Move Away Cases in California

What happens in a situation where the custodial parent after a permanent custody determination wants to get up and move away?  What does the non-custodial parent do?

The non-custodial parent has a large hurdle to cross.  By statute, the parent with custody of the children is presumed to have the right to move away with the children.  Cal. Fam. Code § 7501.   Family Code 7501 has codified the California Supreme Court Case of Marriage of Burgess (1996) 13 Cal.4th 25.)  In Burgess, the parent with custody of the children decided to move 40 miles away from Tehachapi to Lancaster, CA.  The Supreme Court stated that the custodial parent does not need to show that the move is “necessary.”   This rule will only apply in situations where there has been a final custody determination not where there has only been a temporary custody determination. 

The non-custodial parent has to prove that the move is a detriment to the children.  What comes to mind is the detriment of the child of not being able to continue the same relationship with the non-custodial parent.  This is just one factor in the court’s determination of whether or not there is a detriment.  So the non-custodial parent must file a motion with the court and show a detriment in their motion.  In these types of move-away cases it is best to consult an Attorney to draft the motion because they understand the legal standards and procedural loopholes in order to get you the best chance of succeeding on your motion.

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Needs-based Attorney Fees in California Family Law and Divorce Cases

Under the California Family Code §2030, needs-based attorneys fees may be awarded to one spouse to ensure equal access to representation.  What this means is that it is entirely possible that one spouse usually the breadwinner of the family may have to pay in a dissolution action the attorneys fees for both parties.  The purpose under 2030 is to preserve each parties rights in the dissolution (divorce) proceeding. 

The exact amount that should be awarded as a needs based fee is under full discretion of the Judge.  2030 says “whatever amount is reasonably necessary.”  For a needs-based attorney fee award the court will look at “whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties.”  Such an attorneys fees award should be granted early in the proceeding as a way of leveling the playing field between the parties. 

So what does this mean for litigants?  Say your spouse was the breadwinner of the family and controls most of the community resources, your spouse files a dissolution action against you and lawyers up. You are left to defend the case without an attorney.  California Family Code §2030 contemplates that in these types of situations this spouse will pay for both the attorney’s fees to ensure equal access. 

   

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Prenuptial Agreements in California

This article will focus on the drafting of prenuptial or premarital agreements in California presently and deals with the most recent laws governing these agreements.  You NEED a lawyer if you are going to draft one of these agreements in order to navigate the complex and strict statutory requirements.  You NEED a lawyer because the agreement must be upheld in court.  With the way the California Family Code statutes are written you will fail if you do not follow the exact steps and meet every single requirement.

 

Some of the reasons why you might consider a prenuptial agreement in California is to avoid or alter the default California Community Property laws.  You also may want to alter the characterization of income acquired in the future such as earnings and so forth.  You may also want to eliminate or minimize the surviving spouse’s inheritance rights.  Whatever your reason, if you have substantial assets and you are contemplating marriage or even if you don’t, you should talk to an attorney about a prenuptial or premarital agreement. 

The difficult thing is to broach the subject with your future spouse the subject of obtaining a premarital agreement.  Often and understandable, people simply do not want to contemplate anything that could be perceived as negative.  However challenging it may be to bring the subject up, it may be the best and most prudent thing you can do.  An effective premarital agreement will make understandable the obligations between spouses both during and if separation or dissolution occurs.  Often litigation costs will be lowered because if you have an iron clad premarital agreement, the other party will not even bother litigating it saving both spouses an added headache.  A well drafted and effective premarital agreement will possibly solve problems of commingled property.

Prenuptial Agreements can deal with an assortment of topics or issues.  For example, parties can put in a provision for Spousal Support.  Parties can even waive Spousal Support in the agreement if each party is represented by independent counsel.  On the other hand, premarital agreements cannot waive child support.  Essentially, you can put anything you want in a prenuptial agreement unless it violates California Public Policy. 

The real nuts and bolts of premarital agreements are located in California Family Code §1615.  This is why you NEED an attorney to draft and navigate you through the process.  Prenuptial agreements cannot be unconscionable.  Ok this sounds reasonable.  To not be unconscionable you need a fair, reasonable, and full disclosure of property of financial obligations by each party.  This means that you must disclose property that you hold to your prospective spouse and once this is completed you need to have your prospective spouse sign a waiver that waives further disclosures. 

   

Further, prenuptial agreements, according to California Family Code §1615, must have voluntariness.  Voluntariness is defined by the statute and includes all of the following:  the prospective spouse must be represented by counsel at the time of signing the agreement or after being advised to seek independent counsel expressly waives in a separate writing representation by independent counsel.  This means that aside from the prenuptial agreement itself, you need a waiver of representation by independent counsel that is essentially a separate agreement not to obtain counsel for the purposes of the prenuptial agreement.  Also, seven calendar days must pass before the prospective spouse receives the agreement and the time it is signed.  During these seven days, counsel who drafts the prenuptial agreement must fully inform the prospective spouse of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement.  Further, the prospective spouse must be proficient in the language of the explanation and the language of the agreement.

Essentially, if you miss or do not follow any of the steps in the above paragraph your agreement will be deemed not to have voluntariness and will be worthless no matter how voluntary it appeared to be at the time of the signing agreement.  California Family Code §1615 acts as a checklist for voluntariness if you do not check off all the boxes you agreement will be invalid and will not hold up in court and all of your expectations of what you thought your rights were will be extinguished. 

I implore you that if you are going deciding to draft or purchase an agreement online to get an attorney to assist you with the process otherwise you are simply wasting your money and time.

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Modification of Spousal Support in California: A Case Analysis

The purpose of this post is to help you understand what type of analysis a court uses in determining whether a modification of spousal support is warranted.  Let’s use an example.

I’m using the following appeals case of (In re Marriage of Shaughnessy (2006) 139 Cal. App. 4th 1225) as the example of how the courts apply law to a factual situation.  This case is a good example of spousal support because the couple has no children.  Therefore, you get a cleaner look on how spousal support law works. 

Preserving the Family Home Even if Your Spouse Owns it Outright

California is a community property state.  So property obtained through wages and efforts of each spouse during the marriage are community property and generally divided in half at dissolution.  Separate property is property is not included in the category of community property.  Separate property is property held by a spouse before marriage, or during the marriage by gift, bequest, or devise.   Separate property usually becomes that of its owner after a dissolution action.

   

If you are in a hotly contested divorce or dissolution action, there may be a way to preserve the family home even if the family home is a separate property asset of your spouse.  Preserving the family home when it’s your spouse’s separate property is possible only if you have children and you have primary physical custody.  Under California Family Code § 3800 et seq., it is fairly common for Judge to enter a deferred sale of home order for a home that has both a community property and a separate property interest.  For example, one spouse has a house that has not been paid off yet before getting married and the other spouse helps pay off the mortgage with community property assets.  So this house is separate property with a community property interest.  If this couple has children, and then decides to get a divorce, the deferred sale of home order helps the spouse with primary physical custody to keep the children in the family home.  The policy of this law make some sense because you want to keep the children’s living situation as stable as possible.  In this situation, both spouses have an interest in the family home.

Annulment vs. Divorce

In this post I’m not going to discuss the inner workings of how a Divorce in California works, unless it is helpful to understanding the differences between a divorce or a dissolution action and an Annulment or Nullity action.  I am going to discuss why an annulment would be a good option in certain situations, but may not be possible most of the time.  This post is to give you an overall picture of the grounds for an annulment and not to go into specific facts required under each category.

Family Law and Divorce Do it Yourself Series Part I: How to Modify an Existing Child Support Order in California?

This post is to help you file or just simply understand what your lawyer is doing when he or she agrees to assist you in modifying your existing child support order.