(Custody and property division)

LAW AND ORDER: THE LEGAL SYSTEM

 

This area of law is unique in that it requires one to make “business decisions” (i.e. money and property) as well as decisions concerning “personal relationships” (i.e. who gets the children, how often does the mother/father see the children).  These factors combine with the complexity of the rules and procedures of family law make one’s personal journey in getting a divorce, marriage annulled, paternity testing, obtaining child support, a distressing experience. The guidance of a compassionate family attorney should minimize the distress and maximize the positive results. It should be as “painless” as possible without destroying the family unit.

There are four major types of family law actions: Dissolution (divorce), Legal separation, Nullity (annulment), and Paternity (support for children of unmarried partners). Dissolution of Marriage in the state of California requires that at least one party must have been a resident of the state for 6 months and 3 months of the county in which the petition is filed. Legal Separation has no residency requirements. An advantage to this is the ability to obtain temporary spousal, child support or other temporary orders without having to wait 6 months. Nullity of marriage allows a marriage to be declared void as a matter of law or voidable upon sufficient showing of evidence to the court.

By operation of law, a void marriage would be those between family members and polygamous marriages. A “voidable” marriage requires evidence that a party may have been of “unsound mind” (unable to understand the concept of the responsibilities owed to a marriage).  The most common ground used is fraud (false representation of some kind or concealment of a material fact).  Another is marriage by force (an individual’s free will was overcome by threat). Physical incapacity (one’s inability to “consummate” the marriage) and the petition must be filed within 4 years of the marriage.

CUSTODY:  Legal custody allows the party the right to determine the child’s health, education and welfare. Physical is where a child shall reside. The “best interest of the child” standard is used to determine who gets custody. There is a strong public policy that the non-custodial (the parent who is not awarded physical custody) should have “frequent and continuous”contacts with the child(ren).

A visitation arrangement will be determined by the court if the parties are unable to stipulate (agree) to one. The child’s need for stability and welfare of the child is paramount. In “move away” cases where one parent decides to relocate, the opposing parent must show that “the move will cause detriment to the child.” A child’s preference will be considered, if the child is of sufficient age and capacity to reasonable request. The older the child is, the more likely the court shall consider the child’s wishes.

PROPERTY: Most states use the “common law” system of property. If you live in Arizona, California, Idaho, Louisiana New Mexico, Texas, Washington, Wisconsin and (in Alaska, spouses can sign an agreement making specific assets community property). For common law states, if your name is on the deed, registration document, or the title, it is yours. You are free to leave your property to whomever you choose, subject to your spouse’s right to claim a certain share after your death. If you and your spouse both have your name on the title, you each own a half interest in the property. Your freedom to give away or leave the half interest depends on the type of ownership.

In community property states, money earned during marriage and all property bought with those earnings are considered community property owned equally by husband and wife. Likewise, debts incurred during marriage are generally debts of the couple. At the death of the one spouse, the half of the community property passes on to the surviving spouse, unless a will dictates otherwise.

There are exceptions and standard practices used by judges and family law attorneys. It is this information that is critical to be aware of if you are going through this. As such, an attorney should be used rather than paralegals or family law facilitators. It is the nuances of your case that will be missed.

 

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