FAQ About Divorce in California
1). How long will it take to file?
Although a Petition for divorce can be filed on the day of the first visit to a lawyer, it will probably need extensive supplementation thereafter, for the most part it usually takes about one week to prepare the paperwork in normal course.
2). How long do I have to wait for a judgment?
The statistical average has been 1 year despite the fact you are eligible six months after the other spouse is served with divorce papers. Early attention to providing financial details will increase your chance of early settlement.
3). What is community property?
For the most part community property is that property gained as the result of either spouses work effort during the marriage. Often times parties overlook fringe benefits. Another problem to watch for is the use of community money to pay a loan incurred by a spouse prior to marriage. For this and many other reasons, be prepared to advise your attorney of your entire financial picture. Be sure to tell him everything about your finances. The more information the attorney has, the better chance he or she has of finding a solution that meets your needs.
4). If my spouse keeps the former family residence, should they get a discount for the Realtors fee that is saved?
The law in California says no, unless a resale is imminent. Each party takes the property they receive at fair market value. In trial, the judge will not give a discount, unless liquidation is certain to take place in the near future. However, a discount is sometimes extended in negotiations, producing a win win situation for both sides. Therefore, a discount is often times employed in negotiations as a benefit to both parties. This is a good example of how the pocketbook of both parties can benefit from settlement.
5). How much will I have to pay in child support?
Child support is based upon a complicated mathematical formula considering time share and the gross income of each party. Your individual bills are ignored, added to the guideline amount is half of the cost of child care for the custodial parent to work and half of all unreimbursed medical expenses for the child.
6). How much alimony will I get?
Alimony or Spousal Support is not as predictable as child support.
See Mr. Borg’s article “Evaluating Spousal Support”.
7). How is Child Support Calculated?
THE BASICS OF HOW CHILD SUPPORT IS CALCULATED
Support is always on the mind of anyone going through or thinking about divorce. Whether on the supporting side or the spouse that is supported, it weighs on the mind of almost everyone in the process of divorce.
At times the obligation can impose financial ruin. Below I have set out the very basics. Many of the points discussed below have variables that are not mentioned. This article is intention as a first line of emergency information available to you at the very first contemplation of divorce.
Child support and Spousal support are based on totally different set of rules as child support is based on a set formula and Spousal support is more discretionary.
On child support issues the court is mandated, for the most part, to stay within 10% of the suggested amount produced by a special computer program after key data is entered. Most all judges use the program known as Dissomaster. There is a competing program called support tax which will usually produce the same result. The software will suggest an amount that is based on many factors the major ones are: the number of children; the gross income of each parent; and the respective time share of each parent. The result will usually be augmented with half of all medical expenses not covered by insurance and half of all child care incurred for the supported spouse to work. Specific hardships such as medical bills and the cost of visitations and minor factors might enter into the final determination. Unfortunately general debt nor the cost of private education is not normally considered one way or the other.
Child support continues until age 18 or until age 19 if the child has not graduated from high school
Child support for college educations is only a remote possibility in some special cases. So special I have never seen it in 34 years of practice except in the state of New Jersey.
Again these brief comments are the mere skeleton of child support in California. Hopefully these comments will give you rise to ask questions of the lawyer of your personal choice. Most lawyers that regularly practice in this area should be able to run the computer program in their office for your review very early in their relationship with a family law client.
Bare in mind child support is not generally tax deductible. Spousal Support is generally deductible to the paying spouse and taxable to the receiving spouse if made by court order or written agreement.
Unlike child support, spousal support is a subject of great discretion of the court. The same computer program that gives a recommendation for child support will also produce a recommendation for spousal support. The judges will consult the program at a first hearing early in the case for temporary support, however they are not bound by the software suggestion at any point in the case and even forbid to use it in the final award of permanent support.
Initially most judges seem try to consider if it is possible to maintain the status quo with a support amount. One old rule of thumb was to give the supported spouse 40% of the net income of the supporting spouse, after considering any earnings of the supported spouse.. Although that rule has long been disposed of many judges seem to arrive at that amount by other means.
In the final analysis permanent support is to be set only after the judge considers all of the factors in California family law code section 4320.
It should be realized that men rarely do as well as women when asking for support. There are exceptions. One time I leaned over and told a lawyer sitting next to me that I refused the case of the alcoholic man before the court asking for support from his hard working wife a nurse. He replied with the comment – I refused his case as well. The lady judge much to our surprise gave him support.
CA Codes (fam:4320-4326)
Now if it seems to you that you are a little unsure of the Spousal support standard after reviewing the applicable standards, don’t feel alone. This is an area of advocacy in which judges have different attitudes which in turn causes a variance in results. The science is not near as clear as child support.
Like child support one area of accepted practice based on the code is that support may be modified based on change of circumstances. Another practice of great concern is that for marriages under ten years support or the ability to award support continues for half the length of the marriage. While for marriages over ten years hang on as its a life time ride or until the supported spouse remarries. Again support is subject to review and a change in finances. Although a so called Gavron warning is given in all cases of permanent support that advises the supported spouse to become employable it is not considered a rule with serious teeth.
I hope these comments give some general relief to those in search of midnight information over the Internet. These comments are not intended to displace the advice of a lawyer. If you are troubled by these comments in any way – take two aspirins and call a lawyer in the morning.