Absent bad behavior such as domestic violence, child abuse, or alcohol or drug abuse, California law presumes that it is in the best interest of children to have frequent and continuing contact with both parents after divorce or separation. But the law does not specifically define what "frequent and continuing contact" means. Thus, exactly how you will share your children depends on many factors such as the distance between the parents' homes, the individual parent and children's relationships, the involvement of each parent in the children's lives and activities, and if a child is mature enough, even the child's preference for custody or visitation.
The Court can also consider which parent is more likely to cooperate or allow more visits with the other parent when deciding custody. What will not matter to the court is the gender or wealth of the parent.
While the alternate weekend visitation schedule has been a past traditional order, it is quickly being replaced, when appropriate, by joint physical custody orders in California. Normally the court, again absent bad behavior, will grant joint legal custody, meaning that the parents will equally share the rights and responsibilities of making legal decisions about the children, such as where they will attend school, medical issues, when they get drivers' licenses, etc. Now the courts are also granting more and more joint physical custody orders. Joint physical custody does not necessarily mean equal time, but rather it is where children spend substantial time with each parent.
Thus, the secondary parent may get three weekends a month plus two-thirds of the off-school time instead of alternate weekends and one-half of the off-school time, which timeshare may then constitute a joint physical custody order. Whatever custody order is developed in a case, it is best if parents themselves develop their own agreed-to custody share plan, or what is known as a "parenting plan".
Studies have shown that when parents, instead of a judge, decide on custody issues, these parents tend to get along better and not return to court time and time again fighting custody matters. As such, in California, if you have a custody or visitation dispute, you will be required to meet with a mediator to try to settle your dispute.
Some counties have the mediators prepare a report to the court with recommendations as to the custody/visitation issue and some counties are not "reporting" counties. If you still do not settle your custody dispute in mediation, then the court could appoint an "expert" (usually a psychologist) to do a custody evaluation and make a recommendation to the court about your custody issues.
Be forewarned that the parties generally have to pay the cost of such evaluations which can run $2,500 to $6,000 depending on who is hired. Hopefully, by this point you have finally reached an agreement, but if not, then the court will set your case for a contested trial and the judge will thereafter make all the decisions.
A contested trial should be the last resort in a disputed case, as it can cost tens of thousands of dollars in costs and attorney fees, not to mention the emotional toil on the parties and children. It is also best not to drag the children into the middle of the custody dispute, and definitely do not speak ill of the other parent in the children's presence, nor interrogate the children about the other parent. We now have many "co-parenting" classes which can be very helpful in teaching parents how to better get along in regards to their children and help reduce the conflict.
Remember, you may dislike the other parent very much, but they are always your child's parent and your child also loves that parent, and you want to be able to attend future school events, graduations, weddings, etc. for your children without conflict, so it is best to try hard to get along with your child's other parent.
Will I Get or have to Pay Child Support?
California laws provide that child support shall be ordered after separation and such child support is calculated by a mathematical formula which is contained in several different computer programs used by the courts.
These programs include X-Spouse, Dissomaster, Support Tax, and a separate program used by the Department of Child Support Services. Child support will also be ordered whether you were married or not, as long as a parent is the biological parent or adoptive parent. Exactly how much is ordered is dependant upon numerous factors, but primarily it will be based on the gross income of each parent and the amount of time each parent spends with the child or children. If the parents have equal income and equal time with the children then, absent other factors, the child support will most likely be $-0-.
However, even if you have an equal time share plan, but one parent has a higher income, then some support most likely will be ordered. Generally, the more time a payor parent has with the children, the less that parent will pay. If a parent has "reasonable visitation" with a child, then they are presumed to have 20% time, and that is the number the court will use absent other evidence. If there is a dispute regarding the time share with the children, then it is important to keep an exact record of all visitation time used as the court is to look at the actual time used for visits, not just what an order may say.
The "gross" income is used instead of "net" incomes as the programs used by the courts already have the tax consequences of each income level in their programs. Thus, the court also needs to know each party's filing status, new spouse income, dependents, and whether the income is 1099 taxable, W-2, self-employment, or non-taxable income as each category has different tax consequences. Parties may also get deductions for medical insurance costs, mandatory retirement, other child or spousal support payments, and perhaps hardship deductions such as for other biological or adoptive minor children living in the household. The amount of tax deductions for property taxes or mortgage interest, if the parties have those deductions, also gets put into the calculations to possibly increase or decrease support depending on who has the deductions.
Also necessary child care costs to work or go to school are usually split equally between the parties and added to child support. The computer program is very detailed and if wrong numbers are used, then wrong support is calculated. Therefore, it is very important to accurately complete your Income and Expense Declaration to insure a correct calculation. If the custodial parent is receiving Aid to Families with Dependent Children (i.e., welfare), then the custodial parent assigns their rights to support to the County who is paying the aid. Therefore, the Department of Child Support Services (DCSS) in these types of cases will bring the action to the court for child support. DCSS, however, are also required to assist any custodial parent in getting child support who makes a request for such assistance regardless of that parent's income or receipt of aid. Parents can also arrive at their own number for child support as long as the child is not receiving welfare aid, no coercion was used, the parties know their rights, and the child's needs will be met.
Lastly, absent some very specific hardship deductions, your expenses and payments on credit cards, debts, or a high house payment, for example, are irrelevant to the child support calculation, as the law deems that child support is each parent's first and primary responsibility. As such, your inability to pay consumer debts will not make a difference to the court when it makes an award of child support.
Will I have to Pay Spousal Support?
California law indicates that a court may make an order for spousal support in a dissolution of marriage case, but a court is not required to make an order for spousal support. Nevertheless, if the facts justify an order for spousal support, the court will normally grant such requests.
Generally, if two spouses earn about the same amount of income, absent extraordinary circumstances such as more than normal medical expenses, no spousal support will be justified. However, if one spouse earns a significant amount more than the other spouse, then most likely the court will make an award of spousal support to the lower income spouse.
Exactly how much will be awarded is dependent on many factors as further outlined herein. Many people mistakenly believe that spousal support is to only go to a "wife" in a divorce, which is untrue. Gender is not a consideration, but rather the court looks at the income and expenses of each spouse, or the earning ability of a spouse who is not working if they have the ability and opportunity to earn. Thus, generally the higher earner in a marriage will probably have to pay spousal support to the other spouse who has less income.
In California, you also have temporary spousal support and then permanent spousal support.
Temporary spousal support is from when a motion is filed with the court requesting spousal support after a petition for divorce is filed, pending the final judgment entered in a case, and the amount is usually calculated off of the same computer program used for child support based on a mathematical formula.
Permanent spousal support, on the other hand, is determined by the factors as specified in Family Code Section 4320 and, in disputed cases, cannot be simply based on the amount previously determined in the computer program. For permanent spousal support, the court is supposed to base the amount of spousal support on the expenses and incomes of both parties according to the standard of living established during the marriage, with consideration of the following factors:
If a marriage is less than ten (10) years, generally the court is not to grant spousal support for more than one-half (½) the length of the marriage, but if a marriage is ten (10) years or longer, it is considered a long-term marriage and different rules apply.
The length of marriage is defined as that period of time from date of marriage to the date of separation, which is generally when the parties stop living together, or if the parties are still residing together, when the petition is filed.
However, date of separation can be a tricky issue, so it is always best to consult with an attorney if there is a dispute about date of separation. Before a court will order spousal support, each spouse must complete, serve, and file a detailed Income and Expense Declaration showing all of their income and expenses.
Therefore, as each case is different and the parties' respective incomes and expenses vary, there is no set amount of spousal support required. The court maintains significant discretion in how much they will award in final spousal support. As such, it is best to discuss this issue with a qualified, experienced family law attorney to get a better idea of approximately how much the court is likely to grant after you have provided the attorney with the detailed information as outlined above.
Be sure to bring with you to the appointment with the attorney your most recent tax returns and pay records (for both parties, if possible) in order to get a more precise estimate of how much spousal support will likely be ordered.
Unless you have a non-modifiable order, permanent spousal support may be modified in the future upon a material change of circumstances, such as a loss of job, increased necessary expenses, increased income for the receiving party, and perhaps cohabitation in a romantic relationship by the receiving spouse.
Of course, if the person receiving spousal support remarries, all spousal support rights will discontinue unless you have a written agreement to the contrary.
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