FREQUENTLY ASKED QUESTIONS
Divorce/Legal Separation
What is a divorce?
Divorce, or dissolution of marriage, is the ending of a marriage or domestic partnership. It returns both parties to “the state of unmarried persons” (Cal. Fam. Code § 2300), that is, it returns both parties to a “single” status.
What are the grounds for getting a divorce?
California is a no-fault state, meaning the person requesting the divorce does not have to prove that the other spouse did something wrong. However, a spouse’s wrongdoing can be a factor that the court considers in dividing property or awarding alimony. California Family Code § 2310 outlines the two grounds for getting a divorce: 1. Irreconcilable differences, which have caused irremediable breakdown of the marriage; and 2. Permanent legal incapacity to make decisions.
What are irreconcilable difference?
Irreconcilable differences are grounds which a court determines are substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved (Cal. Fam. Code § 2311). Irreconcilable differences sufficient to justify a divorce must be substantial, as opposed to trivial or minor. These marital problems must have weakened the marriage relationship so much that the legitimate objects of matrimony (goals of marriage) have been destroyed, and there is no reasonable possibility of elimination, correction or resolution of the problems.
What is a permanent legal incapacity to make decisions?
Permanent legal incapacity to make decisions may only be used as a grounds for divorce with proof, such as competent medical or psychiatric testimony, that the other spouse permanently lacks the legal capacity to make decisions.
Child Custody
What is child custody?
Child custody refers to the rights and responsibilities of parents for their children. There are two types of custody: legal custody and physical custody.
LEGAL CUSTODY
Legal custody is the right and responsibility of parents to make decisions relating to the health, education and welfare of a child. Joint legal custody means both parents share that right and responsibility (Cal. Fam. Code § 3003). Sole legal custody refers to when only one parent has the right and responsibility (Cal. Fam. Code § 3006).
PHYSICAL CUSTODY
Physical custody is with whom the child lives with. Joint physical custody means that both parents will have significant periods of time with the child in such a way that ensures a child has frequent and continuing contact with both parents (Cal. Fam. Code §3004). Joint physical custody does not require that parents split their time 50/50, so long as each parent has significant periods of time with the child. Sole physical custody means the child lives with and is under the supervision of only one parent (Cal. Fam. Code §3007). Sole physical custody means that the child lives with one parent, but may still visit or spend time with the other parent. Sometimes, this can be referred to as “primary” physical custody. “Joint custody” as defined by California Family Code § 3002 means that the parents have joint legal custody and joint physical custody.
When do issues of child custody arise?
ISSUES OF CHILD CUSTODY CAN ARISE WHEN:
The parents are married and there has been a divorce, legal separation or annulment
Domestic Violence / Restraining Orders
What is domestic violence?
Domestic violence is defined as a pattern of behavior in which a person acts abusively toward an intimate partner. Behavior is abusive when it's intended to control another by making that person feel intimidated, frightened, terrorized, or humiliated, or by isolating that person from family and friends. Domestic violence can happen regardless of gender or sexual orientation -- anyone could be a victim, and anyone can be an abuser.
What are the different types of domestic violence?
There are several forms that domestic violence can take. They are:
Physical abuse
This may or may not result in external wounds or bruises. Hitting, slapping, and grabbing are all considered forms of physical abuse.
Emotional abuse
A pattern of criticism, belittling, or name-calling with the purposed of diminishing another's self-esteem.
Psychological abuse
An effort to intimidate another or threaten them with things like taking that person's children or telling others information that would cause embarrassment or humiliation. Sexual abuse - Can involve coercing another into performing sexual acts or treating another in a sexually humiliating way. Economic abuse - Can involve withholding money or resources that another person needs or making another person completely financially dependent on the abuser.
Modification of Orders
When potential clients contact Family Law Advocacy Group, may times they want to know whether a current judgment or decree for a family law matter can be modified. We tell the potential client that it depends on the issue involved and the terms of the order or judgment. Our divorce and family law experts have litigated countless hearings involving post-judgment modification of orders relating to every issue imaginable stemming from divorce, legal separation, and paternity. We have guided hundreds of clients through the often difficult process of modifying a judgment, or defending a modification filing made by the opposing party. We are experts at strategically determining the proper course of action when Requests for Orders (RFOs) are filed to modify orders. Contact our office for a free, private consultation.
What type of orders can be modified in family law cases?
There are many kinds of judgments, decrees and orders that are modifiable in family law. Decrees and judgments entered in divorce, legal separation, nullity and paternity cases may often be modified in the future after the entry of the judgment. The types of orders that can always be modified include child custody and child support. These types of orders can always be modified because parents are not allowed to agree to “non-modifiable” orders for custody and child support under California law. The types of judgments and orders that can possibly be modified include spousal support and certain provisions where the court specifically “reserved jurisdiction” to make further orders or modify. Usually the parties’ divorce judgment or other order will specify whether the terms of that provision allow for modification. The types of judgments that cannot be modified include final determinations or agreements for property division.
HOW DOES A FAMILY LAW ATTORNEY DETERMINE WHETHER AN ORDER CAN BE MODIFIED?
There are two steps in the analysis to determine whether an order…