San Jose Family Law Attorney
What Would Happen If I Did Not Make a Change in My Life?
Life changes. Families change too. If something in your life isn’t working, the time to make a change is now, not years down the road. The decision to make a change, like ending a long-term relationship, is never easy — weigh the challenges you may be facing now against the future benefit of making a change.
When you are making a change, you need to put yourself in the best possible position to start anew. This means that you want to make sure your assets are divided fairly, support is set at the right amount and for the right period of time, and a proper parenting plan is in place. People want to know if they need a lawyer to handle a divorce. You can fill in the forms yourself and file them with the court, schedule hearings, attend settlement conferences, and get a judgment. However, getting a divorce is more than just filling in forms and going to court. There are issues in divorce that are not so straight forward. This is where things can get complicated. For example, the judge is not allowed to use a computer formula to make a post-judgment spousal support order. So, how do you know how much you can be expected to pay or how much you can expect to receive? You should hire a lawyer if your divorce involves spousal support, child custody, real estate, investments, and pension plans.
Plan Ahead & Educate Yourself About Divorce
When you are planning for your divorce, important questions come to mind. Where are you going to live? What will your finances look like now that there is one income instead of two? What will be your savings plan? What will your life be like? Who will have the primary custody of your children? What will be the visitation schedule? How much support will you pay or receive? Where will you work and how much will you earn if you have been out of the workforce for some time? How will your property be divided? Because the decisions you will make will have a profound effect on your life, it is important to be informed and to plan ahead. A part of a proper divorce plan is familiarity with the basic laws pertaining to community property, child custody, child support, and spousal support. Also, as a part of your divorce plan, it is important to know what difficulties may arise along the way and be prepared to handle those difficulties. Your lawyer can educate you on how to plan for divorce now and how to plan your life after divorce.
Child Custody & Visitation
It is the policy of the State of California to promote frequent and continuous contact between children and both parents. Parents have the right to visit their children. Child custody and visitation is decided according to the “best interest of the child.” Some parents believe that only weekend visitation for dad is appropriate. Other parents believe that their children should live in two homes. There may be reasons to limit one parent’s visitation or to prevent visitation. You should consider what is best for your children and think of your children first. To make the best decisions regarding child custody and visitation, it is important to understand how child custody cases are decided in California. As a general rule, the court likes to preserve the status quo and minimize the impact of divorce on the children as much as possible. Child custody and visitation orders can be modified if circumstances change.
Child Support
Child support is paid according to clear guidelines governed by California law. You should consult a lawyer about how child support is established and calculated. There are also child support “add-ons” for healthcare costs that insurance does not cover, and childcare. The guidelines rely on the income level of both parents, and the sum that one parent pays the other depends on the total income of the parents, the difference in income between the parents, and the difference in time share. Child support can be modified if you can show that your circumstances changed. Your incomes may change, and visitation schedules may change too. An experienced lawyer can advise you on modifying a child support order. Parents who are ordered to pay child support may also fall behind on payments. A lawyer who has experience with enforcing court orders can advise you on what to do if the paying parent is not fulfilling their obligations.
Spousal Support
California law provides for temporary spousal support and “permanent” spousal support.
Temporary spousal support is awarded on an “order to show cause” according to a computer formula. The Santa Clara formula takes 40% of the payor’s net income minus 50% of the payee’s net income. Temporary spousal support is paid while your case is ongoing: The judge is not allowed to set a termination date. Temporary spousal support can go on for a long time if the payor doesn’t do anything about it. If you are paying temporary spousal support, it is in your interest to bring your divorce case to trial as soon as practically possible.
“Permanent,” or post-judgment, spousal support is ordered when you get your divorce judgment. The judge is not allowed to use a computer formula to set the amount because the judge must base the award on the factors in Family Code Section 4320. How do you come up with a number without a formula? It is a subjective call. This is why working with a lawyer who has experience in dealing with this issue is a good idea.
The length of time spousal support is to be paid after the judgment depends on the length of your marriage, and other factors as well. If your marriage lasted under 10 years, spousal support is usually ordered for half the length of the marriage. However, the judge can order longer or shorter term. So, if you anticipate being the payor and your marriage is less than 10 years old, it is a good idea to start the divorce before you hit the 10-year mark. Different rules apply to marriages that lasted 10 years. The judge does not set a termination date. If you are the payor, a lawyer can help you make sure that support is set at the right amount and put a strategy in place to eventually reduce or eliminate spousal support.
Property Division
California is a community property state. Community property is divided equally between the spouses. It seems straightforward to divide everything down the middle, but disputes about property division do arise in cases involving high-income earners and over-characterization of property.
A divorce lawyer will ascertain the full extent of the community estate — make sure to collect your bank statements, appraisals, title documents, and business records and keep in mind that debts are also divided in divorce. You are responsible for the debts of your spouse, and vice versa. It doesn’t matter whose name is on the credit card or the loan. A lawyer can help you understand how debts are divided in divorce.
When community property and separate property interests come into play, an expert may be needed to determine community and separate interests. Proper determination of community and separate interests means not only keeping what is yours but also saving thousands of dollars down the road.
Domestic Violence
If you are a victim of abuse, a domestic violence restraining order will protect you from the abuser. A domestic violence case starts by filing a request for a temporary restraining order. You describe what the abuser did to you and what orders you want in place until the hearing. The judge either grants or denies your request for a temporary restraining order based on your declaration. You can also request other temporary orders, such as child custody and visitation, child support, spousal support, debt payment, and property control. After the judge makes temporary orders, the temporary orders (with information about the scheduled hearing date) are served on the other party. At the hearing, you and the other party present evidence, and the judge decides on a permanent restraining order (which will last three to five years). A restraining order prohibits the abuser from contacting you and from coming within a certain distance of your home, work, and school. The punishment for violating a restraining order is jail time.
Contact me online or call (408) 351-1204 for legal guidance.
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