Family Law Attorney Irvine

Contested v. Uncontested Divorce

Couples in California have two options to resolve the issues in their divorce. Each option has its pros and cons, but the method you choose will have a significant impact on how custody is established, property divided, and support determined.

• Contested Divorce - When couples disagree on key issues like child custody, support, alimony, and property division, it becomes a contested divorce. These cases are litigated in court.
• Uncontested Divorce - When you and your spouse agree to all the aspects of a divorce, it is called an uncontested divorce. It can be resolved by negotiation or mediation, offering a quicker and less costly alternative to trial.

Whether you prefer to settle disputes amicably or are prepared for a courtroom battle, we will protect your rights and aim for the best possible outcome.

High Asset Divorce Considerations

A high net-worth divorce is one where the spouses have assets with significant monetary value. These kinds of divorces are governed by the same principles as a traditional divorce but are more complex due to the complexities of assets and debts owned by the spouses. Here are the key considerations of a high-asset divorce in California:

• Identification of Assets

  The first consideration is to identify community or marital property. The court will determine whether or not some or all of the assets were owned by the parties prior to the marriage, whether the couple entered into a marital agreement, and whether or not either party inherited any property.

• Valuation of Assets

  Valuation of complex assets like stocks and business interests can be difficult, especially if they are fluid. Experts like forensic accountants and business appraisers may be called in to examine documents, conduct research, and prepare a report appraising or valuing all community property.

• Tax Implications

  Dividing property with significant value may trigger tax consequences. Once again, independent experts, like a CPA or tax attorney, may be brought in to determine the tax consequences of property division.

• Spousal Support

  There may be instances where one spouse focused on growing the family wealth, whereas the other concentrated their time on raising children. If there’s a significant income disparity after divorce, the financially disadvantaged spouse has the right to seek alimony. They may either agree to an amount and duration of alimony, or the court will decide.

At Jos Family Law, we are experienced in high-asset divorce cases in California. Our attorneys can help with:

1. Identifying community vs. separate property
2. The valuation of complex assets like real estate, businesses, stocks, retirement accounts, etc.
3. Uncovering hidden or undervalued assets
4. Avoiding tax traps after asset division
5. Determining alimony based on complex income sources

Legal Custody vs. Physical Custody

There are two kinds of child custody:

• Legal custody, which means the right to make important decisions for children (like healthcare, education, religious upbringing, etc.)
• Physical custody, which means where the child will reside.

Legal custody can be:

1. Joint: Both parents share decision-making rights on important matters for their child.
2. Sole: Only one parent has the exclusive right to make important decisions for their child.

Similarly, physical custody can:

1. Joint: The child lives with each parent, as per a timeshare agreement.
2. Sole: The child lives with one parent most of the time and usually visits the other parent.

Joint physical custody doesn’t mean the child will spend 50% of the time with each parent. This is because it’s hard to split time in half, and so even a 60% - 40% timeshare ratio would be considered joint custody. The parent with the larger share is called the primary custodial.

It is possible that the court orders joint legal custody but not joint physical custody. This means both parents share equal decision-making rights, but the child resides with one parent the majority of the time. Usually, the non-custodial parent will have visitation rights to spend time with the child.

Calculating Child Support Obligations

The basic formula for calculating child support is relatively straightforward. As a general rule, the greater the income of a parent and the less time the higher-earning parent spends with the child, the more child support they are obligated to pay. The formula is:

CS = K(HN - (H%) (TN))

• CS is the child support amount
• K refers to the combined total income of both parents that can be allocated to child support
• HN is the higher-earning parent’s net monthly disposable income
• H% is the percentage of time the higher-earning or primary custodial parent has compared to the other parent.
• TN is the combined total net monthly disposable income of both parents.

The combined total income of both parents (K value) is determined using another formula based on the parent’s net disposable income and the time the higher-earning parent spends with the child. Various multipliers at various income levels are then applied to that number.

Enforcement & Modification of Child Support

In California, spouses wishing to part ways have two options - divorce or legal separation. Knowing the difference between the two is essential to making informed decisions that are likely to have a long-term impact on your life.

• 1. Enforcement

  If the obligated parent does not pay support, the receiving parent can enforce the order by filing a request with The Department of Child Support Services (DCSS). DCSS have various tools to enforce child support payments, such as income withholding orders (IWOs) and wage garnishment, sent directly to the payor’s employer. Both these measures are meant to minimize further enforcement actions, which may include:

  1. Suspension of Driver’s License
  2. Passport Denial
  3. Bank Levy
  4. Property Lien
  5. Interception of Unemployment Benefit

  Failing to pay child support can have serious legal consequences. Non-compliant parents risk facing contempt of court charges, fines, and even criminal prosecution.

• 2. Modification

  Significant change in circumstances of either parent is a valid ground to modify a child support order. The court may approve the change if it has sufficient grounds to believe that a modification is necessary, recognizing that the needs of a family may evolve over time. Some reasons to seek a modification include:

  1. Increase or decrease in either parent’s income
  2. Changes in custody or visitation schedule
  3. Evolving needs of the child, such as medical or educational costs

  Either parent may request a modification, showing evidence of the changed circumstances and how the change is consistent with their needs and the child’s best interests. The court will approve the modification to ensure the child support order remains fair and appropriate.

The Difference Between Permanent & Temporary Spousal Support?

California law allows two kinds of alimony: temporary and permanent.

Temporary spousal support is granted during a divorce or legal separation if a party files such a request. It is meant to preserve the status quo of the parties while the divorce is still pending, allowing them to maintain a standard of living similar to what was established in their marriage. The court will set a temporary hearing where both parties must file an income and expense declaration. For temporary alimony, the court will only consider the needs of the requesting party and the obligated party’s ability to pay.

On the other hand, permanent spousal support is calculated based on all the factors mentioned above and is ordered after the divorce is finalized. Permanent spousal support can be modified or even terminated in case of:

• Death of either party
• Remarriage of the supported party
• The court-set date
• Significant change in circumstances of either party

What is Regarded as Community Property?

The following are examples of what can be considered community property in California if acquired during the marriage:

• Income
• Bank Account
• Retirement Account
• Real Estate
• Business Interests
• Personal Belongings (Art, Jewellery, & Collectibles)
• Intellectual Property
• Debts

It’s important to know about California’s community property rules. If you don’t, you may accidentally convert your separate property into community property and lose a portion of your hard-earned asset.

For instance, suppose you buy a home after marriage with your pre-marital savings. If you don’t take the necessary steps, it will be regarded as community property, and you’ll own just 50% of it if your marriage ends.

Division of Business, Real Estate, & Investments

Property division laws may seem straightforward, but are they really that simple? The process is long and complex - courts must first identify all assets and liabilities, classify community versus separate property, value all assets and debts, and consider tax consequences before dividing marital property.

However, issues arise when significant, high-net-worth assets are involved. These may involve:

• Marital Homes, Vacation Homes, & Rental Units

  Whether it’s a marital home or a rental home, real estate acquired during the marriage falls under community property. This means it will be split evenly, even if titled under one spouse’s name. To divide real estate, the court may order its sale and divide proceeds between the spouses or ask one spouse to buy out the other’s interest. If the home was bought by separate funds but renovated or improved by community funds, the court may apply the Moore/Marsden analysis for division.

• Businesses

  Any business started or acquired during the marriage is typically community property. The court may require a forensic accountant to determine the value of the business before dividing it. It would be divided equally even if the business started before the marriage, but its value rose during the marriage. The court may award the company to one spouse and offset the value by a payout or allocating other assets to the second spouse.

• Investments & Retirement Accounts

  All contributions made towards investment accounts, stocks, pensions, and retirement plans are divisible if acquired during the marriage. These are highly complex, often requiring financial experts to trace what portion is separate and how much is community.

What Constitutes a Domestic Relationship?

The law accords protection to victims of domestic abuse by issuing restraining orders. But, before applying for a domestic violence restraining order (DVRO), you must first understand how California law defines domestic relationships. A DVRO can be issued against:

1. A current or former spouse
2. A person you are currently or were formerly dating
3. The parent of your child
4. A cohabitant
5. A person closely related to you (grandparents, in-laws)

Understanding who can file a DVRO is the first step, the second being evidence that shows a restraining order is warranted.

Emergency & Permanent Restraining Orders

California provides certain lines of defense to victims of abuse. The first line of defence is the emergency protective order (EPO). When a police officer responds to a domestic violence situation, they have the authority to speak to the judge and request an EPO. If the judge agrees that an EPO is necessary, it will be immediately issued and enforced. An EPO is valid for 7 days and can be replaced by a temporary and permanent restraining order once it expires.

1. Temporary Restraining Order (TRO) - The victim may file paperwork with the court to obtain a TRO against the abuser. The judge will hear the petitioner and if satisfied, will pass an ex-parte TRO, typically lasting for 25 days or until replaced by a permanent restraining order.
2. Permanent Restraining Order (PRO) - For a PRO to be granted, the judge will give a date for a full court hearing, offering both parties the chance to argue and make their case. If granted, a PRO can be valid for up to 5 years. When it’s about to expire, the court may schedule another hearing to determine if it should be further extended.

Whether emergency, temporary, or protective, once issued, a DVRO is meant to keep the abuser away from you and your family. A restraining order will require the restrained person to:

1. Stay away from your home, place of work/business, and child’s school
2. Stop contacting you
3. Move out of the shared residence
4. Surrender firearms to authorities
5. Complete a batterer’s intervention program

If a DVRO is issued against you, not complying with its terms may be seen as a criminal violation. You will be charged, arrested, prosecuted, and convicted in case of serious or persistent violations.

If you need a protective or a restraining order against your abuser, Jos Family Law can help. We’ll explain your rights and options during this difficult time and protect you and your loved ones at all costs.

Prenuptial/Postnuptial Agreements & Property Division in California

Prenups and postnups are agreements between couples that dictate what happens to their current and future assets during marriage and in the event of a divorce. It must be remembered that without a marital agreement, California’s community property laws will govern this, with all assets and debts earned during the marriage being split equally.

Marital agreements allow you to alter California’s community property rules and divide assets and debts the way you want to, even if not equally. The agreement may relate to all financial interests, income, real estate, and debts.

Parties must disclose financial information to each other. Each spouse must be fully aware of the other’s financial situation before signing the agreement. Additionally, each party must have at least 7 days to review the final draft before signing it, which should be in the presence of both party’s attorneys.

Here’s what a prenup may include:

• Age, salary, and medical conditions of each spouse
• Details of a previous marriage
• A comprehensive list of each party’s assets and liabilities, clearly defining what constitutes marital property and separate property.
• Terms of property division and spousal support
• Other financial responsibilities, such as household expenses and savings contribution

A well-written marital agreement should clearly illustrate the party’s intentions with regard to what should be treated as marital property. Some spouses choose to completely waive community property rules so all joint assets will be decided by them rather than divided 50/50.

Our Irvine family law attorneys can help you make informed decisions during this process. We can draft a prenuptial or postnuptial agreement for you, protecting your rights and avoiding costly mistakes. Carefully weighing your needs and situation, we will craft the best plan for your future.

Enforceability of Prenuptial Agreements Under California Law

Prenuptial agreements allow the couple to dictate ownership of their respective assets and how joint assets will be divided upon the divorce or death of a spouse. But, for a prenuptial agreement to be valid and enforceable, the following criteria must be met:

1. Voluntary: Both parties must enter into the contract willingly without any fraud, coercion, misrepresentation, or pressure.
2. Disclosure: Both parties must be fully aware of each other’s assets and liabilities before signing the agreement.
3. Legal Representation: It is recommended that both parties must be represented by independent legal counsels before executing the agreement. If not, they must waive legal representation in writing.
4. Consent: Each party must fully understand the terms of the agreement and consent to them voluntarily.
5. Fairness: The agreement must not be unfair to either party. The terms should not be unconscionable or grossly unfair to one party when the contract is executed.
6. 7-day Review Period: Both parties must have had atleast 7-day period to review the agreement from the time they were presented with the final agreement.

Establishing & Contesting Paternity

The most conclusive proof of paternity is the father’s name on the child’s birth certificate. There are two ways to establish paternity:

1. Voluntary Declaration of Parentage (VDOP)

   Parents can voluntarily establish paternity by signing an acknowledgment document at the hospital during childbirth. A VDOP firmly establishes parental rights and is legally binding.

2. Court Order

   If paternity is disputed, either parent may request DNA testing to determine the father. The court will order genetic testing of the mother, child, and presumed father to legally establish paternity

The presumed father or any other individual has only 2 years from the child’s birth to challenge paternity in court. However, once the DNA test results confirm fatherhood, it can be extremely difficult to rescind it.

How Does Custody Work for Unmarried Parents?

• Mother

  An unwed mother’s parental rights to custody can be easily established. The mother’s name on the birth certificate is conclusive proof of parentage, establishing her parental rights.

• Father

  The unwed biological father does not gain parental rights unless his name is on the child’s birth certificate or voluntarily agreed by the mother and established in a VDOP. If parentage is confirmed, the man is considered the child's legal father. Thereafter, he can petition the court requesting custodial rights. However, his parental abilities will still be assessed before he is granted joint custody.

Once paternity is confirmed, the father earns the right to make parenting plans with the mother, deciding physical custody, legal custody, and visitation schedules. The father also acquires the right to pay child support.

Why Choose Our Irvine Family Law Firm?

1. In-depth Knowledge of the Local courts & Procedures

   At Jos Family Law, we have over 55 years of combined experience in helping clients navigate California family laws & procedures. We also understand the local court system and judges and how to tip the scales in your favor.

2. Personalized Legal Strategies For Your Family

   Our attorneys offer personalized attention to every client, tailoring strategies to their needs, goals, and situations.

3. Strong Advocacy With a Compassionate Approach

   We’re settlement-minded but always trial-ready. We prioritize amicable methods to resolve your issues but aren’t afraid to protect your rights aggressively in court.

4. Clear Communication

   ?Our law firm clearly communicates with clients at all times, keeping them informed of developments, their options, and rights so they can make informed decisions about their future.