Divorce can be one of the most difficult transitional times in a person’s life. Divorcing individuals often have more questions than answers. All questions are good questions and it is healthy to ask. The more information that you have, the better able you are to have a clear perspective, set realistic goals, and manage your divorce with its coinciding life changes.
A skilled family law lawyer will answer your questions, review your options with you, give you a realistic perspective on your case, and help you make intelligent, informed choices while going through a divorce.
There can be many complexities to family law depending on the level of cooperation between divorcing spouses. Some common questions that arise are:
How soon can I be divorced?
California law allows that a person can be divorced within six months of filing and personally serving a Family Law Summons and Petition. Obtaining a divorce simply means that both parties will be returned to the legal status of single persons. It does not resolve other issues, such as custody, support or property, unless the parties come to an agreement or the Court orders it.
We have children. Who gets custody?
California law favors shared custody with both parents giving frequent and continuing contact to the other parent. The legal standard is the best interests of the child. There are two types of custody: legal custody and physical custody. Legal custody refers to making decisions such as a child’s health care, where the child goes to school, the child’s religion, and extra-curricular activities. Physical custody refers to the parent with whom the child actually resides. A court, mediator or evaluator will almost always attempt to order or recommend a shared custody agreement close to fifty-fifty unless there are extenuating circumstances. Other factors are the child’s age, emotional, health, and educational needs and the child’s relationship with both parents.
My spouse got a job in another county or state. Who will the children reside with?
California law requires a parent’s consent or a court order to move a minor child from their county of residence. If the spouses cannot agree on where the children will reside in this situation, it becomes a contested custody issue. Either of the parties has the right to file a Request For Order and ask the court to rule on custody. In that case, the parties go through Family Court Services or a custody evaluation. The mediator or evaluator makes a recommendation based on the best interests of the child standard and which parent that mediator or evaluator believes will allow the other parent frequent and continuing contact with the child. The court will hold a hearing or trial, review the recommendation, hear all of the evidence, and make a ruling.
How is child support determined?
Child support is based on a number of factors using statewide guidelines. Factors to be considered include: the parties’ incomes, health insurance, mortgage interest deductions, how the parties’ incomes are taxed, and the parties’ percentage of time with each minor child. California guideline support is then determined using a legal program such as Dissomaster. A child support obligation usually continues until a minor child turns 18, graduates from high school or is otherwise emancipated. There are exceptions depending on the parties’ situations. Other factors the court considers are costs for each minor child’s health and dental care, extra-curricular activities, travel, and child care, as appropriate. These are referred to as add-ons.
How is spousal support determined?
Both parties have a duty to become reasonably self-supporting when they divorce. The statewide computation is similar to that of child support, but the spousal support obligation usually is not indefinite and depends on the situation. Several factors go into computing the duration of spousal support such as the length of the marriage, the parties’ incomes, the age and health of the parties, the parties’ marketable skills, time out of the work force, earning potential, and the taxable consequences to both parties. The spousal support payor should speak to a tax professional about any spousal support payments being tax deductible. The spousal support payee must include spousal support payments as taxable income. A spousal support obligation typically ends upon agreement of the parties, court order, the death of either spouse or the remarriage of the supported spouse.
We have a house. How is ownership determined and who pays the mortgage?
Upon separation, both parties have a legal duty to continue to pay the mortgage on a family residence and any other community real property. Which party remains in the residence is subject to agreement or court order. The fact that one party remains in the house does not relieve the other party of their obligation to pay all residence related expenses if appropriate. Dividing a residence is based on the actual equity in the residence, loan financing, whether either spouse contributes separate property either pre or post separation, and whether either party can afford to buy out the other and assume the mortgage payments. When a buyout is not possible, the property is usually sold unless the parties can otherwise agree or a party can convince the court of an appropriate solution.
We have assets to divide. How do I know that my spouse is disclosing all of our assets?
California law requires that both parties complete and serve the other spouse with Preliminary and Final Disclosures upon divorce. That paperwork includes a Schedule of Assets and Debts which sets forth all of the community and separate property assets and debts, to the extent known, and an Income and Expense Declaration which sets forth each party’s income, expenses, debts, and attorney’s fees. If a spouse’s disclosures are inaccurate and it is proven by the proper standard of evidence, the non-disclosing spouse can be ordered to pay penalties such as the other spouse’s attorney’s fees or part or all of an asset.
I had separate property before the marriage and I want to keep it. How do I do that?
California law states that a spouse’s separate property is not part of the community estate unless it is transmuted. Separate property is usually determined by a premarital agreement, a separate agreement by the parties, or by a tracing analysis with documents substantiating that spouse’s separate property. If the parties cannot agree, a court can enter an order to that effect after a properly noticed hearing.
Will I have to go to court?
If there are no contested issues, then usually the parties do not have to appear in court. If there is a contested motion or trial for custody, support or property rights, courts expect that both parties attend all such hearings. The exceptions are Case Management Conferences and Family Resolution Conferences. Courts expect that both parties will appear at all contested hearings and a party’s failure to appear could cause that party to fall into disfavor with the court, and could lead to sanctions or other proceedings. If the court orders a party to appear, that party must appear.
Will I have to pay my spouse’s attorney’s fees?
It depends on the situation. If one spouse earns significantly more than the other, the lesser earning spouse can request legal fees based on financial need or those monies could come from a community property asset subject to later reallocation. In extreme situations, such as obstreperous conduct by one spouse, sanctions can be requested by a noticed motion.
I am getting married and have separate property assets to protect. What do I do?
A well-drafted prenuptial agreement with both parties represented by counsel can protect separate property assets and address spousal support. There is a waiting period between the date of marriage and the signing of the prenuptial agreement. A prenuptial agreement must be signed weeks before the wedding. A prenuptial agreement signed hours or days before a wedding will not be upheld by a court.
My spouse and I want to sign a nuptial agreement but we are already married. Can we do that?
Yes, the parties can prepare a post-nuptial agreement dividing assets or agreeing to a spouse’s separate property after the date of marriage. It is recommended that both parties be represented by counsel for this transaction.
We handle the following areas specific to Family Law:
- Custody and Visitation
- Child Support
- Spousal Support
- Negotiated Settlements
- Domestic Violence
- Post Judgment Orders
When it comes to your children, other loved ones and your finances, you want an attorney who has experience with family law matters. Cottle Keen Lopiccolo & Heyde, LLP has attorneys on staff who are experienced in these areas of the law. Contact us by phone at (714) 997-7870 to set up a consultation.