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Pleasanton Family Law Blog

Legal help can be useful, even in an uncontested divorce

When a California couple decides that they are at the end of their marriage and they have essentially settled all their issues, they may pursue an uncontested divorce. This is a useful way to simply part ways and avoid the rancor, aggravation and excessive cost that accompanies many divorces. However, a common question that people will ask themselves is if they even need to have legal advice when there is an uncontested and relatively amicable parting of the ways. The answer is that can help to have legal assistance to avoid unexpected divorce legal issues.

Any legal case can have complications. It is not unusual for simple proceedings to have a stumbling block that can open the floodgates to a whole host of problems. Legal assistance may help keep that from happening. Other factors, such as the unexpected realizations and emotional responses, can cause an untold number of negatives. Then there are the legal factors in filing the case and having all the agreements adhere to the law. These are not always simple tasks, but a lawyer can ensure they are all completed as they should be.

What can be in a prenuptial agreement and when is it in effect?

Couples in California who decide to get married will often want to protect themselves against the possibility of divorce. Frequently, premarital agreements (also referred to as prenuptial agreements) are perceived as something to have when one spouse has a significant portfolio of assets while the other is of more modest means. However, that is not necessarily the case. Many people, regardless of the financial situation, want to be protected in case the marriage does not work out. Since divorce legal issues will center around property division and other financial circumstances, knowing what a premarital agreement can do is imperative, even after the marriage has been completed and the couple is considering a divorce.

A premarital agreement can list the rights and obligations of the parties with regards to property belonging to either or both, no matter when and where it was acquired. It can detail the right to sell, purchase, use or do anything else with the property. When the couple separates, divorces, one of the spouses dies or something occurs or does not occur, the agreement can dispose of the property. The agreement can govern the creation of a will, trust or other method of the agreement being carried out.

Divorce mediation: Do you know what to expect?

There could come a point when you realize that your marriage is no longer working. If this happens, you need to learn more about the divorce process.

There is no reason to assume that your case will immediately move to the courtroom, as mediation is one of the best ways to work through your differences, all the while saving time and money.

Can a child's wishes be considered in a child custody case?

While a California child custody case often focuses on the parents and their goals and desires when it comes to the determination of child custody, the children should not be ignored. It can be difficult to assess how much influence the child should have in deciding where he or she will live, what the visitation rights will be and numerous other issues. However, the law can consider what the child wants. Knowing how this is handled is key to a case.

The child's age and capacity are paramount when expressing a preference. The court will decide if the child is old enough and shows adequate maturity to have his or her desires accounted for. When a child is examined as a witness, the court will control the examination to serve the child's best interests. Children age 14 and older will be allowed to address the court if they want to. However, the court can decide that it is not in the best interests of the child and not allow it. The reasons for this finding will be stated.

It's possible to keep the details of your divorce private

Have you ever noticed that celebrities rarely hash out the particulars of their divorce settlements in open court? While they love to bask in the glow of the spotlights for their professional achievements, when it comes to revealing some unflattering truths about their marriages, they prefer to keep the sordid or untidy details under wraps.

But it's not just celebrities who can benefit from keeping mum about these matters. As divorce can be hard on those involved — particularly the kids — negotiating the settlement terms through mediation is often preferable.

How do I go about ending spousal support in California?

For many at the end of a marriage in California, there will be an order that one former spouse pay spousal support to the other. For some, this is not a major issue. For others, however, it is an economic hardship. Regardless of the circumstances, there are times when the spousal support order can and will come to an end. Knowing how to ask the court to end the spousal support order is an important step that will allow both parties to move forward and no longer need to have the same amount of contact with one another if they do not choose to.

In some cases, there is a designated end date when the payments will no longer be made. If so, then the paying spouse does not need to do anything with the court -- the payments will conclude when the date is reached. There are cases in which the supporting former spouse is subject to wage garnishment from his or her paycheck to provide for the supported former spouse. If that is the case, then it might be necessary to prepare an Earnings Assignment Order for Spousal or Partner Support. This will reflect that there is no money owed for the support. It will be given to the employer to make the needed changes and stop the wage garnishment. Some former spouses who are receiving support will start a new relationship. If they get married, then the same form must be filed again with an amount stating that $0 is left to be paid.

What is a separate trial in a California divorce?

Californians generally believe that a divorce will either be categorized as one extreme or the other meaning that it will either be amicable with the parties negotiating and agreeing to part ways without rancor, or it will be rife with dispute and the parties are fighting over everything. However, in many cases, the parties can come to an agreement on certain issues, but not on others. In such a circumstance, a separate trial could be a preferable strategy. Knowing how a separate trial works and whether it is beneficial to the situation is key.

With a separate trial, it might be possible for the parties to resolve their issues and complete the entire case. Alternatively known as "bifurcation," this is defined as separating the legal issues. There are many different issues that can be handled through a separate trial. If there are children involved, it can handle child custody and visitation. A premarital agreement could have been agreed to before the marriage and its validity or invalidity could be in question. The date at which the couple was separated could be in dispute. The marital status -- whether the couple is divorcing or legally separating -- could be an issue.

What is the criteria for a divorce by summary dissolution?

Many couples in California who have determined that their marriage is not working would like to get a divorce. However, there are concerns about the cost and time it will take to make it happen. For those whose issues are simple and prefer to avoid going before a judge, a summary dissolution might be the way to go. However, people must understand that there are certain conditions that must be in place to get a summary dissolution. Knowing these is the first step.

The parties must meet the jurisdictional requirements to get divorced in the state. There must be irreconcilable differences that have resulted in the marriage being irretrievably broken. The couple cannot have any children from the relationship that were born while they were married or were adopted while they were married. There cannot be a current pregnancy. The marriage cannot have lasted for more than five years. There are property requirements with a summary dissolution. Neither party can have an interest in any real property apart from a lease on a residence that each party occupies and one that satisfies the following: there is no option to purchase within the lease and the lease will terminate within one year of the date at which the petition for dissolution was filed.

Child custody matters require experienced legal assistance

California child custody issues can be a difficult issue to navigate, not just for the parents of a child, but also any person who believes he or she should have visitation rights with a child. Naturally, the child's best interests are paramount, but there is often a disagreement as to what exactly that entails. This can spark parents into engaging in a child custody dispute. When there is any disagreement large or small when it comes to child custody and visitation rights, a mistake that people commonly make is that they fail to have legal assistance to handle the issue. This can result in bigger problems and severe damage to their relationship with their child.

There are some child custody cases in which the issues are minor and the parents can resolve them relatively amicably, despite no longer being together as a couple. They will discuss the issues, have the capacity for flexibility and will take the child into account when coming to a resolution. Mediation can be useful in such a case. Other cases involve parents who might not be amicable, but are interested in the child's best interests and can agree to disagree with assistance in settling the matter for all involved. Then there are cases in which the parents both want custody and might not even want the other parent to have visitation. These situations can be more complex and often need to go to court to be settled. In any of these circumstances, it is critical to have legal assistance.

What does California law say about determining child custody?

California child custody issues are rife with emotions. These matters can be complex and lead to disputes between the parties, with the child often becoming stuck in the middle. Of course, there are some situations in which the parties can come to an agreeable resolution. In any case, the best interests of the child are the most pressing concern and, from the start, everyone involved should bear that in mind. It is also important to understand California law regarding what the court will consider when making child custody decisions.

The court will take into consideration which parent will grant the other parent contact with the child on a frequent and continuing basis. A parent's gender will not be a preferential factor with the decision the court makes. Many parents are concerned about a hot button issue in today's world: immigration status. The law states that the immigration status of a parent, legal guardian or a relative will not be a disqualifying factor when custody is determined. The court will be allowed to decide if there should be sole custody, joint physical custody or joint legal custody. There is no preference nor is there a presumption that any one option is better than the other. The main, relevant factor is the child's best interests.

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John T. Chamberlin, Attorney at Law
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