Family law encompasses a variety of ordeals that are handled by family courts all across the country. Family law is different in every state, so you should consider examining your case with a local attorney if you find yourself in a domestic quarrel.
Our family law expert is capable of helping you in the following situations:
- Premarital Agreement
- Post marital Agreement
- Child Custody
- Child Support
- Domestic Violence
When family issues hit a courtroom, the issues can cause great tensions with someone you love. The best thing to do when a family issue arises is to attempt to fix the problem outside of a courtroom. Our attorney is specialized in family law and mediation. To contact a local attorney about your case, you may reach the Encinitas Family Law Attorney at 619-610-7425
The following will go more in-depth on the practices mentioned above.
Divorce became more popular after the first no-fault laws came into practice in California, 1970. In 2010, New York became the fiftieth state to adopt the no-fault divorce laws. The significance of the no-fault divorce law was that more and more individuals could file a divorce based on ‘irreconcilable differences’. After 2010, no-fault divorce cases could be filed in every state. With the adoption of the new divorce laws, individuals that wanted a divorce were no longer required to file fault-based divorce. Fault-based divorce required that there be proof of wrongdoing by either spouse before a divorce may be honored in court. No-fault divorce cases have been a standard in divorce cases, however, there are circumstances that may require the attention of an attorney capable of filing a fault-based divorce. For instance, in domestic violence cases, a spouse may expedite the divorce process by filing a fault-based report. In addition, a spouse may be granted more alimony or property after the division of property, assets, and debts.
Another aspect of divorce is the division of property and assets. If you are in Encinitas, CA, you will be required to divide all property, assets, and debts in a 50/50 manner. California is a ‘community property’ state which means married individuals share whatever asset or debt they accumulated while they were married. When a married couple files for divorce, all of the property, assets, and debts must be valued correctly so that each spouse gets what they deserve. The division of property and debt is a process that is conducted through informal means. If you are considering divorce, you should examine your case with an attorney who can help mediate the process. In divorce cases, you highly advised to seek mediation before entering a courtroom. Once you enter a courtroom the process will become more costly, time-consuming, and the division process will be handled by a judge.
One of the best precautionary measures you can take before marriage is to establish a premarital agreement (also known as prenuptial agreements or ‘prenups’). Individuals who are undergoing a divorce can rest assured that their property is secured and protected from the division process that occurs after a couple files a divorce. A prenup is a legal document that is signed by both parties before entering a marriage. One of the best things about a prenup is that if couples cannot come to an agreement, they may choose not to get married or may work on the issue until both parties come to a conclusion. In some cases, when the couple is already married, it may be more difficult to establish a marital agreement. Furthermore, you need to ensure that your prenup is lawful and can hold up in court. There are a number of things that cannot be addressed in a prenup including issues pertaining to children and alimony support. For instance, your prenup cannot contain anything illegal or provisions that reduce the lawful amount of child support you are required to pay. Issues pertaining to children are usually handled by a court after assessing the child's best interest. If your prenup goes against certain legal obligations or is not in the best interests of the child, the provisions may not hold up in court. To ensure that the content you include in your prenup is honored in court you may consult your document with an attorney before entering a marriage.
Post marital Agreement
As with premarital agreements, post marital agreements are legal documents that require the signature of both parties involved in the marriage. The difference with post-marital agreements is that if and your spouse cannot come to an agreement, the court will proceed with the division of property, assets, and debts once a divorce is filed. Individuals that try to establish a post marital agreement will find that they cannot retain as much as they hoped for especially when the other wants to keep his or her part of the property or asset. Post marital agreements can be a tedious ordeal for individuals that entered a marriage with a substantial amount of assets and property. Once you are in a marriage you may be required to split your property if you cannot successfully establish a post marital agreement.
As with premarital agreements, if you come to a conclusion with your spouse, you should run your document by an attorney to ensure that it is lawful. In addition, you and your spouse may work with an attorney who can help draft a document that can hold up in court.
One of the more difficult aspects of a divorce is when either party cannot agree to custody terms. When either partner wants to have full custody or requests a specific visitation schedule, a family court will usually be involved to help determine the best solution. In child custody cases, the court will determine the best interest of the child by looking at a couple of factors. First and foremost, the family court will take into account either party ability to financially support the child and provide a safe environment that is free from hazards. More often than not, children tend to stay with the parent that changes their clothes, takes them to school, cooks for them, and takes care of other parental obligations. In most cases the person that keeps custody is the mother, however, a father may claim custody if he is able to prove that it serves the child's best interests.
Fathers can be granted with full custody if they can show proof that the other party is not capable of providing a safe growing environment. For instance, a father may be granted with custody if the child is neglected or abused by the parent that holds current custody. Most divorcees understand the importance of keeping either parent in the life of the child and most times both parties choose to have an open custody and visitation agreement.
Another complication that arises after a divorce is child support. Child support bites off a chunk of your paycheck every month until the child is fully independent. In some cases, parents may be required to pay child support until the child/young adult has graduated from college. After a divorce, the higher earning spouse will be required to pay child support and the amount that is paid a month will vary in each case. Individuals that have high earning potentials and no mandatory financial obligations should expect to pay more than those with low earning potentials and other financial obligations. In other words, the less income you make or the more financial obligations you have, the less you will be required to pay in child support.
Individuals that fail to pay child support may be charged with a misdemeanor or a felony and may face jail time. Child support debt is debt that must be repaid no matter what. In fact, if you file for bankruptcy, you may not clear yourself from child support debt. In other cases, individuals who are backed up with child support may find that they are charged with wage garnishment. Child support can become a nightmare for high earning individuals, to ensure that you do not pay more than you have to, you should discuss your issues with a family lawyer.
In addition to child support, the higher earning spouse may be required to pay for spousal support. Spousal support otherwise known as alimony may be established if the couple was married for a certain amount of years. If you find yourself in Encinito, CA, you may be ordered to pay alimony for half the duration of the marriage. The California Courts explain that a family court will consider the factors under California Family Code Section 4320. The court will take into account 1) the duration of the marriage, 2) the standard of living before the divorce, 3) each parties expenses, 4) children, 5) the age of both parties, 6) debts and properties, 7) domestic issues and other factors that impact a court decision. A Court order will provide how much you are required to pay in alimony and for how long after reviewing the factors mentioned above.
In marriages that lasted over ten years, the court may not place an end date on the alimony. Individuals that require the support of an ex-spouse may continue to receive spousal support until their circumstance changes. The higher-earning spouse may also be required to pay for college or job training to help the other spouse get on their feet. Alimony can become very tricky especially if your ex-spouse has no intention of providing for his or herself. Higher earning individuals have a lot to lose after a divorce, usually, it is best to examine your case with an attorney.
Domestic violence occurs between individuals that are married, dating, or rooming together. Domestic violence is a pattern of abuse that can come in the form of physical, emotional, financial, sexual, and mental abuse. If you are in a marriage or domestic partnership and you are a victim of domestic abuse, you should examine your case with an attorney who can help terminate the marriage or partnership, establish a retaining order, or place charges to incarcerate the abusive person.
Family courts are becoming more aware of the legal issues that arise with surrogacy. In surrogacy, there are two procedures that affect how the surrogate child is treated in the face of the law. Under family law, both parents have rights to their biological child unless their parental rights are terminated or relinquished. In surrogacy issues arise when the surrogate mother attempts to claim rights over the child. In traditional surrogacy, a surrogate mother has her eggs inseminated with the semen of the prospective father. When the child is born, the surrogate mother must terminate her parental rights so that the other party involved is capable of adopting the child as their own. When the surrogate mother refuses to give up on her child, the couple may want to establish an open relationship that involves raising the child with the surrogate mother present in the life of the child.
On the contrary, family courts have seen cases involving surrogate mothers who fail to establish rights over the child they conceive. When a surrogate mother undergoes an in vitro fertilization process, it is crucial to understand that the child will be biologically related to the individuals that paid for the gestational (in vitro) fertilization. In this procedure, the eggs of the female are inseminated with the partner's semen, then, the eggs are implanted in the womb of the surrogate mother. In this case, the surrogate mother will not be biologically related to the child and may not establish rights over the child that is conceived. Furthermore, if you find yourself in Encinitas, CA, you may face additional complications in California Family courts as they tend to honor surrogacy contracts. In other words, if you are a surrogate mother that has signed off her parental rights, you may not be able to establish rights over the child, however, this is only true in California. Surrogacy is very new to family law so it is crucial to have your surrogate agreement reviewed by a law professional.
When a child is adopted the family court will grant the adoptive parents legal rights over the child. In most cases, when the child is adopted it means that the biological parents have given up their rights over the child. However, it is very common for parents to keep an open adoption with the birth parents. More and more adoptive parents find that an open adoption may benefit everyone involved in the life of the child. If the biological and adoptive parent cannot come into certain agreements usually pertaining to visitation, a family court may be involved. As with surrogacy cases, the California Courts make it very difficult and in some cases impossible for biological parents to establish rights over a child that has been adopted through a surrogacy contract.
A court may order or give certain parental rights to a person that is not the birth parent of the child. In a guardianship, the guardian may have custody over the child, but it does not mean that a biological parent is completely out of the picture. For instance, a court may order for the child to live with their legal guardian (a grandparent or close family member) while allowing the biological parents to keep their visitation rights. You may establish guardianships rights over a child that is not yours if you are a close family member, and you can prove to the court that the best interests of the child would be served by allowing them guardianship. For instance, after a divorce, if both individuals are not capable of keeping the child, a court may grant guardianship to a close family member. If you want to seek guardianship over a child that is not yours, you are highly advised to discuss your circumstances with a regional family lawyer.
A young person under the age 18 may seek emancipation from their parents if they wish to file their own taxes, buy property, or do many of the things allowed to working adults. Emancipated adults cannot smoke or drink until they reach the legal age in their region. Emancipation should only be considered if the child has a legitimate reason to emancipate. A child may also consider emancipation after a family divorce. For instance, if the child does not want to live with either parent, he or she may seek emancipation. In order to seek emancipation, the child needs to be at least between fourteen to sixteen years of age in most states. In addition, the minor may need to provide proof of financial stability.
If you are in the state of California and you need assistance in handling any of the issues mentioned above, you are advised to seek a regional family attorney. As mentioned earlier it is best to work with an attorney that is capable of mediating the situation before entering a courtroom. To contact our family law lawyer, you may reach us at 619-610-7425.