Considering the legal tangles we can all get into, whether professionally or personally, knowing what questions to ask can make a big difference in terms of determining what legal assistance a person really needs.
The holidays are here again, family, friends, fun and fights…what? Yeah, unfortunately this is my biggest time of year to get those calls on divorce, modifying a custody order or upping the child support. You would think the holidays brings out the best, and the last thing we need is additional stress, not to mention that “strike” going on where we are biting are nails. I have provided legal tips on the important stuff on what you should know.
RESIDENCY REQUIREMENTS AND WHERE TO FILE:
A judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition. The superior court has jurisdiction in proceedings under this code. [Based on California Family Code - Sections: 200, 2320]
LEGAL GROUNDS FOR DIVORCE:
Dissolution of the marriage or legal separation may be based on either of the following grounds:
(a) Irreconcilable differences, which have caused the irremediable breakdown of the marriage; or
(b) Incurable insanity (only upon proof). [Based on California Family Code - Sections: 2310]
LEGAL SEPARATION:
The grounds for a legal separation are the same as the grounds for a divorce, and the same residency requirements must be met.
After entry of a judgment of legal separation of the parties, the earnings or accumulations of each party are the separate property of the party acquiring the earnings or accumulations. [Based on California Family Code - Sections: 2310, 2320, 772]
MEDIATION OR COUNSELING REQUIREMENTS:
When issues are being contested, and there is a minor child of the spouses or parents or of either of them whose welfare might be affected thereby, the family conciliation court has jurisdiction as provided in this part over the controversy and over the parties to the controversy and over all persons having any relation to the controversy. [Based on California Family Code - Sections: 1830]
PROPERTY DISTRIBUTION:
California is a community property state. Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property. Except upon the written agreement of the parties, or on oral stipulation of the parties in open court, or as otherwise provided in this division, in a proceeding for dissolution of marriage or for legal separation of the parties, the court shall divide the community estate of the parties equally. Separate property is not included in the division of the community estate.
Separate property of a married person includes all of the following:
(1) All property owned by the person before marriage.
(2) All property acquired by the person after marriage by gift, bequest, devise, or descent.
(3) The rents, issues, and profits of the property described in this section.
A married person may, without the consent of the person's spouse, convey the person's separate property. After entry of a judgment of legal separation of the parties, the earnings or accumulations of each party are the separate property of the party acquiring the earnings or accumulations. [Based on California Family Code - Sections: 760, 770, 772, 2550]
ALIMONY/SPOUSAL SUPPORT:
The court shall consider all of the following circumstances where determining spousal support:
(a) The ability to maintain the standard of living established during the marriage, taking into account all of the following: (1) The ability of the spouse seeking support to gain self-supporting employment (2) The extent to which that spouse's present or future earning capacity was impaired by periods of unemployment during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
(c) The ability of the supporting party to pay spousal support.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to be gainfully employed without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) Documented evidence of any history of domestic violence between the parties.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting within a reasonable period of time.
(m) Any other factors the court determines are just and equitable. [Based on California Family Code - Sections: 4320]
SPOUSE'S NAME:
In a proceeding for dissolution of marriage or for and annulment, but not in a proceeding for legal separation of the parties, the court, upon the request of a party, shall restore the birth name or former name of that party, regardless of whether or not a request for restoration of the name was included in the petition. [Based on California Family Code - Sections: 2080]
CHILD CUSTODY:
Either parent may be awarded custody. There is neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, allowing the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child. In making a determination of the best interest of the child when deciding custody, the court shall consider all of the following:
a) The health, safety, and welfare of the child.
b) Any history of abuse by one parent or any other person seeking custody against any of the following: (1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a care-taking relationship, no matter how temporary. (2) The other parent. (3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
c) The nature and amount of contact with both parents, except as provided in Section 3046.
d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. The provisions of this subdivision shall not apply if the parties stipulate in writing or on the record regarding custody or visitation.
e) Any other factors the court finds relevant.
[Based on California Family Code - Sections: 3010, 3011, 3040]
I`M MARRYING A MAN WHO HAS CHILDREN FROM A PREVIOUS MARRIAGE. HE REGULARLY PAYS HIS CHILD SUPPORT. SINCE I EARN MORE THAN MY FIANCE CAN I HELD RESPONSIBLE?
Some states, California for example, provide that a new spouse with income, cannot be held liable for the support of a stepchild except under extreme circumstances. However, for the time being, and for purposes of financial safety, set up and maintain separate savings and checking accounts. That way, your funds do not become commingled with your husband`s/wife’s and a court, should the question ever arise, will always be able to calculate whose income is whose and where the funds came.
I AM A STEPPARENT. DO I HAVE AN OBLIGATION TO SUPPORT THE CHILDREN FROM MY WIFE`S PREVIOUS MARRIAGE?
No. You should not be responsible to provide for the children`s support, unless there was an adoption or you agreed to provide support in a marital agreement
I AM THE BIOLOGICAL FATHER OF AN ILLEGITIMATE CHILD BORN TO A MARRIED WOMAN WHO HAD AGREED TO ABORT THE CHILD. DO I HAVE TO PAY CHILD SUPPORT?
A biological father is responsible for paying child support unless someone else adopted the child or his parental rights were severed by court action.
IS CHILD SUPPORT SUSPENDED DURING SUMMER VACATIONS WITH THE NONCUSTODIAL PARENT?
No, unless the parents agree to a different amount during vacation periods when the child(ren) are away for long periods of time with the non-custodial parent or the order says otherwise.
MY EX HAS THREATENED TO FILE BANKRUPTCY. WHAT EFFECT DOES BANKRUPTCY HAVE ON CHILD SUPPORT?
Filing for bankruptcy protection does not allow your ex to discharge past due child support obligations. Any back payments owed for child support cannot be included as a debt and cannot be discharged in a bankruptcy proceeding. However, the filing of a bankruptcy petition automatically stops collection activities on a support order. Since there are legal procedures that must be followed in order to lift the stay regarding the payments, it is crucial to retain an attorney who has expertise in bankruptcies.
MY INCOME DROPPED DRAMATICALLY WHEN I WAS LAID OFF MY JOB AND CANNOT MAKE MY CHILD SUPPORT PAYMENTS. IS THERE ANY WAY I CAN LOWER MY CHILD SUPPORT PAYMENTS?
Unexpected, significant decreases in income can be a reason to request modification of your child support order. Before incurring the additional expense of a court-mandated change, one route is to ask the other party to agree to a temporary reduction or deferral (if need be). If successful, put the terms in writing, sign, and date the document, preferably with the advice of a lawyer. If that does not work, ask the court to modify the amount of the child support owed in the future, explaining your major and unavoidable drop in your financial situation, that the income is not likely to be replaced soon, and why the change would be fair. Most courts are sympathetic and receptive to making necessary changes in child support when you have experienced a financial setback. Again, paying a lawyer to help can pay for itself dozens of times over.
WHAT ARE THE TAX CONSEQUENCES OF CHILD SUPPORT?
For federal income tax purposes, child support payments you receive are not income - they are tax free to you. The parent who makes the payments cannot deduct the amount as an expense on his or her federal tax return. However, sometimes parents are able to negotiate higher alimony (which is deductible by the parent making payments and taxable income to the receiving parent) to generate tax savings.
WHAT IF THE OBLIGEE PARENT DOES NOT SPEND ANY MONEY ON THE CHILD?
This is a very difficult issue to resolve. One hand, the obligee parent has the right to spend child support money received as s/he sees fit, in the best interest of a child. On the other hand, the obligee parent has the obligation to provide for the best interests of the child. If the obligee parent is derelict in meeting his/her parental responsibilities toward the child, and the child`s needs are not being met, s/he could be charged with child abuse or neglect. In extreme cases, this abuse or neglect would be grounds upon which a change in custody, in addition to a change in the obligation to pay child support, would be proper.
INSURANCE ISSUES
Life and health insurance issues are important considerations in divorce proceedings from at least three aspects: Who will fund the support order or alimony if the provider should die? If both spouses and children were covered under a single group health plan, how will the separating spouses and children be covered after the divorce? For the spouse with custody, what additional needs are there for life and/or health insurance? Ask your attorney whether the divorce settlement can include a provision for life insurance on the provider, to protect the support order or alimony. The recommended approach is to acquire a life insurance policy with a face amount sized to provide the regular support payments, when deposited in an appropriate investment account. Here is a tool to help calculate the required face amount. Here is a resource to estimate the purchase cost. Regarding health insurance, divorce is a qualifying event for benefits under COBRA, so named after the act of Congress that created it. Also, ask your attorney whether the divorce settlement can include a provision for health insurance, especially if either spouse can provide it at a reasonable cost through group coverage. Finally, you may need to purchase additional health or life insurance coverage to protect yourself and your children.
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