Once the judgment of divorce entered, “long term” or “permanent”

Spousal support can be ordered (or agreed to by the parties) which can vary in duration to a very short term to a very long term based on a dozen or so factors specified in the law, all of which the court has to consider – factors such as the marital lifestyle, who put whom through school, the health of the parties, the length of the marriage, and many other factors. The courts can not use the temporary support formula to set long term support, but must consider these factors.

Because of this lack of specificity in the law, spousal support determination can be a costly endeavor in the courts.

In many cases the parties take the task of setting spousal support into their own hands and agree to a specific amount of support, or waive spousal support, in settling their case based on other considerations of their settlement. If the parties mutually agree to a spousal support amount, the court usually will allow their agreement to be made part of the judgment of divorce and will not second guess the parties.

Incorporating would also have some tax implications, including having income taxed at the corporate level and at the shareholder/employee level, depending on the form of corporation.

Problems arise when a corporation holds back paying the employee spouse and uses its income for savings, purchasing equipment, or other expenses – which may or may not be justified for business reasons.

That may have the effect of reducing the employee’s income. When the person obligated to pay spousal support has his or her income reduced after incorporating, the recipient of support will often want to examine the corporate books to look for income earned by the corporation but not distributed to the shareholder/employee. If this situation occurs, you can count on more attorney fees and costs, more discovery (such as subpoenas), and probably the need to hire a forensic accountant to determine the income the employee has available for support.

There are a variety of reasons people choose to file for legal separation instead of divorce – religious reasons, financial reasons, or perhaps you just have not resided in California long enough to qualify to file for divorce here.   To file for divorce in California, you must have resided in California for a minimum of six months AND in the county you’re filing in for a minimum of three months.  If you have recently moved to California and do not meet the above residency requirements, but you need to file paperwork now to obtain temporary orders for custody or support, your only option is to file for legal separation.

If you file for legal separation, then while the proceedings are still pending you decide you’d prefer a divorce, or if you did not meet the residency requirements before and now do, the process may be quite simple. You will use the same Judicial Council forms (Petition and Summons) that you used to file for legal separation, only this time you will need to mark each form “AMENDED” and, on the Petition, check the box for “Dissolution of Marriage”.  Caveat – if the other party has filed his or her Response to your first Petition or you have already filed an amended Petition, you will need court approval to file a new amended Petition.

There is generally no additional filing fee with the court, but you should check the rules for your county before you go to the courthouse to file the forms.  Once you’ve filed the amended forms with the court, your spouse must be served again by any adult other than yourself, just as before, and a Proof of Service of Summons must be completed and filed with the court.

Now for the exception…if you have already obtained a final Judgment of Legal Separation from the court and later decide that you would like a divorce, you cannot file amended paperwork as indicated above.  You will need to start over with a new case.

As you can see, amending a legal separation to a divorce can be complicated.  You may obtain the forms online at www.courtinfo.ca.gov.

The Family Law Facilitator’s office at your county’s courthouse should also be able to assist you with the forms, and we would be happy to help you as well, either with full or limited scope representation.  Please give us a call to discuss your options.

Starting the process for a legal separation requires the exact same steps as for a divorce – filing a Petition, Summons, and other required documents with the court and paying the filing fee (which is currently $355.00), as well as having your spouse served.  All of the same issues must be resolved by the court, including:

•    Child custody
•    Child support
•    Spousal support
•    Division of assets and debts

One major distinction between legal separation and divorce is that with legal separation, you do not have the statutory six month and one day waiting period for it to become final.  There is no waiting period for legal separation as there is with divorce.  Once all of the paperwork has been completed and properly filed with the court, judgment may be entered.  However, it is important to remember that a judgment of legal separation does not change your marital status.  You are still married to your spouse, and neither of you may marry or register in a domestic partnership with another person.  If you wish to remarry or register a domestic partnership, you must first obtain a divorce.

Because filing for legal separation requires the same attention to detail as filing for divorce, we encourage you to seek legal assistance.  Give us a call – we’ll be happy to help!

There are varying reasons why couples choose legal separation over divorce. Some are very personal reasons, such as religion.  Some faiths frown upon or even do not allow their members to divorce.  Other people may choose legal separation for purely practical reasons, such as when one spouse has health insurance or pension benefits through their employer, and if they divorce, their spouse will be left without these vital benefits.  Some health insurance plans, however, treat legally separated persons the same as divorced persons in terms of coverage. Legal separation can also provide protection for a separated couple who may be able to reconcile down the road but need to have custody and/or support orders in place while they work things out.

Probably the most common reason people choose to file for legal separation instead of divorce is that one party may not qualify yet to file for divorce where they live.  In order to meet the jurisdictional requirements to file for divorce in California, at least one party must have been a resident of the State of California for at least six months, and a resident of the county they want to file in for at least three months, before filing the papers.  These residency requirements, however, do not apply to legal separation.  Because you use the same paperwork to file legal separation and divorce, the person that wants to file can start with the legal separation and, once they have met the residency requirements, amend it to a divorce.

One final important note regarding legal separation versus divorce: if you file for legal separation and your spouse requests a divorce in their Response, a divorce will be entered instead of a legal separation.  Both parties must agree to a legal separation, whereas only one spouse needs to request a divorce.

If you decide a legal separation would be best for your situation, we are able to assist you along the way, whether through “limited scope” representation or full representation.  Give us a call.

Before you begin drafting your custody paperwork, there is some terminology included on the legal forms that you will need to understand.  There are two separate components to child custody which must be addressed in your legal documents – legal and physical:

• Legal Custody – the parent with legal custody has the authority to make decisions involving the children’s health, education, and welfare.  In most cases, the court will grant joint legal custody to both parents, with the expectation that the parents will be able to work together to make these important decisions in the children’s best interests.  Generally, the only time one parent is granted sole legal custody is if the other parent has:
  • demonstrated unfitness to parent;
  • disappeared; or
  • consistently refused to cooperate in the decision-making process

• Physical Custody – this is usually where the biggest conflict arises. Physical custody pertains to where the child actually resides. The types of physical custody are:
  • Sole physical custody – the children reside with one parent only, subject to possible visitation time with the other parent
  • Joint physical custody – the children reside with each parent on a set schedule.   Be aware, however, that joint physical custody does not necessarily mean the children are with each parent 50% of the time.

Obviously, the best physical custody arrangement is one that the parents make themselves.   But if the parents cannot agree, they will each be required to file a motion with the court for a judicial determination of custody.  A required component of this motion is a declaration stating that parent’s concerns with the other parent.  One major problem is that these declarations may involve mutual accusations which are not relevant to the custody proceeding and only serve to prolong animosity between the parents.  Also, you need to remember that any declaration you file with the court becomes public record.  Therefore, it’s very important that any declaration you draft include only facts relevant to the other parent’s ability to care for the children.  Engaging in “mud-slinging” could back-fire against you; instead, make sure that your declaration reflects your concern for the best interests of your children.  This is where assistance from an attorney can be helpful.

Before the custody hearing, both parents, as well as any children over age 5, will be required to attend custody mediation with a trained evaluator who works with the parents to reach agreements regarding physical custody and time-share with each parent.  If the parents still cannot reach an agreement, the mediator makes a recommendation to the court, and the court will normally adopt the mediator’s recommendation, taking the control out of the parents’ hands.  The fundamental flaw in all of this is that neither the mediator nor the judge knows you or your kids, and by making them make the decisions, you are risking a result that will not be beneficial for the parents or the children.

Parents who are able to work together can, and are encouraged to, create any custody schedule they want and amend it as the children’s needs change over time.   What may be a beneficial custody arrangement for a 3-year-old may not be a good arrangement for a 13-year-old, so flexibility is important.  Your children will also benefit enormously from the environment of cooperation between Mom and Dad during this period of upheaval.

The attorneys at Family Law Center have helped hundreds of parents create and implement custody arrangements without resorting to litigation. We also offer an affordable online course regarding Collaborative Co-Parenting at www.collaborativecoparenting.com.  Even if you need to resort to litigation, we can prepare you for mediation.  Whatever your need, we can help you…….give us a call.

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