Many issues confront persons facing a divorce. Those issues include property rights, financial obligations to creditors, tax ramifications of a divorce, spousal support, and, most importantly, issues related custody of minor children. It is important and wise to educate yourself about these issues before making decisions regarding any of these issues. I strongly encourage people to have at least an initial consultation with an attorney to find out what your rights and obligations are before you make decisions that will affect the rest of your life, as well as the lives of others.
Residency Requirements and Grounds for Divorce
You must be a resident of California for six months and a county resident for three months to file for a divorce, called a “dissolution.”
Either spouse can get a divorce simply by stating in divorce papers that “irreconcilable differences” have caused a breakdown in the marriage. If both spouses are in agreement that there should be a divorce, they can agree in writing (called a “stipulation”) that the marriage can be ended.
The legal divorce process begins when one of the spouses files a “Petition for Dissolution of Marriage” with the Superior Court. The other spouse is then served with the paperwork and given time to respond. If the parties are in agreement about property and debt division, as well as child custody and child support matters, the divorce can be finalized without a trial. If the parties can’t come to an agreement, the court will set a time for a hearing, usually some time in the future.
After the Petition for Dissolution has been filed, either party can request temporary assistance from the court in the form of temporary custody and child support orders, and orders to determine who pays community debts on a temporary basis.
Child Custody and Visitation
More than any other area of family law a child custody dispute requires competent legal counsel. Child custody disputes require not only current knowledge of the law but wisdom and judgment which can only come from years of experience in the court room. Because of his experience in custody matters Mr. Barnes often serves as a Court-appointed attorney to represent children in high-conflict case involving child custody.
You can obtain an order for child custody while your divorce is being processed by the court. You do not have to wait for a judgment.
We have experience litigating high-conflict custody matters as well as move-aways. In California, the court will make child custody decisions based on what is in the “best interest” of the child if the parents can’t come to an agreement. In deciding which parent should have primary custody, the court will consider:
- 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
- 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, understanding and experienced enough to express a preference
- Evidence of child abuse
After the custody order is signed by the judge and filed with the court clerk, both parents are bound by it. If a parent is denied court-ordered access to a child, he or she may bring the issue back before the court. The judge may decide to modify the visitation order, order makeup visitation for the time missed and order counseling or mediation.
Child Custody Information.
In California, child support is based on:
- The incomes of both parents
- How many children the parent is responsible for supporting
- How much time the children spend with each parent
If necessary, a court can set aside a portion of joint or separate assets of the parties in a separate trust or fund for the support and education for the parties’ children.
A California child support order can be modified if there has been a change in circumstances. Examples of this would include:
- A big increase or decrease in either parent’s income
- The child spending a lot more time with either parent
- The child being several years older or having special financial needs such as schooling or medical expenses.
In awarding spousal support a court will generally consider such factors as:
- The standard of living established during the marriage
- The duration of the marriage
- The needs of each party
- The financial resources and liabilities of each party
- The impact on the children of having the care-giving spouse working
- The contribution of each party to domestic duties and the education and career building of the other party
- Any tax consequences
- All sources of income available to either party
A court can order temporary spousal support while the divorce is pending. Most spousal support is ordered for a specific length of time. Once ordered, it can be modified only upon a showing of a ” change in circumstances.”
Dividing the Property
California is a “community property” state, which means that assets and debts acquired during your marriage will be divided equally when you divorce.
But not all property is considered “community property”:
- For example, any assets you had before you married 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 is also separate property, as long as it hasn’t been “commingled” – mixed
together with community money
- Property you inherit from your family during your marriage will generally be considered your own separate property if it was
willed exclusively to you and you did not commingle it with community assets during the marriage
Paternity cases are similar to divorce cases in that they involve the issues of child custody and child support. Paternity cases differ from divorce cases in that there is no issue of spousal support and the parties do not have to wait six months to obtain a judgment.
Many paternity cases involve a determination whether a person is in fact the child’s father. The most common method by which paternity is by a court ordered DNA test. In order to be accepted by a court a DNA test must be ordered by the court. A DNA test done prior to a court order will NOT be accepted by the court as proof of paternity.
Another twist in paternity cases is that even if a DNA test establishes that a person is the biological parent of a child that person may not be recognized by the court as the child’s legal parent. Conversely, even if a DNA test establishes that a person is NOT the biological parent of a child the court can nonetheless rule that the person is the parent legally in some cases. There are several factors which a court looks at when deciding whether a person who is not a biological parent will be found to be the legal parent:
- whether the non-biological parent and the biological parent were married at the time of conception;
- whether the non-biological parent holds himself out publicly as the father of the child; and
- whether the non-biological parent and the biological parent were living together at the time of conception.
- how long the non-biological parent has takes to bring a paternity case;
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Safeguarding your legal rights and interests
Thomas R. Barnes, Attorney at Law is committed to providing quality legal services and maintaining the highest ethical standards in the practice of family law. By working closely with clients, our attorney is able to provide an exceptional level of expertise and skill when dealing with emotionally-charged issues that arise in family law.
Our firm understands that legal matters cause concern, distress and distraction in your life. Our attorney and staff strive to protect our clients’ best interests by listening attentively, providing skilled advocacy and delivering comprehensive legal solutions. We offer personalized, comprehensive legal analysis to each client, allowing the client to take an active role in the resolution of issues.
Our progressive team-based approach to divorce and family law matters allows us to provide our clients with experienced, knowledgeable and skilled counsel. Our attorney also works with skilled paralegals so that each client has the most effective and cost-efficient representation possible — allowing clients to derive greater value for money.
As a leading law firm in the practice of family law, we have the experience to handle complex cases, from sophisticated pre- and post-marital agreements to intricate post-divorce modifications. Thomas R. Barnes, Attorney at Law is committed to delivering outstanding results in divorce and family law matters by dispensing personalized, cost-effective and practical solutions to its clients.
Family law clients of Thomas R. Barnes, Attorney at Law benefit from our attorney’s 19 years of experience with family law and divorce litigation in Marina Del Rey, California. If you have a question about a family law matter, including divorce, child custody and support, alimony, visitation, adoption, domestic violence, juvenile delinquency or dependency matters, please contact our seasoned family law attorney at (310) 821-7745 for a consultation.