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2101 Webster Street
Suite 1760
Oakland, CA 94612
Telephone:
510-834-5533
Fax:
510-834-5535
E-mail:
dsl@value.net
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David S. Levine, Attorney
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Practice
Areas
Common
Questions
"Legally, what is marriage? How does
one get married?
Most states define marriage as a civil contract between a man
and a woman to become husband and wife. The traditional way
to marry is to get a marriage license from a state-authorized
official, then participate in a formal civil or religious wedding
ceremony.
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I am getting divorced. Do I need an
attorney?
It ordinarily is a good idea to consult with a lawyer about
major life events or changes, such as a divorce. She/he will
protect your rights, as well as the rights of your children.
S/he keeps current with the laws in your state concerning marriage,
divorce, marital property, child custody and visitation, and
family support.
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What are the legal grounds for obtaining
a divorce?
The grounds for divorce depend on the state, and may be based
on no-fault or fault. A no-fault divorce is available in some
form in all 50 states; many states also have fault-based grounds
as an additional option. A no-fault divorce is one in which
neither the husband nor the wife officially blames the other
for the breakdown of the marriage. Common bases for no-fault
divorce are "irreconcilable differences," "irretrievable breakdown"
or "incompatibility." Another common basis for no-fault divorce
is that the parties have lived separately for a certain period
of time (varies from state to state) with the intent that the
separation be permanent. The list of grounds for a fault-based
divorce may include: adultery, physical cruelty, mental cruelty,
attempted murder, desertion, habitual drunkenness, use of addictive
drugs, insanity, impotency, and infection of one's spouse with
venereal disease.
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Who determines how assets are divided
in a divorce?
Generally, spouses are free to divide their property as they
see fit in what is called a "marital settlement agreement,"
which is a contract between the husband and the wife that divides
property and debts and resolves other issues of the divorce.
Although many divorces begin with a high level of acrimony,
a substantial majority are settled without the need for a judge
to decide property or other issues. However, if the division
of property cannot be settled, then the court must make the
determination. Laws vary from state to state. As a starting
point, many states allow both parties to keep their "non-marital"
or "separate" property.
In dividing marital or community property, the laws vary from
state to state. Some states are community property states. Some
states, such as California, believe that marital property should
be divided equally unless a premarital agreement specifies otherwise.
Most states, however, apply the concept of "equitable distribution,"
which means the court divides the marital property as it thinks
fair. That division may be 50-50 or something else. Some of
the factors considered include: the amount of non-marital property
each spouse has; each spouse's earning power; services as a
homemaker; waste and dissipation; fault; duration of the marriage;
and age and health of the parties.
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How do courts determine who gets custody
of children in a divorce?
If the parents cannot agree on custody of their child, the courts
decide custody based on "the best interests of the child." Determining
the child's best interests involves many factors, no one of
which is the most important factor.
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What is joint custody?
Joint custody has two parts: joint legal custody and joint physical
custody. A joint custody order can have one or both parts. Joint
legal custody refers to both parents sharing the major decisions
affecting the child, which can include school, health care and
religious training. Other considerations under these types of
custody agreements can include: extracurricular activities,
summer camp, age for dating or getting a job, and methods of
discipline. Joint physical custody refers to the time spent
with each parent. The amount of time is flexible, and can range
from a moderate period of time for one parent, such as every
other weekend, to a child dividing the time equally between
the two parents' homes. In situations where the time spent with
both parents will be divided equally, it helps if the parents
live close to one another.
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How is child support determined in
a divorce or paternity case?
All 50 states have adopted child support guidelines. Some states
use tables that indicate a support amount for different ranges
of income, similar to tax tables. Although some states base
support on the payor's income, many states use an income shares
model, which is based on the income of both parents. Usually,
the parent without the child the majority of the time will pay
support, but if both parents share time with the child equally,
the parent with the greater income usually pays support. The
support may be reduced based upon the amount of time the payor
spends with the child.
Some states also cap support at a certain income level. If a
parent is intentionally not working or is working at less than
he or she is capable of earning, the court can "impute income,"
which means setting support based upon what the parent is capable
of earning rather than actual earnings. States vary on what
expenses are included in child support. For example, some states
include medical expenses and day care, while other states add
those costs on top of the child support.
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What happens if a parent does not pay
court-ordered child support?
In 1994, 5.4 million women with children were due child support
(far below the number eligible for such orders). However, of
the 5.4 million, only slightly more than half received the full
amount, while a quarter received partial payment and a quarter
received nothing at all. Various enforcement mechanisms exist
against these so-called "dead-beat parents," including automatic
withholding of the obligor's income. The court has the power
to hold a party in contempt for violating a court order. The
contemnor must be allowed an opportunity to "purge" the contempt,
meaning to comply with the order. If the contemnor does not
purge the contempt and has the ability to pay, the court has
the power of incarceration, although usually for a limited amount
of time, such as six months per contempt citation. In addition,
many states have criminal penalties for failing to pay child
support. Recently, Congress has enacted many new enforcement
mechanisms, creating greater collaboration between federal and
state governments. These include suspension of driver's licenses
and professional licenses, seizure of tax refunds, seizure of
bank accounts and investment accounts, and even publishing the
name and picture of the "dead-beat parent" on posters and in
newspapers. The law also improves interstate enforcement by
bolstering federal services to locate parents across state lines
and by requiring all states to have common paternity procedures
in interstate cases.
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Do grandparents have visitation
rights to their grandchildren? Who may petition for visitation?
Under what circumstances may a petition be filed?
Traditionally, the common law denied grandparents visitation
with a child over a parent's objections. But since 1965, all
50 states and the District of Columbia have enacted legislation
enabling grandparents to petition the courts for visitation
rights with grandchildren. The laws do not make granting of
visitation rights automatic - they merely give grandparents
the right to ask for a visitation order.
Many states permit only grandparents to petition for visitation,
but some have extended the right to other relatives, such as
great-grandparents, aunts, uncles and siblings, stepparents,
and even non-relatives with whom the child has a close relationship.
In these and other areas, state law governs. Most commonly,
a grandparent (or other permitted third party) may petition
for visitation after the death of a parent or upon divorce of
the parents. Some statutes allow petitions when a parent is
incarcerated, when a child is born out of wedlock, and when
the child has previously lived with the grandparent.
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