All Posts By

Kathy Minella

faq-sign

Spousal Support FAQ’s

By | Family Law Blog | No Comments

Spousal support can become one of the most complex aspects of your California divorce. California family law recognizes that, in many marriages, one spouse has a higher earning capacity than the other. And in many families, one spouse – more often the wife – remains out of the workforce to care for the couple’s children. Of course, there are marriages where the wife has the higher income. The law addresses this imbalance by allowing courts to order one spouse to pay spousal support to the other spouse.

Spousal Support FAQs

  1. What is spousal support, and why should I care about it?

Spousal support is the legal term used for the payments one spouse makes to the other after a divorce. It’s intended to help maintain the former spouse’s standard of living during the marriage. When one spouse has either been out of the workforce for an extended time, or lacks the skills to quickly attain a well-paying position, the court awards spousal support to bridge the gap between the divorce and the time it takes for the person to obtain employment that will meet their costs of living needs. For the person paying support, it is often the largest financial duty incurred as part of the divorce. For the person receiving it, it is often a lifeline that helps them get back on their feet.

2. How is the amount of spousal support determined?

When your case is first filed, the court can make what’s called a temporary order for spousal support. These payments tend to follow a simple formula: take 40% of the higher earner’s income and deduct 50% of the lower earner’s income. At the end of your divorce, the court determines if one spouse is entitled to long or short term spousal support. In these cases, California’s Family Code requires the court to take a much more holistic approach and consider factors that include:

  • The marital standard of living.
  • Each spouse’s current income
  • The extent to which the earning ability of the spouse requesting support was harmed by being out of the workforce.
  • The assets, debts, and needs of each spouse.
  • The length of the marriage.

3. What is the 10-year rule?

Under California Family Code Section 4336, marriages of over 10 years are considered of “long duration.” In these cases, the law prohibits the court from setting a definite termination date for spousal support at the time it is ordered. While the court can find that a marriage of less than 10 years also qualifies as a marriage of long duration, spousal support in these instances is typically paid over a period that is equal to half the length of the marriage.

4. Does child support affect spousal support?

California law is clear that the most significant obligation owed by parents is the support of their children. In a divorce, child support has priority over spousal support. It’s not uncommon that once child support is ordered, there is little to no disposable income available to pay spousal support.

5. What happens if someone just stops paying spousal support?

All spousal support orders continue until they are terminated by the court or modified by a subsequent court order. A spousal support obligation cannot arbitrarily be stopped by the person paying. Any modification or termination must be done through proper legal channels. Failure to do so can incur substantial support arrearages, and the law imposes interest of 10% per annum on any unpaid balance. There can be other serious consequences, which a qualified family law attorney can discuss with you.

friend-banner

Why You Should Not Take Divorce Advice From Your Friends

By | Divorce | No Comments

Friends are there for you through thick and thin. They celebrate with you in good times and support you when times get tough. But though your friends may be successful, intelligent, and well-intentioned, their advice about your divorce can be harmful, especially about legal or financial matters.

One of the best pieces of divorce advice you can ever get is this: don’t listen to your friends. Here are five reasons why.

Friends Forget Every Divorce is Different

You are not your friends. You know each other well, and they undoubtedly have your best interests in mind, but your situation is unique. What worked for a divorced friend may not work for you. Don’t make choices during your divorce that could have serious and costly legal or financial consequences down the road. Most of all, don’t take advice that raises or lowers your settlement expectations. It’s an emotional rollercoaster you don’t want to ride. Even if you have a friend who is a legal or financial professional, unless they have specific expertise in asset division or family law, it’s best to talk with an expert.

Friends Don’t Know Everything About Your Situation

No one truly knows what goes on in someone else’s marriage. No matter how close you may be, the only person who knows what you’re going through is you. Friends may know how much you and your spouse make, what your home is worth, or even how much money you have in the bank. But they don’t know how those assets will be distributed in divorce, and more likely than not, they don’t know how to process your financial information legally or objectively. Well-meaning as it may be, a friend’s advice is coming from a different point of view.

Friends Don’t Know the Law

Unless your friends practice family law in California, they don’t know divorce law. Lots of people think they do, but secondhand knowledge or watching Divorce Court is not the same as understanding the actual law. California family law is complicated. You may hear, “it’s a 50/50 state,” but it isn’t that simple. From child support to equitable asset division, every divorce has its own nuances.

Friends are not Objective

Yes, people hire attorneys for their knowledge and expertise, but also for their objectivity. A good family law attorney acts as your advocate and takes an objective view of your situation. Your attorney cares about what you are going through, but is not emotionally involved, something your friends will find difficult to do. Friends just want everything to be okay for you – and that’s a good thing. But it doesn’t get you the best divorce settlement you deserve.

Friends are Worth Keeping

Even the friendliest divorces are stressful and your friends will want to try and smooth things over by sharing stories and giving what they think is helpful advice. But what if that advice turns out to be very bad? How will that affect your friendships? You may be angry that things do not go the way your friends assure you they will. It’s nice to know that friends are on your side, even if they like your spouse! Remember that this is your journey and your experience is different from theirs.

By all means, seek and listen to advice from friends during your divorce and look to them for sympathy and honesty. But be careful about following advice that is often best left to an experienced California family law attorney.

no-fault

What Does a No Fault Divorce Mean?

By | Divorce | No Comments

In 1969, California was the first state to sign no fault divorce into law. No fault simply means that things like extramarital affairs or abandonment are not of interest to the court as it applies to the actual divorce.

The official reason for divorce in California is “irreconcilable differences.” No fault means the court may not punish a spouse for hurtful actions when it comes to things like:

  • Division of martial assets, including the family home, bank accounts or investments.
  • Resolution of outstanding debts.
  • Spousal support.
  • Children support, custody, or visitation of children.

Irreconcilable Differences

The California family law court typically grants a divorce after finding that irreconcilable differences exist in the marriage. The California Family Code doesn’t set out a specific definition of just what constitutes irreconcilable differences, but it does require that the breakdown of the marriage be “substantial” and not “merely trivial.” In simpler terms, the court must rule on whether the marriage is beyond saving.

Exceptions to the Rule

There are instances when the court may consider “fault:”

  • Nullity (which invalidates a marriage as if it had never occurred).
  • Breach of fiduciary duty.
  • Custody.
  • Domestic violence.

Even in these cases, though, the wrongdoing must be relevant, not just an attack on the other spouse’s character. For example, if child custody is an issue, it is appropriate to note that a spouse has an alcohol or drug problem and recently received a DUI.

Breach of Fiduciary Duty

While it’s true California is a no-fault state, there is one area of misconduct that can influence a number of issues. If during the course of your divorce the court finds that one spouse breached their fiduciary duty to the other, there may be serious consequences.

In this case, the law allows the court to award one spouse 100% of a community property asset when the other spouse has not acted in good faith with respect to it. What this means is that neither spouse is permitted to take unfair advantage of the other just because they may have greater control of the community assets and money.

Consult an Attorney

Only one spouse needs to want a divorce to file for it under no fault law. If the other spouse does not want to divorce, there isn’t much he or she can do other than try to delay it through legal means. This often results in greater costs and, sometimes, the court may order payment of the other spouse’s attorneys’ fees for their unreasonable conduct.

Keep in mind that you can still get temporary orders for spousal support and/or child support, custody and visitation while your divorce is in progress. A consultation with a family law attorney will help you determine your best options.

magnify-glass-faq

FAQ: What Can I Do To Prepare For Divorce?

By | Divorce | No Comments

It’s said when you’re going through a tough time, it helps to know you’re not alone. In the U.S., there are approximately 2.4 million divorces per year, and nearly half of all marriages in California do not last. Divorce is often a painful and difficult time in your life, both personally and financially. Careful planning goes a long way in helping you navigate these until now unchartered waters.

How to Prepare for Separation and Divorce

Start by making a checklist. It will not only help you get your thoughts in order, it can be emotionally calming, as well. A sense of purpose goes a long way in instilling confidence. You want to gather together documents that will be used to determine your family’s expenses:

  • Five years of state and federal tax returns.
  • Three years of bank statements.
  • A recent credit report, which you can often obtain online for free.
  • Three years of credit card statements, individually and jointly held.
  • Current balances and monthly payment amounts on other debts, like a mortgage or line of credit.
  • Current pay stubs for both spouses.

Next, assemble all the documents showing the distribution of your assets and debts:

  • Both current and date of separation bank, brokerage, investment, or other financial accounts statements.
  • Both current and date of separation retirement account statements. If any retirement account existed prior to the marriage, include a statement from the date of marriage.
  • Appraisals for real or personal property.
  • Copies of any homeowner’s policies showing value of the contents of any residence.
  • If either or both of you own a business: five years of corporate tax returns, balance sheets, shareholder agreements, and profit and loss statements. You’ll also need copies of all business insurance policies.

Finally, make an inventory of all your marital property. A quick way to do this is by photographing or videotaping all the contents of your home or homes. Don’t forget the outdoors, and include cars, boats, recreational vehicles, etc. If needed, you can always create a list later which shows the actual value of the items.

Consult an Attorney

From separation to final divorce, remember to take your time and don’t create any unnecessary pressure on yourself. Do your research, and don’t make decisions based on what happened to a family member or friend. And most of all, understand the California family law legal process. 

You don’t have to immediately retain a family law attorney, but it helps to consult with one who can give you specific advice on your own issues. It isn’t easy to make sound decisions when you’re in a stressful situation and an attorney can advise you on how to avoid making mistakes that may affect your divorce as it moves forward.

Getting a divorce can be a financial disaster, which is why it is best to hire a lawyer who specializes in divorce or family law. They will know how to best protect your assets and guide you through the process with ease. For more information or to schedule a consultation, click the button below, or call us at 619-289-7948.  We look forward to helping you!

Schedule a Free Confidential Consultation
hands-on-bank

Bankruptcy and Divorce: How These Two Play Together in CA

By | Divorce | No Comments

In California, divorce and bankruptcy sometimes go hand-in-hand. One or both parties may find themselves unable to pay family debts, or one spouse may try to use a bankruptcy to give themselves a financial advantage. Most concerns about divorce-related bankruptcies fall into one of these categories:

  • The payment of joint credit card debt.
  • The payment of alimony or child support.
  • The enforcement of a property settlement.

First, a quick answer on spousal or child support payments. Section 523(a)(5) of the Bankruptcy Code prohibits in all chapters the discharge of any and all support obligations. Here are some other common scenarios where divorce and bankruptcy cross paths.

Spouse Files for Bankruptcy During Divorce

A divorce sometimes trigger a bankruptcy filing by one spouse. Unfortunately, this can prolong the process and complicate property division issues. California is a community property state, so even if only one party files for bankruptcy, all matters relating to community property and debts are frozen until the bankruptcy case is completed.

The only exception might be in cases involving pre- or post-nuptial agreements. Once a spouse files for bankruptcy, a bankruptcy estate is established that includes assets such as the family home, pensions, stock portfolios, or mutual funds that can be used for paying debts owed by the filer. All such debts must be paid before the bankruptcy can be finalized. However, the court can still hear testimony on and decide issues related to support.

Filing for Bankruptcy Before Filing for Divorce

If you know ahead of time that either one or both of you will be unable to pay certain debts after divorce, you might want to consider filing for bankruptcy jointly. Just be sure to do so before you file divorce papers.

Just like community property assets are divided between the parties, so too are marital debts. If only one spouse files, he or she is the only one entitled to have their debts discharged. If those debts were joint, this could leave the other spouse open to creditors trying to get payment from them. To avoid being left responsible for any such debt, it’s worth speaking with an attorney about filing for joint bankruptcy.

Enforcing Judgments

Along with support obligations being non-dischargeable under the Bankruptcy Code, all property settlements owed from one spouse to the other, or to a child, are non-dischargeable in a Chapter 7 bankruptcy. Some debts, however, are still dischargeable in a Chapter 13 bankruptcy, so due caution and consultation with an attorney are in your best interests.

Foreclosure and Bankruptcy

If you’re in the middle of a divorce and are served with foreclosure papers because you can’t keep up the mortgage payments, it can be a frightening time thinking you’ll lose your home. Filing a Chapter 13 bankruptcy will stop the foreclosure and gives your family some time to propose a debt restructuring plan. Even if you are unable to reach such an agreement, filing for Chapter 13 relief can buy you time to find another place to live that is more within your means. It can also give your family enough time to put the home on the market yourself, which is always better than what you’d receive from a foreclosure sale.

Remember, filing for bankruptcy during or after a divorce is not an effective way to avoid basic financial commitments that typically occur between spouses. Above all, if your spouse files for bankruptcy before, during, or after your divorce, do not ignore it. Speak to a family law attorney who will go over all your options to protect your interests in the community assets.

Getting a divorce can be a financial disaster, which is why it is best to hire a lawyer who specializes in divorce or family law. They will know how to best protect your assets and guide you through the process with ease. For more information or to schedule a consultation, click the button below, or call us at 619-289-7948.  We look forward to helping you!

Schedule a Free Confidential Consultation
business-divorce

5 Tips On Dividing Business Assets During a Divorce

By | Divorce | No Comments

Resolving financial issues during a divorce is often complicated. When there are business assets involved, it’s important to understand how California family law dictates they be divided. In most cases, the business is typically an asset and source of income for the divorcing couple. California is a community property state, so if you and your spouse owned a business during your marriage, you’ll need to start off by determining if the business and its assets are separate or community property.

This is done by establishing the business’

  • Source of funds
  • Valuation at time of separation or divorce
  • Start date of marriage
  • Each spouse’s business contribution

How to Divide Business Assets

Whether both parties continue to own the business, you decide to sell and divide the profits, or one spouse buys out the other, it’s essential to find ways to protect you, your family, and your business assets. Here are five tips to get you started. By the way, a pre-or post-nuptial agreement may waive your legal interest in the business.

If one exists, a family law attorney can explain more.

  1. Get a Fair Business Valuation. A business valuation properly values the business so you can divide its assets as part of your divorce. Keep in mind that, even if the business was owned by you or your spouse prior to the marriage, it doesn’t mean the other party receives no value from it. That’s because, per Family Code section 760, all economic value that is created during a marriage is presumed to belong to both spouses. Many factors come into play when valuing a business. Number of customers, size, and location will affect a valuation, as will intangibles such as intellectual property. If you own a small business that has maintained consistent revenue during the marriage, valuation will be much simpler. Depending on your situation, each party may want to obtain their own valuation.
  2. Consider Buying Out Your Spouse. If you and your spouse agree that one person will retain the business, you can arrange gradual payments to him or her. This arrangement can relieve a lot of financial pressure, but it does require the business to be a profitable one. It also requires a level of trust in the other to run the business in good faith.
  3. Look at Other Options. If either one of you is interested in owning the business outright, and you don’t like the idea of payments made over time, there are other trading options. You can swap the business for your interest in any real estate, investment accounts, or other assets. Just make sure you receive competent advice on how assets are divided during a divorce in California.
  4. Think Again Before Co-owning. It is the rare couple who want to stay connected, except for any children, after the divorce is finalized. A clean business break is a practical and wise decision. Each party should get their half of the value of the business (not the shares) and then move on to brighter pastures.
  5. Hire a Good Attorney. In this case, a “good” attorney means one who has your best interests in mind. There’s no reason a business division should prolong your divorce proceedings, especially if you plan ahead. Divorce is painful enough – work with an attorney who wants to make the process as quick and friendly as possible for you.

Dividing a family business in divorce is rarely simple and often requires specialized knowledge. Be sure to consult with an experienced California family law attorney before making any decisions on how to divide this important asset.

Getting a divorce can be a financial disaster, which is why it is best to hire a lawyer who specializes in divorce or family law. They will know how to best protect your assets and guide you through the process with ease. For more information or to schedule a consultation, click the button below, or call us at 619-289-7948.  We look forward to helping you!

Schedule a Free Confidential Consultation
move-away-ca

What California Law Says About Moving a Child After Divorce

By | Child Custody & Visitation | No Comments

A common issue in child custody matters is when one parent wants to move out-of-state, or a good distance away, usually for a new job or to get remarried. Under California law, if that parent wants to move and take a minor child out of the area, they usually need the consent of the other parent or a court order granting the move-away request.

There are always complex legal issues that come up if you are co-parenting, but live separately from the other parent. Moving out of state is one that requires the court to consider a number of factors before it can issue a modification of custody decision or previously issued move-away order. 

Some of those factors include:

  • What, if any, changes in circumstances have taken place since the original custody and visitation order was issued?
  • What impact will the move have on the child? Will it be beneficial or detrimental?
  • What is the moving parent hoping to accomplish with the move? Is the purpose for moving to prevent the other parent from having contact with the child?
  • What is the current custody arrangement? How much time does the child spend with each parent?

What California Law Says

In California, you typically cannot take your children out of the state when a divorce is pending. The lead ruling that applies to move-away situations if you are the sole custodian of your child is the California Supreme Court case In re Marriage of Burgess (1996) 13 Cal.4th 25. It states:

Where “one parent has been awarded sole legal and sole physical custody of a child and the noncustodial opposes the custodial parent’s decision to relocate with the child, a court may deny the noncustodial parent’s requests to modify custody based on the relocation without holding an evidentiary hearing to take oral evidence if the noncustodial parent’s allegation or showing of detriment to the child is insubstantial in light of all the circumstances presented in the case, or is otherwise legally insufficient to warrant relief.”

In cases where custody is jointly shared, the case of In re Marriage of LaMusga (2004) 32 Cal App 4th, 1072, is most frequently cited. If the other parent has frequent and continuing contact with your child, the court starts with the presumption the move will be detrimental.

The court will then seek to determine what is in the child’s best interests by:

  • Holding an evidentiary hearing; and/or
  • Ordering a custody evaluation; and/or
  • Appointing minors counsel.

If you are the parent who wants to move, and you share joint physical custody, you must show the court that the move is in your child’s best interest. Unless there are extenuating circumstances, such as abuse, your request to move being approved by the court may be helped if you can show the court how you plan to make it possible for your child to maintain a good relationship with the other parent.

Today, there are more ways than ever to do that. In addition to frequent physical visits, a parent can stay close to their child through email, or what the court calls “virtual visitation” such as Skype or Facetime. You need to show the court you are going to foster the relationship with the other parent.

The Best First Step, Great Legal Counsel

Regardless of which approach you take, you’ll need to show the court that moving your child is in his or her best interests. The rules in California family law are always changing. If you want to move away with your child – or you’re worried that the other parent wants to – talk to a lawyer. A family law attorney can help you understand how the law applies to your specific situation.

Minella Law Group is swift and professional on handling all adoption legalities.  For more information or to schedule an appointment, call us at (619) 289-7948. We look forward to helping you.

Schedule a Free Confidential Consultation
kid-at-park

FAQ: Can I Request Termination of Parental Rights?

By | Adoptions, Child Custody & Visitation | No Comments

It is possible to request termination of parental rights in California, but it’s often not granted. Termination of parental rights can only happen by court order and there are strict guidelines for doing so.

Termination of parental rights ends the legal parent-child relationship and terminates rights such as:

• Inheritance

• Custody

• Visitation

• Child support

• Liability for a child’s misconduct

Parental rights can also be terminated for an adoption or when the court finds either or both of the parents to be unfit. The court will only order termination of parental rights if there is someone else prepared to take on the care of the child.

How Termination of Parental Rights Happens in California

There are several ways termination of parental rights occur:

  • In Juvenile Dependency Court where the child, usually due to mistreatment, becomes a ward of the court. If the court finds one or both of the parents has abused, neglected, or abandoned a child, or if one or both parents are physically or mentally incapacitated,  termination of parental rights occurs to allow for adoption.
  • In Family Court Adoption proceedings where both birth parents voluntarily agree to termination of parental rights.
  • In Family Court Stepparent or Domestic Partner Adoption proceedings, where termination of parental rights is consented to by the non-custodial parent or where the court finds a parent has willfully abandoned a child.

Can Termination of Parental Rights be by Agreement?

California courts have ruled the parent-child relationship is the most fundamental right a child possesses. Parents are not entitled to stipulate away their duties and obligations to their child, and the courts have repeatedly found agreements to terminate parental rights are void and non-enforceable.

A parent cannot voluntarily relinquish their rights to avoid paying child support, even if the other parent agrees.

Abandonment and Willful Failure to Support

Even if you’re worried an absent parent will suddenly return and attempt to gain custody of your child, the courts do not consider this a reason to terminate parental rights. The exceptions are when there is a stepparent or domestic partner adoption, in which case the court may consider the absent parent’s abandonment and terminate parental rights without consent.

Consult an Attorney

Termination of parental rights is a serious issue, and a petition to terminate is not always granted by the court. You cannot have terminated because you’re upset with the other parent or don’t want them in your child’s life. This is a complex area of family law and you should consider speaking with an experienced California family law attorney about any questions you have regarding terminating parental rights.

Minella Law Group is swift and professional on handling all adoption legalities.  For more information or to schedule an appointment, call us at (619) 289-7948. We look forward to helping you.

Schedule a Free Consult
kids-with-man

How To Handle Co-Parenting Issues

By | Child Custody & Visitation | No Comments

Parenting is challenging under any circumstances, but if you’re co-parenting with an uncooperative former spouse, conflicts that were molehills during your marriage suddenly become mountains. In an ideal world, divorced parents develop a direct line of communication with each other on childcare issues, but sometimes lingering resentments or a plain old inability to get along can bring cooperation to a screeching halt. Co-parenting is difficult, here are some suggestions on handling co-parenting complications.

Read More

apps-on-tech

Top 5 Items Not to Post on Facebook While Going Through a Divorce

By | Divorce | No Comments

Social media and divorce do not mix. While one might think that complete deletion of all platforms- Facebook, Twitter, Tumblr, Snapchat, Instagram, and whatever else may become popular in the time that is posted- this is not always the case. Deactivating your account, can be viewed as though you are trying to hide assets or information from your spouse or their legal team. With Social media and divorce you must assume that everything you post can and will be seen by both your spouse (through mutual friends) and in turn their legal team. Social media and divorce hurts in several ways- personally it can make you seem weak or desperate, but perhaps most importantly it can provide ammo to your opposing legal team.

     1. Pictures

Pictures of you out with friends either drinking or partying should not be posted. Even if this is not a common occurrence for you, images such as these can be used as proof that you are an unfit parent and become evidence in a custody battle. Social media and divorce can turn into the main argument in a custody case.

     2. Status Updates

Social media and divorce tends to destroy the best things about social media in general, such as status updates.  It is great to post about the good things in your life but this can also hurt you. Avoid updates about going out, or speaking negatively about your soon to be ex spouse, or even the court case as all of this can be used against you in court.

     3.New Purchases

Retail therapy is a real thing! However posting about new purchases is can be detrimental to a claim for spousal support. Even if you are excited for a little bit of joy, this indicates a financial stability, either hidden in discovery or implying you don’t need spousal support.

     4.Workplace Humblebrags

Avoid openly bragging about bonuses or promotions at work. While this may seem like a way to show the world you’re doing very well post-separation, one might feel like this is the best use of Social Media and divorce, but it still is proof that you have financial assets that your spouse can go after.

     5.Private Messages

Remember that even your private messages are up for grabs in the discovery period. Do not put anything in writing that you do not want a judge to read as if it exists on social media, it can be found. Think of social media activity as both public and permanent.

These same rules apply to your former spouse as well. Social Media and divorce is not a one way street. Keep an eye on his or her accounts (mutual friends can be useful for this) for the same purposes- photographs or messages that hint at hidden assets or perjury on financial statements.

Most of all, remember to exercise control and common sense with Social Media and divorce. Just to be safe- stick to pictures of your pet and uplifting quotes. Assume that anything you post can be viewed by both your ex spouse, so be sure to present an image of a happy, stable, responsible person.

Navigating social media and divorce at the same time can be tricky! That is why it is best to consult with a lawyer who specializes in divorce or family law. They will know the best way to advise you regarding these sensitive issues.