California Family Law Basics

Debunking Family Law Myths: Psychology and Child Custody

2010-04-05T19:32:00.001-07:00

A couple times each year, a client comes to my office with a really tricky child custody situation. The other parent is manipulative or somehow inappropriate (e.g., having vague discussions with your children about your relationship with your new significant other). Or sometimes the other parent does things related to parenting which are inappropriate, but relatively minor (e.g. "forgetting" to send the homework packet with the child during your parenting time).

Sometimes these kinds of activities can be documented, and are signs of real problems. At times these small issues may actually go to a much deeper psychological and emotional level, even so far as a clinical diagnosis of a personality disorder or other real psychological disease. With such clinical diagnoses in hand, these clients come to my office with another Family Law Myth:

"Since my kids' [mom/dad] has this psychological problem, I can get sole custody of the kids, right?"

This is NOT necessarily right.

In my experience, nobody out there fits entirely within the concept of "normal" when it comes to psychology. There are simplified personality tests, IQ tests, and psychological tests all over the internet that will supposedly tell you what your mental and personality disorders are. And everyone who fills out a personality test will find that they tend or lean toward a specific personality or set of personality traits.

There is no study stating that any one personality or emotional disposition is better -- or worse -- for raising children than any others. The court will look at each situation from the best interests of the child. If one parent is actually diagnosed with a disease, but is able to cope with, treat, or otherwise make sure the disease does not negatively impact the child, it is unlikely that a court will change an existing order that has the child around both parents a substantial amount of time.

It is true that certain psychological or personality disorders can cause people to act erratically or threaten the health, safety, and welfare of the children. In that case, seek legal help immediately. Absent such threatening behavior, if you find yourself in a situation where the other parent has a mental, emotional, or personality disorder, ask yourself if the diagnosis really affects your child in a bad way. When doing this mental review of the facts, keep in mind that most of us had parents who were imperfect. Some of us even had parents with real psychological problems. Even so, all of us were confident enough in our own mental stability to have children of our own.

Debunking Family Law Myths: "50-50 Custody Will Eliminate My Child Support"

2010-04-02T10:45:00.000-07:00

I have people come into my office every day with information they received from their friends, family, and co-workers. This information, in the form of anecdotes, legends, and common knowledge, has established itself in urban legend so firmly that people believe it is the law. A lot of it can be somewhat accurate, but some things are simply untrue.

The one family law myth I probably encounter more than any other is this:

"If I can get 50-50 custody of my kids, I don't have to pay child support anymore, right?"

Ninety-nine times out of 100 this is wrong.

Child support is mathematical. It is based primarily on (1) the amount of money each parent makes (or should be making) after standard taxes; and (2) the amount of time each parent has with the children. The formula used in the State of California to calculate child support has no hard and fast rule that makes 50-50 custody akin to multiplying by zero. Instead, the formula allows support to slide on a continuous spectrum based on these two primary factors.

In most cases I handle here in the suburbs of Sacramento, one spouse makes significantly more than the other. At times this is discrepancy is minimal, and 50-50 custody may eliminate child support obligations for both parents. More often than not, one parent may earn upwards of 50% more than the other parent. At that point, 50-50 custody probably will not eliminate child support. In rare cases where one parent makes several times more than the other, the higher wage earner may be paying child support to the lower wage earner even if the children spend most of their time living with the higher wage earner.

The court will usually calculate your support obligations every time it is asked. Frequently, a motion to modify child custody is accompanied by a motion to modify support. If you are trying to eliminate your child support by modifying child custody, make sure to estimate what time share you will need to make that happen. Then ask yourself whether (a) that estimated schedule is the best thing for your kids; and (b) you are capable of caring for your kids at the level it will take to eliminate support.

Really, the best advice I can give is this: if you are looking to modify child custody, do it because it's the best thing for your kids, not because it may change or eliminate the child support amount.

Moving the Divorce Forward: Sorting Out Stuff

2009-04-07T21:18:00.001-07:00

A big part of any divorce is splitting up your stuff. This is, in some ways, easier than you probably think, and in other ways you have not really thought of, quite difficult. If you're any good with a spreadsheet, you can make your own property distribution tool with it. I will try to walk you through the steps in this post.

A. Preparations:

In order to get started, you need to do a full inventory of your stuff. Here's what you need to do this step:

A thorough list of everything you have with real value. This does not necessarily include the furniture unless it has a particularly high value (think grand piano).
A good estimate of the fair market value of everything you own. Get "private party" values for cars from Kelly Blue Blook. Get values for bank accounts, investments, and IRA/401k's from the financial institutions. Do your best to figure out the value of the house, or call an appraiser.
Balances for all debts you have whether secured or unsecured. Get these from monthly statements from your financial institutions.

After you get all of this homework done, sit down at your computer and fire up your spreadsheet. I know that Microsoft has been maligned for some of its creations in the past, but I must say that two programs by Microsoft are the greatest ever: Outlook, and Excel. I use excel for everything, including splitting up property.

B. Getting it done.

There are two ways to divide property. The first is to sell the property and divide the proceeds equally. This can be extremely cumbersome, and does not always return the value of the asset being sold. This is especially so if liquidating a 401k, which will have nasty tax penalties and fees, if you're not retirement age. The second is to assign property to the parties, keeping track of the cumulative value of the stuff each party is getting, then balancing out the difference with a cash payment.

Of course, I prefer the latter system. So does virtually every other family law attorney I know. The only real draw back here is keeping track of the net values. This is especially so if you have a complex estate that will have a lot of taxable events on various assets. As with all other advice I give on this blog, the more complex your community property estate gets, the more likely you should talk to a lawyer to make sure you're doing things right.

This is a sample worksheet showing theoretical values for a typical client who walks into my office.

This is the same worksheet showing the formulas that I used in the first worksheet to get the results I found.

Generally speaking, you have tally up the net value of each item of property. The property is then assigned to one party. Then you add up the sum total of the net values of the property assigned to each party. If one party is getting more total net value than the other, you find the difference in the values between the parties, divide that difference by two, then have the party who is getting more stuff pay the other party that amount.

Note that we are dealing with NET VALUES of the property. The party being assigned property in a divorce must maintain the debt that is secured against that property. For example, if you keep the house, you are responsible for making all the payments on the house. Same thing with car payments, membership fees for timeshares, and everything else that is assigned to you under this property distribution.

Again, sometimes this gets tricky when dealing with complex estates. If you get confused it is time to talk to a lawyer.

C. Complexities:

Certain kids of property can make dividing your stuff a legal question that needs the assistance of an attorney. Here is a partial list of some of the trickier values to divide.

1. Pensions:

Pensions are tricky. If you or your spouse has a pension through a public employment plan (e.g., PERS, STRS, or a county retirement program) or through a union (e.g., Teamsters), you need to talk to a lawyer to figure out your options. For purposes of this discussion, we will assume that you have a settlement of some kind with respect to your pension that splits the community property portion of your pension in half after the pensioner hits retirement age

2. Taxable Assets:

Sometimes, in order to make a final division of property, you will need to cash out an asset with a tax consequence. IRA's and 401k's are simple examples. Investment property with depreciation that will be recaptured if sold is another example. Since we are concerned with net values, if you have a complex taxable estate, you will want to talk to a lawyer to help divide things.

3. Family Business:

If either of you are self-employed, there is a possibility that the self-employed party's business has value beyond a paycheck. Again, check with an attorney.

4. "Upside Down" houses:

This field of law changes every day. Formerly, the options were to sell short/foreclose, have one party assume the entire excessive mortgage package, sacrifice other community assets to pay down the excessive debt, or have both parties stay invested in the house until the market comes back. Now, with the loan modification options available, the impact is not as bad as it was.

5. High Value and Complex estates:

If you have a particularly complex estate, it is always a good idea to talk to a lawyer. The more complex your estate, the more detailed the legal analysis becomes. Mistakes in complex estates quickly become more costly than the attorney's fees you would spend to prevent the mistakes from happening in the first place.

D. Conclusion:

The long and the short of this: Do what you can to divide your stuff on the spreadsheet. Do not sweat the small stuff. Then move on with your life.

Living Single - Part 2, Starting your life alone

2009-02-25T09:12:00.000-08:00

This post will pick up where the last left off and deals with the details of living separately again after you have split up from your spouse, or the other parent of your children.

In addition to being careful about the audience you speak to (refer to Part 1, Who Do You Talk To?), you also need to start taking steps to untangle all of the community property stuff you have accumulated. There are several layers to think about while doing this.

II. Starting life alone:

Several posts ago, I defined the difference between community property and separate property. In general, separate property is defined as:

Anything you had before you got married;
Anything you inherited or received as a gift at any time;
Anything you earned after you split up from your spouse;
Anything you can show with documents that you bought with above-described separate property, even if you bought it during the marriage.

One of the main points of a divorce in California is to identify what is separate property, then split up the rest of the community property 50-50.

As soon as you and your soon-t0-be ex-spouse decide to separate, you need to seriously consider getting the following things arranged in your name only.

A bank account that you put your salary into (assuming you're employed);
A credit card that has only your name on it;
If you are the one who moved, a lease with your name only on it;

Because I'm a suspicious lawyer, I would recommend that you get your bank account and credit card at banks with which your spouse does not already have an account. Do not, for the time being, cancel the joint account, if you had one. The joint account will be what you and your spouse use to pay some of the joint bills.

A. Paying the community bills:

To avoid complex math at the end of the divorce, you need to figure out how you are going to divide up the community expenses. Here are some tips.

1. Credit cards and unsecured debts:

If you and your spouse are both working and making decent wages, you will do yourselves a favor if you agree to pay 1/2 of the unsecured bills each. This can also work if support balances the scales between the parties' incomes. If the two parties do not each pay half of the credit cards, you will probably need to do some extra math at the end of the process to balance out the payments between the parties (called "Epstein Credits"). If there is just no way for one of the two parties to pay their share, even after spousal or child support, "Epstein Credits" will simply be a fact to determine at judgment. You will probably need a lawyer to help iron these out, or you may agree with your soon to be ex-spouse to waive them. (These can amount to tens of thousands of dollars).

2. Secured Debts:

a. Cars:

Most of the time, if you and your spouse have more than one car each party will have one vehicle they typically drives. The parties will typically keep the car usually driven by that party after separation. If a car is financed, then the party who is driving the financed car has to make the payments on it.

b. House Payment:

Like with the car, the house payment should be paid by the party living in the house. If the house payment is greater than the house's rental value, you will save yourself a lot of headaches if the two of you split the difference between the house payment and its rental value.

3. Other expenses.

The whole point of separating is to get everyone a new start on their own. Whoever accumulates the bill has to pay the bill. This means everyone pays their own utility bills, groceries, cell phones, etc.

B. Living your own life.

You will do yourself a favor if you get your own credit cards to develop your independent credit rating. Do not use community credit cards to pay your post-separation bills. Pay all of your own expenses. Develop your own budget and stick with it. Do not dwell on or lament your former lifestyle: it simply costs more to live separately than it did living together.

Living Single - Part 1, Who Do You Talk To?

2008-09-17T23:36:00.000-07:00

While I am the first champion for non-confrontational divorce whenever it is possible, it is important to change your behavior now that you are contemplating divorce, or while the divorce is pending.

You are probably just ending the single longest and most emotionally demanding relationship of your life. While married, you probably developed certain habits and let down your guard considerably as compared to your days as a single person. You have had someone that you likely spoke freely to about all subjects, and who you honestly did not mind having access to your financial information and bank accounts. This person probably knew the details of your physical and emotional health histories.

There are two pieces of advice that I try to give to all my clients:

1. Start acting like you are single again now, even though you're still married.
2. Try to keep as much control over your emotions as possible.

With these two rules of thumb in mind, the following is a list of things you probably should start doing once the decision is made to separate:

I. Protect your privacy:

A. Speak to the privileged:

While your divorce is pending, if you ever feel like speaking ill of your spouse, you should take pains to speak only to those individuals who hold legal privileged and ethical confidentiality obligations. If child custody is involved, bad mouthing your child's other parent to your friends is an easy way to drag your friends into your divorce and negatively affect your parenting time. Also, discussions you have with your friends about a potential job can change and grow through the grapevine, eventually becoming the job you got last year paying $500,000 per year. These kinds of rumors start plenty of shoving matches with your soon-to-be ex.

People with legal privileges are the following:
1. Your Lawyer
2. Your mental health professional (Psychologist, Psychiatrist, MFT, LCSW)
3. The clergy
4. Your doctor.
5. Ordinarily your CPA would fall under this, but in the world of child custody and support, this privilege is not reliable.

B. Separate your personal contact info:

Again, you are single now. If you are still living with your soon-to-be ex because of financial problems, get yourself a new mailing address. Send everything from your new bank account (see below) and credit cards, and other post-separation mail to this new address. If you have a nosy ex, you may consider getting yourself a new cell phone plan: some carriers will split up plans while you are getting divorced. Change your passwords to your personal online account. Most important, get a separate bank account. Again, send all of the information from your bank account to the new separate address. Finally, get a credit card in only your name. Use it responsibly. Send its bills to the new address.

C. Talk to your spouse before doing anything major.

Surprises in family law almost always cost people attorney's fees. You may have had the authority to act on behalf of the whole family before you separated, but now you have act like you're single again. And single people talk to their roommates and business partners about what is going on to prevent conflict before it starts. Talking to your ex before moving out of the house, changing your children's schools, or canceling the cable account will ultimately save you money. Of course, in cases of abuse or other forms of violence, a hasty and surprise departure may be justified.

Other equally important steps to take as you move out will be discussed in a later posting. Generally speaking, treat your ex with the level of respect you expect from him or her. Talk whenever possible about the kids and the joint finances. And keep private those conversations that could come back to bite you!

Getting Started (Divorce)

2008-08-31T08:30:00.001-07:00

Getting started is realtively easy. The process generally involves filling out forms, paying filing fees, and giving the completed forms to your spouse. The primary difficulty is the filing fee, which, as of the date this post is written, has been $320 in California for several years.

A. The Forms

Four easy-to-complete documents are necessary to file for divorce:

1. Petition (Form FL-100 or FL-103)
2. Summons (Form FL-110)
3. Declaration under the Uniform Child Custody Jurisdiction Enforcement Act (Also called a UCCJEA Form) (Form FL-105)
4. Proof of Service of Summons (FL-115)

These forms are easy enough to find on the forms section of the California Courts statewide website: http://www.courtinfo.ca.gov/forms/.

1. The Petition

Filling out the Petition has only a few confusing parts. The first is section 4, in which the Petitioner must identify all separate property. In the Sacramento area, the accepted practice is to state the law about separate property in the "Item" column rather than an exhaustive list of separate property. The paragraph I use for the "Item" column says the following:

"All property acquired before marriage, after separation, or by gift devise or bequeath; all property purchased from the proceeds of the sale of any such property identified above."

In the "Confirm To" column, state "Petitioner."

The second page of the form asks, at section 5, for another unwieldy list of the community property you accumulated during your marriage. In this section, most Sacramento area lawyers will check the boxes indicating that all community property is "Listed Below," then say something like the following:

"As disclosed during discovery and mandatory disclosure proceedings."

In section 6, most all divorces are for "Irreconcilable Differences." If you are seeking a divorce for any other reason, you should probably consult an attorney to make sure it wouldn't be easier just to proceed by way of "Irreconcilable Differences."

Section 7 has many poorly worded questions in it. Because every divorce is different, I cannot explain a preferred method of filling this section out. The only advice I can give is to make sure you check the boxes under parts g and h. Read the rest of the form very carefully, and MAKE SURE you check all boxes you want checked. The petition dictates the kinds of things you can ask for in motions, orders, and judgments, so make sure you always ask for your best case scenario.

Sign this form at the bottom of page two when you're done.

2. The Summons:

The Summons is mostly self-explanatory. All you need to do is fill out the name section at the top, and the address sections for the court and yourself at the bottom of the first page.

3. The UCCJEA Form:

If you have never had third parties (people other than you or your children's other parent) involved in the legal aspects of parenting your kids, the most difficult part of this form is remembering the history of your residence addresses. This form is, again, self-explanatory.

If you have never been involved in child custody litigation, and do not know of any other court case regarding custody of your kids at the moment you are signing the UCCJEA form, check the boxes for "No" under sections 4 and 5. Otherwise, read the document carefully, and check the appropriate boxes.

If you do not have third parties with legal claims to your kids, simply check the boxes for "No" for boxes 6 and 7.

Sign this form at the bottom of page two when you're done.

4. Proof of Service of Summons:

Fill out the Proof of Service as best as you can at this point. It does not come into play until later.

B. What to Do With Everything.

After you have filled everything out, take it to a local copy store and make about two copies. Staple the Petition to the UCCJEA form. Grab your checkbook and head down to the local family law courthouse. You will probably need to look everything up on the internet first so you know which facility contains the family law filing clerk.

When you get to the courthouse, the clerk will take your documents, stamp stuff on everything, and hand your copies back to you. Take the copies home and put one set somewhere safe. Go back onto the internet and print up a blank Response form, and staple it to the remaining copy of your court-stamped documents.

Call a good friend who is willing to get moderately involved in this process. Set up a time that you, your spouse, and your friend can all be in the room together. Before the meeting with your friend, have a brief chat with your spouse and explain what is going on. Then have your friend come over and hand a copy of the Petition, Summons, UCCJEA, and blank Response to your spouse.

After all the documents have changed hands, have your friend fill out the rest of the Proof of Service of Summons form and sign it at the bottom of the second page. Make a copy of the Proof of Services, and take it back to the courthouse. File the Proof of Service with the courthouse, and put the court-stamped copy where you are keeping your Petition.

You are now started. Disclosures and temporary orders are next.

Child Support Calculators

2008-07-03T07:58:00.001-07:00

Child support in California is derived from a mathematical equation that balances after tax pay against each party's respective share of time with their child(ren). Written in the code as an algebraic function, the calculations for child support have been more or less standardized for all residents of California for several years now.

In general, if you are the paying party, your child support goes up with your income, goes down with the other parent's increased income, goes up with your decreased time with the children, and goes down with your increased time with the children. Here is a chart that generally sorts it all out for you:

Event	Effect on Support
Payor Increase in Income	Increase
Payee Increase in Income	Decrease
Payor Increase in Visitation	Decrease
Payor Increase in Deductible Interest	Increase
Payor Remarries; New Spouse Income increases tax burden.	Decrease

California has several "approved" child support calculator systems. My offices uses XSpouse, and is flexible enough to deal with people who are self-employed, disabled, or even avoiding work. Other software systems that are designed to calculate child support include DissoMaster and SupporTax. My experience is that they all do an adequate job.

The State of California has made a free, though somewhat cumbersome, online child support calculator available for everyone. The child support calculator will ask you some detailed questions about your visitation arrangement, your income, and your deductible expenses. Before you start, it will be helpful to get a stack of documents together, including the following:

Your last three pay stubs.
Your last year's taxes.
Your most recent mortgage statement.
If you have already been to child custody mediation, your mediation report. If you have not been to child custody mediation, a calendar so you can calculate how much time you have spent with your kids in the last few months.
Any papers showing the support you are paying to anyone other than the children from the relationship you are currently calculating.

The online system will walk you through all of your questions. Again, this system is free, presumed accurate, and very useful. It can be confusing, though. If you have problems figuring out what to do, it may help to contact an attorney, or to go to your local courthouse. In Sacramento, we have the Family Court Facilitator who may help, and during their lunch hours, some of the judges help people enter the numbers into the child support calculator programs they have in the courthouse. Check with your local family law courthouse to see if it offers the same program. If all else fails, give a lawyer a call.

The difference between "Community Property" and "Separate Property"

2008-07-03T07:12:00.000-07:00

In California, we live in a community property state. Community property exists to ensure that the roles of each party to a marriage is given equal importance for purposes of dividing the property that was acquired by the marriage.

In a nutshell, community property is everything that a married couple bought from the moment they were married to the moment they separated. Also community property is all income earned from work during the marriage, even if one spouse works at a separate property business (see definition of separate property, below). The date of marriage is an easy thing to find out for most people. The date of separation is the date that a couple separates with the intention of never reconciling. For people who continue living together after they stop living as husband and wife, this can be a challenge.

The opposite of community property is separate property. Separate property is everything a person buys before marriage, or after separation. Also included in separate property is anything one person inherits or is given at any time in their lives, even during the marriage. If one party has a business before the marriage, it is likely to remain separate property throughout, so long as that party pays himself/herself an appropriate wage or salary (the wage is community property).

It is important that separate property is treated as separate. Separate property money should be kept in a separate account. Separate property assets should remain titled in only the one party's name. Intentionally changing ownership records -- like deeds, pink slips, bank account records -- to any kind of joint title ("joint tenants," "tenants in common," or "community property") can create confusion that can breed costly litigation.

Sometimes separate property funds will be used to buy community property items. For example, sometimes when two people are married, one of them comes into the marriage with a savings account or other assets. Upon marriage the parties may decide to use the savings as a down payment for a house or other asset that is otherwise purchased with community property debt (a mortgage) and community property income (wages from work).

In the example immediately above, closing documents from the purchase of the house will likely show the source and amount of the down payment. A party that can show with documents that separate property funds were paid against a community asset is entitled to a refund of that separate property down payment without interest. In other words, if one party can show that they made a $10,000 down payment on the community property house 20 years ago, that party gets only the $10,000 back. All appreciation and improvements to the property that added additional equity will be split equally between the parties.

Some things can alter how the community property rules work. Agreements between the parties (sometimes called "prenuptial" or "premarital" agreements) and theft by one party of community property can alter the means and amounts of community property distributions. If issues like this arise, a lawyer and possibly a forensic accountant will be helpful in obtaining records and tracing funds.

The Basics of Family Law

2008-07-03T00:36:00.000-07:00

All family law is comprised generally of four larger areas of interest. This blog will discuss the basics of the law in each area with an emphasis on completing an entire divorce of a married couple with average assets, a relatively minor custody issue, and child and spousal support issues (spousal support is also called alimony). This blog will not cover the areas of juvenile dependency, conservatorship, Guardian Ad Litem, or other such specialized areas that may sometimes be handled by family law attorneys.

The four main issues in family law are:
1. Marriage status: changing you from a married person back into a single person is a legal act that can only be done by a judge.
2. Property: California is a community property state. Each party to a marriage is entitled to one-half of the property, but settling property issues can sometimes be tricky.
3. Child Custody: For those of you with children, this can be the most frustrating and costly portion of your divorce, bar none. The relationship you have with your children’s other parent will prove the ultimate test of your character.
4. Support: Support takes two forms, each of which has its own rules and guidelines in calculating.

A "legal separation" will take care of everything except for the marriage status. In general, the purposes of a "legal separation" are usually grounded in religious belief, or to protect one party's ability to receive social security, insurance, or other benefits.