It’s common to have questions about alimony during divorce cases. The laws on alimony differ state to state. In California, alimony is referred to as spousal support and can be issued in two forms. Lonich Patton Ehrlich Policastri, experienced lawyers in divorce and separation, have broken down these two types to help you know what to expect.
When a couple is going through separation, they often wonder about alimony. Will they have to pay it? Do they qualify to receive it? How much will they receive? The truth is the answer varies case by case. Like many things in law, everything is specific to your case and your needs.
Alimony is a legal order to make support payments to one spouse during or after the divorce. In San Jose, there are two types of spousal support : Temporary and Permanent. Just because you qualify for one does not guarantee you’ll qualify for the other. Find out which one you may qualify for.
Temporary Spousal Support
The purpose of temporary support is to maintain the status quo of the household prior to divorce during the separation case. The time frame this is owed will vary depending on the case. A spouse will be ordered to pay temporary support until a judgement is reached. This can last as briefly as 6 months or up to several years. The amount you will receive is calculated via a software program. The gross monthly income for both you and your spouse is input into a computer program and processed. An amount for monthly payments is then submitted to the court along with who is responsible for those payments.
This type of support is common in cases where the primary breadwinner runs off and refuses to support the other partner. The other partner may have given up a career or education to stay at home and look after the family. This places them at a disadvantage and the court will often order temporary support to help. If the primary breadwinner refuses to pay support, the payments can be taken directly out of their paychecks. Temporary alimony can be issued in addition to child support.
Permanent Alimony
While temporary support is decided exclusively on gross monthly income, the court uses more discretion when determining permanent support. Both parties will go to trial over the amount owed. Factors that go into determining the amount to be paid and the length of payments are net income of both parties, if children are involved, age of both spouses, the health of both spouses and if both parties have a job or if one is in need of training. The purpose of permanent support is to transition the lower earning spouse into a lifestyle that is sustainable and allows them to be self sufficient. It is also to compensate the lower earning spouse for any damage caused to their earning potential. This refers to what we mentioned in temporary support; a case where one spouse gave up a career or education to be the homemaker.
The amount of time spousal support is owned depends on the length of marriage according to San Jose law. If a marriage is determined short term (less than 10 years), half the length of the marriage is typically rule of thumb but not guaranteed. Long term marriages (10+ years) are more open ended. They can be paid for 10 years or even longer. There’s no way to give a definitive answer to this as it’s determined on a per person basis.
Get In Contact
If you live in San Jose, CA and have questions about alimony, reach out to the experienced attorneys at Lonich Patton Ehrlich Policastri. They offer free 30 minute consultations. Find out your chances of receiving temporary or permanent support. If you have children, you can learn about child support as well.
Please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
https://www.lpeplaw.com/wp-content/uploads/2018/05/services2.jpg10001000Gretchen Bogerhttps://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.pngGretchen Boger2019-10-17 17:52:532021-12-22 19:55:34How Much Alimony Do I Qualify For?
Divorce is very nuanced. There are many things to consider which can make an already difficult situation more challenging. Lonich Patton Ehlich Policastri has put together a comprehensive guide of the most commonly asked questions. Get an answer to your divorce question now.
1.What Is The Difference Between Divorce Mediation And Divorce Collaboration?
Mediation is when a neutral third party is hired to facilitate resolution of issues between two people during a divorce. The mediator helps with paperwork, mutual communication between all parties, and securing 60%-70% of goals or desires are met for each party.
Collaboration is a binding contract between both parties and their attorneys stating neither will go to court. If this contract is breached, the parties will have to fire their attorneys and start the process over. Attorneys can help clients identify what’s important to them and how to work through issues. It is common to have non lawyer professionals involved in collaborative divorce. Mental health professionals, divorce coaches and financial specials can add clarity to emotions and difficulties that arise during the resolution of a marriage.
2. How Much Does It Cost To Get Divorced?
This is probably the most common divorce question. The answer is different for everyone. It depends on what issues you have. Do you have children? If so, you will need to deal with the issue of custody. How will your property be divided? Do you own a business together? What if one of you needs spousal support? Is there a post nuptial or a prenuptial agreement? All of these factors impact the cost of your divorce. The best way to find out what cost you’re looking at is to call an attorney. If you live in San Jose, Lonich Patton Ehrlich Policastri offers a free 30 minute consultation that can answer tough questions like this.
3. How Long Will A Divorce Take?
The answer for this divorce question is similar to the question above. It depends on your unique situation. The attorney you work with will need to know of any estate plans, businesses or property you and your spouse own. They will also need to consider any children and custody agreements involved. It depends on how much you and your spouse agree upon. If you go through mediation or collaboration, it could take less time than going through litigation.
4. How Is Property Divided In A Divorce?
In California, this comes down to two rules: Community property and Separate property. Separate property is anything you acquired before your marriage and that hasn’t been commingled or shared between the two parties during the marriage. If you owned a house before your marriage and have kept it separate from community property, that is added to your separate income when division begins.
Community property is anything acquired during the marriage or shared during the marriage. This includes a family home, cars, debts or anything earned or gifted during the marriage. Community property is divided during the dissolution of the marriage. This doesn’t mean it is necessarily divided in half. If you have two assets of equal value, one person may receive one while the other party receives the other; an example being a house and a retirement savings plan.
5. What Are My Rights During A Divorce?
You have rights protected under the Bill of Rights. You have the right to a fair trial; the right to a safe trial free of harassment from a spouse or their attorney. You have the right to see your child unless a court states otherwise. Speaking with an experienced attorney such as the ones at Lonich Patton Ehrlich Policastri is the best way to learn about your rights during your divorce. Get your questions answered in a free 30 minute consultation.
6. How Does The Court Decide On Child Custody During A Divorce?
Child custody is decided based on many factors. Often, during the case, temporary custody is assigned. This allows the child to have a stable routine they can depend upon and prevents their lives from being upended. Judges can be hesitant to change this plan when deciding on permanent custody as they don’t want to remove that stability from the child’s life. Temporary custody can be an indicator of the end result of child custody, but it isn’t guaranteed. Once divorce is filed, the state your child currently resides in becomes their home state. If a parent wants to move out of the state or relocate, this can affect the outcome as well.
Judges consider the wellbeing of the child over everything else. This means they will look into any history of mental illness, drug abuse or addiction, and financial stability (to name a few). Courts tend to favor the spouse who is able to put their differences and issues from the divorce aside for the betterment of the child. This means the more level headed you are, the better.
7. Does My State Have A Separation Requirement?
This is a crucial divorce question to research before filing. In San Jose, CA, there is no separation requirement. You must have lived in CA for 6 months before filing for divorce however. Once you have filed, you must wait another 6 months before the finalization of your divorce. If you file for legal separation in the state of California, there is no waiting period making it a great option for those who haven’t lived in the state for 6 months.
If you don’t know if your state has a separation requirement, the best way to find out is to research your state laws or contact a local divorce attorney.
8. How Do I File For Divorce?
This is another common divorce question clients ask. To be eligible for a divorce in CA, you must have lived in the state for 6 months. When it comes to counties, you must have lived in the specific county you file in for 3 months.
Before no fault divorce existed, a spouse had to provide a reason for the dissolution of marriage. This typically involves extramarital affairs or domestic violence and the practice is still common in some states. In California, all divorces are no fault which means one party can simply want a divorce from the other without providing a “fault.” This means that wrongdoing has no impact on the division of assets according to the judge.
After filing, there’s a 6 month waiting period for the finalization of divorce. You and your spouse can work collaboratively to make a plan for child custody and property division without legal assistance and if that doesn’t work you can seek help from a mediator. This is where you might consider collaborative divorce or mediation. The last option is divorce litigation which is also the messiest. This should be a last option if you and your spouse cannot agree on anything.
You may not need to go to court if you are able to resolve issues and division of assets through mediation or collaboration. This is an ideal situation and all papers can be filed with the court with a judgement on your case sent in the mail. Sometimes you may still be required to show up for a hearing in these cases.
If you opt for divorce litigation, the matter will be handled in court and this can be pricey. If you can avoid litigation, it’s in the best interest of everyone involved. However, at LPEP Law, they know how contentious divorces can get and understand not everyone will be able to settle their issues out of court.
10. How Do I Decide On A Divorce Lawyer?
You should make sure your divorce attorney specializes in family law and divorce cases. You want someone who has handled a myriad of divorce situations and will work to get you the best possible outcome.
Ask how many years of experience they have. If you’re going to court, do they know the court and the judges who preside there? Are they board certified? These are all important questions to ask when deciding on a lawyer.
In California, a marriage is dissolved by (1) the death of a spouse, (2) a final judgment of divorce, or (3) an annulment. Alternatively, if spouses do not want to completely end their marriage but do want to terminate their marital rights, they can (4) file for legal separation. Here is a look into each one:
(1) Death of a Spouse
When a spouse dies, dissolution occurs automatically, as a matter of law. This can be significant in family law proceedings if the spouse dies after divorce proceedings have begun, but before a final judgment of dissolution. In this scenario, spousal status is not officially terminated and the surviving spouse will still be considered “married” for inheritance purposes. Additionally, any pending dissolution proceeding is rendered moot at the death of a spouse and the court has no power to hear any remaining unresolved issues.
(2) Divorce
Divorce is the proceeding that legally ends the marriage or domestic partnership. Under Family Code section 2310, the grounds for divorce may be either “irreconcilable differences” or “incurable insanity.” Most marriages are dissolved on the ground of “irreconcilable differences.” A dissolution granted on the grounds of “incurable insanity” requires evidence – including competent medical or psychiatric testimony – that your spouse is incurably insane. In fact, this ground is so uncommon that there are no known reported decisions defining “incurable insanity” in the dissolution context. Further, it offers no tactical advantage so even if your spouse is incurably insane, pleading irreconcilable differences is much easier.
The determination of whether “irreconcilable differences” exist is essentially a ministerial function and is rarely a matter of contention. California is a no-fault divorce state, which means that any evidence of specific acts of misconduct (such as cheating, gambling, or heavy drinking) is improper. Courts recognize that ending a marriage is an intensely personal decision and only need to be convinced that the marital differences are substantial. Thus, direct proof of objective reasons supporting the divorce is not required.
(3) Annulment
An annulment declares the marriage was not legally valid – it was never entered into – and like other defenses to contracts, an annulment can occur if one party was not of sound-mind at the time of the marriage or if the marriage was procured by fraud.
A famous example of an annulment due to lack of capacity is Ms. Britney Spears’ 55-hour marriage to her high school friend, Jason Alexander, in Las Vegas. Ms. Spears sought an annulment stating that she “lacked understanding of her actions to the extent that she was incapable of agreeing to the marriage because she and Alexander did not know each other’s likes and dislikes, each other’s desires to have or not have children, and each other’s desires as to State of residency.” In other words, she was drunk and this was a joke that went too far.
Marriages can be annulled for fraud, if the fraud relates to a matter that California deems vital to the marriage relationship and the fraud directly affects the purpose of the party deceived entering the marital contract. Usually, annulments based on fraud involve the sexual and procreative aspects of marriage, such as a secret intention not to live with the other spouse or a concealment of sterility. False representations about earning capacity, wealth, or social status are not the type of fraud that will warrant a nullity. Nor will a failure to fulfill wedding vows or commonly understood spousal obligations, such as being a loving and supporting partner.
(4) Legal Separation
The grounds for legal separation are the same as those for a divorce but it does not end the marriage. Legal separation is an alternative to divorce, where the spouses do not want to completely sever the legal status of the marriage. Otherwise, a legal separation operates similarly to a divorce, separating all finances and property.
Spouses often seek a legal separation for religious or other personal reasons, or to retain eligibility for medical insurance, veteran’s benefits, or social security benefits that would have otherwise been lost by a divorce.
If you have any questions about the proper way to end your marriage, please contact our California Certified Family Law Specialists. Our attorneys have decades of experience handling complex family law proceeds and offer a free consultation.
Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png00Mitchell Ehrlichhttps://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.pngMitchell Ehrlich2014-08-08 16:02:352021-12-22 20:37:39The Ways to End Your Marriage
When parties consider divorce or separation they are rightfully concerned about their property. For example, parties may contemplate who will get the house, the dog, the cars, or even the family’s prized Dyson vacuum cleaner. But what about retirement benefits? They don’t typically rank at the top of the “coveted marital property” list, but maybe they should. If you have worked for an organization for most of your adult life, you and your spousemay be entitled to substantial benefits.
Under the California Family Code, retirement benefits are divisible community property assets and will be affected by divorce, legal separation, or termination of domestic partnership. Even if the party that earned the benefits has not yet retired and has no immediate plans to retire, all retirement benefits accrued during a marriage or domestic partnership are fair game when the parties decide to part ways. In fact, the non-earning spouse is generally entitled to fifty percent of any retirement assets accumulated during the marriage.
Division of retirement benefits can be complicated and may implicate complex tax issues. The Lonich Patton Erlich Policastri team, which includes several certified Family Law Specialists who are certified by the State Bar of California Board of Legal Specialization, offer decades of experience handling complex family law matters. If you are contemplating divorce, legal separation, or termination of a domestic partnership or have been served in an action for divorce, legal separation, or termination of a domestic partnership, please contact Lonich Patton Erlich Policastri for further information.
Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png00Gretchen Bogerhttps://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.pngGretchen Boger2013-02-07 10:39:582021-12-22 21:28:02Retirement Benefits: I Earned Them So They Are Mine, Right?
Prior to commencing a dissolution proceeding, a couple makes the decision to separate. Under the California Family Code, “separation” requires more than marital troubles. The parties’ legal date of separation occurs when the parties have come to parting of the ways with no present intent to resume their marriage and their conduct evidences a complete and final break in the marital relationship.
The date of separation is important to divorce proceedings because California Family Code section 771(a) states that earnings and accumulations while married persons are living separate and apart must be characterized as separate property. This means that following separation, each spouse’s income and earnings are their own property not to be shared 50/50 as community property.
The parties’ date of separation occurs when both a subjective and objective test have been met. First, either of the divorcing parties must have had the the subjective intent to end of the marriage, i.e., when one or both determined that reconciliation was no longer possible. Second, there must be objective evidence of conduct furthering that intent to end the marriage. In evaluating this factor, California courts will evaluate whether spouse acted or conducted him or herself in such a way that is consistent with the end of the relationship. Some examples of objective conduct might include whether the parties ceased sharing a marital home; actual physical separation of the spouses and obtaining new addresses; whether the parties continued conjugal relations; whether the parties maintained their family lives and continued to attend social outings together; or whether they continue to act jointly in financial matters. No particular facts are per se determinative of a date of separation. Rather, the court will consider all evidence of conduct that bears on the subjective intent of the parties.
When a couple decides to separate, it is important for the spouses to get in touch with an attorney to learn what steps are necessary to ensure the protection of their property. The San Jose family law attorneys at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. If you are contemplating divorce or separation, contact the San Jose divorce lawyers at Lonich Patton Erlich Policastri. Our Certified Family Law Specialists* can provide you with an in-depth analysis of your issues. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization
https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png00David Pattonhttps://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.pngDavid Patton2012-04-25 10:24:392021-12-22 21:30:16Defining the Date of Separation
Last month, the Wyoming Supreme Court ruled that the state’s courts have jurisdiction to grant the divorce of a same-sex Wyoming couple who legally married in Canada.
This decision slightly enhanced the rights of same-sex couples in Wyoming, but does not address the more controversial issue of whether Wyoming will permit same-sex couples to marry. Wyoming law defines marriage, in part, as a civil contract between a male and a female person. It also provides that all valid, out-of-state marriage contracts are valid in Wyoming. However, this rule is not absolute and is subject to certain recognized exceptions, such as marriages that are deemed contrary to the law of nature, such as polygamous and incestuous marriages, and those which the legislature of the state has declared shall not be allowed any validity because they are contrary to the policy of its laws.
In its opinion, the Wyoming Supreme Court took great care in ensuring the decision was sufficiently narrow, and expressly limited its decision to the issue of divorce in a footnote: “Nothing in this opinion should be taken as applying to the recognition of same-sex marriages legally solemnized in a foreign jurisdiction in any context other than divorce. The question of recognition of such same-sex marriages for any other reason, being not properly before us, is left for another day.” Christiansen v. Christiansen, 2011 WY 90 (2011). Recognizing a valid foreign same-sex marriage for the limited purpose of divorce, however, does not negate the law or policy in Wyoming against allowing the creation of same-sex marriages.
Same-sex marriage was, and continues to be a developing area of family law. New York first considered a similar case in early 2008 when a judge granted a divorce to a same-sex couple married in Canada.
In an effort to simplify the separation process for same-sex couples, the California Legislature recently made significant amendments to the governing law. The State Assembly adopted the Separation Equity Act of 2010 which clarified that same sex couples married outside the state are able to dissolve their marriage in California. Additionally, same-sex couples who married during the brief period in 2008 when it was legal will have the rights and benefits of married couples, including divorce.
If you have a family law matter and are interested in learning more on the law governing same-sex marriage or divorce in California, please contact the experienced Family Law attorneys at Lonich Patton Erlich Policastri for further information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
Did you just find out that your husband or wife wants ownership of a special piece of personal property or real estate that you acquired before you were married? If so, you should be aware of some basic rules in California family law.
First, California is a community property state. This means that all property acquired by spouses during marriage while living in California is presumed to be community property. However, property that is acquired during marriage by gift, bequest, or devise, or income from property acquired prior to marriage is presumed to be separate property of the receiving spouse. In addition, all property acquired by each spouse prior to marriage is presumptively the property of the owner spouse. Thus, if your spouse is currently twisting your arm to give you possession of a valuable asset you acquired before marriage, your spouse may not have any legal claim to this property.
However, under certain circumstances, your spouse may have a claim in your separate property. For example, if you owned a home before marriage but community funds were used during the marriage to pay down the mortgage, the community may have an interest in the home. In addition, if you purchased real estate or personal property during marriage with your separate property but agreed with your spouse in writing that you were converting this property into community property; your spouse may also have an interest in the asset.
For more information on California community property law, please contact us. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png00Julia Lemonhttps://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.pngJulia Lemon2011-01-06 09:16:352021-12-22 21:57:35“He Wants What?!” – The Basics of California Community Property Law
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