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British Columbia

Division of Property

The breakdown of a relationship or marriage can have significant consequences for the parties involved, apart from the emotional consequences. The division of family property in family law court actions commenced after March 18, 2013, is governed by the Family Law Act, and previous decisions of the Court. The family home, bank accounts, RRSPs, pensions, and other property may be subject to division, as well as family debts. If you are planning to separate from your spouse, or if you have already separated, it is very important that you meet with a lawyer to find out what your rights are. The family law lawyers at Hart Legal have a broad range of experience, from negotiating settlement agreements to assisting with mediations and proceeding to Court, we can advise you about your options and take steps to protect your interests.

Children

Want to know more?

See our child and custody support calculators.

The Family Law Act is changing the way that we address issues surrounding children by redefining the issues guardianship, custody and access, as parental responsibilities, parenting time and contact.  In all decisions regarding children, the Courts in British Columbia will look at the best interests of the child, which is what the parents are expected to do.  What does this mean for your family?  The family law lawyers at Hart Legal will meet with you to formulate an appropriate strategy for your case that is tailored to your needs.  In issues involving children, the preference is usually to remain outside of the court process and consider alternative dispute resolution mechanisms, such as negotiation, mediation, collaborative family law, or family arbitration.  However, if there are legitimate safety concerns, then it may be necessary to act quickly and proceed to court in order to obtain an order with respect to the children, such as a restraining order, which our experienced family law lawyers are prepared to do.

Child Support

If, after separating, you have the primary responsibilities for your children, you are likely entitled to child support from your spouse.  The amount of child support will be determined by the Federal Child Support Guidelines.  Additionally, special expenses such as daycare, medical or dental expenses, and extraordinary extracurricular activity expenses should be shared with your spouse on a proportionate basis.  If you have questions about child support, our family law lawyers at Hart Legal can assess your particular situation, advise whether your spouse should be paying child support to you, and take action to enforce your rights.

Collaborative Family Law

If you and your former spouse are committed to resolving your disputes outside of the Courtroom, then the collaborative family law process may be right for you.  This is a process where both parties agree to not go to Court, and to resolve parenting, property, and financial decisions throughout the collaborative process.  The process may involve financial advisors, child specialists, divorce coaches, and your family law lawyer.  The family law lawyers at Hart Legal are experienced in the collobarotive family law process and will answer questions you may have to help you to determine whether it is appropriate for you and your spouse.

Common Law Couples

Under the Family Law Act, unmarried couples, both same sex and opposite sex, are defined as spouses if they live together in a marriage-like relationship for a continuous period of at least 2 years.  Under the Act, these common law spouses are given the same rights and responsibilities as married couples, unless they have a cohabitation agreement in place.  This is a big change to the law in British Columbia.  If this change affects you, make an appointment with one of our family law lawyers to discuss your options.

Same-Sex Couples

Same-sex couples in British Columbia have the same rights and responsibilities as opposite-sex couples.  Same-sex partners who are married, or who have lived together for two or more years, are deemed to be spouses under the Family Law Act, which creates certain rights and responsibilities.

Same-sex marriage in British Columbia became legal on July 8, 2003, after a series of court rulings found that the restriction on same-sex marriages violated Canada’s Charter of Rights and Freedoms.  On July 20, 2005, same-sex marriage across Canada was legalized when the Civil Marriage Act received Royal Assent.

Same-sex couples face the same difficulties (emotional, financial and practical)  as opposite-sex couples when separating.  If you have a same sex partner and are seeking to separate, or would like to know what your rights are, make an appointment to speak with one of our family law lawyers.

Cohabitation Agreements

Is your girlfriend or boyfriend moving into your home?  Congratulations!  This is a big step in your relationship, both emotionally and legally.  Once you and your partner have lived together for at least 2 years, you will be deemed to be spouses under the Family Law Act, which means that you will have the same rights and responsibilities as a married couple unless you have an agreement in place.  Do you know how that affects you?  If you have questions about your rights and responsibilities, our family law lawyers at Hart Legal can answer your questions and provide you with options to protect your interests.

Hart Legal is pleased to be able to offer services in English, French, Mandarin, Cantonese, Russian, Latvian, Hindi, and Punjabi. Spanish upon request

Alberta

Divorce

To apply for a divorce in Alberta, either spouse must have been ordinarily resident in the province for at least one year immediately preceding the commencement of a proceeding.

A divorce may be granted on the ground that there has been a breakdown of the marriage. This is established by one of the following three grounds:

1. Adultery;
2. Physical or mental cruelty rendering continued cohabitation of the spouses intolerable; or
3. Separation for at least one year preceding the determination of the divorce proceeding and at the commencement of the proceeding.

Every lawyer has a duty to discuss the possibility of reconciliation of the spouses with a client who wishes to commence a divorce proceeding.

Division of Property For Married Couples

Want to know more?

See our child and custody support calculators.

The classification and division of property for married couples is governed by the Matrimonial Property Act. It provides a basic presumption of equality for most property acquired during the marriage including the matrimonial home, bank accounts, RRSPs, pensions, and other property. If you are planning to separate from your spouse, or if you have already separated, it is very important that you meet with a lawyer to find out what your rights are. The family law lawyers at Hart Legal have a broad range of experience, from negotiating settlement agreements, to assisting with mediations and proceeding to Court, we can advise you about your options and take steps to protect your interests.

Divison of Property For Unmarried Couples

The Matrimonial Property Act does not apply to unmarried couples. There is currently no Alberta legislation for the distribution of property acquired by unmarried couples upon separation. Generally, the property that acquired during the relationship will prima facie remain the property of the party who is the registered owner. However, a party can make a claim for unjust enrichment if it would be unfair for one party to keep all of the property at the expense of the other party. The remedies available include compensation for the party’s services or an interest in the property proportionate to the party’s contribution. If your relationship has recently ended, make an appointment with one of our family law lawyers to discuss your options.

Children

If the parties have a child under the age of sixteen then both parties must attend the Parenting After Separation seminar.
The Family Law Act addresses the issues of guardianship, parenting and contact. Guardianship refers to the powers, responsibilities, and entitlements in respect of a child that is allocated to a guardian. Contact refers to the relationship between a child and a person who is not a guardian. Parenting refers to the exercise of the powers, responsibilities and entitlements of guardianship of a child and to parenting time with a child. The Divorce Act uses the terms custody and access. In all decisions regarding children, the Courts in Alberta will look at the best interests of the child, which is what the parents are expected to do. What does this mean for your family? The family law lawyers at Hart Legal will meet with you to formulate an appropriate strategy for your case that is tailored to your needs. In issues involving children, the preference is usually to remain outside of the court process and consider alternative dispute resolution mechanisms, such as negotiation, mediation, collaborative family law, or family arbitration. However, if there are legitimate safety concerns, then it may be necessary to act quickly and proceed to court in order to obtain an order with respect to the children, such as a restraining order, which our experienced family law lawyers are prepared to do.

Child Support

If, after separating, you have the primary responsibilities for your children, you are likely entitled to child support from your spouse. Both the Divorce Act and the Family Law Act contain provisions relating to child support. Under the Family Law Act, support for adult children is limited to children between the ages of eighteen and twenty-two who are full-time students. The amount of child support will be determined by the Federal Child Support Guidelines. Additionally, special expenses such as daycare, medical or dental expenses, and extraordinary extracurricular activity expenses should be shared with your spouse on a proportionate basis. If you have questions about child support, our family law lawyers at Hart Legal can assess your particular situation, advise whether your spouse should be paying child support to you, and take action to enforce your rights.

Spousal Support For Married Couples

In Alberta, spousal support is permitted only for those parties who are legally married. Every spouse has an obligation to provide support for the other spouse. Compensatory spousal support aims to equalize the economic losses suffered and the benefits received. Non-compensatory spousal support aims to alleviate the suffering of a spouse upon the breakdown of the marriage. Spousal support is also a tool to promote the self-sufficiency of both spouses post separation. After a separation, entitlement to spousal support is based upon a factual determination based upon your personal circumstances. The Spousal Support Advisory Guidelines establishes a low-mid-high range of appropriate spousal support but they are not law. Whether you’re facing a claim for spousal support or looking to obtain spousal support following a separation, our team at the Calgary office of Hart legal is able to assist you. All of our lawyers have successfully negotiated settlement agreements addressing spousal support and litigated spousal support claims through the court process.

Spousal Support For Unmarried Couples

A party can bring an application for support under the Family Law Act if they were adult interdependent partners. The Adult Interdependent Relationships Act provides legal recognition of unmarried couples if they meet the criteria.

Agreements

Cohabitation, marriage agreements and post-marriage agreements are usually made during the relationship and deal with potential consequences of a breakdown.

Separation agreements are negotiated and made after a relationship breakdown.

Collaborative Divorce

Collaborative divorce is an effective alternative to traditional litigious divorce proceedings. It incorporates interest-based negotiation and mediation skills in an out-of-court process to help the parties reach a mutually agreeable settlement. This is a process where both parties agree to not go to Court, and to resolve parenting, property, and financial decisions throughout the collaborative process. The process may involve financial advisors, child specialists, divorce coaches, and your family law lawyer. The family law lawyers at Hart Legal are experienced in the collaborative family law process and will answer questions you may have to help you to determine whether it is appropriate for you and your spouse.

Hart Legal is pleased to be able to offer services in English, French, Mandarin, Cantonese, Russian, Latvian, Hindi, and Punjabi. Spanish upon request.

Saskatchewan

Divorce (Uncontested vs. Contested)

An uncontested divorce proceeding is when both spouses have agreed to about all the legally important issues between them (e.g. parenting of children, support, property division).  The only issue remaining will be that they are still married. This allows you to get divorced without having to go to court, which is a relatively simple and painless process.

A contested divorce proceeding is when there are other issues, such as children, child support, spousal support or property division that still need to be resolved.  Resolution of these issues may be done by Separation Agreement or by proceeding through the court processes.  Once the issues have been resolved and the only issue left is obtaining a divorce, it is a relatively simple process.

If you have questions about obtaining a divorce, our family law lawyers at Hart Legal can assist you with determining the best way to proceed in your divorce proceeding.

Division of Property

The breakdown of a relationship or marriage can have significant consequences for the parties involved, apart from the emotional consequences.  The division of family property is governed by the Family Property Act, and previous decisions of the Court.  The family home, bank accounts, RRSPs, pensions, and other property may be subject to division, as well as family debts. The effect of separation and divorce on Family Farms can be particularly difficult to plan and arrange for.  If you are planning to separate from your spouse, or if you have already separated, it is very important that you meet with a lawyer to find out what your rights are.  The family law lawyers at Hart Legal have a broad range of experience, from negotiating settlement agreements, to assisting with mediations and proceeding to Court, we can advise you about your options and take steps to protect your interests.

Children

Want to know more?

See our child and custody support calculators.

The Children’s Law Act is changing the way that we address issues surrounding children by redefining the issues guardianship, custody and access, as parental responsibilities, parenting time and contact.  In all decisions regarding children, the Courts in Saskatchewan will look at the best interests of the child, which is what the parents are expected to do.  What does this mean for your family?  The family law lawyers at Hart Legal will meet with you to formulate an appropriate strategy for your case that is tailored to your needs.  In issues involving children, the preference is usually to remain outside of the court process and consider alternative dispute resolution mechanisms, such as negotiation, mediation, collaborative family law, or family arbitration.  However, if there are legitimate safety concerns, then it may be necessary to act quickly and proceed to court in order to obtain an order with respect to the children which our experienced family law lawyers are prepared to do.

Child Support

If, after separating, you have the primary responsibilities for your children, you are likely entitled to child support from your spouse.  The amount of child support will be determined by the Federal Child Support Guidelines.  Additionally, special expenses such as daycare, medical or dental expenses, and extraordinary extracurricular activity expenses should be shared with your spouse on a proportionate basis.  If you have questions about child support, our family law lawyers at Hart Legal can assess your particular situation, advise whether your spouse should be paying child support to you, and take action to enforce your rights.

Spousal Support

If you are married or have been living together in a marriage-like relationship for a continuous period of at least 2 years, you are spouses. The Family Maintenance Act, in section 5, provides that every spouse has an obligation to support his/her spouse, in accordance with need, to the extent that the person is capable of doing so.  The purpose of spousal support is to relieve economic hardship resulting from the marriage or relationship and its breakdown. The amount of spousal support will be determined by the Federal Spousal Support Guidelines. If you have questions about spousal support, our family law lawyers at Hart Legal can assess your particular situation, advise whether you or your spouse should be paying spousal support, and take action to enforce your rights.

Collaborative Family Law

If you and your former spouse are committed to resolving your disputes outside of the Courtroom, then the collaborative family law process may be right for you.  This is a process where both parties agree to not go to Court, and to resolve parenting, property, and financial decisions throughout the collaborative process.  The process may involve financial advisors, child specialists, divorce coaches, and your family law lawyer.  The family law lawyers at Hart Legal are experienced in the collaborative family law process and will answer questions you may have to help you to determine whether it is appropriate for you and your spouse.

Common Law Couples

Under the Property Act and the Family Maintenance Act, unmarried couples, both same sex and opposite sex, are defined as spouses if they live together in a marriage-like relationship for a continuous period of at least 2 years.  Under these Acts, common law spouses are given the same rights and responsibilities as married couples, unless they have a cohabitation agreement in place.  If this change affects you, make an appointment with one of our family law lawyers to discuss your options.

Same-Sex Couples

Same-sex couples in Saskatchewan have the same rights and responsibilities as opposite-sex couples.  Same-sex partners who are married, or who have lived together for two or more years, are deemed to be spouses under the Family Property Act and Family Maintenance Act, which creates certain rights and responsibilities.

Same-sex couples face the same difficulties (emotional, financial and practical)  as opposite-sex couples when separating.  If you have a same sex partner and are seeking to separate, or would like to know what your rights are, make an appointment to speak with one of our family law lawyers.

Cohabitation Agreements

Is your girlfriend or boyfriend moving into your home?  Congratulations!  This is a big step in your relationship, both emotionally and legally.  Once you and your partner have lived together for at least 2 years, you will be deemed to be spouses under the Family Property Act, which means that you will have the same rights and responsibilities as a married couple unless you have an agreement in place.  Do you know how that affects you?  If you have questions about your rights and responsibilities, our family law lawyers at Hart Legal can answer your questions and provide you with options to protect your interests.

Homestead Rights

The Homestead Act grants the right to a person to be consulted and to sign off any sale of property that their spouse has in their name alone. The law requires that before you sell any property that either you have the consent of your spouse, either married or common law, or affirm that you have no spouse.

If you believe that your spouse may attempt to sell property without your consent, or are trying to sell your property and your former spouse will not agree, the lawyers at Hart Legal are available to assist you in protecting your property and helping you enforce your rights.

Relocation

The law in regards to relocation is highly fact dependent and considers a broad scope of factors. If you or your ex-partner plan to move, it is important to discuss it with one another and consider what a move means to the current parenting plan.  If you cannot agree on whether one parent can move, it often becomes a highly contentious matter and engaging a lawyer early on can help minimize the conflict and speed up the agreement process. If you would like to know what your rights are, make an appointment with one of our family law lawyers to discuss your options.

Legal Separation and Agreement/Separation Agreements

A Separation Agreement is a contract between two spouses, which is prepared once they are separated. Separation Agreements allow the parties to determine how the issues such as custody, parenting time, child support, spousal support and property division will be settled.

If your Agreement deals with property division, in order for it to be binding under the Family Property Act, each spouse must obtain independent legal advice.

If you have questions about your rights and responsibilities, our family law lawyers at Hart Legal can answer your questions and prepare a Separation Agreement for you.

Parent Alienation

Parental alienation is one of the more difficult issues in family law.  This occurs when the children are being alienated from one parent through the actions of the other parent.   Separating parents should endeavor to encourage their children to maintain positive and healthy relationships with each parent.

If you believe that parental alienation is present, you should speak to a family law lawyer as soon as possible.

Ontario

Divorce

Across Canada, applications for divorce are governed by the Divorce Act.  There are three types of proceedings under the Divorce Act: divorce proceedings, corollary relief proceedings and variation proceedings.  Through divorce proceedings spouses seek a divorce either alone or with an order addressing any of the following issues: custody and access, child support, or spousal support.  Corollary relief proceedings also address custody and access, child support, or spousal support, but address them separately from the order for divorce, enabling spouses to divorce at an earlier stage and deal with all other issues at a later date. Finally, variation proceedings are used to vary, rescind, or suspend support orders or custody orders after they have been made.  All of our lawyers in the Toronto office of Hart Legal have experiencing commencing and continuing all types of proceedings under the Divorce Act. Make an appointment with one of our Toronto lawyers to discuss your options and to assist you with your divorce proceeding.

Division of Property

One of the main issues to be addressed upon the breakdown of a relationship or marriage is what will happen to property owned by the spouses – who will retain what? In Ontario, the division of property depends on whether the relationship is a common law relationship or a matrimonial relationship.  Property rights for married spouses in Ontario are statutorily governed by the Family Law Act (FLA).  Whereas, common law spouses do not have statutory property rights but may have rights to property pursuant to trust principles. All property, including the family home, investments, vehicles, pensions, and family debts factor into a division of the assets following separation/divorce. A lawyer can advise you as to your rights and help you navigate the division of assets during the separation process. All of our family law lawyers in the Toronto office of Hart legal have experience assisting clients with settlement agreements, mediation, negotiation, and court proceedings regarding the division of property.  Contact us to discuss your options to protect your interests.

Children

Custody refers to the right of a parent to make major decisions for a child on issues such as education, religion, and non-emergency health care. Access refers to the time that a parent has to have the child in his or her care.  In Ontario, the rights and responsibilities of parties in relation to custody and access are governed by the Divorce Act and the Children’s Law Reform Act.  Both pieces of legislation dictate that the determination of custody and access of the children following a separation or divorce will be based upon the best interests of the child in the circumstances.  The best interests of the child is a factual determination based on that child’s specific interests and needs.

If you have questions about custody and access in Ontario, contact one of our family lawyers in the Toronto office of Hart Legal. Our lawyers are able to you in determining the best route to protect your custody and access rights based on your unique situation.

Child Support

Pursuant to the Divorce Act and the Ontario Family Law Act, parents in Ontario with primary custody or shared custody are entitled to have the opposing parent pay for the support of any or all children of the marriage or relationship.  If your child is under the age of 18 or still considered to be a dependent and remains primarily in your care following a separation, you are likely entitled to child support to assist with your child’s expenses, including extraordinary expenses such as extracurricular activities, medications, dental expenses, and daycare.  The amount of child support will be calculated in accordance with the opposing parent’s annual income and the Federal Child Support Guidelines.

Our Toronto lawyers are experienced with applying the Federal Child Support Guidelines to determine the appropriate amount of child support.  If you are in need of child support, contact our office to discuss your particular situation and create a plan to establish child support payments. Alternatively, if you are paying child support or facing a claim for child support, contact our office to assist in determining the appropriate amount of child support to be paid and work to ensure you are not overpaying.

Spousal Support

In Ontario, a married spouse or divorced spouse can apply for spousal support under the Divorce Act and a common-law spouse can apply for spousal support under the Family Law Act. Spousal support aims to equalize the economic consequences of a spousal relationship and ensure that one spouse does not become economically disadvantaged as a result of the separation.  It is also a tool to promote the self-sufficiency of both spouses post separation.  After a separation, entitlement to spousal support is based upon a factual determination based upon your personal circumstances.  Whether you’re facing a claim for spousal support or looking to obtain spousal support following a separation, our team at the Toronto office of Hart legal is able to assist you.  All of our lawyers have successfully negotiated settlement agreements addressing spousal support and litigated spousal support claims through the court process.

Collaborative Family Law

With the mounting expense and emotional pressure of courtroom proceedings, many spouses in Ontario are looking for alternatives to settle their family law issues.  One alternative currently gaining popularity is collaborative law.  Collaborative law is a process whereby the parties, with the assistance of their lawyers, commit to entering discussions with each other and to reach a resolution without the assistance of the Court. Although both parties are still represented by their legal counsel to give them advice and guide the discussion, the process is geared towards a more amicable resolution. As well, as the process is outside the courtroom, the parties have the power to make the decisions about what will work for them instead of leaving the ultimate decision up to a judge.  If you and your former spouse wish to avoid the stress of the court room and commit to resolving your disputes outside of court, collaborative law may be right for you. Our lawyers in the Toronto office of Hart Legal are collaboratively trained and able to assist you through the collaborative process.  Make an appointment with one of our collaborative lawyers to discuss your options.

Cohabitation Agreements and Interspousal Contracts

It is well established that getting married affects your legal standing, but did you know that moving in with your spouse can also mean a change to your rights? In Ontario, living common law with your spouse could entitle your spouse to support and/or a division of property purchased throughout the relationship.

Before moving in with your spouse or getting married make sure to talk to a lawyer about how taking the next step will affect legal rights.  A lawyer will be able to provide options to protect your legal interests, such as entering into a cohabitation agreement with your common law spouse or signing an interspousal contract before getting married. Signing an agreement with your future spouse will allow you to enter the relationship with set expectations as to your legal rights in the event of a breakdown of the relationship. If you have questions about protecting your interests before taking the next step, contact one of our lawyers in our Toronto office.

California

Legal Separation

Legal separation is similar to divorce. A legal separation is filed by a married person or domestic partner that wants to stay married.  A legal separation can resolve all issues, including child custody, child and spousal support, and property division.  A legal separation separates ends the community estate, therefore, you no longer have an obligation to your spouse.   Additionally, a legal separation will not terminate any life or health insurance.

Contact our office if you believe a legal separation is the right course of action for your situation.

Child Support

Child custody, support, and visitation issues are often the center of any divorce litigation and are the most common disputes, even after a custody and/or support order is entered.

The law in California encourages each parent to contribute financially to a child’s development and need. A Los Angeles child support attorney can assist you in making sense of the confusion that goes along with child support guidelines, financial affidavits, income withholding orders and more.

Child support in California is determined by California Family Code 4055 – Statewide Uniform Guidelines for Determining Child Support. This formula takes into consideration such things as gross income, payroll deductions, and taxes.  The formula can be complicated by other factors such as child support to children from a previous marriage, the value of a closely held business, or the value of a high asset estate.

If no agreement can be reached regarding child support, the judge will decide the child support amount based on the guideline calculation. As can be found on the state on the California government website, the guideline calculation depends on:

  • How much money the parents earn or can earn;
  • How much other income each parent receives;
  • How many children these parents have together;
  • How much time each parent spends with their children (time-share);
  • The actual tax filing status of each parent;
  • Support of children from other relationships;
  • Health insurance expenses;
  • Mandatory union dues;
  • Mandatory retirement contributions;
  • The cost of sharing daycare and uninsured health-care costs.

The child support order may also require the parents to share the costs for:

  • Child care to allow the parent to work or to get training or schooling for work skills;
  • Children’s reasonable health-care expenses;
  • Traveling for visitation from 1 parent to another;
  • Children’s educational needs; and
  • Other special needs.

Generally, child support obligations do not go away, increase or decrease unless there is action taken by one of the parents.  If there is a child support agreement or order in place, the amount may decrease or increase under certain circumstances, such as an increase/decrease in parents’ income or the financial need of the child has changed.

If you have any questions regarding child support or would like to discuss the possibility of filing for a modification please contact our office to speak with one of our attorneys.

Child Custody

When going through a divorce one of the biggest points of contention is child custody.  There are a number of factors to consider when determining child custody in California, such as:

  • The best interests of the child
  • Which parent is more likely to encourage frequent visits with the other parent
  • Child’s wishes, which are only considered if the child is of a certain age and maturity level (generally over age 12)
  • History of domestic violence
  • History of drug use

As long as the children are safe and cared for properly, California courts favor allowing each parent to spend time with the child/children.  There are two different types of custody, legal and physical.

LEGAL CUSTODY

Legal custody can be either:

  • Joint, where important life decisions are shared between both parents; or
  • Sole, where important life decisions are assigned to only one of the parents

A parent awarded sole legal custody has the right to make decisions regarding:

  • School or child care
  • Religious activities or institutions
  • Psychiatric, psychological, or other mental health counseling or therapy needs
  • Doctor, dentist, orthodontist, or other health professional
  • Sports, summer camp, vacation, or extracurricular activities
  • Travel
  • Residence (where the children will live)

Those parents who share legal custody of their child or children both have the right to make decisions about these decisions above, but they do not have to agree on every decision. Either parent can make a decision alone, but effective communication regarding legal decisions is encouraged in order to avoid any court proceedings.

PHYSICAL CUSTODY

Physical custody is similar to legal custody in that it can be joint or sole/primary.

  • Joint, which means the children live with both parents.
  • Sole or primary means the children live with one parent most of the time and usually visit the other parent.

Joint physical custody doesn’t necessarily mean that the child spends exactly half the time with each parent. Usually, the child spends more time with one parent because it is hard to split the time in half. The parent the child spends the most time with is the primary custodial parent.

BEST INTEREST DEFINED

California law allows a court a large amount of discretion when determining the best interests of a child. Some of the factors a judge may consider are:

  • A child’s age and desires
  • Parental stability
  • Parental criminal history
  • Ability of the parent to care for the child

These factors, along with a number of other factors, will be used by the court to determine who the primary custodial parent should be.

If you have a child custody dispute, or would like to discuss the possibility of modifying your current agreement or court order, please contact our office for your free consultation.

Prenuptial/postnuptial agreements

A prenuptial agreement is a contractual agreement between two people that are about to get married.  Prenuptial agreements usually dictate how assets will be distributed, spousal support, and other topics in the event the parties decide to divorce.

Prenuptial agreements in California must fulfill the legal requirements included in the Uniform Premarital Agreement Act (UPAA) which has applied in California since 1986.  Generally, the UPAA states that written prenuptial agreements that are signed by both parties automatically become effective when the couple marries.  A prenuptial agreement can address asset division, future property rights, and other matters.  However, a prenuptial agreement cannot negatively affect child support, or agree to bypass the court’s discretion in relation to child custody and visitation after marriage.

A postnuptial agreement  is a contract that is written after a couple gets married. It is executed to settle the couple’s affairs and assets in the event of a legal separation or divorce.

After a couple gets married each spouse has the highest level of fiduciary duty to the other.  Each spouse must act toward the other as a trustee would toward a beneficiary in any financial dealings.  Therefore, postnuptial agreements must be drafted very carefully.

In order for a prenuptial or postnuptial agreement to be deemed valid it must:

  • Be in writing;
  • Fully disclose the assets and debts of each party;
  • Be fair when entered into;
  • Have notarized signatures; and
  • Not be against public policy (e.g., a party cannot agree to give up child support).

Prenuptial and postnuptial agreements must be drafted very carefully, by an attorney who is familiar with California law.  Please contact Hart Legal at (424) 285-9640 if you would like to have a prenuptial or postnuptial agreements drafted.

REASONS FOR CHILD SUPPORT MODIFICATION

There are a number of reasons why a parent may want to modify an existing child support order. These reasons include, but are not limited to:

  • The income of one or both parents has changed;
  • One parent has lost his or her job;
  • One parent has been incarcerated;
  • One parent had another child from another relationship;
  • There have been significant changes in how much time the child in the case spends with each parent;
  • The child’s needs may have changed and there may be more (or less) costs for child care, health care, or education; and
  • There have been changes in any of the factors that are used to calculate child support.

Circumstances change, that is understandable. Maybe you have issues that make it nearly impossible or completely impossible to work. Hart Legal will help you pursue a child support modification. Additionally, we at Hart Legal can help enforce support orders through a number of different avenues.

SPOUSAL SUPPORT MODIFICATION

Spousal support can also be modified when either the payor the payee has experienced a significant change in circumstances.  If spousal support can be modified and there is a desire to change the payment amount, a significant material change to a party’s income must be shown.  This can include

  • Remarriage of the recipient
  • New expenses on behalf of the child
  • Job loss or a pay cut
  • Illness or injury that prevents the spouse from earning a full salary, or creates high medical expenses

Modifying either child support or spousal support is complex and an attorney at Hart Legal can help you through the process.

PROPERTY DIVISION

When there is a high amount of assets, business ownership, professional licenses, and other complex financial matters have the potential to be high conflict.  These type of divorces must be handled carefully and with the utmost attention.  Hart Legal is well versed in asset division.

In California, property acquired during the marriage is considered community property, and should be divided between spouses accordingly.  Factors such as the increase in value or real estate and retirement accounts will also be included, with the exception of gifts and inheritances.

When spouses have high income and net worth, or own businesses, or properties, a multitude of problems must be resolved. This is especially true when each spouse claims an asset as separate property, thus excluding it from community property. The attorneys at Hart Legal can help with the division of all assets including complex, high net worth property. Call our office to set up your free consultation today.

MARITAL SETTLEMENT AGREEMENT

A marital settlement agreement defines the terms of the divorce.  Marital Settlement agreements can cover property division, child custody, debt division, and spousal support, among some of the issues.

MARITAL SETTLEMENT AGREEMENT BENEFITS

Negotiating a marital settlement agreement has the potential to be beneficial to both spouses.  Reaching such an agreement saves time, money, and stress.  Also, since the terms of the divorce have been agreed upon by the parties usually there is only need for one court appearance.

PROPERTY DIVISION FACTORS

When dividing property the court must be fair and equitable.  In order to do so the court considers a number of factors such as:

  • The source of the property
  • The length of the marriage
  • The needs of the parties
  • Each party’s contribution toward the acquisition of the property
  • The earning ability of each party
  • The needs of the parties’ children
  • The cause, or fault, of the divorce

These factors become part of the analysis of property settlements, at which point a judge may deviate from 50/50 distribution of marital property.

Each divorce is different depending on the length of the marriage, complexity of fiances, and if minor children are involved.  However, having a marital settlement agreement in the works helps the divorce process move more smoothly, thus saving you money.

If you are interested in negotiating a marital settlement agreement and believe you need help, or would like one of our attorneys to review the agreement please contact our office for your free consultation.

DIVORCE

Making the decision to seek a dissolution of marriage can be difficult and may become the most stressful time in someone’s life.  Here at Hart Legal we strive to be your confidant and ease the stress and emotional strain that may come with a divorce.  The attorneys at Hart Legal help you make the decisions to protect your legal rights and advise on what may be in the family’s and child’s best interest.

WHERE TO FILE FOR DIVORCE IN CALIFORNIA?

California Law indicates that you must have lived in California for the last six months and the county in which you file for the last three months. If you have separated with your spouse and both of you live in different counties, you may file in either county.  California is a community property state, which means that the goal of any divorce settlement is to split the community property as close to 50/50 as possible. Any assets and/or debts acquired by spouses during marriage belong to both spouses, and must be split equally during divorce proceedings.

A divorce may seem straightforward, but can become complicated when property division or child custody is disputed.  What results from a divorce can affect a person for years down the road.  Here at Hart Legal we can help you resolve a number of family law related issues such as:

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