Common Myths
Common Myths in Family Law Cases
There is no magic number of years which creates a common law marriage. A common law marriage is created when a man and woman declare to one another that from a certain moment on, they are husband and wife. There must be a present sense intent to be husband and wife, not a promise that some day we will be “married for real”. Just as when one marries and has a marriage license issued by the county probate court, a ceremony of some sort must take place, even if it is just the two of you, alone, saying the words to one another. To prove a common law marriage you should be able to point to a specific event when you and your partner said “I do”. You may have heard that any one of the following means you are common law married: filing joint tax returns, taking your partner’s last name, living together in the same home, having children together, insuring your partner as a spouse on your health insurance or life insurance, or introducing your partner as your spouse to the general public. In fact, these events do not create a common law marriage, but are merely evidence that attorneys offer in a trial when one partner disputes the existence of the common law marriage.
What generally occurs is this: when the two partners separate, one party alleges the common law marriage and the other party denies it. To prove that the marriage exists, a hearing is held before a family court judge. The party claiming the common law marriage must testify as to when and under what circumstances the two partners agreed to be married. Then, as proof that such an agreement was made, the party claiming the common law marriage would present joint tax returns, envelopes which are addressed to the woman using the man’s last name, etc. All, when viewed together, would convince a family court judge that they parties did intend to be husband and wife. Then, the family court can equitably divide the property you acquired during the marriage, award alimony (if appropriate), and grant a divorce.
Obviously, because of the lack of certainty, it is best to get that marriage license. If the family court finds that there is no marriage, no alimony (spousal support) can be awarded nor can the family court make a division of property you acquired during the time you lived with your partner.
If you have had children, the family court can still award custody and child support even if the family court finds there was no marriage. However, that child would be considered illegitimate.
If you are truly disabled and a doctor will testify as to your disability, a family court judge can determine that you should not pay child support for the duration of your disability. Generally, however, you must be determined to be permanently disabled, as determined by the Social Security Administration, to be relieved of your obligation to pay child support. In that case, Social Security benefits are often available for your child and payable to the custodial parent. If you are not disabled, the family court could find that your are voluntarily unemployed and “impute” income to you. This means that the family court would determine what you are capable of earning and use that amount in the child support guidelines calculation.
If you are only working part-time or if you choose to work a job which pays less than you are capable of earning, the family court can determine that you are voluntarily underemployed and then impute full-time employment to you. A parent will sometimes say that before I will work hard and pay money to the custodial parent, I will take an easier job or work part-time. If the family court finds that your decision to reduce your income is fueled by a desire to thwart the child support award, the judge has the power to determine what you are capable of earning and then determine child support based on that figure. Before you change jobs, we encourage you to call the Law Office of Alexandra McIntosh to discuss the implications of your decision before you find yourself paying child support based on income you no longer earn.
Of all the legal urban myths, this one seems to cause the most trouble. What occurs is that pursuant to a family court order, one parent has custody and the other parent has visitation and is required to pay child support. The non-custodial parent fails to pay child support but still wants to visit. A failure to pay child support does not automatically terminate a parent’s right to visit. Two wrongs do not make a right. If the non-custodial parent fails to pay child support, he or she is in contempt of court. But, if you fail to comply with the court order by denying visitation, you are in contempt of court, also. The family court judge has the power to put both of you in jail, even if you did not stop visitation until after your stopped receiving child support.
The proper course of action when you do not receive child support is to call the Law Office of Alexandra McIntosh, or an attorney of your choice, and file a Rule to Show Cause against the non-paying parent. You will have a much better result if you have complied with your court order when you enter the family court. The family court likes parents who comply with their orders.
There is a way to terminate your rights to your child. This is very extreme action and the family court will only do this under very specific and extreme circumstances. The relationship between parent and child is so important that our state policy is to protect that relationship when possible.
Think of it this way: If all you had to do is sign a piece of paper and you would no longer have an obligation to pay support, then there would be far fewer people sitting in jail for failure to pay child support. Obviously, there must be more to it that this – and there is. If you fail to visit your child for six consecutive months, or you fail to pay child support for six consecutive months, then a family court judge can terminate your rights to your child. This does not mean that the family court will do this, but they can. As an example, a family court will terminate rights if there is another parent ready to step into your shoes – as in an adoption.
As with most of family law, this is a very complicated issue and you should make no assumptions about the law as it pertains to termination of rights. If you believe that you are in danger of have your rights to your child terminated, it is imperative that you contact an attorney. Termination of parental rights is forever.
There is no age at which a child has the absolute say over which parent he or she lives with. However, as a child ages, if he or she feels strongly about living with one parent over the other, you can file for custody and a Guardian ad litem (GAL) will be appointed for your child and your child can tell the GAL how he or she feels, and why. The GAL will have the opportunity to tell the family court judge of your child’s preference.
When custody is initially determined, a custody decree is issued. The issue of custody can be revisited if there is a substantial change of circumstances which affect the child’s best interests. This custody decree can be modified if the non-custodial parent can show the court that because of these changes in circumstances the child’s interests would be best served by a change in custody. A strong desire to live with the other parent is a change of circumstance that will be considered by a family court judge.
Where a custody action is litigated is determined by where the child resides. As with the issue of where to get your divorce, where to file for custody is a jurisdictional issue.
Generally, where ever the child has resided for six months prior to the commencement of the custody action is the “home state” for purposes of determining that child’s custody or visitation issues. As with most family court laws, there are exceptions and it is important to get legal advise from an attorney who is familiar with this statute before taking action.
Of all legal urban myths, this is the most dangerous. If you have read even a portion of these Myths you should realize that it takes a great deal of information, experience, education, and knowledge of the law to handle a family court case. There are attorneys who choose to “dabble” in family law and, even with their legal training in other areas of the law, these attorneys find that they are incapable of maneuvering through the vast number of rules, cases, statutes and facts one needs to have at their disposal to successfully litigate a family law case. There is not only the substantive law, which tells us how an issue should be resolved, there is the procedural law, which tells us how to go about correctly getting the case before the judge. You may understand the substantive law, for example knowing how to figure child support, but if you fail to follow the proper procedure, your case will be thrown out of court and you will have to start over again. In the many years we have been helping the people in San Diego county, we have encountered practically every kind of case. We learn something new every day and every day we help guide others through the complexities of the domestic case. You may feel that paying an attorney is something you cannot afford, but you need to think of this: A family court judge is one of the only judges in the United States that can take everything you now own and a large percentage of every thing you earn in the future, without a jury trial. You will feel the impact of a family court case every month as you write or receive that support check and as you see, or don’t see, your child. If your car is broken, unless you are a mechanic you would never consider attempting to fix it. If you need heart surgery, you would never consider doing the operation yourself. If you need legal help, you need a good lawyer who fully understands not only what you are going through, but how to help you get through it successfully. The attorneys at the Law Office of Alexandra McIntosh can do this. |
