Learn the difference between divorce and annulment, and the various issues that may arise during the divorce process. Can you still receive spousal support if you remarry? Are gifts considered marital or separate property? These are just some of the questions that may come up during and after your divorce.
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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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What is the difference between divorce and annulment?
Salomon. A divorce is for married persons, as well as annulment. The primary difference between the two is both of them are going to restore you back to a single person. However, with a dissolution, you're going to be presumed to have been married to that person that you're divorcing. Once a judgment is entered, then you are restored back to single persons. You are labelled a divorcee after the proceedings are over.
With an annulment, it’s as if you were never married to that person before. You have to meet very specific requirements in order to qualify to have an annulment. Since it erases you being married, there's no community property created. If you're a party who purchased a home during the marriage and you earned significantly more than the other person, and now you're getting an annulment, you don’t have to deal with spousal support. You don’t have to deal with dividing community property because, in essence, there never was any community property because the law is looking at you as if you had never been married.
Why would somebody choose one of these over the other?
Salomon. It always will affect child support if you have children because child support is awardable even in cases where the parents were never married. In situations where you have paternity, child support is always an issue.
Another distinction with the annulment would be if you accumulated retirement assets over the years, deposited bonuses that you received from an employer or acquired stock from an employer, or opened a business that's successful during the marriage, because then an annulment would seem much more advantageous if you were the party that acquired all of these assets during the marriage. That would be much more advantageous because you wouldn’t be susceptible to the community property laws in California.
Some parties don’t want to presume to have been divorced and have that stigma. They feel like the other party has wronged them. For example, he promised me that he was going to move to California and we were going to have five children. When I got married to him, he decided he's not moving here and he wants no kids. At that point, it's mental and emotional, and some people don’t want to have that label that they were married to this person and want the marriage annulled.
Can someone make their spouse leave the marital home before their divorce is finalized? If so, how is this accomplished?
Salomon. There are specific circumstances and there's a threshold you have to meet in order for one party to be removed from the home. Of course, if both parties agree that someone's going to move out, then that can happen. But absent an agreement, there has to be a showing of emotional harm to the other party or emotional harm to the children from the party staying.
There can be grounds for a restraining order to remove that person from that home, but there are specific requirements to meet that threshold because during a divorce both parties can remain in the home for the duration of the divorce. A lot of people think that once you file for divorce, someone has to move out. That's simply not true. Both parties can reside in the same home until the dissolution has been resolved. However, that’s usually not the case, and one party does typically move out. But you can't force the other party out absent some type of a abuse, emotional harm or grounds for a restraining order.
Does someone have to continue paying spousal support if their ex moves in with or marries a new romantic partner?
Salomon. The way the law works is there's a presumption against spousal support if a party is cohabiting with someone of the opposite sex or even of the same sex if it's a relationship, a loving relationship or partnership. It's a presumption against spousal support, and the burden to overcome that presumption is on the party receiving support.
If you’re getting a house mate to pay the bills, for example, there's an argument there that spousal support should be reduced because you're now getting income from a second person or a third party that is able to assist you to make ends meet. It’'s always an argument, but the code is pretty clear with respect to the presumption against spousal support since it states that it's from someone of the opposite sex. It doesn’t have to be a loving relationship but it's implied in that statute. Given the case law that supports the statute that if you are living with your boyfriend or your girlfriend in a romantic relationship and you're sharing the expenses of the household, unless there's a decrease need for spousal support, spousal support will terminate upon remarriage. If you're married and you get a divorce, and your husband or your wife is paying you spousal support and then you remarry, upon you remarrying, spousal support terminates.
Has the statute been revised since gay marriage has become legal?
Salomon. There is a code section that allows for all of the provisions in the family code to apply to parties of the same sex. It runs across the gamut. I've used that argument before and it has worked. There is a presumption against awarding a party who's of the same sex in a new relationship. That same presumption does apply.
Can someone reduce their child support payments if their child is staying with them for an extended period during summer vacation or winter break, for example?
Salomon. Child support is calculated based on the percentage of time both parents spend with the child. In essence, if you have a winter vacation, and summer and spring break, holidays are included in increased custodial time, and that's all factored in in the calculation in determining child support. If it's a one shot ordeal like, “Oh this summer the child's staying two weeks,” it's usually not worth going on in a modification of child support. But if it's a significant change of circumstances where the child is now spending significantly more time in your household, then that may be the threshold you need to go back in to modify child support.
Is child support always payable to the parent with primary physical custody? If not, what factors will a judge consider when awarding child support?
Salomon. The two primary factors that really skew the DissoMaster is the percentage of time each parent spends with the child and the income of both parties. There's a lot of factors that go into it: mandatory retirement, union dues, child care, health care insurance premiums, etc. There's a lot of other factors, but the two really motivating forces on the DissoMaster are the timeshare and the income of both parties.
If the custodial parent does not allow the non-custodial parent to see his or her children, can the parent who is being denied access stop paying child support?
Salomon. No, they cannot, and if someone is not visiting their child because the other party is preventing them, they have to go in to enforce or file a contempt, or ask for an evaluation as to why the other parent is not following the court orders. But it's not an automatic right to modify child support. Child support has to be modified by the court, and until it is, it has to be paid. Someone denying visitation is not grounds to modify child support.
If the payor is constantly late or short with his or her child support payments, what can the recipient do to ensure receipt on time and in full?
Salomon. If they're a W2 wage earner and they're getting paid, the other party is paid by paycheques. You can do a wage assignment, and the amount of child support each month is collected from their cheque before they see it and it is sent to the state disbursement unit, and then directed to the parent who is supposed to be paid.
If they’re self-employed, then that becomes an issue because they write their own paycheques and they determine when they're going to make that payment and when they are not. Aside from filing a contempt or filing a motion for arrears, and tagging on interest for late payments, it really gets tough trying to get someone who is self-employed who doesn’t want to follow the rules. There's mechanisms such as contempt. Another option could be getting the child support from a retirement account if it becomes that much of an issue. Typically there are issues if a self-employed person is writing their own paycheques and decides not to pay their child support. Other than that, there's wage assignment, which works wonderfully if the paying spouse is working.
Child support is based on each party's income, and a modification of child support is warranted if one party's income is drastically reduced or if they are no longer employed.
Do parents have to resolve all of their custody issues before finalizing their divorce?
Salomon. If they don’t resolve their custody issues, then the court will resolve it for them. There's always a final determination. Either the parties will agree to it or the court will make that determination.
Does fault make a difference when it comes to property division? Can having an affair make a difference when it comes time to divide property?
Salomon. California is a community property state, so infidelity does not weigh into how much community property you're going to be awarded. However, if you have absconded with $50,000 that you took out of a secret line of credit on the family residence, and now it comes time to dividing the equity in the house and your spouse learns of this $50,000 that you withdrew from the equity line of credit they knew nothing about, then fault does come into play and sanctions come into play.
Because you have a fiduciary to your spouse, the argument could be made that you breached that fiduciary duty when you took out an equity line of credit for $50,000 and didn’t tell your spouse why, when, and what the funds were used for. That $50,000 would of course be charged to you, and then the case could be made that you should be sanctioned under Family Code Section 271 or that you've breached your fiduciary duty to your spouse by taking an action unilaterally during the marriage.
If one spouse used some of the family's money to fund the affair, would they have to reimburse the other spouse?
Salomon. Yes, that's a misuse of community property funds.
Does separate property always remain separate throughout a marriage or are there ways of transforming it into community property?
Salomon. Separate property remains separate property unless you gift your separate property to the community. The way you can gift your separate property to the community is by paying community property debt with your separate property by purchasing your spouse a car in their name with your separate property. There's ways to gift your separate property, and there's ways to keep it separate and not co-mingle it.
Are gifts between spouses separate or community property?
Salomon. That's always the big issue because one party always claims it was a gift and the other party claims it was not a gift. It becomes an argument and one which the court will parse out if the parties cannot agree. Wedding rings are considered separate property, so if you give your spouse a wedding ring, that wedding ring is their separate property. It just depends on the credibility and honesty of both parties as to whether something was a gift or not because it's usually a he said, she said. No one has the video showing this birthday present was gifted to me on my birthday, but if you gift to your spouse something during the marriage, technically there's a strong argument that the gift is their separate property. However, typically it becomes a he said, she said, and parties end up settling those disputes before trial.
How common is it for men to get restraining orders against their wives?
Salomon. It's not something that is precluded based on gender. Typically, it's the female getting the restraining order against the male. However, men do sometimes have to obtain protection, but it's not a common occurrence that we see often.
Do you find that men feel that there's a stigma against filing a restraining order against their wives?
Salomon. They probably keep it under wraps. I haven’t come across a domestic violence situation with a male that didn’t want to obtain a restraining order because of fear of a stigma or not feeling like they're manly enough if they were to obtain it.
Can a restraining order stop one parent from taking the children away from the other parent, perhaps even from out of state or out of country?
Salomon. A restraining order can preclude either party from removing the minor child out of the state of California or out of the United States.
If someone got a restraining order to prevent their ex spouse from seeing his or her children, what can the parent do to regain custody or visitation?
Salomon. The most typical thing is to fight the restraining order if it was not based on proper grounds. Absent that, there's batterer intervention classes, parenting classes, and counselling. By showing that you've been to therapy and you're in some kind of 12-step program, you can overcome the presumption that it's not in the child's best interest for you to have custody