J.D. Harvard Law School ‘73
M.A. Columbia University
B.A. Yale University
Mediator, Judge Pro-Tem
Certified Family Law Specialist
licensed by the State Bar of California
Stan is a member of the
San Diego North County Bar Association.
Licensed to practice in California, Maryland, Washington D.C., & Georgia
California’s divorce law has given husbands, wives, and domestic partners of any persuasion the right to dissolve their marriages or domestic partnerships on the basis of irreconcilable differences. Fault is not an issue. Singing,“You cheated, you lied, you said that you loved me,” in Family Court gets you nowhere. The process is also form driven. There is one for almost everything and you have to use them. And if you force yourself to read them carefully they do make sense. Better yet, if you and your attorney fill them out completely when you’re supposed to and follow the italicized instructions exactly, things will go along much more quickly and much less expensively than otherwise. The California divorce law basics are not complex. Dissolution of a marriage or a domestic partnership involves three major issues: Property Division, Child Support and Child Custody (only if you have minor children), and Spousal Support.
The first issue is identifying all of the assets and debts both of you have, characterizing each as community or separate, dividing the community items in half, and confirming which separate items belong to each of you. Everything you earn or acquire while you were married (which for convenience in this discussion includes being in a domestic partnership) and still living together (before your date of separation) is presumed to be community, the same for debts. Separate assets and debts are those you had before you married, gifts or inheritances you received while married, and assets and debts explicitly acquired by you as separate property while married, unless you mixed up separate with community so you can no longer identify the separate. Do your best to accept the proposition that fifty cents of every dollar you ever earned while married belonged to the other guy. It’s true unless you have a prenuptial agreement that says otherwise.
In a California divorce the second issue is child custody and support. These days you have to be a very bad person or live in Outer Mongolia not to have joint legal and physical custody, so arguments over sole legal or physical custody have largely given way to arguments over timeshare - the ratio of the time (as a percentage) each of you has responsibility for the kids. If you can’t agree on who has the kids when, don’t start World War III over it. The State will happy to decide what’s best for them whether you like it or not. Before a judge can make an order on the subject you have to go to mediation with Family Court Services. If you still can’t agree, the FCS mediator will recommend a timesharing schedule to the judge, and the judge will adopt the recommendation as the order almost every time.
Now that you know the time share percentages, calculating child support is easy. A computer program is mandatory. Although the program is the most complicated in the country, the inputs are simple. The first is the timeshare of each party. The second is the average monthly income of each party over the past twelve months, which for most people is not hard to determine. Sorry, debts don’t count in determining what you pay. Neither do expenses, except for health insurance, child care costs, and a few other deductions. If you can’t manage your child support and your debts at the same time, your next stop may be bankruptcy court.
The third issue is spousal support, which is either temporary (prejudgment) or permanent (post judgment). You can agree on this yourselves. If you can’t the computer program for child support also spits out a number for temporary spousal support. It’s not mandatory to use the number for temporary support, but it’s usually what’s ordered. The judges aren’t supposed to use the program for permanent spousal support, but they do anyway - nobody really knows what to do with the specific factors set out in the Family Code for permanent support, although everybody agrees that permanent spousal support should probably be lower than temporary. Unless you’ve been married for only a few years, the judge will probably not order a termination date for spousal support. If you want it recalculated or terminated you’ll have to come back later and convince the judge that something has changed to justify doing so. Each party has an obligation to become self supporting and to contribute to the support of the kids, but it’s easier to announce that rule than enforce it. Compelling a previously non-working spousal support payee back into full-time employment is a protracted and expensive proposition.
And there you have it. In a divorce the devil is in the details.
Divorce Attorney Stanley D. Prowse is a Certified Family Law Specialist. We welcome your legal inquiries.