Divorce or dissolution is the termination of a marriage. After a minimum six month waiting period, both parties are returned to their “unmarried status” once the court grants the divorce. Divorce orders can address child custody, child support, spousal support, property, debt, employment benefits, medical benefits, taxes, domestic violence, attorney fees, and information disclosure. These orders are usually finalized in a Marital Settlement Agreement, or via court order.
If you’re just not ready for a divorce, legal separation may be the answer for you. Legal separation does not terminate your marriage, but does divide the marital estate with all the scope of orders available under a divorce proceeding. Legal separation is often chosen instead of divorce for religious or moral reasons, or insurance or government/military benefits. If legally separated, you may be able to retain certain rights such as health care, beneficiary designation, or tax status, while having terminated or separated the community property and support rights.
When minor children are involved, the court can determine how the parents share the decisions and care of the children. Child custody includes visitation rights (how the parents will share time with the children — often referred to as “parenting time”).
There are two components to child custody: legal custody and physical custody. Legal custody refers to the parental decision-making power regarding school, medical treatments, religion, etc. Physical custody is just what it sounds like — who has physical custody and control over the children. For example, some parents share joint physical custody, in which the children spend alternating weeks with each parent. The physical custody structure is defined in a court order or custody agreement (including custody during holidays and school breaks) commonly referred to as a “parenting plan.”
Couples who were not married and have children can raise the issue of child custody via a parentage action.
Child support is based on what is in the best interests of the child. It is an obligation for support owed to the child by a parent. A common misperception is to view support as an obligation to the payee (person who is paid the support). This is incorrect; the obligation to pay child support is owed to the child.
Child support is calculated using a California Child Support Guideline Calculator, which is a program that runs the state mandated child support calculation. Child support is based primarily on income, itemized tax deductions and timeshare. Child support can include orders regarding past due child support (arrears), reimbursements, mandatory add-ons such as day-care and medical expenses, and optional add-ons like extracurricular activities or school costs.
If your income or circumstances change, remember that you are responsible for filing the motion to modify the current support order. Otherwise, the order remains in effect regardless of your timeshare or present incomes. A child support order is extremely difficult to modify for any payments that are already due; so absent filing a motion to modify as soon as a change of circumstances occurs means that the current support must be paid.
Spouses are obligated to support each other during marriage, when there is a divorce or legal separation pending, and after case conclusion. Spousal support is based on marital lifestyle, current circumstances, and length of marriage. Spousal support is taxable to the recipient.
Temporary spousal support exists during the course of litigation. It is based on a calculation defined by local county rules using similar factors to child support guidelines. Permanent spousal support, paid after the case is concluded, is based on the Family Code 4320 factors. A court cannot use the guideline calculator. If a marriage is of short duration (under seven years), the length of obligation is half the length of the marriage. In longer marriages (ten or more years), the obligation to pay support is more enduring, but generally decreases over time or is terminated by remarriage, death, agreement, or change in circumstances. Unlike alimony, in California a person is expected to become self-sufficient over time.
You should consider a divorce when there is no possibility for reconciliation or no way to repair the marriage.
Divorce can be a very hard process, emotionally and financially, even for those who are “ready” to leave their marriage. Thus, it is not a decision to make lightly or half-heartedly. We don’t encourage our clients to divorce; however, in certain circumstances, we do recommend our clients take the first step to end the marriage. These situations include:
Severe emotional abuse
Or a risk of flight, child abduction, liability or asset loss
We encourage our clients to do what is best for them and for their family. Whether that means marriage counseling or filing a petition for dissolution, we advise our clients honestly.
Child custody should be resolved early, either via public or private mediation. Alternatively, child custody evaluations can be used to resolve serious issues.
Child custody is focused on the best interests of the children, creating a clear visitation schedule that is modifiable only after showing a change of circumstances. If necessary, specific orders can be provided to resolve parental conflict.
California policy supports a child having a loving relationship with both parents. Usually, this means an equal timeshare between the parents. However, if there are allegations of neglect, substance abuse, domestic violence, sexual abuse or emotional abuse to the child, it is strongly recommended that the child’s time with the “abusive parent” be limited or, in some cases, supervised by a third party. We encourage this policy, having successfully guided clients through a wide-variety of child custody issues in partnership with child custody counselors.
Support should be pursued where there are minor children involved and the parties have a difference in timeshare or income. Child support is always modifiable after showing a change of circumstances. The state guideline for changed circumstances is when greater than a $50 change of support is owed.
Remember, you have the duty to file a motion to modify the current support order if your circumstances change. Support modification and enforcement can be pursued through the family court unless the Department of Child Support Services (DCSS) is involved. When DCSS is involved, there is a separate court to resolve support issues. The attorney for DCSS represents the children, not you or the other parent.
Collaborative divorce focuses on the “whole picture” by helping the parties complete the divorce process as amicably as possible so that they are able to move forward and have a positive relationship even after the marital relationship has ended. This is accomplished when both people agree NOT to litigate, but rather to work together in privacy with a team of experts. Each person has an attorney and a divorce coach, and the team can also include a child specialist, and a financial expert if needed. The team works together to help the parties come to a mutual agreement to end the marriage.
A collaborative divorce is often easier on everyone involved. It helps ease the pain of a messy divorce, and normally costs less because litigation is typically much more expensive and much more destructive to relationships — for parents and children, moving forward.
A mediated divorce uses a third-party, neutral mediator to assist with the settlement agreement. You have the power to decide which issues to raise in mediation. The mediator does not represent either party, and as such any contact with the clients has to be with BOTH people. The parties can negotiate privately to resolve all marital issues either under their own terms or using legal benchmarks. The mediator is flexible, only operating under agreement of the parties, and voluntary, having no independent power to force issue resolution.
An attorney represented divorce retains the right of the parties to refer a matter to the court for resolution — in other words to litigate. In attorney represented divorce, the parties can still negotiate; however, the failure to openly disclose information or come to agreement terms may be resolved via court intervention. In contrast, collaboration and mediation terminate if such issues cannot be mutually resolved.
In the attorney representation model, an attorney is retained as the attorney of record in the matter, and acts as the primary point of contact and litigator on your behalf. The attorney provides legal advice on strategy and represents you at court proceedings and in negotiations. The strategy is implemented via paralegals who draft legal documents (such as motions and disclosures), file required court paperwork, and gather necessary information from you.
An attorney assisted divorce is only for people with relatively simple divorce cases or extremely limited funds. An attorney assisted divorce is a “document only” service. The attorney is not retained to represent, negotiate or act as agent of service of process; instead you continue to represent yourself. A paralegal prepares your legal documents to be submitted to the court for filing. All paperwork is drafted in your name, based on the information you submit to the attorney’s office.
In a do it yourself divorce, you attempt to navigate the complex procedures and paperwork necessary to complete a divorce on your own by surfing the California Court self help website: www.courts.ca.gov. However, every county has unique local forms and lengthy court lines. To avoid wasting time and energy, a paralegal can certify your paperwork for filing and coordinate a process server to wait in line for you.
What are risk signs in divorce?No conflict resolution, lack of cooperation or trust, binge spending, emotional disengagement, substance abuse, physical abuse, emotional abuse, financial abuse, flight risk, abduction risk, hiding of assets, asset complexity (due to family business, self-employment, pre-marital assets or inheritance), or relationship complexity (due to involvement of grandparents, new relationships or siblings) are all signs of a divorce that is too complex for mediation or collaboration.
McCunn Law offers comprehensive legal services with attorneys serving clients in Roseville, Folsom, Elk Grove, Sacramento County, Rocklin, Placer, Rancho Cordova, Citrus Heights, Auburn, Lincoln, Placer County, Granite Bay, Galt, Loomis, Penryn, Colfax, Forest Hill, Newcastle, Antelope, Carmichael, Natomas, Orangevale and Wilton, as well as other cities in Placer County, Sacramento County, El Dorado County, Yolo County, Sutter County and Amador County.