PRACTICE AREAS

Divorce & Separation

divorce-puzzleWe have represented many clients in divorce proceedings and all of the issues that may arise in a divorce case. The information below is not all inclusive and divorces are very fact dependent. California is a “no fault” divorce state. That means that if one spouse wants to terminate the marriage, the other spouse cannot prevent him or her from doing so. It also means that when a judge decides the underlying issues, his or her determination will not be based on who s/he believes to have caused the break-up, or, put differently, whose conduct the judge believes to have been more culpable. California judges will not consider issues such as infidelity or undesirable behavior in the final judgment.

Grounds for a California Divorce

Irreconcilable differences or Incurable insanity. Since California divorces are not based on fault, a court will not inquire into the reasons why one party wants a divorce.

Residency Requirements

In order to file for dissolution of marriage in California, a party must have resided in the State for a minimum of six (6) months, and in the same California County for a minimum of three (3) months. People who don’t met this requirement, are not eligible to file for divorce in California.

new-life-exitLegal Separation

An alternative when residency requirements are not met. Depending upon the circumstances, a party may opt to file for legal separation until s/he meets the California residency requirement. Marital status is not terminated in a Legal Separation, however, this proceeding can be used to meet the residency requirement in some cases.

Division of Assets

divorce-scrabbleCalifornia is a Community Property State. That means that, absent certain exceptions, all property that is acquired or improved during marriage will be divided equally among the parties when the marriage is dissolved. Property that was inherited or acquired before marriage, will continue to be the separate property of the acquiring spouse. The community may be entitled to a credit for value enhancing improvements that were made to a to a spouses separate property while the parties were married. The rules regarding property division, and the exceptions thereto, can get complicated. Division of property can affect your rights in real estate, stock plans, retirement benefits, business ownership interests, and other investments.

Settlement Vs. Litigation

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Divorce can be an emotionally and financially draining time for all concerned. Thus, it is always in everyone’s best interest to try and negotiate an agreement with regards to major issues such as custody, support, and division of property. If the parties can settle most of the major issues, they can save a great deal of money and emotional energy. They also maintain control over the matter, which is usually better than leaving the final decision to an outsider, such as a Judge.

There are two types of child custody in California: Legal and Physical Custody.

Legal Custody

Legal custody is governed by California Family Code section 3003. It involves the right of the parents to make decisions regarding their children’s health, education and welfare. These decisions include the selection of the children’s doctors, the schools they attend, their religious instruction, their after school activities, and basically, any major decision involving their life. Generally, both parents are awarded joint legal custody, which means that they both have an equal say in these decisions, even if the children spend the majority of their time with only one of the parents. Where there is a showing that one of the spouses is either an unfit parent, or otherwise incapable of making decisions regarding their children’s welfare, the Court may order sole legal custody to one parent. The burden will be on the party who is making the allegations.

Physical Custody

Physical custody refers to the living arrangement of the children and is governed by California Family Code section 3004. Unlike legal custody, it is not uncommon for there to be an unequal division of physical custody. If the children spend an equal amount of time with both parents, then the parents will be deemed to have joint physical custody. If the children spend the majority of their time with one of the parents, that parent will be deemed to have primary physical custody with the other parent having visitation rights.

Modification of Custody Orders

Court ordered custody arrangements may always be modified by a showing of changed circumstances. Examples of changed circumstance include a change in a parents work schedule, a change in jobs, obligations to a new family, and relocation. A court will modify an order based on the children’s best interest.

Move Away Cases

It is not uncommon for parties to relocate outside of California for job opportunities or personal reasons. Parents always have the presumptive right to relocate to another geographical location the question is whether it is in the child’s best interest to relocate with the move away parent. Under recent case law, the non-custodial parent now has the right to challenge that decision, and to make a showing that relocation is not in the children’s best interest. The burden is on the non-custodial parent to show that relocation would constitute a significant determent to the children. Judges have the widest possible discretion to determine if the children will be allowed to move away based on several factors: 1) the age of the children, 2) their relationship with both parents, 3) the reason for the move, 4) the distance of the move, 5) the extent to which both parents have been cooperative with one another, and, 6) the children’s preference, depending upon their age.

Paternity Actions

Paternity Actions are filed in situations where parties who are parents together, never married, and one of the parents is seeking support, custody, or a determination of parentage. Either party, the mother or the father, may file a Petition to Establish Paternity. Paternity can be established with a DNA testing or statutory presumptions of paternity, for example when a father has taken a child into his home and has held the child out as his own for a certain period of time or where the father signs a voluntary declaration of paternity then there is a presumption that he is the father.

Domestic Violence

domestic-violence-symbolA party who has been found to have engaged in domestic violence is presumed to be an unfit parent. A party who is a victim of domestic violence should seek intervention from the police and the courts. The police department has the authority to arrest and remove the abuser, and to issue an emergency protective order. A court has the authority to issue a temporary restraining order, and to order the offending party out of the home, pending a hearing on a permanent injunction.

A party who believes that s/he has been wrongfully accused of domestic violence should proceed to protect his or her custody rights. Unfortunately, it is not uncommon for one parent to make false allegations of domestic violence in order to gain leverage in a family law proceeding.

Child Support

Child support orders are based on two primary factors: 1) the income of both parties, and, 2)  the amount of time each party spends with the children. Generally, the non-custodial parent, or the parent whose income is the highest, pays support to the other parent for the time period that the children are not in his or her custody.

The calculation of child support is based on a complicated algebraic formula, which is beyond the expertise of most attorneys. Thus, there are computer programs used by attorneys, known as the DissoMaster or Norton SupportTax or the Child Support Calculator used by the Department of Child Support Services which are designed to make this calculation. There are other factors used for example: one party has demonstrated hardships, or where there are statutory allowed “add-ons”.

Both parties have a statutory obligation to support their children until they reach 18 years of age or 19 years old, if the children have not yet graduated high school, and they are attending school full time. In those situations, the obligation ends once the child reaches 19 years of age, or graduates high school, whichever happens first.

Modification of Child Support Orders

Child support orders are always modifiable upon a showing of a change in circumstances. The custodial parent may seek an increase in support payments upon a showing that the non-custodial parent had a pay raise. On the other hand, the non-custodial parent may seek a decrease in court ordered child support payments upon a showing that s/he lost a job, had a decrease in pay, became disabled and unable to work, or other compelling circumstances.  In order to have court ordered support payments modified, the requesting party must go to court and request a change. The change is not automatic, a Request for Order to modify must be filed. The court may make the modification retroactive to the date of filing the modification.

Spousal Support / Alimony

wedding-ringsIn addition to child support, a California court may order that one spouse pay support to the other, both during the dissolution proceeding in order to maintain the status quo, and after the final judgment of dissolution has been entered. The duration of court ordered spousal support will depend upon the length of the marriage. Generally, if the parties have been married for less than ten (10) years, support will be ordered for one-half (½) the length of the marriage. If the parties have been married for more than ten (10) years, the court does not have jurisdiction to terminate support and may order permanent support, this is very fact dependent. Spousal support is governed by Family Code Section 4320. Thus, when ordering permanent support, a judge will look at the factors set forth in that section. These include, the standard of living during marriage, the income of both parties, the length of the marriage, the age of the parties, their health, their earning capacity, education, job skills, their assets and liabilities, and the ability of the non-earner spouse to obtain the skills necessary to become self-sufficient. As in situations involving child support, the calculation of temporary spousal support is determined by the DissoMaster, which is a computer program used by attorneys to calculate support payments based on California guidelines. However, unlike child support, the parties may agree amongst themselves to waive spousal support and the Court cannot use a computer calculation in permanent spousal support. The Internal Revenue Code provides that spousal support payments are taxable as ordinary income of the payee spouse, and are deductible by the payor spouse. In order to take advantage of the tax benefits, it is important for the parties to have enforceable court orders in place.

Prenuptial and Postnuptial

The state of California has found prenuptial, postnuptial, and cohabitation agreements to be considerably significant when both parties assent to such agreements. Commonly referred to as a “prenup,” a prenuptial agreement is a contract entered into prior to the commencement of the marriage or civil union. The most common substantive provisions include how to divide the property of the parties in the event of dissolution, spousal support, and may also include conditional provisions in the event of adultery, death, or other circumstances. Post nuptial agreements are similar in form and substance, but the difference is that the contract is formed after the parties enter into a marriage or union.

Mediation

Resolving Family Disputes through Mediation is a very common form of alternative dispute resolution in divorce cases. It’s considered to be an effective means of resolving any type of dispute that doesn’t require a third-party determination or a judicial ruling. That is one of the main reasons it is used for family law mediation issues in divorce cases. The mediator is not a judge and cannot force one party or the other to do anything different. Instead, the mediator is a neutral third party who is able to help the two disagreeing parties negotiate a settlement they can agree on.

This is called facilitative mediation, and it can be used for spousal support, child support, child custody, guardianship and other matters. If an agreement can be reached, the judge in the divorce case will often sign off on that agreement. Some cases do call for the view or opinion of the mediator, and that’s called evaluative mediation. However, it is important to remember that mediation is not binding in the same way a court order would be, and the mediator cannot force either party to accept a particular agreement.

Mediation has a structure, a timetable and an element of participation that is not seen in traditional negotiation. Mediators often use a number of techniques to improve the dialogue between disputants, with the goal of helping the parties reach an agreement that works for everyone. Success depends on the skill and training of the mediator, who must remain impartial.

Whether you’re planning to litigate, negotiate or enter divorce mediation, England Law can only benefit you and your case.

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Certified Family Law Specialist

Mrs. England is a certified by the State Bar of California’s Board of Legal Specialization as a specialist in the practice of family law. Certified family law specialists have recognized expertise in all areas of California family law including divorce, annulment, property division, child custody and visitation, child support, spousal support, domestic violence, tax consequences of divorce, settlement negotiations, and trial of disputes. Certified specialists have passed a fairly rigorous examination in family law to obtain certification and are required to take a given number of hours of instruction each year to keep their knowledge of the law current.

WHAT TO BRING TO YOUR INITIAL CONSULTATION

An initial client consultation is an opportunity for you to become acquainted with the attorneys at England Law who you may choose to represent you and to handle your case. You will obtain information about the divorce process, the law and time permitted application of the law to your facts. To maximize your time in your consultation we have provided a list of items you may consider to bring with you.

  1. Make a list of questions that are important to you.
  2. Bring your or your spouse’s first and last pay stubs of the year.
  3. Bring your last joint tax returns (if you file separate returns bring both spouses’ tax documents) or at the very least each spouse’s W-2s, 1099 for mortgage interest and real property tax statement.
  4. If you have already begun the divorce process, bring a previously prepared financial statement, or Schedule of your assets and debts.
  5. If you have not begun the dissolution process, prepare a simple, handwritten list. The assets could include such things as business interests, partnerships, investments, bank accounts, real estate, vehicles, personal property, jewelry, collectibles, life insurance, club memberships, retirement plans, etc. The debts could include mortgages, lines of credit, credit card debts, pending lawsuits, student loans, or any other debt that you are aware of.
  6. If you have been served with any court pleadings, make sure to bring them.

Your first consultation will be maximized with the information you bring to your meeting.

STILL HAVE QUESTIONS? ASK OUR EXPERTS.

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Divorce Options

If you are considering dissolution of your marriage, we provide options. The approaches can be tailored to your needs.

Mediation

Mediation is a process where both parties confer with a single person – the mediator – who attempts to assist the parties in achieving a settlement of the issues in their divorce. The parties may, or may not, choose to consult with their own attorney. The mediator may, or may not, be an attorney. Mediators who are not attorneys should not provide legal advice. The mediator’s role is to help facilitate a settlement that the parties are satisfied with. Generally, mediators will assist the parties with the required court forms, and draft the Marital Settlement Agreement, or Judgment, if the parties achieve a settlement. The mediator does not act as either party’s attorney, so, again, unless you know the details about the marital assets, or your spouse is completely forthcoming, there is risk associated with this method. The advantages are that the cost is generally less than with traditional dissolution methods. If settlement is not achieved, then court will be necessary. This alternative is risky when one spouse is less financially sophisticated than the other spouse, when one spouse knows substantially more about the community assets than the other, or when one spouse may bully the other. This method is not successful unless the parties trust each other and both desire to be fair.

Traditional Dissolution Method

With this approach, one or both parties retain an attorney. The attorney represents the interests of the client. The traditional approach does not mean you have to litigate. Most cases settle. Most clients never see the inside of a courtroom. There are four people who control the direction, cost and duration of the case – two parties and two attorneys. If both clients select attorneys who are reasonable and constructive in their approach, the case has a very high likelihood of an efficient and amiable resolution.

Consistent with this method, lawyers can explore amiable settlement through the use of private settlement judges, four-way settlement conferences, the use of joint experts and other creative proactive approaches.

If the case does not settle, the parties go to court. These issues can include child custody, child support, spousal support, asset division, and an award of attorney’s fees. Often, experts will be required to help prove your case, for instance, when you need to prove the value of a business.

CONSULTING SERVICES

A good choice if you choose to be self represented is our Consulting Services. This service may keep costs down. We provide legal advice and/or assistance in the preparation of the numerous legal documents required in your dissolution, yet you are self represented. Consulting services can be modified to full representation during the process.

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