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Jonnie Herring. Family Law Attorney.
Jonnie Herring. Family Law Attorney.

Frequently Asked Questions

Disclaimer: Please see our general disclaimer for additional information and limitations.

Why do people keep talking about dissolution instead of divorce and spousal support instead of alimony?

In both cases, the terms are interchangeable. The vocabulary comes out of our Family Code, which is based on no-fault divorce (see that topic) and tries to find new words to replace terms from fault based systems.

What is community property?

One of the fundamental ideas in California divorce, community property means that from the day a couple marries to the day they separate, they will be treated as a single economic unit for most purposes. Everything acquired during the marriage – assets and debts – is community, which means that it is owned or owed half and half by both people. In general, we do not ask who earned the asset or who created the debt; we assign fifty percent of everything to each person. There are exceptions – see separate property.

In the divorce process, one task is to divide assets and liabilities equally. That does not mean that each asset and liability is split in half. Rather, the total of assets and debts assigned to one person must approximately equal the total assigned to the other.

What is separate property?

Separate property (which belongs only to one spouse) is property owned before marriage, a gift received by only one spouse during marriage, or an inheritance received during marriage. If the separate property has remained separate or is traceable, it is assigned to the person whose property it was originally. If it has been “commingled” and cannot be traced, it probably has become community property. If it has been transmuted (changed) to community property, usually by some formal process, it is community property.

What is no fault divorce?

In California, if one spouse tells the court that irreconcilable differences exist, the court then has jurisdiction (power) to order the end of the marriage. There is no requirement that the differences be described, that there is evidence showing the differences are irreconcilable, or that either person be found to have caused those differences. The statement that irreconcilable differences exist, made by only one spouse, is enough. Thus, for purposes of ordering the end of the marriage, it does not matter to the court what your spouse has done during your marriage. Also, it is not possible to prevent a divorce in California, so long as one spouse wants it.

Who gets the children?

California law calls for frequent and continuing contact with both parents for the children unless there are safety issues. There is no presumption favoring mothers or fathers. The court decides custody questions based on the children’s best interests.

I have heard about different kinds of custody. What is that about?

Legal custody – this is the right to make decisions about the health, education, and welfare of the children. Typically, but not always, parents share joint legal custody.

Physical custody – this is the children’s primary residence, the parent with whom the children live most of the time.

Joint custody – this can refer to joint legal custody and/or to joint physical custody. Generally, however, people mean joint physical custody when they talk about joint custody. Joint physical custody does not have to mean that the children spend exactly fifty percent of their time with each parent, but it does mean that the children are with each parent for significant amounts of time.

Someone told me I need tax advice in a divorce. Why is that?

There are many places where divorcing parties must keep tax results in mind. Even when parties are creating their own agreement and thinking of creative solutions – which the court encourages – they cannot change tax rules. Some (by no means all) of the places where taxes matter including the following:

  • Support (and see that topic) – Child support is not a tax event. Spousal support is both taxable as ordinary income to the recipient and deductible as an adjustment to gross income by the payor, unless both parties agree otherwise.

  • Property Division - If one spouse takes a community asset, the transfer to that spouse from the other spouse is not a sale for tax purposes, if the transfer is incident to divorce. The person keeping the asset does not receive any increase in basis for tax purposes. Some examples of assets with tax questions are the following: Retirement and tax deferred assets, stock options, real estate, and investment accounts.

  • Tax Returns, Status, Dependents - Divorcing couples must make decisions about filing a joint return, selecting the appropriate tax payor status for each, claiming the children as dependents, and so on.

How much support will I get - or have to pay?

It depends.

Child support -- California applies a specific formula to four factors: the two net incomes, the number of children, and the amount of time the non-custodial parent spends with the children. Arriving at the numbers -- especially the net incomes -- can be complicated, as can applying the formula. Computer programs are available and are used by the court to determine child support.

Spousal support (alimony) -- There is no statewide formula, but counties do have guideline formulae that apply when the question is temporary support. For "permanent" support, the court must weight a series of factors, including the age and health of the parties, the length of the marriage, the marital standard of living, and so on. The court may not simply run the computer program again and order the resulting number.

How long will I receive, or pay support?

It depends.

Child support -- the obligation to pay child support ends when the child is eighteen, or if the child is a high school student, when the child is nineteen or has finished the twelfth grade, whichever happens first. Other events that can end the support obligation early include the marriage or death of the child, or the child's emancipation.

Spousal support -- there is no statute setting the length of time for alimony. A common measure is half the length of the marriage, but actual results vary from case to case. 

What about Domestic Partners?

California law currently does not recognize same sex marriages but does provide for registration of domestic partnerships (which may include heterosexual couples providing at least one partner is age 62 or older and at least one meets requirements under the federal Social Security Act). California has changed its Family code so that all of the laws regarding divorce also apply to the end of domestic partner relationship. However, one appellate court has told us already that the law can apply only to those who are registered under California's state system. Registration under a city or country plan, for example, will not count. Thus, for domestic partners registered with the Secretary of State the process is the same as for ending a marriage in California.

The complication for California's registered domestic partners is that the federal government does not recognize domestic partners. In some areas such as the filing of tax returns, the tax effects of spousal support, and the division of interests in federally protected retirement plans, results for domestic partners will be different from and more difficult to resolve than for parties ending a marriage.

What about violence in a relationship?

Domestic violence, including verbal abuse and damage to property, as well as physical harm, is a large topic with implications for various parts of a divorce. The first answer, however, is clear. If you are the victim of domestic violence, seek help at once. Violence and the threat of violence are never acceptable. There are many resources for victims of violence. Do not stay in a dangerous relationship. If you know that you have committed domestic violence or have come close to acting in a violent way, please seek help at once. There are resources for you, also.

The presence of violence in the marital relationship does affect the divorce process in various ways. That subject is beyond the very basic information to which these answers are limited. The first step, however, is to end the violence and get everyone into a safe situation.

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