Family law covers a variety of topics that address issues particularly associated with families. Some of these issues may arise during or after the marriage and usually involves both married individuals and children. Our Carlsbad Family Law Attorneys have in depth experience with all practice areas including the following topics:
- Divorce: divorce is necessary when either party in a marriage wishes to terminate the bonds of marriage. A divorce is a process that allows the state to terminate the legal and financial affair that involves two separate individuals.
- Division of Property: division of property is the process by which both parties undergoing a divorce separate the accumulated marriage debt and properties. Division of property and debt may require special attention from an attorney when each there are a number of debts and properties involved in a marriage.
- Domestic Partnership/Same-Sex Marriage: domestic partnerships allow same-sex individuals (or heterosexual individuals where one person is at least over the age of 65) the ability to be recognized as a united entity under the law. Domestic partnerships grant both individuals the rights under marriage laws such as the ability to file taxes under one household, the ability to claim spousal support after the termination of the partnership and other rights that will be discussed in the section below.
- Child Custody: child custody is the process in which divorced individuals decide upon the logistics who the child will live with most of the time and who will handle certain legal matters. Child custody involves legal and physical custody. In most cases, the child will usually live with the individual that takes the child to school, buys clothing for the child, and feeds the child.
- Child Visitation: child visitation can be established after a divorce to ensure that both parties agree to certain visitation schedules.
- Paternity: paternity is the process in which an adult in a relationship wishes to claim parental rights over a child. In some cases, unmarried fathers fail to sign their child’s birth documents which may lead to issues when claiming certain rights over a child.
- Pre/Post Nuptials: a prenuptial agreement (prenup) is a document that is signed before entering a marriage to protect the assets of either party. Like a prenuptial agreement a postnuptial agreement protects the assets of either party, however, this document is signed during the marriage. In both instances, it is best to have present a family law attorney that can validate the documents to ensure that it can be upheld in court.
- Alimony/Spousal support: when undergoing a divorce, either spouse may claim monetary support from the other. The support is meant to aid the lower-earning spouse especially those that have put aside their career developments to raise the children. Spousal support varies case by case as there are a variety of factors that determine the duration and amount of monetary support.
A family law attorney can assist with family-related issues in a courtroom through representation or can help legitimize property agreements such as a post or prenuptial agreements. Additionally, a family attorney can help draft petitions to the family court or provide mediation services. An attorney that is capable of mediating a family issue outside of a courtroom can help prevent the issue from entering a courtroom. A courtroom proceeding is time-consuming and can be emotionally draining. Our attorneys encourage mediation, we believe that families are better equipped to make decisions for themselves, a judge may not always produce what is deemed to be fair. To learn more about ways a family law attorney can help your situation, you may contact one of our Carlsbad Family Law Attorneys at 619-610-7425. Furthermore, if you wish to learn more about the various topics we can help address, you may continue reading down below.
Fathers that are biologically related to a child have as many rights as mothers over the over the legal and physical well-being of the child. Issues in court arise when unmarried individuals conceive a child and then decide to call it quits. When a couple breaks up there is no legal proceeding to end the relationship unless the couple is in a domestic partnership or in a marriage. Upon separation, the biological father has the right to claim custody and visitation over the child. If the couple is unable to produce a child custody and visitation parenting agreement, then either couple may bring the issue to the courtroom. In a courtroom, the unmarried father is required to prove his relationship with the child in order to claim his rights. This can be done by presenting the birth certificate that is usually signed when the child is born. If the father did not sign the birth certificate, he will not be able to claim rights over the child such as child custody, child support, or child visitation. When both parents are on amicable terms, they may enter a family state agency in order to establish and sign the rights to the father. On the other hand, when there is a dispute over paternity rights, the father may enter a legal process in order to prove that he is the biological father of the child. In disputed cases, the biological father may be required to submit to a DNA test. Upon providing prove, the family court will allow the father to claim rights over child custody, child support, and child custody.
Child Custody
One of the leading concerns after a divorce pertains to child custody and visitation. More often than not, a child custody and visitation are issues that can be handled outside of a courtroom and without the assistance of an attorney. This is usually true in situations where both parties are on talking terms and are capable of deciding these issues on their own. On the contrary, when either party is unwilling to cooperate or there is a dispute as to where the children should live or other legal matters, the case may require the attention of an attorney who can help mediate the situation or provide representation in a family courtroom. In a family courtroom, a judge will have the final say on the child custody and visitation rights if and when the parents of the child are unable to come to an agreement. The court will take into consideration the best interests of the child and the ability of the parents to provide a safe growing environment for the child.
In a courtroom, either party may fight for their claim in physical or legal custody. Legal custody refers to the ability of either party to make decisions over the child’s health, education, and welfare. On the other hand, physical custody deals with the child’s living situation. In a courtroom, the judge will consider the child’s age, the ties of the child with each parent, any history of abuse from either party, the child’s community and other factors that will allow the court to decide based on the child’s best interest. A parent that wants to claim rights over the physical and legal matters of their child will require the assistance of an attorney that can provide representation in a courtroom.
Divorce
Married individuals that no longer want to be married may file a divorce for a variety of reasons. In California, individuals have the option to end a divorce without having to prove fault, this type of divorce is common amongst the fifty states and it is known as a no-fault divorce. A divorce procedure can be facilitated by working with a family law attorney that may assist with issues pertaining to alimony (spousal support), child custody and visitation, and the division of assets and debts. Divorce is a complicated procedure that requires time to plan out.
Married individuals may also choose to work with an attorney that can help process a legal separation. A legal separation allows the couple to be legally recognized as a married entity for health care or religious reasons. In a legal separation, the individuals will undergo a procedure that is similar to a divorce in dealing with marital property, child custody and visitation, and child support. On the other hand, an individual in a marriage may terminate the marriage through an annulment. An annulment is a process by which either party provides proof that the marriage was unlawful and therefore was never legitimate. A marriage is unlawful if either party was already married, if either party was under 18 years of age, and if either party has been tricked into a marriage. To learn more about the ways in which you may end a marriage, you may contact a family law attorney to learn about your options.
Same-Sex Marriage/Domestic Partnerships
In the state of California, it is legal for individuals of the same sex to enter a marriage or domestic partnership. Individuals who are of the same sex may enter a marriage and claim rights that are granted to married individuals such as the right to file taxes as a single unit, the right to make decisions on the other when one is ill, the right to claim spousal support, and the right to claim assets after a dissolution of marriage. For a same-sex marriage to be legitimate, both individuals must be over the age of 18 (if marrying without parental consent), there must be consent, and either party must not be married before marriage.
Individuals of the same sex may also engage with prenuptial agreements or postnuptial agreements in order to protect the assets of either party. Furthermore, married individuals may introduce a child into their family and claim parental rights over the child. Same-sex couples have the same rights as heterosexual couples, a court may not discriminate against same-sex married individuals. A same-sex couple may also enter a domestic partnership which allows the couple to claim many of the rights of married individuals. Domestic partnerships were enacted in 1999, now same-sex individuals have the right to a legal marriage.
Postnuptial and Prenuptial agreement
A marital agreement such as a prenuptial or a postnuptial agreement is signed by couples before or after a marriage to protect the assets of each party in the event that the marriage fails. A prenuptial agreement is signed before a marriage and is usually with the intent to protect the assets of the higher earning individual. For instance, a higher earning individual or an individual with shares in a company may establish a prenup before entering a marriage to ensure that his or her property stays with them after a marriage. After a divorce, if you live in Carlsbad, CA, the property acquired during the marriage is considered community property. California is a community property state which means that all property and debt acquired during the marriage will be split in a 50/50 manner. A prenuptial agreement can help address these issues before a marriage is terminated.
In other cases, if you have acquired property using your own assets after entering a marriage, it may be in your best interest to consider a postnuptial agreement. Like a prenuptial agreement, a postnuptial agreement helps the couple decide how the property will be divided in the event that the marriage fails. Furthermore, a marital agreement can help establish protections for each spouse regarding debts incurred by each party. In the absence of a prenuptial agreement and postnuptial agreement, state laws will dictate how the debt and property will be divided.
If you are considering a prenuptial agreement or a postnuptial agreement, it is crucial to work with an attorney that can legitimize the document so that it may be upheld in a family courtroom. There are certain aspects of a marriage that cannot be addressed in a marital agreement that would cause the document to be unlawful. For instance, a prenuptial agreement cannot address issues pertaining to alimony or child support. To ensure that the document you sign can be upheld in a courtroom you may want to speak with a local family law attorney.
Alimony (Spousal Support):
Alimony is a financial support that is meant to aid the lower income spouse to help maintain the living conditions prior to the divorce. Alimony allows the lower-earning spouse financial stability while they get back on their feet. After a divorce, it is very likely that a spouse will have to pay the other some form of alimony, however, the amount and duration of alimony will vary case by case. Some of the factors that affect the amount and duration of the alimony include the number of years that a couple was together, the living conditions prior to marriage, the ability of each spouse to provide for themselves, and the earning potentials of each partner. Another factor includes children, if the children are under the age of 18, the parent with custody may not be able to work for a period of time and will, therefore, require financial assistance. Alimony can last until the lower earning individual earns as much as the providing party or may be revoked if the receiving party has done nothing to help their own situation such as finding a stable job. Furthermore, alimony stops after the receiving party remarries.
In the state of California, if you are paying for alimony, the good news is that you may claim tax deductions based on the amount paid. On the contrary, if you are receiving alimony payments, you will be required to pay taxes on the amount received. To learn more about alimony, and the amount that should be rightfully paid, you may consult with a local family law attorney.
Division of Property
In the event of a divorce, if you are in the state of California, you will be required to split all assets, properties, and debts in a 50/50 manner. In community property states such as California, all property and debts that are incurred during the marriage are known as community property and each party has a right to them. Individuals that want to avoid state law intervention in their debts and properties should consider a prenuptial or postnuptial agreement that allows them to separate the debts and properties as they wish. Furthermore, a couple has the right to decide how to separate properties and debts in a manner that is deemed fair. However, if there is a dispute that requires the attention of a judge, the case will be handled using the community property laws of California.
To divide properties and debts, each party will need to fill out the Schedule of Assets and Debts form. This form allows each spouse to make a list of properties and debts owed by each party. The goal in dividing debts and property is that each party will share a net equal amount of the debts and properties incurred during the marriage.
Couples located in Carlsbad, California who wish to discuss their family related issue may contact San Diego Family Law Attorney at 619-610-7425. Our family law attorney understand that family issues are personal which is why we practice a high level of professionalism. We are ready to learn about your case and provide consultation before you head to a family courtroom
