Divorce in Los Angeles California

What are the grounds for divorce in California?

First, it is called Dissolution in California. California is a no fault state which means that the Court will not examine which party is at fault in deciding issues such as the division of community property and support. There are, however, residency requirements. Either you or your spouse must have lived in California for the last 6 months, AND the county where you plan to file the divorce for the last 3 months. If you and your spouse have lived in California for at least 6 months but in different counties for at least 3 months, you can file in either county.

How do I start the dissolution process?

You must file and serve on your spouse a Petition and Summons. The Petition and Summons must be filed with the Court before you can serve it upon the other spouse. You are now the Petitioner in the action and your spouse is the Respondent. Unless you qualify for a waiver of the fee, there is a filing fee which at the time of writing is $320. The Petition and other court forms can be found at http://www.courtinfo.ca.gov/forms. If there are children you also have to serve and file a UCCJEA declaration regarding the children of the marriage.

What do I do if I am served with a Petition and Summons?

As the Respondent you have 30 days to file and serve a Response. Unless you qualify for a fee waiver, you must also pay the $320 filing fee. If you do not file and serve in time your Response, the Petitioner may apply for a default judgment.

Are there any other consequences of being served with a Petition and Summons?

Yes. First, the date of service starts the clock ticking for the earliest time when you can get a Judgment of Dissolution. The marital status of the parties cannot be terminated any earlier than 6 months after the date when the Petition and Summons were served. Second, the Summons has automatic restraining orders which are applicable to both parties. If either party breaks one of these orders they may be held in contempt of Court.

These orders provide that both parties (1) may not remove either of the children of the marriage from the State of California without obtaining the written consent from the other, or a Court order, (2) may not cash, borrow against, cancel, transfer, dispose of, or change the beneficiary of any insurance or other coverage held for either’s benefit, (3) may not transfer, encumber, conceal, or in any way dispose of any real or personal property without the written consent of the other or a Court order, except in the usual course of business or for the necessities of life. Further, if either party wishes to make any extraordinary expenditure, they must notify the other at least five days before they incur the expense, and in the event that they make any such expenditure, they must be prepared to account to the Court. Parties are not, however, precluded from using community property to pay reasonable attorney fees in order to retain legal counsel in this action.

What happens after the Petition and Response is served and filed?

Often the parties will attempt to agree on issues such as temporary custody and visitation and temporary child and spousal support. Agreements on these matters are often incorporated into a written Stipulation and Order and filed with the Court. If the parties cannot agree on these issues they may file an Order to Show Cause and request the Court to decide these issues for them. If custody and visitation is in dispute, the Court will first send them to Conciliation Court where a trained mediator tries to help the parties agree on a parenting plan. In Los Angeles conciliation services are free. An appointment can be made by calling conciliation services at (213) 974-5524. If the parties still cannot agree, the Court will make a temporary custody and visitation order that is in the best interests of the children. The temporary order will continue until the parties can reach an agreement or until custody and visitation is resolved after a trial.

What happens if the parties can agree on all issues?

If the parties can agree on all issues in the dissolution, that agreement can be incorporated into a Marital Settlement Agreement or a Stipulated Judgment. A court appearance is not usually necessary in this situation. However, the Court will require that each party has made full disclosure of all their assets and liabilities and also any business investments and opportunities. Each party is required by California law to file a preliminary and final "declaration of disclosure" with the Court that they have served an Income and Expense Declaration and Schedule of Assets and Debts on their spouses. The final declaration can be waived by the written agreement of the parties. The disclosures will list each spouses community property assets and debts and separate property. Most disputes involve the extent and valuation of community property assets. If a spouse tries to hide assets, we can employ various discovery tools and force the other side or a third party to turn over financial records. In complicated cases it may be necessary to employ the services of experts such as forensic accountants, appraisers and pension specialists.

Do all community assets and debts have to be divided equally?

Generally yes. There are exceptions such as personal injury awards. This equal division is usually accomplished by dividing the assets and debts equally or by awarding an equal value of assets and debts to each party.

© 2007 Warren R. Shiell. All rights reserved. The information contained in this website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

By Warren R. Shiell Esq., Attorney at law, at http://www.la-familylaw.com

Debts in a California Divorce

My spouse ran up huge credit card debts during the marriage. In dividing assets and debts in the settlement agreement who should be responsible for these debts?

In California, Family Code section 910 provides that the community is liable for all debts incurred during the marriage and prior to separation. It doesn’t matter whether the debt was incurred by one spouse for there own benefit or for the family. It also doesn't matter whose name appears on the bill or the credit card statements. If it was incurred during the marriage and prior to separation it's a community property debt and both spouses are equally liable. This means that when the parties are negotiating a settlement and tallying the marital balance sheet such debts should be divided equally. A better option might be that one spouse agrees to pay off the joint debts in return for a greater share of the community property. The spouse paying off the debts can at least make sure that joint debts are paid because as long as debts are jointly owed both spouses are financially responsible to the creditors.

What if a married couple pays off one parties pre-marriage debts?

Consider this example. Bob and Jackie get married. Bob has huge credit card debts that he incurred before the marriage. Bob and Jackie want to improve their credit rating so they can buy a house. They agree to pay off Bob's debts. However, once they are debt free, Bob files for dissolution. In this case, Bob and Jackie have used community property earnings to pay off Bob's separate property debt. California case law states that the community is entitled to a re-imbursement for the amount it paid to discharge one parties separate property debts. 1 So in the above example, the community is entitled to a reimbursement for paying Bob's debts.

What if one party uses their separate property to pay off community property debts?

In this example after they get married Bob and Jackie go on vacation and rack up huge debts. Jackie dips into her brokerage account which she built up prior to the marriage to pay off the vacation debts. In this case, Jackie has used her separate property to pay off community debts. California case law states that a spouse who, during marriage and before separation, uses separate property to satisfy a community debt is presumed to make a gift to the community. 2 So in the above example, Jackie is not entitled to a re-imbursement for paying the community vacation debts.

There is one important exception to his rule. Family Code section 2640 provides that where one party uses their separate property for the acquisition of community property, the paying spouse has a statutory tracing right of reimbursement if they have not waived the right in writing. Contributions to the acquisition of property include downpayments, payments for improvements, and payments that reduce the principal of a loan used to finance the purchase or improvement of property. They do not include payments of interest on a loan to purchase property, or payments for maintenance, insurance, or taxation of the property. So in the above example, if Jackie had used her separate property brokerage account to pay off the principal on a joint mortgage or for a downpayment she would be entitled to a reimbursement of that amount.

After separation one spouse uses their separate property earnings or property to pay off community debts.

In this example after Bob and Jackie separate, Jackie continues to drive the BMW which was purchased with a loan during the marriage. Bob continues making the loan payments on the car. Can Bob claim a reimbursement credit for all the payments he makes from the date of separation to the date of trial?

California case law has developed the general rule that a spouse who, after separation, uses earnings or other separate property to pay pre-existing community obligations should be reimbursed out of community property upon dissolution. 3 These are traditionally called "Epstein credits" after the California Supreme Court case that established the rule.

Under this general Bob could, in theory, claim credits for all the payments he makes on the car loan after separation. But what if Bob was driving the car and making the payments. Wouldn’t it be unfair for Bob to have the use of the car and also claim reimbursement credits? That's what the Court said in Epstein. It laid out an exception to the general rule where the paying spouse also uses the asset and the "amount paid was not substantially in excess of the value of the use." So this means that Bob could not claim credits for the monthly payments if he drives the car but probably could claim a credit if he paid of the entire loan.

There are two other important exceptions to the Epstein general rule that a spouse who uses separate earnings or property to pay off pre-existing community obligations is entitled to a reimbursement: (a) where there is an agreement between the parties that the payments will not be reimbursed, and (b) where the payments were intended as a gift or as child or spousal support.

After separation one spouse uses community property funds to pay of their living expenses. What are the consequences?

In this example, Bob and Jackie separate and Bob agrees to pay $1000 per month in support and "whatever else you need out savings." Jackie takes out $1,000 community property from the joint bank account to pay various living expenses. California case law provides that the community is entitled to re-imbursement where one spouse uses community property to pay separate obligations after separation to the extent that exceed a reasonable amount for child and spousal support. 4 A reasonable amount would probably be the amount of guideline support that a Court would order in an application for temporary child and spousal support. If that amount were $1,500, in the above example, Jackie would have to reimburse the community $500 ($2,000 - $1,500 she received). In the division of community property she would receive $250 less in community property. Since this rule flows from Epstein, the parties can waive the rule in writing and agree that such payments shall not reduce the community estate.

After separation one spouse stays in the family home while the other spouse pays the mortgage. What are the consequences?

It's often the case that after separation one spouse moves out of the family home ("the out-spouse") while the other spouse stays in the home with the children ("the in-spouse"). The out-spouse, usually the husband, may offer to maintain the status quo by continuing to pay the mortgage payments and other payments such as property taxes to maintain the property. In such a situation the in-spouse should be warned that there may be serious consequences of such an arrangement at the time of trial.

We've already seen one consequence. The out-spouse paying the mortgage payments may be entitled to Epstein credits because they are paying separate property earnings towards a community property debt unless there was an agreement to waive such reimbursements or such payments were a form of child or spousal support.

The other major consequence is that if the reasonable rental value of the family home is more than the mortgage payments, the in-spouse may be required to re-imburse the community for the difference in these payments between the date of separation and the date of trial. These are called Watt's charges after the case that established the rule. 5. The general rule is that where one spouse has the exclusive use of community assets during the date of separation and trial, that spouse may be required to compensate the community for the reasonable value of that use. Consider this example. Bob and Jackie separate. Jackie and the kids stay in the family home after separation. Bob agrees that he'll continue to support the family and pay the mortgage and other expenses. The mortgage payments are $1,500 per month. If Jackie had to pay the fair market rent for the property she'd pay $2,500 per month. Bob pays the mortgage for 10 months from the date of separation to the date of trial. Bob could argue that he should be re-imbursed Watt's charges of $10,000 ($2,500 - $1,500 x 10). In a division of community property he'd be entitled to an extra $5,000. Bob could argue that he should also be entitled to Epstein credits of a further $15, 000 ($1,500 x 10) which would increase his share of community property by $7,500.

This would mean that Jackie's entitlement to community property would be reduced by $25,000 when she thought that Bob was supporting her and maintaining the status quo? Isn’t this grossly unfair? 7. You'd think so but that didn’t stop the Court of Appeal awarding Epstein credits and Watts charges in similar circumstances in In re Marriage of Jeffries (1991) 228 Cal. App. 3d 548. But wait a minute. Isn’t there an exception to the rule where payments are made "in lieu of spousal support?" The answer is yes "but" this has to be clearly spelled out before the Court will treat such payments as support. In Jeffries, there was even an Order of the Court that said the payments were "in lieu of spousal support." However, the Order also said that the Court retained jurisdiction to characterize these payments and determine whether the Husband should be entitled to reimbursements.

In another case the Court of Appeal reached exactly the opposite conclusion to Jeffries. 6. In this case the husband also paid the mortgage pursuant to a temporary court Order "in lieu of spousal support" and at trial claimed Epstein credits and Watts charges. The Court of Appeal held that public policy and the language of the Court order required that the Court deny the husband's claims for Epstein credits. The Court then decided that since the wife was, in effect, paying the mortgage she would not have to pay any Watt's charges because the monthly mortgage payments were the same as the fair market rental value of the home.

The only solution to this mess is for the parties and their attorneys to agree early on in the proceedings whether a spouses payment of community debts (such as the mortgage) and one spouse living in the family residence should be treated as spousal support which does not generate Epstein credits or Watt's charges. If it's treated as spousal support any agreement or Order should contain explicit language that mortgage and other payments by the out-spouse and exclusive residence by the in-spouse in the family home "shall be treated" as spousal and child support and the paying spouse shall not receive any reimbursements such as Watt's, Epstein, Jeffries credits and charges.

Who is responsible for credit card debts?

Family Code 2623 (a) provides that debts incurred after separation but before the judgment of dissolution are confirmed to the spouse who incurred the debts if they are for "non-necessaries of life" of the spouse or the minor children. If they are incurred for the "necessaries of life" of the spouse or the minor children, then they will confirmed to either spouse according to each parties needs and abilities to pay when the debts was incurred, unless there's a written agreement or order for support.

Generally, debts incurred during the marriage shall be divided between the parties. However, Family Code 2625 gives the court the power to assign a debt incurred during the marriage to one spouse if it "was not incurred for the benefit of he community." 8 Further, Family Code 2602 provides that the court may also award an offset against a party's community share if it finds that amounts were deliberately misappropriated by a wrongdoing spouse.

Footnotes:

1. Marriage of Walter (1976) 57 Cal. App. 3d 997.
2. See v. See (1966) 64 Cal. App. 2d 778. In Re Marriage of Nicholson (2002) 104 Cal. App. 4 289, the Court of Appeal held where Husband had used $30,000 that his mother had given him as a gift (i.e. separate property ) to pay off the credit card ( community property debts) so they could qualify for a loan to buy a house, he was not entitled to a re-imbursement.
3. In re Marriage of Epstein (1979) 24 Cal. 3d 76. Also In Re Marriage of Tucker (1983) 141 Cal. App. 3d 128.
4. Epstein, above; In re Marriage Stalworth (1987) 192 Cal. App. 3d 742.
5. In re Marriage of Watts (1985) 171 Cal. App. 3d 366.
6. In Re Marriage of Garcia (1990) 224 Cal. App. 3d 885.
7. This is the conclusion of one Family Law Commissioner: "It is fundamentally unfair for one spouse to move out and to allow a post-separation living arrangement to stabilize on one set of financial assumptions and then, without warning to the other spouse, introduce for the first time at trial a concept as pernicious as a Watts credit claim to set up an entirely different set of financial assumptions." Commissioner Richard Curtis (2003)
8. Marriage of Cairo (1988) 204 Cal. App. 3d 1255. Gambling debts incurred on credit cards during marriage assigned to Husband.

© 2007 Warren R. Shiell. All rights reserved. The information contained in this website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

By Warren R. Shiell Esq., Attorney at law, at http://www.la-familylaw.com

Wage Assignments in California

What is a wage assignment?

A wage assignment, also called an Order/ Notice to Withhold Income for Child Support, requires an employer to make a deduction from a parent's paycheck to pay child, spousal and/ or medical support. The amount of the wage assignment is based on the most recent court order; however, the amount can be increased if the past due support grows.

Why do I have a wage assignment?

Federal and state laws require a wage assignment in almost every case where there is a child support order. Wage assignments are ordered, even if payments are currently being made. A wage assignment helps children get their child support on time. Wage assignments can also help you by providing a payment record.

How long will it last?

Wage assignments continue until there is no longer any child support or arrears owed.

Can I be fired?

No. It is against the law for an employer to fire an employee because the employee has a wage assignment. If you think this has happened, you may want to speak to an attorney.

Is my employer required to follow a wage assignment?

Yes. A wage assignment is a legal document served on your employer. If the employer does not follow it, your employer can be held in contempt of court.

What if my employer is deducting payments but I am not receiving credits?

Your employer has been given instructions for processing wage assignments. Although your employer is required to deduct and send payments on your behalf, you are responsible for making sure that your payments get to the local child support agency in a timely manner. Check your child support statements and keep your pay stubs to make sure you are receiving proper credit. If there is a problem, contact your local child support agency immediately.

How much can be take from my paycheck?

Generally, up to 50 percent of your net wages can be taken for child support, but in special circumstances, up to 65 percent. If the total of your support order is more than 50 percent of your net income, your full support obligation will not be covered.

You are responsible for paying the difference. If your support order is more than 50 percent of your net income, it is possible that you are eligible for a change in your child support order. Ask the local child support agency to review your case for a modification of the child support order.

What if change jobs?

You must notify the local child support agency every time you change jobs. You must also notify the local child support agency if you become unemployed. Even if you are not working, you are still required to make payments every month. You should immediately contact the local child support agency about modifying your child support.

Some important points!

• Your employer is only allowed to charge up to $1.50 administrative fee for each deduction.
• You can dispute the amount owed by filing papers at any time.
• You have 10 days from the date you receive a copy of the wage assignment to dispute the amount before the withholding occurs.
• Once the child support payments are received by your employer it should be sent to the custodial party within 2 business days.
• Not paying child support can result in criminal penalties. If you intentionally quit your job to avoid paying support, you may be held in contempt of court.

© 2007 Warren R. Shiell. All rights reserved. The information contained in this website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

By Warren R. Shiell Esq., Attorney at law, at http://www.la-familylaw.com

California Summary Dissolution - The Easy Way to Get Divorced

There's a quick, easy way to get a divorce called a summary dissolution. In a summary dissolution you won't have to talk to a judge you will only need to fill out a few forms.

Not everyone is qualified to get a summary dissolution; most people will need a regular divorce. To qualify for a summary dissolution you must meet all of the following requirements:

1) You have been married or registered domestic partners for less than 5 years.
2) You have no children together, including adopted children, children before or during the marriage or partnership, and neither is pregnant.
3) You do not own or have any interest in houses, condominiums, rental property, land, or a 1-year lease or option to buy.
4) You have built less than $5,000 in debts since the date of marriage or registered domestic partnership.
5) You do not own more than $33,000 worth of property that you acquired during the marriage or domestic partnership.
6) You do not have "separate property" worth more than $33,000 dollars, which does not include money you owe on the property or auto loans.
7) You both agree than you will never get spousal or domestic partner support
8) Finally you both must sign an agreement that divides your property and debts called a "property agreement".

There are courts in each of California's 58 counties where you can file the forms. The proper court to file your forms at is the court where you and your spouse live right now. Most likely you need to pay a fee for a summary dissolution, which usually costs $200. If you don't make much money you can ask the court for a fee waiver, if the court gives you the waiver you don't have to pay the court fees.

After you’ve filed your property agreement, summary dissolution, and joint petition you must wait 6 months. During those 6 months you won't be divorced and you can't get remarried until you finish the summary dissolution. If you decide you want to stop the divorce you can file a FL-830 with the court. When your 6 months is up to finalize your divorce you’ll need to fill out a request to judgment, which is form FL-820, and file it with the court.

Your divorce is finalized as soon as you receive the "endorsed-filed copy".

This article was brought to you by Legal Forms Bank .Biz which provides your state's Uncontested Divorce forms, prenuptial agreement forms, and power of attorney forms.

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