Child & Spousal Support
Both parents are mutually responsible for the support of their children. Equal responsibility exists regardless of which parent has custody of the child. In determining the amount of child support, California law mandates application of the statewide uniform child support guideline. The statewide uniform child support guideline, takes into account each parent’s actual income and level of custodial responsibility for the children in setting child support amounts. In certain circumstances the court may consider a parent’s earning capacity rather than actual income when determining the amount of child support.
The marital relationship imposes a mutual duty of support on spouses. While a dissolution or legal separation action is pending the court may order either spouse to contribute towards the living expenses of the other spouse. An action is “pending” until a final Judgment is entered. During that time the court may apply the statewide uniform child support guideline to determine “temporary spousal support.” However, for “final spousal support orders”, that is, spousal support that is intended to be ordered in the Judgment, the Court cannot rely on the statewide uniform child support guideline. Rather, the court must consider the factors enumerated in Family Code § 4320 which include, but are not limited to, the marital standard of living and each party’s respective ability to meet the marital standard of living. In certain circumstances the court may consider a spouse’s earning capacity rather than actual income when determining the amount of spousal support.
The duration of spousal support is likewise dependent on a number of circumstances. Generally, marriages of less than ten (10) years will result in a support obligation that lasts one-half the duration of the marriage. For marriages ten (10) years or longer, the court cannot terminate the right to spousal support unless special circumstances exist. However, many spouses choose to end spousal support on a date certain in exchange for other considerations.
The court has jurisdiction to make orders that are appropriate concerning the custody of minor children of the relationship. The court employs the “best interests” standard when deciding custody orders. The “best interests” standard for determining the custody of a child is an elusive guideline that belies rigid definition. Its purpose is to maximize a child’s opportunity to develop into a stable, well-adjusted adult. Courts must weigh the appropriate factors and determine the child’s best interests solely from the standpoint of the child. The court should consider all pertinent circumstances bearing on the child’s best interest, but should not consider the feelings and desires of the parents, except insofar as they affect the child’s best interests. Nor can custody be granted to one parent as a disciplinary action to punish the other for conduct unrelated to the best interests of the child. Finally, the best-interests standard is a relative one. The question is not whether a particular set of circumstances is in the best interests of the child, but whether a particular set of circumstances relative to an alternative set of circumstances is in the best interests of the child.
In certain highly disputed circumstances a custody evaluation may be necessary to determine the best interests of the child.
Pre / Post-Nuptials
People who are contemplating marriage oftentimes sign a pre-marital agreement that sets forth each party’s property rights and support obligations. These agreements can be crucial in protecting the assets or income of a party in the event that the contemplated marriage fails. Premarital agreements need to be prepared and signed with great care because of strict rules that have been adopted by California governing the enforceability of premarital agreements.
In an ongoing marriage for whom spousal separation or termination of the marriage is not an issue may wish to make an express agreement for a variety of reasons including but not limited to clarifying their ownership of property, to change (transmute) the character of property from separate to community, or vice versa, or to amend or revoke a premarital agreement. Spouses may also desire to contract with each other with respect to matters unrelated to their property rights. In general, this is permissible so long as the subject matter of the agreement is not one prohibited by statute or contrary to public policy.
There are three major components of resolving property division issues: (1) characterization, (2) valuation, and (3) division. Each party in a marital action has a duty to disclose all assets and liabilities they have an interest in, or may have an interest in.
Property is characterized as “community property,” “separate property,” or a mix of community and separate property. Property is community property if it is acquired during marriage with community property assets such as wages. Property is separate regardless of when it was acquired with assets in which the community has no interest, such as gifts and inheritances. Property is mixed when there is a community property and separate property interest.
Property is valued a number of different ways, depending on the property. Houses are valued by a certified real estate appraiser. Pensions are valued by specialized experts. Personal property is valued at its garage sale value. Generally, property should be valued as close as possible to the date of resolution (trial, mediation, etc.). Some property is valued in sentimental value as opposed to monetary value.
Property division is limited only by one’s imagination. The court requires an equal division of property. However, parties are free to determine what is equal. One party may want a certain item of property because the sentimental value to them is greater than the monetary value. Other assets, such as pensions and retirement accounts are generally divided equally among spouses. At Tavis & Bunyard, we emphasize property divisions that promote our clients’ goals.
Divorce / Legal Separation
There are two filing options when seeking to formally end a marriage, Dissolution (divorce) and Legal Separation1. These two filing options are the same except for that a Legal Separation does not terminate the marital status upon Judgment. Thus, parties entering a Judgment for Legal Separation cannot remarry unless they terminate their marital status with a Judgment for Dissolution.
The advantages commonly cited for legal separation are that spouses remain dependents and are therefore eligible to stay on a spouse’s employee health insurance plan. However, both Legal Separation and Dissolution require full property disclosure and division, spousal support and child support orders (if applicable), and custody orders (if applicable).
Whether to file for a Legal Separation or Dissolution of Marriage should be discussed with an attorney.
1 Nullity may also be claimed in very narrow circumstances.
Domestic Partnerships / LGBT Issues
The concept of “family” has changed from traditional notions, as has the concept of gender and gender identification. Our world, and our county, consists of families that fall outside traditional definitions. The problems those families and individuals face when terminating their relationships are the same as any other family. Specific complexities may arise and we at Tavis & Bunyard are experienced and prepared to assist in working through the complexities.