In California, a spouse’s expenditure of time, talent and labor during the marriage are deemed to be for the benefit of “the community,” even when that time, talent and labor are devoted to a business owned prior to the marriage. Determining the community’s interest in a truly community-owned business or a separate business owned by one spouse prior to the marriage is a complex undertaking that requires expert knowledge, experience and skill.
Ford Family Law works with reliable, respected forensic accountants to develop reasonable, accurate and fair business valuations. With the assistance of our experts, we work to develop creative settlement strategies that appeal to both parties in the divorce.
Understandably, parents may fear the process of determining child custody. The reality, however, is that most parents are able to reach equitable agreements with the assistance of their attorneys and/or through county or private mediation services.
There are two types of custody to which the court refers: legal custody and physical custody. In the vast majority of cases, the parents will share joint legal custody, which means that they both have the right and the responsibility to make decisions relating to the health, education and welfare of their children. In certain cases, joint legal custody may be denied in favor of sole legal custody to one parent (including cases where a parent may be a flight risk with the children or where a parent has a an issue with substance abuse). Joint physical custody means that each of the parents has significant periods of physical custody; it does not necessarily mean the parties share the children equally. Joint physical custody is shared in a way that assures the children frequent and continuous contact with both parents. Even where the parents share the children equally, there are several many possible schedule configurations for doing so and which schedule is in their best interest relies on several factors including their age, development, personality, and the family history.
In the event that the parents are at an impasse regarding custody of their children, they must first attempt to settle the dispute in mediation. Prior to going to court, county mediators meet with both parents (usually together and almost always without the children present). The mediators try to help the parents come to a mutual agreement. After one to two hours of mediation, if the parents are unsuccessful in mediation, in most counties, the mediator presents a written recommendation to the court as to which custody schedule he or she believes is in the child’s best interest.
The “best interest” standard is relatively nebulous and often misunderstood. There is no simple definition, and the best way to understand the standard is to evaluate your family’s history. For example, if one parent has not actively participated in the child’s upbringing (one parent may have traveled for work extensively in the past five years) such that the child has spent significantly more time with one parent than the other, the court may be less likely to award a shared custody plan. In this example, the court may find that it is in the child’s best interest to reside with the parent who has historically provided most of the child’s care with visitation to the other parent.
Once the court makes a final determination, custody orders may be modified only upon a showing of a substantial change in circumstance. This will place the burden of modifying the orders on the parent who does not receive physical custody because that parent will have to prove a substantial change in circumstance in order to change them. As a result, it is extremely important that the custody litigant be prepared to present law and facts in support of his or her request for custody during the initial custody phase.
In California, both parents have an obligation to meaningfully contribute to the support of their children. Generally this obligation continues, by law, until (1) the death of the child, (2) the child’s 18th birthday (or 19th birthday if the child has not graduated from high school by the age of 18), or (3) the child’s emancipation.
When parents divorce, typically one parent must pay the other parent child support. Basic child support is calculated pursuant to a guideline formula that takes into account an array of factors, including:
Calculating guideline child support can be relatively straightforward, for example, when both parents are W-2 employees, work full time, and share custody of the children. However, the calculations become more complicated when a parent is not working to his or her full ability, hiding income, or running personal expenses through a private business. In cases like these, Ford Family Law collaborates with consultants, including vocational evaluators and forensic accountants, so that a fair and equitable support order is made.
The division of assets should not be a rote exercise of dividing everything “down the middle.” There are personal, professional, strategic, and tax reasons that call for a thoughtful, creative division of a family’s assets. Furthermore, if one party believes they are entitled to more than half of the estate, an understanding of the various “separate property tracing” and “reimbursement” principles is critical to the party making that claim in order for them to meet the burden of proof, as the burden of proof rests with the person who is claiming that an asset is all, or part, separate property. Also, special consideration should also be given to the division of income-producing assets and the potential effects on support that it may have in a case before deciding on the method of division.
A Judgment for Marital Dissolution is the legal termination of a marriage and as a result, the termination of certain rights and responsibilities. One leading example of a lost right is the right to maintain a spouse on one’s health insurance. Once divorced, an employed spouse can no longer legally maintain his or her former spouse on an employer-sponsored insurance plan. This can cause significant problems for an unemployed spouse. Notwithstanding its uncertain future the Affordable Care Act has in many instances made it easier and more affordable to obtain non-employer-provided health insurance coverage, there are very technical issues with timing the termination of the spousal coverage with the commencement of independent or employer-provided coverage. Termination of marital status may also have significant implications regarding retirement benefits.
In instances where the legal termination of a marriage could severely impact one or both parties financially, so long as both parties are willing, there are alternatives available to terminating a marriage. Alternatives include post-marital agreements where the parties remain legally married, but enter into an enforceable contract that modifies their rights to marital property. Another option includes a Judgment for Legal Separation rather than a Judgment for Marital Dissolution. A Judgment for Legal Separation allows parties to settle their property rights and financial obligations, while the parties remain legally married.
Often both parties wish to avoid litigation, but they need the guidance of an experienced attorney who will act as a “neutral” professional to assist the parties in reaching solutions that are acceptable to both of them. Parties may not be forced into mediation – both parties must agree to this as an alternative to litigation. In litigation, the parties are often delegating their decision-making authority to the courts. Mediation is different in that the decision-making rests with the parties, allowing for greater creativity. Mr. Ford and Mr. Boyarin mediate as well as litigate, offering an alternative to adversarial litigation.
A paternity action is required to legally recognize parental rights of unmarried persons, to establish enforceable custody and visitation schedules, and to ensure that a child receives financial support from both parents. Without a Judgment of Paternity or a Declaration of Paternity, a person may permanently lose any legal standing as a child’s parent and/or a child may go without support. Once paternity is established, a paternity action is similar to a divorce case with regard to how custody and support decisions are determined. In paternity as in divorce, custody is determined based on the best interest of the child. In paternity, as in divorce, child support is determined by use of the statewide guideline calculations. As a result of the sensitive nature of many paternity cases, unlike in a divorce action, paternity pleadings (case documents) are not available to the public.
Pensions and retirement benefits accumulated during the marriage are community property and thus subject to division. Even if a pension or retirement benefit has not yet vested, any benefit attributable to a partner’s employment during the marriage is community property.
There are different methods and formulas for valuing a community’s interest in pension and retirement accounts. Because pension and retirement benefits are often a substantial part of a couple’s asset portfolio, it is important to use the right formula to calculate community interest and the appropriate method for dividing it.
Often one spouse will wish to retain all of his or her retirement benefits and offset them through the award of other assets or a cash payment to the other spouse. A “present value” is calculated to create a proposal for the buyout.Ford Family Law works with actuarial consultants who analyze various factors relevant to the worth of the pension.
In domestic partnerships and same-sex marriages, there may be complex issues regarding pension valuation and division, depending on the date of partnership or marriage and the type of plan. When proceeding with the valuation or division of a retirement plan within a domestic partnership or same-sex marriage dissolution, it is important to be aware of how timing may affect the division of property. Ford Family Law works with experts at the intersection of family law and valuation and division of retirement benefits in order to understand how these complex issues affect the valuation and division of individual plans and to achieve the appropriate, legal division of retirement benefits in such cases.
A premarital agreement is a written agreement between prospective spouses made in contemplation of and to be effective upon their marriage. Premarital agreements are becoming increasingly common, especially when parties have children from prior relationships or when one spouse is employed by or owns a family-run business.
With a premarital agreement, parties may enter a contract with respect to the following:
In addition, a premarital agreement may limit a spouse’s right to future spousal support. However, support limitations and waivers are complex and must be carefully drafted. In fact, any provision in a premarital agreement regarding spousal support is unenforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement. Also, an otherwise unenforceable provision in a premarital agreement regarding spousal support may not become enforceable solely because the party against whom enforcement is sought was represented by independent counsel.
If you are contemplating a premarital agreement, it is important that you do so well in advance of the intended date of marriage. A premarital agreement that is signed too close to the date of the marriage may be difficult to enforce, and if the agreement is not signed within a certain prescribed time, it will be, by law, ineffective.
Spousal support is one of the most emotionally charged issues in a divorce. The attorneys at Ford Family Law have negotiated many complex spousal support settlements and have litigated dozens of spousal support matters.
There are two types of spousal and partner support: temporary spousal support and post-judgment spousal support (sometimes referred to as permanent spousal support).
Temporary spousal support is issued by the court in order to prevent the spouse in need from becoming dependent on others or the state. This support is designed to get financial assistance to the supported spouse during the time the divorce is pending. California courts typically use local guidelines for temporary spousal support. In most cases, the court limits the amount of court time attorneys and parties can spend arguing for or against these temporary support orders. These types of orders are like a snapshot – they are established by looking at several factors that exist at the time the request for support is made. Generally, the most important factors the court will consider are the gross incomes of each party.
Post-judgment (permanent) spousal support is very different from temporary spousal support. In fact, when issuing a post-judgment spousal support order, it is forbidden for the court to use temporary support guideline calculations. Instead the court must review evidence presented by the parties, including, but not limited to, the following:
A cohesive presentation of these and other factors is fundamental to obtaining the right spousal support result.
Often a stepparent wishes to adopt his or her spouse’s or domestic partner’s child. This can be a relatively easy (but time-consuming) process when the biological parent has been absent from and does not wish to participate in the child’s life. In such cases, after the stepparent files the adoption petition with the court, a county investigator meets the child and the family.
Generally, the investigator will issue a report to the court recommending that the adoption proceed. In contested cases, hearings will be necessary for the court to determine if the adoption is appropriate. The court will likely consider whether the biological parent has failed to participate in the child’s life and/or financially support the child and, if so, to what extent.
Division of stock options and restricted stock units are common divorce issues in California because many employees receive stock options and stock units as part of their compensation packages. Not only may these assets be deemed community property, but future stock options and units may be taken into consideration for child support and spousal support calculations.
It is important to understand the different methods utilized by the court to value these assets, as the valuation method presented could dramatically affect the community’s interest.
For example, one method to value the community’s interest in stock options backdates the community’s interest to the employee spouse’s date of employment. A more common method values the community’s interest on the date the stock options were granted by the employer. (The former method will give the community a much greater piece of the stock options than the latter.) And just because a stock option has not yet vested does not mean the community has no share in it.