Getting A Divorce? Information on California Law

Disclaimer: I am not a Lawyer or Attorney and have only gathered information from the websites of current attorneys whom I do not know or endorse, yet I feel this information is current and accurate. All information in this site is provided for informational purposes only, and should in no way be interpreted as legal advice. Please consult your own Attorney and sources to get the most accurate information in regards to your specific situation.

Property

Community Property and Separate Property

In California all property acquired during a marriage is presumed to be community property, but this presumption can be rebutted. Businesses, real property, investments, and personal property such as jewelry, art and automobiles are all subject to community property law.

Community property is presumptively divided equally between the parties upon dissolution of marriage.  Often there is a dispute as to what is community property and what is separate property, or one party may claim a right to be reimbursed for separate property contributions to the community.  An experienced attorney can help advise what is community property and what is separate property.  The attorney will also prepare evidence to support these property  determinations to be presented at trial if the parties are unable to reach an agreement to divide their property.   An experienced attorney may assist in getting the other side to agree to a fair settlement and avoid the expense of a trial.   Property issues which are not settled by agreement will be decided by the judge at trial.  Strong case preparation and representation by an experienced attorney can often help to avoid an expensive trial over property issues.

Dividing the family home and other real property can be expensive and complicated.  A Certified family law specialist can make the process simpler and make sure the highest value is received.

The Law deals with issues involving the commingling of separate and community property assets, the transmutation of separate and community property and reimbursement rights for separate property contributions to the acquisition and improvement of community property.

Not all property is community property which must be divided equally between you and your spouse. Under California law, you generally are entitled to the protection of your separate property, which typically includes assets acquired before marriage, by gift or by inheritance, as well as income earned after  separation.  In some circumstances, an asset is partially community property and partially separate property. Attorney Matthew Rich has experience in dealing with the complexities of allocating assets that contain both community and separate property components, such as businesses, pension plans and stock options.

Business Valuation

Valuing a business can be one of the most complex issues in many divorces.  Obtaining information and a fair valuation can be difficult for the “out spouse”. The issue of double dipping is also an important issue when income from a parties’ business will also be used for determining spousal support.  Don’t pay too much, or ensure that you are getting your fair share by hiring a Certified Family Law Specialist to assist with property division as part of your Dissolution of Marriage or Legal Separation.  Call the Law Offices of Matthew L. Rich for a free consultation to discuss your case.

California law requires Courts to adhere to statewide guidelines in setting child support orders, based upon the party’s income and other factors.

Temporary Spousal support is also determined by guidelines based upon the party’s income.

Longer term post judgment Spousal support is determined by agreement of the parties or by consideration of many factors, (not including support guidelines) after evidence is presented at trial.

Child Support Guideline Calculations

There are two purposes for using child support guidelines: (1) to provide for a minimum level of child support for a child; and (2) to provide for uniformity in the calculation of child support. In order to achieve these purposes, the guideline requires judges to follow its provisions, with deviations allowed only in limited and specified situations.

  • The guideline statute begins by setting forth the principles that are to be followed in its implementation. these principles include:
  • A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life.
  • Both parents are mutually responsible for the support of their children.
  • The guideline is intended to be presumptively correct in all cases, and only under special circumstances should child support orders fall below the child support mandated by the guideline formula.
  • Child support orders must ensure that children actually receive fair, timely, and sufficient support reflecting the state’s high standard of  living and high costs of raising children compared to other states.

The guideline itself is a complex formula.  Because of the complexity of the formula, computer programs are used in order to obtain quick and accurate calculations.

To determine the child support guideline for a child, the following information must be obtained:

  • The gross incomes of each parent.
  • The percentage of time each child spends with each parent.
  • Any available income tax deductions that the parents can claim, such as mortgage interest.
  • Mandatory payroll deductions, such as health insurance, pensions, and union dues.
  • Child care costs incurred by either parent.

Once this basic information is inserted into the support calculation program, a guideline child support amount is generated.

Custody

Physical Custody

Physical custody refers to where a child will live after parents divorce or separate. Physical custody is different than legal custody, which has to do with decision making for children. The parent with physical custody has the right to have the child physically present in the home. If a child lives exclusively or primarily with one parent, that parent may be referred to as the custodial parent, having sole physical custody or primary physical custody. The other parent would be considered the non-custodial parent and would typically have visitation rights. If a child’s time is divided equally between the parents, or close to equally, the parents are sharing joint physical custody.

Joint Physical Custody

According to California Family Code section 3004, “’Joint physical custody’ means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, subject to Sections 3011 and 3020.”

Sole Physical Custody

According to California Family Code section 3007, “’Sole physical custody’ means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.”

Primary Physical Custody

In some joint physical custody arrangements, a parent who has more time with the child may be deemed to have primary physical custody, while the other parent has secondary physical custody. In other words, the term “primary physical custody” is often used in cases where parents are awarded joint physical custody and one parent has slightly more time than the other. However, in California, the term “primary physical custody” doesn’t exist in the Family Code, so there is no language to define its legal meaning. This can become an issue when a court identifies one parent as having “primary physical custody” and the other “secondary physical custody,” particularly in moveaway cases, where the parent with primary physical custody seeks permission from the court to relocate with the child.

In making decisions regarding custody of children between the parents, the Court applies a simple standard. The Court determines what is in “the best interests of the child or children“.  Many complex factors can be considered by the Court in making this determination, and every family and every case is different.  If the parties are unable to agree to custody plan,  the Court may look at a large number of factors to make a decision after either party has made a request for custody orders.

Under the new Court Rules, as  part of a request for temporary orders these factors will be presented at a live hearing in open court where witnesses are called and cross examined, unless the parties agree otherwise.  These hearings  can take place very early in a custody case and they can establish a pattern of custody which may become the permanent order of the Court at a later Trial.   Presenting a strong case at a temporary hearing is important to assure that the best interests of your child or children are truly protected.

Preparing for your initial hearing and developing a long term strategy which you begin to implement from the beginning of the case are important to start your case off in the right direction.  If your case has already started in a less than satisfactory way, steps can be taken to modify current orders and evidence regarding the basis for modifying custody can also be presented at a live hearing in open court.

Legal Custody means the right to make decisions about a child’s welfare. In child custody cases the parents will usually share joint legal custody unless one of the following is true:

The parents are unable to make decisions together, a parent is deemed unfit, a parent is incapable of making decisions regarding the upbringing or welfare of the child, or it would be in the child’s best interest for one parent to have sole legal custody.

Joint Legal Custody

According to California Family Code section 3003, “’Joint legal custody’ means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” Joint legal custody is very common in California. The fact that the parents share joint legal custody does not mean the parents will necessarily share joint physical custody.

Sole Legal Custody

According to California Family Code section 3006, “’Sole legal custody’ means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” This parent can make all decisions without seeking input from the other parent. The fact that a parent has sole legal custody does not mean that parent will also have sole physical custody.

Paternity is defined as being the father of a child or children.

Paternity as a legal issue implicates a broad range of family law issues, including child custody, child support and father’s rights. When paternity is in question, DNA testing often is used to determine parentage. The determination of paternity is the first step in seeking child custody, child support or father’s rights.

 Domestic Violence

Domestic violence is common between spouses and unmarried partners, but not every claim of domestic violence is genuine.

Domestic Violence may result in criminal charges when police become involved. A party can also apply for a Domestic Violence Restraining Order based upon allegations of domestic violence against a domestic partner or spouse. As part of this application a party can request orders for custody, support, and property control as well as orders of restraint and other orders. A Domestic Violence Restraining Order can have an important impact in a divorce or custody dispute. The testimony and cross examination of the applicant and presentation of evidence at the Restraining Order hearing can be critical in determining whether a Restraining Order is granted.

California domestic violence laws define abuse to include:

  • Physically hurting or trying to hurt someone, intentionally or recklessly;
  • Sexual assault;
  • Making someone reasonably afraid that they or someone else are about to be seriously hurt (like threats or promises to harm someone); OR
  • Behavior like harassing, stalking, threatening, or hitting someone; disturbing someone’s peace; or destroying someone’s personal property.

The physical abuse is not just hitting. Abuse can be kicking, shoving, pushing, pulling hair, throwing things, scaring or following, or keeping a person from freely coming and going. Abuse can include physical abuse of the family pets.

Information gathered from: http://matthewrichlaw.com/support/