Why You Need to Work with a Divorce Lawyer
There are numerous online sites offering quick and easy divorces without having to work with a divorce lawyers. While many of these sites may work for smaller, less-involved divorces, they might not be the way to go for more intense divorces. When it comes to deciding on issues of child custody and spousal support, you might want to consider working with a divorce attorney.
Child custody issues can quickly become complicated. This is especially the case if the parents are not able to work together to co-parent or develop a successful co-parenting situation.
There are different forms of child custody: legal custody, physical custody, sole custody, and joint custody.
Physical custody means a parent has gained the legal right (typically through a court ruling) to have a child live with him or her. Usually if a parent has physical custody they also have sole custody of the child, which means the other parent has visitation rights.
There are two forms of sole custody a parent can have: sole legal custody or sole physical custody. Courts seem to be moving away from awarding sole custody to one parent as more information is coming out about the importance of having both parents in a child’s life. In cases where a parent has been deemed unfit due to a history of neglect or abuse, a known dependency on drugs or alcohol, or a new parented that has been deemed unfit, a court will usually award sole physical custody to one parent. It’s advised that unless a parent has demonstrated the above issues, that you do not seek sole custody, due to the importance of having both parents in a child’s life.
While the trend is to award joint custody, in cases where courts do award sole physical custody the parents still usually share joint legal custody (which means both parents are able to make legal decisions regarding the child), unless a parents has been deemed unfit to make those legal decisions.
Legal custody allows a parent to make decisions regarding various aspects of a child’s life, including: education, religion, and medical care or legal issues.
Joint custody is abel to be awarded to the parents if they are divorced, separated, no longer living together, or if they never lived together but still shared a child. The awarding of joint custody to both parents means each parent is able to make decisions regarding the child. Joint custody also comes in various forms, including: joint legal custody, joint physical custody, or joint legal and physical custody. Usually if a couple shares joint physical custody they also share joint legal custody. But if a couple shares joint legal custody they do not always also share joint physical custody.
Alimony, often called “spousal support” is when one spouse pays the other in order to help that spouse maintain the same financial standing as was experienced during the marriage. A court will require the higher earning spouse to assist the lower in maintaining that standard of lifestyle that was achieved during the marriage.
Awarding Spousal Support
In California a judge can award temporary (“pendente lite”) support either during the divorce proceedings, or when the divorce is declared final. Typically these payments are made from one spouse to the other in a specified amount for a predetermined period of time. But support can also be paid in a single lump-sum payment. In collaborative process divorce agreements, spouses often come to agreement on the terms and conditions of support payments. As long as this agreement meets legal requirements, a court will uphold an agreement. This is the case even if the agreement provides for a complete waiver of support to the lower-earning spouse.
Duration of Spousal Support
In California, the duration of spousal support agreements are often tied to the length of the marriage. A general rule of thumb is that for a marriage of less than 10 years, a court will not order support payments be made for longer than half the length of the marriage. But if a marriage has lasted 10 years or longer, a court typically will not set a definite termination date for support. Both spouses are able to request modifications to the spousal support agreement indefinitely, unless a termination date has specifically been agreed, or if the court expressly terminates the support at a later hearing.
Awarding Permanent Support
Sometimes support is labeled “permanent” support, but the actual awarding of permanent support lasting for the remainder of a lifetime is increasingly rare, even for marriages that last over 10 years. Family law courts in California tend to require a spouse seeking support to make an effort to become self-supporting. A spouse that makes claims that they are unable to work, or unable to become fully employed, is required to support the claim with evidence. Often times this means having a vocational evaluation. And for long term support orders, the support often gradually reduces over time by a nominal amount. Permanent support is usually only awarded to spouses that are unable to become self-supporting due to age or disability.
Calculation of Spousal Support
California law rules that the purpose of awarding temporary spousal support is for preserving the financial status quo, or “standard of living during the marriage” to the greatest extent possible. After a court evaluates and considers the needs of the spouse requesting the support, as well as the ability of the other spouses ability to pay, it can order the temporary spousal support in any amount. Typically, a court will use a common formula for calculating temporary support. One example of this formula is the Santa Clara County formula. This formula comes up with a figure through subtracting 50% of the lower-earner’s net income from 40% of the higher earner’s, and then makes adjustments for tax consequences and child support payments. The California Department of Child Support provides a support calculator for parents of dependent children looking to get a rough estimate of what temporary spousal support payments might look like along with child support payments. A family law attorney will also be able to provide you with a rough idea of what your payments will look like.
Standard of Living
Spousal support’s main purpose is to assist a supported spouse in maintaining a standard of living that was close to that which was attained during the marriage. But the goal is for the spouse receiving the payments to eventually become self-supporting to the greatest extent possible. A court will take the following into account:
- marketable skills of the supported spouse,
- job market for those skills,
- any time or expense the supported spouse will need to acquire education or training for employment or enhanced employability, and
- the extent to which periods of unemployment (due to domestic duties) during the marriage have impaired the supported spouse’s present or future earning capacity.
The court will also consider any other factors, including:
- extent to which the supported spouse contributed to the other spouse’s attainment of education, training, professional licensing or career advancement (this can also mean the extent to which the supported spouse provided and maintained home life while the other spouse was advancing his or her career)
- ability of the supporting spouse to pay support. A court will take into account earning capacity, earned and unearned income, assets, and standard of living,
- needs of each party based on what the marital standard of living was,
- each spouse’s obligations and assets, including separate property,
- duration of the marriage,
- ability of a spouse who is also a custodial parent to engage in employment without interfering with the interests of dependent children,
- each spouse’s age and health,
- documented history of domestic violence by either spouse*,
- immediate and specific tax consequences to each spouse (often times tax agreements are figured out during the awarding of spousal support and child support agreements),
- balance of the hardships to each spouse, and
- the goal that the supported spouse will be self-supporting within a reasonable period of time. This follows a general rule of thumb presumed to be one-half the length of a marriage (unless the marriage was longer than 10 years).
*California courts do not ordinarily consider conduct when making spousal support determinations. But often times, a court will not award support to a spouse that has a proven history of violence toward the other spouse.
Working with a Divorce Attorney
If you are facing a child custody dispute or issues with spousal support you should contact a divorce attorney. Because there are a lot of rules surrounding child custody and spousal support decisions, working with a divorce attorney can help you through the process.
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