10 Important Laws you Need to Know (if you’re getting a divorce)

We’ve compiled some of the most important statutes and laws that pertain to California Divorce. While there are many more that may be at issue in your separation, we thought this would be a great primer. We will definitely follow up with a ‘Part 2’ of this article soon!

1.    Spousal Support (Family Code Section 4320): While pre judgment spousal support is generally calculated using a formula, long term spousal support is determined by review of various factors. Some of the factors the court considers include:

–      Age and health of the parties

–      Marital standard of living

–      Debts and assets of each party

–      Duration of marriage

–      The ability of one spouse to pay spousal support

–      Possible need for retraining or education to the supported spouse

–      Periods of unemployment for one party who stayed home to tend to domestic duties.

2.    Domestic Partners (Family Code Section 143): This law clarified that “spouse” includes “registered domestic partner.” All references to “husband” and “wife” in the family code now apply to domestic partners as well.

3.    Temporary Spousal Support (pre divorce) (Marriage of Samson, Marriage of Stanton (2010) 190 CA4th 547): A change of circumstances is required to modify a temporary spousal support order. An example would be one spouse losing their job or the other receiving a raise at their employment.

4.    Calculating Child Support (Family Code Section 4055(a)):While it’s a lot easier to calculated child support using the Department of Child Support services calculator, we get a lot of people asking us about the actual formula. FC 4055(a) specifies it.

5.    Attorney Fees (Family Code Section 271): In addition to California statute’s that provides that a spouse may seek attorney fees from his/her ex if they have ‘need’ and the other spouse has the ‘ability to pay,’ there are also laws that are awarded as sanctions for one spouse’s bad behavior in litigation. One such statue is Family Code Section 271 which authorizes fees to a party if their spouse (or his/her attorney) has “frustrate(d) the policy of the law to promote settlement and reduce the cost of litigation by encouraging cooperation between the parties and attorneys.”

6.    Date of Separation (Family Code Section 70): DOS is critical in cases where spousal support or property and debt are at issue. Spousal support duration is largely dependent on length of the marriage. Property and debt are generally considered ‘separate’ if they were acquired after the date of separation. Family Code 70 defines DOS as the the date the spouse expressed to the other spouse his or her intent to end the marriage and “the conduct of the spouse is consistent with his or her intent to end the marriage.”

7.    Dividing Stock Options (Marriage of Nelson (1986) 177 CA3d 150): Stock options are community property to the extent they are attributable to services rendered during the marriage and before the parties’ separation (even if exercisable at a later time). In apportioning community and separate property interests in stock options, the court doesn’t have a fixed rule. The judge must adopt an “equitable method of apportionment.” Often times the court looks to the ratio that the time worked between the date of the stock grant and the date of separation bears to the time worked between the date of the grant and the date the option was is first exercisable.

8.    Child Custody (Family Code Sections 3002 – 3007): This is where you can find the legal definitions of legal and physical custody. In short, legal custody refers to the health, safety and welfare of your kid(s) while physical custody refers to where and with whom the child(ren) will live.

9.    Property Reimbursement (Marriage of Epstein (1979) 24 C3d 76): This case authorizes (but doesn’t mandate) one spouse to be reimbursed by the other spouse for using post separation funds (usually earnings) to pay community (joint) debts and bills.

10. Omitted Assets (Family Code Section 2556): ‘Forgot’ to divide an asset or even list it in the Judgment? This law gives the court the ability to divide any community estate assets or liabilities that weren’t previously divided in the divorce action. The court will either divide the asset/debt equally or, if they find “good cause that the interests of justice require an unequal division of the asset or liability”, the asset or debt may be divided differently or even assigned to one spouse in its entirety.

**Please note that this article pertains to existing California law and is meant for informational purposes only. Please do not make decisions that will affect your future based on things you’ve read in this post. Instead, consult with a Certified Family Law Specialist – It doesn’t have to be us, but be sure to seek out sound legal advice that pertains specifically to the facts of your case.

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