Divorce / Legal Separation
Divorce / Legal SeparationThe issues surrounding the dissolution of your marriage, paternity matter or domestic partnership can be very complicated, emotional and often times contentious. We take great pride in our child focused approach to assisting our clients and their families through this very difficult time, providing counsel, compassion and understanding as you make those critical decisions that will forever impact your family.
Whether you are filing for divorce or were served with divorce papers, we understand that this is an extremely stressful time for your family.
For most, there is the fear and worry and you may find yourself asking:
Will I have enough money to live on? How much support will I have to pay?
How will I support two households when I was barely scraping by to afford one?
How will the children divide their time between two homes?
Will the children be manipulated by the other parent?
Will the children's wishes/preferences be considered by the Court?
How will our financial accounts, business, real estate and pensions be divided?
How will financial accounts business real estate pensions be divided?When a marriage ends, it is undoubtedly one of the most traumatic experiences you will endure. Where there was once one home and a monogamous relationship, now there are two separate households and both or one of the spouses is dating or in a relationship with someone else. You may find yourself feeling overwhelmed and powerless, not knowing where to turn for help.
A caring attorney who is experienced and familiar with the practice of family law is not only essential to protect your legal rights and interests, but can also help to guide you through the process as you make the many important decisions that you are facing which will have a long-lasting effect on not only you, but your children.
Historically speaking, divorces have been adversarial; however, the courts now encourage parties to work toward settlement. We agree that a fair settlement will serve to reduce the tension and stress that accompanies family law litigation.
Tammi L. Faulks strives to help clients to resolve issues in a professional and timely manner. We assist our clients in assessing their case in a calm and objective manner to determine the actual issues and work toward settlement before resorting to litigation. We provide our clients with personal attention and support to alleviate unnecessary stress and anxiety.
Frequently asked questions:
Q. How does the court determine who will have custody?
A. The court's primary focus is the best interest of the child. Family Code §3040 provides that the "court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, . . ., and shall not prefer a parent as custodian because of that parent's sex." In the event the court finds that custody to a parent is not in the child's best interest Family Code §3040 (2) goes on to state that custody would then go "to the person or persons in whose home the child has been living in a wholesome and stable environment and further states in Family Code §3040 (3) "to any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child."
How old does my son or daughter have to be before they can choose which parent they can live with?Q. How old does my son or daughter have to be before they can choose which parent they can live with?
A. 18. This is probably the most frequently asked question I receive. While the correct answer is 18, there was a recent amendment to the Family Code that provides children 14 and older more input into the decision of where they will live than they have had previously. Family Code section 3042 states:
(a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.
(c) If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child's best interests. In that case, the court shall state its reasons for that finding on the record.
(d) Nothing in this section shall be interpreted to prevent a child who is less than 14 years of age from addressing the court regarding custody or visitation, if the court determines that is appropriate pursuant to the child's best interests.
Q. What is physical custody?
A. Physical custody determines where the child will reside. Primary physical custody means the child lives with one parent the majority of the time. The other parent’s parenting time is often on weekends and/or during school vacations. With joint physical custody the child spends substantial amounts of time with both parents. Family Code §3020 provides "that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child"
Q. What is legal custody?
Legal custody determines which parent will be responsible for making major decisions in the child’s life. Family Code §3003 defines Joint legal custody as follows - "both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child."
Examples of the issues parents would be expected to confer on are:
Enrollment in or leaving a particular private or public school or daycare center;
Participation in particular religious activities or institutions;
Beginning or ending of psychiatric, psychological or other mental health counseling or therapy;
Selection of a doctor, dentist or other medical professional (except in emergency situations);
Participation in extracurricular activities;
Out of country or out of state travel;
Obtaining a driver’s license;
Obtaining a passport.
Examples of the issues parents would be expected to confer on are:
Enrollment in or leaving a particular private or public school or daycare center;
Participation in particular religious activities or institutions;
Beginning or ending of psychiatric, psychological or other mental health counseling or therapy;
Selection of a doctor, dentist or other medical professional (except in emergency situations);
Participation in extracurricular activities;
Out of country or out of state travel;
Obtaining a driver’s license;
Obtaining a passport.
How much child support will I have to pay?Q. How much child support will I have to pay?
A. Every case is as unique as the people we represent. The amount of support you will have to pay will depend on several factors including the wages and/or earning capacity of each party, the amount of time the child or children spend with each parent and certain expenses of the parties. just because your neighbor has the same number of children as you do and works at the same place does not mean you will each be paying the same amount of support. The Department of Child Support Services has a website where you can find many more answers to your child support related questions. They also have a child support calculator which you can use to estimate your child support obligation located at www.cse.ca.gov/ChildSupport/cse/guidelineCalculator. A basic understanding of Family Law and California and Federal tax laws may be necessary to accurately complete some of the fields contained in the calculator.
Q. How do I obtain a custody or visitation order?
A. To have a judge determine the appropriate parenting plan for your family you would file a Request for Order form FL-300. Before you can go to court to ask the judge to make a custody or visitation order you must first attend mediation. Before attending mediation many counties require that you attend their parent education program.
Q. What is the parent education program in Santa Maria, CA?
A. The class is called P.E.A.C.E. It is taught every Thursday (except Thanksgiving) promptly at 2pm in the Jury Services Building at the courthouse located at 312 E. Cook Street.
Q. Can an existing custody and/or visitation order be changed?
A. Yes. By mutual agreement between the parties or upon a showing of a significant change of circumstances.
Do I have to attend the peace class?Q. Do I have to attend the P.E.A.C.E. class?
A. YES. Parents who participate in custody mediation at Family Mediation Services need to complete this program PRIOR to the mediation. You need only attend the program one time, so it is not required that you attend the class before each mediation. If any parent has not completed the required parent education program by the date set for mediation, to the extent that is possible, the mediation date shall be reset to a later time to permit the parent(s) to first attend the program. The mediator may, at his or her discretion, proceed with the mediation if it is in the best interest of the children. In any case, the mediator will first require any parent who has not attended the program, and who has not obtained a waiver of the requirement to attend the class, to sign a written stipulation (agreement), which will become a court order, requiring the parent to attend the required program by no later than a specified date.
Parents attending mediation shall not bring children from the age of infancy to five (5) years of age, or the mediation may have to be rescheduled. Children six (6) to twelve (12) years of age must have an adult supervisor or the mediation will have to be rescheduled. The court may accept verification of attendance at an equivalent parent education program located in another county or state, if the attendance at our local program is found to be a hardship to a parent living outside the local area.
An order delaying or waiving the requirement of attendance at the parent education program may be obtained from the court upon a showing of good cause. Local Rule 1507
Q. How long will my divorce take?
A. There is a "cooling off period" of 6 months that must pass before your divorce can be final however every divorce is unique and depending on the circumstances of your case, the cooperation of the parties and the availability of the court, counsel and the parties it can take considerably longer than that to obtain a judgment.
Q. What is the difference between a legal separation and a divorce?
The only difference between the two is the ability to remarry. With both a divorce and a legal separation the court can make orders regarding custody and visitation, child and spousal support and property division. A legal separation may be the best option for a couple who has decided to live apart but for religious, medical or other reasons prefer not to end their marriage in divorce
How will our assets and debts be divided?Q. How will our assets and debts be divided?
California is a community property state. As such, all assets and debts of the marriage should be divided evenly between the parties. An "in kind" division is not required which would mean that each individual asset would be divided. All that is required is that the net value of the assets and debts be divided.
Q. How does the judge determine spousal support?
Family Code §4320 provides the court with criteria to consider when ordering spousal support. These factors are:
(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
(2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
(c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a "reasonable period of time" for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.
(n) Any other factors the court determines are just and equitable.
(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
(2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
(c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a "reasonable period of time" for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.
(n) Any other factors the court determines are just and equitable.
Do I have to go to court to get a divorce or legal separation?Q. Do I have to go to Court to get a divorce or legal separation?
A. No. If you and your spouse are able to reach an agreement on all issues related to the dissolution of your marriage and agreement can be drafted between you and no court appearance will be necessary.
Q. I've already filed for divorce, is it too late to mediate?
A. No. It is never too late to mediate. Any or all issues between you and your former spouse can be mediated prior to or even post judgment.
Q. What are the benefits of mediation?
A. Even though you and your former spouse have decided to terminate your relationship there are some issues you may still agree upon. Working together to determine how to share your children, divide your assets and debts or even what date to finalize your dissolution gives you more control over the outcome.
Q. What if we can't reach an agreement on all of the issues related to our divorce or legal separation?
A. A Marital Settlement Agreement can cover all or just a few of the issues in your dissolution and the unresolved issues can then be litigated.