family law, Legal

How Long Will It Take to Get a Divorce?Legal Reasons #56

The biggest factor in determining how long a divorce process lasts is the level of cooperation that can be expected, a divorce proceeding can take between six to eighteen months to be resolved. If the divorce is high-conflict with lots of different issues involved, then the proceedings can take as long as five years to be resolved. Simple cases where no children are involved and there is little conflict between spouses can be resolved in as few as six months.

Beyond that explanation, this becomes a complicated question to answer. First, California has a 6 month waiting period, which begins from the time a divorce has “begun” to the first date at which a divorce can become “final.” This is the earliest date on which a married couple can be returned to a status of “single.” But that does not mean that the agreements encompassed in a divorce need to wait that long. Agreements can be reached and documents can be prepared formalizing the divorce agreement. With the proper help and formalities, the documents can even be filed with the court before the 6 month waiting period has lapsed. Then you simply wait for the minimum waiting period to pass.

CAN MY SPOUSE STOP ME FROM GETTING A DIVORCE?

No. California is a “No Fault” state, which means that either spouse may file for divorce at any time, for any reason. If the other spouse does not wish to proceed with divorce proceedings and ignores the petition filed in court, then the filing party can take steps to obtain a default judgment of dissolution of marriage.

family law, Legal

What to Know About Spousal Support: Legal Reasons #54

How Long Will I Pay or Receive Spousal Support?

  • The length of spousal support is based on a reasonable transition period from married life to single and self-sufficient life.
  • The duration of support depends on in part on the length of the marriage. For marriages lasting less than ten years, the length of support is presumed to be equal to one-half of the time. For example, for a marriage that lasted eight years, the presumption is that the appropriate length of support is four years.
  • If you are married for longer than 10 years, the lesser earning spouse will receive support for as long as he or she needs to, as long as the other spouse is able to pay. There is no automatic termination date.

How Much Spousal Support Will be Ordered?

  • In California, the Superior Courts of Solano counties have adopted a spousal support guideline called the “Santa Clara Guideline” formula for use in temporary spousal support. Alameda and Contra Costa counties have adopted the “Alameda Guideline” formula. The guideline states that the paying spouse’s support be presumptively 40% of his or her net monthly income, reduced by one-half of the receiving spouse’s net monthly income. If child support is an issue, spousal support is calculated after child support is calculated.
  • Deciding permanent support is a much more detailed process with many factors to be considered. Family Code Section 4320 is the controlling statute that the court must consider in establishing permanent spousal support.
family law, Legal

How Spousal Support is Decided in California: Legal Reason’s #52

California state law dictates that permanent spousal support is determined by carefully reviewing numerous factors. The court has tremendous discretion in setting alimony. If you are unable to settle or resolve this issue, then your attorney needs to develop detailed evidence about each factor set forth below.

The Amount of Spousal Support Expected in a California Divorce

The controlling statute that the court must consider in establishing permanent spousal support states the following:

4320. In ordering spousal support under this part, the court shall consider all of the following circumstances:

(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:

(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.

(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.

(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.

(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.

(d) The needs of each party based on the standard of living established during the marriage.

(e) The obligations and assets, including the separate property, of each party.

(f) The duration of the marriage.

(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.

(h) The age and health of the parties

(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.

(j) The immediate and specific tax consequences to each party.

(k) The balance of the hardships to each party.

(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.

(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.

(n) Any other factors the court determines are just and equitable.

“The duration of spousal support is left to the discretion of the court within certain general equitable principals and guidelines.”

family law, Legal

When To Modify A Custody, or Visitation Order: Legal Reasons #52

When Can You File for a Modification of Child Custody Orders?

You may seek a modification of child custody and visitation orders at any time.  The court may find a visitation and/or child custody order modification “necessary or proper” if it’s in the child’s best interest [Ca Fam § 3022].  The parent who seeks the child custody modification will need to show the court a “significant change of circumstances” to support the modification request.

As a practical matter, many parents seek to change custody and have their request granted without showing a significant change of circumstances, or they or their attorneys create such a change of circumstances to justify their request.

Some Common Reasons for Seeking a Change of Custody Include:

  • The non-custodial parent’s work schedule changed
  • The non-custodial parent moved closer to the other parent
  • Child’s preference-the child desired to live with or spend more time with the non-custodial parent
  • One parent is being an irresponsible parent-not getting child to school on time or doing poorly in school, substance abuse issues, etc.
  • A parent seeks relocation outside of the geographic area where the child has resided, called a “move away case”

If you believe that your child should be spending more time with you and less with the other parent, consult with your attorney to explore your options.

family law, Legal

When Can Separate Property Become Community Property? Legal Reasons #51

There is a strong presumption under California law that assets and debts a couple accumulates during marriage are community property. Property one spouse owned alone before the marriage, or acquired by gift or inheritance during the marriage, is that spouse’s separate property. Separate property also generally includes items purchased with or exchanged for separate property, earnings on separate property, and any increase in value of separate property, as long as the property owner can prove the claim with financial records or other documents.

California law also provides that property spouses acquire before divorce but after the date of separation is separate property. The date of separation is not necessarily the date one spouse moves out of the marital home. Instead, it is the date that one spouse decides to end the marriage, and it requires some act of physical separation combined with other actions clearly demonstrating that the spouse has decided to end the marriage.

The date of separation can become a big issue if just before the divorce one spouse either earned an unusual amount of money—got a large bonus at work or won the lottery, for example—or spent a significant amount of money. If the couple can’t agree on a date, a court will decide after considering all of the evidence. Courts usually lean toward later rather than earlier dates when evidence conflicts, so that more property is included as community property, rather than less.

A couple can agree either before or during marriage to change an asset that was originally separate property into community property, or vice versa. Such agreements must be in writing and must clearly state the intentions of the parties; simply changing the title of the property is not enough.

Sometimes a spouse changes a separate asset into a community asset without meaning to by combining—or “commingling”—separate property with marital property. A premarital bank account belonging to one spouse can become marital property if the other spouse makes deposits to it; a house owned by one spouse alone can become marital property (either in whole or in part) if both spouses pay the mortgage and other expenses.

Many types of assets can be partially community and partially separate, including retirement accounts one spouse contributed to both before and after the marriage, or a business one spouse started before marriage and continued operating after marriage.

Distinguishing community property from separate property can become very complicated, especially if one spouse owns a business or other asset to which the other contributed labor or funds during the marriage. If you have a complex property situation, you may need to consult an attorney for advice. Spouses who can’t decide what belongs to whom will have to let a court decide whether commingled property was a gift to the marriage or whether the original owner should be reimbursed in whole or in part.

family law, Legal

Divorce and Real Estate Part 1: Legal Reasons #59

How is California community property divided?

Many think  you would have to divide each physical object equally.  All that the law requires is 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, as long as each spouse gets assets that are equivalent in value. 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, including a business that one spouse owned before marriage and both spouses worked on during the marriage, or property that belonged to one spouse before marriage but was shared during the relationship.

What about a closely held business or professional practice?

Like any other asset, 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, there is a community property interest that must be dealt with in the dissolution. The most difficult and time-consuming aspect of determining the value of a business or professional practice is in evaluation of “goodwill.” This is the intangible value that most businesses have, which is based on the expectation of future business, based on established name or reputation. If the business or practice is operated by one of the spouses, it has a goodwill value even if it could not be sold on the open market.

Often, a business person or professional will say, “How can there be any goodwill . . . if I stop working, the office does not make any money?” The law’s answer is that the goodwill of a business or professional practice is valued as a “going concern.” That is, the law assumes that the business will continue operating and will not lose any customers that would otherwise have been lost if it were sold to another owner.Certified public accountant and business appraisers are hired to determine the value of a business or professional practice. The accountant or appraiser who is hired reviews the books and records of the business or practice and prepares a written report.