No. A divorce is not automatic. In order to get a divorce you first have to file a request with the court – a Petition for Dissolution (divorce). The earliest date you can be divorced in California is six months from the date the Petition and other papers are served on your spouse. Service can be accomplished is many ways, including having a person over 18 years of age, other than you, handing the papers to your spouse; service by a registered process server or the Sheriff; or by your spouse signing paperwork that is mailed to him/her. Once service has occurred, then the six month waiting period starts. If you want to be in divorced in a particular year, you have to file and serve papers on your spouse no later than June 30.
If the other issues of the divorce (i.e. property division, support and parenting issues) are not resolved within this six month time frame, you are entitled to request a “bifurcated Judgment.” This is a technical term meaning that your status as a married person is separated from the other issues in your case, and a judgment terminating your status as a married person is obtained and the other issues are decided later. That makes you single again. This does not happen automatically. If you want to terminate your marital status before the other issues of your case are resolved, you must either present an agreement to do this or file a motion to ask the court for a bifurcation. The necessary paperwork has to be filed with the court for this to happen whether by agreement or not.
If you and your spouse or partner reach an agreement about all of the issues in your divorce within the 6 months, then you can submit the agreement and the other required paperwork to the court for the divorce to become official and you will become single when the six month waiting period has elapsed.
All methods of becoming divorced require some affirmative action on your part and a court order that says you are divorced.
You probably believe that you don’t have an estate plan. However, everyone already has an estate plan. It’s not a very good one, but it’s a plan.
The people who write California laws know that too many people never get around to writing even so simple a thing as a handwritten will. Many more than half of the people who die every year, (up to 85% according to some statistics!) have done nothing at all to express an opinion as to how their assets should be distributed or how their spouses, partners or children should be taken care of. If the government had to start from scratch to figure out what to do with each such person, it would take forever.
To avoid chaos when these people die without plans (“intestate” is the word), the state tried to figure out what people would have written if they’d ever gotten around to writing a will or trust. Every state has laws of “Intestate Succession” to determine who will get what when someone dies without a valid will or other estate plan. What these laws do depends on whether the person who dies is married, in a Registered Domestic Partnership, or is single. What the laws do depends on what relatives the person has: children, parents, siblings, etc.
The laws of intestate succession are extremely complicated, and you don’t need to know all of the details. What you should understand is that these laws are geared toward some mythical Everyman. By definition, they won’t be tailored to YOU and YOUR family situation. In my next blog, I’ll explain how it works.
The information in this blog is provided for general informational purposes only and is not intended to be legal advice on your matter. The law changes frequently and varies from jurisdiction to jurisdiction (this blog generally reflects California law). No attorney-client relationship is formed nor should any be implied. Nothing in this blog is intended to substitute for the advice of an attorney. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction. You can contact us at 707-523-0480
“Watts” charges or credits refers to the case of In Re the Marriage of Watts. The court in that case dealt with the issue of what happens when one party in a divorce uses a community asset after separation. Common situations are when one party stays in the family residence and the other moves out or each party uses a particular car after separation.
The general principle is that the court may charge a person who uses a community asset after separation for using that asset. This is up to the court’s discretion depending on the circumstances. If the person using that asset is paying something toward the expenses of the asset, that is taken into consideration. A Watts charge occurs when someone is getting more benefit than he/she is paying for.
For example, if one party is in the house and it could rent for $2,000 a month, that is the value of what is being used by that party. However, if that person is paying the mortgage, property taxes and homeowner’s insurance which total $1,500 a month, then the excess value is $500 a month. The idea is that this value belongs to the community and if the house was rented, the rent of $2,000 would pay the $1,500 that was owed and that would mean the community would have a profit of $500 a month to be split between the parties. In this example, the person in the house could owe the other party one-half of that excess $500 a month, or $250 a month, for each month he/she lives in the house after separation until it is sold or awarded to one of the parties in a court order.
The same principal could apply to the use of the car. You might consider what it would cost to lease that car as the “use” value. And you would consider the cost of any car payment as an offset.
Divorcing spouses may agree on how much support will be paid, the length of time it will be paid, and other aspects of spousal support, sometimes called alimony. In the absence of an agreement, there are two different methods a judge will use to determine spousal support.
At the beginning of a case, when the parties are separated, but property has not been divided, temporary spousal support may be ordered. Temporary spousal support is determined by a formula. In Sonoma County the formula is roughly 40 percent of the payor’s net income after any child support is deducted, minus 50 percent of the recipient’s net income.
After property is divided, spousal support is referred to in several ways including, “permanent support” or “long term support” or “post-judgment support.” All of these terms mean roughly the same thing. To calculate long term support, the court is not allowed to use the formula that is uses to determine temporary support. Instead, the court must consider a number of factors that are listed in Family Code Section 4320. These factors are:
a. The standard of living enjoyed by the parties during their marriage;
b. The income or earning capacity of each party;
c. The marketable skills, job training or education needed for the supported spouse;
d. The extent to which the supported party’s present or future earning capacity was impaired due to periods of unemployment during the marriage;
e. The extent to which the supported party contributed to the attainment of education, training, or career of the paying party;
f. The needs of each party based on the standard of living established during the marriage;
g. The assets and obligations of each party;
h. The duration of the marriage;
i. The ability of the supported spouse to engage in gainful employment without interfering with the interests of dependent children in that spouse’s custody;
j. The age and health of the parties;
k. Any documented history of domestic violence;
l. The immediate tax consequences to each party;
m. The balance of the hardships to each party;
n. Any criminal conviction of an abusive spouse;
o. Any other facts the court determines are just and reasonable.
Because these factors are words and not a formula, there is a wide range of possible support which could be ordered, because the judge who makes the decision has lots of discretion.
Research shows us that it is important for children to have age appropriate information about what is happening and the impact on them. We also know that it is important that the children not be caught in the middle between parents. Talking poorly about the other parent to or in front of your children is harmful and will likely have a long term negative impact on your children and their relationship with you and the other parent.
Talk with your children and be open and honest without disparaging the other parent. Give them the information they need. Ask if they have questions and give them answers as appropriate for their age. They do not need to hear that the other parent is to blame for the break up. It is enough to tell them that you and the other parent are going to separate. Reassure them that they will see both of you, that both of you love them and that it is ok to love both parents. Be sure they know that the end of the marriage is not their fault. This will likely need to be repeated to them over time.
Think about what will concern them – where will I live, what happens to my pet(s), will I stay in my school, what will change and what will stay the same? Address these concerns in terms that they will understand. Consider telling the children together if your relationship would allow this to happen in a positive way.
There are also many resources in Sonoma County to help children deal with this transition. There are programs for children offered through Kids’ Turn of Sonoma County run by The Child Parent Institute (formerly California Parenting Institute) and by Kaiser. Some children may need individual counseling. There is also an abundance of reading material available. One good resource is “What Should We Tell the Children? … Parents’ Guide for Talking About Separation and Divorce.” This is published by the American Academy of Matrimonial Lawyers.
There are many different counseling and similar resources that can be very helpful for people involved in family law matters, whether in litigation, collaborative practice, or any other model. Sometimes, people are court-ordered or agree to participate in certain kinds of counseling to assist in developing communication, parenting skills, or other issues that come up during the divorce or separation process, or as people parent together post-separation.
For some people, it can be difficult to find a counselor with experience in dealing with the specific dynamics that come up in separated families, or with expertise in specialized kinds of counseling, such as parent-child reunification counseling. It can also be difficult to find someone with experience working with attorneys and the court system. However, we believe skilled, experienced mental health providers can significantly improve post-separation parenting, both for parents and for children. For this reason, the Mental Health Liaison Committee, a subcommittee of the Family Law Section of the Sonoma County Bar Association, created a list of local mental health resources, organized by the type of family law counseling provided. A link to the list is provided below.
COURT INVOLVED THERAPIST REFERRAL LIST REV JANUARY 1, 2016
In our community, low-income people with health issues are constantly at high risk. The inability to afford adequate nutrition or healthcare is incredibly damaging, resulting in deteriorating health. The Ceres Community Project aims to specifically address this problem by providing organic, freshly-prepared meals to low-income individuals. Numerous studies show a link between healthy eating and improved health, and the project’s primary goal is in supporting those who most need it through meals, education, and community support.
This organization is four-fold in its approach to encouraging healthy and nutritious eating habits. The first is its treatment of food as medicine, providing free and home-delivered meals to people dealing with serious health conditions. This program both provides much-needed socialization for isolated individuals and encourages lifelong healthy eating habits that improve health.
Ceres Community Project Empowers Teens
Ceres also empowers teens, who volunteer for the organization and work the food production garden and three commercial kitchens in Marin and Sonoma Counties. All of the meals provided by the organization are cooked by these volunteers, who learn about healthy eating and creating change in their community while developing valuable work and leadership skills.
Yet another branch of Ceres outreach is in community education. They teach the importance of health-based eating and cooking with organic and local foods, providing a lasting base of knowledge that allows for real change to eating habits. Through classes, clinics, cookbooks, and catering, they are continually working to support and educate their community.
Lastly, Ceres participates in national replication efforts, helping other communities across the country develop their own similar programs. With free start-up kits, training sessions, and licensing for interested communities, they’ve helped towns in Ohio, Illinois, Tennessee, and elsewhere create their own programs.
We’ve selected this organization to highlight this month due to their amazing dedication to improving Sonoma and Marin County health and nutrition. If you’re interested in donating, volunteering, or learning more, please don’t hesitate to visit their website!
Legal custody refers to the right and the responsibility to make decisions relating to the health, education, and welfare of a child. A parent with legal custody can make decisions about issues such as the child’s schooling, religious upbringing and medical care.
If parents have joint legal custody, they are obligated to confer with each other when making decisions about health, education and welfare. When parents share joint legal custody under a court order, the order may specify the circumstances under which the consent of both parents is required. If the order does not require joint consent, either parent acting alone may make legal custody decisions, but the parent can not make a decision that would negatively impact the other parent’s time with the child. For example, if the order specifies that both parents’ consent is required to take a child to a specific doctor, neither parent can take the child over the other parent’s objection. If the order does not specify that both parents’ consent is required, then the parent who wants to take the child to counseling must confer with the other parent, but then can make the decision alone. While this may be permissible, in most cases, it is generally not a good idea to make unilateral decisions about important matters in your child’s life.
Physical custody, also referred to as “parenting time,” refers to the periods during which a parent physically cares for the child. Joint physical custody refers to any parenting arrangement under which the child has “substantial time” with both parents; it does not always mean a 50-50 timeshare between the parents. While there is a presumption that joint custody is in the best interests of children, the actual timeshare must also take into account school and work schedules, as well as many other factors specific to a given family.
Finding What Works
Every family is different, and a plan that could work for one pair of parents might be terrible for another. When your custody arrangements are court ordered, many variables are taken into account. The same goes for a custody agreement formed outside of court. The important thing, regardless of whether there is contention or accord, is to find a professional who can help you reach a clear and reasonable agreement regarding both legal and physical custody.
Many people put off creating an estate plan. Maybe the thought of planning for the end of your life and after is frightening or disturbing. Maybe you think you and your belongings aren’t worth enough to need an estate plan. Maybe you assume the state will handle you assets appropriately.
Unfortunately, a lot can go wrong between the here and now and the hereafter (or the none-after, or whatever else you’re expecting when you pass. We don’t judge). Did you know that if you can’t sign documents regarding your estate and your health, it can cost a lot of money?
Attorney MaryClare Lawrence recommends the excellent article below by Southern California attorney Stuart Foreman. Mr. Foreman has many insightful things to say about procrastinating on your estate plan.The article is from the Senior Living Blog on A Place for Mom.
As part of the dissolution process, all community property assets are subject to division, including retirement accounts. There are specific orders that are used to divide retirement assets, known as Qualified Domestic Relations Orders (QDROs). These orders generally define
- how the community property interest in a spouse’s retirement account is calculated, and
- how the non-employee spouse is going to receive his or her share of that retirement account.
If the retirement account is a 401(k) or IRA, or other form of defined contribution plan, the non-employee spouse may be able to immediately take his/her share of the retirement asset and move it into an IRA in his/her own name. If the retirement is from a pension, the non-employee spouse may receive his or her share of the retirement on a monthly basis, after the participant spouse retires. QDROs are utilized even if the employee spouse has already retired and is receiving retirement income.
Post by Kara Olhiser.