A variety of factors may affect the legal outcome of your divorce, including the length of your marriage, your living expenses and income. It’s important to understand how the state of California handles the legal aspects of divorce, from alimony and child support to asset division. It’s also valuable for divorcing parents be aware of the elements that may influence child custody arrangements. To further the discussion, we asked California divorce lawyers Brian Brandmeyer and Janet Dockstader some common questions surrounding those factors that influence divorce outcome to help you stay in-the-know when it comes to the factors that influence divorce outcome in California.
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Hosted by: Dan Couvrette, CEO, Divorce Magazine
Guest speakers: California divorce and family lawyers Brian K. Brandmeyer and Janet Dockstader. Mr. Brandmeyer is one of the founding partners at Brandmeyer Gilligan & Dockstader, LLP and serves as the firm’s Managing Partner. Mr. Brandmeyer has had extensive experience in handling complex financial issues relating to divorce, including business valuations, cash flow analysis and property determinations and child custody disputes.
Janet E. Dockstader is a native to Long Beach, California, and is a partner with Brandmeyer Gilligan & Dockstader, LLP. She has more than a decade of experience litigating marital and domestic partnership dissolutions that include property issues, spousal support, child support, child custody and often times, domestic violence. In addition, Ms. Dockstader is experienced and trained in negotiating marital settlement agreements to avoid court intervention.
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Read the Transcript of this Podcast Below.
On Factors That Influence Divorce Outcome in California
Dan Couvrette: What is a parenting agreement? How do I create one?
A parenting agreement is a schedule that outlines each parent’s time with the child, including days and times. Frequently, the parenting agreement will not only consider the standard week but there may be a different agreement concerning specific holidays and school breaks. For instance, a parent who has custodial care of the child 1 night every week and then alternating weekends, may alternate the entire week during the summer if it is appropriate in regards to that parent’s work schedule.
When creating a parenting agreement, the parties should consider that the public policy of California is to assure that both parties have frequent and continuing contact with both parents. To accomplish this, the parties should consider each party’s work schedule and the child’s school schedule and then outline a schedule that will allow both parents to successfully take part in the child’s life.
What does “reasonable visitation” mean?
If parties stipulate to “reasonable visitation” they are essentially assuring the court and the other party that they will cooperate in working out timeshare for the visiting parent. This wording assumes that the parties will exercise flexibility by considering both parties’ schedules and the child’s schedule and needs. Rarely is this wording recommended because practically speaking it gives the custodial parent the majority of the control and leaves the visiting parent with no recourse other than returning to court for more specific orders if the “reasonable visitation” is not followed.
Do I have to force my child to visit his mother if he doesn’t want to?
Generally, parents should understand the importance of a child having a strong bond with the other parent and should encourage the child to go with the other parent even against the child’s wishes. As for forcing the child, the answer is largely dependent upon the child’s age. A 6 year child who does not want to leave the custodial parent should be forced to go with mom, understanding that this should be done with love and compassion. However, if the child is 15 and dad fears that the child will run away if forced to go with mom because of mom and child’s volatile relationship, then although father should encourage the 15 year old to go with mom, forcing the child may prove to be more harmful than beneficial to the child.
If the custodial parent is concerned that by forcing the child to go they are placing the child at risk of harm, then the custodial parent should immediately return to court to seek new visitation orders.
The custodial parent should encourage the child to visit the other parent. However, there are circumstances
We have moved since the divorce. Which state’s law controls? (JJG)
Under the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”), the “home state” is the state where the children have resided for the previous 6 months. However, if one parent remains in the state where the divorce decree was rendered, that states retains jurisdiction even though the home state of the child maybe another state where the children have moved to. For example, if you obtained your divorce in California and the decree was rendered in California but you moved with the children to New York and lived there with the children for more than 6 months, even though New Your becomes the “home state” do to the fact the children have resided there for the previous six months, California retains jurisdiction if the other parent continues to reside there. If, however, that parent moves out of California as well then the home state becomes the state who has jurisdiction.
If issues arise which cause the custodial parent to file an action with the court for modification of custody, using the example above, the parent that moved to New York with the children would register the California decree in the state of New York, open up a case in the state of New York, and then proceed to litigate the case in New York. If, however, the other parent continued to reside in California, the New Your parent would need to initiate an action in California where the custody decree was rendered. In summation, if one of the parents continues to reside in the state where the decree was rendered, that state controls. If both parents have moved out of the state where the decree was rendered, the “home state” of the children is in control.
If one parents moves out and leaves the kids with the other parent, does it hurt the moving parent’s chances of getting custody at a later date?
It depends on a lot of circumstances. However, I frequently caution clients from moving out for the following reasons:
a. The remaining parent is probably spending more time with the children, which is beneficial for them;
b. The remaining parent is in a house that the children are comfortable and secure in, which is beneficial to them;
c. The remaining parent is going to keep the residence; the court willbe more reluctant to move the children out to be with the moving party as a primary parent.
d. However, other reasons may favor the moving parent. If it can be proven that the conditions in the house are intolerable or there is domestic violence, and the moving parent’s reasons for moving out were definitely in the best interest of the children to separate them from the conflict or danger.
I’m not certain my lawyer has a good handle on the financial aspects of my divorce. What should I do?
I would suggest a second opinion from an attorney that has a good reputation on financial and business issues. I would obtain as many of the
appropriate financial documents as many of the pleadings in the case that are relevant to provide the second lawyer a basis to discuss and opine on the financial issues. If there were settlement proposals or any form of MSC or Trial Briefs, that would be helpful to the lawyer on his second opinion also.
Will the court consider high living expenses such as loan payments and income taxes when determining one’s ability to pay child support?
In California, the guideline child support program is tax oriented. With respect to loan payments, ordinary loan payments are not considered,
because child support takes priority as far as payment by the paying parent. Secondly, if the loan payments are for the mortgage, car payment or a loan that the payor has no discretion in deferring, that may be a factor to be entered into the guideline child support program, or to deviate from the guideline child support program.
I have been a stay-at-home wife for 15 years. Do I qualify for alimony in California?
Generally, a marriage over 10 years is considered a marriage of long duration which may affect the duration of a spousal support award if awarded. However, there are other factors that the court will consider in making its determination as to whether spousal support will be awarded.
Parties need to realize that the court has broad discretion in granting or denying spousal support, which means the court has broad discretion in fixing the amount of the support as well as the duration of the support.
In making or denying an award of spousal support, the court will consider a number of factors. In general, the court’s discretion is restricted by the parties’ standard of living established during the marriage and by one spouse’s need for support against the other spouse’s ability to pay support. The court’s discretion is also limited to the present circumstances of the parties, meaning their current earnings.
Among the most important factors to be considered by the court is the legislators expressed goal that a supported spouse becomes self-supporting within a reasonable period of time. When a marriage lasted less than 10 years, the court will generally provide the supported spouse half the length of the marriage to become self-supporting. A marriage of 10 years or longer, however, is considered a marriage of long duration which provides the court the power to award support for as long as the court determines is necessary.
My spouse is in charge of our household finances but barely provides me with enough to keep the cars running and buy food and clothes for the kids. Can I sure for child support?
You cannot sue for child support unless and until you separate from your spouse, under Family Code §3602. However, separation can occur with you and your spouse still residing in the same household. However, you must complete a petition for either legal separation or dissolution of your marriage at which such time you may request guideline child support and spousal support if you believe your spouse is not paying you enough. Before doing so, however, you should seek the services of an experienced certified family law specialist who can give you advice on the amount of support you would receive in the event you went to court since it could be less than the amount your spouse is currently paying you.
I think our existing child support order is unfair. How can I change it?
Child support is governed by the state wide child support guidelines. There are several computer software programs which calculate these state wide guidelines and they are subject to very little discretion by the courts. The way it works is for both parents to enter into the computer program their monthly gross salaries. If income fluctuates, the 12 month average salary is typically used. There are certain deductions allowed such as medical care, union dues, mandatory retirement deductions, sums being paid to support children of other relationships, and other similar type deductions. The amount of time that one spends with each child or children is inserted upon the premise that if you spend less time the more the expenses are for the other parent which results in a higher amount of child support being paid by the non-custodial parent.
There are several tax related items that are input into the computer program such as the interest deduction taken on a residence along with property taxes and extraordinary medical expenses. There also maybe a hardship deduction for children you have custody of from other
Once all of this input data is put into the computer software program, it calculates a number which sets forth what the child support should be. The court cannot deviate from this number except in rare instances such as where the paying parent earns “extraordinary” income.
Therefore, since the amount of child support that a parent is obligated to pay to the other is for the most part not discretionary, “fairness” is not
relevant. Therefore, just because one believes the child support order is “unfair”, it does not necessarily believe it is the wrong amount being paid. Accordingly, before filing a Motion to the change the amount you are receiving you should consult as experienced family law attorney.
Who gets to claim the child as a dependent?
As a matter of law, the person receiving support is entitled to claim the child as a dependent for Federal and State tax purposes, said factor is built into the guideline child support program calculation. However, if there is more than one child, negotiations between the parties can often lead to dividing the dependents between the parties for various reasons (i.e.: affecting their filing status, level of taxable income by dividing the dependents may result in the receiving spouse receiving more support and the paying spouse paying less taxes), so it is a win win situation for both parties.
What happens if a person falls behind on child support payments?
The payor should be advised that unpaid child support is in fact, a judgment, with each installment payment that is due baring 10% interest, and often times when they do not pay it over a period of time, it becomes a significant judgment, which becomes a real burden that doesn’t have any limitations as to when it can be used and executed on wages or property of the non-paying obligor. Furthermore, on child support arrearages, there are remedies available to the recipient of the support, such as wage assignment, write of execution that may be obtained against wages or assets, or contempt charge against the payor.
Is it better to give or receive one large lump sum payment up front than monthly spousal support payments?
Spousal support should be paid until the recipient ex-spouse either dies, remarries or the court makes an order terminating the support. If you believe one of the terminating events will occur in the near future, that is if the recipient spouse is old and sickly and is not expected to survive very much longer or if the recipient ex-spouse intends to remarry, a lump sum payment is better. If it exceeds the amount that is predicted to be paid on a monthly basis up until one of these terminating events occurs. If the recipient ex-spouse does not intend to remarry or is young and healthy, it probably is better to receive spousal support in payments due to the fact the payments go on indefinitely until the court makes a different order. A court can only make a different order if there is a substantial change of circumstances from the time the previous order was made. A substantial change of circumstances occurs when the recipient ex-spouse earns a sufficient amount of money to support the recipient spouse in the same lifestyle enjoyed during the marriage. This is usually very difficult to attain. Also, if the marriage of more than 10 years, the court cannot terminate the marriage based upon the length of the marriage. Accordingly, if the recipient spouse is young and healthy, has no plans to remarry and if the marriage is in excess of 10 years, there will be very little likelihood that a lump sum pay off would be better than receiving monthly payments except, of course, if the lump sum is substantial, meaning the present date value of the lump sum exceeds the amount to be anticipated in payments over time.
What happens if my spouse fails to disclose a bank account?
If the account was significant, it may be worth pursuing as a breach of your spouse’s fiduciary duty. Basically, the law provides that spouse’s have a fiduciary duty to one another that imposes a duty of the highest good faith and fair dealing on each spouse and provides that neither shall take unfair advantage of the other.
If a spouse’s actions result in impairment of the “undivided one-half interest in the community estate then the innocent spouse may pursue a number of legal remedies. If the impairment is due to one spouse intentionally not disclosing an asset during the pendency of the dissolution then the court could find that such a failure to disclose the asset constitutes fraud, oppression, and malice which could mean that the innocent spouse could be awarded 100% of the non disclosed asset.
My spouse is a dentist and I’m wondering if I’m eligible to receive a portion of her business?
All assets, including a business, acquired during a marriage if presumed to be community property. Therefore, if your spouse acquired the dentistry practice during the marriage, it is one-half yours. I will assume that you are not a dentist and therefore unable by law to practice dentistry. Accordingly, there is only two ways to resolve the issue of you obtaining your one-half interest in the dental practice, either it is sold with the proceeds divided or your spouse, the dentist, buys you out of the practice. Typically, the dentist does not wish to sell the practice since it is her source of livelihood. Accordingly, the pay off procedure is the one typically employed to buy you out of the business. A forensic accountant would need to be appointed to value the practice. It could be paid off by the dentist in a lump sum payment on a designated date or over time. Also, other assets could be used for your ex-spouse to buy you out of her practice. For example, the family residence could be valued in an amount approximately equal to the dental practice. In such a case, the court could award you the house and the court could award the dental practice to your former spouse as an equal division of those two assets. In such an event, your interest in the dental practice is paid to you by offsetting it against your spouse’s interest in the family residence. This can be done with any other asset of the marital estate as well.
My spouse and I own a number of businesses but I have no involvement in the businesses and I have no idea of their value. How do I make certain I’ll get my fair share? What if I need to buy my wife out of the business, what are my options?
Regarding the value of the business, they will most likely need forensic evaluations to determine value. It is possible the business is small, that just a review of the financial statements will supply sufficient information to make a determination of valuation or cash flow available for support. The most certain solution would be to obtain a qualified forensic accountant that specializes in business evaluation. As far as husband buying the wife out of his business/businesses, he has various options. One is, award her other assets that have offsetting values to the value of the business. Secondly, take out a loan on his business or assets to buy her out. Third, buy her out on installment basis. Fourth, combination of the above, and fifth is some restructuring/alteration of the spousal support to include a higher spousal support would be to give her additional monies for a buyout of the business, and give the husband additional write off for spousal support.
For more on California divorce laws, read up on Understanding California Divorce Law.