1.
How long will my divorce (or domestic partnership dissolution)
take?
Once the initial paper (called a Petition for Dissolution
of Marriage) is filed, you must wait six months before
you may obtain a Judgment dissolving your marriage.
The total time required to resolve all of the issues
that may arise in a particular case depends on many
factors, including whether the parties cooperate in
exchanging required information and documents, and whether
they can agree on the issues.
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2.
How much will my divorce cost?
The answer to this question depends largely on whether
or not the parties are able to reach an agreement on
any property, support, and custody and visitation issues
that may exist in their particular case. It also depends
on whether or not the parties are reasonable and cooperative.
In addition, it is often necessary to have real property
appraised, retirement plans and businesses valued, and
to gather other information. In most cases, the parties
agree on some issues, but cannot agree on others, and
it becomes necessary to go to mediation, settlement
conferences, or to court for a ruling from the judge.
Ms. Martens will provide effective guidance to help
clients make informed decisions as to when it is appropriate
to expend the time and resources necessary to proceed
to court and when it is appropriate to compromise. Because
each case is unique, and the time required for each
case varies widely, fee arrangements are based on an
hourly rate, rather than a flat fee.
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3.
Where will the children live?
The court’s goal is to establish a child sharing
plan that assures that the children will have “frequent
and continuing contact” with both parents, and
will make orders it believes reflect the “best
interests of the children.” However, this does
not necessarily mean that the judge will try to establish
a 50-50 schedule. Rather, many factors may influence
the court’s decision concerning custody, including
the children’s ages, the parents’ work schedules,
availability of day care and transportation of the children,
and whether there is any history of domestic violence,
drug or alcohol abuse, or evidence of alienation of
the children by a parent. In cases involving abuse and/or
drugs or alcohol, a parent may be limited to supervised
visitation.
Prior to a custody hearing, the parents are required
to attend mediation, where they have an opportunity
to explain any concerns they may have about their children
to a court-appointed mediator who will prepare a written
child sharing recommendation for the judge’s consideration.
If custody continues to be disputed, a child custody
evaluation may be ordered. Custody issues can sometimes
be resolved by establishing a set schedule that works
for both parents. However, some parents have continuing
disputes regarding custody and visitation, often due
to communication problems, which can require subsequent
court hearings over a period of years.
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4.
How much child support will I have to pay (or be entitled
to receive)?
The court is bound by established statewide guidelines
in setting child support. Parents are required to exchange
with each other completed forms called Income and Expense
Declarations, along with supporting documentation. Attorneys
and judges use computer programs to calculate support.
The two primary factors are each parent’s gross
monthly income and the percentage of time each parent
has custody of the children. Often, the interrelated
issues of custody and support are overwhelming for parents,
and they end up in court, where an experienced family
law attorney can be of great assistance to them.
Issues can arise concerning a parent’s income,
especially in the context of self-employed parents where
the legitimacy of “business expenses” can
be called into question. Or, if a parent is working
“under the table” (working for cash and
not reporting their income), it may be challenging to
establish their true income. Also, a parent may be capable
of working but may choose not to work or to work only
part-time. In these situations, an argument can be made
that a certain amount of income should be imputed to
the unemployed or underemployed parent in order to reach
a fair result as to the amount of support.
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5. How much spousal
support (or domestic partner support) will I have to
pay (or be entitled to receive), and how long will it
be paid?
The general rule is that the higher earning spouse pays
support to the lower earning spouse for one-half the
length of the marriage. However, if the marriage is
over 10 years in length, it is deemed to be a “long-term”
marriage under California law. In that case, spousal
support may be payable for a much longer period of time.
The supported spouse has a duty to become self-supporting
within a reasonable period of time. If they fail to
use reasonable efforts to do so, such as engaging in
vocational training or seeking a job, the court can
reduce or even terminate spousal support.
As for temporary spousal support upon separation, the
court will often set the amount using the DissoMaster
or Supportax programs. When setting a permanent spousal
support order, the court can look at many factors, including
the age, health and education level of the parties,
whether one spouse supported the other through college,
whether one spouse lost career opportunities due to
being a stay-at-home parent, the separate property available
to each spouse, and other factors.
Entitlement to spousal support is not automatic. In
addition, the court may order one party to pay community
debts (such as the monthly mortgage payment) in lieu
of, or in addition to, spousal support.
The court can also order that a spouse undergo a vocational
evaluation to determine what type of work they are suited
for and how much they should be able to earn. They can
also be ordered to show proof of a job search.
Ms. Martens works with her clients to achieve a fair
result regarding spousal support, including, where appropriate,
negotiating a wavier of spousal support in exchange
for a greater share of the community property. Such
an agreement is often desirable because it extinguishes
any ties between the parties.
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6.
How will our property and debts be divided?
The general rule is that all property (including real
property, retirement accounts, bank accounts, and personal
property), and debt (including mortgages, credit cards,
car loans, and other debt) acquired during the marriage
is divided equally. Often the division requires the
sale of the family home, or the parties can negotiate
a buy-out.
There are exceptions to the equal division rule. For
example, if spouses commingle their separate property
with community property, it is necessary to determine
whether the funds or other property can be traced back
to a separate property source, or whether they were
inextricably commingled with and effectively “transmuted”
into community property. If the separate property funds
can be traced back, the spouse who contributed those
funds is entitled to reimbursement. For example, a typical
scenario arises when a couple purchases a home after
marriage using funds that are the separate property
of one spouse. The spouse who contributed the separate
funds may be reimbursed if they can trace back the funds
to a separate property source.
Many other property division issues may arise. For example,
if one or both spouses keep separate bank accounts,
or if real property or automobiles or held in only one
spouse’s name, it must be determined whether the
assets are nonetheless community property subject to
division.
When a spouse files for divorce, automatic restraining
orders go into effect that prohibit either spouse from
disposing of transferring, selling or otherwise disposing
of any separate or community property, other than paying
for necessaries of life. This means you cannot change
beneficiaries on insurance policies, makes loans against
the family home, or take other action effecting the
community estate without the other spouse spouse’s
consent.
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7.
How will I pay my attorney fees?
If one spouse earns substantially more than the other,
the court can order the higher earning spouse to pay
a portion of the lower earning spouse’s attorney
fees to assure that both parties have legal representation
and are on equal footing. In addition, if during the
course of the dissolution a spouse engages in bad faith
tactics, the court can order attorney fees in the form
of a sanction.
If the parties own real property, a client may also
enter into an arrangement with an attorney to record
a Family Law Attorney Real Property Lien Against their
one-half community interest in the real property to
secure attorney fees. Using this method, the attorney
does not get paid until the house is sold and the proceeds
divided between the parties.
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