What is Family Law?

 Often, family law offices receive calls asking for services that do not fall under the "family law" umbrella. When contacting a family law office, these are the most likely areas you could expect to receives services for:

• Divorce/Dissolution Actions
• Paternity/Parentage Actions
• Child Custody 
• Child Visitation
• Child Support
• Spousal Support
• Property Division
• Domestic Violence Restraining Orders 
• Guardianship
• Prenuptial/Post-Nuptial Agreements

Though there are many exceptions, the areas of law that generally are NOT covered in a family law office include:

• Adoption 
• Civil Restraining Orders (where no domestic relationship existed)
• Wills & Trusts
• Estate Planning
• Tax Law
• Juvenile Court Proceedings

Although these areas may seem like they would be related to family law, often they are their own separate specialized area of practice.

Jagar Family Law focuses in Divorce and Parentage actions, which encompasses the following:

• Dissolution of your Marriage or Domestic Partnership
• Determination of Parentage 
• Child Custody 
• Child Visitation
• Child Support
• Spousal Support
• Property Division
• Prenuptial/Post-Nuptial Agreements 

As part of my practice I offer both Mediation and Document Preparation Services. 

What parties commonly refer to as "divorce," in the Family Code is called a "dissolution of marriage/domestic partnership." The court essentially views these actions as dissolving a contract between the parties. As part of a divorce, you can expect to address the division of your property, spousal support, attorney fees, and if there are minor children, the issues of child custody, visitation, and support.  

A parentage action occurs when there has been no marriage but the parties share a minor child. As part of this action, you can expect to address child custody, visitation, and support. You could potentially be addressing attorney fees as well, depending on the circumstances of the parties. 

Child custody and visitation are two separate issues. Child Custody has two main components, legal and physical. 

• Legal Custody is defined as the right to make decisions regarding the health, education, and welfare of the child(ren). It is decision making power. Where will your child(ren) go to school? Who will their doctor be?  When you have joint legal custody, either parent acting alone may make decisions regarding the health, education, and welfare of the child, unless the order specifies circumstances requiring consent of both Parties, or unless it interferes with the visitation of the other parent.  Although the court states no preference over joint or legal custody, the vast majority of cases that we see are joint legal custody. The focus of the court is what is in the child(ren)'s best interest, not the parents' interest or to achieve equity between the parents. 
• Physical Custody can be either "sole" or "joint" - just as legal custody. However, even where the court has granted "sole physical custody," this only means that the child(ren) will reside with one parent, subject to the other parent's visitation schedule. It does not mean that the non-custodial parent has no visitation. "Joint physical custody" means that each parent will have significant periods of physical custody. There is no set percentage of visitation deeming when "joint" is ordered over "sole." It is the court's discretion, and varies widely. 
• Visitation is the actual schedule the parties follow in sharing time with the child(ren). This can vary widely, and there is no stated preference for one parent (mom or dad) over the other and there is no stated preference for a specific visitation schedule or percentage (50/50). The court is trying to ensure frequent and continuing contact with both parents, as long as each child(ren)'s health, safety, and welfare are ensured. Again, the focus is on the child(ren)'s best interest. So while there may not be a stated preference for mom over dad (or vice versa), if one parent has been the primary care taker during the marriage, the court will often award them more custodial time to promote continuity and stability for the child(ren).

Child support is based on a statewide uniform guideline formula that looks at both parties' income, the time share percentage with the children, and certain tax deductions. The court has very limited circumstances where it can deviate from this formula. The calculation is rebuttably presumed to the correct amount. Most attorneys use a program called "DissoMasterTM" to run this calculation. 

Temporary spousal support is generally ordered during the pendency of your divorce action. It is generally calculated through the same program used to calculated child support.  However, this is not used in determining long term spousal support as part of a Judgment. There is no set formula for long term spousal support. There are fourteen factors the court considers in deciding a spousal support order, none of which are mathematical (Family Code Sec. 4320). It can make this amount difficult to determine, but practiced attorneys can often give you an estimate of what to expect if your case is litigated. 

Prior to January 1, 2019 spousal support was taxable income to the receiving spouse, and a tax deduction to the paying spouse. After January 1, 2019 the federal tax laws changed for new orders. If you are uncertain whether these changes affected your matter, you should consult with either a family law attorney or a tax attorney. 

The Court, as part of a divorce action, has the ability to make orders regarding the division of property owned by the Parties. This includes community and separate property. 

• "Separate property" is property you owned prior to the marriage/domestic partnership or acquired after the date of separation, unless "transmuted." A transmutation of property occurs when the parties, through an express writing, change property from separate to community. The most common form of this occurs when your spouse is added to title on a home you owned prior to marriage. However, there may still be reimbursement claims for the Party that owned the property prior to marriage. 
• "Community property" is property that was acquired during the marriage/domestic partnership (unless by gift or inheritance), and is therefore owned equally by both parties. 

For community or separate property, there may be reimbursement claims, transmutations of property, valuation issues, or tax issues that can affect the division of property. Often, a consultation with an attorney will assist you in determining if any of these more complicated issues exist in your case. 

There are two primary bases for attorney fees in family law cases. 

• Disparity in Access - The court must ensure that each party to a marital action has access to legal representation. To do so, the court may order one party to pay the other party's attorney fees and costs. The court looks not only to the income of the parties, but the support they are receiving, the cash accounts they have access to, and whether the paying party has the ability to pay both their own and the other party's fees and costs. 
• Sanctions - There are many bases for sanctions in family law cases, and the amounts vary widely. They are most commonly used to reimburse one party for unnecessary expended legal fees (if the paying party did something or failed to do something, necessitating the filing of a motion by the other party), or as punishment to deter future behavior. 

• Prenuptial Agreements are agreements entered into prior to your marriage/domestic partnership which define and generally alter the property rights prescribed by law. They must be in writing and signed by both parties, and becomes effective upon marriage. The  most common issue that arises regarding enforce-ability is whether the parties had the opportunity to review the document for at least seven calendar days before it was signed. If there is a waiver of spousal support, you must be represented by counsel for it to be enforceable. Additionally, you should be aware that the Court does have the ability to order spousal support, even if waived in a prenuptial agreement, if it is "unconscionable at the time enforcement is sought."
• Post-Nuptial Agreements are agreements entered into during the marriage/domestic partnership. They must be in writing, they  must contain an express declaration of transmutation of the property, and they must be consented to or accepted by the adversely affected spouse. Post-Nuptial Agreements are generally more scrutinized by the Court because of the fiduciary duty owed to your spouse during marriage. There are different requirements, depending on whether the agreement is being made in contemplation of a divorce, or not.