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7 Vital Points to Divorce and Division of Assets

Divorce litigation can be complex and involved, with a myriad of details to take care of and costly mistakes waiting to ensnare the unwary.  Here are seven vital points that almost every divorcing couple should consider as they go through the process of dissolving their marriage.

  1. Agreement or Trial?

If you and your spouse can still discuss things, and can agree on many of the issues in your divorce, then you are very likely to be able to agree on the issues outside of court, avoiding trial.  If you can do this, you are very likely avoid most of the expense associated with a litigated divorce.  Additionally, couples who have been married less than five years, and who have no children, no real estate, no significant assets or debts, and who both agree to waive spousal support may choose to seek what is known as a Summary Dissolution.  In a summary dissolution, one party can fill out all the paperwork, have the other party sign it then file it with the court, along with the required court fees, and your divorce can be done without ever having a hearing.  If you do not qualify for a summary dissolution, couples can still draft an out-of-court agreement called the stipulated judgment, and still avoid the stress and hassle of trial.  A mediator (Family Law Attorney Mediator) may also be a great option for couples that are still able to communicate and may be able to help you to reach an agreement if there are a few issues that you are unable to resolve completely, or if you are simply unable to negotiate a settlement with your spouse.

 

  1. Time Frame:

California law allows judgment to enter on a divorce at any time, but does not allow a dissolution of marriage to take effect until six months and one day has passed after service of process.  That means, after your divorce is filed and you properly serve the other party.  If you and your ex-spouse are still negotiating or litigating property division or other issues after that time, your divorce will be final when the judge signs your final judgment.  A judgment is a document prepared by either or both of the parties, or their counsel, which explains all of the details of the divorce. A judgment will include custody and visitation orders, child support and spousal support orders, division of all community property including furniture, cars, retirement accounts, real estate and all other property owned by the parties.

 

  1. Child Custody

Any custody order will need to assign both physical and legal custody of the children.  It is very common that physical and legal custody are shared jointly by the parties.  However, even if one party has sole physical custody, they are likely to share joint legal custody.   Legal custody is that right that allows the parents to make all decisions regarding health, education and welfare of the children.  More specifically, it means that both parents will have a voice in decisions regarding education, medical care, psychological care, whether a child can get a driver license, signing up for a child’s passport, and most other serious issues regarding the children.  While physical custody is usually spelled out in a parenting plan that sets forth the time each parent can expect to have physical custody of their children, judgments usually just state that the parties will share joint legal custody.  One last bit of information on the physical custody issue; recent case law states that if one parent has greater than 72% visitation, that parent has sole physical custody, no matter what the custody orders or judgment reads. A parent with sole physical custody has a presumed right to move the children, even out of the county for the state.  Therefore, it is best that the lower timeshare parent have more than 28% visitation.  If so, both parents are said to have joint physical custody, and there is no presumed right to move the children’s residence.

 

  1. Child Support

Once the custodial timeshare is established, child support is calculated using established guidelines based mainly upon the respective incomes of the parents and their allocated custodial timeshare.  Child support is normally paid by the non-primary-custodial parent to the primary custodial parent with the goal of allowing the children to be raised in similar comfort to that which they enjoyed during the marriage.  But, this is not always true.  Take for example these facts, imagine a mother having 40% timeshare and the father having 60%. For example purposes let’s say mother has a full-time job and earns $32,000 per year.  Now, let’s presume father owns a small business which does not require a lot of his time or attention and he earns $250,000 per year.  Even though father has the greater timeshare, with his income, he will definitely be paying child support to the mother. The reason for this is that the children of the parties get to share in the station in life of both parents.  Clearly in this case the father’s lifestyle is in a higher station of life than mothers.  We see this kind of example in athletes, actors and business owners quite frequently.

 

  1. Spousal Support

Spousal support, also known in some states as alimony, is a trickier issue.  Spousal support is paid by the larger wage earner to the lower wage earner.  In California, it is almost automatic if it is asked for.  There is one important rule that you must understand before you even start thinking about who will pay spousal support and how much they will pay.  The preliminary question is how long was your marriage?  If your marriage was longer than 10 years, your marriage is said to have been a marriage of “long duration”.  If your marriage was longer than 10 years, spousal support will be paid for a considerably longer time than in a short-term marriage.  In short-term marriages, although it is not set in stone, the general rule is that spousal support is paid for half the length of the marriage.  For example if you are married for eight years, it is customary for the court to order spousal support to be paid for four years.  Keep in mind, if the receiving spouse is in ill health or is otherwise unable to earn income or make a living, the court may very well order spousal support to be paid longer than half the length of the marriage in marriages of short duration.

 

For marriages lasting longer than 10 years, long-term marriages, the law says that the judge “shall” take into consideration all of the Family Code § 4320 before making a long-term spousal support order.   Also, as a side note, the courts call these permanent spousal support orders, but that does not mean forever, it simply means indefinite which means to say that the court will not place a termination date on that spousal support order on a long-term marriage.  One party or the other is going to have to go back into court years later to ask the court to terminate the spousal support orders.  In order to get the court to terminate spousal support orders that party is going to have to prove that there is a significant change of circumstances since the spousal support order was put in place.  That significant change of circumstances is usually that the receiving spouse now earns considerably more money than they did at the time a marriage such that they are now able to support themselves at the level they enjoyed during the marriage.  Or, the court may terminate spousal support, or reduce it greatly, when the payor’s income drops significantly, such as after retirement.

 

  1. Community Property

California is a community property state which means the state presumes that all property, real property or personal property, is community property if it was obtained after the data marriage and before the data separation.  The court has a duty to divide community property equally between the parties unless the parties have an agreement to divide it otherwise.  Community property includes money or value earned in the form of cash, furniture, boats and cars, pensions, stock options, retirement accounts, real estate and all other types of property.

 

  1. Separate Property

Separate property defined as property owned by one of the parties before the date of marriage, obtained during the marriage by way of gift, inheritance and property obtained after the data separation.  Separate property is owned and always retained by the individual who owns it.  You never automatically have to give half of your separate property to the other party in a divorce.  For example, if you own a car with no payments before you got married, that car will remain your car even after the marriage.  Also, rents or other income on separate property is also the separate property of the owner of that property.  The reader should be aware that real estate can be considerably more complicated as a result of making payments on that real estate after you get married.  If you or your spouse owned real estate before you got married, but continue to make payments on that real estate after you got married, there will be complications.  One complication comes from making payments on your separate property from money that is earned during the marriage.  You may remember from above, money that you earn during the marriage is community property.  Therefore, you are making payments on your separate property with the use of community property funds.  This adds a complication, although not so complex that we can’t still determine the value that belongs to each party.  However, we suggest you call us or another attorney to discuss the details of your real estate issues before you file divorce.

 

Debts work similarly.  Debt incurred before the date of marriage or debt incurred after the date of separation are the separate debt of the party that incurred that debt.  Student loans are a little trickier.  If you encourage student loans just before your marriage or just after your marriage, and you were married for more than 10 years, though student loans are likely to be determined to be community property. This is because there is a presumption that the community benefited by that education, and as such, the community should be responsible for paying back the debt.  However, if you were married for less than 10 years the court is much less likely to make that order which would mean that the person incurring the school loan debt would be solely responsible for that debt.

 

As you can see, there are some very technical issues and arguments regarding custody, visitation, child support, spousal support and all property division.  It is always best to consult with an experienced family law attorney before you file for divorce.  That family law attorney, will be able to guide you through the many points of possible contention.  In Orange County, the Family Law attorneys of Pinkham & Associates stand ready to help you whether you choose litigate, mediate, draft an agreement with you and your spouse, or simply provide legal advice on the side.  Contact us today for a free consultation.