Divorce can range from the most simple to the most complex. But whether you have 1 child or 4, simple custody issues or a complex child custody case, a small estate or a high asset divorce, you need to first understand the basics.
We will cover the most common issues our attorneys see in their cases. Please don't hesitate to contact us if you have any questions after reading this article. Our lawyers are available to provide you with an affordable strategy session.
Child Custody and Visitation
The first and often most important issue to most divorcing couples is child custody. Child custody and visitation laws in California break up into two categories.
Legal Custody
The first is legal custody. Think of legal custody as the right to be involved in the decisions which concern your children. These decisions can involve health, safety, education and general welfare. Legal custody may be joint or sole.
- Joint legal custody is simply the sharing of this decision-making process.
- Sole legal custody in California means one parent has been designated as the decision-maker regarding these issues.
California child custody laws state a preference and default toward joint legal custody unless there is a specific reason to award one parent sole legal custody. The basis for one parent to obtain sole legal custody is discussed in the following articles:
- Joint legal custody in California - this article is all about this topic and takes you through joint legal custody laws and rights
- How to get custody as a father? Fathers stress that the family law system is a biased one. Before jumping to conclusions, read this article.
Physical Custody
The second category is physical custody and visitation, which is the right to spend time with your children. California law again defaults to joint physical custody so long as it is consistent with the children's best interest. The best interest standard is the one that pervades through all family law courts when judges are asked to make custody decisions, both at any initial hearing, trial and requests a modification.
Many factors impact physical custody and how the Court determines best interest as well as whether to award joint or sole physical custody. Here are a list of informative articles we have written on the subject of physical custody:
- How do I get child custody? This article discusses 5 critical need to know facts.
- Non custodial parent rights when the other parent alienates or makes false allegations
Child and Spousal Support
Child support is an obligation by the payor parents (often the non-custodial parent) to the payee parent. Child support is typically on a monthly basis and in a fixed amount.
Child support laws in California are designed to make child support a priority in divorce and family law cases. This includes every aspect of the child's needs although family courts generally do not break down the child's needs in great detail when determining child support. Due to the sheer number of child support cases and the complications that would arise if every child's individual needs were analyzed on a case-by-case basis, the Family Court uses a computer program to determine what child support should be in every case. This computer program determines the "guidelines for child support" which is presumed to be correct.
The factors the court and computer program take into consideration include:
- The number of children,
- Which parent will serve as head of household,
- The income (both taxable and, in certain circumstances, nontaxable) of each parent,
- Any applicable deductions and hardships (which are governed by the California Family Code),
- Childcare costs and related factors.
The child support computer program that is used most often is called Dissomaster although programs such as X-Spouse also exist. The Orange County Family Court uses the program called X-Spouse. There is little to no difference between these programs.
Spousal support is broken up into two procedural categories, temporary and the long-term spousal support order.
Temporary spousal support is also based on a computer program calculation; the same one used to determine child support. Temporary spousal support doesn't necessarily go into the more complex and involved marital lifestyle factors of Family Code 4320 (the statute designed to determine the marital standard of living) although Courts are instructed by Family Code to take those factors into consideration, even on temporary spousal support. The reality is most family law judges use only the computer program and do not venture outside of it when calculating temporary support except on select cases that merit it.
The long term spousal support, which is a bit of an oxymoron, involves evaluation of the Family Code 4320 factors. These factors are designed to analyze the marital lifestyle as well as the needs and ability to pay of each spouse.
Neither child support nor spousal support are necessarily permanent or long term. Child support can be modified anytime there is a significant change of circumstance that has taken place. Spousal support can similarly be modified upon a similar showing.
Community Property Division and Separate Property Contentions
There is a common conception that California community property law requires every asset to be split 50-50 in a divorce case and this is not correct. While assets that are community property are generally split 50-50, even community property assets can result in an unequal division.
There are numerous situations where this could occur and include situations where one spouse has separate property reimbursement claims against the community property, where California law specifically allows an unequal split (for example in cases that involve dividing personal injury damages in divorce cases), and several others.
Similar to community property law, separate property laws are not cut and dry and there are many exceptions to rule that separate property is only awarded to the spouse that owns the property. Just as it is possible that a piece of community property has a separate property component to it, it is just as possible that a piece of separate property has a community property component to it. By property, we don't just mean real property. We include any and all assets in a family law case.
Property division and what orders the court ultimately makes depend in large part on the complexity of the estate. Small to middle-class estates are far easier to resolve because there simply are not a significant amount of assets. Higher income and high asset cases can get complicated especially in family law matters where the characterization of an asset is an issue (whether it is a community or separate property) or whether one spouse has significant reimbursement claims against the other for separate property contributions toward community property. Such issues are generally too complex for a self represented person to handle. Such issues almost always require the assistance of a family law attorney to resolve.
Community and Separate Debts
Debts, like assets, first need to be characterized as community and separate property. Just like assets, there are certain situations where even a debt incurred during the marriage is 100% separate property of the spouse that incurred the debt. Similarly, there are certain situations where a debt could be both community and separate.
One example is student loans. Just because a spouse incurs student loans during the marriage does not mean that the other spouse is responsible for half the debt.
An experienced attorney is a must if you have questions regarding the characterization of assets and debts.
Attorney Fees and Costs
What you must know about the issue of attorney fees in a California divorce is that you have options. California law is designed first and foremost to bring parity (equality) between the husband and wife so that neither has an unfair spending advantage over the other. However, if you are the higher earner, that does not mean your spouse can bleed you dry and waste money on attorney fees. California Family Code 271 is designed to punish a spouse who acts unreasonably and violates California's public policy in compromise and resolution.
What is your next best move?
Our experienced divorce lawyers are ready to offer you an initial consultation and speak with you about your family law case. We know first hand that divorce cases can be stressful before they start, while they are pending, and even after they are over. Please don't hesitate to contact our attorneys after reading this article for any family law needs you may have.