From the initial filing of a petition for dissolution, to receiving a final judgement from the court, the California divorce process involves many complicated issues that will heavily influence your future. Find out how California courts determine fair spousal support and child support awards, as well as resolve matters related to child custody, visitation, and domestic violence.
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Divorce Magazine Podcast: Beverly Hills Divorce Lawyer Joni Salomon Podcast on California Divorce
Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speakers: Family Lawyer – Joni Salomon. Joni Salomon is the founder of the Salomon Law Corporation in Beverly Hills, California. Named as a Super Lawyer® Rising Star and one of the Top 40 Family Law Lawyers Under 40 in California, Joni is a Certified Family Law Specialist with over 10 years’ experience practicing divorce and family law. For more information about Joni or her firm please visit http://www.salomonlawcorp.com/
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How long does the divorce process take in California?
The California Code says you cannot get a divorce sooner than six months from the date the other party is served with your petition for dissolution. A divorce case typically takes between six months and a year, but it depends on how willing and amicable the parties are in reaching a settlement agreement.
What is the difference between a legal separation and a divorce?
The end result is what differentiates the two options. After a legal separation, you're still married in the eyes of the law. After a dissolution, you are restored back to being a single person and are no longer married. In either situation, the court can make orders regarding child custody, child support, spousal support, division of assets, and allocation of debt.
Why do some couples choose legal separation over divorce?
People may choose legal separation instead of a dissolution for a number of reasons, including:
How does the judge determine if someone qualifies for spousal support on a temporary basis?
In determining spousal support on a temporary basis, the most crucial factor is each party's income. If the incomes are comparable, the likelihood of a spousal support order is slim to none; if there's a disparity of income, spousal support does come into play.
There is a DissoMaster program that calculates spousal support on a temporary basis. We input factors such as mandatory retirement, interest, expense deductions, property tax deductions, and health-care costs. However, the primary motivating factors are each party's income and the idea that we want to put both parties on equal footing during a dissolution or legal separation proceeding.
How does the judge decide if someone qualifies for spousal support on a permanent basis?
Unlike temporary spousal support, a computer calculation is not used for determining spousal support on a permanent basis. Instead, we use the factors listed in Family Code Section 4320, which include the length of the marriage, the age and health of the parties, whether there was any domestic violence, whether one party stayed home and raised the kids to allow the other party to receive an education or further their career, and the marital standard of living. The court weighs those factors to determine what amount of spousal support to award from one party to the other, and for how long.
Permanent spousal support is common if there's a huge disparity of income. For example, if one party makes $150,000 a year and the other party was a stay-at-home parent who forwent education and training to stay home and raise the kids, there is a likelihood of paying or receiving spousal support.
How does a court decide how long permanent spousal support should last?
The court determines how long the support should last by looking at the length of the marriage. If it is a marriage of less than 10 years, then support will be one half the length of the marriage. For a marriage of more than 10 years, the court does not have jurisdiction to terminate support and it could last until remarriage, death, or until further order of the court. It doesn't necessarily mean the amount of spousal support will remain the same throughout the duration. The support may be reduced over a period of time and could eventually be reduced to zero. It depends on the circumstances of each party's life at the time the support order is made on a permanent basis.
When is spousal support payable?
Spousal support is payable when one party is ordered to pay it. If you don’t request spousal support, no spousal support will be payable because it's not automatic. The moment you file a request for spousal support, the court receives jurisdiction to order it. Once the court orders it, your legal right to spousal support begins immediately. If you choose not to assert your right to spousal support and never file a request, then you will never receive it.
Can spousal support or child support be increased or reduced if one or both parties’ circumstances change?
Yes. Spousal support and child support are modifiable based on a change in circumstances, such as a job loss or change in income. However, it is only modifiable upon a filing of a request for modification. Someone who loses their job is obligated to pay the original level of support until they file a request to modify and the judge orders a modification. It's not automatic and you must get a court order specifying that support has been increased, decreased, or terminated.
How are child support and spousal support enforced?
Oftentimes, a wage assignment is issued regarding the amount that one party is ordered to pay in child support or spousal support. The wage assignment is served upon the employer of the payor spouse and the amount of child support and/or spousal support gets taken out of their paycheck automatically.
If a divorcing father loves his child but suspects that he may not be the biological father, what are the pros and cons of paternity testing?
There can be three fathers in California, so even though you may not be the biological father, if that child feels that you're his father, having a paternity test will have no affect on you being deemed the father. The courts look at the best interest of the child. Taking a paternity test would likely cause more problems if the child considers you his father.
What prevents someone from saying his or her child support payments are actually spousal support in order to receive tax deductions?
Since child support is non-taxable and spousal support is tax deductible to the payor and taxable income to the payee, the court’s judgement will specifically delineate the amount of child support payable and differentiate it from the amount of spousal support payable. There would be a court order specifying the amount of child support and, if you have more than one child, it will break down the amount payable for each individual child. There is no discrepancy as to what is child support and what is spousal support. If it becomes an issue with the IRS, then they will ask for the court order. Once you provide a court order, they will be able to delineate what is actually child support and what is actually spousal support.
What’s the difference between community property and separate property in California?
Community property is typically property that was acquired during the marriage with community funds. A lot of people think that if they worked to earn the money, that income should be separate property. But from the date you get married, all your earnings are community property; this includes annual bonuses and contributions to your retirement account or employee stock plan. Here’s another example: if you buy a home or a car during the marriage, even if you were the only one working, that home or car is presumed to be community property.
Separate property is property that was acquired prior to marriage, or after the date of separation, or was received by gift or inheritance or bequest. For example, if you had $50,000 in a bank account prior to the date of marriage, and you didn’t touch the money or add your spouse’s name to the account during the marriage, that $50,000 is your separate property. Any interest on separate property is also considered separate property – so if that $50,000 had earned $3,000 interest during the marriage, the $53,000 in the account is your separate property. If you owned a rental home prior to marriage, and you didn’t add your spouse’s name to the title, the home itself and the income it generated are both your separate property when you divorce.
How does a victim of domestic abuse get a restraining order in California?
They must apply for a temporary restraining order. If an applicant goes to court in the morning, the court will make a decision that same day on whether or not to grant the restraining order. You should give 24 hours notice if it's a request that the other party move out of the house, but sometimes the abuse is so egregious that notice is not necessary.
Once you get your temporary restraining order, the court will set a hearing in two weeks to determine whether or not a permanent restraining order should be entered – which could last anywhere between a couple of months to five years. You can extend a permanent restraining order before it expires without further showing of domestic violence or abuse. The only requisite is that you have a fear of the other party and that they might continue to assert abuse should you not have the restraining order.
If someone is abusive towards his wife and children, what options does the abused spouse have besides a restraining order?
There is another mechanism called exclusive use and possession of the family residence, which excludes the abusive party from residing in the same home as the abused party. It's not as effective as a restraining order, but at least it stops the violent abuser from living with the abused party. The amount of notice required differs from a domestic violence restraining order, which only requires you to give 24 hours notice or no notice at all depending on the circumstances. However, with exclusive use and possession, you have to file a motion and give the other party at least 16 court days notice that you're going to exclude them from the home. You also must make a showing that they are emotionally harmful or abusive toward you or the children.
Is there a legal remedy for someone who believes that he or she is being wrongfully accused of being abusive?
Yes. If the court issued a temporary domestic violence restraining order but the other party lied in their application to obtain it, you can seek an emergency hearing to have the restraining order set aside. Otherwise, you can wait two weeks and present at the permanent hearing to have the restraining order set aside.
What are the pros and cons of mediation versus litigation in terms of settling a divorce – especially issues regarding custody and visitation?
The pros of mediation are that you reduce the acrimony and the attorney fees and costs. A negotiated agreement, especially with respect to custody, is always better for families than an agreement that has been ordered by the court.
Judges don’t know you, your spouse, or your children and you’re asking them to make decisions about your future – including custody and visitation orders – based upon reading a declaration. On the other hand, the two parties who know their children, their family, and the dynamics are better suited for determining the custody and visitation arrangements.
In California, both parties attend a mandatory parent-education course as well as mandatory mediation, during which they meet with a marriage and family therapist and try to come up with a parenting plan and agreement. Absent that agreement, the court issues orders on custody and visitation.
What is the best way to resolve high-conflict custody cases?
The best way to resolve high-conflict custody cases is through an evaluation process or an interview process with the children. A licensed therapist, doctor, or psychologist will sit and meet with the parents, the children, and third parties who know the children and have seen the parents interact with them.
They do a series of tests and evaluations to come up with a recommendation for a parenting plan that is in the best interest of the children. The input of a neutral third party provides the judge with a more detailed semblance of what's going on in the lives of the parties when and if they have to make a decision with respect to child custody and visitation.
How does a judge decide whether sole or joint custody is in the best interest of the children?
The court looks at how involved both parties were with the children during the course of their marriage/relationship. The court considers how close the parties live to each other, what kind of parenting plan is going to work, and whether there are issues of drug or alcohol abuse, or domestic violence. Some of the questions the court will ask in deciding custody include:
A judge considers many factors before determining whether to order sole physical or sole legal custody – though the parties typically share aspects of custody. Absent abuse or an alcohol or drug problem, the court will try to come to a resolution in which both parents are actively involved and engaged in the children’s lives, since that is what’s in the best interest of the children.
Finally, studies suggest that living with two parents in the same household who cannot get along is much more damaging than having two parents who are outside of the same household and do get along.
If an unmarried couple has children together, are child custody and child support decided the same way as if they had been legally married?
Yes. In deciding custody, the court looks at the location of both parties, the age of the children, how involved each party is with the children, and the employment situation. Child support is based on the DissoMaster calculation, which is a standard California guideline calculation. It's the same whether you're divorcing or whether you're in a paternity situation where you were never married.
At what age can a child choose which parent to live with?
The new laws suggest that a child's preference be taken into account at the age of 14. However, with the advent of child interviews and custody evaluations in California, a child's voice is heard even under the age of 14. If the child has a preference, the court can take it into account when deciding what type of parenting plan is in the best interest of the child.