Almost every divorce in the state of California (involving children) will need to resolve these five basic issues: Custody, Support, Property, Reimbursements, and Attorney’s Fees and Costs. Some issues may not apply to your specific case, however these five basic issues arise often enough to warrant this guide.
- Resolving Custody
There are two types of custody, legal custody and physical custody.
Legal custody refers to “the right and the responsibility to make the decisions relating to the health, education, and welfare of a child”. See Family Code § 3003. In layman’s terms, legal custody related to questions like “Where should our child go to school?” “Should our child receive medical care?” and “Should our child go to [insert religious institution]?” Joint legal custody means both parents share in the decision making for these questions. By contrast, sole legal custody typically delegates the right to make these decisions to one parent, usually unless in case of emergency.
Physical custody answers the question of “who will my child live with?” When determining physical custody, the court will ultimately adjudicate the matter in the best interest of the child. California’s public policy is to encourage frequent and continuous contact between parents and their children. See Family Code. Frequent and continuous contact does not necessarily mean 50/50 custody. The needs of the child, the availability of the parent, the parents skills as a parent, history of neglect and abuse, and a multitude of other factors are considered when determining a child’s best interest. The parent with the greater timeshare is referred to typically as the custodial parent.
2. Resolving Support
The two sub issues of support are Child Support and Spousal Support.
For parents of children, the issue of child support will need to be addressed in your divorce judgment. The amount of child support is based on an algebraic formula which is quite complex. For purposes of this article, child support is generally based on the timeshare each parent has with the children and the amount of income attributable to each parent. Some offsets and deductions may be made, but this calculation which will yield a figure which the State of California presumes to be correct. Programs such as Dissomaster and XSpouse are two common tools utilized to calculate these figures.
Check out our blog post regarding modification of child support for more information .
Spousal support, also referred to as alimony or maintenance, is money paid from one spouse to the other in order to help support the spouse during the pendency of the action and after judgment.
Temporary Spousal Support
Temporary spousal support is support paid between the filing of the petition and the entry of judgment of dissolution. In other words, this is support paid after you file for divorce until your divorce finalizes. The purpose of temporary spousal support is to maintain the “status quo” until you and your spouse are “officially” divorced. The amount of spousal support is calculated based on the incomes and certain obligations and deductions attributable to each. Unless parties agree to a figure through stipulation, the filing of a motion and order of the court is needed to obtain temporary support.
Permanent Spousal Support
Permanent spousal support is support paid after the entry of judgment. The duration of permanent spousal support is highly fact sensitive and depends on what the parties agree to, the amount of support paid, the duration of the marriage, etc. Permanent spousal support is based on at least 16 factors such as: incomes of each party, health of parties, tax implications, history of domestic violence. See Family Code § 4320 for these factors. In reality, there is no calculation for this figure so sound legal advice is pivotal to obtain a fair amount.
3. Resolving Property
California is a community property state. In general this means that all assets and debts acquired during the marriage belong to each spouse equally. Assets acquired before the marriage, or assets acquired through gift and/or inheritance are not considered community property
Property, such as your house, cars, bank accounts, retirements, life insurance policies, debts, etc. need to be divided amongst the parties. Assets can be offset, as long as there is an equal division of community property. It is possible for a spouse to have a separate property interest and a community property interest in the same asset. Ultimately, dividing all property equitably requires the attention of an attorney.
4. Resolving Reimbursements
After Parties separate, it is common for one spouse to continue to pay community obligations in order to prevent default or foreclosures. Most commonly, one spouse will continue to pay the home mortgage while the other spouse moves out of the house. In this case, the spouse paying the mortgage is entitled to reimbursement for one-half of the amount paid. While the spouse forced to pay may have an argument to offset this amount, this is still important.
There are a multitude of reimbursement claims from mortgage payments, to utility payments, to life insurance premiums, and other reimbursable items. See a family law attorney to discuss these issues as they may be significant.
5. Resolving Attorney’s Fees
In many cases, each party pays their own respective attorney’s fees and costs. However, under the California Family Code, a spouse can request that the other spouse pay his or her attorney’s fees as well as their own. It is necessary to show a need for fees (usually based on lower available income to pay attorney’s fees) and an ability to pay in the payor spouse. See California Family Code § 2030.
THIS INFORMATION IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. EVERY CASE IS DIFFERENT AND THIS GUIDE SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. THIS ARTICLE DOES NOT CREATE AN ATTORNEY CLIENT RELATIONSHIP BETWEEN THE READER AND ITS AUTHOR. IF YOU HAVE LEGAL QUESTIONS, CONSULT WITH A FAMILY LAW ATTORNEY.