Divorce can dramatically impact your financial and emotional well-being for years to come… in some cases, for a lifetime. When children are involved, the stakes are even higher, for you as well as your children.
At Youngman Ericsson Scott, we understand what you are going through during this difficult time. We also understand that, given the emotions involved, you may be tempted to give up—that is, to settle for less than you need and deserve just to make the whole situation go away. Don’t give up! While we will pursue a non-contentious resolution if the other party is being reasonable, we are prepared for all possible scenarios and are willing to fight on your behalf to protect your interests.
During your initial consultation, we will take the time to understand all of the relevant issues in your situation and explain your options. We will give you our opinion about the best course of action and the step by step process involved in achieving your goals. Then, we will handle every aspect of your case personally, as efficiently and cost-effectively as possible.
We offer all of the following family law services and more:
Divorce and Legal Separation
Child Custody and Visitation
Pre and Post Nuptial Agreements
Protect your rights, interests, children and future. Contact us today to schedule a personal consultation. Many of our clients say they feel a greater sense of hope and well-being after meeting with us for the first time. We look forward to speaking with you.
Q: How is a divorce different than a legal separation?
A: A divorce terminates your marital relationship and restores you to single status. A legal separation keeps your marital status intact, and you and your spouse remain married. However, in a legal separation the court has the same authority as in a divorce to divide your property and issue orders related to child custody, visitation, child support, and spousal support.
Contact an attorney at Youngman Ericsson Scott, LLP to learn more about the difference between divorce and legal separation, and to help you determine which option is best for you.
Q: Do I have to prove anything to obtain a divorce or legal separation?
A: No. California is a no fault state, which means you do not have to prove that your spouse did something wrong. You only need to state that you and your spouse cannot get along by citing irreconcilable differences in your petition for divorce or legal separation.
Q: What county should I file for divorce in?
A: In order to file for divorce in any county in California, you must have lived in California for six (6) months and in the county in which you intend to file for three (3) months.
If you do not meet these requirements, you may file for legal separation and then amend your petition to divorce once the residency requirements are met.
Q: How long does it take to get divorced?
A: Every case is different, which means how long it will take depends on the individual facts and circumstances of your case. Generally, the more complex your case is, the longer it will take for you to get divorced.
There is a mandatory waiting period of six (6) months and one (1) day from the date your spouse is served with your divorce petition for the court to enter your dissolution granting you and your spouse single status.
Q: How will our property and debts be divided?
A: California is a community property state. For a court to divide your property and debts, it must first determine whether they are community property, quasi-community property, or separate property.
Community property is generally everything you and your spouse own together or acquired during your marriage that is not a gift or inheritance. Community property also includes all debts acquired during your marriage regardless of whose name the debts are in.
You and your spouse each own one-half of your community property. The courts will typically divide all community property equally between you and your spouse.
Quasi-community property is any property that was acquired by you and your spouse while living in a different state, that would have been community property had it been acquired while living in California. For purposes of division, quasi-community property is usually treated the same a community property.
Separate property is property that you or your spouse owned prior to your marriage, or acquired after your date of separation. In addition, inheritances and gifts to either you or your spouse while married are generally the separate property of the spouse who received the gift or inheritance. For purpose of division, separate property will generally remain separate property.
Property can also be both separate and community property. When this happens, it can be quite complicated to determine how to divide it.
Youngman Ericsson Scott, LLP attorneys can assist you with determining the nature of your property and how to divide it.
Q: My divorce is taking a long time. Can I terminate my marital status before resolving the other issues in my case?
A:Possibly. Depending on your case, you may be able to ask for a bifurcation of marital status. You may only request a bifurcation of marital status if six (6) months and one (1) day has passed from the date your spouse was served with your petition for dissolution, and you have completed your preliminary declaration of disclosure. In addition, if you, or your spouse, have any retirement accounts that are required to be joined to your divorce, they must be joined prior to your request for a bifurcation of marital status.
Furthermore, prior to requesting a bifurcation, there are some conditions that must be given thought to determine if a bifurcation is best for you. These include, but are not limited to, retirement plans, medical insurance coverage, and tax liability issues.
Contact Youngman Ericsson Scott, LLP to assist you with weighing the advantages and disadvantages of a bifurcation of marital status.
Q: What steps should be taken once I am divorced?
A: You should close all joint accounts and credit cards, or remove your spouse from any individual accounts or credit cards. You may also need to transfer title of your vehicle through the Department of Motor Vehicles.
Additionally, you may need to change the beneficiary designations on any employer retirement accounts, individual retirement accounts, life insurance policies or annuities, health insurance savings accounts, transfer on death investment accounts, and payable on death bank accounts.
Lastly, you may want to consider revising any wills, health care powers of attorney and living wills, powers of attorney, revocable trusts, and advanced estate planning structures such as irrevocable trusts.
Contact Youngman Ericsson Scott, LLP to discuss revising your estate plan.
Q: What is mediation?
A: Mediation is the process in which a neutral third party, a mediator, helps you and your spouse reach a settlement relating to your legal issues out of court. It is usually a voluntary process.
To find out if mediation is right for you, contact Youngman Ericsson Scott, LLP.
Q: What is child custody and visitation?
A: There are two components to child custody: legal custody and physical custody.
Legal custody involves the right and responsibility to make decisions involving your child’s health, safety, and welfare. This includes decisions about where your child shall attend school or daycare, whether or not your child will engage in religious activities or be involved with religious institutions, whether your child will be involved in sports or extra-curricular activities, who will be your child’s medical care providers, and what medical treatments your child will receive.
The court has the authority to order joint legal custody or sole legal custody. Joint legal custody requires both you, and the other parent, to share in all the decisions relating to your child. Sole legal custody gives the right to make decisions regarding your child to either you, or the other parent, and does not require consultation with the parent without legal custody.
Physical custody refers to whom your child will live with during or after a divorce or legal separation. The court has the authority to order joint physical custody or sole physical custody. Joint physical custody means that your child resides with both you, and the other parent, on almost an equal basis, while sole physical custody means your child lives primarily with you, or the other parent, and visits the parent without physical custody.
Visitation, otherwise known as “time-share” or “parenting plan,” is the schedule by which you and the other parent will spend time with your child. Visitation may be according to a set schedule, open-ended so that you and the other parent may work it out among yourselves, and/or supervised.
Q: How does the court determine child custody?
A: Child custody is determined according to what is in the best interest of your child. When a court considers what is in your child’s bests interest they look at several factors. These include: the age of your child, the health of your child, any history of domestic violence or substance abuse by you or the other parent, your child’s ties to you, their school, and the local community, and you and the other parent’s ability to care for your child.
To learn more about child custody and visitation contact our office to schedule a consultation.
Q: What is child support?
A: Child support is the amount of money you, or the other parent, is ordered to pay every month to support your child and pay for your child’s living expenses. The amount of child support is typically determined according to California’s statewide formula, often referred to as “guideline” support. In calculating “guideline” support, the court takes into consideration gross income, the amount of time your child spends with you and the other parent, tax filing status, mandatory retirement and union dues, and health insurance expenses along with other considerations.
You and the other parent are allowed to make a child support agreement that is different than the “guideline” amount as long as your child’s needs are being met. If your child support agreement is below the “guideline” line amount, child support can be changed to “guideline” without having to show a change in your circumstances.
Q: What is spousal support?
A: Spousal support, otherwise known as alimony, is money that one spouse pays to help support the other spouse after the filing of a dissolution or a legal separation. When a court determines the amount of spousal support, they consider many factors. The factors include, but are not limited to: standard of marital living during the marriage, the length of the marriage, the age and health of each spouse, earning capacity and job histories of both you and your spouse, the obligations and assets of each spouse, tax consequences, and any history of domestic violence between you and your spouse.
Spousal support can be a complex legal issue. Attorneys at Youngman Ericsson Scott, LLP can help you determine the amount of support, how long it should last, and understand the tax consequences of spousal support.
Can I be responsible for any debts my spouse incurs after we have separated?
If you and your spouse have separated, and you see that your spouse is incurring lots of debt, you may be wondering if you are responsible for any of it. The answer is it depends.
The general rule in California is that a spouse ceases to be responsible for any debts incurred by the other spouse once they have separated. However, this rule has an exception, and the exception depends upon when the debt was incurred and what the debt was for.
There are two time periods you need to be aware of after you and your spouse separate. The first is the time between your date of separation and the date your judgment of dissolution is entered, and the second is the time after your judgment of dissolution is entered. During these two periods, there are three categories of debts that a spouse may incur. They are: common necessaries of life, necessaries of life, and non-necessaries. Common necessaries are any items that are necessary to sustain life and include things such as food, clothing, housing, and medical care. Necessaries of life, like common necessaries of life, are any items that are necessary to sustain your spouses’ station in life. Non-necessaries are any items that don’t fall into the other two categories.
Between your date of separation and the date your judgment of dissolution is entered, you could end up being responsible for your spouse’s debts if the debt was incurred for the common necessaries of life or the necessaries of life for your children. Specifically, section 2623(a) states, “debts incurred by either spouse for the common necessaries of life of either spouse or the necessaries of life of the children of the marriage for whom support may be ordered, in the absence of a court order or written agreement for support or for the payment of these debts, shall be confirmed to either spouse according to the parties’ respective needs and abilities to pay at the time the debt was incurred.”
To better understand this, let’s assume that every year prior to your separation, you and your spouse took a trip to New York for your work conference. You both made lots of friends at the conference and your spouse enjoyed attending the conference. Now, you and your spouse have separated. Your spouse attended the conference this year using money loaned money from a friend and is insisting that you pay for the trip. Are you responsible for this debt? No. Your spouse voluntarily chose to attend the conference and it is not a common necessary of life or a necessary of life for your children.
However, now assume that your spouse has lost their job and has had to move in with friends. Your spouse has no savings or investments, and has been paying for food and rent with a loan. You on the other hand, are steadily employed and have a decent income. Are you responsible for the loan? Likely, yes. The debts incurred are necessary for your spouse to live, and your spouse has no way to pay them. You have a decent income, so you have the ability to pay.
While you may be on the hook for common necessaries of life and necessaries of life, you will not be responsible for any non-necessary debts incurred by your spouse. These types of debts are specifically the responsibility of the spouse who incurred them. Family Code section 2623(b).
For example, after you separated, your spouse went out and bought a brand new Porsche in their name alone with a loan from a bank. However, after you separated, your spouse took one of the two cars you both owned that is in good condition. Are your responsible for the loan on the Porsche? Likely no since your spouse did not need the Porsche.
Once the court has entered a judgment of dissolution, you cease to be responsible for any debt your spouse may incur regardless of what the debt is for. The debt becomes the sole responsibility of your spouse. Family Code section 2624 states, “Debts incurred by either spouse after entry of a judgment of dissolution of marriage but before termination of the parties’ marital status or after entry of a judgment of legal separation of the parties shall be confirmed without offset to the spouse who incurred the debt.”
To illustrate this, assume a judgment of dissolution has been entered in your case and your spouse has opened a credit card to pay for rent and food. Can you be responsible for the credit card debt? No, because your responsibility for any debts incurred after separation ceased when the judgment of dissolution was entered.
In a divorce, may an immigrant spouse enforce their right to support based on the I-864 Affidavit of Support their spouse submitted when he/she applied for the immigrant spouse’s permanent residence?
Immigration issues are frequently seen and discussed in the press; however, little is said about immigration issues that may arise in a divorce proceeding. As an immigrant, or as a spouse of an immigrant, it is important to know what your rights and responsibilities are in a divorce. This blog will focus on the issue of support for an immigrant spouse.
When a spouse thinks about support during divorce what commonly comes to mind is spousal support. Although spousal support is at issue, immigrants, or spouses of immigrants, also need to be aware that there is another type of financial support that may be at issue.
When a spouse files to bring an immigrant spouse to the United States, the spouse is required to complete an I-864 Affidavit of Support. The purpose of this form is to show that the immigrant spouse has adequate means of support and will not rely on the government for support. Specifically, “the non-immigrant spouse is agreeing to provide support to the immigrant spouse at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable.” 8 U.S. C. §1183(a)(1)(A).
Up until recently, the issue of whether a family court may enforce the I-864 Affidavit of Support had not been decided. This issue was decided by the First District Court in the case of Marriage of Kumar, 13 Cal.App.5th 1072 (2017).
In Kumar, husband was born in Fiji and a United States citizen. Wife was a citizen of Fiji. They married in Fiji in an arranged marriage. In order for husband to bring wife to the United States, he filed an I-130 Petition for Alien Relative, and the petition was approved in December 2012. Husband also signed an I-864 Affidavit of Support, which he submitted to the federal government in April 2013.
In July 2013, wife entered the United States and began living with husband and his family. She immediately began being abused by Husband. Wife claimed that husband and his family tricked her into taking a trip to Fiji with husband in December 2013. She further claimed that once there, husband tore out the page in her passport which had her legal permanent resident stamp, and abandoned her. Wife was only able to return to the United States in late December 2013 after she obtained temporary travel documents from the United States embassy.
In January 2014, husband filed for annulment, and in the alternative, a dissolution of marriage. Wife filed a response in which she requested the dissolution be granted and the annulment denied.
The court held a hearing on the issue of spousal support in May 2014. At the hearing, husband and wife agreed that husband would pay wife $675 per month in spousal support. However, wife disagreed with husbands request for a seek work order and a Gavron warning on the ground that she could not seek work because husband had taken her permanent residency card. In support of her argument, wife mentioned the I-864 Affidavit of Support. Despite wife’s argument, the court gave wife a Gavron warning, but did not issue a seek work order.
Approximately 4 months later, husband filed a request to terminate spousal support arguing that wife had not made any efforts to become self-supporting. In response, wife argued that she could not work since she did not have a work permit due to husband taking her green card, and that support should continue because husband swore to the federal government he would take care of her per the I-864 affidavit. In spite of wife’s argument, the trial court terminated spousal support and told wife to file a federal case to enforce the I-864 affidavit.
This case was appealed by wife. On appeal, the First District reversed the trial courts ruling, holding that an I-864 affidavit is an enforceable contract, and that a sponsored immigrant has standing to bring an action to enforce it in state court, including a state family court.
In making their determination, the appeals court noted five conditions in which the I-864 affidavit may be terminated: (1) the sponsor dies, (2) the sponsored immigrant dies, (3) the sponsored immigrant become a US. Citizen, (4) the sponsored immigrant permanently departs the U.S., or (5) the sponsored immigrant is credited with 40 qualifying quarters of work. Id. at 1078.The court specifically noted that divorce is not one of the conditions.
The court also looked to federal immigration law, which states that the sponsor agrees “to submit to the jurisdiction of any Federal or State court for the purpose of actions” of enforcement. 8 U.S.C. §1183a, subd. (a)(1)(B) & (C). The court found that the immigration statute was clear. “A sponsored immigrant has independent standing to enforce the obligation of an I-864 affidavit against her sponsor, and may bring such an enforcement action in state or federal court. Kumar, 13 Cal.App.5th at 1079.
Husband argued that the I-864 affidavit is not enforceable in an action brought under state law to enforce support because the Federal Pre-emption Doctrine in not applicable to state support law. The court found that Husband’s argument missed the mark since Wife correctly recognized the right of support conferred by federal law exists apart from whatever rights a sponsored immigrant may have under state divorce law. Id. at 1081. Husband also argued that the I-864 affidavit was not enforceable in a dissolution action, but in a civil trial court. The court disagreed with Husband stating that there is no “separate ‘family court’ jurisdiction. In practice, the superior court exercising jurisdiction under the Family Code is known as ‘family court.’ But there is no separate ‘family court’ per se. Rather, ‘family court’ refers to the activities of superior court judicial officers handling litigation arising under the Family Code.”Id. at 1082-1083.
The court also determined that a sponsored immigrant seeking to enforce the I-864 affidavit has no duty to mitigate damages. Id. at 1085. This means the sponsored immigrant does not need to seek work.
How does a domestic violence restraining order against a parent affect child custody and visitation?
Domestic violence is an issue that often arises in divorce and child custody cases. In some cases, claims of domestic violence are used to gain an advantage over the other party in the proceeding, while in other cases, domestic violence is a very real issue and the victim of the abuse needs protection. Given this, it is important to understand how domestic violence may affect your right right to child custody and visitation if a court makes a finding of domestic violence in your case.
A finding of domestic violence means the court has heard all of the facts, and based on those facts has reached a legal conclusion – that being that domestic violence has been committed by a party in the case. A finding of domestic violence can seriously impact the perpetrator of domestic violence rights to child custody and visitation. This is because the legislature has declared that it is “the public policy of the state to assure the health, safety, and welfare of children when determining the best interest of the children when making custody orders.” Family Code section 3020(a). They have also declared that the perpetuation of domestic violence in a household where a child resides is detrimental to the child. Id.
To promote the policy, the court is required to apply the presumption that an award of sole or joint physical custody or legal custody of a child to the perpetrator is detrimental to the best interest of the child whenever a finding of domestic violence is made in a case involving child custody and visitation. Family Code section 3044(a) specifically states, “Upon a finding of domestic violence by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical custody or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to section 3011.”
Although this presumption is in place, the perpetrator of domestic violence may still be able to get custody by overcoming the presumption by a preponderance of the evidence. When the perpetrator seeks to do this, the court must consider seven factors. Pursuant to Family Code section 3044 the factors are:
Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical custody or legal custody of a child to the perpetrator is in the best interest of the child;
Whether the perpetrator has successfully completed a batterer’s treatment program that was a minimum of 52 weeks;
Whether the perpetrator has successfully completed alcohol or drug abuse counseling if appropriate;
Whether the perpetrator has successfully completed parenting class if appropriate;
Whether the perpetrator is on probation or parole, and has complied with the terms of probation or parole;
Whether the perpetrator is restrained by a protective order or restraining order, and complied with its terms and conditions; and
Whether the perpetrator of domestic violence has committed any further actions of domestic violence.
While a court may not require the perpetrator of the abuse to complete a batterer’s intervention program, enroll in drug or alcohol abuse counseling, or complete a parenting program when a domestic violence restraining order has been granted, it would only benefit the perpetrator to do so as it strengthens their argument for child custody. This is because a court must receive evidence that a perpetrator of abuse has completed the requirements deemed by the court necessary to rebut the presumption. Jason P. v. Danielle S. 9 Cal.App.5th 100 (2017).
In the event the perpetrator is not able to overcome the presumption, the perpetrator may be awarded visitation with their child. Under Family Code section 3100(a), reasonable visitation shall be granted unless it is not in the best interest of the child. The court shall consider supervised visitation, suspending or denying visitation, and why the restraining order was granted and how long ago it was issued when determining if there should be visitation. Family Code section 3100(b). A court must specify the time, day, place, and manner of transfer of the child when visitation is granted. Family Code section 3100(c).
Some people may believe, and the courts have even ordered, an equal parenting plan even though the perpetrator of domestic violence was unable to overcome the presumption. However, as decided in the case of Celia S. v. Hugo H., 2 Cal.App.5th 655 (2016), this may not be done.
In Celia, the parents were unmarried and had two minor children. They followed a 50/50 parenting plan in which the children alternated living with mother for one week and then father for a week. In January 2015, father went over to mother’s house for dinner. Mother claimed that father pulled her out of the chair she was sitting in by her hair. Mother tried to push father away and he punched her in the ribs and stomach. Mother and father then proceeded to argue so the police were called and father was arrested. The next day, mother filed a domestic violence restraining order and the court granted a temporary order. The temporary order granted her sole legal and physical custody of their children.
At the hearing on the restraining order, the court heard conflicting testimony from father and mother. Mother testified that father had pulled her hair and punched her in the ribs and stomach. Father testified he never touched mother. Nonetheless, the court issued a one year permanent restraining order against father. The court granted mother sole legal and physical custody, but did not change the parenting plan despite acknowledging Family Code section 3044. Mother appealed.
On appeal, the court held that a court cannot circumvent the presumption by ordering a 50/50 parenting plan because doing so is an abuse of discretion and a subversion of the law. The nature of the order must be determined based on the order’s legal effect, not the label attached to it. Id. at 658. The legal effect of a 50/50 parenting plan is essentially joint physical custody because under Family Code section 3007, joint physical custody exists where a child spends significant time with both parents. Id. at 663.
Given the affect the presumption has, it is also important to know that it applies to custody cases in California even when an out-of-state court makes a finding of domestic violence. Ellis v. Lyons, 2 Cal.App.5th 404 (2017).