Commonly Asked Questions
What is community property?
Property acquired during marriage is presumed to be community if it is acquired during marriage. The presumption can be rebutted if a party can show through tracing that the property is separate property.
What is separate property?
Property acquired prior to marriage or post separation; or acquired by gift, bequest or inheritance.
What is the Date of Separation?
The date of separation is the date that one party articulates to the other party that they no longer wish to be married. There may be several dates of separation however the last date of separation is the one is the one the court will use.
What is community debts?
Debts that were incurred during marriage and that benefited the marriage.
What are separate debts?
Debts that are incurred prior to the marriage or after the date of separation or debts that were incurred during marriage but did not benefit the community.
What is the community estate?
The community estate is established from the date of marriage to the date of separation.
What is a pre-nuptial agreement?
An agreement reached between the parties prior to marriage. There are stringent rules for the preparation of such agreements.
What is a post-nuptial agreement?
An agreement reached between the parties after marriage. Again, there are stringent rules for the preparation of such agreement.
Commonly Used Family Law Definitions
Community Property: Assets and debts acquired by either spouse during marriage are considered community property and are subject to equal division. Community property also includes all the earnings that either spouse earned during the marriage and everything purchased with those earnings.
Separate Property: Anything acquired before marriage, after the date of separation or by gift or inheritance (even if acquired during the marriage) is considered separate property. Any income derived from separate property, or asset purchased with separate property, is also considered separate property.
Quasi-Community Property: any property acquired by either spouse while living in another state that would have been considered community property if it had it been acquired while living in California.
Dissolution of Marriage: Process by which two people who are legally married end their marriage and are restored to single status. The Court will also issue orders for child custody and visitation, child support, spousal support, the division of community property and debts, and the confirmation separate property and debts. To file a Petition for Dissolution of Marriage, one of the spouses must live in San Bernardino County for at least 3 months an in the State of California for 6 months.
Legal Separation: Legal separation will allow the parties to maintain their status as married persons while resolving all other issues including child custody and visitation, child support, spousal support and the division of assets and debts. There is no jurisdictional requirement to file for a legal separation.
Paternity Suit: A paternity action establishes the parentage of a child who is born to parents who are not married to each other. Once paternity is established, the Court may establish orders for custody and visitation as well as child support. In the certain cases, the Court will make assumptions about the paternity of a child regardless of DNA. For example, when a child is born while the mother is married, the law presumes that the husband is the father. Paternity can also be presumed when the presumptive parent accepts the child into their home and holds them out as their own.
Declaration of Paternity: Often referred to as a “Pop Dec”, a paternity declaration allows unmarried parents to voluntarily declare the identity of the parents. Once the form is executed, it is filed with the Department of Child Support Services and has the same effect as a Court order. Once this document is filed, the Court can make orders for custody, visitation and child support. A declaration of paternity can be rescinded within 60 days by filing a rescission form with the Department of Child Support Services. However, a declaration of paternity can only be challenged in court within the two years of the child’s birth.
Deposition: Depositions are a pre-trial discovery device used to obtain information and preserve testimony. In a deposition one party, or their attorney, will ask the opposing party a series of questions which must be answered under oath and can be used at trial.
Discovery: Discovery is the process by which parties obtain evidence and information to be used trial and in settlement negotiations. The methods for conducting discovery include, to name just a few, demanding the production of documents, requiring sworn responses to written questions, the issuance of subpoenas, and conducting depositions.
Judgment: A judgment is a court order that is entered either after a trial has concluded or the parties have reached an agreement and a judgment containing those terms is submitted to the court for signature. A marriage is not legally dissolved, and neither spouse can legally remarry, until a final judgment is entered by the Court.
Legal Custody: The parent with legal custody of the child is responsible for making decisions for the child about medical and psychiatric care, education, religion, extracurricular activities, residence and all other issues relevant to the daily and long term needs of the child. In cases where the parents are awarded joint legal custody, either parent can make decisions for the child without the agreement of the other parent but the court will often order that the other parent be notified of these decisions.
Physical Custody: The parent with physical custody is the parent with whom the child lives. If one of the parents is awarded sole physical custody, the child lives with that parent the majority of the time. If the parents are awarded joint physical custody, the child lives with both parents.
Visitation: Visitation is the determination of the time each parent will have with the child. There are various schemes of visitation that are selected based on what best suits the best interest of the child. “Reasonable visitation” allows parents to share the child as they mutually agree and without a set visitation schedule. “Visitation according to schedule” provides a detailed schedule for the time that each parent will spend time with the children. “Supervised visitation” is used when the safety and well-being of the child require that visitation be supervised by a professional, family member or other trusted individual. “No visitation” is used when the safety or well-being of the children would be threatened even if the visits were to be supervised.
Child Support: A child support order will require one party to provide the other with monthly payments to contribute to the financial needs of the child. The child support guidelines are set by the State of California and depend largely on each party’s income and the amount of time they spend with the child.
Spousal Support: Spousal support, also known as alimony, is money paid from one former spouse to the other. In determining whether child support is appropriate, and how much to be awarded, the Court considers several factors. These factors include, but are not limited to, the length of the marriage, the income of the parties, the standard of living during the marriage, whether there was domestic violence and if one of the parties took time away from their career to care for the children.
Grandparent rights: The Supreme Court of the United States has held that laws allowing any person to request visitation with a child infringed upon a parents fundamental right to make decisions for their children, even if the parents have cut off contact with other family members. Troxel v. Granville, 530 U.S. 57, 147 L.Ed.2d 49, 120 S.Ct. 2054 (2000). Although Troxel prevents states from allowing any person to request visitation, states are still permitted to allow certain individuals, namely grandparents, to request visitation if there are enough requirements in place to protect the rights of parents. In California, a court can award visitation to a grandparent if they find that it is in the best interest of the children and that this interest outweighs the rights of the parents to make decisions for the children. However, the court generally cannot award visitation to a grandparent if the parents are married to each other although there are a few exceptions to this rule.
Grandparent Visitation: The California statute for grandparent visitation has been found Constitution because it places enough restrictions on awarding visitation to grandparents that it does not unduly interfere with the rights of the child’s parents. The restrictions include the threshold requirement of showing that the child’s parents are divorced or separated, that the whereabouts of one parent is unknown, or that the child is not living with either parent. As additional safeguards for parental rights, the Court must also determine that this visitation is in the best interest of the child, that the grandparent has a pre-existing relationship with the child, and that the rights of the parents are outweighed by the child’s interest in visiting with the grandparent. If both parents agree that the Court should not grant grandparent visitation, the grandparent will have the additional burden of overcoming the presumption that the visitation is not in the child’s best interest.
Juvenile Dependency Proceedings: a juvenile dependency proceeding usually begins when a child is removed from their parents and placed in protective custody. During the pendency of these proceedings, the children may be placed with family members or foster homes. If the parents are not able to make changes to remedy the reasons for the child’s removal the Court will make a long term plan for the placement of the child. This office does not handle matters in juvenile dependency court.
Department of Child Support Enforcement: The Department of Child Support help parents enforce orders for child support, family support and spousal support. A few of the methods for enforcing child support orders are: income withholding, suspension of driver’s license, interception of tax refunds, levy of bank accounts and placement of lien on real property.
Marvin Cases: Colloquially referred to as “palimony” a Marvin action, named for the case which asserts this principle, allows non-marital partners to enforce agreements about support or property division. This office does not handle Marvin/”palimony” cases. Marvin v. Marvin (1976) 18 Cal.3d 660 [134 Cal.Rptr. 815, 557 P.2d 106].