Dividing the Family Home Pt. 2

One of the main areas that results in conflict during a divorce is property division. In a number of cases, conflict is worsened when it comes to dealing with the family home. Many divorcing couples tend to have a great attachment to the family home and as a result it is hard to decide whether to keep the home or sell it. A previous article discussed buying out your spouse, this article will discuss selling the family home and court awards in respect of the family home.

If the parties to the divorce prefer to sell the family home there are a number of issues that need to be worked out including the following:

  • Which spouse will live in the family home and cover expenses in respect of mortgage, utilities and property taxes until the home is listed and/or sold
  • Finding a real estate agent that both the spouses can trust to sell the home
  • The listing price of the home
  • The process of reviewing and accepting offers for the sale
  • How to cover the costs related to the sale of the home. Generally, divorcing couples agree to share these costs equally, however, it is important that such an agreement is made clear

Once the home has been sold spouses generally split all net sales profits evenly; where separate property reimbursement exists they will also need to be addressed. However, if the divorcing couple cannot agree on what to do with the family home it is likely they will end up in court where the judge will make a decision.

A question may arises as to whether a court can award the family home to one spouse. It must be noted that in California courts must divide community property equally between the spouses. So, in the event the divorce ends up in trial, the court will look at all assets that have yet to be divided and order a net equal division. Where economy circumstances are applicable, the court may award a community asset (e.g. family home) exclusively to one spouse on conditions that the court deems to be proper to effect a substantially equal division of the community estate. The conditions will usually include an ‘equalizing payment’ to the other spouse. This means that when a community property asset is awarded to one spouse, the other spouse must be compensated by a cash payment or an offset/award of other community property. However, it is necessary for courts to consider the following economic circumstances which may support such a property division:

  • The nature of the property
  • Any emotional attachments
  • The business acumen of both spouses and how that may impact which spouse is in the best position to keep the property. For example, if one spouse holds an MBA and the other spouse is an artist, the court may find it to make more sense for the MBA spouse to keep the financial planning business and the artist to keep the art gallery
  • The spouses’ financial positions

For legal advice on your divorce find the best divorce lawyer El Dorado County.

There are a number of reasons why there may be a need to change child support. This is because at times life is unpredictable and even a concrete amount for child support may need to be reviewed. When this occurs it is necessary for child support to either be increased or decreased. This article will discuss how and why a court would order an increase in child support payments when the child support amount no longer covers the basic needs of your child.

After a child support amount has been ordered by court one parent may request that the court modify or change the amount of child support, either by increasing or decreasing it. For the purpose of this article the focus will be on increasing the child support amount. In order to increase child support payments the parent requesting the increase will need to prove that after the existing child support order was put in place a substantial change in circumstances occurred. Such substantial changes may include a change in the child’s needs, an increase in salary or the involuntary loss of a job. Some of the most common reasons for child support to be increased include the following:

A substantial increase in the non-custodial parent’s income. Usually this has to be a 10% or more increase in income. From the courts perspective, it is in the best interest of the child to live in reasonably equal circumstances when living in either parents’ home.

There must occur a substantial decrease in the custodial parent’s income. Usually this decrease must be at least 10% or more. Where a custodial parent involuntarily loses a job, through no fault of their own, the custodial parent may require a substantial increase in child support, temporarily.

A substantial increase in the child’s needs – an increase may be as a result of medical expenses, educational expenses, age-related expenses or cost of living increases.

It is important to realize that such substantial changes as those listed above should not be based on intentional acts by either parents. For example, where a custodial parent quits their job or takes a substantial pay cut voluntarily. In such a situation this is not considered as a valid substantial change in circumstances to increase child support payments from the other parent.

When a substantial change in circumstance occurs, the parent who wants to change child support must go to court and get an order specifying the new amount. This is the only way to modify or change the child support amount. If the parent who wants to increase child support does not go to court to get approval, the original child support order will be the only official record of the amount owing. This also applies even if you and your child’s other parent enter into a verbal or written agreement between yourselves about modifying child support, you must go to court and ask a judge to approve your agreement and issue a new order reflecting your terms. Courts will not enforce verbal child support agreements.

For legal advice seek out a family law El Dorado County law firm. 

A previous article discussed two basic stages out of five in a divorce mediation. The article discussed the introductory stage and the information gathering stage of a divorce mediation. This article will discuss the three stages of divorce mediation these are:

  • Framing stage
  • Negotiating stage
  • Concluding stage

Framing stage – during the framing stage the mediator helps each spouse outline their individual reasons for wanting a specific outcome in the settlement. Reasons would include an individual’s concerns, priorities, goals and values. Reasons are often referred to by mediators as ‘needs and interests’. By identifying one’s needs and interests, it helps to frame the heart or core of the mediation. This is because finding a resolution for the issues that successfully address each spouse’s most important interests becomes the ultimate objective of the mediation. In many divorces the majority of issues need to be examined from the perspective of each spouse’s interests, this includes property and debt division, child custody, child support and alimony.

It is common for spouses’ interests to overlap. This is especially true where both spouses have similar concerns for people or things that is children or property. Where there is an overlap in interests, it increases the chances of finding settlement options that address these common concerns. However, it is not always possible to negotiate an agreement that fully satisfies the interests of the disputing parties. Further, interest may have to be compromised where resources are limited but need to be divided between the two households. But where the focus is on identifying and addressing each person’s most important needs and interests, the compromises that come from this are most likely ones that both spouses can live with. 

A common feature of the framing stage is to have separate sessions with each party to the divorce. Some mediators believe that separating the spouses better prepares them for the next stage of negotiating. However, other mediators prefer joint sessions because they believe that hearing each spouse work with the mediator to formulate interests lays a better foundation for the compromise necessary during the negotiation stage.

Negotiating stage – once the mediator has helped spouses to frame the issues and interests clearly, the mediation starts negotiation and acceptance of settlements. With the help of the mediator, the spouses discuss and evaluate the options until they eventually narrow down the options that work best for both of them.  In order to get to the final combination of options it involves compromises and concessions on both sides. 

During this stage emphasis is put on problem solving, the problem to be solved is finding settlement options that address both spouses’ most important interests, as fully as possible.

Concluding stage – during this stage the settlement agreement is put in writing and circulated to both spouses to review with their legal advisors. In most cases, many mediators will prepare a written settlement agreement that will be filed with the court, especially if the mediator is a lawyer. However, you should have a lawyer look over the draft agreement before you sign it.

For legal advice contact a divorce attorney Folsom CA.

After a divorce, the court will sometimes order one spouse to pay the other alimony or payments of financial support. However, if the spouse receiving alimony decides to get remarried how does this affect the receipt of alimony and how does the spouse paying alimony go about ending alimony payments? This article will discuss how remarriage or cohabitation of a supported spouse affects alimony in California.

Alimony, also known as spousal support, takes the form of monthly payments from one spouse to the other. This can either be for a specific period of time or until certain events occur. In some cases alimony may be paid in a lump sum, by property transfer or by direct payment of other expenses (e.g. the mortgage). The purpose of alimony is to provide assistance to a financially dependent spouse based on each spouse’s financial circumstances after the court divides their marital property. Similar to child support, alimony can be modified or ended on request by one spouse. In order for alimony to be modified or ended the court requires a significant change in circumstances such as the income or needs of the supported spouse.

In the event that the supported spouse gets remarried, the obligation to pay alimony automatically ends. This is despite the fact that the paying spouse may voluntarily want to continue to pay alimony after the other spouse gets remarried. This is because there is no legal obligation to continue paying alimony. Further, the paying spouse can stop paying at any time after the supported spouse’s remarriage, without having to return to court. However, if your agreement states that alimony will continue to be paid regardless of whether the supported spouse gets married you will not be able to modify or end alimony.

In the event where you would like to modify or terminate alimony but your ex-spouse will not agree, you should file a motion to modify or terminate alimony with the court that granted your divorce. However, you will need to state how circumstances have changed and why this is a basis for modification or termination of alimony.

In respect of cohabitation, there is a rebuttable presumption that alimony can be lowered and possibly ended where the supported spouse is cohabiting (romantically) with a person of the opposite sex, under California law. The term rebuttable presumption basically means that the court will presume that alimony should be reduced or terminated, unless the supported spouse can prove the need to continue alimony payments after he or she begins living with someone of the opposite sex. If the supported spouse will not agree to lowering or ending alimony the best course to take for the paying spouse is to file a motion asking the court to order the change. When it comes to cohabiting, the court will not consider the income of the person with whom the supported spouse is living with but the supported spouse’s new financial circumstances.

For advice on the modification of alimony, seek out a family law El Dorado County law firm of professionals.

There are many frequently asked questions in respect of divorce in general and divorce and California. This article will address some of these questions.

Before looking for a divorce attorney in Sacramento, you need to know a few things regarding divorce procedure in California.

Do I need to have grounds for divorce, like adultery, if I want to divorce my spouse?

California was the first to adopt the ‘no fault divorce’ concept. This means that there is no need to determine who was at fault for the divorce in order to divorce your spouse. Therefore, a dissolution of a marriage in California can be granted if the court finds that there are irrevocable differences which have resulted in an irrevocable breakdown of the marriage. Put simply, this means that a married person who wants to end the marriage can do so even if the other spouse wants to stay married.

Are there any requirements in respect of Californian residency so as to divorce in the state of California?

For persons to be able to divorce in California there are residency requirements. To get a divorce at least one of the spouses must have been a resident of the state of California for at least six months before filing for divorce. Further, the spouse that is filing the divorce petition must also have lived in the county for at least three months before filing the petition for divorce. 

What is the divorce process of in California?

Your circumstances basically determine the length of the process that your divorce will take. If you have been married for less than five years, have no children, do not own real estate and have limited debt and property then you will be eligible for summary dissolution. Summary dissolution is a simpler process which does not require spouses to appear before a judge. Both spouses will create an agreement about how to divide their property and debt and file the agreement with a joint divorce petition and other required forms to be filled with the court. Despite the simple process, there is still a six month waiting period before the divorce is final.

However, if you do not qualify for the summary dissolution a basic dissolution follows the below process:

  1. One spouse files a divorce petition and serves it on the other spouse (respondent).

  3. The respondent has thirty days to file a response to the petition.
  4. One of the spouses may request temporary court orders by filing for in Order to Show Cause hearing. At the hearing the judge will order temporary child custody, support and restraining orders.
  5. The discovery process – spouses’ exchange information and documents including a Declaration of Disclosure.
  6. The spouses and attorneys will discuss settlement. If resolved an attorney will prepare a Marital Settlement Agreement to be signed by the spouses.

If not resolved the case will go to trial

After the trial has concluded, the attorneys will prepare a Judgement of Dissolution of Marriage, which will contain all court orders. The judgement is filed and the court will mail a Notice of Entry of Judgement to each attorney.

At times after couples have separated or divorced, parents may decide to move for a number of reasons, some which include a fresh start, new job opportunities, affordable accommodation, moving closer to family etc. However, despite the reasons for the move, parents need to make hard decisions about their children and where they will live and how the other parent will maintain a relationship with the child. In California, when parents divorce or separate a court will order custody and visitation arrangements that are based on the best interests of the child. The basic goal of the order is to ensure that the child has a frequent and continuous relationship with both parents. Hence, the court’s provision of an order in respect of custody and visitation agreement. When a move threatens the order in place the only way to change this order is by modifying it through the courts, if there is a significant change of circumstances.

Normally, in cases of divorce parents seldom agree on child custody and visitations and most often than not, parents find themselves opting for the court to make a decision in respect of child custody and visitation rights. When left up to the courts to make the decision on child custody and visitation, the decision is determined by what is in the best interests of the child and as such the decision is made. This article will discuss what visitation is and other factors that affect and determine visitation in a divorce.