Divorce Law - A Blog By A Divorce Attorney!

           In most divorce cases, a party may petition the court for spousal support AKA alimony payable by his or her spouse.  In California, there are two types of spousal support payments, temporary and long term.  This post will address temporary spousal support.   California courts have consistently maintained that the duty of the court in establishing temporary spousal support is to render a fair and appropriate order to reflect parties’ financial circumstances at or near the time of separation.     In most cases, said status can be obtained by simply plugging numbers into a guideline calculation.   In Los Angeles County, the dissomaster  computer  program performs this calculation.  This really does away with much of the court's discretion and an attorney's ability to advocate. In some case, however, the use of dissomaster can render an unfair and inappropriate support orders , ...

Many people believe that a separate property business (meaning a business established prior to marriage) is off limits for the proverbial divorce chopping block.  In most instances, especially those involving a service based business, this could not be further from the truth.  In a service based industry, where one (or both) spouse(s) work in the business, the community estate can gain an interest pursuant to the case of Pereira .  Pereria , which was decided nearly 100 years ago, carves out a community property interest in a separate property asset.  The analysis is based on the following rationale, WHERE THE PERSONAL LABOR INVESTED IS THE PRIMARY SOURCE OF GROWTH - A PEREIRA APORTIONMENT ROVIDES A FAIR APPRECIATION AT THE LEGAL RATE OF RETURN TO THE CAPITAL AND ASSIGNS THE REST OF APPRECIATION AS GROWTH FROM LABOR In real world litigation or mediation perspective, the Pereira interest is generally determined by obtaining two different bu...

                  SPOUSAL SUPPORT IS ENFORCEABLE NOTWITHSTANDING ONE'S CAPACITY !                I was recently retained in a very interesting case.   The matter posed a unique set of facts and legal issues.  Can the daughter of a party, who lacks capacity, enforce a spousal support obligation on behalf of said party?   Given the ruling by the trial court yesterday, the answer is YES !                                                                  THE LAW!       ...

For decades California courts have maintained and fostered a strong public policy favoring the establishment , enforcement and modifiability of all child support orders.   The courts have liberally construed statutory law to preserve these powers, even if it meant blatantly disregarding fully executed settlement agreements signed between parties and counsel.   During this period, courts have also addressed the infrequent occurrence of the death of a payor prior to the emancipation of a minor child.    Through case law, we unequivocally know that child support orders not only survive the death of the payor but that said obligation is fully chargeable against the decedent’s estate.   In order to ensure enforceability and potential modification of said support orders, courts have been called upon to and have granted joinder of the decedent’s third party representatives to family law proceedings.   In a scenario where the payor is dead, joinder of a t...

                            FIVE COMMON QUESTIONS REGARDING MEDIATION Who mediates?   I usually recommend and utilize the services of a retired Judge or a Certified Family Law Specialist.  An experienced mediator can provide insight to a difficult client and help predict a possible outcome. How much does it cost?   Hiring a mediator is definitely not cheap.  It can range from $350- $500 per hour.  These individuals usually require a 4 to 5 hour retainer deposit.  Trust me, in the long run this is NOTHING.  Remember my example from the above paragraph?  Yes, the hearing that's been continued for 2 years.  My client has spent nearly $15,000.00 associated with my preparation and multiple appearances. What are the practical benefits?     You can settle your entire case in a sing...

            5 DO'S & DONT'S IN CUSTODY CASES                                                                        DO'S 1.   Document all communications with the other parent. * Use communication tools like the Our Family Wizard website. 2.  Make child focused decisions. * Stay away from what is best for YOU.  Focus on what's best for the child. 3.  Always be on time for pick ups and drop offs. 4.  Be generous with support payments. * Remember a court order for child support is the bare minimum for support. 5.  Be respons...

                  THE TEN YEAR "RULE" - NOT REALLY A RULE              A number of you have probably come across various "legal" articles discussing a ten year "Rule" in the area of divorce.  I have also read these articles and am astounded at the misinformation contained in them.  First and foremost, marriage duration only impacts spousal support.  You don't get a pot of gold when you hit ten years!  Your property rights don't automatically change nor does your ability to go after your spouse's separate property estate.             Furthermore, in regards to spousal support, marriage duration does NOT automatically provide more spousal support.  Discretion is still very much involved. C alifornia Family Code section 4336...