A. About Divorce and Property Division
1. What is the basic divorce process?
One spouse files a “Petition” to dissolve the marriage. The Petition, along with an additional paper called a “Summons”, is served on the other spouse by having the papers handed personally by a professional process server or other adult. A document called a “proof of service” is then filed with the Court.
The served spouse then has thirty days to file a “Response” with the Court and serve a copy of it by mail on the Petitioner.
Both the Petition and the Response set out the grounds for the divorce (called a marital dissolution in California) and the general relief sought by each party in the form of support, property division and child custody.
2. Who can file for a dissolution of marriage in California?
A resident of California for the past six months may file for a divorce in California. To file in a particular county, the person filing must have been a resident in that county for the past three months.
3. What happens after the Petition and Response are served?
The parties then exchange documents called “Declarations of Disclosure.” These Declarations include complete lists of property owned by each party, both community and separate property, and an accounting of the parties’ incomes.
Frequently, additional information is needed after the Declarations of Disclosure are exchanged. This information is requested in a process called “Discovery.” During Discovery, the parties have the opportunity to request from each other documentation concerning the assets and debts of the parties to determine how the property should be divided in the dissolution. The parties may also obtain more information about income which will assist in determining support. This is particularly true when one spouse runs his or her own business and is not just receiving a simple salary from a third party.
In cases where a business is owned in part or in whole by one spouse, it is frequently necessary to employ an expert either jointly or by each party to determine income available for support so that support calculations can be made.
4. How long from filing until I will be divorced?
California law provides a minimum of six (6) months from the date of filing until a Judgment of dissolution of marriage can be entered. Most dissolution actions take from one to two years to complete if there are property, support and child custody-related matters involved. If there are no children, minimal property and no support issue raised, it is possible to use a “summary” procedure, which is designed to be both easy and quick. If there are very complicated financial or custody issues, a final judgment may take longer to enter.
5. Do I have to go to Court?
Most cases are settled without a trial. Some cases require a hearing to determine initial support and custody, but not all. Settlement of all issues is encouraged by the Family Code and most attorneys will try to settle short of going to Court in the case of a lack of agreement on the temporary issues.
Sometimes a trial is necessary to finalize a divorce. In that case, often some issues can be settled and only certain issues go to trial. This shortens the trial, makes it easier to prepare for trial, and therefore less expensive for the parties.
6. Can I obtain orders before my divorce is final?
Once a Petition is filed, a party to a dissolution action can file a proceeding called an Order to Show Cause seeking child support, spousal support, child custody, attorneys fees and certain restraining orders to protect assets from being taken or used by one spouse. You can also obtain restraining orders to protect a party or children from physical harm.
For spousal and child support and attorneys fees, it is necessary to disclose financial information for both parties by filing a document called an Income and Expense Declaration. For custody issues, the parties submit written documents under penalty of perjury describing the issues raised in custody. Normally, but not always, the Court will make a temporary custody decision based on written documents but sometimes the Court will hear testimony before making temporary orders pending dissolution.
7. How is community property divided?
Community property, both debts and assets, is divided equally between the parties. Determining which property is community property and which property is separate property is sometimes complicated, and if an estate is substantial often requires the assistance of a forensic accountant, hired either jointly by the parties or separately by each party.
Property by law is valued on the date of trial, with some exceptions. The most common exception is a business run by just one spouse. In that case, the business may be valued at the date of separation rather than the date of trial.
8. Can I get divorced before the property issues are resolved?
It is possible to “bifurcate” your dissolution action and enter a Judgment of Dissolution as to marital status before all of the issues in your case are resolved. This permits the parties to remarry before property is divided, support is established or child custody issues are fully resolved.
Bifurcation requires that either the parties agree or the party seeking the bifurcation go to the Court on a Motion seeking the end of the status of marriage. These Motions are usually granted absent extraordinary circumstances.
9. What is community property and how is it different from other property?
Community property is all property, including savings accounts and investment accounts as well as real and other property, which is acquired during marriage by earnings or efforts of either party or as a gift to both parties from someone outside the marriage. Community property also includes debt incurred during marriage by either party for any purpose with a few exceptions like for a purpose which was adverse to the interests of the other party or the family.
If a business is started during marriage, the entire business would be considered community property. If a business is started before marriage but grows during marriage, part of it may be community and the amount of the community interest will be determined during the dissolution process.
Property which is not community property is considered “separate property.” Separate property is all property belonging to just one party either because it was earned before marriage or after separation, gifted to just one party, inherited by just one party or earned during marriage with a contract between the parties which provides that there will be no community property. All earnings or accumulations, like interest, on separate property is also separate property even if the interest is earned during marriage.
10. Who pays attorneys fees?
California law provides that the payment of attorneys fees is based on relative need and the ability to pay; that is, the party who is more capable of paying should cover some of the fees of the other party. It is entirely in the Court’s discretion to award attorneys fees, and attorney fee awards vary widely between judicial officers.
11. Once a divorce is final, do the terms ever change?
Certain aspects of a dissolution are always modifiable: child support and child custody can always be changed or “modified” by the Court, although to do so the party who is seeking to change must show that his or her circumstances have changed justifying the modification. Spousal support may also be modifiable based on a change of circumstances unless a Judgment specifically says it is not.
Property aspects of a dissolution action are ordinarily not subject to modification unless there is an asset omitted from the Judgment because it was not disclosed or the Court specifically retains jurisdiction in the Judgment to change terms in the future.
Back to TopB. About Child Support
1. How is child support determined?
Child support is determined based on an algebraic formula set out in the Family Code as enacted by the California legislature. It considers the income of each parent, the amount of time the child spends with each parent and the tax deductions for each parent. Other factors considered are mandatory pension contributions, union dues and health insurance payments. The formula is almost always calculated by one of several computer programs which determines the “net” income of each party available to pay child support, considers the parental timeshare and then determines the amount of child support owed usually by the higher earning parent.
Child care and health care costs not covered by insurance are usually paid equally between the parties.
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C. About Spousal Support
1. How is spousal support determined?
On a temporary basis, before trial, spousal support is determined based on the basic standard of living of the marriage and the amount of money earned by the parties. The Court will attempt to maintain the “status quo” during the pendency of the dissolution action.
Permanent spousal support is based on a large number of factors including each spouse’s earning capacity, the assets and obligations of each party, the amount of time spent by one spouse out of the workplace for the benefit of the community, the age and health of the parties and the standard of living of the marriage. Other factors may include the amount of time a non-working spouse needs to be re-trained.
Permanent spousal support for a short marriage (less than 10 years) usually lasts one-half the length of the marriage, although the Court has discretion to make the period longer or shorter based on particular issues presented. There is a general expectation that the supported spouse should make efforts to become self-supporting following the dissolution of marriage, and this is expectation is made a part of the Family Code.
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D. About Child Custody
1. How is child custody determined?
The Court must make all decisions about custody in the “best interests” of the children. This almost always involves orders providing for “frequent and continuing” contact between the children and both parents.
There are two kinds of custody: legal and physical.
Legal custody is the decision-making authority for issues like health, education, driving licenses. Physical custody is the parental timeshare which divides the child’s time between two parents and two homes.
“Joint” legal custody means that the parents make certain decisions together and certain decisions alone when the child is in that parent’s care. The joint decisions usually involve the child’s health, education and extra-curricular activities and are spelled out in the Judgment or court order.
“Sole” legal custody means that only one parent makes all decisions about the child’s health, education and welfare, but the parents should still discuss the issues together even if one parent has sole ultimate authority.
“Joint” physical custody means that both parents have substantial periods of time with the child. “Sole” physical custody means that one parent has most of the time with the child and the other parent has “visitation”, usually more limited time.
If custody issues are brought before a judge, he or she will consider how the child has spent his or her time in the past, but the judge is not bound by the “status quo.” The Court makes its custody decision based on the “best interests” of the child.
Courts prefer that parents, not courts, work out custody arrangements. It is mandatory under California law for the parties to go to Conciliation Court to try to reach agreement through mediation before proceeding to a hearing on custody. In Los Angeles County, unlike many California counties, the mediation is confidential and no report is made to the Court by the mediator. The mediation services of the Court are free to the parties.
2. What is a child custody evaluation?
When the parties cannot decide on a custody schedule in the best interests of the minor child, a court often orders an investigation by a social worker or a psychologist who acts as the Court’s expert. The psychologist will meet with both parties together and each party alone with the child to determine the schedule in the best interests of the child. If it is a psychological evaluation, the psychologist will also do testing of the parties.
Los Angeles County has an Office of Child Custody Evaluations where the child custody evaluations, which do not include psychological testing, are more reasonably priced that the evaluations with private psychologists who perform a more detailed, in depth analysis. The choice of the type of evaluation will depend on the allegations made by the parties and the resources available to hire a forensic expert.
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E. About Mediation
1. What is mediation?
Mediation is the process where parties who would like a dissolution of their marriage meet with another individual to work out the terms of their divorce in a non-confrontational and amicable way. Usually, the mediator is an experienced family attorney who can familiarize the parties with their rights under the law so that they can make an informed decision about the terms of their dissolution judgment. Sometimes, a psychologist or other person may act as a mediator.
2. How does mediation work?
The parties meet with the mediator who gathers information about the parties’ assets, obligations, child custody issues and income. The mediator usually prepares a Petition on behalf of one party representing himself or herself and files it with the Court to start the legal proceeding so the parties can get divorced. The mediator helps the parties prepare Declarations of Disclosure, disclosing all of their assets and obligations.
The parties meet several times to discuss the issues of property division, child support, child support and child custody. The mediator works to help the parties reach agreement on issues which are contested. This may take a few or many sessions.
At the end of a mediation, the agreements reached are written up into a settlement agreement and made into a Judgment of Dissolution. Each party then has his or her own attorney review the agreement before it is sent to Court. Sometimes changes are made after the attorneys have reviewed the Judgment.
3. What are the advantages to mediation?
Mediation is considerably less expensive and less stressful than any court proceeding if the parties can effectively communicate. It permits the parties to discuss issues and reach agreement which is a mutual process and reduces conflict and stress. Mediation allows for as much time as necessary to consider issues before committing to a particular outcome. Mediation is non-adversarial. One benefit is that if the parties have children, it facilitates co-parenting in the future.
4. What happens in mediation if we don’t agree?
Usually, the parties can agree to some even if not to all issues. Mediation may reduce the number of issues that the parties bring to litigation. Mediation may also clarify the areas of disagreement, provide information to the parties and prepare the parties realistically for moving the case from an informal mediation setting to a courtroom. It is not usual that issues which are not resolved through mediation at the outset are resolved with the passage of time.
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F. About Collaborative Divorce
1. What is collaborative divorce?
Collaborative divorce is a process where the parties each retain an attorney to start a dissolution of their marriage. The parties and the attorneys both agree, and sign an contract, that if the case does not settle without going to Court, the parties must retain new counsel to proceed with a court action. This requires that the parties and attorneys commit to working through the issues presented in a divorce without resorting to litigation.
2. How does collaborative divorce work?
The parties and counsel meet to establish areas of agreement and disagreement on issues of property division, support and child custody. The counsel and parties retain joint experts to perform specific tasks like a child custody evaluation to determine a custody schedule in the best interests of the minor children or a forensic accountant to do a business valuation to determine the value of a community property business or the community property interest in a separate property business.
All of the work is done jointly, in an effort to reach agreement on the issues. If an impasse is reached, the parties try to problem solve with the help of experts.
3. Is collaborative divorce expensive?
It is usually less expensive to resolve a dissolution case through collaborative divorce than through litigation. It can be more expensive than mediation, however, since there are two attorneys involved from the outset as well as experts who prepare reports for the attorneys to use. Collaborative divorce can take some time, as it is process where the parties usually reach agreement over time with the help of the divorce professionals.
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G. About Domestic Partnerships
1. How are Domestic Partnerships Terminated in California?
In California, domestic partnerships registered under the California Declaration of Domestic Partnership, are subject to California divorce law, as described in the divorce section, above.
Domestic partners are eligible for community property, spousal support, child support, child custody awards and legal proceedings are handled like dissolutions between spouses of opposite gender. California laws are deemed to apply to a domestic partnership from the date of partnership registration with the State of California.
2. Are there Unique Aspects to Domestic Partnership Termination in California?
As the laws concerning domestic partnerships are still relatively recent, it will take some time to develop. One area of difficulty is that federal tax law is not applicable to awards of spousal support or property division. This means that if spousal support is awarded it is not deductible to a paying party on federal income tax returns, nor is the transfer of property incident to a domestic partnership termination necessarily devoid of tax consequences under federal law.
It is therefore critical that a domestic partnership dissolution also include business, tax and estate planning ramifications when determining support or property division. At Kleeman•Kremen Family Lawyers we are well versed in tax and business aspects of marital and domestic partnership dissolution. We will work with you and your other professional advisors, accountants and investment advisors, to assure you are adequately protected in the dissolution process.
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H. About Parentage Actions
1. What is a paternity or parentage action?
A parentage action is a legal proceeding to establish parental rights on behalf of an unmarried parent when the parties were not married, are not divorced and were not domestic partners.
Initially, the Court will decide whether the parent suing for parental rights is the parent. This is often not in dispute, particularly if the father has signed a Voluntary Declaration of Paternity in the hospital. But if paternity is disputed, genetic testing is often ordered to confirm parentage.
There are certain legal presumptions which may apply to determine parentage of a non-biological party, for example, when a party is married to the parent of a child or when a party has held himself out as the parent of a child.
2. What issues are decided in a parentage action:
Once parentage is established, the Court makes orders regarding child support and child custody, including both legal and physical custody of the minor child.
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I. About Premarital Agreements
1. What is a Premarital Agreement?
A premarital agreement is a written agreement entered into by a couple before they marry or register as domestic partners. The agreement defines the economic aspects of their relationship using private choice, rather than the “default” rules of state law. Many rules that apply automatically when a couple marries - such as the rule that earnings during marriage and domestic partnerships are jointly owned, community property - can be varied by written agreement.
2. What are Typical Premarital Agreement Provisions?
The following matters are often addressed in Premarital Agreements:
- Ownership of Earnings and Benefits Acquired During Marriage and Domestic Partnerships
- Ownership and Use of the Marital Home
- Ownership and Management of a Business
- Ownership and Management of Investments
- Payment Responsibility for Debts and taxes
- Gift Giving
- Planning for Property Rights After the Death of One Spouse
- Spousal Support Upon Divorce
Matters concerning children - both child support and child custody - cannot be the subject of Premarital Agreements.
3. What Formalities Are Required for Agreements to be Valid?
California law sets forth specific requirements that should be followed to assure a Premarital Agreement is valid and enforceable on death or divorce. There are requirements for attorney advice, financial disclosure, waiting periods, and requirements for translating agreements for foreign speaking parties. These formalities are designed to make sure agreements are voluntary. They also help assure that both parties to an agreement understand the legal rights and responsibilities that would apply to them in the absence of a premarital agreement, and those rights and responsibilities the parties are accepting under the terms of the premarital agreement.
4. Can Couples Make Agreements After Marriage?
Couples can enter into agreements after marriage comparable to Premarital Agreements. These are commonly referred to as “Postmarital Agreements.” With Postmarital Agreements, it is particularly important that each spouse disclose the full nature and extent of his/her assets and debts. Married individuals are in a “confidential” relationship under the law, and cannot take financial advantage of each other. For this reason, it is important that both parties understand the full nature and extent of any property and support rights and obligations they are changing through their Postmarital Agreement.
5. Can Unmarried Partners Make Agreements?
Unmarried partners can enter into agreements concerning their property and support rights, just as married couples can. However, the law pertaining to unmarried partners is different from the law pertaining to married partners, and, therefore, the terms of agreements involving unmarried partners differ from the terms commonly found in premarital agreements. Agreements for unmarried partners are often referred to as “Cohabitation Agreements.”
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