A Premarital Agreement, oftentimes referred to as a “Prenuptial Agreement,” is a contract in anticipation of marriage that would specify the rights and obligations of each party. Such an agreement may typically include terms for property distribution in the event the marriage terminates.
Child and Spousal Support
Child Support is monetary payment that a parent may have to provide as a contribution in order to aid in the costs associated with raising his or her child.
Spousal Support, oftentimes referred to as “Alimony,” is court ordered monetary payment that one spouse may have to provide their ex-spouse, either after dissolution, or while the dissolution of marriage is still pending.
Enforcement Actions are subsequent actions filed after an initial child or spousal support court order. These types of actions are made in order to help a party seek relief for delinquent or monetary nonpayment by the person who is charged with paying. Some examples of Enforcement Actions that the court may impose include: Garnishing of wages, liens set against real or personal property, reporting the debtor to credit bureaus, freezing bank accounts or assets, contempt order, or possibly incarceration.
A Postmarital Agreement, oftentimes referred to as “Postnuptial Agreement,” is a contract made between spouses that is formed after they are married which may concern future rights, obligations and responsibilities in the event the marriage should end either by the death of one of the spouses, or by termination of the marriage.
Child Custody and Visitation
There are various types of Child Custody arrangements that can be agreed to by parties, or prescribed through a court order. Depending on the custody arrangement, the parties’ visitation with the child or children can be affected and they may have various rights, responsibilities and obligations. Some of those types of arrangements include: Physical Custody, Legal Custody, Sole Custody and Joint Custody.
Paternity Actions are those filed with the court seeking the court’s assistance in determining who the biological father of a child is and petitioning the court to make a ruling to establish that person’s rights and obligations as it relates to the child and the person who currently has custody over the child. These types of actions usually become relevant in relation to child support, custody, visitation rights and health care. It may also be necessary to establish paternity when discussing adoption and inheritance, among other issues.
Domestic Violence Restraining Orders
Domestic Violence Restraining Orders are court orders sought by an individual against another party who has been abusive to that individual in some way. The court will make a determination if such a protective order is necessary to keep one or both of the individuals safe. Restraining orders will generally place certain restrictions on the behavior of the person who the restraining order is being sought against. Examples of those restrictions may include, but are not limited to: Prohibiting certain types of contact, requiring a certain amount of physical distance be maintained at specified times, or possibly requiring one person to move from the location they are domiciled.
Divorce Judgments are court orders which are entered after a judge has ruled over a case. The orders would typically include, but may not be limited to the following: Dissolution of the marriage, allocation and division of property, child custody, visitation arrangements, child support, spousal support, if applicable, the possibility of attorneys’ fees and any other pertinent issues relating to the case.
When spouses encounter difficult times in their marriage, they will sometimes temporarily separate, which may or may not end in reconciliation. This differs from Legal Separation, for it does not have the same legal force and effect. A Legal Separation is a court-ordered separation which may include legally defined enforceable rights and obligations, but does not permanently terminate the marriage in the way a dissolution would. Some examples of benefits a couple may choose Legal Separation over Dissolution are: (1) Still being able to take advantage of financial benefits such as tax incentives, (2) Remaining married for religious or cultural reasons, (3) If there is still a possibility of reconciliation. Legal Separation may offer an easier transition back into life together as a couple.
Nullity judgments are ordered when one seeks an annulment of a marriage. Annulments differ from Dissolutions because they are a judgment to classify the marriage to have never actually been valid from the beginning, and therefore, the marriage is void. It is important to note that there is a time limit in which an action for nullity of marriage must be initiated. There are several reasons that one may seek to nullify a marriage. Some examples of those are: Mental illness, lack of consent, duress, fraud, intoxication, inability to consummate the marriage and lack of parental consent for the marriage of a minor.
Allocation of Debts
Similar to Division of Property, parties may come to an agreement on their own or through the process of litigation as to which party will be responsible for which debts. However, even after this agreement has been made, it does not become final until it is presented to a judge who can make a final order. This helps when needing to inform creditors as to which party is now responsible for which debt.
Division of Property
Either after litigation or sometimes upon the finding of an amicable agreement between those seeking to end a relationship, there is eventually a division of property that becomes satisfactory to both parties. After such an agreement has been made, the division of property does not yet become final and must be presented to a judge for their review and approval so that the judge can make a final order and that is recognized by the court. The purpose of this is to avoid dispute over ambiguity of language, or if parties later try to change their minds.
Comfirmation of Separate Property
Upon the dissolution of a marriage or a legal separation, spouses may have property that they claim is their “separate” property and, therefore, is not considered “community” property. This may be property they had prior to the marriage which was maintained as separate property throughout the course of the marriage, or it may be property one spouse inherited, or was personally gifted. If a person wishes to keep this property as their own after the dissolution or legal separation, they may need the assistance of counsel to help them “trace” the property, and they will need a judge’s ruling and order stating that the property was kept legally separate and, therefore, belongs solely to one of the two spouses.
Division of Retirement Benefits
Upon the dissolution of a marriage, one spouse may be entitled to a portion of the other spouse’s retirement benefits, which may include, pension, stocks or 401K, etc. A spouse may need the assistance of counsel to be able to recognize which benefits and what portion of those benefits they may be entitled to.
Breach of Fiduciary Duty
In a marriage and occasionally in other circumstances, there is a fiduciary duty to financially act in a manner which is in the best interest and is meant to benefit the property held by the “community.” Therefore, if one spouse uses community monies inappropriately and without the knowledge and approval of the other spouse, then they may have breached their fiduciary duty. In addition, Family Code section 1100(e) states in part that, “this fiduciary duty includes the obligation to make full disclosure… of all material facts and information regarding the existence, characterization, and valuation of all assets in which the community has or may have an interest and debts for which the community is or may be liable…” If one spouse knowingly withholds information relating to the status of the community’s assets, they may be liable to their spouse for a breach of their fiduciary duty. Further, this duty may not require the other spouse to actually request this information, but may oblige the spouses to disclose this information voluntarily.
During the divorce process, a date of separation will be identified. As the parties continue to litigate their divorce until trial or other final resolution, they may have used their separate property money to pay for community expenses. In these circumstances, the party that has contributed separate property money to aid the community may have rights of reimbursement.