Our Firm Represent Your Interests In The Following
Family Law Areas
Divorce (Dissolution of Marriage)
Divorce, also known as dissolution of marriage, is the process of ending a marriage and properly allocating separate and community property. It can also involve issues including custody, visitation rights, child and spousal support, and domestic violence. Divorce can be resolved within a matter of months if the parties have resolved all relevant issues and move quickly to complete and file necessary settlement paperwork. Or it can be a much longer process requiring hearings on one or more of the above issues and a trial. Some issues, such as those involving children, can continue beyond the period when the divorce becomes final.
Family Courts can divide assets and debts involving items like real property, banks accounts, investment accounts, retirement accounts, and miscellaneous personal property (cars, jewelry and furniture, credit card debts and student loan debts). California law states that community property shall generally be divided equally at time of divorce. Community property includes assets and debts acquired by parties between the marriage and separation date. Separate property is property acquired by one of the parties outside of this time span, though this is not always true. For example, property acquired during the marriage by one party through inheritance could be that party’s separate property. If properly written to comply with the family law code, community property and separate property may also be changed in character through agreement.
Child and Spousal Support
In California, child support is determined by statutory guidelines. The amount depends on several mandated factors, including the incomes of each parent and percentage of parenting time each parent has with their child(ren). The Court can decide to vary from the guidelines based on discretionary factors. Child support, like spousal support, can be modified by filing an appropriate motion based on a change of circumstances like increased/decreased income or birth of additional children now in that party’s household.
California Family Code Section 4320 states factors which the Court must consider in determining spousal support requests. They are more controlling for long-term support (support ordered at time of judgment), then for temporary support orders (ordered between the time a family law case is filed and judgment). These factors also apply to attorney’s fees awards. They include: ability of the potential supporting party to pay support, ability of the potential supported party to work, and need of the potential supporting party for such support.
Child Custody and Visitation Rights
Child custody can be divided into legal custody (decision-making authority) and physical custody (care and control, usually equating to when the child resides with a parent). One parent can have sole legal and/or physical custody. Or parents can share what is called joint custody in one or both of these respects. While not having legal meaning, a parent who has most of the physical custody time is often said by the courts to have primary physical custody. Subject to statutory guidelines, custody may be granted to a nonparent. The primary concern for the court in awarding custody is the child's health, safety and welfare. A custody order also aims to let both parents have frequent and continuing contact with their children after separation.
In making a custody order between parents, the court must also grant a noncustodial parent reasonable visitation rights unless it is shown that visitation would be detrimental to the best interest of the child. Such visitation is usually ordered prior to a dissolution judgment unless factors such as child abuse or domestic violence by the noncustodial parent are present and contrary to the child's best interests. An order completely withholding a parent's visitation privileges may issue only upon a finding that it would be detrimental to the child's best interests. Supervised visitation is sometimes ordered in borderline situations. Otherwise, courts usually have broad discretion in defining a parent's reasonable visitation rights in a child's best interests and establishing a visitation schedule. Depending on the circumstances, such visitation may start out as mostly occurring on weekends and some weeknights or involve greater periods. Vacation and holiday time is also often factored into such orders.
(Premarital) Prenuptial and (Marital) Postnuptial Agreements
California law recognizes prenuptial agreements if they meet related legal requirements. Parties must disclose assets in related financial documents and complete a related settlement agreement for the Court’s review and signature. Such agreements can be helpful in clarifying the outcome of potential division of property issues involving real property and various types of personal property. They can also include agreements on issues involving custody issues and potential payment of spousal support.
Postnuptial agreements, as opposed to prenuptial agreements, are those that occur after the marriage of the parties but before the commencement of dissolution proceedings. These agreements cannot promote dissolution of marriage, waive or limit child or spousal support, impinge on the court’s custody-related jurisdiction, or provide fault-based penalties contrary to California’s designation as a “no-fault” state. As a practical matter such agreements must be in writing. Various types of real and personal property are often the subject of these agreement.
Protective orders and other domestic violence prevention orders may issue in a domestic relations status action or independently under the Domestic Violence Prevention Act (DVPA). They may be obtained ex parte (within a day or two of request) to prevent a recurrence of domestic violence pursuant to affidavit. Types of conduct subject to restraining orders include verbal and written harassment as well as physical assault. They may protect an abused spouse and/or his/her children. A temporary order is usually followed by a permanent restraining order hearing about 10 days later. If granted, a permanent restraining order usually is issued for a period of 6 months to 5 years and is potentially renewable at the end of the ordered period.
The Law Offices of Todd Smilovitz will also represent your interests in these aspects of family law:
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