No one is saying that Divorce is easy, but it doesn’t have to be more difficult than it already is. Having the right attorney to help you with your divorce and help you work through the issues that will arise will make the process easier for you.  If you have children, having the right attorney to help you maintain focus on your children and guide you through child support and child custody decisions will take a huge burden off of you so that you are better able to be the best you can be for them.

Visit our office to receive informational brochures on your divorce options and to get a free copy of Carol Delzer’s book “Collaborative Co-Parenting.”

At Family Law Center our attorneys always seek to resolve divorce, child custody, and family law issues peacefully, but when the opposition decides to wage war, we will roll up our sleeves and advocate for you.

With the family law attorneys at Family Law Center, you will have expert, hands-on guidance every step of the way in your divorce or family law matter. We will work with you to formulate the best strategy and guide you through the entire process.

You and your children deserve the best legal team in the greater Sacramento, Yolo, Placer, ElDorado County area, one that is well-versed in all aspects of family law – from divorce and child custody to paternity issues and complex marital property divisions and business valuations.

Family Law and divorce matters are not something you want to do alone, and hiring the right team is not something you can afford to leave to chance.

At Family Law Center we understand divorce matters and that you matter to us.  We take a 360-degree view of divorce and family issues, recognizing that this is often the most trying time anyone ever faces. Our firm was created specifically for people who need a lawyer who will be there for you and your children.

Let Family Law Center handle your divorce matters and show you how we can help you face this challenging time with superior legal strength, expertise, and efficiency. Schedule a confidential consultation today.

Legal custody is the decision-making process about the children’s health, education, and welfare.

Physical custody is where the children are going to live. The courts require that the parents select “joint” or “sole” physical custody. Joint physical custody does not necessarily mean equal or 50/50 parenting time. It does mean that both parents have a substantial amount of time with the child.

The family court requires a determination of Legal Custody and Physical Custody in the court ordered parent plan or child custody agreement.  Family courts encourage parents to have joint legal custody and share in the decision-making process. When parents can share the decision making process of how to care for the medical decisions of their children and where their children will attend school it is more likely that they will be able to coparent and raise the children cooperatively. In rare cases when parents are unable to cooperate or one parent is unfit to make decisions regarding the children, the court will award sole legal custody to the parent who is the primary caretaker or parent who is best suited to make the legal custody decisions for the children.

Physical custody is different.  There are many parents who choose a parent plan where one parent is going to be the primary care taker and have the children the greater percentage of time.  When this is the case this parent will have sole physical custody.   If one parent has sole physical custody, the other parent will have parenting time outlined in the specified custody order or agreement.  The physical child custody agreement may also be joint physical custody when both parents are sharing the children’s time on a continuous frequently basis. To learn more about the best custody program for you and your children call Family Law Center for an appointment with one of our custody family law attorneys.

You will discover that your choices are as much a part of you as the breath you take.  You may have thought up to this point that in life a lot of things just happen along the way that you have no control over.   Learning to exercise choice from a place of knowing will empower you in making choices.

Why did you make the choices you did in the past?  You may want to know what choices you have made in the past to look at where you are and the life you have lived.  What you see is the choices you have made?  Some of you have chosen to make choices by accident without first gathering all the information needed.  Some of you have made choices in the heat of emotion that would probably have been better if left for some other day.   The sum total of the choices you make while you are in the divorcing process will determine how much easier your divorce will be.

Marriages end because of Irreconcilable Differences.  Wikipedia describes “Irrevocable Differences as, any sort of difference between the two parties that either cannot be changed or the individual does not want to change can be considered irreconcilable differences.”    Some states use the terms irremediable breakdown, irretrievable breakdown, or incompatibility. Marriages don’t start out with irreconcilable differences. If they did no one would ever marry.  So what happens? What changes?  Life does and life is ever changing.  The one thing you can count on is there will be change.  If you have decided that separating is inevitable and are looking for a divorce or legal separation, Family Law Center has the expertise and experience to help you through that process.

Divorce Action plan One:  Determine if your marriage is really over. This is the time to take heart with your spouse to ask have both of you done all you can do or all you are going to do to save or work on your marriage.  Are you in marriage counseling or have you tried marriage counseling?  Once the decision is made make it clear to your spouse that this is what needs to take place. An open communication about your intent to move forward will make the path much smoother.

Divorce Action Plan Two:    Begin to gather information for the divorce about your assets, debts, income and expenses.  Compile all your bank statements, credit card statements, retirement statements and any other financial asset and debt  information that is available to you.  As you gather these statements take time to review and determine if either of you received or have any separate assets (such as separate inheritances, debts etc.).  To determine if you are still entitled to a separate interest will most likely require help from a family law attorney.  Make a note that when you seek a consultation with a family law divorce attorney to ask for their advice on the issue of separate versus community interest in assets.

Divorce Action Plan Three:   Determine the divorcing options available to you.  Are the two of you candidates for Divorce Mediation?  Or better suited for a Collaborative Divorce?  Is the conflict such that the two of you need separate family law attorneys?  Ask for referrals for a good divorce family law attorney or mediator.  Referrals are the best source for obtaining a family law attorney.  Ask friends you know have been divorced about who they used.

Divorce Action Plan Four:  Filing the first divorce papers with the court.  This starts with filing of a Petition for the Divorce.  The first divorce papers are primarily to open the case in the court and obtain a case number from family court.  It is important to understand that the statements  made in the petition for divorce are not an agreement but can cause conflict if not done properly.  This is why having the right divorce attorney to help you begin this process is so important.  A good family law attorney will be able to help you complete these forms without increasing the conflict.

Divorce Action Plan Five:  Completion of Declaration of Disclosure including a Schedule of Assets and Debts and an Income and Expense Declaration.  Much of the financial and historical information you gathered in the divorce action #two will be used for this next step.  It is important to make a complete and full disclosure to your spouse and ask that your spouse make a full and complete disclosure to you.  The family court has created forms for the two of you to make your Declaration of Disclosure.  The obligation in a divorce to make a full disclosure has serious legal significance and it is well worth the investment to seek the advice of a divorce attorney to help you complete them or to review your work.

Divorce Action Plan Six:  Building the Marital Settlement Agreement (MSA).  It is best to seek the help of an experienced family law attorney to prepare your Marital Settlement Agreement also known as MSA. This agreement will include how you intend to share your children’s time including your child custody: physical child custody and legal child custody provisions.  (See our blog on Legal Child Custody versus Physical Child Custody to learn more about the meaning and impact of custody determinations).    The MSA agreement will also state how you want to divide your assets and debts.  If there is a retirement account you may need to use a a Qualified Domestic Relations Order QDRO to divide it.  A QDRO will allow you to divide the retirement account without having to pay any taxes on the transfer or have to pull the money out of retirement to reach an equal division of property.  The MSA will also include any support agreement for both spousal support and child support if you have children.  To be sure that you have a legal binding agreement and have covered all the marital issues in the MSA you need to seek the help of  a divorce or family law attorney with preparation and processing of the MSA.

Divorce Action Plan Seven:   Processing the MSA and the other necessary final family court documents is the last step.  It seems only reasonable that after completing an MSA you could just send it to the court.  This is not so.  In order to send an MSA to the court it must be accompanied by other court required documents including but not limited to; Judgment; Notice of Entry of Judgment; Declaration re: Service of the Declaration of Disclosure; an Appearance Stipulation and Waiver; and a Declaration of Uncontested Divorce.  These documents need to be prepared based on local rules.  I recommend that you seek the advice of  a family law attorney and to be sure this is done correctly.

At Family Law Center we can provide you with the legal help to process your divorce papers in an inexpensive and efficient manner.  We will do our best to make the divorce process as seamless, easy and low conflict as we can for you.  Call us at Family Law Center for a consultation with one of our divorce  family law attorneys.

A declaration of disclosure (whether preliminary or final) is comprised of an asset and debt schedule, an income and expense declaration, and a one-page declaration of disclosure form. The asset and debt schedule is where you each will list ALL of your assets and debts, whether you think the asset or debt is your separate property or community property, and regardless of whether you feel there is no dispute about the property and who will receive it in the divorce. The income and expense declaration you will both need to complete will list your income and expenses as of the time you complete this form. This will be important in the divorce process, particularly in relation to child and spousal support (alimony). Even if you have no children and do not expect to ask for spousal support from your spouse, you will still need to complete this form and exchange it with your spouse.

Over the last number of years, California law has placed a “fiduciary duty” on both spouses to deal with each other fairly, to not take financial advantage of the other, and to fully disclose finances – whether separate or community. In fact, the fiduciary rules are similar to those which apply to business partners. Breaching that duty can result in significant penalties in a divorce, and non-disclosure can actually lead to the other person being awarded 100% of the non-disclosed asset! Also, the forms will be signed by you under penalty of perjury – so these forms need to be accurate.

Correctly completing the documents for your declarations of disclosure should be with consultation of a family law attorney, and Family Law Center attorneys can help you, whether you are going through your divorce in mediation, using the collaborative process, or litigation. A correctly completed declaration of disclosure greatly enhances both of your ability to settle a divorce case quickly, saving both spouses time and money.

Written by Mark Johannessen

For more information contact Mark at Family Law Center

916-488-5088

Wikipedia describes “Irrevocable Differences as, any sort of difference between the two parties that either cannot be changed or an individual does not want to change.”

For many people the concept of “No Fault” has been a difficult concept to understand.  Many a divorcing spouse feels a need and wants to tell why the marriage failed.  Many feel that the reason the marriage failed is so very important that they cannot imagine how the divorce can be completed with out some explanation of what happened to the marriage.  How can years of work on a marriage relationship just end without any explanation?

My experience has shown me that when a person needs to tell the history of the marriage breakdown and they are not given that opportunity the divorce process can be prolonged or the conflict increases.  Often this frustration results in higher divorce costs.

Carol Delzer is a licensed Marriage Family Law Therapist as well as a Certified Family Law specialist.  She has an abundant net work of family therapists and divorce coaches who work together with her and her clients so that when challenges like this arise they can be resolved the opportunity for clients to express these feelings but learn who to express them to and how to use them to their benefit not detriment.  Carol also recommends a divorce support group such as http://www.divorcecare.org

For an appointment with Carol Delzer contact the Family Law Center at  916 488-5088.

Here are some of the Common Questions we are asked about Real Estate or the Family Residence in Divorce.

Q: Who gets the Family Residence? There are three common possibilities.  The first two are that either you or your spouse will receive the family residence in the division of assets. The third possibility is that it will be sold. It is best to meet with one of our attorneys at Family Law Center so they can explore the options you have and  advise you about the law.

Example: If you and your spouse bought a family residence or any real estate together after getting married, and paid the mortgage from earnings, the law says the residence/real estate is a “marital asset.” In the divorce, each spouse is entitled to a “fair and equitable share” of all the marital assets. Giving 100% of the residence/real estate to just one spouse is not fair and equitable, unless you have some other way of compensating the other spouse. Common options are to award other assets (like savings or retirement) to the other spouse to compensate for their share of the residence/real estate.

Q: We want to sell the residence/real estate, is this allowed? You and your spouse agree to sell the residence/real estate) and divide the money from the sale 50%-50%. Here are some of the issues that come up:  What if you owe more on the mortage than the appraisal says the residence/real estate is worth?While the residence is listed for sale, who can live there?

How will disputes over accepting an offer for the residence be resolved? You think the offer is too low, spouse wants to sell. Who will pay the mortgage, insurance, and taxes until the residence is sold?What if the roof gets a leak? Who will pay for that? What does it mean to divide the sale money 50%-50%? What expenses and costs come out first?If the residence is not sold before the divorce is final, how should the residence be awarded in the divorce settlement agreement?

Should the spouses stay as “joint tenants” or each own half, as “tenants in common” or something else?It is best to visit the Family Law Center, Sacramento, California so that one of our attorneys can help you with your particular real estate situation and needs, and can advise you how to best protect your interests. Our attorneys can add terms to the marital settlement agreement so they say exactly what you agree to in your divorce.

Q: I bought the real estate before we got married, it’s mine, right?To divide property under California divorce laws, you need to know the difference between “marital” and “non-marital” or “separate” property. “Marital” assets must be divided in a fair and equitable way. “Non-marital/separate” assets are usually not divided between the spouses. A non-marital/separate asset is usually awarded to the spouse who owned it before the marriage. But in many cases the marital estate will have earned an interest in the real estate for contributions made to the principal pay down of the loan or improvements made to the house with community funds.  This right of community reimbursement will be determined based upon the value or equity in the real estate. If the property nor the equity position has not increased in value there may be no community interest. It is best to visit Family Law Center, Sacramento, California 916 488-5088 to speak with one of our attorneys to explore the details and determine your legal rights.

The same rule applies when the couple makes improvements to the spouses residence and the parties use earnings or savings to make improvements on the spouses separate residence.  The community interest is a complicated formula that was established from two family law cases Marriage of Moore-Marsden.  The formula is know as the Moore-Maresden formula and requires the consultation of a family law attorney to understand.  Below is family Code Section 2640

FAMILY.CODE SECTION 2640

When couples 2640.  (a) "Contributions to the acquisition of property," as used
in this section, include downpayments, payments for improvements, and
payments that reduce the principal of a loan used to finance the
purchase or improvement of the property but do not include payments
of interest on the loan or payments made for maintenance, insurance,
or taxation of the property.
   (b) In the division of the community estate under this division,
unless a party has made a written waiver of the right to
reimbursement or has signed a writing that has the effect of a
waiver, the party shall be reimbursed for the party's contributions
to the acquisition of property of the community property estate to
the extent the party traces the contributions to a separate property
source. The amount reimbursed shall be without interest or adjustment
for change in monetary values and may not exceed the net value of
the property at the time of the division.
   (c) A party shall be reimbursed for the party's separate property
contributions to the acquisition of property of the other spouse's
separate property estate during the marriage, unless there has been a
transmutation in writing pursuant to Chapter 5 (commencing with
Section 850) of Part 2 of Division 4, or a written waiver of the
right to reimbursement. The amount reimbursed shall be without
interest or adjustment for change in monetary values and may not
exceed the net value of the property at the time of the division.

When a couple divorces, the court looks at the best way to divide both party’s debts as well as their assets. Just as there are community and individual assets, there can be community and individual (separate) debts. For example, if one spouse takes out a student loan to pay for their school during the marriage, the student loan would generally be considered a separate debt.  In California, when divorcing, there are exceptions when the student loan can be considered a community debt.  It is best to seek legal advice if you are in this situation.

Student loans are taken out for different reasons, sometimes it’s to pay for college tuition and books and sometimes it’s to support the student (or family) while pursuing an education. Often it’s a little bit of both. So trying to figure out who is responsible for paying back the loan after divorce can be complicated.

A degree is not considered community property so therefore the debt incurred while achieving it is not usually considered community debt. However, if the marriage greatly benefited from the boost in income that comes with a degree (say, for example, one party goes to law school and after passing the bar is able to get a much higher paying job), then the family court might consider the cost of that degree when dividing debts. In the absence of substantial benefit to both parties, the repayment of the loan is the responsibility of the student.

When a divorce occurs shortly after one spouse graduates from college, the court more often than not holds the former student responsible for the repayment of the loans.

California Family Code 2641 is listed here for your reference.

FAMILY.CODE SECTION 2641

2641. (a) “Community contributions to education or training” as used in this section means payments made with community or quasi-community property for education or training or for the repayment of a loan incurred for education or training, whether the payments were made while the parties were resident in this state or resident outside this state. (b) Subject to the limitations provided in this section, upon dissolution of marriage or legal separation of the parties: (1) The community shall be reimbursed for community contributions to education or training of a party that substantially enhances the earning capacity of the party. The amount reimbursed shall be with interest at the legal rate, accruing from the end of the calendar year in which the contributions were made. (2) A loan incurred during marriage for the education or training of a party shall not be included among the liabilities of the community for the purpose of division pursuant to this division but shall be assigned for payment by the party. (c) The reimbursement and assignment required by this section shall be reduced or modified to the extent circumstances render such a disposition unjust, including, but not limited to, any of the following: (1) The community has substantially benefited from the education, training, or loan incurred for the education or training of the party. There is a rebuttable presumption, affecting the burden of proof, that the community has not substantially benefited from community contributions to the education or training made less than 10 years before the commencement of the proceeding, and that the community has substantially benefited from community contributions to the education or training made more than 10 years before the commencement of the proceeding. (2) The education or training received by the party is offset by the education or training received by the other party for which community contributions have been made. (3) The education or training enables the party receiving the education or training to engage in gainful employment that substantially reduces the need of the party for support that would otherwise be required. (d) Reimbursement for community contributions and assignment of loans pursuant to this section is the exclusive remedy of the community or a party for the education or training and any resulting enhancement of the earning capacity of a party. However, nothing in this subdivision limits consideration of the effect of the education, training, or enhancement, or the amount reimbursed pursuant to this section, on the circumstances of the parties for the purpose of an order for support pursuant to Section 4320. (e) This section is subject to an express written agreement of the parties to the contrary.