The information that follows is intended for California residents only. Information contained on this website is not intended as legal advice and is void where prohibited by law.

We would like to discuss some of the major issues concerning the dissolution of marriage. Below you will find links to details about these issues:

I. Child Custody and Visitation
II. Child Support
III. Spousal Support
IV. Restraining Orders V. Residence Exclusion
VI. Division of Community Property VII. Day Care Expenses
VIII. Separate Property
IX. Contested or Uncontested Divorce X. Attorney Fees
XI. Duration of Divorce Proceedings
XII. Modifications

I. CHILD CUSTODY and VISITATION - This is comprised of 2 elements Legal Custody and Physical Custody. Legal Custody: Involves the right to determine the children's schools, the medical treatment for the children, religious upbringing, access to school records, access to medical records, etc. Unless one of the parents is determined by the court to be an unfit parent, the court will award joint legal custody to both parents. Physical Custody: The court will typically award primary physical custody to one parent. It is with this parent that the child will live most of the time with visitation granted to the other parent referred to as the "non-custodial parent". The primary parent will choose any day care. Depending upon the ages of the children and the proximity between the parents' homes, a typical visitation might be that the non-custodial parent would have visitation from Friday after school until Sunday evening on alternate weekends with another over night visitation mid-week during the week in which the non-custodial parent does not have weekend visitation. The parents would alternate major holidays and each parent would typically have a right to a significant summer visitation when the children are out of school. This schedule may vary with children who are very young or older.

Rights of the Child to Choose a Parent: Generally speaking, the court will not allow the children to determine which parent with whom he or she wishes to live. However, once the child reaches his/her teenage years, the child will have more input into the custody and visitation. The courts do not like placing the child in the position of choosing one parent over the other and therefore children rarely testify concerning these issues. Occasionally, in a very hotly contested custody or visitation case, the court will appoint an attorney to represent the children's best interests. Also, the judge may appoint a psychologist to make a recommendation to the judge as to which parent should receive primary physical custody or to determine the visitation schedule. The court will order one or both of the parents to pay for these costs and they may be very expensive.

During the last few years, the Santa Cruz County courts have begun to move away from dividing the children's time equally between both parents. The prevailing judicial philosophy involving child custody and visitation appears now to be that an arrangement where the children divide their time equally between two parents does not provide sufficient stability for the children. It is felt that they need to have a location, which they consider their primary home. In the event that the parents are both good parents and that they both have a good relationship with the children, the courts feel that it is best for the parents to allow frequent visitation by both parents on a relatively flexible but predictable schedule. This allows each parent to have significant contact with the children and allows for the flexibility that life often requires.

II. CHILD SUPPORT - Is determined in California by the use of a computer program available to all judges and the family law attorneys; therefore, the determination of child support is much more constant throughout the state than it has been in the past. Determination of child support is based on the income from both parents, the percentage of time each parent has physical custody of the children as well as other factors. These factors are input into the program, which then determines the child support for each child. Santa Cruz County uses the Dissomaster program.

If both parents are salaried employees, then the determination of the child support is relatively easy. It is only when the salary of one or both of the parents is not known or the parents' salaries are extremely variable that this process becomes difficult. Determining the income of the parents for purposes of child support is one of the purposes for Discovery as explained in the procedure page.

Child support is often set at the first Order to Show Cause hearing. The amount of child support can be increased or decreased in the future if there is a change of circumstance. Change of circumstance includes loss of a job by either party, disability of either party, an increase in the expenses of either party or decrease in income by either party, change in the time share with the child or other factors. Generally there is a termination of child support as the child reaches the age of eighteen, if graduated from high school or when the child graduates from high school, but in any event no later than when the child reaches 19.

III. SPOUSAL SUPPORT - "Temporary Spousal Support" is sometimes calculated using the same computer program used to calculate child support. The judge, however, has more discretion in determining the amount of and the duration of spousal support than what the computer says. "Permanent Spousal Support" which is the spousal support set by a Judge at the trial or agreed to by the parties as part of a Marital Settlement Agreement is determined by evaluating numerous factors including the parties, ages, health, earnings, estates, length of marriage, etc. This will terminate upon death of the receiving party or the remarriage of the receiving party. "Permanent Spousal Support" may also have a specified duration. One rule of thumb is that spousal support will continue for approximately one half the term of the marriage except if the parties have had a long term marriage (a marriage greater than ten years is deemed a long term marriage), then spousal support will continue indefinitely until the spouse receiving the support remarries or dies.

IV. RESTRAINING ORDERS AGAINST FAMILY VIOLENCE - The court has the power to issue restraining orders at a separate Order to Show Cause hearing requiring one party to not contact, assault, harass or come near the other party or that person's home or place of employment. In order for the court to make these orders, there must have been instances of violence or harassment within the recent past. The court generally will not look to instances in the distant past and will not issue a restraining order based on remote experiences.

V. RESIDENCE EXCLUSION - The court generally will not order one party to leave the residence (residence exclusion) unless there have been examples of violence either against the other party or the children. The court bases this approach upon the belief that each party has an equal right to live in the family residence.

I advise my clients that if they or the children are being assaulted they should report all such incidents to the police because this is a criminal matter as well as a civil concern and give serious consideration to getting out of the house, at least temporarily. Their first responsibility is to protect themselves and the children.

VI. DIVISION OF COMMUNITY PROPERTY - The husband and wife are each entitled to one half of the community property upon the dissolution of marriage. Community property is defined as that property which is obtained by either the husband or the wife after the marriage by the efforts of either party and before they have separated.

There are many types of community property that are subject to division by the court that may not be easily recognizable as community property. These may include a pension plan, 401K Plan, or IRA acquired by either of the parties during marriage. Small businesses operated by one of the parties during the marriage may also be community property. Forensic accountants would evaluate such a small business. To determine the value of a small business, for instance, the physical assets and good will of that business would be considered. Even small service businesses such as law practices, accountancy practices, medical practices etc. are community property and may have a large valuation even though much of the value of that business is dependent upon the individual operating it. A lot of the people are often surprised at the large values that may be given to what each party considered a small and basically valueless business. Pensions may be valued at their present value or divided. Such a division may require special orders known as Q.D.R.O.'s.

VII. DAY CARE EXPENSES - The court will normally require each parent to pay one half of the actual child care expenses needed to allow one parent to go to work, in addition to the child support.

VIII. SEPARATE PROPERTY -Separate property is property owned by either party prior to the marriage or received by either party as a gift (i.e. not a gift to both parties) or inheritance. Property acquired after separation by either party normally is considered the party's separate property.

Separate property may be deemed to be community property if the party receiving it does not maintain its separate property status. (For example, commingling the inheritance in a bank account in both names in which the salaries are deposited.) The ways in which separate property becomes community property are too complex to be discussed in this overview. These types of situations, however, are often complex and hotly contested because there is sometimes property of significant value involved.

IX. CONTESTED OR UNCONTESTED DIVORCE - Many times the parties involved in a divorce may settle the general terms between themselves and retain attorneys only to prepare and review the documents. An "uncontested divorce" or sometimes referred to as a "friendly divorce" is finalized by one party filing a petition for dissolution of marriage and then a stipulated judgment is prepared and submitted to the court for the judge's approval and signature. A stipulated judgment is a judgment agreed upon by both parties. Under this approach the court technically takes the default against the Respondent and the court issues the judgment in accordance with the terms of the stipulated judgment. The Respondent is protected because the court will issue a judgment based upon the terms in the stipulated judgment.

X. ATTORNEY FEES - I charge on an hourly basis for the legal services rendered. The client and I sign a retainer agreement that sets the hourly fee and describes the services to be provided to the client. At the time that the retainer agreement is signed, a retainer fee is required. The amount of the retainer fee varies depending upon the complexity of the case. This retainer fee is paid to insure my availability in the case to the client and is a down payment on the total amount of attorney fees that may be charged. This is not the total amount of the fee. This situation is spelled out more specifically in the retainer agreement. I offer a reduced rate for the initial 1/2 hour of consultation.

Often in dissolution of marriage, one of the parties earns substantially more than the other. The court will often order the party receiving the greater income to pay a portion of the attorney fees of the person earning lesser income. The court may also order a party to pay accountant fees or other out of pocket expenses as the situation may arise. The court bases these decisions on the respective amounts of income as well as assets involved. The court will also take into account whether one party is attempting to hide assets or income or is otherwise acting unreasonably.

XI. DURATION OF THE DIVORCE PROCEEDINGS - California requires a residence requirement to be met before a divorce may be filed and a judgment issued. A divorce cannot become final unless one of the parties has lived in California for six months and in the county where the divorce is being granted for three months. A divorce, however, may take longer than six months if there are complex property issues.

The parties do have the option, however, of "bifurcating" the divorce. This means that it is possible to terminate marital status, i.e. become no longer married, even if the property issues have not been resolved. The court will sometimes attach conditions to the bifurcation such as holding the other party harmless from adverse tax consequences, loss of health insurance coverage, etc.

XII. MODIFICATIONS - I often represent people when there is a request to modify child custody, child visitation orders, child support orders, spousal support orders or enforce judgments.