COMMON QUESTIONS IN DIVORCE & FAMILY LAW
COMMON QUESTIONS IN DIVORCE & FAMILY LAW
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COMMON QUESTIONS IN DIVORCE & FAMILY LAW

| Oct 28, 2018 | Firm News

 Here are some answers to legal questions you may have:

What is Community Property? 

Community property generally is everything that spouses or domestic partners own together. It includes everything you bought or got while you were married or in a domestic partnership — including debt — that is not a gift or inheritance.

Quasi-community property is any type of property that was acquired by either one or both spouses or domestic partners when living in another state that, had it been acquired while living in California, it would have been considered community property. See Family Code § 760.

What is Separate Property?

Separate property is anything you have that you owned before you were married or before you registered your domestic partnership. Inheritances and gifts to 1 spouse or domestic partner, even during the marriage or domestic partnership, are also separate property. Rents, profits, or other money you earn from your separate property is also separate property. And property you buy with separate property is also separate property. See Cal. Fam. Code § 770.

Mixed Community and Separate Property — Commingling

Sometimes things are part separate property and part community property. This is called “commingling” because the separate property and community property have become mixed together. When property is a combination of separate or community property, it can get very complicated to figure out how to divide it.

What is Legal Custody?

Joint legal custody means that both parents share the right and responsibility to make decisions regarding the child’s health, education and welfare. See Cal. Fam. Code § 3003.

With sole legal custody, a parent may be awarded the exclusive right and responsibility to make decisions relating to the child’s health, education and welfare; but unless exclusive physical custody is also granted, that parent does not have sole control over the child’s residence and supervision. See Cal. Fam Code § 3006.

What is Physical Custody?

A joint physical custody award means each parent has “significant periods” of physical custody. Physical custody must be shared in such a way as to assure the child “frequent and continuing contact with both parents,” subject to Cal. Fam §§ 3011 and 3020; but that does not mean the child’s time must be equally divided with each parent (i.e., one parent can still be the “primary caretaker”). See Cal. Fam. Code § 3004.

Sole physical Custody means a parent may be granted exclusive physical custody without exclusive legal custody. This means the child resides with and is supervised by one parent, subject to the other parent’s visitation rights; but the custodial parent does not have sole decision-making power regarding other matters affecting the child. See Cal. Fam. Code § 3007.

Do I Have to Pay Child Support?

Each parent is equally responsible for providing for the financial needs of his or her child. But the court cannot enforce this obligation until it makes an order for support. When parents separate, a parent must ask the court to make an order establishing parentage (paternity) and also ask the court to make an order for child support.

Child support payments are usually made until children turn 18 (or 19 if they are still in high school full time, living at home, and cannot support themselves).

California has a statewide formula (called a “guideline”) for figuring out how much child support should be paid.  If parents cannot agree on child support, the judge will decide the child support amount based on the guideline calculation.  Something other than the guideline amounts are ordered in very limited situations. See Cal Fam. Code §§§ 4052, 4057, and 4058.

Am I Entitled to Spousal Support?​

When a couple legally separates or divorces, the court may order 1 spouse or domestic partner to pay the other a certain amount of support money each month. This is called “spousal support” for married couples and “partner support” in domestic partnerships. It is sometimes also called “alimony.”

For temporary spousal or partner support, judges in many local courts generally use a formula to calculate the amount. Courts in different counties may use slightly different factors in calculating temporary support. Your court’s local rules should explain how temporary support is calculated in your county. Check your court’s local rules for the temporary support guideline.

The judge will not use a formula to figure out how much spousal or partner support to order at the end of your case. When the judge makes his or her final spousal or partner support order, the judge must consider the factors in California Family Code § 4320

The duration of a permanent or long-term spousal or partner support order is closely related to the length of the marriage or domestic partnership. The goal of spousal or partner support is that the spouse or partner getting support will be able to support himself or herself within a reasonable period of time.

The law says that, in general, a “reasonable period of time” may be one-half the length of the marriage/partnership. BUT the law also says that the judge has discretion (power) to make a different decision given the specific circumstances of the case.

When a marriage or partnership is considered a “long-term” marriage or partnership (usually 10 years or more), the judge may not set an end date to the spousal or partner support.

When it comes to a divorce and property issues are at stake, you need a highly skilled attorney as your advocate and adviser.

Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights  discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.  Robert Rodriguez has practiced in the State of California Court of Appeal.

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