What is family law?
Family law arises from domestic relations. Although parties to a law suit might be related to each other, that does not automatically make it a family law case. Imagine two brothers, Conrad the contractor and Lanny the landscaper, had a deal where Lanny provided landscape services for 8 real estate projects Conrad developed. Lanny performed his services on all 8 projects but Conrad refused to pay for Lanny’s service. Lanny sues Conrad for breach of contract. Although the parties (Lanny and Conrad) are related as siblings, a breach of contract case does not fall within the parameters of family law.
The practice of family law encompasses several different areas of legal expertise, including real property law, bankruptcy, civil procedure, criminal contempt, contract interpretation, tax law, mediation, and juvenile dependency law. Even so, not all areas of the law will arise in every case.
Common cases in family law involve:
- Divorce (dissolution of marriage or domestic partnership)
- Annulment (nullity of marriage or domestic partnership)
- Legal separation
- Parentage
- Child custody
- Visitation (parenting schedule)
- Child support
- Spousal support
- Property rights
- Attorney fees
- Division of retirement plans
- Prenuptial agreements
- Postnuptial agreements
- Cohabitation agreements
- Domestic Violence Restraining Orders
- Civil Harassment Restraining Orders
- Contempt
Dissolution, Annulment, and Legal Separation
Divorce is also referred to as a dissolution. Dissolution is the formal process of resolving all issues of the parties’ marriage or domestic partnership. Similar to a dissolution (or dissolving) of a corporation, it is the process of unwinding and concluding of a relationship between two people. The status of a person being married or registered domestic partner is only one issue to be resolved in a dissolution. Other issues to be resolved include distribution or confirmation of property (real property and personal property), distribution or confirmation of retirement accounts, spousal support, child custody, child support, and attorney fees and costs. A legal separation is similar to a dissolution and requires the formal resolution of the issues that would be involved in a divorce. However, at the final judgment of legal separation, the parties are not considered “single” – instead, the parties are “legally separated”. This means the parties cannot get married again unless they get a dissolution to change their status to that of a single person. An annulment (or nullity of marriage) is when a marriage is void or voidable, and the court essentially finds that the marriage never existed. This can have substantial impact on property rights and spousal support. On the other hand, a person might be able to avail himself or herself of rights as a putative spouse, if he or she reasonably believes in good faith in the validity of the marriage. California is one of nine states with community property laws. Also, there is no requirement for alleging or proving fault in divorce proceedings in California.
Parentage
Proceedings between persons who have a child and are not married are known as parentage actions. One of the issues to be determined in a parentage action is a judgment of parentage, which is the formal finding that each of parties is a parent of the child. Parentage does not require a person to be a blood relative of the minor child. In fact, a person can be deemed a legal parent by living with the minor child and holding the child out as his or her own child, which is known as a presumed parent. Also, a child born within a specified time of parties being married can be conclusively determined to be the child of the parties who got married. Another way to be considered a legal parent is by signing a Voluntary Declaration of Paternity (VDOP), which is a document usually provided by the hospital at the time of the minor child’s birth and includes the name of the father. A VDOP has the full force and effect of a judgment of parentage unless challenged or set aside within 2 years. In California, under appropriate circumstances, a child can have more than 2 legal parents, pursuant to Family Code §7612(c).
Child Custody
There are two main components of child custody: (1) legal custody; and (2) physical custody. Legal custody involves the ability to make important decisions for the child, including health, education, religion, and so on. Physical custody describes the child physically being present with a party. A subset of physical custody is visitation, or the parenting schedule for when the minor child spends time with each parent, when and where custodial exchanges take place, who provides transportation to and from exchanges, and other specifics about the parenting schedule.
Child Support
The legislature has provided a formula for determining guideline child support in California, which is based on factors such as each parent’s income, the amount of time the child spends with each parent, mandatory retirement, health care costs, mandatory job expenses, and deductible interest expense. A child is entitled to enjoy and share in the standard of living of each parent and each parent has a duty to support the minor child. The receipt of child support payments is not considered income for purposes of taxes, such that the recipient of child support does not pay taxes on it.
Spousal Support
Before a judgment is entered, spousal support is considered temporary. Provisions in a judgment regarding spousal support are considered permanent, even though the duration of payment of support may be modified in the future upon a showing of a change in circumstances (unless the parties expressly state that spousal support is non-modifiable). Temporary spousal support can be calculated using the guideline formula, or by considering the relevant Family Code §4320 factors. Conversely, permanent spousal support cannot be calculated using the guideline formula, and it is reversible error to do so. A determination of ongoing, permanent spousal support must be based on a consideration and weighing of all of the relevant factors of Family Code §4320, which contains 14 different subsections covering such things as the marketable skills of the supported party, the duration of the marriage, the needs of each party, the age and health of the parties, and documented evidence of domestic violence. Spousal support is taxable. Generally, the payor deducts the spousal support payments and the payee pays taxes on the receipt of spousal support. However, the parties can choose to agree to change the tax applications, such that the payee deducts the payments and the payor is taxed on the spousal support payments as regular income.
Property Rights
Spouses in California owe each other the same fiduciary duties as business partners. That includes the duties of management and disclosure. Spouses must make full disclosure of all material facts and information regarding their financial circumstances, including income, assets, and debts, regardless of whether separate, community, or quasi-community. Property issues run the gamut of simple to extraordinarily complex. In complex property situations, experts may be retained, including real estate appraisers, business valuators, economists, actuaries, forensic accountants, and forensic tracing experts.
California is a community property state. That does not mean that a person automatically gets a 50% property interest in the property of their spouse immediately upon their wedding date. Rather, it applies a presumption that property acquired during marriage is community property, and that property acquired before marriage or after the date of separation is separate property. There are a variety of rebuttals and exceptions, as well as reimbursements and tracings to be conducted in appropriate situations, too.
A spouse may change the character of property during marriage by transmutation. A transmutation changes the character from separate to community, community to separate, part community/party separate to all community, etc. Transmutations must be in compliance with strict requirements, including an express declaration of the intent to change the character of the property made in writing and signed by the party whose interest in the property is adversely affected, pursuant to Family Code §852.
Prenuptial, Postnuptial, and Cohabitation Agreements
Spouses may choose to avoid the application of community property principles by entering into a postnuptial agreement (an agreement entered between spouses after they are married) or by a prenuptial agreement. Specific formalities and requirements are in place for both prenuptial and postnuptial agreements. Postnuptial agreements require heightened levels of disclosures, since the parties as spouses owe each other specific fiduciary duties of disclosure. Prenuptials are encouraged to include disclosures for increasing likelihood of enforceability later. Certain provisions in prenuptials might not be enforced unless both parties are represented by independent counsel or if the agreement is rushed and signed without sufficient time for consideration and reflection. Cohabitation agreements are enforceable as contracts between unmarried individuals.
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Nathan W. Gabbard is a Certified Family Law Specialist, certified by the Board of Legal Specialization of the State Bar of California and practices exclusively family law in Santa Monica, California.
