How Do California Courts Determine Spousal and Partner Support?

How Do California Courts Determine Spousal Support and Partner Support?

Under California law, when a couple divorces or legally separates, a court can order spousal or partner support. Spousal or partner support can be ordered on a temporary basis, while the court case is pending. It can also be ordered by the court on a permanent basis at the end of the case, such as when a final divorce order is entered. Either way, a case must be pending before a court can become involved.

A court may enter a temporary support order to provide for support of a spouse or partner while the court case is pending. The factors used by California courts in determining the amount of a temporary order are set locally by court rule. For example, in San Francisco County, the local court rules provide that the Santa Clara schedule will be used to calculate the default amount of spousal support. However, the judge may decide, for reasons that constitute “good cause”, that a different amount is appropriate.

A court may also enter a permanent or long-term support order at the end of a case. California law mandates that many factors be considered by the judge in setting this award, including but not limited to the following:

  • The length of the marriage or partnership;
  • Each party’s age and health;
  • The Marital Standard of Living;
  • Each party’s debts and assets;
  • Each party’s needs;
  • Each party’s earning capacity;
  • The ability of the paying party to pay support;
  • The ability of the receiving party to work without adversely affecting the parties’ minor children;
  • The tax consequences to each party;
  • Whether one party helped the other to receive an education, a license, or a similar achievement; and
  • The occurrence of domestic violence between the parties or against their children.
The court must also consider “the goal that the supported party shall be self-supporting within a reasonable period of time”, as well as hardships presented to each party. It may also consider other matters that it considers are just and equitable to make a proper order of support.

As you might imagine, how these matters are presented to a court can make a significant difference in the support order. You want an attorney with substantial experience in Northern California who will represent you aggressively. Please contact The Law Offices of Judy L. Burger at (415) 259-6636 to learn more.
What Factors Do California Courts Consider in Setting Child Support?

What Factors Do California Courts Consider in Setting Child Support?

Parents have a mutual duty to support their minor children. Ideally, parents come to an acceptable agreement about financial support, an agreement that the court will approve. However, if they cannot or will not do so, a court must decide whether child support will be paid from one parent to another.  

The California State Legislature has found that the “state’s top priority” in setting child support is the best interests of children”. For this reason, California law sets forth guiding principles that courts must use when determining child support. These principles allow for both parents’ standards of living to be considered. They also allow for child support to be used to reduce significant disparities in the parents’ living standards.  

The factors considered in determining child support are set by law in California. A formula is used that takes several factors into account:
  • Both parents’ actual income;
  • The higher-earning parent’s net monthly disposable income;
  • The percentage of time that each parent will have “primary physical responsibility” for the children; and
  • The combined net monthly disposable income of each parent.
In addition, California courts must take into account the parties’ respective health insurance coverage. There is a proportional increase in the amount of support for each additional child.  

Once the amount of child support is established using the formula, it may be affected by other issues, including but not limited to the following:  

  • Extraordinarily high income of one parent;
  • Different time-sharing arrangements;
  • The amounts spent by each parent on housing; and
  • Special medical needs of the children.
In most cases, the income of the paying parent’s new spouse or partner is not taken into account as actual income. However, it may be considered if a parent quits his or her job to reduce income or if a parent attempts to hide income. 

The health and well-being of your children are important not only to you, but to the State of California. In hotly contested child support matters, you need an attorney to fight for you and your child. The attorneys at the Law Offices of Judy L. Burger have extensive experience in divorce, child custody, and child support matters. Make the call today to learn how our attorneys can protect you and your children: (415) 293-8314.  
What Is an Ex Parte Hearing?

What Is an Ex Parte Hearing?

Regardless of the circumstances, divorce and legal separation are difficult for everyone involved. Sometimes, however, they can be particularly stressful, such as when there is a threat of violence, danger, or significant financial injury.

Fortunately, the California judicial system has in place a procedure to deal with circumstances like these quickly: ex parte hearings.

Ex parte hearings are simply emergency hearings. Depending on a court’s caseload, it can take weeks or even months to get a hearing before a judge.

Ex parte hearings are designed to reduce that time drastically. However, they are only available for true emergencies, when there is a threat of
irreparable harm or immediate danger. Examples of factual circumstances that may warrant an ex parte hearing include the following:

  • child visitation or custody rights with a parent who leads a dangerous lifestyle;
  • a threat of grave injury to a couple’s children; and
  • a valid concern about depletion of community funds from a joint account.
An application for ex parte relief must be supported by very strong evidence of future irreparable harm or immediate danger. For example, exposure of a young child to alcohol and drugs could warrant an application for an ex parte hearing. Likewise, the prior acts of a spouse wiping out community funds from one bank account would likely warrant ex parte relief to prevent him or her from doing the same thing with other accounts.

In most cases, the person against whom an order will operate, usually the other party to the divorce or custody proceeding, has a right to notice before an ex parte hearing is held. This is because the judge may order relief that contravenes that person’s rights, such as the right to visitation or the right to access his or her own money. However, when absolutely necessary, notice may be avoided. This is only true if providing notice will result in immediate, irreparable harm.

Care must be taken when requesting ex parte relief. If it is requested unnecessarily, it can affect the court’s view of the parties in future proceedings. Judy Burger is experienced in presenting ex parte issues in the San Francisco Bay and Sacramento areas. If you believe ex parte relief may be needed in your case, contact her today at (415) 259-6636.
How Is a Business Interest Valued in a California Divorce?

How Is a Business Interest Valued in a California Divorce?

For those going through a divorce or contemplating one, a common concern is how a business interest will be treated by the court. Sometimes, both spouses own a business together. Other times, however, only one spouse has an ownership interest in a business.

By law, California courts must make a substantially equal division of community-owned property. Therefore, the first step in deciding how to deal with a business ownership interest is to determine whether it is separate or community property. It may even be a little of both. If you are not familiar with basic property law in California divorces, please see our separate blog here.

If the couple started the business together and operated it together, the court will likely decide it is a community-owned asset. However, often, business ownership is not so clear. For example, sometimes, a business was started before the couple married. Other times, although one spouse may be the owner “on paper”, the other may have worked in the business and contributed substantial value to it. In more complicated cases such as these, the court will need to decide issues such as the value of the business at the time of marriage and the present, the value of spousal contributions to the business, and other difficult factual questions.

It is usually necessary, in these cases, to retain a forensic accountant. Forensic accountants are trained in both accounting and investigative techniques. For this reason, they can be invaluable partners in determining the value of a business and in presenting their valuations to a court.

Forensic accountants are experts at detecting irregularities in company records. Their findings can help demonstrate, for instance, if one spouse has altered company records to make it look like a business is more or less profitable than it really is. Ultimately, the accountant will give an expert opinion about the value of the business. One of three methods is typically used:

    • the income approach, which attempts to value future economic benefits;
    • the market approach, which compares the business to others that have recently been sold; and
    • the asset approach, which compares the relative assets of the business to its liabilities.
If the parties do not agree about how to divide a business ownership interest, the court will divide it for them, keeping in mind that their community property must be divided substantially equally. How this takes place is within the court’s discretion. Options available to it include awarding the business to the spouse who plays the greatest role in its operation, awarding it to the other spouse, dividing the stock ownership among the parties, and ordering the sale of the business.

Business ownership interests are among the more difficult issues that arise in family law, and how they are handled can affect the parties for the rest of their lives. The attorneys at The Law Offices of Judy L. Burger have extensive experience in all matters relating to property division, including dealing with business interests and forensic accounting. Make the call today to learn how our attorneys can protect your financial future: (415) 293-8314.

Basic Property Rights Law in California Divorces

Understanding the basic rules of property ownership in California is critical for anyone going through or contemplating a divorce or legal separation. Property may be owned by a spouse separately, meaning that it is his or hers alone, or it may be held as community property, which means that both spouses share it equally. It is important to understand the difference because, generally, a spouse has no right to any portion of the separate property of the other. On the other hand, California law provides for equitable division of community property.

Property acquired before a marriage or after a married couple separates is considered to be separate. In addition, property given to or inherited by a party during a marriage is considered to be separate. In most cases, a person has no right to the separate property of his or her spouse.

California law assumes that property acquired during a marriage is community property, which means that each spouse holds a one-half interest. Both spouses have an ownership right to one-half of community property, regardless of who actually acquired the property. In determining whether property is separate or community, the date of separation is critical. In fact, the date of separation is sometimes hotly contested for this reason. The date of separation is established, by law, as the date on which two things occurred: (1) one spouse subjectively made the decision that the marriage was over; and (2) that spouse took an objective step to implement his or her decision.

With titled assets, such as homes, cars, and boats, a second property law presumption may come into play. The California State Legislature has passed a law that the“owner of the legal title to property is presumed to be the owner of the full beneficial title”. This means that a court will assume that the name of the person on title to property is the full owner of that property. It takes strong evidence to overcome this presumption.

As you might imagine, the community property presumption and the legal title presumption can often be in tension with one another.

There are many nuances in California statutory and case law that impact property division, and the proper presentation of property issues can significantly affect your outcome. Judy Burger is experienced in complex property division matters and how to present those in family court most favorably to her clients. Please contact her today at (415) 259-6636.