, and less back-and-forth negotiations. Summary dissolution might be an option for divorcing couples if they meet certain eligibility requirements. In order to qualify for a summary dissolution in the state of California, ALL of the following requirements must be met:

You and your spouse:

• have been married less that 5 years on the date you file your Joint Petition for Summary Dissolution of Marriage with the Secretary of State
• have no children together that were adopted or born before or during the marriage (this includes current a pregnancy)
• do not own or have an interest in any real estate (house, condominium, rental property, land, etc.)
• do not owe more than $6,000 for debts acquired since the date of your marriage (not including auto loans
• have less than $38,000 worth of property acquired during your marriage
• do not have separate property worth more than $38,000 (not including money owed on the property or auto loans)
• agree that neither spouse will ever get spousal support
• have signed an agreement that divides your property and debts.

If you and your spouse meet all of the above requirements, then next step is to obtain your Local Information Booklet from the Court in the county where you will file. This booklet is used to determine the value of your community and separate property. You will also need to obtain the following forms:

• Joint Petition for Summary Dissolution of Marriage
• Income and Expense Declaration
• Request for Judgment
• Judgment of Dissolution of Marriage
• Notice of Entry Judgment
• Notice of Revocation of Petition for Summary Dissolution

You and your spouse much each fill out the Income and Expense Declaration independently with your own information. Once you have completed this, you must exchange forms. Then you can use the Court Booklet worksheets determine your property settlement. Once you have agreed, you can use the sample provided in the booklet to write your property settlement agreement and sign it. Remember, both of you must sign the property settlement agreement.

Next, complete the Joint Petition for Summary Dissolution of Marriage and sign it. Remember both you and your spouse must sign it. Attach it to your Property Settlement and the file it with the Court. Make sure you have one copy for yourself and one for your spouse. The clerk will keep the original and return the copies to you and your spouse.

Then, you must wait six months to file your Request for Judgment, Judgment, and Notice of Entry of Judgment. Complete this form and bring two copies, along with two stamped envelopes to the Court. One envelope should be addressed to you and another one to your spouse. The clerk will take the original form, the two copies and the envelopes. You will receive in the mail the signed judgment from the Court. Keep in mind that your marriage has not ended until you have received your Request for Judgment, Judgment, and Notice of Entry of Judgment from the Court and it notes the date of termination of your marriage. Once you receive this form from the Court, your marriage has been terminated and your status has been returned to that of a single person.

Adoption

Adoption refers to the process of establishing a legal relationship between a parent and child who are not each other’s biological parent or child. Adoption laws are mainly a product of individual state law, but the different types and methods in which to facilitate an adoption are generally the same nationwide. For an overview of adoption law and a basic step-by-step guide to adoption, click here. (can link to the adoption guide I already made)

In California, the requirements for adopting an unmarried minor are as follows:

• A prospective adoptive parent(s) must be at least 10 years older than the adoptive child. However, if the court finds that it is in the best interest of the child's, it may approve the adoption of a child by a stepparent, sibling, aunt, uncle, or first cousin regardless of the ages of the parties involved.
• The child's consent is required if he or she is over the age 12.
• If the prospective parent is a married person, and not legally separated, the spouse's consent is also required.
• Consent of the birth parents is not usually necessary but it would be wise to check with a knowledgeable adoption lawyer in order to determine the requirements for your individual case.

The requirements for adopting an adult or married minor in the state of California are relatively simple:

• If the prospective parent is a married person, and not legally separated, his/her spouse's consent is required.
• If the prospective adoptee is a married person, and not legally separated, his/her spouse's consent is also required.
• The consent of the parents of the proposed adoptee is not required.

Domestic partners have the same rights and responsibilities regarding adoption as do married people, in California. Furthermore, there are no California state laws that limit a person's ability to adopt based on this or her race, gender, sexual orientation, or religious affiliation.