For many California residents, one of the few times they may set foot into a courthouse will be for a family law matter. From Northern California to San Diego and courthouses everywhere in between, a marriage license, divorce or child support issues crop up frequently.
A couple's right to get married, laws regarding divorce and child support payments and custody decisions are governed by California law. The term “family law” refers to rules, regulations, and court procedures relating to the family unit. While some family law matters may be handled without counsel, emotions can run high with these legal issues. That's why divorce and child custody matters often require the expertise of an experienced California attorney.
LawInfo's California Family Law section includes information about divorce, marriage, child custody, adoption, paternity, domestic violence and other topics. It contains legal overviews, summaries of state laws and other resources to help you make the right decisions for you and your family.
Under California marriage law, both parties:
For consent to exist, both parties must freely enter the marriage and not be forced in any way to marry. They also must have no mistake as to the nature of the union. As long as both of these conditions are met, consent exists.
For a person to have capacity, they must be of “sound” mind and be capable of understanding and appreciating the nature of their union.
Procedurally, the couple needs to obtain a marriage license from the county clerk prior to marriage. The marriage license in California is only valid for 90 days. So after applying for a marriage license, the couple must plan to get married within that period of time. Once the marriage takes place and the marriage certificate is signed, the license must be returned to the county clerk's office from where it was issued within 10 days after the ceremony.
A prenup is a contract between two spouses before becoming married. The terms of a California prenup may, obviously, have different interests and goals in mind. That's why each spouse should usually be represented by their own attorney when signing a prenuptial agreement. For a prenup to be valid, the only requirements are that it must be in writing and signed by both parties.
That doesn't necessarily mean it will hold up in court if challenged. For the prenuptial agreement to be enforceable:
Many a prenup has later been challenged in divorce court so these factors should be considered whenever an agreement is signed.
When filing for a divorce in California, one spouse must have been a California resident for six months and for three months in the county where the divorce is filed. If spouses do not meet the residency requirement, they may file for legal separation instead of a divorce and then amend the paperwork after reaching the six-month or three-month threshold.
There is a waiting period for a divorce in California. No divorce decree may be finalized until six months after the divorce paperwork is provided to the respondent (non-filing spouse) or the respondent's first court appearance, whichever is first. If a judge believes there is a reasonable possibility of reconciliation between the spouses, he or she may halt the divorce proceedings for up to 30 days.
California community property laws are unique when compared to laws in other states, primarily because the state recognizes all marital property as subject to equal division.
Most states divide marital property through the more complex process of “equitable distribution,” which considers a number of factors, including the length of the marriage and income of each spouse. But as part of a California divorce, marital property is divided according to the legal theory of “community property.”
Community property laws mandate that everything a married couple owns together is subject to a 50/50 split upon divorce. It's a broad category that includes the following:
In California and other community property states, it doesn't matter who earned the most income or purchased the most property—everything is subject to equal division. However, parties may decide on a different distribution plan if it is an uncontested divorce.
Each parent is legally responsible for the financial support of their child. California courts make child support orders based on both parent's income levels and the amount of time each person physically spends with the child.
A parent's legal support continues until the child:
A court can also order both parents to continue support for a disabled adult child if that child cannot support him or herself.
A California judge will look at the “net disposable income” of each parent. This means the parent's income after taxes, mandatory union dues, mandatory retirement contributions, health premiums, child or spousal support already being paid, and costs associated with raising children from another relationship.
Here is a short (non-exhaustive) list of the types of expenses included when figuring out child support needs:
Monetary support includes food, clothing, housing, basic education and other essentials for a child.
Whether you need a family law attorney depends on a number of factors specific to your case. There is no one-size-fits-all answer. Few couples need a lawyer to get married but attorneys may be required if there’s a prenuptial agreement involved.
Individuals often benefit from hiring an attorney when dealing with divorce, child support, and especially child custody matters. Because emotions can run high during some divorces, hiring an attorney to negotiate and resolve difficult issues can be invaluable.
Many lawyers offer free initial consultations, so it may be worth your time to speak with an experienced California family law attorney if you have additional questions.