Divorce Process Q&A

The question most asked of divorce lawyers is: “How much is this going to cost?” There is no simple formula for predicting legal, court and, if necessary, consultant fees. However, the most expensive divorce is the so-called “ugly divorce.” The more cooperative the parties, the less reaching a settlement costs. Why this is so will become apparent by the discussion of the divorce process below.

Essentially this process consists of 1) Division of Property, 2) Child Custody and Visitation, 3) Child Support and 4) Spousal Support.

1. Division of Property

Unless a prenuptial agreement stipulates otherwise, community property acquired during marriage is divided equally between the parties.  

What is community property?

Typically community property includes the net value of money earned, debts incurred and property acquired during the marriage. Spouses own these assets and debts equally, regardless of who earned or spent the income.

Are retirement benefits and deferred compensation considered community property?

Those earned during the marriage are. John Laufenberg will determine how much of the benefits or account balances were earned during the marriage. A Domestic Relations Order (DRO) can be issued by the court to divide retirement benefits. Other special rules exist for determining and dividing the community property portion of professional practices, small businesses, stock options and other assets.

What property is considered a spouse’s separate property?

Generally it is money, securities, property and debts owned by the spouse before marriage or acquired after legal separation. It can also include debts acquired before marriage such as a student loan. Separate property can also include an inheritance or gift from a third party. However, separate property can transform into community property. Examples include inherited money deposited into a joint banking account or the other spouse’s name added to the deed of a house.

How are community and separate property interests in a business determined?

Good divorce attorneys such as John Laufenberg enlist a forensic accountant to help determine the value of a business and the degree to which, if any, a business benefited from community time and money. There is usually a separate property interest in a business if the business was created before the marriage. There is also a separate property interest if the business was inherited, gifted or started with inherited money. There are many other issues as well, such as what is the value of a partnership? Or is the other spouse trying to double-dip by demanding a percentage of the business as well as a portion of its profits for spousal support? Rest assured, John and his team will address them all.

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2. Child Custody & Visitation

Divorces involving children require a parenting plan agreed upon by the divorcing spouses. This will specify the circumstances under which each parent gets to make legal decisions (about such matters as education and healthcare) for the children and the time that the children will spend with each parent.

What happens if divorcing parents cannot agree on a parenting plan?

In California, child custody disputes typically for children five or older are referred to mandatory child custody mediation. Mediation can be provided by Family Court Services, a public agency affiliated with the court, or by private professionals specially trained and certified to mediate divorce issues regarding children.

What are the advantages and disadvantages of a court mediator compared to a private one?

Child custody mediation through Family Court Services is typically free whereas one or both spouses need to pay a private mediator. A private mediator, on the other hand, is not restricted in the time that can be devoted to a case and is usually better able to address complex issues, such as emotional or physical health of a child or parent.

What happens if a mediator cannot lead parents to agree on a plan?

The mediator will make recommendations to the court, which will likely accept them. Be aware mediators are quite astute in detecting when one parent is coaching a child or trying to alienate the child from the other parent. Such behavior can result in a parenting plan unfavorable to the offending parent. Otherwise, the court will adhere to a guideline of the State Legislature that “frequent and continuing contact with both parents” should be mandated unless this would not be in the child’s best interest.

What if one parent plans to relocate a distance from the other such that frequent contact with both parents would be impractical?

There are a number of issues the court will weigh here. One is whether the relocating parent has a good faith reason for relocating. But often the court’s decision turns on the child’s relationship with the father. Has the father taken an equal role in rearing the child and, if so, is his emotional bond with the child equal or better than the child’s bond with the mother? It’s not unusual in such battles for the divorce lawyer to enlist one or more psychologists to make recommendations to the court. But even when it is the mother intending to relocate, the battle is usually uphill for the father.

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3. Child Support

California law requires divorced parents to share:

  • Expenses for childcare incurred for the purpose of allowing either parent to work or to seek work-related education or training; and
  • Expenses for children’s healthcare to the extent that they are not covered by insurance.

Typically the family court also orders parents to equally share expenses for their children’s education, special needs and travel for visitation. Otherwise, child support is subject to a formula that calculates “guideline child support.”

What are the components of the child support formula?

The formula embodies three factors: 1) the mother's monthly income, 2) the father's monthly income, and 3) the amount of time the child spends with each parent on a monthly basis.

Why would child support be an issue if it is determined by a formula?

Numbers about income and time submitted by one spouse are almost always disputed by the other spouse. One reason is that income of a new spouse is not factored into the formula. For example, what should be the income of an unemployed spouse who has remarried to a millionaire? Time can also be nebulous. How much time, for instance, does a spouse really spend with a child who is frequently cared for by the spouse’s grandparents?

So what is the point of the child support formula?

The formula’s underlying policy is that a child in the physical custody of the lower-earning parent is entitled to share in the lifestyle of the higher-earning parent. This means the higher earning parent subsidizes the lower earning parent’s household. Higher earning spouses often complain that the other spouse spends this money on merchandise and trips that do not benefit the child. However, child support expenditures do not concern the court unless it can be proven that the child is not well cared for.

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4. Spousal Support

Spousal support can be awarded to either a divorced husband or wife in contrast to the outdated term “alimony,” which was awarded to divorced wives only. Like child support, awards of spousal support are based on the monthly incomes of the parties.

How is the amount of spousal support determined?

Temporary spousal support is available to a spouse beginning with the couple’s legal separation and continuing until the divorce is final. Often it is set according to a formula that amounts to about 40% of the high earner’s gross income minus taxes, child support, health insurance payments, and mandatory retirement payments as well as 50% of the low earner’s net monthly income. Again, disputes are common over what numbers should be plugged into the formula.

After entry of a divorce judgment, state law prohibits the use of a mathematical formula for setting spousal support. Instead, the judge is required to apply a list of factors to determine an amount. Post divorce spousal support usually is a little less than the temporary spousal support set in the same divorce case.

How long is someone entitled to receive spousal support?

Generally, spousal support arising from a marriage that lasted ten years or less is limited to not more than half the length of the marriage. The window grows for longer marriages and can be for life. Although the recipient of spousal support is obligated to use best efforts to become self supporting, there are factors that temper that obligation. For instance, what workplace skills does the recipient possess? Is the recipient of an advanced age that makes employment difficult or unrealistic?

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