Questions that Niven and Niven Attorneys at Law get frequently asked

A marriage dissolution or legal separation can be obtained in California only on grounds of irreconcilable differences or incurable insanity.

"Irreconcilable Differences": Generally, a marriage dissolution or legal separation is sought on the ground of "irreconcilable differences, which have caused the irremediable breakdown of the marriage."

The issue of irreconcilable differences is rarely a point of contention. Courts readily accept either spouse's belief that the marital differences are irreconcilable and thus a "substantial reason" for not continuing the marriage.

Either party's alleged fault or misconduct may not be invoked to withhold a requested judgment of dissolution.

"Incurable insanity": A spouse's "incurable insanity" is the only other ground for marriage dissolution or legal separation.

In determining the appropriate amount of child support (whether by way of an initial pendente lite/temporary or "permanent" order or modification of an existing order), all California courts must adhere to the "statewide uniform child support guideline."

Federal law requires uniform statewide "guidelines" to be applied "in any judicial or administrative proceeding for the award of child support . . ."

The "guidelines" take various factors into consideration including mutual duty to support, ability, standard of living, the time each parent has with the child, etc.

The court can exercise its discretion to dispense with the normal steps where the non-custodial parent stipulates (i) to an extraordinarily high income figure, (ii) that he or she can pay any reasonable child support amount (thus removing the issue of his or her ability to pay), and (iii) that he or she will accede to any order the court may make, even one in excess of the guideline formula amount, so long as the award addresses the child's/children's reasonable needs commensurate with the non-custodial parent's status as an extraordinarily high earner.

A "temporary" order (also referred to as "pendente lite" relief) pending trial and ultimate judgment. Many of these orders are designed to maintain the "status quo" until the contested issues can be adjudicated; some, labeled "protective orders," are specifically designed to ensure the safety of a party and children in "domestic violence" situations.

Exclusive / Sole custody ("legal" and "physical") to one parent: An exclusive / sole custody order gives one parent primary physical control of the child, with the right to make decisions regarding the childs residence, health, education, and welfare. The non-custodial parent has secondary parenting time / visitation rights as ordered by the court.

Sole physical custody: A parent may be granted exclusive / sole physical custody without exclusive / sole legal custody. This means the child resides with and is supervised by one parent, subject to the other parent's parenting time / visitation rights; but the custodial parent does not have sole decision-making power regarding other matters affecting the child.

Sole legal custody: A parent may be awarded the exclusive / sole right and responsibility to make decisions relating to the child's health, education and welfare; but unless exclusive physical custody is also granted, that parent does not have sole control over the child's residence and supervision.

Joint custody:

"Pure" joint custody: Under a "pure" joint custody plan, neither parent has sole physical or legal custody; both have authority to control and supervise the child, and the child's physical presence is shared.

Joint legal custody: Under joint legal custody both parents share the right and responsibility to make decisions regarding the child's health, education and welfare.

Joint legal custody may be granted without granting joint physical custody. In that event, while the parents share decision-making responsibility, the child resides with and is under the physical supervision of only one of the parents.

Joint physical custody: A joint physical custody award means each parent has "significant periods" of physical custody. Physical custody must be shared in such a way as to assure the child "frequent and continuing contact with both parents," but that does not mean the child's time must be equally divided with each parent, i.e. one parent can still be the "primary caretaker."

Characterizing the status of property interests as "community" and/or" quasi-community" or "quasi-marital" or "separate" property is the starting point for the resolution of marital property rights and obligations. "Characterization must take place in order to determine the rights and liabilities of the parties with respect to a particular asset or obligation and is an integral part of the division of property on marital dissolution."

The parties may, of course, agree as to the status of all or any part of their property interests. But absent such agreement, characterization disputes are decided under a vast body of statutory and case law.

Factors generally determinative of separate vs. community property characterization generally are the time of the property's acquisition, the operation of various presumptions (particularly the form of title presumptions), and whether there has been an effective transmutation from separate to community or vice versa.

In all such actions there is a limitation period by which the case must be fully settled or a lawsuit filed, failing which, the claim will be barred. In tort or personal injury cases the period is generally one year from the date of the accident. You must consult with an attorney to determine the precise limitation period for your particular action long before the one year anniversary date.

A will is an instrument in or by which a qualified person directs the disposition of his or her property, to become effective only following such person's death, without which the disposition of such property by state statute may be other than such person would have intended. There are various types of wills and trusts and other instruments that can be used to direct the disposition of property. Tax consequences at times dictate the manner of disposition and the instrument used.

A living trust is an instrument in or by which a qualified person directs the disposition of his or her property, the primary purpose of which, to avoid probate / court intervention.