When either or both parties to a marriage or domestic partnership believe that the marriage cannot be salvaged, either husband or wife may file for divorce – a legal process in which the court makes orders ending the marriage or domestic partnership , establishing child custody and parenting plan, child and spousal support, and divides property and debt. As a no-fault state, California does not permit a party's conduct to affect the equal division of property acquired during the marriage, including real estate, personal property, business interests, bank accounts, etc. The Court, however, may, and usually does consider a party's negative behavior in making orders pertaining to child custody and parenting plan. Legal Separation is essentially the same process as divorce, but, although the parties obtain a decree of legal separation, they remain legally married.
1. Summary Dissolution: When the parties are married for less than 5 years, own no real estate together, agree on the division of their community (acquired during the marriage) assets and debts (the latter not exceeding $6,000.00), have no children and own less than $36,000.00 in separate property, they may qualify for Summary Dissolution. There is no court appearance required for this type of divorce.
2. Uncontested Dissolution: The parties to a divorce proceeding agree on parenting plan, division of community property and debt and other issues, their uncontested divorce, too, may be handled without either one of them ever appearing before the judge. The Law offices of Irene Intelligator always encourages clients to set aside their anger and other negative emotions towards the other party in an attempt to resolve the issues without seeking court orders. This approach is not only more cost-effective, but it provides the parties with some control over the outcome, as opposed to having a judge rule on such important issues as who will have the right to make decisions regarding the children's health, education, medical treatment, who they will live with, etc., not to mention the division of property and debt and the amount and duration of spousal support (alimony).
3. Contested Divorce: In Contrast to the previous two, when the parties cannot agree on one, several or any of the issues in their divorce, they will need to ask the court to make orders to resolve their differences which may range from custody or their children and visitation schedules, amount of child and spousal support, the right to remain in the family residence during the pendency of divorce, amount of spousal support (alimony) and ultimately the final division of community property and debt. When peaceful resolution becomes impossible, the Law Offices of Irene Intelligator are prepared and able to aggressively and zealously represent your rights in court.
Legal custody refers to the right of the parent to make decisions concerning the child's education, medical treatment and general welfare; The cases where one parent is awarded sole legal custody of the child or children are rare and reflect the court's decision that only one parent will have the sole responsibility for those decisions. Courts consider the history of abuse against one parent by another and any history of child abuse in making these decisions, and are guided by the California law which states that the court must make orders that it deems to be in the best interests of the child/children. Visitation refers to a parenting plan that the parties agree on or the court orders, which sets forth a schedule dividing the child's time between the parents. Child Custody and Visitation or Parenting Plan usually involve the most acrimonious disputes between the parties. The Courts and legal professionals are beginning to do away with the distinction between custodial and noncustodial parents, while attempting to promote cooperative parenting which is deemed to be in the best interests of the children. Either party may be able to change the initial order of the court regarding custody and visitation by requesting a hearing at which they must prove that there is a good cause such as a change of circumstances justifying this request.
Child support is the ongoing obligation for a monthly payment made directly or indirectly by a non-custodial parent to a custodial parent for the care and support of children of a relationship or marriage that has been terminated. Child support is often determined based on the parents' income and the percentage of time the child spends with each parent. Other factors which are considered by the Court in calculating child support are the parties' health insurance expenses, their union dues, their tax filing status, the number of children the parents have together and the cost of daycare. Any order for Child Support can be modified if there has been a change of circumstances until the support is terminated, generally when the child turns 18.
Spousal Support is a periodic payment for support of a spouse during the dissolution proceeding and/r after marriage has been terminated. The factors considered by the Court in calculating the amount and duration of spousal support are: the parties' respective income or earning ability; the length of the marriage, the age of the parties; the parties' health and education; whether there are still minor children at home and the standard of living during the marriage. Either party can seek spousal support and/or ask the court to change the existing order if there has been a change of circumstances after the initial order has been made.
The newly revised California Family Code Sec. 4320 provides the ability for a party who would otherwise have no financial ability to retain an attorney to petition the court for an order to have the other party pay for legal representation of both parties. This rule is designed to "level the playing field" and prevent situations in which one spouse takes advantage of the fact that the other is unable to pay for counsel.
A prenuptial agreement, antenuptial agreement, or premarital agreement, is a contract entered into prior to marriage or civil union by the people intending to marry. The content of a prenuptial agreement can vary widely, but commonly includes provisions for division of property and spousal support in the event of divorce or breakup of marriage. A postnuptial agreement is a written contract executed after a couple gets married, or have entered a civil union, to settle the couple's affairs and assets in the event of a separation or divorce. It is normally "notarized" or acknowledged, and is usually the subject of statute of frauds. Like the contents of a prenuptial agreement, it can vary widely, but commonly includes provisions for division of property and spousal support in the event of divorce, death of one of the spouses, or breakup of marriage. In rare cases, a "prenup" may be enforceable even without a marriage, such as with a Domestic partnership or Registered partnership.
In law, paternity is the legal acknowledgment of the parental relationship between a man and a child usually based on several factors. Where paternity of the child is in question, a party may ask the court to determine paternity of one or several possible fathers (called putative fathers) based initially upon sworn statements and then upon testimony or other evidence. A successful application to the court results in an order assigning paternity to a specific man, possibly including support responsibility and/or visitation rights. Once a father has established paternity and, if he wishes to be part of the child's upbringing, he can effectively establish his parental rights with his child by filing a parenting plan.
When a party needs immediate protection from a spouse, domestic partner or the other parent, a Domestic Violence Restraining Order can be obtained, which orders the abuser to stay away from you and (sometimes) the children. Such order often commands the Abuser to move out of the family residence. The Law Offices of Irene Intelligator has obtained numerous Permanent Restraining Orders for the clients who suffered from abuse, as well as successfully defended clients who were falsely accused of having done so after the other side tried to gain unfair advantage in litigation process.
Most divorces address a division of community property assets (property accumulated during the marriage), including real property, personal property, businesses, bank accounts, retirement/pension plans, vehicles and any other tangible assets. The issues of what constitutes the separate property of each party, which is the property acquired prior to marriage or after separation, are also addressed. Similarly, all of the parties' debt which accumulated during marriage will be divided, with allocation of debt designed to be fair and equitable to both parties.