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Law Office of Hugh Douglas Whittemore | Family Law FAQ

What is a Prenuptial or Postnuptial Agreement?

A marital agreement is a written contract that binds each spouse to the terms they have agreed on. In the case of a prenuptial agreement, this is agreed to before the marriage takes place. A postnuptial agreement is completed at some point after the marriage begins. Such agreements may provide for the manner in which assets and spousal support would be handled if separation, divorce, or death occurs. There are conditions that must be met if the agreement is to be enforceable. Both parties need to have their own attorney review the document. Each person must sign the agreement of their own free will. If one party is coerced into signing, or if they signed due to fraud, the contract would not be valid, nor would it hold up in court.

Prenuptial and postnuptial agreements can protect an individual’s assets and property acquired prior to marriage. A skilled family law lawyer would create or review the document prior to the client signing it so they can be sure that the client’s financial stability would not be negatively impacted.

Do I need a Divorce Lawyer?

Divorce attorneys are able to advocate for their clients during a time when life may seem out of control. With a thorough understanding of California divorce law, your divorce lawyer can provide sound guidance. This legal professional will examine each part of your case as well as any larger, related issues so that your rights are protected. A divorce will often involve more than ending a marriage. It may be necessary to also establish child support and child custody. Division of marital assets and debts will likely also need to be handled.

A family law lawyer can direct and support you through the divorce process from beginning to end. This can have a stress-reducing effect. Additionally, the attorney handles all necessary paperwork. A divorce lawyer is also able to negotiate a divorce settlement. When some issues are disputed, your divorce attorney will be able to represent you in court if a divorce trial occurs.

Why does the Date of Separation Matter?

California law places importance on the date of the separation. This date is when the spouses’ income is no longer community property. The date should be considered carefully since potentially serious legal and financial consequences could result. When the date of separation has passed, each party can then begin increasing their separate estates. The same is true for debts. California is a community property state, so it is assumed that all debts and assets accumulated during the marriage belong to both spouses.

Other issues may also be affected by the separation date. For example, it may be determined by the family court that child support will start accruing on that date. Consultation with a knowledgeable family law lawyer before assigning a date of separation can help eliminate expensive mistakes in the divorce process.

What is meant by Commingled Assets in California?

Division of marital property can become complicated when parties must specify exactly what is community property, commingled assets, and separate property. An asset that is acquired during the marriage becomes community property. This is owned by both spouses. An asset that one spouse owned prior to the marriage is considered separate property. Determining the ownership of assets is complicated since it is not uncommon for separate property to become community property and therefore grant an interest in the asset to each spouse. This can happen when real property or a professional practice is brought into the marriage.

As an example, if a deceased family member bequeathed a house to one of the spouses, this would be considered separate property. As such, it would be protected from property division. However, if the property’s mortgage were paid using marital funds, this would mean the asset is commingled. This would give each spouse an interest in the property. A skilled divorce attorney will guide clients on the assessment and treatment of commingled assets and community property.

What is the difference between Legal Custody and Physical Custody?

When referring to physical custody of children, this refers to the time each parent has with the child. Legal custody refers to which parent will be making decisions on the children’s health, welfare, education, religious activities, or other important matters. As part of the separation or divorce process, the parents and possibly the family court mediator will establish a custody arrangement. Many factors go into this decision, including the mental fitness of each parent and their ability to provide proper care for their child.

Most often, the family court will expect that both parents take part in their child’s life and care. It is required by California law that parenting arrangements serve the child’s best interests. Usually this would mean custody is shared by both parents. In some cases, it may be better for the child if one parent holds sole physical and legal custody. In other cases, each parent holds a certain percentage of joint custody.

What is Spousal Support?

Spousal support in California refers to the amount of money one spouse is ordered to pay the other as part of their separation or divorce. Other terms used for such payments are alimony or spousal maintenance. Spousal support can be of a temporary or permanent nature depending on the circumstances. It is not a provision that is automatically awarded, but the family court judge will consider certain factors when deciding whether to order spousal support:

Education levels of each spouse

Earning capacity of each spouse

Length of marriage

Employment opportunities

Financial obligations

Expected standard of living

The family court judge may order that temporary spousal support be paid during the divorce to the spouse who earns a lower amount. Permanent spousal support could be ordered if one spouse’s ability to earn has been reduced during the marriage. Skilled spousal support lawyers are able to advocate for clients’ interests when disputing a spousal support order or establishing it.

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Fullerton, CA 92832

Phone: (714) 870-9197


The information contained herein is for information purposes only and should not be construed as legal advice. You should not act or fail to act based on the information on this website. The content contains general information only, and may not reflect recent changes to the law. All cases differ – please contact an attorney in your area to get legal advice as it pertains to your case. Attorney Whittemore is licensed to practice law in the State of California.

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