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FAQ

    1. I’ve heard the term “dissolution of marriage.” Is that different than a “divorce?”

No. “Dissolution of marriage” is the legal term for divorce that is used by the courts.

    1. What are the grounds for a dissolution of marriage?

California was the first state to implement the “no-fault divorce” concept. In California, a dissolution of marriage can be granted if the court finds there to be “irreconcilable differences” that have caused an irremediable breakdown of the marriage. Therefore, as long as one spouse wants a divorce, he/she can obtain one, even if the other spouse disagrees. This also means that you won’t necessarily get a better result from your divorce because your spouse abused, defrauded or cheated on you. However, these and other acts of misconduct may be considered by the courts in various circumstances. For example, the law regarding spousal support was recently revised to include a provision that spousal abuse shall be a factor considered in determining the appropriate amount of spousal support to be paid. Also, evidence of domestic violence shall be considered in determining child custody and visitation issues.

    1. Can I file for a dissolution of marriage?

In order to be able to file for a dissolution of marriage in the state of California, one of the spouses has to have been a resident of the state for the past continuous six months and of the county in which the divorce is being filed for the past continuous three months prior to the filing of the Petition (Family Law).

    1. After the dissolution case is filed, how long does it take to get the marital status terminated?

Once you have served your spouse with the Summons and Petition, the marital status cannot be terminated until six months have passed since from the date the service was effected.

    1. What is the procedure for getting a dissolution of marriage?

A typical dissolution of marriage requires the following steps: The Summons and Petition (Family Law) is filed and personally served on the Respondent.The Respondent then has thirty days to file a Response (Family Law).

One of the parties to the dissolution will usually request temporary court orders by filing for an RFO to Show Cause hearing. At this hearing, the judge will make temporary child custody, support and restraining orders (as appropriate).

The parties may then engage in discovery, which is the process by which parties to the dissolution exchange information and documents that are relevant to the case. One of the required aspects of discovery is the preparation of the Preliminary Declaration of Disclosure. This is a court form in which each party lists their community and separate property. As part of this disclosure, the parties are also required to exchange current Income and Expense Declarations. Other forms of discovery include interrogatories (written questions) and depositions (oral examination under penalty of perjury).

After the discovery is completed, the parties and their attorneys (if they are represented) may discuss settlement of the case. If the case is resolved by agreement, one of the attorneys will prepare a Marital Settlement Agreement or stipulated judgments which will contain all of the terms of the agreement. This is a contract that is signed by the spouses and their attorneys.

If the parties are not able to agree on all of the issues in the case, a trial will take place on some or all issues. If the parties sign a Marital Settlement Agreement, one of the attorneys will then prepare a Stipulated Judgment that contains all of the terms of the Marital Settlement Agreement to be signed by the judge. If the parties go to trial, once the trial has concluded, one of the attorneys will prepare a Judgment of Dissolution of Marriage. The Judgment will contain all of the court’s orders. The Judgment will then be filed and signed by the judge, and the court will mail a Notice of Entry of Judgment to each attorney.

    1. Can I get temporary spousal support while my family law case is pending?

Spousal support is often awarded at an RFO aka request for order hearing on a temporary basis, where one spouse is unemployed or earning significantly less than the other spouse. The Superior Courts of Orange and Los Angeles Counties have adopted the Santa Clara guideline for temporary (aka pendente lite) spousal support. This guideline generally provides that the higher earning spouse’s spousal support is to be 40% of his/her net monthly income, reduced by one-half of the other spouse’s net monthly income. The courts generally use a computer program known as “Dissomaster” to arrive at a temporary spousal support amount.

If child support is also being paid, the guideline level of child support will be calculated first. Then, spousal support is determined based on the payor’s income after the child support payment is considered.

    1. If I am not working right now, at the initial Request for Order hearing, will I be required to find a job immediately?

At the RFO hearing, the judge is usually not concerned about the employability or earning capacity of either party. Instead, at this stage, the judge merely wants to preserve the “status quo” and provide the lower income spouse with sufficient income for her/his basic needs, consistent with the parties’ marital lifestyle.

    1. How does a judge determine spousal support at the time of the trial?

At the trial of the dissolution, the California Family Code provides the judge with a long list of factors under Family Code §4310 that are to be considered in determining the amount and duration of spousal support. This list includes such factors as the length of the marriage, the parties’ prior living standard, the extent to which the supported spouse contributed to the attainment of an education or professional license by the other spouse, the presence of young children in the home, and the employment opportunities available to the spouse requesting support.

    1. How long will my spousal support last?

In general, where the marriage has lasted more than 10 years, the court will, at the very least, require a “reservation of jurisdiction.” This means that, even if there is no current order for spousal support, the requesting party will be permitted to come back to court at a later date to request spousal support should the need arise. In marriages of less than ten years, spousal support will usually be paid for approximately one-half (½) of the length of the marriage.

    1. Is the spousal support I am paying tax deductible?

The Internal Revenue Code provides that all spousal support payments under a written agreement between the parties or court order are tax deductible by the paying spouse and taxable to the recipient spouse as “ordinary income.” For this reason, it is not uncommon for a negotiated settlement to include the payment of a higher amount of spousal support, because such a payment results in tax benefits to the paying spouse.

    1. Can I get medical insurance benefits through my spouse’s employer after the dissolution of marriage?

Under Federal Law you might be entitled to keep your medical insurance benefits under your former spouse’s group plan. The Consolidated Omnibus Budget Reconciliation Act of 1985 created what are commonly known as “COBRA” benefits, which are available to the former spouses of people who work for employers who have 20 or more employees.

In general this law provides that employers must offer “continuation coverage” for the first three (3) years after the termination of the marriage. The law further provides that the employer can charge the former spouse for this coverage, but the charge cannot be more than 2% greater than what is charged to employees.

After the three years have ended, the law states that the employer must offer a former spouse the right to purchase “conversion coverage,” but there are no limits on how much the employer can charge for this coverage.

The COBRA law further provides that the former spouse does not have to pass a physical examination in order to obtain the continuation or conversion benefits. This is significant if you have any pre-existing conditions that might not be covered by another medical insurance carrier.

In order to obtain your COBRA benefits you have to file your application with your spouse’s employer by no later than sixty (60) days after the termination of your marriage. If you do not file your application by that date you will not be able to get these important benefits.

If you wish to obtain your COBRA benefits, you must contact your former spouse’s employer directly and request the appropriate forms. This is not a service that is customarily performed by our office all though we are able to assist at your request. You must contact your former spouse’s employer directly if you want to obtain these benefits.

    1. Can I get joint custody of my children?

California has a “joint custody” law that encourages judges to award joint “legal custody” to parents. This means that both parents have a right to make decisions concerning their children, such as education, medical treatment and religious upbringing.

The court also has the power to award “physical custody” to one or both parents. Physical custody determines where the child actually lives, The parent who does not have primary physical custody is usually granted “secondary physical custody” or visitation rights.

It is common for the non-custodial parent to have specified periods of time consisting of alternating weekends, one evening per night and one-half (½) of the children’s school vacations. In some cases, the parents agree to “reasonable” secondary physical custody or visitation rights, which means that the parents agree on the times when the non-custodial parent will have the children.

  1. If I have custody of our children, can I relocate with them to another metropolitan area?

In some cases, a judge will issue orders preventing either parent from changing the residence of the children from a specified geographical area. Locally, it is not uncommon for a judge to restrain the parents from removing the residence of the children from what are referred to as “the seven Southern California counties.” Such orders are common where both parents have a considerable amount of time with the children and removing them from the metropolitan area would be disruptive to the children and their development.

Over the last ten years, courts in California have been dealing with the right of a custodial parent to move with the children to another metropolitan area or out of state. The California State Supreme Court recently decided a case that helped deal with this controversy. Under the new rule, the custodial parent generally has the right to decide where the children are to live, as long as he/she is not moving simply to deny the other parent access to the children. The court’s will also implement a “best interest” standard to determine whether a party sharing custody can move away to another state or geographic location.

  1. How is Child Support determined?

In 1984 the California Legislature enacted the Agnos Minimum Child Support Standards Act. This law established minimum levels of child support and required the courts to establish guidelines for awards of child support above the statutory minimums. This is known as the Child Support Guideline, which was recently amended, effective July 1, 1992.

To calculate the minimum amount of child support to be paid by a parent, the law directs the judge to first add up the total net monthly incomes of both parents. The court then must compute the percentage of that income that is being earned by the non- custodial parent. That percentage is multiplied by the applicable level of welfare payments for the number of children in the household. The result of this calculation is the minimum child support. It should be understood that in the vast majority of cases the court orders child support above the minimum level, as determined by local support guidelines.
The vast majority of child support is paid under the Child Support Guideline. The guideline is based on a complicated mathematical formula. In fact, computer programs must be used to calculate child support under the guideline.

  1. How long is child support supposed to be paid?

Child support must be paid until the child becomes 18, unless the child has not graduated from high school, in which case the child support continues until the child has graduated high school or becomes 19, which ever occurs first. Presently, the law does not give judges the power to make a parent support a child beyond the age of 19, unless the child is physically or mentally disabled. However, the parents can agree all though it is not common that child support is to continue into the college years, and such an agreement will be enforced by the Family Law Court.

  1. How is child support supposed to be paid?

Unless the custodial parent agrees otherwise, all child support is to be paid by a wage assignment. This means that the child support payments are to be deducted from the wages of the parent who is obligated to pay child support.

  1. What is community property and separate property?

All property acquired by married people during the course of their marriage is presumptively community property. This includes the rents, issues, profits, interest, etc. of community property. Community property also includes the efforts of each spouse (significant in family owned businesses) as well as all wages earned by either spouse during marriage. An exception to this rule applies to wages maintained in a separate bank account and which are not co-mingled with other community property. Such property will remain the separate property of the spouse who earned it. Since wages are seldom maintained exclusively in a spouse’s separate, non-commingled bank account, generally speaking, all wages earned during marriage are community property.

In California, in a dispute over whether property is separate or community, the separate property proponent has the burden of proof (i.e., that the item in question was acquired by gift, devise, descent or bequest); that the item was acquired prior to marriage or after the date of separation.

Upon dissolution, the court (either after trial or pursuant to a stipulated agreement – a marital settlement agreement) will order the community property divided between the spouses. The division need not be exact, but should be a “fairly equal” division. Some items may be sold (i.e., the family home). Other items may be awarded in whole to either spouse depending upon his or her connection with the item. If one spouse is primarily responsible for a business the court will likely award the business to that spouse, and make up for the community property interest of the other spouse in the business by awarding him or her other items, or money. Alternatively, the spouse with the business may “buy out” the other spouse’s community property interest.

It is important to note, that for purposes of dividing property at divorce, the form of title to any item of real or personal property may be irrelevant. Therefore, although the marital home may be titled in the name of just one spouse, if payments on the mortgage or trust deed are made with community property funds, there will be a community property interest in the property in proportion to the community funds used to pay down the debt. Property titled as “joint tenants” (with rights of survivorship) likewise may be divided by the court as community property. Nevertheless, at death, the rules of joint tenancy will operate to pass the entire joint tenancy item to the survivor. For this reason, a person involved in divorce should consult his or her attorney regarding the changing of title of items held in joint tenancy with the other spouse. In the event of death prior to the entry of a judgment terminating the marriage, the joint tenancy item would pass to the surviving spouse rather than to the estate of the deceased spouse (the exception to this rule is if the property issues have not been resolved within four (4) years after judgment is entered terminating the marriage). In making any such changes, however, care must be taken not to violate the automatic temporary restraining orders which go into effect upon the filing of the summons. It is therefore highly recommended that counsel be consulted on this issue prior to making any changes.

  1. How is the community property to be divided?

It should be understood that the law does not require an “in kind” division of community property. All that the law requires is that the net value of the community assets received by each spouse must be equal. Thus, it is not uncommon for one spouse to be awarded the family residence, with the other spouse receiving the family business and investment real estate. Since the total net value of the assets being received by each spouse is equal, such a division is proper.

Ordinarily, it is not difficult to determine whether a particular asset is community or separate property. However, certain types of assets can pose unique problems in this regard.

  1. Can I get a portion of my spouse’s pension and employment benefits?

To the extent that a married person accumulates an interest in a pension, retirement, profit sharing or other employee benefit plan during the marriage, it is community and subject to division in the dissolution of marriage. The law gives the judge the power to award a spouse his or her pension plan, based on its “present value,” or to “reserve jurisdiction” to award each spouse a proportionate share of the benefits when they are paid.

  1. How are pension plans divided in a dissolution case?

Generally, pension plans are divided in one of two ways: a “reservation of jurisdiction,” or a “cash-out.”

  1. Reservation of Jurisdiction:

This is the most common way in which pension plans are handled. Under reservation of jurisdiction, the court orders that when the employed spouse retires, the other spouse will receive a percentage of each pension check. This percentage is calculated by dividing the years when the spouses lived together as husband and wife by the total number of years that the employed spouse has been participating in the pension plan. The result of that division is the community property percentage of the pension plan.

For example, if the husband had 20 years of contributions into a pension plan, with 10 of those years coinciding with the years he lived with his wife, the community property share of his pension plan would be 50% (10 divided by 20). Thus, the wife would be entitled to 25% of the husband’s pension checks (½ of 50%).

Under a reservation of jurisdiction, the spouse can elect to receive his or her share of the employed spouse’s pension benefits at the earliest time that the employed spouse could retire. This means that even if the employed spouse chooses not to retire, he or she still has to pay through the pension administrator  to the other spouse what that spouse would have received if the employed spouse had retired.

For example, if the husband is eligible for “early retirement” at age 55, but he chooses not to retire at that time, his ex-wife can demand that he pay her the amount of money that she would get if he actually retired. However, if the wife makes or the pension administrator such an election, she does not receive any cost of living increases after that date.

The Federal Retirement Equity Act of 1984 created what is known as the “Qualified Domestic Relations Order,” or “QDRO” (pronounced “quadro”). Where the Court makes orders concerning a spouse’s retirement plan and the order is prepared in the correct form, federal law requires the employer to comply with the terms of the order. The preparation of a QDRO can be time consuming and complicated, and, consequently, expensive. However, it is a necessary step in the dissolution process.

Several companies have been formed for the sole purpose of preparing QDROs. For a reasonable fee, these companies prepare the QDRO’s and submit them to the pension plan administrators. The principals of Law Offices of William P. Glavin usually will recommend that one of these companies be hired to prepare QDRO’s.

  1. Cash-out:

The other method of dealing with pension plans involves obtaining “actuarial evaluation” of a pension plan. An actuary is an expert who deals with statistical and financial evaluations of insurance policies, annuities and pension plans. By reviewing the plan description as well as the accumulations in the account of the employed spouse, the actuary can determine the “present value” of the pension plan.

For example, if the husband’s pension plan provides that he will receive $1,000 per month upon his retirement at age 65, and the husband is presently 45 years old, the actuary estimates how much money would have to be deposited in an interest-bearing account now to yield interest income and principle distributions in 20 years of $1,000 per month. This process includes an estimation of the long-range interest rates that would be in effect over that period of time. Actuarial evaluations of pension plans commonly cost on average approximately $250 to $1,000, which is an expense that has to be paid by the clients.

With a cash-out, the employed spouse receives his or her pension plan, with other community property assets being awarded to his or her spouse to result in an over-all equal division of community property.

  1. How do the courts deal with a closely-held business or professional practices?

Like any other asset, a business or professional practice must be considered in the valuation and division of community property. To the extent that a business or practice has been developed during the marriage, there is a community property interest that must be dealt with in the dissolution.

The most difficult and time-consuming aspect in determining the value of a business or professional practice is in evaluation of “goodwill.” This is the intangible value that most businesses have, which is based on the expectation of future business, based on established name or reputation. If the business or practice is operated by one of the spouses, it still has a goodwill value, even if it could not be sold on the open market.

Often, a business person or professional will say, “How can there be any goodwill . . . if I stop working, the office does not make any money?” The law’s answer is that the goodwill of a business or professional practice is valued as a “going concern.” That is, the law assumes that the business will continue operating and will not lose any customers or clients that would otherwise have been lost if it were sold to another owner.

Certified public accountants and business appraisers are hired to determine the value of a business or professional practice. The accountant or appraiser who is hired reviews the books and records of the business or practice and prepares a written report.

  1. How do courts handle the family residence?

Where minor children are involved, it is common for the custodial parent to be allowed to live in the residence with the children for a specified period of time after the dissolution of marriage is finalized. During that period of time, the spouse who lives in the home is usually required to make all mortgage, property tax and homeowner insurance payments when due. The house is generally sold when there are no children living at the property, the youngest child attains the age of majority, or any date as otherwise agreed by the parties or specified by the court.

  1. How do the courts handle educational degrees and professional licenses acquired during the marriage?

In California, where a spouse has earned a college degree or a professional license, the community estate is entitled to be reimbursed for the costs of acquiring the degree or license. These costs are normally limited to such things as tuition, fees and books. Unlike in other states, the law in California does not give the other spouse any right to a percentage of the enhanced earning ability of the spouse who acquired the degree or license.

  1. How can I make sure that I receive the court-ordered child/spousal support?

Unless waived by the recipient of such support, all child and spousal support orders must be paid by a wage assignment. This means that the support payment is deducted from the paycheck of the spouse who is ordered to make the support payment. There are other methods of enforcement including a writ of execution and levy on accounts charging order is an issuance of abstracts of judgments which create liens or real property.

  1. What happens if a spouse violates a court order?

If a spouse fails to pay the court-ordered child or spousal support, that party may be held in contempt by the court and punished accordingly. Such punishment can include a fine and/or imprisonment. Because a contempt can result in the offending spouse being put in jail, it should be considered only as a last resort.

A spouse or parent who is owed past-due support payments can obtain an “earnings withholding order” which can be served on the employer of the non-paying party. This can result in as much as 50% of the non-paying party’s net income being applied to the arrearage.

In addition, any spouse who is ordered to pay child support or spousal support and fails to do so can have his or her wages “assigned.” A wage assignment can be used to collect current support payments as they become due, as well as past-due payments. Deductions are made from the spouse’s paycheck by the employer and mailed directly to the other party.

  1. What grounds have to be shown to get a child or spousal support order modified?

In order for a court to modify an existing child or spousal support order, the court must find that there has been a change of circumstances since the last order was made. The most common change of circumstances is an increase in the income of the paying party, which usually results in an increase in the support order.

One exception is the case where the parent having custody of the minor children agrees to receive less child support than is indicated under the Minimum Child Support Guideline. When this happens, the custodial parent can later petition the court for a higher child support order, even if there is no evidence of that the other parent’s income is greater.

  1. I don’t like what the judge did in dividing up our community property? How can I get the judge’s decision modified?

The portions of a judgment that divide the community property cannot be modified. If you are dissatisfied with the judge’s decision, you may want to consider filing an appeal but there are time constraints on the filling of an appeal.

  1. What is the difference between an annulment and a divorce?

As a matter of law, a court’s granting of an annulment will have the same effect as the court granting a divorce. Some additional proof must be offered; nevertheless, such as fraud, in order for the court to determine that the marriage essentially never took place. Annulment is a rare proceeding as it affords no benefits that a divorce cannot offer other than for social or religious purposes.

  1. Does the Law Offices of William P. Glavin handle palimony matters?

For numerous reasons, people decide to live together but they do not get married. Although the motivation not to get married is typically a financial one, sometimes people do not realize that even without a marriage there can be legal implications to such a relationship. In California we have what are known as “palimony suits” which sometimes arise when a relationship wherein two parties lived together comes to an end. The impact of such a lawsuit can be devastating, both from the emotional and financial standpoint. Law Offices of William P. Glavin has experience preparing both agreements to prevent the making of such a claim in the event a relationship breaks off, as well as in handling lawsuits where a claim is asserted after a relationship ends

  1. Does the Law Offices of William P. Glavin handle International and Interstate Child Custody disputes?

In our ever more mobile society, it is unfortunate, but not uncommon that a disgruntled spouse will take a child to another city, state, or even country without the knowledge of the custodial parent. Such situations can be emotionally devastating to a parent, the child’s siblings left behind, and of course, the child who was abducted. These situations require the use of an attorney who is not only knowledgeable about the subject matter, but also familiar with the procedures involved in regaining custody of a child. Although federal and international laws have been designed to assist parents in regaining their children, unfortunately they are not adhered to by many jurisdictions. At these times, it is helpful to find an attorney who can arrange for legal assistance in the local jurisdiction or the use of private investigators if need be. Law Offices of William P. Glavin can be invaluable in helping a parent regain custody of a child who has been taken out of the jurisdiction.

  1. Does the Law Offices of William P. Glavin offer mediation services?

An ever-growing trend in the area of family law, individuals are now willing to place their trust in the hands of a qualified mediator who can assist them in terminating their marital relationship without protracted and expensive litigation. As attorneys who have been handling mediation for many years, Law Offices of William P. Glavin can assist clients in this process in a non-adversarial manner. Oftentimes, mediation is a speedy way of handling the marital termination and its attendant complications, after which both parties leave the situation in a satisfied manner.

The materials contained in this web site have been prepared by the Law Offices of William P. Glavin for informational purposes only. The information contained is general in nature, and may not apply to particular factual or legal circumstances. In any event, the materials do not constitute legal advice or opinions and should not be relied upon as such. Transmission of the information on this web site is not intended to create, and receipt does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon any information on this web site without seeking professional counsel.