Divorce attorneys in Orange County and family law practitioners throughout California use this jargon all the time. The number refers to California Evidence Code section 730, which has to do with the court’s appointing an expert to investigate and to make a report to the court concerning a complicated issue in a case. In a family law case, a 730 evaluation is often done for child custody and visitation issues. Once a 730 evaluator (psychologist) is selected, the evaluator investigates the family dynamics and relationships between the parents and children and makes a report to the court with recommendations for child custody and visitation. In the course of their investigation, a child custody evaluator will often interview family members outside of the nuclear family and other people who may have relevant information about the parties and their children. 730 evaluators are not a paid by the courts. They are private psychologists, so the parties often share the expense of having such an expert involved in their case.
Monthly Archives: September 2012
California Divorce and Omitted Assets
A common question I get from people is what happens if we forget to list a community property asset? Well, assuming the asset was never listed on the declarations of disclosure and never found its way into the judgment, the court should have jurisdiction to divide the asset. Family code section 2556 gives the court continuing jurisdiction to award omitted assets. It is just speculation on my part, but it seems to me most of these omitted assets tend to be retirement accounts. Maybe people are so used to not thinking of the funds as available assets that they forget to deal with them in their divorce. Whatever the reason for omitting the asset, the court can still divide it down the line. Sometimes the omission is an innocent mistake and both parties are content simply dividing the asset with an eye toward equity. At other times, one party may have tried to pull a fast one to keep the other spouse from enjoying the benefits they are entitled to. In either case, a quick post judgment motion can bring the issue before the court for decision. If there were unclean hands in the form of a breach of fiduciary duty, the court may award the asset entirely to one side, depending on the equity of the situation. But by and large, unless there is some smoking gun that squarely pins the crime on one party, such a draconian remedy is not often used and courts tend to do equity in these kinds of situations.
If the parties are open to dividing the forgotten assets equitably, such a modification can easily be handled with mediation. Call our office today to discuss your options for mediating a post-judgment division of omitted assets.
California Divorce Planning
While you are still married, planning for your divorce in California may feel a little unwholesome or even disloyal to your spouse because, well, you’re still married. Most of us have been brought up to feel this way and feel guilty for even contemplating divorce. However, if you are seeing signs of an impending divorce, you are doing yourself a disservice by ignoring the signs and failing to act. Of course, spouses have a continuing fiduciary duty to each other even during a divorce, so the kinds of actions you might consider in divorce planning are not things like cashing out your retirement plans or your bank accounts, opening up overseas accounts, or selling of jewelry and stashing the cash. Those kinds of actions might set off a divorce even sooner. The kinds of things people should consider when planning a divorce in California are often matters of record keeping and financial analysis. In a divorce situation, one party may suddenly leave the family residence. It does not have to involve domestic violence or anyone forcing the other out, but often one party decides to vacate the family residence for one reason or another, usually because they have had enough tension of living under the same roof with their soon-to-be-ex-spouse. Well, when a person suddenly leaves the family residence, he or she often does not have time to pack up all of their belongings, much less their bank statements, pay stubs, credit card statements, mortgage statements, tax returns, or other important documents that may ultimately be of importance in determining issues like child and spousal support, division of marital property and allocation of debts. While the party remaining in the house may not outright destroy documents left by the other party, they may not go out of their way to share them either, which may require extensive and costly discovery proceedings at worst or cause you to pay out of pocket for replacement documents at best. In order to avoid the pitfalls of lost or missing financial documents, you should copy them and store them off site or even image documents and keep them on your flash drive or “the cloud” (if you feel safe committing your sensitive financial documents to the uncharted nether regions of the internet). If you can collect documents going back 3 to 5 years, so much the better. You will be prepared and have a good number of documents you may require in your upcoming divorce. You will not have broken any trust or fiduciary duty to your spouse because you have a right to the documents, which are presumably being stored in unsecured locations. (Aside, if the documents are under lock and key or in some password protected area of your computer, then you shouldn’t trespass, as it is arguably an invasion of privacy, and more importantly, you should be very worried about what your spouse is hiding things from you! It might be another sign of an impending divorce!)
Fathers’ Rights in Child Custody Cases – Orange County California
Fathers’ Rights in Orange County California Child Custody Cases – Part 1
If you are a father facing an initial custody determination in an Orange County divorce case, or you are contemplating modifying your current custody orders, this question has no doubt come across your mind: “Do fathers have rights in an Orange County California child custody case?” Relax. The answer is, “Of course they do.” I’ve heard one of the Orange County Family Court judges often quote California Family Code section 3010 (a), which states, “The mother of an unemancipated minor child and the father, if presumed to be the father under Section 7611, are equally entitled to the custody of the child.” Justice, they say, is blind. Both moms and dads are presumed to be equally capable of having custody of a child.
Everyone, mothers and fathers alike, starts out in the same position as being presumed capable of having custody of a child. From that first step of being presumed equal, many mothers and fathers in a custody case undermine that presumption from a practical point of view. The core consideration of who should have custody of a child in a child custody case is what is in the best interests of the child. That is the central focus of the inquiry in a litigated custody matter. A family court judge deciding custody and visitation issues will want to hear evidence relevant to the child’s best interest and from there will decide how much time the child should spend with each parent and who will have custody. Family Code section 3011 describes the factors the Court will consider in making its “best interests of the child” inquiry. These child custody factors include the health, safety, and welfare of the child, the parents, their significant others and members of their households, family relations, the nature and extent of each parent’s relationship with the child, history of abuse, drug abuse, etc. The list can go on for quite a while, and in a custody case, almost any sort of evidence bearing on the best interests standard can come into play.
So fathers, if you are considering a modification of child custody or are at the initial phases of a child custody determination, you should try to answer the question, why me? Why am I equally suited as (or possibly better suited than) the child’s mother to be the child’s caregiver? What have I done that shows it is in the child’s best interests to spend more time with me? And how consistently do I do it? Parenting is not just the fun things in a child’s life, like sports. It includes the needful things like feeding them, helping them with their homework and taking them to the doctor. Think about where you fall on the spectrum for a while. Why not make a list of the things you do for your children (everything, not just the ones for which you might seek praise)? Then come back soon for part 2 of my focus on father’s child custody rights.
If you need help resolving a child custody issue, why not try resolving matters with our family law mediation services?
Why Date of Separation is Important in a California Divorce
Most divorcing parties can agree on when they separated. Maybe there was an event that was “the last straw” and one party demanded a divorce, or the parties cannot remember an exact date but know within a week or so when there was an irremediable breakdown in the marriage. For some divorcing spouses, however, it is not so easy to determine the date of marriage. Sometimes the parties simply cannot pinpoint the exact date they separated and they are too stubborn to agree on a date. More often, however, the disagreement is really about money.
Because California is a community property state, parties will continue to acquire community property (assets and debts) while they are still married. If the parties separate one day and the next day one of them wins a million dollars in the lottery, chances are there is going to be litigation over the date of separation because there is half a million dollars riding on the outcome. Of course, it works in reverse, too. If the parties are separated, generally the debts incurred by a party after date of separation are that party’s separate property. It becomes a way for some to try to avoid paying their fair share of community debts.
Another reason why date of separation is so important in a California divorce is that spousal support for short term marriages is generally due for half the duration of the marriage. When the couple reaches that magic number 10, their marriage is generally considered to be a long term marriage, with spousal support due indefinitely. So the date of separation can be a point of contention for parties on the cusp of a long term marriage. Of course, even short term marriages can hotly contest the issue – duration of support is a good motivator.
If you and your spouse believe you can come to an amicable divorce settlement with a little help from an Orange County divorce mediator give us a call or contact us through our website.
Guideline Child Support in Orange County California
Whether you are in an Orange County divorce, legal separation, or paternity proceeding, if you have children, you will have to deal with the issue of child support sooner or later. Child support is something that parents must deal with when their children live part of the time with one parent and part of the time with the other parent. When the parties were together, the children enjoyed the lifestyle and station in life enjoyed by the parents together, but when the parents are separated and living in separate households, child support serves as an equalizing factor to help the children share in the lifestyle of both parents.
The notion of guideline child support was developed by the California legislature to assist parties in determining the appropriate level of support based upon a number of factors, tied somewhat to the cost of living in a certain area of California. Different counties use different “guidelines” set to their geographic region. Orange County, for example, uses the Santa Clara County guideline, presumably because their cost of living indexes are so close.
Two of the most important factors that are considered when establishing guideline child support are the timeshare each parent spends with each child and the relative incomes of each party. The more time a child spends away from a parent, the more money that parent has to pay for support. The rationale behind this is that, if the child were living with the parent, the parent would be caring for his or her basic needs like food, shelter, clothing, cell phones, and other high tech gadgets (ok, maybe not the last 2) by spending their money for these things. If the child is not with the parent, then the parent should pay over a percentage of their income to the other parent to make up for the shortfall created by the child’s spending more time with the other parent, who consequently spends a relatively larger percentage of their income to maintain the child. So that is the theory behind child support.
Guideline child support can actually change, depending on certain changes in circumstances. If, for example, you had an old order based upon the parties each earning a certain amount of money or having a certain amount of time share, if any of those factors change significantly, such as when one party loses his or her job, then the change may have an impact on the level of support one party pays the other. If such a thing happens, it is a good idea to consult an Orange County Child Support Lawyer to see if you should modify child support to reflect the current situation.
How Long Do You Have to Pay Spousal Support in California
How long do you pay spousal support (alimony) in an Orange County, California divorce?
Well, to answer that question, one needs to know how long the marriage lasted. The rule of thumb, at least for marriages lasting less than 10 years, is that support is generally due for one-half the duration of the marriage. There are exceptions, but they are usually made on a case by case basis. For those who have never been divorced before or left their librettos at home, a long term marriage in California is one found to be lasting 10 years or more.
As an example, if you were married for 4 years, the duration of alimony would be expected to last 2 years. This would be for the so-called “permanent support” order. For marriages lasting 10 years or more, then the supporting spouse usually will pay the supported spouse alimony for an indefinite amount of time. It is vague, yes, but the judges have the power to terminate support if a spouse does not become self-supporting after a reasonable amount of time. That, too is vague, and is interpreted on a case by case basis.
People can fall anywhere on the alimony spectrum in terms of ability to become self-supporting. A young person without any child care responsibilities and a good education might be expected to become self-supporting faster than one who is middle aged with no education or work experience, but who devoted their prime working years to raising the parties’ children. The courts have a lot of flexibility to decide whether support is terminated or reduced after a period of time.
As spousal support is unique to the parties and their individual circumstances it is difficult to make general statements about alimony. If you are curious about what the Court considers in making a long term spousal support order, a good section of the Family Code to read is section 4320. That section of the California Family Code lists all of the things the Court should consider before awarding anyone long term spousal support. It’s pretty dry reading, but well worth the effort.
Divorce and the Marital Home in Orange County California
One of the most troublesome issues in an Orange County divorce is what to do with the marital home. For many divorcing couples the family residence represents the family’s life savings in the form of equity built up in the house. Depending on the parties’ goals, there are many options to disposing of the community’s residence. If the parties have minor children and it is feasible for one party to live there with the children, the divorcing couple might consider a delayed sale order, also called a Duke order, until the parties’ children reach a certain age or until a certain event happens. For some people who are “upside down” on their mortgage and they are still hoping the market may recover enough to break even or turn a small profit, this might be an option to wait to sell the house a few years down the road. So long as the mortgage is paid and there is no risk of default, it may be prudent. It is a good idea to have contingency plans built into the judgment, just in case some unfortunate event puts the house at risk.
If you and your spouse cannot get along very amicably over the time period necessary for a delayed sale, then there is little alternative to either one party buying the other out of his or her equity position or simply selling the residence and dividing the net proceeds from sale equitably, if there is any equity left, that is. As is common these days, if your house has “negative equity,” you might consider a short sale or other method of leaving the house and, hopefully, the liability, behind you. In certain instances loans on real estate may be “non-recourse” and allow the purchasers to walk away from a bad investment. In these situations, it is a good idea to consult a real estate attorney before doing anything you may regret, fiscally speaking. Many of the laws dealing with short sales of family residences are due to sunset in 2012, if you are considering such an option, you had best consult an attorney qualified to advise you.
As in any mediated divorce, your own ability to creatively problem solve is your best asset. If you and your spouse can agree to cooperate with your real estate issues, and it is a financially feasible option, you can come up with almost any solution designed to maximize the benefit to everyone.
How Long Is Child Support Due in California?
It is a common question that most parents dealing with Orange County child support issues have. Whether you are the child support payor or the recipient, it is often a struggle for each parent to manage a budget and adequately meet their child’s needs. There are two California statutes that should be read together to understand the duration of child support in California. The first one is Family Code section 3900 (2012 version), which says, “Subject to this division, the father and mother of a minor child have an equal responsibility to support their child in the manner suitable to the child’s circumstances.” In the next section, Family Code section 3901 (2012 version) goes on to state, “(a) The duty of support imposed by Section 3900 continues as to an unmarried child who has attained the age of 18 years, is a full-time high school student, and who is not self-supporting, until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first.”
Based on the above, you can see that there are a number of circumstances that could terminate child support, such as the child becoming emancipated or getting married before support would otherwise stop. A common misconception for those who have not read the statute is that support stops when the child reaches 18. Now that you have read the statute, it is easy to see that even though a child may be 18 years old, if they are still attending high school full-time, then support would still be due. If they are 18 years old and in their senior year of high school, you would expect support to be due through the month in which they graduate.
Dividing a Business in an Orange County California Divorce
How to divide a family business can be one of the most complex property issues in a California divorce. The business represents not only the livelihood of one or both parties, but often is a significant asset of the marriage.
Who Should Get the Business?
Usually, the party who actually runs the business is awarded it. During the pendency of the divorce, however, the spouse who runs the business (called the “in spouse”) may keep terrible income records or actually manage it poorly so that it appears less valuable. Such tactics could be considered a breach of fiduciary duty to the spouse who does not run the business (the “out spouse”). A good divorce attorney with the aid of a forensic accountant may be able to determine the value of such breaches and charge the breaching party with the resulting loss to the community, often by using an alternate valuation date to some time before the bad acts took place. There’s a moral in there somewhere.
Another issue that often comes up is when one party owned the business before marriage. If he or she did not have enough foresight to have the parties sign a prenuptial agreement assuring the business remains separate property, then some portion of the business will probably be owned by the community. This is because the labor of the parties during marriage is considered to be a community asset. It can be a complicated analysis to determine the separate property versus community property interests in a business. Generally parties seek the help of forensic accountants to do this.
If one spouse gets the business, the other spouse will be awarded the value of half of the community’s interest in the business. Often businesses are quite valuable and a large marital asset, such as the family residence, could be used to offset the value on the marital balance sheet to make the property division a fair one. If there are not sufficient assets, then often the equalization payment can be financed and appropriately secured.
Sometimes both spouses are equally involved in the business. If they are fortunate enough to be able to continue to work together amicably without damaging the business, then they may opt to continue to work together after the divorce. They would simply continue to be business partners (and still owe each other the duties business partners owe each other). Alternately, one spouse may wish to buy out the other spouse for a fair price. If no agreements can be made, then the decision will be left up to the court, who may decide to award it to one spouse entirely or to sell the business and divide the value equitably.
How Do You Know What the Business is Worth?
Valuing a family business in a divorce is another difficult issue. If there is enough money available, the spouses usually use a forensic accountant who will go through the business accounting records, banking records, and tax returns for a certain time period and then make an opinion as an expert as to what the value is. Often there is a cash flow analysis done, which may be used to help determine alimony and child support issues that may exist between the parties. If a forensic accountant cannot be utilized for some reason, then business brokers or the parties themselves may give evidence as to the value of the business. Obviously the Court may be inclined to be a little skeptical of any opinions of value a party might offer without substantial corroboration from the business records.
Can You Mediate the Division of a Family Business?
If the parties have sufficient knowledge of the value and cash flow of the family business, it is possible to mediate a fair property division and support order. Often businesses that both parties agree have little value are no obstacle to mediating a fair property division. Sometimes a family business is little more than a job that one party owns. One approach may be to use a forensic accountant in the mediation. Although forensic accountants typically work with divorce lawyers in litigating issues of value and cash flow, there is no reason the parties cannot retain a joint forensic accountant to investigate the business and determine its value and cash flow and then use the valuation report in their own negotiations. A forensic investigation of a business, however, usually takes a considerable amount of time and the divorce mediation may be “on hold” with the parties unable to finalize the property division in their divorce until the report is complete. If parties choose this approach, they may be able to make temporary agreements about support or any other issue while waiting for the valuation report and negotiating a final resolution of their divorce.