FAMILY LAW

Family Law includes a broad category of services which we offer to our clients. Some things included under the Family Law name are divorce, custody, visitation, support, along with guardianships and adoptions.

CHILD CUSTODY:

Child custody deals with both the time share you have with your children, and your legal rights with respect to the children. Typically when referring to custody there are two terms used Legal custody, and Physical custody. If you have Legal custody it means that you are able to view your children’s progress reports from school, speak with school administrators, and consent to emergency surgery for your son or daughter, in the unfortunate event of an accident. Typically this is not a heavily litigated area as most couples agree to joint legal custody of the children since it makes the most sense, and is not easily deviated from without some strong evidence of wrongdoing towards the children by one of the parties.

Physical custody and visitation has to do with the actual time a parent spends with their children. There is a strong presumption in the law in favor of 50:50 physical custody of the children. Additionally it is also a strongly held maxim that the children need to spend time with and get to know both of their parents, thus it is unlikely that one parent would be awarded complete physical custody of the children without any visitation to the other parent.

In Napa County when a petition is filed with the court regarding custody and visitation of minor children, the case is immediately referred to mediation with family court services. It is the hope that the parents through mediation would be able to come up with a coherent co-parenting plan on their own, with out the intervention of the judge. Plans that parents are able to agree upon are always preferable to ones which the judge fashions for the parties. Napa County is particularly unique in the way that this mandatory mediation works, in that it is non-reporting mediation, which means that the mediator will not make any recommendations to the judge should the parties not be able to reach some sort of an agreement in mediation. In other counties in California they have what is called reporting mediation, and that means that if the parties are unable to come to some sort of agreement in mediation the mediator will make a recommendation to the judge about what they believe should be done with the parties children. While the judge is not obligated to follow the mediators recommendations, they do consider what the mediator recommends, and often follow the recommendation.

In the event that the parties are unable to come to some sort of agreement regarding the physical custody and visitation of their children, the case would be referred back to the court by the mediator. The court would then schedule a hearing on the matter, and hear arguments from both sides as to what the proper time share, and visitation schedule should be.

SUPPORT:

There are typically two types of support which must be considered when a party is seeking a dissolution of marriage. The first is spousal support, which will be a consideration in any dissolution or separation proceeding. Parties can seek temporary support through the court, shortly after the case has been filed. Often times the wage earnings of the parties are not equal, and, especially at the beginning of the proceedings, spousal support is awarded in an attempt to equalize the parties respective financial positions and help smooth over this otherwise financially turbulent, and difficult transitionary period. The amount of spousal support one must pay is determined by the amount of income of the respective parties. The gross income of the parties is used to calculate the amount of support owed, as spousal support is tax deductible for the spouse paying the support and must be claimed as income by the spouse receiving the support.

The length of time a party is required to pay support largely depends on the length of the marriage. In marriages shorter than 10 years spousal support will typically only be granted for a period of time which is half the length of the marriage. So a 4 year marriage has the potential of generating a 2 years spousal support order. In marriages over ten years in length there is no exact method for determining how long a spousal support order could be given, however a base guideline of half the length of the marriage is always a useful starting point.

There is a statutory scheme which codifies exactly which variables are to be considered and which must be followed in order to accurately determine the proper amount of support. These complex statutory rules have been incorporated into a computer program which the court and attorneys rely on to perform these complicated mathematical calculations for them. This program is called the Dissomaster, and can figure both spousal support and child support.

In calculating child support there are several variables which are considered by the statutory scheme as set out in the Dissomaster program. The two most important variables being the respective incomes of the parties, and the amount of time that each parent spends whith the child. The amount of time spent with the child is done on a percentage basis, which means the more time a party has with their child the less likely the other side would be entitled to child support unless there is a great disparity in the incomes of the parties. The computation of course also takes into account which parent gets the deduction for the child on their taxes, as the statutes consider the taxes which are owed by each party and the necessary withholding required to meet that tax burden when calculating income and support.

DIVORCE:

Divorce really encompasses all the different elements of a family law case. When parties are seeking divorce, there must be determinations made as to both child custody and support as mentioned above. However, in addition to those considerations the parties must also work out a division of the marital assets. In order to better understand what the marital assets might be it is helpful to understand that California is a community property state. This means that the money earned during the course of the marriage is considered to be the earnings of both parties equally. This inference gives rise to a presumption in the law then that anything purchased during the course of the parties marriage was purchased with community property and is therefore the joint property of the parties. Additionally there is a method by which the community can obtain an interest in the property of a separate party by using community funds for the improvement of that property or for the pay down on the principal of it.

This division of property upon the termination of marriage can be one of the more difficult things for the parties to accomplish. The court typically looks to the equities of the case and attempts to divide the different assets in such a manner as to be roughly equitable to the parties. When dividing the assets the debts of the parties are also taken into consideration, with these to be equally divided amongst the parties as well. On the debt side of things however some lee way is given to consider the respective parties ability to pay on those debts, which means it is not unusual for the higher wage earner to receive more of the debt than the lower wage earner. Often time this can be coupled with a larger portion of the assets to offset the larger portion of debt.

In many cases there will be both community property and separate property which must be divided up. Separate property is property which a person owned prior to the marriage, or which a person might have received by gift or bequest from a 3^rd party. Typically the way a person receives separate property during a marriage is through inheritance. Inheritance of one party as long as it is kept separate will not be considered community property. However if separate property and community property are mixed into a single asset or account, the burden is then on the party claiming the separate property interest to provide an exact tracing of the where the money went and how it was spent. This is a particularly difficult burden to overcome unless meticulous records can be produced, and a thorough accounting made. If an asset is determined to be completely separate property then that asset is awarded to the party as to whom it is separate property, and is not considered in the equation for the division of the community marital property.

PRENUPTIAL AND POSTNUPTIAL AGREEMENTS:

Some couples decide that they do not favor the default rules of community property as set forth in the California Family Code, and choose to operate their relationship under an agreement of their own choosing. Prenuptial agreements are a method whereby a couple agrees to order their financial affairs differently from that laid down by California law. Postnuptial agreements are those agreement done by the parties after they are married, in an attempt to change the then existing rules in effect between them. In any event the successful execution of an agreement between the parties must be done, so that it properly comports with all the rules and tenants of California law, and in most cases this requires that each party have legal representation. Often times these agreements are executed when one party to the marriage is brining substantial assets with them and they are concerned with the continued protection of those assets. It can also be very helpful for elderly couples who seek to marry late in life to execute such agreements to preserve those family assets, and heirlooms that they desire to be passed on to the their descendants.

ADOPTIONS AND GUARDIANSHIPS:

Adoptions are the method whereby a non-parent becomes the legal parent and guardian of the adopted child. Legally it establishes a relationship between those two people as if the adopted child were a lineal biological descendent of the parent, with all rights and obligations which otherwise occur with a normal parent/child relationship. Guardianships are something less than adoptions, but they too convey a legal authority or relationship. In a guardianship though, there is no termination of the biological parental relationship. Guardianships can only be imposed on minor children or disabled adults. A Guardianship conveys to the Guardian the legal right and responsibility to care for the minor child / disabled adult. A Guardianship gives the Guardian the right to make legal choices for the protected person and can often be done against the wishes of the parent, but only with a showing of good cause. A guardianship for a minor child does not typically last past that child reaching the age of majority since at that point they would legally be an adult and free to make their own decisions. It leaves the parental rights, such as the right to inherit from the original parent intact, and establishes no relationship between the legal representative and the child other than one of caring for and raising the child. While many of the considerations for adoption and guardianship can be similar, the legal effect is quite different, and you must assess your situation carefully in order to determine which is the proper method to employ in any particular given situation.