What is the difference between physical and legal custody?

In California, legal custody refers to the right to make important decisions about a child's welfare, including decisions about education, healthcare, and religion. Physical custody, on the other hand, refers to the right to have a child live with you and to make daily decisions about the child's care.

There are two types of legal custody in California: sole legal custody and joint legal custody. Sole legal custody means that one parent has the right to make important decisions about the child's welfare. Joint legal custody means that both parents have the right to make important decisions about the child's welfare and must consult with each other when making such decisions.

There are also two types of physical custody in California: sole physical custody and joint physical custody. Sole physical custody means that the child lives with one parent and the other parent has visitation rights. Joint physical custody means that the child lives with both parents on a more or less equal basis.

It's important to note that legal custody and physical custody are two separate issues, and a parent can have one type of custody and not the other. For example, a parent could have joint legal custody but sole physical custody, meaning that they have the right to make important decisions about the child's welfare but the child lives with them full-time.

How to file for divorce in Alameda California

In order to file for divorce in Alameda County, California, you will need to follow these steps:

1. Determine whether you meet the requirements for filing for divorce in California. In order to file for divorce in California, at least one of the spouses must have been a resident of the state for at least six months and a resident of the county in which the divorce is being filed for at least three months.

2. Determine which type of divorce you will be filing for. In California, there are two types of divorce: uncontested and contested. An uncontested divorce is one in which both spouses agree to the terms of the divorce, such as the division of assets and debts, child custody and support, and spousal support. A contested divorce is one in which the spouses do not agree on the terms of the divorce and must go to court to have a judge make the decisions for them.

3. Gather all necessary documents and information. You will need to provide the court with information about your marriage, such as the date of the marriage, the date of separation, and the names and birthdates of any children. You will also need to provide financial information, such as a list of your assets and debts and proof of income.

4. File the divorce papers with the court. You will need to file a Petition for Dissolution of Marriage with the Superior Court in the county where you or your spouse lives. You will also need to pay a filing fee.

5. Serve the divorce papers on your spouse. Once you have filed the divorce papers with the court, you must "serve" the papers on your spouse. This means that you must deliver a copy of the papers to your spouse in a legal manner, such as by giving them to your spouse personally or hiring a professional process server.

6. Attend any necessary court hearings. If you are filing for a contested divorce, you may need to attend court hearings and participate in mediation or other forms of alternative dispute resolution. If you are filing for an uncontested divorce, you may be able to complete the process without ever having to go to court.

It is important to note that the process for filing for divorce in California can be complex and it is highly recommended that you seek the advice of an attorney. A family law attorney can help you understand the process and ensure that your rights are protected throughout the divorce proceedings.

Are you considering getting a divorce?

There are many potential advantages to getting divorced, depending on the specific circumstances of each individual case. Some possible advantages of getting divorced may include:

1. Improved mental health: For some people, getting divorced can bring a sense of relief and improve their overall well-being. If you are in an unhappy or unhealthy relationship, getting divorced may help you feel more confident, independent, and fulfilled.

2. More financial stability: If you were financially dependent on your spouse, getting divorced may give you the opportunity to gain financial independence and stability. This can be particularly important if you were not able to work or contribute to household finances while you were married.

3. Increased personal freedom: Divorce can allow you to make your own decisions and live your life on your own terms. This can be particularly important if you felt constrained or controlled by your spouse during your marriage.

4. Better relationships with children: If you have children, getting divorced may allow you to have a more positive and nurturing relationship with them. This can be especially important if you and your spouse had a difficult or strained relationship.

It is important to note that these potential advantages may not apply to every divorce case, and that the decision to get divorced should not be taken lightly. If you are considering getting divorced, it is important to carefully weigh the pros and cons and to seek support from friends, family, and professionals as needed.

Do you need a premarital agreement?

A premarital agreement, also known as a prenuptial agreement or "prenup," is a legally binding contract that is entered into by two people prior to getting married. It outlines how certain financial and property matters will be handled in the event of a divorce or the death of one spouse.

There are several factors to consider when deciding whether or not you need a premarital agreement. Some common reasons that people choose to have a prenup include:

1. To protect pre-existing assets: If you or your future spouse have significant assets, such as a business or real estate, a premarital agreement can help to protect these assets in the event of a divorce.

2. To define financial responsibilities: A premarital agreement can specify how financial matters, such as bills and debts, will be handled during the marriage.

3. To address potential inheritance issues: If you or your future spouse has children from a previous relationship, a premarital agreement can clarify how inheritance will be handled in the event of your death.

4. To address future financial goals: If you and your future spouse have different financial goals or expectations, a premarital agreement can help to clarify these expectations and ensure that both parties are on the same page.

Ultimately, the decision to have a premarital agreement is a personal one that depends on your individual circumstances. It is a good idea to discuss the idea with your future spouse and consider seeking legal advice to determine if a prenup is right for you.

Estate Planning during Divorce

Once you file for divorce, there are Automatic Temporary Restraining Orders that go into effect. These ATROS limit your ability to change beneficiary designations without the consent of your spouse and to fund a trust without consent of your spouse.

During your divorce, you remain married and have all of the benefits provided under the law in the event of death.      

In practicality, what that means is that if you die during the dissolution process, without a written agreement or an estate plan, the assets in your dissolution that were going to be awarded to you, may, through probate, be inherited by your spouse. 

If you would like to change that potential outcome now, here are your options:

No Restrictions

1.     Create, modify, revoke a will – A will distributes your property

2.     Create *but not fund* a trust

 What you can do with notice (do not need consent)?

1.     Revoke a revocable trust

2.     Sever a joint tenancy

 What you can do with written consent?  

1.     Change beneficiary designations on insurance, retirement, etc

2.     Fund a new trust