Family Law La Mesa

Key Dates

Timing is everything in divorce.

Learn the Key Dates you need to know and their effect on your legal rights below.

Date of Marriage:
This is the date on your marriage certificate
Effect on Your Legal Rights: Community Estate begins to accumulate

Date of Separation
(1)The spouse has expressed to the other spouse his or her intent to end the marriage.
(2)The conduct of the spouse is consistent with his or her intent to end the marriage.
Effect on Your Legal Rights: The Community Estate ceases to grow

Date of Service of Summons
Begins 6 months and 1 Day *cooling off period*

Property Division

Division of Property in California follows a basic structure – Equal division of the assets and debts acquired during the marriage

Mandatory Disclosure
Fiduciary Rules requires spouses to fully and accurately disclose all assets, debts, income and expenses. Be very careful and thorough with your disclose declarations failure to include an asset puts your judgment at risk of being set – aside.

Community Property Presumption
Property acquired during the marriage is presumed to be Community Property.
Said Presumption may be rebutted by tracing (can be costly and if the funds are not easily traceable this may require a forensic accountant).

Separate Property Defined
Any property acquired before the marriage, after separation, by gifts or inheritance or the profits and rents therefrom is Separate Property.

Assets and Debts

Below is a list of questions to begin determining each parties’ interests in the assets and debts. Each analysis begins with determining if the property in question is community or separate. Included below are common questions an attorney will utilize to determine the character of your property.

Determining if the Asset or Debt is Community Property:

When was the date of marriage?

When was the asset or debt acquired?

When was the date of separation?

The House

When was the house acquired?

Was there a separate property down payment? (if so, you may be entitled to a reimbursement)

Was there a separate property contribution to the improvement of the home?

Does the home have a mortgage? Were there any refinances?

What was the value of the home and the balance on the mortgage as of the date of marriage?

What was the value of the home and the balance of the mortgage as of the date of separation?

Retirement

How much did the pension have before marriage?

How much was contributed during the marriage?

Is it governed by ERISA?

Custody and Co-Parenting

At the end of the day the most overwhelming key to a child’s success is the positive involvement of their parents.

Physical Custody

“Joint physical custody” means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, subject to Sections 3011 and 3020. California Family Code 3004.

“Sole physical custody” means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation. California Family Code 3007.

Legal Custody

“Legal custody” is the right to make major decisions about a child’s welfare, health, and education. Examples of these types of decisions include: where a child will go to school, whether a child will engage in religious activities, and whether a child should receive medical care (except in emergency situations).

“Joint legal custody” means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. California Family Code 3003.

“Sole legal custody” means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. California Family Code 3006.

Child Support

Child Support is calculated based on a statutory formula known as the *guideline amount.*

Most common sources of “Income” for Purposes of Child Support:

Salaries and wages (including tips, commissions, bonuses, profit sharing, deferred compensation, and severance pay);

Income from overtime and second jobs; income from contractual agreements; investment and interest income (including dividends);

Income from self-employment (including rent, royalties, and benefits allocated to an individual for a business or undertaking in the form of a proprietorship, partnership, joint venture, close corporation, agency, or independent contractor).

Spousal Support

Spousal support is a tricky area of the law because determining if and how much should be awarded is very specific to the facts of each case.

Step 1. PRIMARY POINT OF REFERENCE: Marital Standard of Living

In approaching the weighing process, courts must begin with the general premise that the decision to award spousal support and, if so, the amount and duration, must be based on the standard of living established during the marriage. [Fam.C. * 4330(a)]

FACTORS IN DETERMINING THE MARITAL STANDARD OF LIVING
a) This is a general description of the lifestyle the parties achieved prior to separating.
b) Characteristics may include income, expenses, and lifestyle (e.g., vacations, homes, cars, etc.)
c) To show the marital standard of living you may include photographs of cars, trucks, boats, horses, watercraft or similar items.
d) Other factors include whether you routinely took vacations, or had hobbies, such as skiing, boating or horses.

Step 2. Determining the Payor Spouse’s Ability to Pay
The supporting spouse*s ability to pay spousal support, taking into account his or her earning capacity, earned and unearned income, assets, and standard of living.

Step 3. Determining Payee’s Spouse Marketable Skills

Step 4. Determining Duration of Spousal Support

Complex Assets – Businesses, Stock Options And Defined Benefit Plans

Complex assets often require Valuation and Analysis of the Community Portion (acquired during the marriage) vs. Separate Portion (before marriage / after separation). Below is a list of questions used in determining the community interest in each asset.

Businesses: (Van * Camp / Pereira Analysis):

When was the business acquired?
How much did the spouse contribute to the growth of the business? i.e. Was the spouses management of the business active or passive?

Pension (Time Rule)

When did pension benefits start accruing?
How long was the marriage?
When was the date of separation?
How much did the pension have before marriage?
How much was contributed during the marriage?

Stocks (Marriage of Hug, Marriage of Nelson)

Is the company privately held or public?
What is the vesting schedule?
What is the strike of the stocks?
What is the value of the stocks?
When will the stocks be valued (at the time of distribution or the present value to determine a buyout off)?
Were the stocks provided for past performance or as an incentive to stay with the company?
Are the stock options qualified or non-qualified? How will the taxes be paid?

Preparing Your Financial Disclosures

The court requires Family Law forms FL-142, your Schedule of Assets and Debts, and FL-150, Income and Expense Declaration to be completed thoroughly and honestly. To begin preparing your financial disclosures, please see below is a list of documents you will need to gather to complete the financial disclosure process.

Prior Agreements (if applicable)
– Premarital Agreement
– Postnuptial/Transmutation Agreements

Income:
– Two Years of Tax Returns
– Two Months of Paystubs

Real Estate
– Deeds with Legal Descriptions
– Latest Lender’s Statement
– Obtain an Appraisal / Comparative Market Analysis / Agree to an Estimate on a home services site like Zillow or Trulia
– Attach Documents Supporting Value

Household Furniture and Furnishings
– Identify Assets with Significant Value
– For Fair Market Value, Utilize Garage Sale Prices
– Search Craigslist or E-Bay for Fair Market Value
– Attach Documents Supporting Value

Jewelry, Antiques, Art and Coin Collections
– Have items of significant value appraised
– Alternatively, search Craigslist or E-bay for comparable items to determine their fair market value
– Attach documents supporting value

Savings Accounts
– Attach Copy of the Latest Statement
– Remember to include ALL accounts even those from prior to marriage

Checking Accounts
– Attach Copy of the Latest Statement
– Remember to include ALL accounts even those from prior to marriage

Credit Union and Other Deposit Accounts
– Attach Copy of the Latest Statement
– Remember to include ALL accounts even those from prior to marriage

Cash
– Please describe location and amount (i.e. $10 in wallet)

Tax Refund
– Attach Copy of the Latest Statement

Life Insurance with Cash Surrender Value or Loan Value
– Attach Copy of the Declaration page for each policy
– Remember to include ALL accounts even those from prior to marriage

Stocks, Bonds, Secured Notes and Mutual Funds
– Please list the certificate number
– Attach a copy of the certificate or copy the latest documents

Retirement and Pensions
– Attach a Copy of the latest summary documents and latest benefits statements
– If there is a Pension, an actuarial will need to be hired to determine the community value

Profit-Sharing, Annuities, IRAs and Deferred Compensation
– Attach Copy of Latest Statement

Accounts Receivables and Unsecured Notes
– Attach Copy of the Promissory Note or other Evidence of Existence of an Agreement

Partnerships and Other Business Interests
– Attach a Copy of the Latest Profit and Loss Statement
– Attach a Copy of the Schedule C or Schedule K
– Attach of Copy of the Articles of Organization

Other Assets
Please list any other assets here and provide all accompanying documentation – i.e. airline miles, etc.

Student Loans
– Attach a Copy of the Latest Statement

Taxes
– If taxes are owed, please state the years and amounts owed

Support Arrearages
– Attach Copies of Order and Statements Evidencing the Amount of Support Arrearages

Loans – Unsecured
– Attach Copy of Latest Statement

Credit Cards
– Attach Copy of Latest Statement from each Credit Card