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Additional Family Law FAQs
What Is Community Property?
Community property is any assets, property, or debt that was obtained by the couple during the time of their marriage.
What Is Separate Property?
Separate property is any assets or property that either spouse acquired or owned prior to the marriage. This may also include an inheritance, assets gained following a separation, or a gift to one spouse from an outside party, according to Family Code 770-772.
What Is Joint Custody?
The state of California defines joint custody as both physical and legal custody. Legal custody refers to decision making, while physical custody determines where a child resides and how time with the child is split.
In instances of joint legal custody, the parental rights and decision making are shared by the parents. And in instances of joint physical custody, each parent will receive substantial time with the child. It is possible to receive joint legal custody, but not joint physical custody.
What Is Sole Custody?
Similar to joint custody, sole custody in California also differs between legal and physical custody. For example, if an arrangement of sole legal custody is made, then only one parent will be responsible for decision making. While sole physical custody indicates that the child will only live with one parent.
Does Sole Custody Terminate Parental Rights?
Not necessarily. In matters of sole custody, the noncustodial parent will not have legal rights concerning decision making or having the child reside with them. However, they do still have the right to visitation, unless the court decides against it. This differs from the termination of parental rights.
Terminating parental rights legally ends the relationship between a parent and child. In such cases custody, visitation, and other rights are revoked.
Guardianship vs. Custody – What’s the Difference?
According to California law, legal guardianship occurs when the court awards custody to an individual who is not the parent, who will then be responsible for the care of the child. Whereas custody is when the child is in the care of their parent or parents. However, it is important to note, that parents may still be able to maintain parental rights even if a guardianship has been granted.
Can You Lose Custody for Not Paying Child Support?
Typically, a parent will not lose custody of their child if they don’t pay child support. However, that does not mean that an individual can forgo making support payments. Neglecting to pay child support comes with serious consequences, such as being found in contempt of court, wage garnishment, community service, and many more severe repercussions.
Reasons a Judge Will Change Custody:
- If one of the parents relocates
- If the needs of the child(ren) have altered since the original order was made
- If the environment the child is in is unsafe
- If the parental responsibilities are being neglected
- If the custody agreement is not being followed
Can You Go to Jail for Not Paying Child Support?
In instances where an individual is refusing to pay child support, they could potentially be found in contempt of court, which could result in the parent being sent to jail.
Can Parents Agree to No Child Support?
While parents do have the right to create a child support agreement, if requirements are met and the court approves it, they cannot waive child support.
What Are Arrears in Child Support?
Arrears refer to child support that has not been paid. This unpaid or past due support can then be enforced by California’s Department of Child Support Services.
What Is the Difference Between Arrears and Back Child Support?
Arrears occur if the parent has neglected to make the support payment; this is often used interchangeably with back child support. Retroactive child support references support that was accumulated prior to the child support arrangement being made.
Is Domestic Violence a Felony in California?
Domestic violence can be either a misdemeanor or a felony in the state of the California. The severity and circumstances surrounding the crime can determine how an in individual is charged. If there was corporal injury, then the individual will be charged with a felony according to California Penal Code 273.5. While battery may be charged as a misdemeanor. Regardless, domestic violence is considered a serious crime that is punishable by the law, with penalties including fines, imprisonment, and possible probation.
Is Verbal Abuse Domestic Violence?
Yes, verbal abuse is considered domestic violence and a criminal threat that is punishable by California law under Penal Code 422.
Is Emotional Abuse Domestic Violence?
Yes, emotional abuse is considered domestic violence. According to California Penal code 13700 (a), abuse can include causing another individual to fear for their safety. Therefore, acts of cyber harassment, stalking, threats, and trespassing can be considered acts of emotional abuse.
Does Alimony Stop When You Remarry?
Yes. According to California spousal support laws, if you are the recipient of alimony and you remarry then spousal support with stop, unless such terms were waived during your divorce.
Is Spousal Support Taxable?
Yes, spousal support is taxable at the state level in California. This means that the individual who collects support must report the alimony as income, while the individual who pays support can deduct the payments from their income when filing.
However, this does not apply to federal filings.
Does Alimony Change If Income Changes?
Modification of alimony can be requested by the court if there is proof of a substantial change in circumstances. This does include a change in income. However, this typically pertains to a loss of employment or a decrease in income.
What Does a Prenup Protect?
A prenuptial agreement is meant to protect your assets in the event of a divorce. This may include property, real estate, debt, or income, and how it will be divided. This can be especially helpful as California is a community property state.
Can a Prenup Be Voided?
Yes, in certain cases a prenup may not be considered valid by the court. This can occur if assets were not disclosed, if there was invalid or false information provided, if the agreement was signed under coercion or non-voluntarily, or if the agreement was not filed correctly.
Can You Sign a Prenup after Marriage?
No. A prenuptial agreement is signed prior to a marriage, while a postnuptial agreement can be made after a couple is married. However, prenups can be modified or terminated by the spouses after the agreement has been made.
What Makes a Prenuptial Agreement Valid?
If the requirements laid out by the state are met. In California, that means the agreement is made in writing and voluntarily signed by the couple. State law also mandates specific requirements regarding what can and can’t be included in the agreement, as well as the legal process surrounding filing. To ensure your prenup is valid and legally enforceable, it’s best to hire an attorney to assist with the agreement.
Do Grandparents Have Visitation Rights?
While laws surrounding visitation can vary by state, in California, a grandparent can petition for reasonable visitation rights.
Can You Withhold Visitation for Unpaid Child Support?
No. The state views child support and child custody agreements separately. While there are serious ramifications for unpaid child support, this does not include withholding visitation rights.
Can Visitation Rights Be Revoked?
Yes, visitation rights can be terminated or revoked voluntarily or by the court. This can occur in cases of abandonment, abuse, addiction, neglect, or a felony conviction.
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