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If you are entering the marriage with substantial property (such as a house, investment accounts, a pension, or a successful business) or you expect to inherit during the marriage, it is a good idea to have one. I have seen how poor financial decisions and ill-advised property transfers have caused marriages to fail.
A well-crafted premarital agreement can protect you from these pitfalls and make it more likely that you will have a long and happy marriage.
Joint custody means that spouses share legal and physical custody of their children. Sharing legal custody means that each spouse has an equal say in the decisions about the health, education and welfare of their children. Sharing physical custody means devising a parenting plan that assures the children have a regular schedule of frequent contact with each parent.
If the two parties, after attempting to negotiate, cannot come up with a plan, the court will then impose a custody schedule that gives each parent as close to equal time as possible, while considering their respective schedules, as well as the children’s schedules.
This varies depending upon the complexity of the issues, and how diligent divorcing couples are in addressing them and how cooperative they are in resolving them. Rarely does a divorce take less than six months. I strive to get my clients through the process in a year or less and to keep them out of court, if at all possible. In my experience, costs start to escalate and the likelihood of ending up in court increases if they have not resolved their differences within a year.
Currently, the fee to file a divorce petition is $435. This is subject to change by the Legislature and it has risen steadily during the State’s financial crisis. You must pay $60 to request an order (child or spousal support, for example) unless it is filed with your petition; $60 to request an immediate order (removal or your spouse from the house, for example) and $25 to request a custody order. Custody disputes must go to mediation (provided by the court) and serving the petition on your spouse may cost $50-$100.
Child support is calculated based on a statewide algebraic guideline. All family law attorneys and all family law judges have computer software to run the support program. The main numbers input into this program are the parties’ respective income, their tax-filing statuses, and the amount of time each party spends with the children. The court can also order a party to pay children’s expenses, such as uninsured medical costs, daycare and school fees. I have to see a couple’s last tax return and each spouse’s current pay statements in order to tell a client what guideline support will likely be.
If I am court-ordered to pay child support and I lose my job, does child support automatically cease?
No. A child support order remains in effect until it is changed by court order or terminates when a child is no longer eligible to receive child support. You must promptly file a motion to change the order if you lose your job, because it will only retroactively go into effect on the filing date and not before. If you stop paying child support when your income decreases and take no formal action, 10% interest is added on to each missed payment, which can quickly snowball into a substantial arrearage.
No. You either have to get your former spouse to agree to an increase (which seldom happens) or ask the court to increase your support. Before doing so, I recommend that you find out what your former spouse is earning. There is a simple procedure for doing this. You can serve a request for your ex to provide you an Income and Expense Declaration and his or her last tax return. Your ex-spouse must provide the information within 30 days and then we can run a support calculation with it.
Are my spouse and I required to pay for college education expenses for our children once the divorce is final?
No. Parents’ obligation to support their children ends when they turn 18 and graduate from high school or when they turn 19 whether they have graduated or not. The only exception to this is when parties’ have a child who is incapacitated from earning a living and has no other means of support. Then the parents have an equal responsibility to support the child regardless of its age, to the extent that they can. These rules, however, do not preclude parents from negotiating responsibility for college expenses as part of their marital settlement agreement.
Will my spouse be required to contribute to day care expenses for our children once we are divorced?
Yes. Under the Family Code, a spouse paying child support must additionally contribute to the cost of daycare if it is necessary for the other spouse to work or gain skills to become employable. The court can allocate this cost in any manner that the court deems equitable, but traditionally it is split 50/50. A spouse paying support is subject to a mandatory wage assignment and I always try to include the spouse’s daycare contribution in the wage assignment. If it varies, the court can impose a procedure under which a party must reimburse the monthly cost within 30 days.
One type of uncontested divorce occurs when a husband or wife fails to respond to a petition to dissolve the marriage within 30 days. In this event, the filing spouse can take the other spouse’s default and ask the court to divide the community property and issue other orders in the other party’s absence. In this instance, the court still must divide the property equally. More commonly, an uncontested divorce occurs when the parties negotiate a marital settlement agreement and then submit to the court as an uncontested matter. The court’s only function then is signing a judgment incorporating their agreement.
By service of petition for dissolution, which normally takes place in one of two ways:
- The filing spouse’s lawyer mails the petition to the other spouse with a Notice of Acknowledgment and Receipt; or
- A process server personally serves the petition on the other spouse.
A party is entitled to personal service, but I always try to get a party to accept service by mail. This avoids the unnecessary cost and potential embarrassment to the other party.
If you and your ex have joint physical custody, you can either obtain his or her agreement or ask the court to authorize the move. You may move without the consent of your former spouse or a court order if you are in fact the primary custodial parent. However, it is a good idea to inform your ex of your intent to move and attempt to negotiate visitation for him or her before doing so. Otherwise, your departure may be met with a motion to change custody and the court could order the children’s return to California.