The divorce process in California

When I first started practicing family/divorce law in California, I wanted someone to walk me through the process, start to finish, so I could understand it as a whole.  What is troublesome, unfortunately, is that all divorces differ in many ways, so looking at the process in general can be tricky.  But let’s try…

In California, the first step in getting a divorce is to file a Petition.  It’s fairly easy, and it doesn’t matter at all which spouse files the Petition (or files first).  There’s no advantage or benefit to filing the Petition over the Response (though there may be some advantages/disadvantages to filing sooner or later, but see an attorney on this…like me!).  To file a Petition in California you have to have lived in California for six months prior to the filing and in the county where you have filed for three months prior to the filing.

Once the Petition is filed (and the UCCJEA if you have children), you may need to file for an immediate court order regarding support, child custody and visitation, property or debt division, or some other urgent manner.  To do this, you file a Request for Order.  For any issues regarding support, you much file an Income and Expense Declaration, showing your – you got it – income and expenses so the court can calculate the appropriate support.

To complete your divorce, not only do you have to agree on child and spousal support, child custody and visitation, asset and debt division and any other issues you may have, but you have to complete your disclosures and obtain a Judgment.  The disclosures are forms: the Income and Expense Declaration and the Schedule of Assets and Debts (which is, you guessed it, your assets and debts), as well as a form showing you delivered these to your soon-t0-be-ex-spouse.  These are required in California, so you must be prepared to share all of your income, expenses, assets and debts with your spouse to get divorce.

You’re now in the home stretch: to obtain a Judgment, once you have everything resolved, you have to file a number of documents with the court.  It can be confusing, and most courts have packets at the clerk’s office to help you complete it.  Of course, a Family Law Coach can always help if you get stuck.  Need more detailed help? Click here to make an online appointment.

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Emotions of child and spousal support – for recipient and payor

One of the hot button issues in divorce is child and spousal support. It’s a hot button because it involves money, and money is the leading cause of divorce. Many couples are already tense about money, and when you add in the support issue, things can blow up. The problem is one of simple math:

You have one household surviving on the income of two parties. You take that household and divide it in two when the couple separates, and you have the same amount of money (not enough) now supporting two households instead of one. Ouch.

Regardless of who moves out and who is the spouse paying for child and/or spousal support, it hurts both parties. The one paying can see in his or her paycheck that the amount being brought home is, in some cases, actually smaller than the amount being paid for support. The one being paid just looks at the money coming in and the bills to be paid, and can’t quite see how to resolve the disparity.

Arguments, often heated ones, ensue. The key is to recognize that not only is this going to happen, but to catch it early and address it. It isn’t going to be easy for either of the spouses, and they had better be prepared. Both spouses, in most cases, are working hard to maintain their lives while they go through the difficult time, and a small amount of understanding goes a long way.

Child Support Calculations in California

When I first meet with a family law client, if the individual has children one of the initial questions is invariably what child support will be. To my client’s frustration, I am not able to answer that question because child support is calculated in a complex manner in California. In some states, child support is calculated in a straightforward manner, such s simply taking a percentage of income. In California, this is not the case.

California uses a software program to calculate child support (the California Department of Child Support Services has it here: Child support calculator. The program takes you and your co-parent’s gross income, the percentage time share that you spend with your children, certain deductions (mortgage interest, union dues, mandatory retirement payments, for example), then it calculates your taxes and determines the appropriate ‘guideline’ child support by using a complicated calculation that the California legislature adopted years ago. Once the inputs to the program are determined (or ordered by a judge), the number that the program shows for child support is mandatory for the judge to order unless BOTH parties agree to something different (which happens rarely). Even if both parties agree to a different amount, either party may come back at ANY TIME to modify the support to the guideline level.

In California, then, the critical part of negotiating child support is knowing how the input numbers can be modified or calculated to your advantage. For example, take the time share itself. If you calculate using days versus hours, you could come out with a very different result. Bonus or overtime income is also a tricky issue, as it’s not consistent. You have to be careful that it’s not overlooked in situations where, like in construction, some seasons have little or no overtime (and some have a great deal). If you’re calculating support on the outside of a ‘dry spell’ for overtime, then you could miss the upcoming overtime. If you don’t look back twelve months, similarly, you could in November overlook a substantial holiday bonus coming in December.

Finally, as a family law litigant you have to understand that the smallest change – often unknown until the day of your hearing – can make all the difference in the world for purposes of child support. You can plan and prepare as many printouts of the child support program as you can think of, but if you get to court and the payor has lost his job the day before, that will change the situation dramatically. It is extremely important, therefore, to have a qualified professional helping you to do the calculations so that you can maximize the potential benefit to you.

Life Insurance and its potential role in California divorce

One of the most difficult aspects of divorce, behind the extreme emotional roller coaster, is the financial aspect. There’s never enough money to go around, and frequently both parties feel like they’re getting the short end of the stick. The reality is that this is just the way it goes when you try to create two households out of one with the same amount of money coming in each month. One associated problem is that the court’s jurisdiction does not extend past a child’s 18th birthday (child support can go on to age 19, but that’s another issue), so the court cannot make orders about who will pay for your children’s education past high school, and how. College costs for a child who is now a toddler are astronomical – somewhere around $250,000-300,000 depending on the school. If you and your ex-spouse do not agree on how you will pay for college, then perhaps it won’t be paid at all. This is where life insurance can come in. Either or both of you can obtain and pay for a policy that will help to fund your children’s education past high school. It’s not very expensive, particularly if the cost is shared, and your child will thank you for putting aside the anger and making a joint effort on behalf of his or her education.

One final note on making that agreement: ensure that you put down in writing (1) what schools the funds will be applicable to (full-time college, trade schools, etc.), (2) what the funds will pay for (just tuition or room and board or books and supplies, or all of the above), and (3) what cuts off the funds (i.e. not attending full-time or grades below a C average).

In addition, life insurance can be taken out on the party who is paying child or spousal support, in the event that the financially-providing party/parent passes.  With the life insurance, the child(ren) and ex-spouse are insured some financial security in the event one parent dies.

Your family law hearing in California divorce: child custody, child visitation, child support, spousal support, attorney fees…

In most family law cases, one or both parties need the court to help them with initial matters, such as child custody, child visitation, child support, spousal support, and attorney fees.  Because the parties cannot agree on how to handle these matters, a motion is filed with the court, asking the court to make orders on these issues.

After you file your motion with the court, you have to serve it on your opponent. Hopefully, you know that already. Once your opponent receives your motion, he or she has time to file a response. By filing your paperwork in advance, you each have the opportunity to review what the other is saying, and prepare your response to it. This is important because you should never be forced to respond to something about which you do not have advance warning. This goes both ways: you can’t spring something on your opponent and get away with it.

When you get to court on your appointed day and time, remember the following:

1. Get there early to allow yourself to get lost (and find it), to get the layout of the place, and to have time to get settled and take a deep breath.
2. Read the signs posted in and around the courtroom, as these will give you a lot of information about what is going to happen and the specific court’s procedures. Determine which notes apply to you and act accordingly.
3. Take a deep breath and try to relax. You may be waiting a long time.
4. You will probably have the check in and let the court know you are present. Often you check in and give your name (and sometimes case number) to the bailiff or the courtroom clerk.
5. Most counties have a rule regarding a “meet and confer” prior to being heard by the judge. This is a requirement that you at least try to talk to your opponent to work out your differences before the judge will hear your dispute. DO NOT avoid this if it is a county rule in your county, as it will anger the judge that you ignored the rule – and do it even if there is no rule. Making the judge mad is a big no-no in my book.
6. When your case is called, announce your name and approach the tables in front of the judge. You’ll get an opportunity to present your side of the argument, and it’s helpful if you have notes responding to what your opponent is going to say. You know what your opponent is going to say because you read his or her paperwork and also talked to him or her immediately prior to the hearing.
7. Don’t make the judge mad. If he or she cautions you because you have done or said something inappropriate, be sure NOT to repeat your error. One thing that makes most judges mad: interrupting. If you have something to say, find the right time to say it rather than interrupting your opponent or the judge.
8. Once the judge has heard enough, she or he will say so and announce the order. THIS IS WHAT YOU CAME FOR! Take detailed notes because you will need to create a written order from the judge’s words.
9. Before you leave, ask the court for the “Minute Order,” which is the court’s informal notes of the results of the hearing. You can use this to prepare the order. Also, find out which party is preparing the order. Whoever brought the motion generally does this.
10. Thank the judge as you leave, whether you won or lost. Judges work hard and deserve your thanks for taking their time to help you. You may not like their decision, but thank them anyway.

Child and spousal support in California divorce

A common issue of serious contention in a divorce or other family law case is support. This is because money is a sensitive and difficult subject in these cases. Often you are dealing with the breakup of a household. Suddenly, the same money that used to support one household now has to support two. It’s tough, and leads to many emotional issues.

Child and spousal support are treated differently, but also the same. Let me explain…

Let’s start with the differences. First, spousal support is not available in a paternity, or UPA, case, but only in a divorce. Second, the judge has discretion to deny a request for spousal support, but cannot deny someone child support. Third, child support is always on the table as an issue, whereas spousal support must be specifically requested in the Petition to be considered.

Spousal support is used to keep each spouse in the same financial position that they were in during marriage. Generally it lasts approximately half the length of the marriage, except in long-term marriages, where it lasts indefinitely (which does not mean forever, but rather it lasts until an indetermined time in the future where it isn’t required anymore). The one receiving support has the legal obligation to become self-supporting as quickly as possible, considering that person’s ability to earn. It is commonly believed that a ten-year marriage is considered long-term, but I saw that the courts did not look at a marriage less than about 18-20 years as being long-term. Other counties may vary.

I already talked about how long child support lasts, so I won’t repeat myself. Child support is used for the health, maintenance and welfare of your child. Given that, it does not mean that you, as a payor of child support, can take your co-parent to court because you do not believe that your child support is being used properly. In California, we trust the parent to spend the child support appropriately, so the court won’t even consider an allegation that someone is squandering child support. At the same time, each parent has the legal responsibility to work to support your child financially. The court may order a parent to work who is not working or not working up to his or her potential.

In the beginning stages of a case, child and spousal support are calculated similarly, using the support calculator (which you can find here: support calculator). Spousal support on a long-term basis is calculated by a judge using a number of factors, including the need of the payee and the ability to pay of the payor.

Dissolution: issues in a California divorce

In every divorce (or dissolution) case, the court has a universe of issues it may resolve. The issues are common to most cases in that most cases have all of them, but some omit a couple. The issues are child custody and visitation, child and spousal support, property and debt division, attorney fees, and status. We’ll examine each of these in detail, but here’s an overview:

There are two aspects of the non-financial issues with your child (and I say child with the understanding that many folks have more than one child): custody and visitation (or parenting time). There is physical and legal custody, and you can have joint custody or sole custody (for one parent). Parenting plans vary like personalities. Some parents share parenting time equally and fluidly with few specifics written down. Some parents have to have every detail recorded in excruciating detail. There are some “standard” parenting plans, but by no means are they uniform.

Child and spousal support are also issues in a divorce case. Support is calculated using a software program adopted by the State of California. You can find it for free here: Support Calculations. Permanent, or long-term, spousal support is calculated using a variety of qualitative factors not necessarily related to the software, however.

The court will also divide all property and debt you and your spouse acquired during your marriage. This includes any real property, or homes, as well as personal property, vehicles, bank and stock accounts, 401Ks and pension/retirement accounts, and any and all debt. California law provides for EQUAL division of all property and debt.

The court can and will also resolve the issue of attorney fees, particularly if the incomes of the spouses are very different. If one spouse makes the majority of the money in the household, the court will likely order that spouse to pay the majority of the attorney fees.

Finally, there is the issue of your status. Your status is whether you are divorced or single. You can separate, or bifurcate, the issue of your status and become divorced if you feel your case is taking too long. Divorce cases can last several years. Most often, your status is dissolved, making you a single person, at the resolution of your case. The earliest this can happen is six months and one day from the time the Petition was served on the Respondent.

UPA: Paternity action in California

UPA stands for Uniform Parentage Act, and is the name of the case when you have a child outside of marriage. Commonly called paternity cases, this is the way you formally and legally establish the parents of a child. Generally the father is the one thought of in these cases, but in a UPA case, both mother and father are determined. Either parent may bring a paternity case, and upon the establishment of parentage, both rights and responsibilities attach.

Once it is determined that you are a parent of a child, you are required to support that child financially. You are also entitled to parenting time (visitation) with the child, subject to the best interests of that child (for example, you are entitled to parenting time unless the time would endanger the child’s welfare, such as if you are ingesting illegal substances at the time). This responsibility lasts, legally in California, until that child is 18 and graduated from high school, to a maximum age of 19.

What?

The court’s jurisdiction over a child lasts until age 18 for custody and visitation. At age 18, the court can no longer order a child to visit with either parent. For purposes of child support, however, the obligation lasts until your child graduates from high school, up to the age of 19. So if your child turns 18 in January, then graduates in June of the same year, then you pay support until June. If your child graduates in June and turns 18 in October a couple months later, then the support can last into college. If you have a child who turns 19 in April before graduating in June, then support will last until your child’s birthday in April. Perhaps that was a longer explanation than necessary, but at least now you get it (hopefully!).

A UPA case cannot handle, however, issues around your relationship that do not have to do with the child. For example, a UPA case can resolve issues surrounding pregnancy and birth expenses, but cannot resolve issues, for example, around the return of property or disposing of joint assets (such as a car or house). The court will only get into that with married couples. If you have to go to court on issues of property division with someone to whom you are not married, then you have to go to small claims court. Obviously, too, there is no spousal support (alimony) in a UPA case.

Getting what you want in divorce: The case for coaching

I often say that, logistically-speaking, divorce is not especially difficult, but it’s different.  If we remove the emotional aspect and the conflict, preparing the paperwork and going through the process is not particularly complex.  But when you have a family, a career, and a life, it can be impossible to take the time to learn the ins and outs of divorce law and process. Unfortunately, too, there are too few resources available in California for individuals to work through the process on their own.

There are a great many good books on the subject, and Nolo Press (www.nolo.com) has a wonderful book, How to do your own divorce in California.  This is a great primer on the basics of California divorce.  Usually, however, every divorce, even the most amicable ones, have one or two unusual or sticky issues that do not fit into the basic divorce issues covered in this book.  What is an individual to do when he or she just wants specific advice on a specific issue?

Every county has some kind of free legal resources, generally through the courthouse.  Most often, though, these resources are not intended to help with legal advice or strategy, but rather are there to help you fill out forms. It can be frustrating to wait in line to get some advice, only to be told that advice is not offered.  Another option is to do a consultation with an attorney, but many attorneys will not give specific advice until hired. You may not need full representation for the advice you need, and – indeed – you may not have several thousand dollars to pay for the answer to (what you think is) a simple question!

The answer is family law coaching, which is a concept I created when I saw this gap in services for divorcing parties. I work with my clients in advance of even our first meeting, gathering both basic information as well as documents, history and questions that you are looking to answer.  Instead of spending our consultation time gathering information from you, I am spending this time answering your specific questions and giving you the legal advice you want and need. I met with a client over the weekend who had already seen three different divorce attorneys. Each of them wanted $2,600 or more to help him with his case.  What he wanted was advice and answers, which none of the prior attorneys had offered him.  When we met, I had already reviewed his prior custody order, his intake form, and his questions for our meeting.  We spent our time together going over the process and h0w to approach his pending motion preparation, mediation, and court hearing. I even helped him to fill out his forms during our meeting, so he left knowing the legal strategy with which to proceed, what forms to file and how, and how to be as successful as possible in his motion…all for the price of one consultation.  If you find yourself in a situation where you are looking for advice on a specific issue and can’t seem to find what you need, give me a call and we can talk to determine if I am the right person to help you.

4 reasons why waiting to hire a divorce attorney is a mistake you don’t want to make

Even if you haven’t filed paperwork with the court or even if you haven’t decided 100% that you want to get divorced, you should consult with an attorney.  When you consult with an attorney, there should be no obligation to hire them, and you should be able to come in and get the advice you need and your questions answered.  At least, when you visit my office, that’s what happens.  I even have my clients fill out a form that specifically asks them what questions they most want answered in the consultation.

Here are some of the reasons why consulting with an attorney before you file is a good idea:

1. If you’ve not decided to divorce yet, you can then at least make an informed decision about what the process is like, the time it takes, the cost, and what you’re entitled to.  Relying on what your cousin Susie or your neighbor John got in his/her divorce will NOT help you.
2. If you have decided to divorce, then you can make sure that you have all the information – documents, financial information, deeds, insurance documents, etc. – gathered together that you will need.  It only takes a flash of anger from your ex to make this information disappear once you’ve filed and served papers.
3. You may make a mistake and not even know it.  On countless occasions I have had to unravel mistakes made by unrepresented clients or clients who have gone to a document preparer or a paralegal to file their paperwork.  It costs much more and takes a great deal of time to undo a mistake than it does to do it right the first time.
4. Mistakes can happen in paperwork, and they can happen in court.  A trained and experienced lawyer is going to know how to act in court and in front of the judge, and if you do so improperly, then you can dig yourself into a hole that’s nearly impossible to get out of.  Your whole life is on the line: your children, your home, your income, your assets, and your future.  Isn’t that worth getting proper advice?

A divorce attorney consultation is a few hundred dollars that will serve you in the long run, and help you to avoid these costly mistakes.