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Community Property:
California is a “community Property” state, meaning that each spouse owns a one-half interest in all real and personal property and debs acquired during the marriage regardless of whether one of both parties were gainfully employed during the marriage or how the title of the property or debt is held Such assets can include pensions and other retirement plans and investments. Such debts can include credit card bills.
There are exceptions to the rule of community property, such as gifts or inheritances received during the marriage that were not intermixed with community property (like joint bank accounts) during the marriage. Gifts and inheritances are generally considered the separate property of the spouse that received the,. Moreover, student loans are generally considered the separate property debt of the party who incurred them, because they keep the benefit of their education paid for by such loans even after the marriage ends. Separate property is also anything you owned before you got married or the you earned or receive after your date of separation.
In dividing community property, it is the intent of California Law to divide up the property in such as way so that one party takes an asset of one value, the other party takes and other asset or equal value, so that in the the, the value of the divided assets have been equalized between the partied. After all, simply because both parties own one-half of the dining room table does not mean that it makes any sense to grab a chainsaw and cut the table in half!
Under some circumstances where the assets have been equally divided as possible but the division is still one sided, an “Equalization Payment” may need to be made in order to equalize the value of the property divided.
Separate Property:
Separate property is assets and debts acquired prior to the date of the marriage or after the parties have separated as well as inheritances received before or even during the marriage, and gifts to a particular spouse. Separate property can include the rents or profits generated from such separate property. Separate property is not divided y the court as part of the marital property.
Where separate property has been commingled with community property assets, a spouse claiming a separate property interest has the legal burden of tracing the source of such assets, which can be very complicated. In certain situations a forensic accountant may need to be appointed in order to address and resolve complex tracing issues.
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There are two types of child custody, Legal Custody and Physical Custody. Legal custody concerns who is entitled to make the decisions concerning the health, education and welfare of the parties’ children. Physical Custody involves who has the children and on what days and time.
- “Sole Legal Custody” means that one parent has the right to make the decisions concerning the health, education and welfare of the children. (California Family Law Code Section 3007)
- “Joint Legal Custody” means that both parents must confer and share the responsibility and right to make the decisions concerning the health, education and welfare of the children. (California Family Law Code Section 3003)
- “Sole Physical Custody” means that the children live with one parent with the other party having regular visitation. (California Family Law Code Section 3007)
- “Joint Physical Custody” means that the children spend a substantial amount of time living with both parents, but does not mean that there is a pure 50% split of parental time between the parents. (California Family Law Code Section 3004)
- “Joint Custody” means joint physical and joint legal custody. (California Family Law Code Section 3002)
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Joint legal Custody means that both parents share the right and responsibility to make the decisions concerning the health, education and welfare of the child (Family Code 3003). In making an order for custody concerning both parents, the court may grant joint legal custody without granting joint physical custody (Family Code Section 3085).
Family Code Section 3003 does not spell out any details of exactly what “Joint Legal Custody” entails, and so it is highly advisable that any court orders in your case include a detailed listing of the specific rights and responsibility of both parties as they pertain to legal custody. The specified rights and responsibilities include the following provisions:
1. The parents must confer in making decisions on the following matters:
- Enrollment in or leaving a particular public or private school or daycare center.
- Participating in particular religious activities or institutions.
- Beginning or ending of psychiatric, psychological, or other mental health counseling or therapy.
- Selection of a doctor, dentist, or other health professional (except in emergency situations).
- Participation in extracurricular activities.
- Out-of-country or Out-of state travel.
2. The parent who has the physical care of the children at any given time shall have the routine decision-making rights and responsibilities during these periods of time; however, all major decisions pertaining to health, education and daycare shall be made jointly by the parents. No prior consultation is required between the parents regarding emergency medical or dental treatment, routine checkups, or minor illness. However, the other parent shall be notified immediately in the case of an emergency. A sharing of routine health information is encouraged.
3. In the event that controversy arises regarding major medical decisions, both parents shall first consult together and if no resolution is reached, meet and confer with an expert in the field related to the dispute, e.g. the child’s doctor, teacher, counselor, etc. If the consultation does not resolve the dispute, the parents shall return together to Mediation at the courthouse in an attempt to reach an agreement. Finally, if the dispute continues, if shall be submitted to the Court for a decision, and until then, the existing orders shall remain in effect.
4. Neither parent shall enroll the children in activities that require a commitment from the other parent or interfere with a previously agreed upon Court-ordered schedule without mutual approval. Parents are encouraged to attend their children’s activities. Parents are responsible for keeping themselves advised and for advising each other of all school, athletic, and social events in which the children participate.
5. Pursuant to Family Law Code Section 3025, both parents shall have the same access to psychological, medical, dental and school records pertaining to their children and shall be permitted independently to consult with any and all concerned professionals. The names of both parents shall be listed on school and extracurricular cards to be contacted in case of an emergency.
6. Each parent shall notify the other of the name, address, and telephone number of each health practitioner who examines or threats the children; such notification to be made within one day of the commencement of the first such treatment or examination.
7. Neither parent shall submit the child to any psychological/psychiatric testing or evaluation or to any extended course of medical, dental, orthodontic, psychiatric or psychological treatment/counseling without first obtaining the consent of the other parent.
8. Both parents are required to administer any prescribed medications for the children.
9. Each parent shall be entitled to reasonable telephone communication with the children at reasonable hours. Each parent shall not interfere with the children’s right to privacy during such telephone conversations.
10. Neither party shall change the surname of the children or cause surnames to be changed on medical, dental, school, DMV records or other legal documents without the consent of the other parent or order of the court.
11. Either party may travel out of the state of California with the minor children.
12. Should either parent move from their current residence, they shall advise the other parent of their now address and telephone number with two days prior to the move.
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Domestic violence means to hit, kick, scare, throw objects, pull hair, push, follow, harass, sexually assault, or threaten to do any of these things. It can also include other actions that make someone afraid of being hurt. Domestic violence can be spoken, written or physical.
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The Court will consider your case as a domestic violence case if, in the past 5 years,
1. A parent was convicted of domestic violence against the other parent, or
2. Any court has decided that one parent committed domestic violence against the other parent of the children (which means that a court’s previous issuance of a restraining order in your case highly relevant in your custody case).
If the court decides that there was domestic violence in the past five years against a parent or the children, the judge must follow special rules to decide custody of the children.
In particular, pursuant to Family Code Section 3044, if the Court makes such a finding there is a legal presumption that the party who perpetuated the domestic violence should not have sole or joint custody of the parties’ children. Such legal presumption can be overcome and custody awarded to the parent who committed the domestic violence if it is in the best interests of the child, the perpetrator has completed a 52-week batterer’s program, not committed any other domestic violence, and has complied with all other orders of the Court.
The complete text of California Family Code Section 3044 is as follows:
(a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebutable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic vtiolence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.
(b) In determining whether the presumption set forth in subdivision (a) has been overcome, the court shall consider all of the following factors:
(1) Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to rebut the presumption, in whole or in part.
(2) Whether the perpetrator has successfully completed a batterer’s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code.
(3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate.
(4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate.
(5) Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole.
(6) Whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions.
(7) Whether the perpetrator of domestic violence has committed any further acts of domestic violence.
(c) For purposes of this section, a person has “perpetrated domestic violence” when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal
property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child and the child’s siblings.
(d) (1) For purposes of this section, the requirement of a finding by the court shall be satisfied by, among other things, and not limited to, evidence that a party seeking custody has been convicted within the previous five years, after a trial or a plea of guilty or no contest, of any crime against the other party that comes within the definition of domestic violence contained in Section 6211 and of abuse contained in Section 6203, including, but not limited to, a crime described in subdivision (e) of Section 243 of, or Section 261, 262, 273.5, 422, or 646.9 of, the Penal Code.
(2) The requirement of a finding by the court shall also be satisfied if any court, whether that court hears or has heard the child custody proceedings or not, has made a finding pursuant to subdivision (a) based on conduct occurring within the previous five years.
(e) When a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant, admissible evidence submitted by the parties.
(f) In any custody or restraining order proceeding in which a party has alleged that the other party has perpetrated domestic violence in accordance with the terms of this section, the court shall inform the parties of the existence of this section and shall give them a copy of this section prior to any custody mediation in the case.
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With the growth of technology in recent years some courts have ordered or otherwise encourage visitation on the computer, known as “virtual Visitation” in situations where one parent lives a ling distance from their child Virtual Visitation required that households of the custodial and non-custodial parents to have newer model computers equipped with webcams or other video conferencing equipment and Instant Messaging capabilities.
Although such visitation is not a replacement or substitute to real visitation in person and not intended to support or justify a relocation or move-away of the custodial parent with the child, it is a certainly a substantial improvement over the telephone because th parent and child can see each other as the speak. Visit www.internetvisitation.org to learn more.
Other options in addition to the old standby of regular telephone visitation can include email communications, which can allow more instantaneous communications than simply mailing a letter. These options should all be utilized so that the long-distance (or even shorter-distance) parent has regular, quality visitation with the child.
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If you did not marry your child’s mother, your rights regarding custody and visitation in California would need to be established through the filing of a paternity case.
What does Paternity Mean?
Paternity means who is the father of a child. Establishing paternity refers to the legal process of determining the biological father of a child where the parents are not married. While paternity is generally legally presumed for married couples, it is not automatic for unmarried persons.
The establishment of paternity and a parental relationship is important for the father to have legal rights (custody and visitation) and legal responsibilities (child support) concerning his child. Establishing paternity is the first step in the legal process before any court can make any orders concerning custody, visitation and child support, and can be done by either signing a “Declaration of Paternity” form or filing a “Petition to Establish Parental Relationship” in Family Court.
What is a Declaration of Paternity?
It is a legal form signed by both parents that states that the man is in fact the legal father. A Declaration of Paternity form can be obtained at the hospital when the child is born, or either from the Family Court or your county recorder’s office. However, it does not create any court orders concerning custody, visitation or child support, which requires going to court.
Can I cancel the Declaration of Paternity If I Later Believe that I May Not Be The Father?
Yes. Either parent can cancel the Declaration of Paternity by completing and filing a “Rescission of Paternity” from with the California Department of Social Services within 60 days from the date that the Declaration of Paternity was filed.
What are the Benefits of Establishing Paternity?
For the father, establishing paternity in turn establishes his legal parental rights and right to seek custody and/or visitation, allows his name to be added to the child’s birth certificate, and assures that Social Security or Veteran’s benefits are paid to his child even in the event of the father’s disability or death.
For the mother, it can allow for the sharing of the financial responsibilities of parenthood, including entitlement to child support, reimbursement for birth costs, reimbursement of one-half of the sharing of the child’s medical and dental expense.
Finally, for the child, having both parents actively involved in his or her life and receiving emotional and financial support and love from both parents is in the child’s best interests and increases the chances of a better future for the child.
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California law makes a very important distinction between “short-term” (also known as “lite” spousal support) and “long-term” (i.e. beyond the divorce itself) spousal support that is extremely important to understand. This distinction affects how the court determines the duration of spousal support payments and the jurisdiction of the court to award spousal support. For marriages less than 10 years in duration, California law and precedent maintain that the spouse obligated to pay spousal support is obligated to do so for one-half the length of the actual marriage.
However, for marriages 10 years or more, the court generally has continuing jurisdiction over the issue of spousal support and the longer the marriage, generally the prospect of continuing spousal support for many years to come.
To determine the amount of long-term spousal support, the Court will consider such factors as the standard of living during the marriage, the length of the marriage, the needs of the parties, the age, health, earning capacity and job histories of both parties.
These factors are specifically stated in California Family Code section 4320, which by law the court must consider all of the factors state in 4320.
California Family Code section 4320 states as follows concerning long-term “permanent” spousal support:
In ordering spousal support under this part, the court shall consider all of the following circumstances:
a. The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
- The marketable skills of the supported party; the job market for those skills; and the possible need for retraining or education to develop or acquire other, more marketable skills or employment.
- The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
b. The extent to which the supported party to devote time to domestic duties.
c. The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets and standard of living.
d. The need of each party based on the standard of living established during the marriage.
e. The obligations and assets, including the separate property, of each party.
f. The duration of the marriage.
g. The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
h. The age and health of the party.
i. Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
j. The immediate and specific tax consequences to each party.
k. The balance of the hardships to each party.
l. The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of a long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
m. The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.
n. Any other factors the court determines are just and equitable.
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California has a child support guideline formula that is used in all cases to determine the proper amount of child support. Generally, the courts and all attorneys in California use one of the two recognized computer programs based on the child support guideline formula called “Dissomaster” and “X-Spouse.”
The factors considered in making child support orders are primarily the gross income of the parties and the amount of time each parent spends with the minor child. However, other factors that can be considered include any itemized deductions the parties can claim on their taxes, medical insurance premiums paid each month, and any mandatory requirement payments and union dues for individuals whose employment requires them to be part of a union and to contribute to a deferred compensation retirement plan (i.e. a pension).
In addition to the basic monthly child support, the court will generally also order that the parents equally share the costs of childcare expenses necessary for the custodial parent or both parents to work, as well as any medical, dental and vision expenses for the minor child not covered or reimbursed by medical/dental/vision insurance.
Child support can also include expenses for the special needs of a child, such as tutors or other services, as well as the transportation costs for visitation of a parent.
Finally, the Court generally orders that both parents keep their child medically insured if it is available at no cost or at reasonable cost to both parents.
Child Support is generally paid until the minor child reaches the age of 18, or the age of 19 if they are still a full-time high school student at age 18, unless the minor child dies or becomes emancipated prior to becoming an adult.
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California Child Support order can be modified if there is:
1. A significant increase or decrease in either parent’s income;
2. A change in custody or the amount of time the child spends with each parent;
3. Any other change that would affect the child support guideline calculations.
