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DivorceLaw Blog- San Jose Divorce and Family Law - Law Blog- San Jose Divorce and Family Law
Child SupportChild support proceedings in California are almost exclusively determined by using a computer software program that bases child support on the income of each party and the amount of time that each parent has custody of their children. Unfortunately, California’s child support guidelines are so complicated that they have earned unfavorable comparisons to the Internal Revenue Code’s taxation provisions.
Child Custody and VisitationThe most important issue for any parent going through a divorce is a determination of the child custody and visitation schedules and orders to be made for their children.
PaternityEstablishing paternity, or determining a parent child relationship, is legally necessary in order to collect child support. If a child’s parents were not married to each other when the child was born, the law does not recognize the father unless paternity is legally established by a court order. Establishing paternity will give your child the same rights and benefits as children born to married parents. Unmarried parents can establish paternity by signing the voluntary Declaration of Paternity. This can be done in the hospital after the child is born. A Declaration of Paternity may also be signed by parents either before or after they leave the hospital (Wikipedia). The federal government provides a payment to the hospital for each Declaration of Paternity signed. The signed Declaration of Paternity has the effect of a legally binding Judgment of Paternity.
Premarital AgreementWhen an agreement is entered into prior to marriage it is known as a prenuptial agreement and certain requirements apply with regards to both the disclosures necessary and the timing of the agreement in relation to the date of the marriage. When an agreement is entered into after the marriage it is known as a postnuptial agreement and increased disclosure requirements apply.
GuardianshipIn cases where neither legal parent is able to care for the children it may be possible for the grandparents to gain custody of the minor children. This may be done through a family law proceeding or through a guardianship proceeding depending on the length of time for which the parents are expected to be unable to care for the minor children.
Spousal SupportEntering into a prenuptial or postnuptial agreement is not necessarily done in contemplation of a future divorce. A prenuptial or postnuptial agreement may simply serve to memorialize the separate property interests of one or both parties so as to limit the need for later litigation. A prenuptial or postnuptial agreement can also serve as a form of insurance against future divorce proceedings by setting forth the parties’ property rights and potentially spousal support rights and obligations.
Legal SeparationIn legal separation proceedings the Court will address all of the same issues that arise in a divorce action, however, at the conclusion of the case the Court will enter a judgment of legal separation rather than a judgment of dissolution of marriage. After a legal separation has been granted the parties will remain legally married and will not be restored to the status of single individuals. Before either party to a legal separation proceeding may marry again the parties will need to take steps to terminate their marital status.
Workers CompensationEven though California does not allow for common law marriages, couples who live together may still have rights to financial support and property division as if they had been legally married, but only under strict circumstances. In these cases, if one or both persons in the relationship had a reasonable and good faith belief that they had entered into a valid marriage, but it turned out the marriage was void, then that person can be considered a “putative spouse.” To be given the status of a putative spouse, it is not enough to say that you simply believed you had a common law marriage. Instead, the couple must have actually gone through the motions to get married, yet had something go wrong when trying to comply with the legal requirements for marriage (often this happens when one person was in a prior marriage and mistakenly thought that he or she was legally divorced). Not only that, but this good faith belief that you are married must continue throughout the marriage, if you find out that the marriage is invalid, then you lose putative status. Recently, it was also established that these same principles can be applied to couples who were in an unregistered domestic partnership. A person with putative spouse status will be entitled to share in property acquired during the invalid marriage or domestic partnership under our community property laws, and to any spousal support that is required once the relationship is terminated. A putative spouse may also have marital-type rights in other situations as well, such as workers compensation or retirement benefits (Wikipedia). The spouse who knew or should have known that the marriage was not valid will typically not be able to benefit from these provisions....
Restraining OrderObtaining a domestic violence restraining order requires that the relationship between the alleged victim and the accused perpetrator fall within certain prescribed parameters; for example the parties were married, in a relationship, lived together or have a child together. Similarly, the California Family Code allows for the issuance of a restraining order only if the accused has engaged in certain conduct and provides only for limited relief in domestic violence proceedings. Obtaining a domestic violence restraining order can be an important step in putting an end to a cycle of abuse and preventing further such abuse.
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