Erik Jenkins, A San Diego Family Lawyer on the Common California Divorce Issues

San Diego divorce attorney Erik C. Jenkins discusses some of the most common issues facing divorcing couples in California.

By Erik Jenkins
June 10, 2015

Getting a divorce requires resolving numerous issues related to your finances, marital property, and children. Some of the most common issues facing couples going through the California divorce system include spousal support, child support, and property division. Whether your divorce is straightforward or involves high-conflict litigation and high-net-worth asset division, you need to know about these frequent issues that can affect your future.

 
 
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Divorce Magazine Podcast: San Diego Family Lawyer Erik Jenkins Podcast on Common California Divorce Issues 
Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine 
Guest speakers: Family Lawyer – Erik C. Jenkins. Erik C. Jenkins is the founder of Jenkins P.C. and a Certified Family Law Specialist offering legal services throughout the San Diego area. In addition to litigating complex cases, he also engages in private dispute resolution as a mediator and in the collaborative divorce setting. Erik performs pro bono work throughout the country addressing legal issues unique to Native Americans. Learn more at www.jenkinspc.com.

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Read the Transcript of this Podcast Below.

How long does the average divorce take and is there anything that can be done to shorten the process?

Jenkins:
In California, there is a mandatory six-month cooling off period. Thus, the minimum amount of time a divorce will take if you file in California is six months. Depending on the cooperation level of the parties and how quickly they can get their documents together, a divorce takes between a year and 18 months.

What people can do to shorten the process includes communicating with their lawyers, providing their bank statements, credit card statements, and a tally of all assets acquired and debts incurred during the marriage. Having that information available for the attorney at the beginning of the case will dramatically shorten the process of any divorce.

What can a divorcing person do if he or she doesn’t feel their lawyer is answering their questions?

Jenkins:
The number one complaint lawyers receive from their clients is a failure to communicate. It is a problem for many clients who feel they're not receiving adequate answers to the questions they have about their divorce.

In my practice, I suggest that clients call me if they have any questions about their case. If I'm not available because I'm either in court or with other clients, then I suggest they leave a voicemail message or send an email with their specific question. Most of the lawyers I know are good about getting back to their clients within 24 hours. However, if the problem persists, you can report the misconduct of an attorney to the State Bar of California. This will get the attorney’s attention and encourage them to communicate.

What is the difference between spousal support, alimony, and maintenance?

Jenkins:
Those three words mean the same thing in family law depending on the jurisdiction in which a case is brought. Spousal support can be referred to as alimony or maintenance. Sometimes there is a blending of spousal support and child support, in which case you might hear the term family support. However, alimony, spousal support, and maintenance all refer to support given to help bring a spouse up to the marital standing of living when a divorce is filed.

How is the amount and duration of spousal support determined in California? What factors are taken into consideration?

Jenkins:
In California, there are two instances when the court addresses spousal support. Right after the filing of a divorce, the court attempts to help the lesser-earning spouse get into a position where they can survive until the trial occurs. The court looks at the needs of the supported spouse, the ability of the supporting spouse to provide for those needs, and what the marital standard of living was at the date of separation.

Once a divorce action is ready for trial, the court engages in a more thorough analysis to set a permanent spousal support amount. In addition to need and ability to pay, the permanent support amount is governed by 14 factors in the Family Code, which include the parties’ ages, whether or not the parties have children, and whether or not the supported spouse contributed to the education of the supporting spouse. The court engages in a very in-depth analysis of the parties, their lifestyle, and what is necessary to ensure both spouses can prosper in the next part of their lives post-divorce.

How common are permanent spousal support awards in California?

Jenkins:
In California, any marriage that lasts longer than ten years is considered a long-term marriage. In a long-term marriage, the standard set forth in the Family Code is that support will last until death, remarriage, or further order of the court. That means if a marriage is ten years long, the court is unlikely to terminate support absent of a showing that the supported spouse is no longer in need of support. In fact, there are cases that discuss it being an abusive discretion for a court to terminate support in a long-term marriage without good cause.

If someone is struggling to pay spousal support, can the amount be reduced?

Jenkins:
With respect to a temporary support order, a party can explain that there's been a change in circumstances and ask the court to redo the calculations for spousal support. Once a permanent support order is issued, the moving party would have to show that there's been a material change in circumstances. If the showing is made, the court will adjust support accordingly. If this is an issue for you, it's important that you ask the court to modify the support amount as soon as possible, because modification orders are not retroactive prior to the date of filing the request.

Do spousal support payments end if the recipient remarries or moves in with a new romantic partner?

Jenkins:
Spousal support orders end upon death, remarriage, or further order of the court. Unless there is something in a judgment for dissolution to the contrary, remarriage would end support automatically. If a party moves in with a member of the opposite sex and is engaged in a romantic relationship, then there's a presumption of a reduced need for support for that party. The supporting spouse can bring an action to reduce support based upon the supporting spouse living with the romantic partner.

Can child support payments end or be reduced if the recipient remarries or moves in with a new romantic partner?

Jenkins:
The income of a new romantic partner is not something the court considers in reducing the amount of child support. However, the income of a new partner could come into play if there were request for attorney's fees to be paid by the lower-earning party. In that situation, the court might consider the income of the romantic party as a factor in deciding whether or not to award fees.

How does a judge determine the amount of child support in California?

Jenkins:
The amount of child support is determined by a couple of factors: the timeshare each parent has with the children and the amount of income the parties have. There is an algebraic formula contained within the Family Code that sets forth how much support will be once the timeshare and income of the parties are calculated. In California, that figure is known as guideline child support. Most of the time, the courts will use the guideline for the purpose of establishing child support. There are situations, however, where the guideline amount is either too much or too little to adequately meet the needs of the child. In that case, the party requesting support or the party opposing the support request can make a request that the court deviate from the guidelines.

If the child's college tuition was never discussed during the divorce process, can it be revisited years later? Can the wealthier parent be ordered to pay for some or all of the child's college costs?

Jenkins:
In California, college costs are not something the court requires parties in a divorce action to pay. It's possible for the parties to make provisions pursuant to an agreement between themselves that allow for the payment of college tuition in the future. However, if the matter is not addressed in the divorce and both spouses are unwilling to do so in the future, then neither spouse can be ordered to pay college tuition for their children.

Can someone reduce or eliminate their child support payments when the child is staying with them for an extended period of time, such as over a summer vacation?

Jenkins:
Extended period of time situations are characterized by the court as visitation – as opposed to a change in custody – and would not form the basis for a modification request. In order for the court to modify child support, there needs to be a material change in circumstances as well as one of the two factors the court looks at in setting child support: either the custody timeshare or the income of the parties. Since visitation does not affect timeshare because it's a temporary situation, the court will not address it when ruling on a modification motion by one of the parties.

How do courts determine best interest in suits affecting the parent-child relationship?

Jenkins:
The lens through which the court makes its decision in any type of custody request is: what’s in the best interest of the child? First, the court looks at the statements of the parties and what the parties believe the best interest of the children to be. Second, the court looks at if the child is of sufficient age to take evidence regarding his or her wishes about the custody situation. Third, the court can look at the statements of a third party to determine whether or not a child's best interests are being met by the suggested custody plan.

In some situations, a formal custody evaluation is ordered where a professional – typically a psychologist – is asked to evaluate the parties and the children to come up with a parenting plan in the best interest of the child. However, the best interest of the child varies greatly from family to family and from situation to situation. It’s an individual analysis and unique to each family.

At what age can a child decide which parent they are going to live with?

Jenkins:
There is no magic age at which a child gets to say which parent they want to live with. The court looks at the maturity level of the child when deciding the weight given to his or her testimony. Recent legislation provided that a child of the age 14 or greater must be heard by the court, when requested by the child or one of the parties, to give input into a custody decision. However, just because the child must be heard, doesn’t mean the court is going to agree with the child's preference. The court is going to look at the maturity level of the child and what the child is asking in terms of his or her placement with the family member.

If the custodial parent wants to move to another state with the children, can he or she do so without the other parent's permission? How would such a move affect visitation schedules?

Jenkins:
Whether or not a parent can move to another state with a child without the other parent's permission depends upon the custody percentage each parent has. If a parent has more than 80% of the custody in the state of California, then that parent can move to another state without the permission of the other parent. If the lesser custodial parent has 21% or more custody, then that parent is entitled to a trial on the issue of whether or not it would be in the child's best interest to move to another state or county.

The court will engage in a custody evaluation where a psychologist evaluates the family and determines whether or not it's in the best interest of the child to move. The court looks at whether or not the move is designed to thwart the custody of the lesser custodial parent or whether it's being done for a legitimate purpose, such as moving to be near a family support network or moving for a job that's not available in San Diego. This applies not just to moves out of state, but also to moves out of San Diego County.

Do all custody issues need to be resolved before a divorce can be granted?

Jenkins:
Before a divorce can be granted, all custody issues need to at least be addressed by the court. The court can have a temporary custody order in place and still grant a judgment for dissolution. In reality, there's no such thing as a permanent custody order. All custody orders are in flux because the parent-child relationship is always in flux. Either party has the right to bring an action to modify or change custody at anytime. As long as there is a custody order in place, the court has the jurisdiction to enter a judgment for dissolution. Either party has the right to go to court and ask that the custody determination be modified at anytime in the future.

Under what circumstances can an existing visitation agreement be changed?

Jenkins:
It depends whether the visitation is part of a temporary custodial agreement that can be changed by making a motion before the court. If it's a permanent custody order – known as a Montenegro order – then the order has to be requested through a showing of material change in circumstance. Either party has a right to file a motion asking that the visitation schedule be modified. It's not a requirement that there be a material change in circumstance, because visitation schedules are always temporary.

If one parent is not exercising their visitation rights with their children – for instance, they never show up or they show up late – can the other parent have the visitation revoked or reduced?

Jenkins:
Yes. It would go to a best interest analysis and it's fairly easy to show if one parent is not showing up for visitation, is dropping off the kids early, or is erratic in their exercising of visitation. If the other parent goes to court and says the conduct is not in the best interest of the child, the court will agree if the showing has been made and will adjust custody or visitation accordingly.

What option does a parent who's a recovering alcoholic or drug addict have regarding gaining custody now that he or she is sober? What factors will a judge take into account when considering this request?

Jenkins:
It’s a difficult request for a party to make. There are many situations where a parent loses custody because of a drug or alcohol issue. The courts want to see a legitimate, serious attempt by the party to address their addiction issue. If it's an alcohol issue, for example, and the party has gone to A.A. and therapy to try to address their alcohol problem, and there is documented evidence that they have been sober for a period of time deemed sufficient by the court, then it's perfectly appropriate – and, I would argue, necessary – for that parent to try to regain at least some amount of custody with their children.

When there's a history of addiction by either parent in a divorce action, the courts are very careful not to throw the kids back into the custody of a parent who simply comes in after three months and says, “I've been sober.” The court wants not only to see that the parent is making efforts to maintain sobriety and address their addiction, but also to test the parent to make sure they can handle custody.

When a parent has lost custody because of addiction and we try to regain custody, I often see an initial court order in which they're given a very limited amount of custody with the child – sometimes initially supervised. The court waits to see how it goes for a couple of months and then there is a step up order where custody is gradually increased over time to whatever it might have been prior to the addition issue surfacing. Assuming the parent can maintain their sobriety, their chances of regaining a custody amount close to what it was prior to the addiction issue surfacing are quite good.

After a particularly bitter custody battle, if the custodial parent is concerned that the other parent is going to snatch the kids and leave the country, is there anything he or she can do to prevent this from happening?

Jenkins:
Yes. There are situations in which the court has the power to grant a custody order on an ex parte basis – meaning an emergency basis. One situation is if there is an immediate risk the child will be removed from the state. If one of the parents, for example, has covertly obtained passports for the children and has purchased plane tickets to a foreign country without telling the other parent, then the odds of getting an emergency custody order are very high if the other parent finds out and brings the evidence into court. In fact, the statutes that address emergency custody orders list that as one of the bases under which the court has jurisdiction to make those types of emergency orders.

What is the difference between marital or community property and separate property?

Jenkins:
Separate property is property that a party had either before the date of marriage or after the date of separation, or property that a party inherited or received as a result of a lawsuit, such as a personal injury lawsuit. Community property or marital property – we call it community property in California – is property that's acquired during marriage. Community property would include not just physical property, but also debt acquired during the marriage.

If one spouse received annual bonuses during the marriage and put them into a savings account in his name only, are those funds considered community or separate property?

Jenkins:
If the bonuses were earned during marriage for work that was done during marriage, then the bonuses are community property even if they're in an account that only has one spouse’s name on it. Upon divorce, the account would be split up as community property, regardless of whose name is on the bank account.

If somebody inherited a sum of money and then used it to do a home renovation, buy a car, or take a dream family vacation, is there any way they can claim it as separate property now that they're getting a divorce?

Jenkins:
Yes. Statute 2640 in the Family Code addresses separate property contributions towards the acquisition or improvement of property. In this situation, the party is entitled to a dollar-for-dollar credit upon divorce for any money they put into either the property or improvements to the property. If it was money the party had prior to the date of marriage that they used, for example, towards a down payment on a home or if they inherited money from a relative and put a new deck on the community residence, then they would be entitled to reimbursement upon divorce.

How does a 50/50 split of assets work?

Jenkins:
In California, the courts try to divide the marital estate as evenly as they can. A 50/50 split is really referring to a division of the community assets, but not necessarily all of the assets the parties have.

In a divorce, the courts look at the assets and debts of the parties that were acquired during marriage and also the assets and debts that were acquired either before the marriage or after the date of separation. When we're dealing with property issues in a trial for divorce, the court tries to sift through what property is separate and what property is community. The court does the best it can to divide community property as close as possible to 50/50.

Sometimes it's not possible to make an even split because one property, like the house, is worth much more than all of the other property. If one party is awarded the house and the other party can't get enough property through the marital estate to equalize the amount the house is worth, then the court will order an equalization payment to level out the value. Each side receives as close as possible to an even split of the community portion of the estate.

For more information about Erik and his firm, visit www.jenkinspc.com.

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