Answers to Common Questions About Divorce

The length of a marriage is measured by the date of separation, not the date the divorce is final.

In California, couples technically don?t get divorced, but dissolve their marriage based upon a no fault concept.

"Legal Separation" occurs when the separation is the complete and final break. A Judgment may be obtained declaring your marital status as Legally Separated.

Spousal Support - Alimony

Marriages of 10-years or more are long term marriages. The court has greater restrictions to terminate jurisdiction over spousal support orders when the marriage is "long term."

Temporary Spousal Support is based upon a formula. The Spousal Support ordered after trial (called the Permanent Order) is based upon a number of factors, which include: marital standard of living; length of marriage; earnings/earning capacity; health: education: et al.

Child Support

Child support is based upon a formula considering: the net after tax earnings or earning capacity of the parents; and the percentage of time that each parent spends with the child.

Earning capacity means the amount of money a parent is capable of earning, even if that parent is not employed. Thus, in setting support, the court can consider the "earning capacity" of a stay-at-home parent, or a parent who quits their job.

The amount of money that one parent spends on clothing or extra-curricular activities of a child is usually not considered in setting child support.

If requested, child support will include ½ of reasonable child care costs necessary for the parent(s) to work or obtain training to work..

A parent cannot bankrupt out of child or spousal support.

Child Custody & Visitation

Stability (often referred to as "Status Quo") is the key consideration by the court in setting a custody and visitation plan.

The most common visitation plan ordered by the court is: moms have primary physical custody; dads have every other weekend, 1-weekday, and shared holidays and vacation.

The legal test to modify a custody/visitation Order is whether there is a substantial child based change of circumstance. Change of circumstances include: domestic violence, poor school performance, child incorrigibility; drug/alcohol abuse (parent or child).

It traumatizes children to hear derogatory comments about either parent. Luring the child away from a parent can damage their psyche.

The Primary Custodial Parent has broad discretion in selecting the child care provider

Property

"Separate Property" is property obtained before marriage, after the date of separation, or by gift or inheritance. This means that the wedding ring is the separate property of the wife.

"Community Property" is property obtained during marriage and before the date of separation. Whether the couples spend or save, it is all community property, regardless of the name on the account or credit card. These assets and debts are subject to the "equal division" rule.

The spouse who either uses separate property money to purchase jointly held property, or who puts the other spouse on title to separate property, is entitled to off-the-top reimbursement of their separate property, but no interest.

Assets/debts are valued as of the date of division, except for small businesses, which are valued as of the date of separation.

The "community" obtains an interest in the separate property of a spouse to the extent that community funds are used pay down the mortgage, plus a percentage of appreciation of the property as it relates to the community pay down on the mortgage.

If community funds are used to pay down separate property debts, then the community is entitled to reimbursement.