Divorce is the most common of family law matters and arguably one of the most difficult for all involved. Under this umbrella heading, it consists of the actual Dissolution of Marriage (the termination of the status of the relaltionship) and most often resolution of related issues concerning child custody, child support, spousal support, and the division of community property and separate property. From the date of service of the initial pleadings it will take at least 6 months to terminate status. The other related issues may be finalized before that time.
“To know whether or not this type of action is the appropriate one to take at any particular point in time, requires at the least a cursory examination of the facts.”
Many couples who no longer wish to live together as husband and wife will opt for a judgment of legal separation. The status of the marriage is still in tact but other related issues can be finalized as they would be in a divorce action. Often certain benefits afforded only to married couples can remain in place such as filing joint income tax returns, continued health insurance coverage, and various probate options. One condition of a Legal Separation is that both parties must agree to it otherwise the action will convert to a divorce
“Just as with a divorce action, an initial examination of the facts, objectives, and circumstances of the parties is essential before anything is filing for legal separation is made.”
Less often, a marriage will not actually be legal in the first place and can be deemed void by the court or voidable by one or both parties. Situations where one of the parties is already married to another, where one is under legal age to marry, where one is of unsound mind, or where the marriage was entered into by reason of fraud, are such examples.
“The potential legal consequences of this type of filing should be clearly understood before any allegations are filed with the court.”
Whether parents are going through a divorce proceeding or other termination of their relationship, children in California are entitled to financial support from both parents. California has devised a rather complicated formula for the calculation of what appropriate support for any child is to be: so complicated that it requires the help of a computer program to do so. The applicable factual information is entered into the program for each parent and the resulting amount is called “Guideline” support. Except for the express agreement of the parties to a different amount, or a specific findings by the court due to particular circumstances, for the court to deviate from Guideline, would be, as one Sonoma County judge liked to say, like asking water to run uphill.
“While the program is available to the public online, what facts and how the facts are entered into the computer make all the difference in the resulting amount.”
Similarly to issues regarding child custody, the award of temporary spousal support or post-judgment spousal support is largely subject to the broad discretion of the court. Temporary spousal support is usually awarded consistent with the amount reflected in the computer report that calculated child support, i.e., Dissomaster or Xspouse, but the court has the power to deviate from the “Guideline” amount. For post-judgment spousal support, the court is not allowed to use the computer program to set the amount, but rather must make findings in accordance with a long list of criteria as set forth in Family Code §4320.
“It is far better for the parties to settle upon an amount and duration of any post-judgment spousal support payable than to leave it to the possible biases of just one person.”
Complex Property Division
California is a community property state meaning that assets and debts “acquired” during the marriage are by law to be divided 50/50. There are exceptions to this general rule however, such as if the asset and debt is established to be the separate property of the acquiring party. If the asset or debt was actually acquired before marriage or after separation (the date when at least one party was of the mind that they were no longer living with their spouse as husband or wife), or when the asset or debt can be directly proved by tracing to an asset/debt existing before marriage. Another example is when the nature of the asset or debt is of such an emotional or personal nature that valuation and usual division methods do not apply: i/e. who gets the dog; who gets the baby’s portrait; who pays for what. And in some cases the nature of the asset or debt is so complex, it requires extraordinary means to determine its value or character (community vs separate): expert business evaluations, expert tracing of financial accounts, expert valuations of stocks and other such investments.
“High asset and other types of complex property division cases can be very expensive – to negotiate and especially to litigate. The best and least expensive way to resolve them is for the parties to reach a compromise with the help of skilled counsel who can assess the facts and realities and focus them towards a settlement they each can live with.”
These type of agreements are for couples who are contemplating marriage to each other and want to preserve the separate property character of their property, to direct the character and disposition of any otherwise deemed “community property” acquired during the marriage, and to specify the payment of support and/or legal fees in the event of a dissolution of marriage. They are not wills which direct what happens to money and other property upon one’s death.
After parties are already married, they may wish to change the character and ultimate disposition of their assets and debts in the event of a dissolution of marriage that would be contrary to the laws in the state in which they live. The Nuptial agreement is used to do so.
Post Judgment Orders
After Judgment is filed, parties sometimes find that circumstances between them have changed significantly enough that the prior court order is no longer appropriate. These circumstances can deal with issues of child custody, the amount and/or duration of child and/or spousal support, or “executory” provisions set forth in the judgment such as a later transfer of real property or payments from an investment. Sometimes parties find it necessary to bring “enforcement” actions when the other party has breached one or more term of the judgment.
Qualified Domestic Relation Orders (QDRO’s)
These orders are federally mandated orders required to divide the community interest in retirement benefits. If not prepared during the dissolution of marriage action, they will need to be done after Judgment, preferably before the retiring party goes into pay status, if the Alternate Payee (the non-retiring party) is to receive his or her community share. The community share is usually calculated by an actuarial who can then advise as to what the separate and community interests are and/or the monthly payment amount to be expected. The actuarial then prepares the appropriate Order for filing with the court.