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Family Law Blog

Who’s to Blame in a Divorce, and Does it Matter Under California Divorce Law?

Adultery, insanity, collusion, cruelty, abandonment: In California, most of these circumstances relate more to the plot of a soap opera than to a divorce.  While any one of these could have actually motivated the divorce, a California judgment of dissolution (divorce) will be based only on either irreconcilable differences or (less likely) incurable insanity.  That’s because since 1970, California was the first state to implement the no-fault divorce.  Since then, many other states have followed suit, while others allow both fault and no fault divorces.  With a no fault divorce, the court can terminate the marriage without proving fault.  Compare this to a fault based divorce, where the termination will be granted only if you give and prove grounds for divorce within those reasons allowed by state law, or defend against these claims if you’re responding to a spouse’s petition for the divorce.  In a fault based divorce, the conduct of the spouse who’s found to be “at fault” may even be considered when deciding issues such as property division.  As of now, New York is the last state in the nation that doesn’t have a no fault ground for divorce.    Continue Reading

The Annulment: When Will California Law Say a Marriage Never Existed?

When a judge grants an annulment in California, the parties are deemed to have never been married in the eyes of the law (although the wedding guests who witnessed the union may tend to disagree).  Compare this to a dissolution (divorce), where a valid marriage is terminated for reasons created post-marriage.  Under California law, the grounds for nullifying a marriage or domestic partnership are broader than commonly believed.  Even so, most marriages can’t be undone with an annulment, and despite the myths, an annulment is not an easy way out.  An annulment is a potential alternative to divorce only when there’s reason to question the validity of the marriage.  Immediate regret and disappointment are not legal bases for annulling a marriage.  Depending on the basis for the annulment, a judge may either declare the marriage to have been unlawful from the outset (a “void” marriage), or to have been valid until formally annulled by the court (a “voidable” marriage).  Continue Reading

It’s Not Too Late: The Postnuptial (or Marital) Agreement in California

The postnup hasn’t been in the spotlight nearly as much as its well known counterpart-the prenuptial agreement-but both agreements carry many of the same goals for California couples.  A postnup is a financial agreement created after getting married, as opposed to a prenuptial or premarital agreement that can only be entered into prior to exchanging vows.  A postnup, also called a marital agreement, is used to plan how the property you and your spouse own together or separately will be divided and distributed if there’s a separation, divorce, or death.  For some, a marital agreement can be created to address financial issues that are troubling a marriage.  On this point, a CNN article by Robert DiGiacomo, “Quit Fighting – Get a Postnuptial Agreement,” relates the story of a couple that had been married for 30 years but often fought over money.  They decided to get a postnuptial agreement, and although it didn’t solve all their problems, the two were able to ease tensions and “breathe easier” once they got a marital agreement.  While there’s no assurance that a marital agreement will help break an impasse for other marriages, for some, a postnup allows the couple to work on other issues once financial questions are resolved.  Continue Reading

Whether In or Out of Wedlock, California Paternity Law Can Automatically Presume Fatherhood

California’s paternity laws provide a process for determining who a child’s legal father is.  By establishing fatherhood, many other important questions can be answered.  For example, will a child have a right to his or her father’s medical records to help identify inherited health problems and risks, will the child be able to benefit from his or her father’s health or life insurance coverage, have rights to social security or veterans benefits, and have the right to be financially supported and receive an inheritance from both parents?  Continue Reading

Online Divorce: How Would You Decide Who Gets What in Your San Diego Divorce?

Divorce at the click of a mouse – it may be coming soon to Brazil, according to an AP article published in the San Diego Union Tribune.  Brazil’s Senate recently approved legislation allowing online divorces under certain circumstances, and the bill awaits a vote from the House of Representatives.  If the bill becomes law, not everyone would be eligible for quick internet divorces, since it’s meant for those with less complicated and consensual divorces.  The idea has not come to California yet, but if it did, how well would it work?

As part of Brazil’s online divorce, you’d be able to divide assets.  While this seems like it should be simple enough, many of the most difficult issues in a divorce come up when figuring out who gets what.  For example, under California law, do you know what happens if one spouse started a business before getting married (making it separate property), and continued working in the business during the marriage?  Continue Reading

The Looming Threat of Contempt: How Far Can the Court Go in Enforcing Your San Diego Family Law Order?

If a California family court order is disobeyed, there are many different ways to compel compliance, but can a person be jailed if, for example, child support isn’t paid?  Through the court’s “contempt power,” many family court orders that have been violated can potentially be punished with jail time.  On the other hand, the U.S. and California constitutions protect people from being put in jail just for having unpaid debts.  In the case of spousal support (alimony) or child support, even though money is owed, the payments are not seen as “debts” because they arise from legal obligations created when you have children or get married, which is why jail can be imposed for willfully violating the court order.  Continue Reading

Is it Time to Modify Your Child Support? When Circumstances Change After Your San Diego Divorce

Just recently, an AP article published in the San Diego Union Tribune reports that for a middle-income family, a child born in 2008 will cost (in current dollars) about $221,000 to raise through age 17.  When adjusted for inflation, this figure jumps to an estimated $292,000, as forecast by the U.S. Department of Agriculture’s Center for Nutrition Policy and Promotion.  Their annual report helps state governments and courts determine child support guidelines.

Even without reading the report, you know that raising children is expensive and always a challenge, but for divorced parents, child support can create additional concerns.  For example, what happens when a parent’s income grows, or if a parent loses a job?  Continue Reading

When Unmarried Couples Buy California Real Estate: Protect Your Investment When Living Together

As we all know, it’s still a buyers market here in California, and you and your partner may be thinking about pooling your resources and buying a home together.  This can be a great investment, but it can also turn out to be a costly mistake if you don’t take the right steps.  Consider the story of a woman and her boyfriend who bought a townhouse together, as told in a Christian Science Monitor article by Marilyn Gardner.  She had contributed a smaller portion of the down payment, and had been paying part of the mortgage, but the home was titled in her boyfriend’s name only.  When they broke up, he kept the home and the equity, and she lost all the money she had put in.  Continue Reading

A House Divided, Literally: What Not to Do When Dividing Your California Property at Divorce

Abraham Lincoln once said, “A house divided against itself cannot stand,” but in lands far away from California, two men in Germany and Cambodia have proven otherwise. In 2007, a German man divorcing his wife took a chainsaw to his wooden house, splitting it in two and then transported his newly redesigned home to his brother’s property. The following year, it happened again. This time the setting was Cambodia, where a man similarly decided that the court system’s idea of property division just wasn’t for him. Instead, he sawed his home in half before moving it to his parents’ property. Continue Reading

Getting Through the Recession in San Diego: What You Should Consider if You Need a Divorce

Whether it’s true or not that divorce rates rise when the economy falls, it’s no surprise that San Diego divorces are affected by the recession in one way or another. A Time article points out that for some persons who are seeking divorce, it makes financial sense to divide assets now while businesses and stocks are valued lower. Meanwhile, others find themselves living together after separation because they can’t afford to maintain separate households. Continue Reading