Both divorce and legal separation provide separate lives for marital partners and establishes important decisions.
Spouses may choose to divorce for a number of reasons, including a loveless marriage, domestic violence issues, mental health or emotional issues, or opposing goals in life. Other couples facing similar issues may choose legal separation instead, whether for moral, ethical and religious reasons, or for practical grounds such as insurance and other benefits or residency requirements for obtaining a divorce.
The grounds for separation are the same as for divorce. Either one may be had on the no-fault ground of irreconcilable differences, and it is not necessary to prove that one party is at fault in some way for ending the relationship. The residency requirement is not an issue in legal separation, but the separation must be consensual to be granted.
A separation agreement is not required in order for a couple to live apart, but a thoughtful separation agreement can adequately address issues such as child custody, the payment of support, and property division. Whether a separation ultimately leads to divorce or reconciliation, a legal separation agreement can pave the way for a resolution approached with dignity and respect as opposed to rancor and hostility.
Spousal support, also commonly called alimony, is not a requirement, and it is not always granted in a divorce or legal separation. Matrimonial law grants the court broad discretion in deciding whether to award spousal support, how much, and for how long. the primary factors considered by the court are the need of the spouse seeking support and the ability of the other spouse to pay. Whether you are seeking or challenging an award of support, it is important to be represented by a strong attorney who can effectively advocate for your interests before the family law judge.
As a community property state, all marital property is divided equally between the spouses. It is essential, therefore, that every asset by properly identified as separate property or community property and properly valued, in order to arrive at a fair distribution. Characterization and valuation issues can get quite complicated, such as when dealing with one spouse's ownership interest in a business or the division of a military pension.
In determining custody, the judge will decide both the physical custody and the legal custody of the child. Physical custody refers to actual parenting time, while legal custody includes the parental authority to make decisions regarding the child's education, medical care, religious upbringing, etc. In either case, the court may grant either sole custody or some form of joint custody, where the parents share in the child's care and other important responsibilities.
California child support law places the needs of the children first. Although parents usually know what is in their children's best interests, arriving at viable support arrangements can be difficult, and the judge may be the one to decide based on the evidence and arguments presented. Some factors considered in determining child support include the earnings of both parents, the custody and visitation arrangement, and the child's health insurance expenses as well as any extraordinary medical expenses or other special needs.
Under California law, a temporary restraining order (TRO) can be obtained against a current or former spouse, boyfriend/girlfriend, relative, or other person in a close personal relationship who has been physically or verbally abusive. The TRO can accomplish many things, including ordering the abuser out of the house and prohibiting any contact with the victim, the victim's children, and others living in the home. The TRO could also prohibit the abuser from possessing a gun or order the abuser to pay child support or spousal support or comply with other domestic relation orders.
After a TRO has been put in place, the court sets a date for a hearing on whether the protective order should be dismissed or continued for a longer period, up to five years. The person subjected to the order has the right to appear at this hearing and challenge the order, so it is important to be prepared for this hearing and to be well-represented by experienced legal counsel.
Only a legal father can assert a legal right to custody and visitation. Also, only a legal father can be legally compelled to pay child support. The question of paternity is therefore often raised in a divorce proceeding where there is a question as to the child's parentage. This question can be resolved in a legal proceeding brought to establish or challenge paternity.
When a couple was unmarried at the time of the birth of a child, the question of paternity may still be open if the couple did not sign a Voluntary Declaration of Paternity at that time or at a later date. Even if the couple is married, the husband is only presumed to be the father, and this presumption can still be challenged by a third party and proven by genetic testing or other means.
When the parents of a child have died or otherwise cannot provide for the care of their children, such as if they have become incarcerated or physically or mentally incapacitated, the court may appoint a guardian over the child's person or estate. A guardian of the person has legal and physical custody of the child and is responsible for the child's care and upbringing. A guardian of the estate is responsible to manage the child's finances until the child turns 18. A guardian of the estate is usually only necessary if the child receives more than $5,000, and the court may appoint the same person to serve in both types of guardianships. Grandparents or other family members are frequently the choice to become guardians.
There are many different types of adoptions. Grandparents or other family members caring for a minor relative may seek to adopt the child rather than merely serving as guardian, or as a next step following a guardianship proceeding. Also, couples may choose to adopt a child from a public or private agency, which may be in-state, interstate, or international. Finally, a stepparent may wish to legally adopt the children brought into his second marriage, in order to grant them legal status to inheritance and other rights, and to establish his parental rights. A stepparent adoption will terminate the parental rights of the biological father, and cannot generally be accomplished over the natural father's objection, unless he has abandoned the child for more than a year and has not provided any financial support.
Any type of adoption is a complicated, legal process which can take a lot of time and still fail if not handled correctly. Experienced legal representation by a skilled and knowledgeable family law attorney is important to making sure the adoption is handled correctly.
Once domestic relations orders are final, they are difficult to modify, except upon a showing of changed circumstances which would justify the modification. For instance, a change in either spouse's income may justify a change in a child support order, and the child custody arrangement may need to be modified if either spouse chooses or needs to relocate out of state or a significant distance from the other.