Legal Custody: In almost all cases the parties will share joint legal custody of the child. Legal custody allows the parents to share in the decision making regarding the child. Joint or shared legal custody means that the parties share equally in decisions relating to the children's care, upbringing, educational training, religious training, social and recreational activities, medical care and treatment, and treatment of emotional needs.
Each party has access to medical and school records of the child and can independently consult with any and all professionals involved with the children.
Physical Custody: Also known as "primary" custody is where the child will spend the majority of his/her time.
Joint Custody: This is a term that is preferred by the court's in reference to custody. The parties are awarded joint custody and the "sharing" plan designates what times the child spends with each parent. This does not mean that it is a 50/50 sharing plan. It can be a vast variety of plans.
Visitation: Many parenting plans refer to the time the non-primary custodial parent spends with the children as "visitation". In many cases this designation is objectionable to the non-primary parent and although a "visitation" plan is implemented it is preferable to call it "child sharing".
In a dissolution proceeding the parties are required to attend a mediation session regarding custody and visitation issues if the parties have not agreed on a sharing plan. The court mediators (Family Court Services) meet with both parents in an attempt to help them reach a parenting plan that is in the best interest of the children. The parties may meet with an independent, outside mediator, if they prefer.
California law states that it is the goal of the state to insure that both parents have frequent and continuing relationship with both parents. Of course, there are many situations where shared parenting in not in the children's best interest.
The support of a minor child is a mutual obligation. Both parents are required to contribute to the needs of their child. The amount of support is based on several factors. Many states have adopted formulas (guideline support calculations) that determine the amount of support to be paid. The court's take into account each parties incomes and the time that party spends with the child. There is actually a possibility that the parent with the larger percentage of custody of a child would pay support to the lower percentage parent based on respective incomes.
Parents may agree between themselves as to the level of support each will provide for the child. Absent an agreement, the court will set the level of support based on the relevant factors.
If left to the court to determine, each party must provide credible information regarding their incomes. In most states the parties expenses have no bearing on child support, only incomes. Income includes wages, bonuses, commissions, overtime, dividends, interest received, rental income, trust income and can include ability to earn. Child support continues on a monthly basis until the child is emancipated. In some states emancipation occurs at 18, others can go up to 23.
You should consult with an experienced Family Law Attorney to determine what your legal obligations are regarding child support.
Under California law, spouses must support each other while living together. On the other hand, if spouses are not living together there is generally no duty of support, unless there was an explicit agreement to continue to provide support or the court has made those orders in a legal proceeding.
Most commonly, spousal support orders are issued either during the dissolution of a marriage, or for a period of time that is just and reasonable following the dissolution of a marriage. It will be based on the standard of living established during the marriage. That standard of living, while not the sole focal point in this determination, is a reference point against which other factors are weighed.
In general, a spousal support award is not mandatory in a dissolution of a marriage proceeding. It is up to the court's discretion. While there are statutory parameters to follow, the court has discretion to either deny support, or limit it to an amount and duration that reflects the ability of the parties to provide for their own needs. The trial court's decision will only be changed on appeal if it is determined that there was an abuse of discretion.
There are 14 factors that the court must consider and weigh, but the final decision is the court's and it has broad discretion. The factors are as follows:
-
Extent to which earning capacity is sufficient to maintain the standard of living.
-
Extent to which supported party contributed to the attainment of an education or career position of the supporting party.
-
The ability of the supporting party to pay.
-
The needs of each party.
-
The obligations and assets of each party.
-
The duration of the marriage.
-
The ability of the supported party to work.
-
The age and health of the parties.
-
Any history of domestic violence.
-
The tax consequences of support.
-
The balance of hardships.
-
The goal that both parties are self-supporting.
-
Any criminal convictions.
-
Other factors the court determines are just and equitable.
The calculation of spousal support is very fact-specific to a given case. In some cases there may be no support, or for a very short time. In other cases it may be significant, even for the remainder of someone's life. Of course, in between these extremes are a multitude of situations, such as paying until the spouse completes education, or paying so they can stay at home and raise the children, or until they are self-supporting in a reasonable amount of time, for instance.
Spousal support may be modified. For example, if the supported party is no longer in need, or the party paying lost the ability to pay or there was a change in circumstances, then the order for support may be terminated. Another way that it may be terminated is if the receiving party failed to make good faith efforts to be self-sufficient within a reasonable amount of time. The court can also look to any and all of the aforementioned 14 factors and see if things have changed, which might justify terminating support.
However, if the parties stipulated that the spousal support award shall be “absolutely non-modifiable” as to amount or duration, a court may not terminate the support earlier than the terms dictate.
Whether or not you will pay or receive spousal support (formerly known as alimony) depends on many factors. The court will determine support based on the length of the marriage, the circumstances of the parties and the standard of living established during the marriage.
Most courts take the following into consideration in determining the amount of spousal support and the length of time it will be paid:
-
The length of the marriage.
-
The job skills of the party seeking support and the market for those skills.
-
The time required for the party seeking support to obtain skills and training to enable them to become employed.
-
Whether or not the supported spousal was unemployed for periods of time due to raising children or domestic duties.
-
The ability of the supporting party to pay spousal support, taking into account the their earnings, earning capacity and unearned income.
-
The needs of each party based on the standard of living established during the marriage.
-
The obligations and assets, including the separate property, of each party.
-
The age of the minor children and the ability of the supported spouse to work without unduly interfering with the needs of the minor children.
-
The age and health of the parties.
The court's consider a marriage of over ten years a "long term" marriage and generally will not set a termination date for support, but will have the support continue until "further order of the court".
Each case is different and many, many factors are considered in determining the length and amount of support to be paid, if any. It is important to speak with a experienced Family Law Attorney to determine the spousal support obligation.
If you are considering filing a divorce there are several steps you need to take in preparation for the separation or filing the dissolution petition.
Documents: Copy all important documents such as tax returns, bank statements, retirement statements, investment account statements, employment benefit statement and take to a safe place outside the home. If you cannot copy the statements write down all account numbers and balances of each such account.
Copy all credit card and other obligation statements such as outstanding mortgage, taxes, lines of credit, personal loans, etc, again, keeping the information in a safe place outside your home.
Bank Accounts: Open your own checking and savings accounts at a different bank. If you think your spouse will "wipe out" the accounts remove one-half of the funds and place them in your account. Be sure to leave sufficient funds in any account to cover outstanding checks. Also, notify your spouse that you have removed the funds to avoid problems. If possible, try to save enough money to meet your necessary expenses for at least two months.
Personal Property: Inventory household furniture, furnishings and other items. If possible, take photographs of each room and of the condition of the items.
Take all personal items (jewelry, photographs, memento's, etc) to a safe location outside the residence, such as a relative's home or a friend's home or obtain a safety deposit box.
If you are the one who is leaving the residence, take all personal property and documetns with you. Take anything that you cannot live without. Many times what you leave with is all you will end up with. However, do not become confrontational over items. It is not worth the possibility of getting hurt or going to jail.
Journal or Calendar: If you have already separated and there are children involved, keep a calendar or journal of events and track the time your spouse spends with the children. Be specific and make notations regarding the child sharing such as "called to see kids but did not show up", or , "cancelled scheduled visit", or, "picked kids up at 6pm" "returned kids at 10am".
Support: Be sure to assist in supporting your children, even without a court oder. If you provide cash, get a written receipt.
If you pay obligations after your separation, keep track of what you have paid and keep receipts.
The cost of mediation is substantially less than an adversarial divorce. There is one mediator who works with both parties rather than each party having an attorney.
Most attorneys require a substantial retainer and charge between $250 to $350 per hour. In an adversarial proceeding discovery is required which is very timely and expensive. Both parties may be subjected to depositions which are stressful and costly. In mediation the parties voluntarily provide the necessary information to the mediator and opposite party.
Although it is recommended that each party have an attorney review the agreement reached in mediation and provide advise regarding the law and the effect of the agreement, it is still substantially less expensive than contested proceedings.
If you feel that your divorce or dissolution can be resolved by mediation, you should contact an experienced mediator who is also an experienced Family Law Attorney. It is important that the mediator have family law experience in order to assist the parties in developing an agreement that is within legal boundaries.
In most states the mediator can also prepare the documents required by the courts to initiate the process and the final settlement agreement. The mediator does not represent either party and both parties should seek independent legal counsel to review the agreement and the effects of the agreement.
No, not always, but in most cases it is very effective. The parties need to be able to cooperate with the mediator, be open to suggestions and resolutions and be committed to working together.
Mediation will not work if there is a history of domestic violence or the parties refuse to provide the information necessary for mediation.
In order for mediation to work the parties must leave fault and blame out of the mix. They must focus on the future and not the past.
If the parties do not wish to participate together, it is possible to mediate the issues with the parties separated. The parties can make separate appointments or can be in separate conference rooms during mediation. This is not as productive as co-joint mediation, but in some cases is very effective.
An initial consultation is scheduled to allow the parties to determine if they wish to mediate their dispute and if the mediator suits their needs. This consult is free of charge.
If the parties have committed to mediation, a meeting is scheduled to meet and determine the issues involved and to provide the mediator with necessary information. Each party is given a “work sheet” to prepare their proposed resolutions to the “issues” and to provide information regarding income, expenses, assets and obligations and any other information the mediator requests.
In order for the mediation to be successful, both parties must cooperate fully and provide necessary information.
It is the mediator's job to educate both parties as to what the law requires and what, in the mediator's opinion, the court would do if requested to resolve an issue. The mediator assists the parties in keeping focused on the issues and moving forward through the process. The mediator will not advise you but can make helpful suggestions regarding solutions. The mediator provides both spouses with necessary information to allow them to work together toward a resolution that makes sense to both parties. The mediator provides several options that the parties may not have considered.
90% of divorce litigation ends in full settlement of all issues after months and months of emotional turmoil, several thousands of dollars in attorney's fees, hurt feelings and anger. Mediation can resolve the issues and result in a settlement without the cost both financially and emotionally.
Mediation is less expensive than litigated divorces. You are engaging one person to resolve the issues between you rather than taking an adversarial approach where you both are paying an attorney $250-$350 per hour and incurring costs for court appearances where a substantial amount of the charge is waiting for your turn before the judge.
Divorce mediation can save up to 85% of the costs of a litigated divorce process. Parties who choose to litigate their marital issues often deplete their assets substantially. Mediation can allow you to take control over your future, preserving the family's assets.
Parties are more likely to comply with the terms of the judgment if they have fashioned those terms vs. a judge imposing orders on a party.
Parties are more satisfied with the outcome than if they were involved in an adversarial divorce. No one wins in a divorce case, least of all the children. Mediation can allow much more flexibility than court orders. In fashioning orders, the law binds a judge, where in mediation parties are able to fashion orders that work for their individual needs.
Mediation is an option when both parties are willing to work together to resolve the issues involved in the dissolution process. Mediation can resolve all issues, including custody, support, division of property and obligations. Mediation is less expensive than litigation and is less stressful. Mediation allows the parties to structure their agreement to meet their needs and the needs of their children.
When a divorce is litigated, not only does it take longer, it is much more expensive and a total stranger (the judge) makes the decisions regarding you and your children's future. A judge hears hundreds of divorce cases a month and the time needed to fully understand the situation is just not available. You can structure any agreement (within legal limits) that suits your situation and the court will approve it.
Mediation encourages the parties to look toward the future and not the past. It saves the emotional battle that occurs during litigation.