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Insights from Our San Jose Divorce Attorneys

DID YOU KNOW? Both parents are responsible for the children's support and children should share in both parents' standard of living. Unlike spousal support which looks back at the parents' standard of living during marriage, the child support amount reflects the parents' current standard of living. The guideline support takes into account multiple factors, including each parent's actual income and timeshare with the children.

DID YOU KNOW? If one parent ("M") files a Request for Order for child custody and visitation, she must do so at least 16 court days before the hearing. The other parent ("F") must respond at least 9 court days before the hearing. M can then file a "reply" to F's response which must be filed at least 5 court days before the hearing. At the hearing, the judge usually makes temporary orders and tells both parties to attend orientation and mediation if they have not already done so. Sometimes, the judge can also order a "screening" or an "evaluation" to have a mental health professional evaluate what is in the best interest of the children. At mediation, the parties try to work out the child custody and visitation issues with the help of a mediator. If they are successful and reach an agreement, the agreement becomes a court order as soon as the judge signs off on it. If they are not successful, the parties must call the court clerk to schedule a judicial custody conference ("JCC") and try to resolve the issues with the judge's help and without any witnesses. If the negotiations are still fruitless, the judge will then schedule a trial. ***Information provided based on procedures in Santa Clara County. If you need an in-depth explanation, give us a call! 408-201-4468.

DID YOU KNOW? Child custody and visitation issues come up most frequently when the parents of a minor child split up and have to decide who will be responsible for making important legal, medical, and educational decisions on behalf of the minor child (legal custody), with whom the child will live (physical custody), and what kind of visitation schedule the parents will follow (timeshare with the child). The child custody and visitation arrangement is extremely important because it triggers multiple other issues, for example, it affects the amount of child support, the ability to move out of the area with the child, to choose the child’s doctor and the school the child attends, and to claim the child for tax purposes.

DID YOU KNOW? You cannot enter into a common law marriage in California. This means that a couple cannot become married just by living together for an extended period of time. California Family Code requires that the marriage be licensed, solemnized, authenticated, and that the authenticated marriage license be returned to the county recorder of the county where the marriage license was issued.

DID YOU KNOW? California law requires that spouses act in the highest good faith and fair dealing with respect to each other when they use and manage community property (see previous posts for definition of "community property"). This is a fiduciary duty which mandates the spouse who manages the community assets and debts to account to the other spouse. To do so, the "managing spouse" must provide necessary information related to community property for the other spouse to exercise his or her rights. The managing spouse must also consult with and receive consent of the "non-managing spouse" before conveying, encumbering, leasing, or disposing of community property. If the managing spouse destroys or wastes community property, this constitutes a grossly negligent or reckless conduct and a breach of fiduciary duty to the non-managing spouse. A breach of fiduciary duty which results in substantial impairment of the non-managing spouse's interest in the community property is actionable. In practice, if one spouse wastes community money on gambling, drugs, paying for gifts for a new girlfriend/boyfriend, sells the family TV to pay to bail a friend out of jail without the other spouse's permission, the non-managing spouse will have an action for breach of fiduciary duty, can also request accounting and reformation of title to reflect the his or her interest in the property.

DID YOU KNOW? In California, educational expenses paid for with community funds are subject to reimbursement, with interest, at the time of divorce if the education or training substantially enhances the earning capacity of the educated spouse. For example, Wife goes to school during marriage and uses her or Husband's salary (earned during marriage) to pay for the school or student loan. The spouses decide to divorce. During the division of property, Husband may ask for reimbursement, with interest, of half of the amount that Wife paid for her school or student loan during marriage as long as the education increased Wife's earning potential (Wife can make more money). However, certain defenses to the right of reimbursement apply that could prevent Husband from recovering half of Wife's educational expenses if: 1) the marriage has already benefited from Wife's education; 2) Husband has also received education paid for with community funds; or 3) Wife's education reduced her need for spousal support.

DID YOU KNOW? One spouse may not give away community (marital) property without the other spouse’s written consent and against the other spouse’s wish. If such a gift is made, the non-consenting spouse can revoke the gift. The gift may be recovered in its entirety if it is revoked during the donor spouse’s life or partially (50% interest) if it is revoked after the donor dies.

DID YOU KNOW? If one spouse buys a house before marriage as a separate property but is paying off the mortgage with community income during marriage, the community will have ownership interest in the house at the time of divorce. California courts will calculate the community interest in the property (to be divided equally between the spouses) by determining the percentage by which the mortgage payments during marriage reduced the principal debt on the property. Additionally, the community will be entitled to benefit from appreciation of the house value, calculated proportionally to the community’s interest in the property. To put it simply, if Husband buys a house before marriage but uses his earnings during marriage to pay for the mortgage, Wife will have an interest in the house at the time of divorce.

DID YOU KNOW? Although California is a “community property” state in which the earnings of both spouses are by default considered marital property (and not the separate property of each spouse), the community property system may be avoided by agreement. Parties may enter into an agreement prior to marriage (premarital/antenuptial contract, commonly known as a “prenup”) or during marriage. Different rules govern agreements entered into before and during marriage.

DID YOU KNOW? If marital ("community") assets are mixed up ("commingled") with separate assets, the separate property character of the assets can be maintained as long as the asset can be traced. Determining which assets are community and which are separate assets is important because the parties must divide community property, and separate property belongs entirely to only one spouse.

DID YOU KNOW? Property acquired before marriage or after separation by only one spouse and any rents and proceeds derived therefrom are considered the spouse's separate property for the purpose of dividing assets and liabilities at the time of divorce in California. Additionally, any property acquired by gift or inheritance by only one party at ANY time, regardless whether it was before, during or after marriage, and any income derived therefrom remain the spouse's separate property. Separate property belongs to only one spouse and is not equally divided between the spouses at the time of divorce, just like the marital property is.

DID YOU KNOW? A domestic violence restraining order may be issued in California upon showing that 1) a person suffered abuse (physical, verbal, or psychological), and 2) the victim and the perpetrator *were married or registered domestic partners, *were divorced or separated, *were dating or used to date, *were living together used to live together as a couple, *have a child together, *are closely related.

DID YOU KNOW? The court may order spousal support to be paid indefinitely or until the supported spouse remarries. The duration of spousal support after divorce ("permanent spousal support") is closely related to the length of the marriage or domestic partnership. The purpose of spousal support is to help the supported spouse become self-supporting within a "reasonable period of time" (generally, one-half the length of marriage) except when the marriage is "long-term" (usually longer than 10 years). In case of a "long term" marriage, the judge may not set an end date to the spousal support.

DID YOU KNOW? In California, once a judge orders child support to be paid, the parties generally cannot modify the order unless there is a material change in circumstances (usually change in income of either parent, change in timeshare with the child, etc.). If a person ordered to pay child support loses his or her job, it is necessary to apply for modification of the child support order immediately because the court can generally modify the amount of the support obligation only as of the day of filing the request for modification.

DID YOU KNOW? Generally, California courts will not grant visitation rights to a grandparent if the grandchild's parents are married. However, some exceptions to this rule apply if, for example, the parents are living separately, one parent joins the grandparent's petition for visitation, the child does not live with either one of the parents, a parent's whereabouts are unknown (waiting period required), or the grandchild has been adopted by a stepparent.

DID YOU KNOW? California law generally presumes that a child born to a married couple is a child of the husband and wife. However, if the child's parents are not married, parentage must be established legally by a court order or by signing an official Declaration of Paternity. Without legally establishing parentage, the child's father has no rights or responsibilities for the child (for example, the father has no custody and visitation rights and no child support obligations).

DID YOU KNOW? A marriage or a registered domestic partnership which is incestuous or bigamous is NEVER legally valid. However, a marriage or a registered domestic partnership CAN also be declared invalid (annulled) for many other reasons, including: fraud, force, physical incapacity, unsound mind, prior existing marriage or domestic partnership, or marriage prior to reaching the age of majority by the spouse requesting the annulment.

DID YOU KNOW? In California, there are two types of spousal/partner support: a "temporary spousal/partner support" and a "permanent spousal/partner support." The court can order "temporary spousal/partner support" when the court case is still going on and the final judgment has not been entered. A "permanent spousal/partner support" is usually entered as a part of the final divorce or separation judgment. Judges generally use a formula to calculate the amount of temporary support. However, the same formula cannot be used to determine the amount and length of the permanent support payments; the judge must consider various factors instead (including the length of the marriage, the age and health of the parties, marital standard of living, the income and earning capacity of each party, domestic violence in the relationship, debts and property, whether one spouse's career was affected by unemployment or by taking care of the children or home, etc.).

DID YOU KNOW? Not everyone can file for divorce in California. Only a person who has lived in California for six (6) months and in the county for three (3) months can file a petition for dissolution of marriage (divorce). However, there is no residency length requirement for filing for legal separation.

DID YOU KNOW? California is a "no-fault" divorce jurisdiction. This means that the court does not decide who was "at fault" for the break down of the marriage. Instead, the only two basis for divorce are 1) irreconcilable differences, or 2) incurable insanity.

DID YOU KNOW? If one spouse files for divorce ("Petition for Dissolution of Marriage"), the other spouse has only 30 days from the day he/she received the Petition (was "served with the process") to file a Response. If no Response is filed within the allotted time, the court, at the request of the Petitioner spouse, may presume that there are no objections to the Petition and proceed by "default." This means that the Petitioner spouse could be awarded whatever she/he requested in her/his Petition. If someone you know has just been served with divorce papers, tell him/her to give us a call! We provide a free, 1 hour consultation and will be happy to explain the divorce process and the rights and obligations of each spouse after separation and at the time of divorce.

DID YOU KNOW? Child custody includes "legal custody" and "physical custody." Legal custody is the right of a parent to make important decisions about his or her children's health, education and welfare (for example, decide what school the children should attend, which doctor they should see, etc.). Physical custody describes the right of a parent to spend time with his or her children. Both legal and physical custody can be "joint" (shared) or "sole" (one parent is the primary decision-maker / caregiver). Are you going through a custody dispute? Give us a call and schedule your free consultation today! We will be happy to answer your questions, offer our guidance, and assist you with your legal needs.

DID YOU KNOW? In California, the amount of child support is determined based on multiple factors, including but not limited to, the income of each parent, the amount of time each parent spends with the child, who pays for the child's insurance and how much, childcare expenses, and who claims the child on his or her taxes.

DID YOU KNOW? In California, you cannot legally get divorced until at least 6 months after the case is filed and the respondent has been served with a copy of the petitioner’s paperwork.

Would you like to learn more about these matters? Give us a call to schedule your free consultation (408) 601-4439.

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