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 of "irreconcilable differences leading to the irremedial breakdown of the marital relationship."

"Legal Separation" occurs when the separation is the complete and final break. If you separate, reconcile, then separate for the last time, you are only "legally separated" after the last date of separation.  Parties concerned about getting a divorce for religious reasons or because one spouse will be left without health insurance, can get a Judgment of Legal Separation that does everything that a Judgment of Dissolution of Marriage does, except you're still legally married.

Spousal Support - Alimony

Marriages of 10-years or more are long term marriages. The court cannot terminate jurisdiction over spousal support orders when the marriage is "long term." The duration for Spousal Support orders that are less than 10 years long is usually for 1/2 the length of the marriage.

Temporary Spousal Support is calculated by using a software program called Dissomaster. The Spousal Support ordered after trial (called the Permanent Order) is based upon a number of factors set forth in Family Code 4320, which includes: the needs of the parties based upon their marital standard of living; the supporting party's ability to pay; the career impairment to the supported party for staying home to raise the kids; the extent the supported party contributed to the career development of the supporting party; the age, health, and earning capacity of both parties; documented domestic violence; the balance of hardships; and "Any other factors the court determines are just and equitable."

Child Support

Child support is based upon the Dissomaster computer software program, which utilizes: the net after tax earnings or earning capacity of the parents; and the percentage of time that each parent spends with the child; and the payment of health insurance, property taxes, and interest mortgage expense.  Unreimbursed health care expenses for the children are usually split 50-50 as is child care necessary for one or both parents to maintain employment.

The parent claiming that the other parent has earning capacity has the burden of proving to the court that the unemployed or under-employed parent is capable of doing work for which there are jobs actually available.  This proof is usually made using a Vocational Evaluator. 

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

A parent cannot bankrupt out of child or spousal support arrears.

Child Custody & Visitation 

In the past, fathers had a tough time getting visitation with their children more often than evey-other weekend.  Now, it is not uncommon for active fathers to share custody on a 50-50 basis.

Legal Custody is the right of parents to make decisions about the health, eduction, and welfare of their children.  Parents usually share Joint Legal Custody despite one parent having more physical custody of the children than the other parent.

Physical Custody means the actual amount of time each parent spends with the children. The amount of time that each parent spends with the children is used in calculating Child Supprt.  The parent responsible for the children during school is considered to have Physical Custody during school hours. 

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).
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Property

"Separate Property" is property obtained before marriage, after the date of separation, or by gift or inheritance.  A gift between spouses during marriage is usually the separate property of the receiving spouse, but if the cost of the gift is high compared to the parties' standard of living, it may still be community property. 

"Community Property" is property obtained during marriage and before the date of separation. Whether 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, without interest, of the value of their separate property at the time of transfer. 

"Assets" are valued as of the date of division or trial, except for small businesses, which are valued as of the date of separation.  "Debts" are considered 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. This is called the Moore/Marsden formulae

If community funds are used to pay down separate property debts, then the community may be entitled to reimbursement.  If separate funds are used to pay down community debts, then the paying party may be entitled to reimbursement.