Questions About Family Law

A Better Way to Resolve Family Conflicts

It can take years to complete a complicated divorce in court. In mediation, when the parties are willing and able to be flexible and collaborative, it can often take only a few weeks to resolve everything. Here are the fundamental issues to be settled as part of the dissolution of marriage:

Custody and time sharing

In California, there are two custody issues: Legal custody and Physical custody.

Legal custody refers to a parent’s right and responsibility to make important decisions regarding a child’s health, education, religious training, and general welfare. Legal custody may be joint (shared by both parents) or sole (held by one parent). In California, the courts generally prefer joint custody, unless circumstances such as conflict, neglect, or abuse make shared decision-making detrimental to the child’s best interests.

Physical custody is primarily defined as where the child sleeps at night, and who is responsible for daily care and supervision. Like legal custody, it may be joint, with the child spending significant time with both parents, or sole, with one parent designated as the primary caregiver, while the other usually has visitation rights. Decisions about physical custody are guided by the child’s best interests, considering factors such as stability, safety, continuity, and each parent’s ability to provide care. Mediation can support parents to develop a custody and time-sharing arrangement that works best for all concerned.

Child support

An important issue for any divorcing couple with children is the amount of child support to be paid. Fortunately, California has guidelines that are designed to resolve the issue on a uniform basis. The amount of support is based on two main factors: (1) how much you and your spouse earn, and (2) how much time each of you spends with the child(ren). Other factors such as health insurance, child care, and tax deductions may also affect the amount due. Child support is typically payable until the child reaches the age of 18 and has completed high school, or the age of 19. In mediation, the Guidelines can be a starting point to reach an agreed amount specific to your case, and acceptable to you and your spouse.

Financial disclosures

California law requires both spouses to be transparent in their finances and uphold a fiduciary duty to each other.  Specifically, there are three forms that parties must complete to complete the divorce process, whether with a mediator or in Court.  These forms are available here: Disclosure Forms 

The FL140 is the Declaration of Disclosure. It is basically a cover sheet that goes with the other two forms. You must attach your last two tax returns to this form and answer the questions on the form.

The FL142, Schedule of Assets and Debts, requires you to list all your assets and liabilities, and provide documentation, such as the latest bank statement, for each.  In appropriate cases, spouses can collaborate on this form or use one schedule for both of their information.  The more fully and completely this form is completed, the easier it will be to identify and divide assets and debts.  If there are separate property assets or debts, they must also be listed and designated by an “S” in the appropriate column.

The FL150, Income and Expense Declaration, forms the basis for awarding child and/or spousal support.  The income amounts are more pertinent for the Court, but the expense section is helpful in mediation if there is a desire to deviate, either upward or downward, from the state support guidelines. 

These forms are not filed with the Court but must be completed, dated, signed, and served on the other spouse. What does get filed is a fourth form (FL141) stating that you did all that.

Division of property

California is a Community Property state, which means that most assets and debts acquired during a marriage belong equally to both spouses. Community property includes earnings from work, retirement contributions, purchases made while married, and debts taken on by either spouse during the marriage. Upon divorce, community property is generally divided equally, regardless of whose name is on the title or who earned the income.

Separate property refers to assets and debts that belong to only one spouse. This includes property owned before marriage, inheritances or gifts received during the marriage. Income or assets acquired after the date of separation are also considered separate. However, issues can arise when separate property becomes commingled with community property—for example, when money from an inheritance is placed in a joint account. In such cases, careful tracing may be required to determine the right to reimbursement. Likewise, it is not unusual for one spouse to use their separate property for the down payment or to make significant improvements on a community property residence.  In that case, that spouse will be entitled to the return of those funds, but without interest or an increased percentage of the equity in the property.

Courts distinguish community and separate property to ensure fairness and clarity in dissolution cases. Your mediator will assist you with determining the separate, community, or mixed nature of a particular asset, and help you come to a settlement that most efficiently divides your assets, and feels as fair and equitable as possible to both of you.

Spousal support​

Spousal support, sometimes called alimony, may be ordered as part of a marital dissolution.

HOW MUCH?  Temporary spousal support is ordered while the divorce is pending. Its purpose is to maintain the living standard of both spouses during the legal process. Courts use the child support guideline program to also calculate the amount of temporary support, with the focus on ensuring immediate financial stability rather than long-term fairness.

Permanent spousal support, or long-term support, is ordered as part of the final judgment. Unlike temporary support, it is not based on a guideline formula but rather on numerous statutory factors under Family Code §4320. These include the length of the marriage, each spouse’s earning capacity, contributions to the marriage, age, health, and the marital standard of living. Permanent support aims to provide a fair financial balance after divorce. A permanent support order may be modified or terminated with changed circumstances. However, in mediation, the parties can agree to an order with a fixed duration and/or amount, or has a schedule that automatically reduces the amount over time.

HOW LONG?  Temporary spousal support generally lasts until the divorce is granted (a minimum of six months).  The duration of Permanent spousal support depends on the length of the marriage.  For a marriage of less than ten years, the presumption is that spousal support is payable for one-half the length of the marriage.  For marriages of ten years or longer, the Court will not set a termination date, but will leave the duration open, to be determined by circumstances after the divorce. Unless otherwise agreed, spousal support terminates on the death of either party or the remarriage of the supported spouse.

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