If you live in Los Angeles, there is a strong possibility that your life will someday be affected by California’s family and divorce laws. This is especially the case if you ever get divorced, or if you have children from a relationship that does not work out.
Are you familiar with California’s laws regarding legal separation, divorce, and child support and child custody? If you’re like a lot of people, you know some information, but there’s a lot that you still don’t know. That being said, we are going to provide a basic outline of California’s family laws as they pertain to prenuptial agreements, legal separation, divorce, and child-related matters.
If after reading this post you have further questions, or if you need experienced legal representation in an area of divorce or family law, we encourage you to contact our law firm for all the help and support you need.
Prenuptial Agreements: When a couple divorces, they must abide by California’s property division laws, unless they have a prenuptial agreement. With a prenuptial agreement, also known as a prenup, the couple departs from the state’s property division laws and establishes their own agreement.
A prenup can govern matters such as how income and assets are divided, and it can address spousal support, but it cannot dictate matters regarding child custody or support. Prenups are contracts entered into before the marriage takes place.
Postnuptial Agreements: A postnuptial agreement is almost identical to the prenuptial agreement only it’s entered into after the marriage has already occurred. Generally, a couple may draft a postnuptial agreement when they realized they should have had a prenup, or when a business becomes very successful, or when a spouse’s career takes off.
Legal Separation: Legal separation is not allowed in every state, but it is lawful in California. A legal separation is very similar to a divorce in its form and function, but the couple remains legally married. With a legal separation, the court can make orders for spousal support, property division, child custody and child support.
Why do people get legally separated instead of divorced? Sometimes couples choose legal separation for insurance purposes, sometimes they do it for religious purposes (e.g. their religion does not condone divorce), or sometimes couples legally separate to test the waters and see if they want to divorce later on.
No-Fault Divorce: California is a no-fault divorce state. This means that a spouse does not have to file a divorce on grounds of cruel and inhumane treatment, adultery, or abandonment. All that matters is that one spouse wants out. So long as one of the spouses wants a divorce, a divorce can be granted.
Paternity Actions: Under California law, when a child is born to a husband and wife, the husband is automatically considered the child’s legal father. If a child is born to unmarried parents, paternity will have to be established. There are two ways to establish paternity: the father voluntarily signs a Declaration of Paternity (usually at the hospital after the child is born), or through a court order and after a DNA test.
Paternity means to establish a child’s legal father. Until paternity is established through one of the above methods, the biological father has no rights or responsibilities to his child, even if he’s raised the child since birth with the child’s mother.
Either parent or the Department of Child Services can request a DNA test for the purposes of establishing paternity. Once a genetic relationship is confirmed, the father will be obligated to financially support his child, but he will also be entitled to seek child custody.
Property Division: California is a community property state, which means that both spouses are entitled to 50% of the marital assets acquired during the marriage, regardless of who owns the title or who earned the money.
However, spouses can depart from the state’s community property laws and establish their own property division agreement, assuming it’s fair and does not leave one spouse penniless. Otherwise, a judge isn’t likely to sign off on such an agreement.
Child Custody: Under California law, both parents are equally entitled to child custody and visitation. Generally, parents will work out a parenting plan together, based on the best interests of their children. If the parents cannot agree on child custody, the court will have to decide for them.
Child Support: Both parents are legally required to financially support their children. Usually, the parent who has the children for less of the time will pay child support. If a paying parent fails to pay child support, they face a number of legal consequences, including wage garnishment, tax refund intercept, and driver’s license suspension.
Spousal Support: In a divorce, spousal support is not automatic. Either spouse can ask for spousal support, but it’s up to the judge’s discretion. The judge will consider a number of factors, such as the length of the marriage, each spouse’s income and assets, each spouse’s earning capacity, and whether the higher-earning spouse can afford it etc.
When spousal support is awarded, it’s typically awarded for half the length of the marriage, unless the marriage lasted 10 or more years. In the case of a marriage of “long duration,” spousal support may be awarded indefinitely. Spousal support is taxable income for the receiving spouse and tax deductible for the paying spouse – that’s a benefit for paying spouses.
Post-Judgement Modifications: After a divorce is finalized, it’s expected for circumstances to change. That said, ex-spouses frequently go back to court for a post-judgement modification. Such modifications frequently apply to spousal support, child custody, and child support.
If you need an experienced Los Angeles divorce lawyer, contact Claery & Hammond, LLPfor a free case evaluation. We are here to guide you every step of the way!