What are my rights regarding my children and my home if my husband left us for another woman?
02/12/2007 - Divorce - State: CA #669
Last summer my husband and an ex-girlfriend took off together for a few months. I filed for divorce; however he replied with an attorney and wants custody of our children and wants me to move out of our home. What can I do?
If you do not have your own attorney representing you, please consult with a qualified attorney in California as soon as possible.
General Overview of Divorce in California
California was the first state to implement the "no-fault divorce" concept. In California, a dissolution of marriage can be granted if the court finds there to be "Irreconcilable differences" that have cause an irrevocable breakdown of the marriage. In effect, this means that if a married person wishes to terminate the marriage, he/she can do so, even if the other spouse disagrees.
In order to qualify for a dissolution of marriage, one of the spouses has to have been a resident of the state for a continuous six months and of the county for a continuous three months prior to the filing of the Petition. Once the Respondent is served with the Summons and Petition, the marital status cannot be terminated until six months have passed since the service was effected.
A typical dissolution of marriage requires the following steps:
1. The Petition (Family Law) is filed and personally served on the Respondent.
2. The Respondent then has thirty days to file a Response (Family Law).
3. One of the parties to the dissolution will usually request temporary court orders by filing for an Order to Show Cause hearing. At this hearing, the judge will make temporary child custody, support and restraining orders.
4. The parties then engage in discovery, which is the process by which parties to the dissolution exchange information and documents that are relevant to the case. One of the required aspects of discovery is the preparation of the Preliminary Declaration of Disclosure. This is a court form in which each party lists the community and separate property. As part of this disclosure, the parties are also required to exchange current income and expense declarations. Other forms of discovery are interrogatories (written questions) and depositions (oral examination under penalty of perjury).
5. After the discovery is completed the parties and their attorneys (if they are represented) will discuss settlement of the case. If the case is resolved by agreement, one of the attorneys will prepare a Marital Settlement Agreement, which will contain all of the terms of the agreement. This is a contract that is signed by the spouses and their attorneys.
6. If the parties are not able to agree on all of the issues in the case, a trial will take place.
7. After the parties sign the Marital Settlement Agreement or after the trial has concluded, one of the attorneys will prepare a Judgment of Dissolution of Marriage. This is the document that contains all of the court's orders. The judgment is filed and the court mails a Notice of Entry of Judgment to each attorney.
Spousal support is often awarded at an Order to Show Cause on a temporary basis, where one spouse is unemployed or earning significantly less than the other spouse. The Superior Courts of Orange and Los AngelesCounties have adopted a spousal support guideline for use in setting temporary spousal support. This guideline provides that the husband's spousal support is to be 40% of his net monthly income, reduced by one-half of the wife's net monthly income.
At the trial of the dissolution, the California Family Code provides the judge with a long list of factors that are to be considered in determining the amount and duration of spousal support. This list includes such factors as the length of the marriage, the parties' prior living standard, the extent to which the supported spouse contributed to the attainment of an education or professional license by the other spouse, the presence of young children in the home, and the employment opportunities available to the spouse requesting support.
In general, where the marriage has lasted more than 10 years, the court will, at the very least require a "reservation of jurisdiction." This means that, even if there is no current order for spousal support, the wife will be permitted to come back to court at a later date to request spousal support should the need arise. In marriages of less than ten years, spousal support will usually be paid for approximately one-half of the length of the marriage.
The California legislature adopted an algebraic formula to calculate child support on July 1, 1992. The child support resulting from the use of the formula is presumed by the Court to be correct. To ensure accuracy, child support is usually calculated by a computer. The formula is as follows:
CS= K [HN- (H%) (TN)], where: CS is the amount of child support;
K is a factor of both parent's income allocated for child support. This varies depending upon the number of children to be supported;
HN is the high earner's net monthly disposable income;
H% is the high-earner's approximate time of physical responsibility for the child (children);
TN is the parties' combined total monthly net disposable income.
Several deductions are allowed in computing net monthly income. Deductions include, state and federal income taxes, FICA contributions, union dues, retirement benefits, disability and health insurance premiums, and job related expenses. Child or spousal support actually paid under a court order to someone who is not a subject of the award being calculated may be deducted. In absence of a court order, child support paid in guideline amount for children not residing with the parent and are not the subject of the award being calculated may also be deducted. A "hardship," as defined by the Family Code, is not deducted from child support but is deducted from the income of the party with the hardship.
Although the presumption exists that the amount of child support determined by the formula is correct, the presumption may be rebutted by the factors as set forth in Family Code, Section 4057 (b) as follows:
1. The parties have stipulated to a different amount of child support (an agreement that the needs of the children are being adequately met along with other conditions) under Section 4065 (s).
2. The sale of the family residence is deferred and the rental value for the family residence in which the children reside exceeds the combined total of the mortgage payments, homeowner's insurance and property taxes. The amount of any adjustment pursuant to this paragraph shall not be greater than the excess amount.
3. The parent ordered to pay child support has an extraordinarily high income, and the amount determined under the formula would exceed the needs of the children.
4. A party is not contributing to the needs of the children at a level commensurate with the party's custodial time.
5. Application of the formula would be unjust or inappropriate, due to a special circumstance in a particular case. Special circumstances include, but are not limited to, the following:Cases in which the parents have different time-sharing arrangements for different children;
Cases in which both parents have substantially equal time-sharing of the children, and one parent has a much lower or higher percentage of income used for housing that the other parent;
Cases in which the children have special medical or other needs that could require child support to be greater than the formula amount.
It should be noted that, in addition to the amount of child support determined under the formula, additional child support may be ordered pursuant to Family Code, Section 4062. For instance, the court is mandated to order as additional child support child care costs related to employment or necessary education or training, and the reasonable uninsured health care costs for the children. The court may also order as additional child support costs related to education or special needs of the children and travel expenses for visitation. The manner in which theses expenses are computed and apportioned between the parties is governed by Family Code, Section 4061.
Custody of Children
Generally, there are two types of legal custody recognized by the courts: sole legal custody and joint legal custody. In child custody cases, the parents will typically share joint legal custody unless one parent is deemed unfit or if it is determined that he/she is incapable of making decisions regarding the upbringing and general welfare of the child, or if it would be in the childs best interest for that parent to not have legal custody rights.
Joint Legal Custody
According to California Family Code section 3003,Joint legal custody means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. Joint legal custody is very common in California. However, the fact that the parents share joint legal custody does not mean the parents will necessarily share joint physical custody.
Sole Legal Custody
According to California Family Code section 3006,Sole legal custody means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. The fact that a parent has sole physical custody does not mean he/she will also have sole legal custody.
Physical custody generally refers to where a child will live after parents divorce or separate. Physical custody is much different than legal custody, which has to do with the rights and responsibilities of the parents to their children. The parent with physical custody has the right to have his/her child live with him/her. If a child lives exclusively or primarily with one parent, that parent is usually referred to as the custodial parent with sole physical custody or primary physical custody. The other parent would be considered the non-custodial parent and would typically have visitation rights with the child. If a child lives equally or close to half of the time with each of his/her parents, the parents are generally considered to have joint physical custody. In some joint physical custody arrangements, a parent that has more time with the child may be denoted as having primary physical custody of his/her child, while the other parent has secondary physical custody.
Joint Physical Custody
According to California Family Code section 3004, Joint physical custody means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, subject to Sections 3011 and 3020.
Sole Physical Custody
According to California Family Code section 3007, Sole physical custody means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.
Primary Physical Custody
Primary physical custody is a term that is often used to denote the parent with whom a child lives for the great majority of time. The term primary physical custody is often used in cases where parents are awarded joint physical custody and one parent has slightly more time than the other. However, in California, the term primary physical custody is not found in the Family Code, so there is no statutory language to define its legal meaning. Nevertheless, the courts continue to denote one parent as having primary physical custody and the other secondary physical custody, which has created issues in interpretation, particularly in move-away cases, where the parent with primary physical custody seeks permission from the court to relocate with his/her child.
Fault as a consideration in Child Custody
For many reasons, communities and judges react differently to fault testimony. Their reaction depends on many factors. Perhaps the community is conservative or there has been a great deal of publicity about a recent child-abuse case. Something in the judge's own life may influence a decision. The law differs from jurisdiction to jurisdiction. Adultery may be automatic grounds for denial of custody in Waco, Texas, but it probably will not impress a judge in downtown Los Angeles. Each judge has his or her own prejudices that should be thoroughly researched before making your appearance.
Equal ownership of community property assets has never been dependent upon a determination of labor or talent. Men and women are considered equal partners in a marriage in California. Each shares marital property equally regardless of whether their assets were earned by one or the other. For example, if the wife is a highly paid accountant and the husband is a school teacher, the differential in actual earnings is irrelevant to the ownership rights of each. Marriage extends to all of the property earned by either partner during the marriage. If a husband earns $75,000 a year and the wife's role is that of a homemaker, whether she has the primary responsibility of raising the couple's children is irrelevant. She has a continuing half ownership of the marital earnings from the beginning of the marriage and from the time of acquisition of property attained during the marriage.
Both marital partners are an equal agent of the partnership, binding it if acting within the scope of his or her authority and if acting for the joint benefit of the family. The California community property system adds to joint ownership the right of equal management and control.
In dissolution of a marriage, the court is empowered to allocate assets of comparable value to the former husband and wife to make the overall division of the gross marital estate substantially equal. It need not divide each asset. For example, when dividing a business might impair its value, the court will generally preserve the ongoing business interests if the court can still make an overall equal division of the marital estate.
The theory behind the division of property is that a dissolution of marriage should be treated much like the dissolution of a business partnership. Regardless of the conduct during the existence of the partnership, on dissolution the partners receive a portion of the assets commensurate with their respective partnership interests. The trial court may divide the community property, where warranted, by methods such as awarding an asset to one spouse conditioned upon later payments or making offsetting awards of the community assets. Even when this occurs, the spouses must receive property of an approximate equal value.
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02/12/2007 - Category: Divorce - State: CA #669
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