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Moving as a parent takes a significant amount of preparation and coordination. The process can become even more complex if your children’s other parent does not live with you. Moving as a custodial parent is known as a “move-away” situation, and it may be grounds for your co-parent to request a reevaluation of your custody order.

If you intend to move with your children, it is crucial to understand how California addresses move-away situations. This article discusses how child custody orders may restrict your right to relocate, factors that the court will consider if your co-parent objects to the move, and how to petition for the right to relocate with your children.

How Child Custody Orders Restrict Parents’ Rights to Move

California state law prioritizes the child’s welfare over all else when awarding custody. However, the state also considers parents’ rights to retain a relationship with their children almost as important. Furthermore, allowing children to spend time with both parents is frequently seen as in their best interests. For these reasons, family court judges prefer to grant parents joint custody or generous visitation whenever possible. 

In doing so, however, California may restrict custodial parents’ right to move with their children. Parents always have the right to change homes or neighborhoods, with one caveat: the move cannot interfere with their rights or best interests. 

To address this possibility, California requires all custodial parents to provide written notice of any plan to move away with a child at least 45 days before the intended move. This requirement is designed to allow your child’s other parent to dispute your relocation if it goes against the child’s best interests or interferes with the parenting or visitation plan.

If your co-parent does not object, you can continue with the move unimpeded. However, if they oppose it, you must attend a family court hearing regarding the situation. At this hearing, the judge will determine whether the move is in your children’s best interests and whether the parenting plan and custody order needs to be revised.

Factors That May Impact Whether Courts Permit You to Move

When a judge oversees a move-away dispute, their goal is to determine what is best for the children. To do so, they consider various factors, the most important being the current custody order. The regulations for a move-away situation depend heavily upon how custody was initially awarded. 

For example, if you were awarded sole or primary physical custody, you have more freedom to move. In this situation, if your co-parent objects to your move, they are responsible for demonstrating that your move will actively harm the children. You will likely be permitted to move if they cannot prove this. However, you may be ordered to draw up a new parenting plan to account for the extra distance. 

Meanwhile, the burden falls on you if you share joint physical custody. If your co-parent does not want your children to move, you must demonstrate that the relocation is in your children’s best interests. If you cannot, it is likely that the judge will bar your move or put a new custody order in place. 

In addition to the custodial division, the judge will consider factors such as:

• Distance of the move: If you’re remaining relatively close by, it will be easier to prove that the relocation is good for your child. However, if you’re moving long distances or out of state, you will need to work harder to prove that the move is beneficial. 
• Reason for the move: Judges expect you to move to a new home to improve your children’s lives. Moving to start a new, better-paying job or to be closer to family are considered good reasons for a move-away situation.  
• Location of the intended new residence: The judge will request to know where you plan on moving to judge whether the building and neighborhood are safe and healthy for your children.
• Current parenting plan and schedule: The judge will examine both your parenting plan and the actual schedule you and your co-parent follow to decide whether the new residence will cause significant changes to the time each of you spends with your children.
• Other changes to co-parents’ living situations: While the matter is being addressed, the judge may consider details about how your lives have changed since the original order was issued. This includes your child’s current age, where they now attend school, any new jobs or partners you and your co-parent may have acquired, and other details that may not have been addressed by the previous custody order.

These details can significantly impact the final decision in your move-away situation. For instance, if you have joint custody and you are moving to a better, safer neighborhood to get a new job, it’s more likely that the judge will approve your move and issue a custody order in your favor.

In contrast, suppose you’re moving to a more dangerous location or otherwise putting your children at risk during the relocation. In that case, the judge may bar you from bringing your children and award your co-parent sole custody. Having an experienced family law attorney on your case can help you prevent this from occurring.

Protect Your Parental Rights with Experienced Legal Assistance

Move-away situations are a complicated and frequently changing area of family law. If you are a custodial parent considering moving, you should consult with an experienced family law attorney. Your attorney will help you understand the legal situation surrounding your move. They will help you gather proof that the move is the best choice for your children and support your claim in court. You can learn more about the benefits of working with an experienced family law attorney by contacting the team at Madigan Lewis, LLP. Get in touch to discuss your situation and learn about your options today.

Ending a long-term relationship is rarely easy. You have likely spent years sharing your life and home with your partner. You may have made significant decisions regarding your children and finances based on your relationship. Should your relationship end, you need to decide how to separate shared assets, child custody, and your career from it.

If you are married or in a domestic partnership, there are well-defined legal pathways for resolving these concerns. However, many people opt not to take these legal steps, leading to many long-term relationships that are not bound by these regulations. This can actually make the process of ending these relationships more complex. Below, we discuss some of the complications involved in ending long-term relationships without the assistance of divorce proceedings and how to address these issues in California.

Why Ending a Long-Term Relationship May Involve Complications

Many people opt not to get married because they believe it is simpler. However, ending any long-term relationship can take effort if certain circumstances are present. Even if you and your partner never married, you may still need to address the following concerns after you end your relationship:

• Income and support: If your relationship is not legally recognized, you are not eligible for spousal support after it ends. If you sacrificed your career to care for your household while your partner worked, you might be in a difficult situation if the relationship ends. 
• Child custody and support: California automatically awards parentage of a baby to the spouse or domestic partner of a person who gives birth. However, if you were unmarried, your partner needs to voluntarily claim parentage, or you need to pursue legal action to have them named your child’s legal parent. Without this, matters like child support and custody may be difficult to address.
• Shared assets: Spouses automatically receive joint ownership of marital assets in California, but unmarried couples do not. If you and your partner lived together, shared ownership of a car, or otherwise shared assets, you will need a fair way to determine who owned them and who should retain them after you separate. 

Solutions to Common Issues Facing Unmarried Life Partners Post-Separation

Being unmarried makes separating more complicated, but not impossible. All of the above concerns have solutions under California law. Here are solutions for the most common issues facing unmarried partners when they end their relationships.

Marvin Actions

Unmarried couples do not have access to spousal support (“alimony”) in California, but there is an alternative. Marvin actions, also known as Marvin claims or colloquially as “palimony,” are a type of civil claim available to unmarried people. 

Marvin actions allow former romantic partners to pursue support from the other party. They stem from the case Marvin v. Marvin, in which Michelle Marvin sued actor and former partner Lee Marvin for support payments after their relationship ended. The California Supreme Court determined that non-marital partners had the right to pursue this kind of support through civil courts as a matter of contract law, not family law. 

If you had a written, verbal, or implied agreement with your partner in which they supported you financially while you performed tasks like maintaining the house and raising children, you might have grounds for a Marvin action. These actions can lead the court to order regular payments similar to spousal support, allowing you to maintain your standard of living until you can support yourself.

Paternity Actions

If you or your partner has given birth to a child after the end of your relationship, it may be necessary to pursue a parentage or paternity action for this child. A paternity action allows parents to seek legal recognition of both of their child’s parents. 

For example, a mother may file a paternity action against her child’s alleged father to determine whether he is genuinely related to the child. Meanwhile, a father can file a paternity action against the mother of his child to prove his relationship with them. In both of these situations, a successful paternity action names the father as the child’s legal parent, granting him the rights and responsibilities that entails.

Paternity actions are critical for child support and custody. Mothers often pursue paternity actions to ensure that the father pays child support, while fathers file them to win the right to spend time with their children. Whatever your relationship with the child in question, a paternity action can ensure they don’t suffer because your relationship ended.

Dividing Commingled Assets

Dividing shared assets may or may not be difficult. If both of your names are on the deed, title, or account, the process may be as simple as splitting the asset in half or according to your contributions towards it. For instance, if you jointly purchased a car, your partner could buy out your share of the vehicle and get it titled in their name alone.

This requires your partner to be willing to collaborate with you, though. If they are unwilling to negotiate, or if you co-owned assets but your name is not attached to them, you may need to take legal action. 

You can request your fair share of these assets in a civil lawsuit. As with a Marvin action, this is considered a matter of contract law. By contributing to the asset’s purchase, you may have formed an implicit contract that your partner must honor. However, the details of these cases are complex, so it is in your best interest to work with an experienced attorney. 

Simplify Your Separation with Expert Legal Representation

You do not need to face the end of your relationship alone. If your long-term relationship is over, you can work with the expert family law attorneys at Madigan Lewis, LLP, to address any remaining legal concerns. Reach out to our San Mateo law office today to learn how we can help you resolve legal issues surrounding the end of your long-term relationship today. 

Litigation is one of the most common methods for resolving divorce proceedings. This process allows couples to have their case heard by an official, usually a justiciary officer, who can issue legally binding rulings regarding disputes, including child custody, spousal support, and asset division. However, many people feel uncomfortable with the public nature of pursuing a divorce in family courts. 

If you need to litigate your divorce, California offers a valuable alternative to the public court system. You can choose to hire a private judge to oversee your case and issue rulings. Private judging can protect your privacy, reduce delays in your divorce, and potentially result in more equitable judgments. 

What Is a Private Judge?

Private judges, also known as temporary judges, are typically retired judicial officers with significant experience overseeing civil or family law disputes. They have the same rights and obligations when handling a legal dispute as a justice in a public court. They are also held to the same standards of proof to protect the rights of all parties involved. 

Temporary judges may issue legally binding rulings and orders, issue penalties, and otherwise decide cases that litigants choose to bring before them. Their decisions are considered legally binding and enforceable by appellate courts. 

California law permits parties to hire private judges to oversee matters of law that do not have the potential to result in incarceration. This was first allowed to reduce pressure on overcrowded courts throughout the state several decades ago, but it has remained within the law ever since. 

They offer significant flexibility compared to public courts because they can select what cases they wish to oversee. Most private judges handle significantly fewer cases than those in public courtrooms, allowing them to give each case more attention and time. 

Unless you have signed a contract stating otherwise, you are never obligated to agree to your case being heard by a private judge. In matters like divorce, for example, you may request that the issue is litigated in public court even if your spouse prefers that it is handled by a temporary judge. The exception would be if you signed a prenuptial or postnuptial agreement with the full knowledge that you were consenting to have a potential future divorce litigated by a temporary judge. 

The Differences Between Private Judges and Public Courts

There are several differences between litigating matters in a public court or with a temporary judge. The most important include:

• Cost: As temporary judges do not operate through the public court system, they are compensated by their litigants. This is an additional cost that is not present in public cases. However, if working with one shortens the timeline of your split, it may save you money overall.
• Choice: You do not receive a choice regarding the judge overseeing your case in a public court. The court will assign your case to whichever judge is available. When working with a temporary judge, you can select someone you and your partner agree upon.
• Scheduling: Temporary judges have complete control over their schedule, unlike public courts. That allows these professionals to take on fewer cases and give each case the attention it deserves. It also allows you to schedule hearings more quickly than in overcrowded public courts. 

Who May Benefit From Working With a Private Judge?

Many people may benefit from choosing to work with a private judge. The additional attention, discretion, and efficiency offered by these judges can be invaluable. You may find that hiring a private judge to oversee your divorce is the best solution if you fall into one of the following categories.

Couples With Significant Assets

If you have significant marital property, a private judge may help you resolve your divorce disputes more equitably and with less stress. High-asset divorces require careful attention to detail to ensure both parties receive their rightful share of the assets under California law. This is true whether or not there is a prenuptial or postnuptial in place. 

Private litigation ensures your case receives the attention it deserves. The judge will have the time to thoroughly examine and understand every aspect of your dispute and the contracts and assets involved. As such, they will be better prepared to issue rulings that address all relevant concerns. 

Spouses in the Public Eye

Similarly, if you or your spouse is frequently in the public eye, temporary judges may help you reclaim your privacy during this difficult time. Many high-profile celebrities and public officials opt to have their divorces overseen by temporary judges to ensure details of their finances and disputes remain private. You will be able to litigate your divorce and have it fully addressed by the temporary judge without risking details of your personal life becoming a matter of public record that can be published for anyone to read. 

People With Tight Timelines

You may also benefit from a temporary judge if you have a tight timeline for your separation. Temporary judges remove the necessity of scheduling hearings or trials in a specific county court. You will not have to risk delays due to crowded courts or conflicting schedules. You and your spouse will be able to work directly with the judge and your attorneys to schedule times and locations for each hearing that meet your needs.

As a result, you will face significantly fewer delays in dissolving your marriage. Many people who choose private litigation finalize all aspects of their divorce before the end of California’s mandatory six-month waiting period. This minimizes the time you will spend on the process and allows you to move on with your life as soon as possible. 

Experienced Legal Representation Before Private Judges

If you are interested in working with a private judge, it is to your benefit to work with divorce attorneys who are experienced in private litigation. At Madigan & Lewis, LLP, we have years of experience guiding clients like you through divorces with discretion in various litigation settings. Schedule your consultation today to discover how our expert attorneys can provide you with strategic, responsive, and solution-oriented legal counsel when you litigate your divorce through a private judge.

Prenuptial agreements are becoming more popular every year among engaged couples of all ages. These contracts allow people to dictate the terms of their finances in their future relationship instead of defaulting to the terms California sets for all marriages. However, it is too late to pursue a premarital contract if you are already married.

If you still want the benefits offered by premarital agreements, you may consider the alternative: a postnuptial agreement. These contracts provide similar benefits without the restriction of having to occur before you are legally wed. Approaching them correctly can benefit you whether or not you are concerned about a future divorce. Below, you will learn what these contracts entail, their requirements, and techniques for developing them effectively.

What Is a Postnuptial Agreement?

Postnuptial agreements, also known as postmarital contracts or “postnups,” are contracts between married partners that may dictate various terms regarding their financial and property rights. They are flexible tools that can address ownership issues within the marriage and provide advance determinations for considerations that may arise if the couple divorces or legally separates. 

While these contracts have their limits, they can give couples the freedom to change the specific terms of their relationship long after they first get married. They may also be used to supersede prenuptial agreements that are outdated or no longer reflect the couple’s preferences. 

What Can a Postnuptial Agreement Include?

Postmarital contracts may address many concerns, including:

• Property ownership and the division of debts and assets: The agreement may define certain assets or asset classes as separate or marital property when they would not otherwise be considered as such, altering who may make decisions about those items and whether they are eligible to be divided in a divorce.
• Spousal support: The agreement may determine whether either spouse is eligible for spousal support (also referred to as alimony) in the event of a divorce, how much those payments may be, how long they will last, and how they will be calculated.
• Protection of the parties’ business interests: If either partner owns or creates part or the whole of a business, a postnuptial agreement can dictate whether the other partner has any ownership or control over the company and whether they have the right to any profits.
• The rights of the surviving person after one party’s death: The postnuptial agreement may also act as an estate planning document, allowing couples to clarify the surviving partner’s rights regarding the decedent’s separate property and share of the marital estate.

California law imposes two critical restrictions on what may be included in postmarital contracts. First, according to CA Family Code § 1620, “Except as otherwise provided by law, spouses cannot, by a contract with each other, alter their legal relations, except as to property.” This means that you cannot use a postnuptial contract to alter the terms of your relationship, such as your responsibilities to each other, except regarding your assets. 

Second, a postnuptial agreement may not be used to dictate how child support or custody is awarded. These matters are to be determined at the time of the dispute with the child’s best interest in mind. Since the best interest of the future children cannot be decided in advance, these contracts may not make determinations regarding them.

California Postnuptial Agreement Requirements

California law views spouses in part as business partners with fiduciary duties towards each other. In particular, CA Family Code § 721(b) states, “This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.”

This makes validity and enforceability concerns in postnups more significant than they would be in premarital contracts. For a postnup to be considered legally binding, it must meet the following criteria:

• Both partners signed the agreement voluntarily and with a complete understanding of the obligations it imparts
• Both parties received full and fair disclosure of the property and financial obligations of the other person
• Both parties either received independent legal counsel regarding the contract or expressly waived this right in a separate written agreement. 
• The agreement does not violate law or public policy

If these criteria are met, the postmarital contract will likely be considered valid and enforceable in court.

How to Approach a Postmarital Contract in Your Marriage

Before writing your postmarital contract, it is critical to understand how to approach the development process to achieve the best possible results. These techniques can help you create an agreement that satisfies both you and your partner without wasting time or risking questions of enforceability. 

• Collaborate with your spouse. A significant benefit of addressing concerns related to a divorce in a postnuptial agreement is the opportunity to collaborate with your spouse. Take this time to find satisfactory compromises without the emotional impact of an ending relationship affecting your decisions.
• Have a goal in mind. Postnuptial contracts may address many issues, which can lead you to feel overwhelmed. Have a few specific goals for the agreement to ensure your contract focuses on what matters to you and your partner and avoid distractions. 
• Acquire independent legal counsel. Both you and your spouse should consult with independent attorneys to ensure that you receive fair and unbiased legal counsel regarding the contract. This reduces the risk of validity concerns and ensures you both understand the agreement’s impacts before signing. 

Experienced Legal Counsel for Postnuptial Agreements

A postmarital contract is an invaluable financial and legal tool for couples who are already married. If you are considering a postnuptial agreement, you will benefit from receiving expert legal counsel from a qualified family law attorney. 

You may learn more about how a postnup could help your relationship by scheduling your consultation with Madigan & Lewis, LLP. Our experienced attorneys are dedicated to providing strategic, responsive, and solution-oriented legal representation to clients seeking comprehensive and enforceable postnuptial agreements. Call 650-482-8480 or reach out online to begin the process. 

Most married couples save for retirement assuming they will still be married when that time comes. Unless a couple has developed a strong prenuptial or postnuptial agreement, this assumption can complicate asset division should they choose to divorce. 

Retirement accounts are some of the most essential assets you and your spouse share, but they also present unique complications. It is in your best interest to understand how these types of assets can be divided in your divorce, so you know what to expect of your future finances. 

How Divorce May Affect Your Retirement Plans

In California, the assets a spouse acquires during the marriage are automatically granted status as community property, with few exceptions. Unless an asset is covered by another contract that explicitly declares it to be separate property, such as a prenuptial agreement or inheritance, then spouses share joint ownership of it. This includes retirement funds and accounts.

Community property must be divided equally between partners in the event of a divorce. Both parties are owed a 50% share of the overall value of their marital estate. The law permits partners to negotiate to receive assets they would prefer. Still, in the event of a disagreement, judges often default to splitting accounts equally between parties to resolve the dispute. 

For instance, if one spouse prefers to keep the liquid assets while the other wants a retirement account of approximately equal value, they could agree to grant full ownership of liquid funds to one person and the retirement account to the other. However, if either party disputes this compromise, a judge may order both asset types split to give both partners their equal share. 

Retirement Assets and How They May Be Divided

This division of retirement assets is standard. However, the method by which they are divided varies depending on the type of asset involved. Below are some of the most common assets used in retirement plans and what to expect from their divisions.

Investment Retirement Funds

Investment accounts are some of the most common tools used to save for retirement. These accounts come in many formats, some of the most popular including:

• 401(k)s: 401(k) plans allow employees of private companies to invest for retirement in programs managed by their employers. The employer may match a certain percentage of this investment. The money in these accounts is typically untaxed when placed in the account, then taxed upon withdrawal. The funds may be withdrawn when the account holder is 59.5 years old. Earlier withdrawals may only occur due to hardship and are subject to a 10% early withdrawal penalty as well as taxes. 
• 403(b)s: These plans are alternatives to 401(k)s for public and tax-exempt organizations. They function similarly in most cases. 
• IRAs: Independent Retirement Accounts (IRAs) are retirement accounts for self-employed people or those whose employers do not offer 401(k)s or 403(b)s. As with these other plans, money is usually not taxed upon deposit but upon withdrawal, and money withdrawn before age 59.5 years of age is subject to withdrawal and tax penalties.

All three types of accounts are also offered as Roth variations, where money is taxed the year it is deposited, not when it is withdrawn. These funds still have early withdrawal penalties but no tax penalties. 

These accounts are typically the simplest to divide. If a judge orders you to split these accounts, you can choose to roll them into your own account or withdraw the funds entirely. The funds may roll over to a new account or owner with minimal disruption. There are no penalties as long as the funds remain in a similar investment account. For example, you can roll 401(k) funds into another 401(k), a 403(b), or an IRA, and vice versa. However, if you choose to withdraw the funds, you will face tax and early withdrawal penalties unless you meet the age threshold.

ESOPs and RSUs

Employee Stock Ownership Plans (ESOPs) and Restricted Stock Units (RSUs) are two unique investment-based benefits often used for retirement assets. ESOPs are defined contribution plans that offer employers stock or money purchase opportunities. These plans allow employers to grant workers stock in primarily qualifying employer securities. 

Meanwhile, RSUs grant employees a certain number of “restricted” stock units during their employment. These RSUs are often given at the beginning of the employment relationship, but they must vest before gaining value. 

Both programs raise questions of future value. An ESOP may become worth nothing if something should happen to the company before the employee is eligible to remove the funds. Similarly, an RSU is worth nothing if the employee leaves the company before it vested. Working with an experienced divorce attorney is critical to determining a fair division of these retirement assets. 

Pensions

While pensions are becoming less common, they still present a valuable resource to employees eligible for them. Pensions offer regular monthly income for retired people based on how long they worked for the pension provider. Careers where pensions remain frequent include education, governmental work, the military, utilities, insurance, and other unionized fields.

Pensions are one of the most complex assets to divide due to the nature of their accrual. Only the portion of a pension earned during a marriage is considered community property. If a couple was married for five years, but the pension earner worked at their job for twenty, only five years of the pension is considered marital property. That means the other spouse owns half of the pension accrued during those five years.

This may take significant effort to calculate. It is recommended that you work with an experienced divorce attorney if you need to divide a pension when dissolving your marriage.

Protect Your Retirement Funds During Your Divorce

You deserve a comfortable and secure retirement. If you believe a divorce is in your future, it is in your best interest to consult with an experienced divorce lawyer like the experts at Madigan & Lewis, LLP. We will work closely with you to help you protect your retirement funds and move forward with your divorce. Schedule your consultation by calling 650-482-8480 or reaching out online to learn more about how our strategic and solution-oriented approach can help you achieve the best possible results in your case.