Q: What are the grounds for dissolution of marriage?
A: California was the first state to implement the "no-fault divorce" concept. In California, a dissolution of marriage can be granted if the court finds there to be "Irreconcilable differences" that have caused an irrevocable breakdown of the marriage.
Consequently, this means that if a married person wishes to terminate the marriage, he/she can do so, even if the other spouse disagrees.
Q: Is there any residency requirements in order to obtain a dissolution of marriage?
A: To qualify for a dissolution of marriage, At least one of the spouses must have been a resident of the state for a continuous six month period and of the county for a continuous three months prior to the filing of the Petition for dissolution.
Q: After the dissolution case is filed, how long does it take to get the marital status terminated?
A: Six months must pass after the service of the Summons and Petition is made on the non-filing spouse in order for the marriage to be terminated.
Spousal Support FAQs
Q: What is spousal support? What is Alimony?
A: Spousal support is the term used for payments from one spouse to another after a divorce for the purpose of them to maintain the standard of living that they may have had while they were married.
Spousal support in California is meant to bridge the gap between the time it takes for that spouse to obtain employment or resources for that spouse to meet his or her own needs. Throughout these questions and answers the words "spousal support" and "alimony," are used interchangeably
Q: How does a judge determine spousal support at the time of the trial?
A: At the trial of the dissolution, the California Family Code provides the judge with a long list of factors that are to be considered in determining the amount and duration of spousal support.
This list includes such factors as the length of the marriage, the parties' prior living standard, the extent to which the supported spouse contributed to the:
- attainment of an education or professional license by the other spouse;
- presence of young children in the home; and
- employment opportunities available to the spouse requesting support.
Q: Can I get temporary spousal support while our case is pending?
A: Spousal support is often awarded at an Order to Show Cause on a temporary basis, where one spouse is unemployed or earning significantly less than the other spouse is.
This guideline requires that the husband's spousal support is 40% of his net monthly income, reduced by one-half of the wife's net monthly income. Where child support is being paid, the guideline level of child support is first calculated. Then, spousal support is determined.
Q: My spouse had multiple affairs during our marriage. Will this affect the amount of support?
A: California is considered a no-fault jurisdiction. Unfortunately, the court will not consider your spouse’s infidelity in determining spousal support. However, if your spouse is cohabitating (living under the same roof with someone of the opposite sex in a romantic relationship) the court must presume that he/she has decreased need for spousal support.
Q: Should I avoid going to court because of the high cost involved?
A: Not necessarily! It is always wise to try to negotiate an out of court settlement to save legal fees, but often there are significant advantages to actually litigating spousal support. In many cases, if you reach a settlement, the spousal support order is indefinite in nature—it continues on forever. All too often, the paying spouse is in a hurry to get their divorce over with at all costs, and does not consider the long-term.
Property Division FAQs
Q: What is community property?
A: California law defines community property as any asset acquired or income earned by a married person while living with his or her spouse. Separate property is defined as anything acquired by a spouse before the marriage, or during the marriage by gift, devise or bequest. The law requires that the community estate be divided equally if there is no written agreement to the contrary.
Unless agreed otherwise, each spouse must receive ½ of the net community estate.
Q: How is the community property to be divided?
A: The law does not require an "in kind" division of the community property. The law does require that the net value of the assets received by each spouse must be equal.
Thus, it is not uncommon for one spouse to be awarded the family residence, with the other spouse receiving the family business and investment real estate. Since the total net value of the assets being received by each spouse is equal, such a division is proper.
Ordinarily, it is not difficult to determine whether a particular asset is community or separate property. However, certain types of assets can pose unique problems in this regard.
Q: Can I get a portion of my spouse's pension and employment benefits.
A: To the extent that a married person accumulates an interest in a pension, retirement, profit sharing or other employee benefit plan during the marriage, it is community and subject to division in the Dissolution of Marriage/Divorce.
The judge has the power to award a spouse his or her pension plan, based on its "present value," or “cash out” or to "reserve jurisdiction" to award each spouse a proportionate share of the benefits when they are paid.
Q: What is Reservation of Jurisdiction?
A: This is the most common way in which Pension Plans are handled. Under reservation of jurisdiction, the court orders that when the employed spouse retires the other spouse will receive a percentage of each pension check.
The Federal Retirement Equity Act of 1984 created what is known as the "Qualified Domestic Relations Order," or "QDRO" (Pronounced "quadro"). Where the Court makes orders concerning a spouse's retirement plan and the order is prepared in the correct form, the Federal law requires the employer to comply with the terms of the order.
Q: What is a Cash-out?
A: The other method of dealing with Pension Plans involves obtaining "actuarial evaluation" of a Pension Plan. An actuary is an expert who deals with statistical and financial evaluations of insurance policies, annuities and Pension Plans.
This process includes an estimation of the long-range interest rates that would be in effect over that period of time. With a cash-out, the employed spouse receives his or her Pension Plan, with other community property assets being awarded to his or her spouse to result in an over all equal division of community property.
Q: How do the courts deal with a closely held business or professional practices?
A: A business or professional practice must be considered in the valuation and division of community property. To the extent that a business or practice has been developed during the marriage, its community property interest must be dealt with in the divorce.
The most difficult and time-consuming aspect in determining the value of a business or professional practice is in evaluation of "goodwill." This intangible value that most businesses have is based on the expectation of future business, due to an established name or reputation. If the business or practice is operated by one of the spouses, it still has a goodwill value, even if it could not be sold on the open market.
Q: How do courts handle the family residence?
A: Where minor children are involved, it is common for the custodial parent to be allowed to live in the residence with the children for a specified period of time after the Dissolution of Marriage is finalized.
During that period of time, the spouse who lives in the home is usually required to make all mortgage, property tax and homeowner insurance payments when due.
Q: How do the courts handle educational degrees and professional licenses acquired during the marriage?
A: In California, where a spouse has earned a college degree or a professional license, the community estate is entitled to be reimbursed for the costs of acquiring the degree or license. These costs are normally limited to such things as tuition, fees and books. Unlike in other states, the law in California does not give the other spouse any right to a percentage of the enhanced earning ability of the spouse who acquired the degree or license.
Child Support FAQs
Q: How is child support determined in California?
A: In 1984 the California Legislature enacted the Agnos Minimum Child Support Standards Act. This law established minimum levels of child support and required the courts to establish Guidelines for awards of child support above the statutory minimums.
Child support guideline calculation depends on:
- How much money the parents earn or can earn.
- How much other income each parent receives.
- How many children these parents have together.
- How much time each parent spends with their children.
- The actual tax filing status of each parent.
- Support of children from other relationships.
- Health insurance expenses.
- Mandatory union dues.
- Mandatory retirement contributions.
- The cost of sharing daycare and uninsured health-care costs.
- Other factors, such as travel for visitation, educational expenses and other special needs.
It should be understood that in the vast majority of cases, the court orders child support above the minimum level, as determined by Child Support Guidelines.
Q: How long is child support supposed to be paid?
A: Child support must be paid until the child becomes 18, unless the child has not graduated from high school. If the child has not graduated high school the child support continues until the child has graduated high school or becomes 19, which ever occurs first.
Presently, the law does not give judges the power to make a parent support a child beyond the age of 19, unless the child is physically or mentally disabled. However, the parents can agree that child support is to continue into the college years, and the Family Law Court will enforce such an agreement.
Q: How is child support supposed to be paid?
A: Unless the custodial parent agrees otherwise, all child support is to be paid by a wage assignment. This means that the child support payments are to be deducted from the wages of the parent who is obligated to pay child support.
Q: Can I get child support for the time before the child support order?
A: If you do not receive public assistance, you may get child support from the day that you filed your case asking for child support. To get support from this date, the other parent must be served within three months after you file your case
The judge may also award child support starting from the date of the hearing, the date the other parent was served, or another date depending on the facts in the case.
Q: Is there help for Child Support Enforcement?
A: The parent ordered to receive child support has several avenues by which he or she may have the child support orders enforced.
Q: What is the impact of a Paternity suit?
A: Paternity suits have exactly the same financial custody, visitation, holiday and move-away rules applied to them as a divorce custody matter.
Q: Who Qualifies as a Presumed Father Under California Law?
A: California 's parentage rules involve a complicated set of often conflicting presumptions.
First, if a man is both married to and cohabiting with the mother, he is conclusively presumed to be the father of a child, as long as he is not sterile or impotent. In law, a "conclusive" presumption usually means that it cannot be rebutted. This presumption actually can be rebutted, within two years of the child's birth, with blood tests showing that the husband is not the biological father of the child.
Second, a man might also be presumed to be the father of a child based on being married to, but not cohabiting with the mother at the time of the child's birth.
A father could attempt to formalize a marriage to the mother, but have it later declared invalid. This can also be done if a man receives a child into his home and openly holds out the child as his natural child.
These presumptions of fatherhood are rebuttable. They may be refuted "in an appropriate action by clear and convincing evidence" -- which, again, could include blood tests showing true biological paternity.
For the child's best interests, please speak with a licensed, experienced custody attorney when dealing with paternity issues.
Q: What is Mediation?
A: Mediation is a process in which your mediator acts as a neutral third party. The mediator will help you reach a settlement in your legal issues. The role of the mediator is to guide your discussion, explore settlement alternatives and resolve difficult conflicts.
Q: What happens in mediation?
A: Together, spouses meet with a mediator in private mediation sessions. However, mediation requires a willingness to enter into the process with good faith. Most mediations involve some discussions of likely outcomes in court. However, mediation permits consideration of and adoption of solutions that would never be imposed by Judges in a court of law. The "law" is a starting point, and not an ending point, in mediation. The mediator will inform you of the law as it pertains to your situation, including property division and the calculation of child and spousal support. The parties, with the help of the mediator, are free and empowered to develop creative solutions to their family law problems. Solutions can be "customized" to each individual situation rather than "one size fits all."
Q: What are the advantages of mediation?
- Mediation allows the parties to obtain legal information from a neutral, non-adversarial attorney.
- Mediation is typically less expensive than traditional litigation, making it affordable for most.
- Mediation reduces the fears associated with divorce or legal separation.Mediation does not require any court appearances.
- Mediation allows the parties direct involvement in the decision making process.
- Mediation allows the parties to move at a mutually agreeable pace, usually requiring less time compared to court proceedings.
- Mediation establishes a level of communication and cooperation between the parties that can be beneficial long into the future.
- Mediation assists the parties with children in transitioning from marital partners to parenting partners.
- Mediation allows for the development of a parenting plan in everyone’s best interest, especially the children.
Q: Is the mediator my attorney?
A: No. The essence of mediation is that a trained third-party neutral assists or facilitates the parties in coming to their own agreement. While a mediator is not legally required to also be an attorney, a mediator who is also an experienced family law attorney, can provide the useful information of what a judge would likely do with the facts presented during the mediation negotiations. Also, an attorney/mediator is qualified to create the Marital Settlement Agreement memorializing the parties' agreement if the case settles.
To set up your consultation, contact Robinson Sookdeo Law.