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Family Law

CONTESTED DIVORCE

  • Aggressive Personal Representation
  • Domestic Partnership
  • Paternity
  • Domestic Violence Restraining Orders
  • Adoption
  • Collaborative Law

AMICABLE DIVORCE RESOLUTION

  • Cooperative Divorce
  • One attorney working with both of you neutrally
  • Mediation

Reduce attorneys’ fees by more than half.
Save money and time.

  • Divorce
  • Child Custody
  • Child Support
  • Property Division
  • Retirement Plans
  • Business Assets
  • Legal Separation
  • Mediation

Domestic Partnerships in California

The Law Offices of Mark J McGowan, PC, helps with law issues related to domestic partnerships in California. Laws governing domestic partnerships bear many similarities to California matrimonial law.

Civil Unions and Domestic Partnerships

California was the first state to enact domestic partnership registration in 1999. Under California law adomestic partnership is defined as:

  • Two adults of the same sex who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.
  • Two equally committed adults of the opposite sex if one or both partners are over age 62 and one or both partners meet specific eligibility criteria under the Social Security Act.

To create a domestic partnership, both partners must share a common residence, and may not be married or a partner in a previous domestic partnership that has not been dissolved or annulled. For a domestic partnership to be official, the partners must register a Declaration of Domestic Partnership with the California Secretary of State.

California uses the term domestic partnerships instead of civil unions when referring to same sex unions. Domestic partnerships share many of the same benefits as married couples such as:

  • Hospital and jail visitation rights
  • Rights to be considered next of kin if one partner dies
  • Participation in family health insurance plans
  • Right to file a wrongful death lawsuit
  • Married couple property tax provisions
  • Community property rights
  • Right to alimony if the partnership is dissolved
  • Paternal rights equal to married spouses

Since domestic partnerships were established in 1999, the California legislature passed further laws to regulate and provide more benefits for domestic partnerships. Understanding your legal rights when entering into domestic partnerships can help you avoid later conflicts. Couples seeking to dissolve a domestic partnership need the same type of legal help as those pursuing divorce.

It doesn’t really matter what you call your arrangement: domestic partnership, civil union, cohabitation, or just plain owning a house together. Unless you are married or have a registered domestic partnership, the law is unlikely to protect your joint or individual interests unless you take steps to define your rights, intentions and expectations.

Registered or not, a domestic partnership agreement can protect you both.

Regardless how you define your relationship, negotiated written agreements can be extremely helpful in defining and protecting your rights against third-party interference in the event of a serious accident or breakdown in your relationship.

Contact the Law Offices of Mark J McGowan, PC for help with the practical and legal aspects of your domestic partnership. Their advice and guidance can help you in such situations as:

  • Documentation and registration of a domestic partnership agreement
  • Estate Planning to define rights to inheritance, medical or financial decisions in the event of incapacity or guardianship of minor children
  • Adoption: joint adoption, adoption of a partner’s child or surrogate adoption
  • Clarification of property rights and liability for debts in the event of dissolution
  • Child custody and support concerns in the event of a discontinued relationship
  • The laws surrounding same sex couples are ever changing.
  • Laws concerning the recognition of same-sex couples are still unsettled. In some areas of the country, your domestic partnership may give you the same rights and responsibilities as married heterosexual couples. If you relocate to a state that does not have the same standards in place, you may risk inheritance rights, parental rights and the ability to make healthcare decisions for an incapacitated partner. Be certain you know your rights surrounding domestic partnership and relocation.

Prenuptial Agreements

The Law Offices of Mark J McGowan, PC can explain how a prenuptial or antenuptial agreement helps you protect financial rights and objections during marriage.

What is a prenuptial Agreement?

A prenuptial agreement is a legal contract between couples planning to marry that establishes financial guidelines and responsibilities during a marriage. Courts recognize prenuptial agreements as valid legal documents.

Typically, when a couple divorces or a spouse dies, finances become an issue in terms of dividing property or distributing inheritances. A prenuptial agreement prevents stage law from taking precedent over their wishes at death or after divorce. Because California is a community property state, property may be considered co-owned unless established as separate property.

Matters addressed in a prenuptial agreement often include:

Children from previous marriages. Today, many spouses have been previously married and have children from those marriages. A spouse may want to leave property to children at death, rather than having all property go to the surviving spouse. The prenuptial agreement can specify inheritance.

Divorce:

The prenuptial agreement can outline how finances should be handled in the event of divorce. Property division can be stated in the prenuptial agreement along with stipulations regarding spousal support

Debt protection:

Either party may approach the marriage with previously acquired debt. For the sake of protecting pre-existing assets against liability from creditors, the prenuptial agreement may contain asset protection terms for separate property. Maintain separate incomes.

Under California law, income generated by married couples would generally become community property. In a prenuptial agreement a couple can waive their rights to share property and specify income as separate property Prenuptial Agreements may not enforce penalties against spouses for undesired behavior, such as drug use or extra-marital relations. Nor can it demand a particular religious faith for childrearing or that a spouse must perform certain household duties.

What is an antenuptial agreement?

Antenuptial agreement is another name used for a prenuptial agreement. Matrimonial law grants domestic partnerships the legal right to work out prenuptial or antenuptial agreements prior to registering a partnership.

Post-nuptial Agreements

During a marriage spouses are able to enter into a post-nuptial agreement to customize agreements going forward.

Paternity

What are My Rights as an Unmarried Parent? In the State of California, the law provides that a parent, whether married or unmarried, shall have frequent and continuing contact with his or her child or children. A court may make a determination of custody and visitation in divorce or legal separation or nullity, paternity case and those involving domestic violence.

A parent, whether married or unmarried, also has the responsibility to support his or her children. The payment of child support however, is not a condition precedent to enjoying parenting time with your child or children.

How is Parentage Determined?

Parentage is determined by parent, mother or father, filing with the Court a Petition to Establish a Parental Relationship. If there is a question of whether or not parentage exists between a father and a child, blood tests will be taken of the mother, child and alleged father. Blood tests are usually sufficient to determine whether or not there is a parent-child relationship. However, if it is unclear, there are more sophisticated testing that can be done. Prior to parentage even being determined, the Court may make orders as to custody, visitation and child support. Parents who marry after a child is born can have parentage determined in dissolution proceedings.

To learn more about paternity in California, contact the Law Offices of Mark J. McGowan, P.C.

Domestic Violence Restraining Orders

Helping California Clients with Domestic Violence Restraining Orders

A fact of life for too many Californians, family violence and domestic abuse are serious problems. For a family law attorney and his client, domestic violence and restraining orders can present special challenges in family court.

The Law Offices of Mark J McGowan, PC advises and represents people on either side of a domestic violence situation, both in divorce and in situations involving married or separated couples, domestic partners, former lovers, or stalking and harassment.

Representation for victims of domestic violence

If you’re a victim of domestic violence, you will benefit from the advice of a knowledgeable lawyer who can add detail and evidence to the original allegation and make sure that reasonable protection remains in place.

Representation for the accused

If you are accused of domestic violence, it is essential that you take advantage of the chance to explain your side of the story and do everything possible to keep the restraining order from continuing against you. In cases where a restraining order is very likely to remain in place, your attorney can argue for less restrictive conditions or a shorter time frame to give you another chance to get it lifted.

A restraining order will not only make it very difficult for a person involved in a child custody or visitation dispute to maintain satisfactory access to a child, but it can also threaten your career. In many licensed professions, a restraining order is grounds for disciplinary or suspension proceeding by a State board.

The Law Offices of Mark J McGowan, PC can advise you about your options and protect you rights in family court. Contact us to schedule a free consultation.

Adoption

We Help Families Through All Stages of Child Adoption

Many lawyers who focus on divorce and related issues look forward to the pleasure of helping adoptive parents though the process of adding a child to their families.

The Law Offices of Mark J McGowan, PC assists adoptive parents from the initial decision to final decree.

The Law Offices of Mark J McGowan, PC helps as many families as it can with adoption. They have an excellent understanding of the different steps involved with the different kinds of adoption:

  • Stepparent adoption
  • Grandparent or relative adoption
  • Single Parent adoption
  • Contested adoption
  • Adult adoption, especially in connection with estate planning
  • Adoption as a means of resolving a child custody crisis such as incapacity of a primary custodial parent through accident or illness

Understanding the adoption process

While any adoption of a minor child will involve home studies, background checks and investigations, some forms of adoption will present more hurdles or expenses than others. The Law Offices of Mark J McGowan works closely with their clients to make sure that you understand your options and develop a clear expectation about all the steps involved in the process.

Contact the Law Offices of Mark J McGowan, PC for a free consultation.

Collaborative Law

In the family law area, the Law Offices of Mark J McGowan, PC has tailored its practice to help divorcing parties settle disagreements by negotiation rather than litigation. One method to accomplish this goal is for clients to use a process called Collaborative Law. In this model, each party to an action for dissolution of marriage chooses his or her own lawyer. The two clients and their respective lawyers then sign a contract in which they all commit to resolve the issues in their dissolution and liabilities accumulate during their marriage with out going to court. They also agree to make full disclosure to their spouse of all assets and liabilities accumulated during their marriage. The lawyers and parties agree that if the collaborative process fails, and the parties must go to court, neither of the lawyers can represent their parties in the litigation. The collaborative process proceeds to conclusion with the use of conferences between the two parties and their lawyers. Counsel and the parties can decide to hire third party experts, such as appraisers and child custody and visitation counselors, to assist them as necessary.

The collaborative process has important benefits for the divorcing parties. First, studies have shown that the total cost of the collaborative process is less than the cost of traditional methods of dissolving a marriage. Second, the parties can craft a settlement that meets their unique needs, often using methods that a court cannot impose, but will enforce. Third, if there are children involved, the collaborative approach ameliorates the emotional impact of the dissolution of them, and allows the parent to model healthy dispute resolution for their children.

How does Collaborative Practice work?

Collaborative Practice uses informal discussion and conferences attended by spouses and their attorneys to settle issues at times and locations convenient for everyone. Major goals of the Collaborative Practice process include maximizing settlement options for the benefit of both parties and children, and to minimize or eliminate the negative economic, social and emotional consequences of litigation. The five main aspects of Collaborative Practice are:

  • Open Exchange of Information – All participants agree to an open, honest exchange of accurate information and necessary documentation. This process is essential so that neither spouse/domestic partner takes advantage of the miscalculations or inadvertent mistakes of others, but instead identified and correct them.
  • Custody – The spouses agree to protect their children and not involve them in disputes. The participants agree to speak respectfully to and of each other in the presence of the children. The spouses negotiate and agree upon parenting decisions, rather than to look to the court to make these decisions for them.
  • Joint Experts – The spouses jointly choose and employ the services of any accountant, appraiser, mental health professional, or other consultation whose services may be required instead of hiring his or her own adversarial expert.
  • Negotiations – The spouses acknowledge each other’s legitimate needs and work together for their mutual benefit, instead of striving for individual advantages.
  • Attorney’s Role – The attorneys are committed to the cooperative resolution of all issues. A Collaborative Practice attorney will withdraw for participation if his or her client abandons the collaborative process or refuses to follow collaborative guidelines.

Divorce

Also known as dissolution of marriage – divorce does not need to be difficult or time consuming or a final struggle with your spouse. It can be an experience where all parties involved continue on with their lives, in harmony, while remaining friends. However, at the same time, you should make sure that your legal rights are maintained and you are not taken advantage of by an overaggressive spouse concerned more with “their assets” rather than the “community property” that both of you have acquired during marriage. If children are involved, things get a bit more complicated, but they do not need to become an issue that requires the parties to increase the hostility level. The biggest factor the Court will apply in child custody or support issue is what is in the best interest of the child.

How long does a divorce typically take?
An uncontested divorce (one where you and your spouse agree on the distribution of assets and any support payments) can be completed in just a few months. If the divorce is contested, you can still obtain a “status only” divorce which means in the eyes of the law you are divorced. However, the court will retain jurisdiction until a determination is made concerning any community property and support obligations.

Divorce can be highly contested, emotionally charged, difficult and wearing, especially if you lack a professional fighting for your rights.

Child Custody

Your children are out first priority! The Law Offices of Mark J McGowan, P.C. will work with you to protect them and to ensure that their needs remain at the forefront for your child custody case.

Legal Custody

Legal custody of a child is the right and obligation to make decisions about a child’s upbringing. Decisions regarding schooling and medical and dental care, for example are made by the parent with the legal custody. In California, an award of joint legal custody is presumed, which means that the decision making is shared. If you share joint legal custody with the other parent and exclude him or her from the decision making process, the other parent can take you back to court and ask the judge to enforce the original custody agreement. Although you probably will not be sanctioned (fined) or go to jail, it will most probably be embarrassing and cause more friction between the two of you – and it may harm the children

Physical Custody

Physical Custody is the right of a parent to have a child live with him or her at any particular designated time. In California, it is possible for the parents to share joint physical custody, i.e., when the child spends approximately half the time in each parent’s home. The later arrangement is tricky and should be considered only if you have an amicable, respectful relationship with your ex. Also, it works best if you live near the other parent. This lessens the stress on the children and allows them to maintain a somewhat normal routine.

Sole Custody

Sole Custody means that only the custodial parent has physical custody and legal custody of a child, and that the non-custodial parent has visitation (access) rights. In California, the courts and the legislature have moved away from awarding sole custody to one parent and they are often enlarging the role a father plays in his children’s lives. This translates into physical custody for one parent with joint legal custody shared by both – plus a generous visitation schedule. Additionally, courts may not hesitate to award physical custody to the father if the mother is deemed unfit – for example because of alcohol or drug dependency, an unfit boyfriend or child abuse or neglect charges. It is understandable that there may be animosity between you and your ex spouse, but sole custody should not be sought unless a parent is a direct harm to their children. Even then, courts may simply order supervised visitation, while allowing joint legal custody.

Joint Custody

Parents who do not live together have joint custody (also called shared custody) when they agree, or a court orders them to share the decision making responsibilities for and/or physical custody of, their children. Joint custody can exist if the parents are divorced, separated, or no longer cohabitating or even if they never lived together. Joint custody may be joint legal custody, joint physical custody (where the children spend a significant portion of time with each parent) or both. It is common for couples who share physical custody to also share legal custody, but not necessarily the other way around.

Usually, when parents share joint custody, they work out a joint physical custody according to their schedules and housing arrangement. If the parents cannot agree, the court will impose an arrangement. A common pattern is for the children to split weeks between each parent’s house. Other joint physical custody arrangements include alternating years or six-month periods, or spending weekends and holidays with one parent while spending weekdays with the other.

Joint custody has the advantage of assuring the children continuing contact and involvement with both parents, and alleviating some of the burden of parenting for each parent. These are, of course, disadvantages – children must be shuttled around, parental non-cooperation can have seriously devastating effects on children and maintaining two homes for the children can be expensive.

What are some of the other factors the court may look at?

  • Parental conflict
  • Child’s expressed preference (child must be of sufficient age and capacity)
  • Stability of the environment and ability to love
  • Parent’s physical and mental condition
  • Splitting up siblings is generally disfavored.

What factors CANNOT be used?

  • Race
  • Religious or social beliefs
  • Sexual orientation and behavior
  • Wealth of parents

Child Support

Family Code Sections 3900-4203 identify a duty of parental support

  • The father and mother of a minor child have an equal responsibility to support their child in the manner suitable to the child’s circumstances. Family code 3900
  • A minor is defined as an individual who is under 18 years of age. Family Code Section 6500.
  • A father and mother also have a duty to support a child after he or she turns 18 if the child is unmarried, is a full time high school student, and is not self supporting until the child completes the twelfth grade or attains the age of 19 years, which ever occurs first. Family Code Section 3901(a).
  • The father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means. Family Code Section 3910(a)
  • If any proceeding concerning the support of a minor child or a child for whom support is authorized under either Family Code Section 3901 or 3910, the court may order either or both parents to pay an amount necessary for the child’s support. Family Code Section 4001.
  • A statewide uniform guideline is adopted at Family Code Section 4050-4076 to ensure that California remain in compliance with the federal regulation for child support guidelines. The formula, also known as a child support calculator, for the statewide uniform guideline for determining child support is set forth under Family Code Section 4055.

Spousal Support

What is spousal support? Spousal support is the term of alimony in California. Spousal support is money that one spouse pays to help support the other after the filing of a dissolution of marriage.

Spousal Support Determinations: Your Rights After Divorce

Many couples will face disputes over the payment of alimony or spousal support after divorce. Whether you are the sole breadwinner of the family or you have been a financially dependent, it is important to know your rights and obligations at the time of divorce.

California Spousal Support Determinations

The Law Offices of Mark J McGowan, PC will take a comprehensive approach to assess your income (both current and potential) and determine whether you are eligible for spousal support. If you are a spouse in need of support, its priority is making sure you get the financial support and security you need in the most fair, equitable, and workable situation with an ex-spouse. We know that resolving support disputes early can save you time and resources in the long run. We will advocate on your behalf while negotiating a settlement based on income and assets.

Spousal maintenance will be based on:

  • Duration of marriage
  • Income disparity
  • Potential for future income
  • Standard of living at the time of divorce
  • Special needs of either party
  • Ability to work

Your financial security: Support after divorce.

Spousal support determinations can be permanent or temporary. In the event that the dependent spouse can be trained and seek gainful employment, the court may award a temporary support order and reduce or end payments in the future. The Law Offices of Mark J McGowan, PC can help you protect your rights and financial interests during a modification or enforcement proceeding. Whether you are seeking to collect support or protect yourself against unmanageable obligations, we have the experience, skill and strategy to achieve results.

Contact the Law Offices of Mark J McGowan, PC for a free consultation.

Property Division

After a divorce, the division of assets can be one of the most contentious issues for both parties. Whether you are facing divorce or already involved in a property dispute, it is important to protect your rights and work with an attorney you can trust.

Protect your investments and prevent personal liability after divorce

The Law Offices of Mark J McGowan, PC will begin an immediate investigation to collect documentation concerning your estate, your spouse’s income, business assets and other investments you may have. We will seek to identify any potential hidden assets so that your spouse does not prevent you from receiving the martial property you are entitled to at the time of divorce. In addition to identifying your assets, we will also assess your debts and tax liabilities to protect you against personal liability.

The Law Offices of Mark J McGowan, PC is experienced with division of marital property and disputes involving:

  • Real Estate
  • Vacation Homes
  • Retirement Funds
  • Business Assets
  • Self Employed Business Owner
  • Tax Disputes
  • Hidden Assets
  • Credit Card Debt

Business valuation and family owned business

At the time of divorce, couples with business investments may face additional legal challenges especially if that company is a professional practice. The Law Offices of Mark J McGowan, PC is experienced in representing business owners and spouses seeking to protect their interests and investments at the time of divorce. We will use accountants and other professional expert to properly value your business. Our goal will be to enable you to collect the community property you are entitled to at the time of divorce.

Real estate and debt and asset division after divorce

For many couples, real estate can present a number of issues at the time of divorce. Whether you want to sell the property, defer a sale, or protect your investments in real estate, the Law Offices of Mark J McGowan, PC can help you protect your financial interests at the time of divorce.

Contact the Law Offices of Mark J McGowan, PC for a free consultation.

Legal Separation

Some couples choose legal separation as an alternative to divorce or domestic partnership dissolution.

Legal separation under the California Family Code permits a married couple or domestic partners to live separately, and to make arrangements for child custody, child support, spousal support and property division. Unlike a divorce, a legal separation does not end the marriage. The Law Offices of Mark J McGowan, PC will work with you to make decisions that will allow you to feel satisfied with the terms of your separation agreement.

There are many reasons why spouses want to legally separate but not want to get divorced – religion, being one of them. Maintaining medical insurance eligibility and staying within a specific tax bracket are other reasons. A couple may also want to try a “temporary” separation while they are considering ending their marriage permanently. Rather than a mere verbal agreement between the married couple, a legal separation helps to ensure that your finances and liabilities remain separate in the eyes of the law. A husband and wife that are legally separated cannot marry other people because they are still married to each other. A legal separation can always be converted into a divorce later on. It cal also be reversed at any time.

No residence requirements are necessary for legal separation. The partner or spouse may request court orders, such as domestic restraining order for protection against abusive spouse or partner. Couples who are legally separated may not remarry.

Divorce requires a six-month one day waiting period before the court issues the final judgment. However legal separation has no waiting period and takes effect as soon as the court grants the separation. Couples typically obtain legal separation much more quickly than a divorce.

Reasons to choose a legal separation

Marriage provides certain advantages, and couples may choose a legal separation over divorce for these reasons:

  • Religious Reasons. Adherence to religious practices to maintain a married status.
  • Tax Advantages: Joint tax returns, spousal support deductions, gift tax exemptions, estate tax avoidance, mortgage credits for first time buyers and home sale tax breaks.
  • Insurance Advantages: Continued family rates for auto, home, health, and other insurance coverage.
  • Social Security retirement benefits: Spouses married ten years qualify for Social Security retirement benefits.
  • Veterans or military pension benefits: Spouses married tens years qualify for military pension benefits.
  • Public Assistance benefits: Greater public assistance benefits for food stamps, Temporary Assistance to Needy Families (TANF), subsidized housing, MediCal, subsidized child care and Supplemental Feeding Program for Women, Infants and Children (WIC).

Contact the Law Offices of Mark J McGowan, PC for a free consultation.

Divorce Mediation

What is Mediation?

Mediation is the process in which your mediator acts as a neutral third party. The mediator will help you reach a settlement in your legal issues. The role of mediator is to guide your discussion, explore settlement alternatives and resolve difficult conflicts.

What happens in mediation?

Together you and your spouse will meet with a mediator in private mediation sessions. You will exchange necessary information and ideas about various ways to settle your differences. The mediator will inform you of the law as it pertains to your situation, including property division and the calculation of child and spousal support. This process allows you and your spouse to make the decisions together, rather than attorneys arguing your case in court before a judge.

What are the advantages of mediation?

  • Mediation allows the parties to obtain legal information from a neutral, non adversarial attorney.
  • Mediation is typically less expensive than traditional litigation, making it economically feasible for most couples.
  • Mediation reduces the fears associated with divorce or legal separation.
  • Medication does not require any court appearances.
  • Mediation avoids the polarization and hostility that often results from court proceedings.
  • Mediation allows the parties direct involvement in the decision making process.
  • Mediation allow the parties to move at a mutually agreeable pace, usually taking a fraction of the time compared to court proceedings.
  • Mediation establishes a level of communication and cooperation between the parties that is certain to pay dividends long into the future.
  • Mediation assists the parties with children in transitioning from married partners to parenting partners.
  • Mediation allows for the development of a parenting plan in everyone’s best interest, especially the children.

Is the mediator my attorney?

A mediator is a licensed California attorney, however in the role of mediator, he/she is not acting as an attorney for either party nor is he/she acting as an attorney for both parties. Instead, it is his/her role as mediator to provide each party, in the presence of the other, with information necessary to allow them to make informed decisions regarding legal issues.