DISSOLUTION OF MARRIAGE

WHAT IS COMMUNITY PROPERTY? HOW IS IT DIFFERENT FROM SEPARATE PROPERTY?

California is a community property state. Under our system of law, a marriage is viewed generally as a partnership where both husband and wife have equally ownership of all assets acquired during the marriage. Typical assets include a home, furniture, automobile, boat, stocks and bonds, retirement benefits, bank accounts, and the like. Likewise, obligations incurred during the marriage are community debts and husband and wife are equally responsible for their repayment. Separate property is that which is owned entirely by one spouse. The other spouse has no ownership interest in it whatsoever. Separate property is property acquired before marriage which is still in the possession of either husband or wife during the marriage and has not been commingled. Separate property may also be acquired during the marriage by way of gift. A typical example is either husband or wife may give the other jewelry for an important occasion. This gift will be the separate property of the acquiring spouse. If you receive an inheritance during your marriage, it is your separate property. When a couple separates and decides to dissolve its marriage it is the duty of the court to determine the value of all community property and divide it equally.

HOW WILL OUR PROPERTY BE DIVIDED? MUST WE GO TO TRIAL?

California Law requires that the courts divide equally all community property and confirm any separate property to its owner. The court has considerable discretion in determining how to divide your community property in order to assure that a fair result is reached. It is not necessary that each asset be divided precisely, something rarely possible. All that is required is substantial mathematical equality. Usually assets are valued assets of the date of trial. In certain instances, such as with pension benefits in which payment will not be realized until retirement, the court may order distribution of the asset at a future date. Nothing prevents you and your spouse from entering into an agreement dividing your property. Settlement agreements are favored by the court and your agreement will be approved if it is fair and reasonable.

WILL SPOUSAL SUPPORT BE PAID? IF SO, HOW MUCH?

Marriage is a contract between your and your spouse in which the law imposes obligation of mutual respect, fidelity, and support. The obligation of support may continue after the marriage is dissolved based upon the needs and earnings of the parties. While your case is proceeding through the legal system the court has authority to award temporary support to a spouse in need. The purpose of temporary support is to maintain the status quo until the conclusion of your case. When your case is concluded the court may award permanent support. The amount and duration of an award of permanent support is based upon many factors. You should consult an attorney to tell you what they are. Generally spousal support is tax deductible by the paying spouse and the supported spouse must pay income tax on the amount received. Support orders are modifiable upon a showing of a change in circumstances. There may be a presumption of decreased need if the supported spouse cohabits with a person of the opposite sex.

WILL CHILD SUPPORT BE PAID? IF SO, HOW MUCH?

Both parents have an equal responsibility for the support, maintenance and education of their minor children. The obligation to support your children commences before birth and terminates at the age of minority, age 18, if the child is full-time high school student then until graduation or 19 years of age, whichever occurs first. California has adopted minimum standard for child support but there is maximum. The award of child support is governed by two standards, the needs of the child and the ability of the parents to pay. The legislature has adopted state-wide guidelines which base child support on a mathematical calculation primarily depending upon the income of the prayer. In determining a parent's ability to pay child support a court may consider the value of that parent's share of the community property as well as any separate property the parent may have. The court will also look to the earning of the parent as well as his or her earning capacity should the parent be "under-employed". They will also look at the time share of each parent with the children. Child support is traditionally paid to the parent having custody of the minor children for their benefit. Child support orders are modifiable upon a showing of a material change in circumstance.

HOW DOES CHILD VISITATION WORK?

If you and your spouse agree or the court orders one parent to have physical custody of your children, the other parent may also acquire reasonable rights of visitation. There are no set rules as to what constitute "reasonable" visitation rights. Each case is decided on its particular circumstances. As with child custody, the court will approve a reasonable visitation plan agree to by you and your spouse. A mediator is available through the court system to assist in establishing a child visitation plan. Additionally, recommendations from private professionals may be considered by the court in reaching a decision on these issues. A child visitation order may call for either specified or unspecified visitation times. A specified order states specific days and times when visitation is to commence and terminate. An unspecified order leaves such arrangements tot he parties. Litigated visitation orders may be modified upon showing of a material change in circumstances affecting the child's welfare and that the modification will be in the child's best interest. California Law authorizes the court to grant visitation rights to grandparents if it found to be in the best interests of the children to establish those rights.

SHOULD I BE REPRESENTED BY A LAWYER?

Dissolving your marriage is not an easy task. The legal and financial ramifications of your actions will be felt for many years to come. Whether your case is concluded by settlement or trial your should be advised by an attorney versed in the intricacies of the law relating to dissolution of marriage.