Community property is a legal concept derived from Spain. Most of the community property states in the United States were once a part of Spain.
Generally speaking, community property is that which is accumulated during the marriage from the efforts of either or both spouses. In California, community property is, by statute, equally divided.
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What is community property?
Community property is a legal concept derived from Spain. Most of the community property states in the United States were once a part of Spain. Generally speaking, community property is that which is accumulated during the marriage from the efforts of either or both spouses. In California, community property is, by statute, equally divided.
What is separate property?
Separate property is defined as any property brought into the marriage, or any property received before, during, or after the marriage by way of gift or inheritance. Separate property is not divided. Generally, income arising out of separate property remains separate property and is not divided. At the end of any divorce case, separate property is simply awarded to its owner.
How do courts determine child support?
Child support is, except in cases of extremely high or extremely low income, awarded pursuant to a guideline. This is essentially a computer program that takes various inputs, including the actual earnings (or earning capacity) of each party, the amount of sharing, and takes certain taxes into consideration. Once the information is inputted, the program will compute a child support number. This number is widely adopted by the courts. In order to deviate from the guideline, the court must make specific findings that the guideline would be inappropriate. Therefore, in almost every case, the guideline determines the amount of child support.
How do courts determine spousal support (alimony)?
Unlike child support, there is no guideline for spousal support. Courts may refer to a guideline for spousal support when setting temporary support orders. However, permanent support orders are not subject to the guideline. It is a completely discretionary call in most cases by a family law judge. There is a checklist consisting of fourteen factors that the court is required to consider in determining the amount of spousal support. The key factors are:
- The income and earning capacity of each party;
- What was the typical marital standard of living of the parties during the latter years of the marriage;
- The length of the marriage.
There are approximately eleven other factors, however these are the three main factors that most courts consider.
What about parental alienation?
Parental alienation can become a problem when one parent either overtly or covertly does or says things intended to end the relationship between the other spouse and the children. This is probably the most destructive behavior in a divorce. It is never in the best interest of the children to poison their minds against the other spouse. Children love both parents equally, but in the long run, children will remember the alienator's activity.
When they grow old enough to understand what has happened, children may end up rejecting the parent who attempted to turn them against the other parent. In the short term, it may appear to the alienator that this behavior is some sort of deserved punishment directed at the other parent, but ultimately this kind of behavior can be very destructive to the children.
What is mediation?
Mediation is a process wherein two parties agree to go to a neutral for purposes of trying to settle their differences. The neutral is generally a person who has substantial expertise.A mediator has no power to create or coerce a settlement. Generally speaking, the role of the mediator is to attempt to find a way in which the parties can reach an accord as to all issues in their case. When successful, mediation avoids the hazards of litigation and saves the parties substantial money as far as attorney's fees and costs are concerned.
How do I keep my attorney fees down in a divorce?
The most effective way to reduce attorney's fees is to settle the matters without litigation. This means that, in the interest of reducing costs, it is important that the parties determine to, in effect, "pick your fights."
If someone is willing to spend a great deal of money over a trivial issue, it is probably not in your interest to spend any money disputing that issue. On the other hand, if the issue is important and vital, you must weigh the costs of participation with respect to attorney's fees and the odds of victory on the issue in order to determine whether or not the expenditure in attorney's fees is cost effective.
What does a divorce usually cost in San Diego, California?
There is no way to predict what a divorce will usually cost. The cost will be related to the amount of acrimony between the two spouses and time commitments of the various lawyers and experts associated with the case.
What about the children in the divorce?Children are generally affected adversely by divorce. It is the responsibility of the parents to see to it that the divorce is as stress-free and as minimally disruptive to the lives of the children as possible. Parents should let children know they are not losing the other parent but rather will be a part of the lives of both parents on a sharing basis for the rest of their lives. It is also important to note that children create a unique situation in any divorce case in that the case is never really over, but rather is the subject of further negotiations and perhaps trips to court in the future over what is in the best interest of the children. It's important that parents place the interests of their children first and set aside their personal feelings of anger, betrayal, distrust, abandonment and focus on what's best for their children. Often times parents need help doing this and that can require the retention of a child custody mediator or therapist. Our firm has dealt with thousands of contested custody matters and has established ties to the professional community of experts that deal with these issues in and out of court. No matter what, we listen to your perspective on these issues and provide you with the guidance you need to properly evaluate and make decisions regarding the most important issue in the divorce: your children.
Why do courts seem to favor women over men on child custody issues?
We do not believe the courts favor women on child custody issues. It is true that, fifteen to twenty years ago, there was a tendency to award children to women in most cases, unless the woman was truly unfit. However, courts now routinely award custody of children to men, and we do not believe there is currently a bias in the system favoring women on child custody issues.
I want to get a divorce. What is my first step? How long will this take?
The first suggested step is to find competent counsel and seek advice as to how and when to proceed.
There is a minimum waiting period of six months. The waiting period will start when one party has filed and caused the paper to be served on the other party. That is called the "date of service."
Even if the case settles in the first month, it is necessary to wait an additional five months before you will no longer be married.
Cases that are litigated can take much longer than six months, depending upon the sophistication of the issues and any related problems in the case.
My spouse was the breadwinner. Am I going to lose everything now?
There will almost surely be a change in your standard of living as a result of divorce.
Generally speaking, you will receive about 35% of the gross income of your former spouse, together with one-half of the community property. The 35% will be a combination of child and spousal support.
Two households cannot remain at the same economic level when their related expenses are being financed by just one income.
How can I protect my interest in our joint bank accounts?
One way to protect your funds is to remove one-half from the joint bank accounts at the time the decision is made to file for divorce.
Another way is to change the titling of the accounts so that neither party can remove money from the account without the written agreement of the other party or an order of court.
My spouse has a high-powered attorney, but I cannot afford anyone. Can you help me?
One of the primary goals set by the Family Code in the area of attorney's fees is to establish a level playing field between spouses. The spouse who can afford high-powered attorneys would always have an advantage over an unrepresented less affluent spouse.
It is therefore possible to request of the court attorney's fees orders at the outset of the litigation and throughout the litigation process so that each side is funded.
Generally, if community property is available, the court will see to it that both sides are equally funded and that both parties have equal access to the necessary amount of money to sustain representation during the divorce.
My spouse wants to arbitrate, but I'm afraid he/she will not disclose all our assets. What should I do?
It will be necessary before any arbitration to conduct discovery. This means that there needs to be an inquiry to determine the scope and extent of all assets.
In California, under the Family Code, each party is required to disclose, under penalty of perjury, in the Preliminary Declaration of Disclosure, any and all assets. If assets are hidden and not disclosed, the court retains the power indefinitely to divide the assets when discovered and disclosed.
You should not go to any arbitration or mediation until you have a whole and complete understanding of all assets. This means that inquiry and discovery of those assets must be done before the mediation or arbitration process begins.
I think my spouse has hidden assets. What should I do?
You should seek the advice of counsel immediately. There are services that attempt to track and trace assets.
You should also become acquainted with your estate. You should make copies of all relevant documents regarding assets. You should hire competent counsel in an effort to trace assets.
Generally speaking, it is very difficult to hide assets. The hiding of assets is a violation of a fiduciary duty that binds both spouses during the marriage.
In addition, because the Preliminary Declaration of Disclosure requires the spouse to list and disclose under penalty of perjury, the existence of all assets, the spouse hiding the assets runs the risk of significant civil liability and even criminal liability, should they elect to hide assets.
I have no money to pay bills or to live on. What can I do now when my court date is three months away?
In this situation, it is necessary for you to make an ex parte application (an immediate hearing is granted) for funds to live on and to pay bills.
Generally speaking, if there are definable assets you can go directly to the court and make that request before the judge. The court will direct that a certain amount of money be immediately allocated to meet living expenses and pay bills.
I quit work to raise our children, and now I haven't worked in years. How long will I be able to get spousal support from my ex?
This question is impossible to answer, other than to say that the length of support is usually related to the duration of the marriage.
If the marriage is shorter than 10 years, spousal support will be for a period of from one-third to one-half the duration of the marriage, and will then end.
If the marriage is longer than 10 years, spousal support will generally run until the death of either spouse, remarriage of the recipient spouse, or further order of the court.
Child support will run until the children reach the statutory age of majority. Each case is different, as is the amount of spousal support and its duration.
Can I keep my spouse from exposing our children to his new girlfriend (her new boyfriend)?
Generally, no, unless there is something about that person that makes association with them not in the best interest of the children. Each party is entitled to have the society of other individuals during their time of sharing.
Politically, in the very early stages of the divorce, it is always smart to realize that involving the children with a new boyfriend or girlfriend will cause resentment and hostility in the former spouse.
This hostility will then be converted into acrimony and perhaps an enormous amount of needless expense associated with attorney's fees. It is therefore best to use caution in this area at the beginning stages of the divorce.
My spouse has a foreign passport and ties to other countries, and I'm afraid she/he will disappear with our children. What can I do?
This situation generally requires a court order.
Assuming there is some basis for the fear that the children will be removed from the jurisdiction, generally the court will require that one of the attorneys hold the passports for the children in trust until further order of court. This minimizes the likelihood that a party will disappear with the children.
There is no way to completely ensure that flight will not occur. However, after a court order has been issued, the penalties for concealment of the children or removal of the children are very substantial.
I'm afraid of my spouse. What can I do to protect myself and our children?
The court operates a domestic violence clinic. You should go to the court, obtain the necessary forms and fill out the declarations in which you state the reasons why you are afraid of your spouse, and the need for a protective order.
The court will then issue a temporary domestic violence order and various restraining orders that will protect you. It will set a full hearing at which time you will be required to present evidence to support issuance of a longer term order of protection for both yourself and the children.
Can I get an order to stop my spouse from drinking around our children?
You can prevent your spouse from drinking in front of the children only if you can establish that drinking in their presence is in fact detrimental to their well-being.
Obviously, if there is any DUI arrest, or some other alcohol-related arrest, it is much easier to convince the court that a restraint needs to be placed on the consumption of alcohol in the presence of the children.
Can my kids testify in court? Vista, North County and San Diego, CA FAQ
Yes, the children can testify in court in certain situations.
Generally speaking, however, the courts do not favor the testimony of the children, but prefer a process in which an independent mediator interviews the children and reports the desires and/or needs of the children.
How do I prepare for my Family Court Services custody mediation?
First seek the advice of counsel, and obtain the name of someone who is an expert in providing family custody mediation.
You should then seek out that person and get advice as to how to prepare yourself for the Family Court Services mediation.
You will need to find out what the mediator is going to require from you, and how to present and prepare the information for the mediator.
My Family Court Services mediation is not for 90 days, but we need to resolve our custody-sharing dispute now. What can I do?
The parties can agree to go to an independent mediator immediately, and vest that mediator with the same powers as Family Court Services.
The parties can also reach an agreement.
Failing that, you can go to court and ask the judge to accelerate the mediation date because of exigent circumstances.
What alternatives are there to a custody mediation with Family Court Services?
You may elect, and the parties may jointly agree, to conduct your Family Court Services mediation in the private sector.
There are many very well qualified individuals who can be vested with the same powers as Family Court Services.
What is JAMS and why is it preferable to use JAMS if possible?
JAMS is an alternate dispute resolution center. It is staffed by very sophisticated retired judges, and in some cases, very high level attorneys. It has the benefit of being private, and, generally speaking, provides a much faster remedy than the public sector courts.
Both parties need to agree on the referral to JAMS. Generally speaking, if they agree, an appropriate document is signed in the form of a court order, vesting a particular judge or attorney at JAMS with the same powers to make decisions as a court would have.