What happens when a spouse dies during a divorce case? First, the marriage is dissolved on the date on death of a spouse under California Family Code Section 310. Death of a spouse automatically terminates the marriage. Second, death relieves a spouse from paying further spousal support. Under Family Code Section 4337 the obligation of a party under an order for the support of the other party terminates upon the death of either party. Although the general rule is that following the death of a party the court is deprived of jurisdiction to make further orders concerning attorney’s fees, the court retains jurisdiction to enforce a right to attorney’s fees adjudicated before the party’s death. See In re Marriage of Lisi, 39 cal app 4th 1573. If you are going through divorce, call Morales Law today for a free consultation. (805) 845-5405.
In a California divorce you will most likely hear the term 'Epstein Credits.' Epstein credits are credits in the division of community property give to a spouse who has paid community debts post separation or by using separate funds. This rule comes from a family law case, Marriage of Epstein, (1979) 24 Cal.3d 76, 84-85. For example, if you and your spouse separate, one party may continue to make payments on credit card debt incurred during the marriage for living expenses. The spouse making the payments would be entitled to a credit in the amount of 1/2 of the payment made. Even if the debt was incurred during the marriage, if the debt was it incurred for the benefit of the community, it may deemed a spouse's separate debt and no Epstein credit will be awarded. See Family Code Section 2625. If you are thinking of getting divorced, call Morales Law for a free consultation at (805) 845-5405.
In a California divorce case, divorcing couples are often mystified by the term 'community property.' In its core definition, community property is a simple concept. Yet, there are many nuisances which make community property rules complicated. In short, community property is all property and income received by either spouse during marriage, unless it is separate property. Upon divorce, community property will be divided equally between the parties. Separate property is property acquired before marriage, after separation, by gift or by inheritance of a single party. Separate property will be awarded solely to the spouse who acquired the property. Wihtout getting into the issue of Epstein Credits, Watts Credits, or other community property rules, the above rules apply. Be aware that the community may have gained interest in separate property. For example, a separate property mortgage may have been paid during marriage, entitling the community estate to a reimbursement credit in the amount of the principal payments made during marriage. If you would like a divorce free consultation and to learn more about California's community property rules, call Morales Law today for a free consultation. (805) 845-5405.
Unless you have been living under a rock, you've heard of the Ashley Madison hack. Ashley Madison is a website which connects married persons looking to cheat on their spouses. The site was recently hacked, exposing famous people, politicians, sports stars and possibly your next door neighbor! Since the hack, our office received calls saying their spouses were exposed. Many were under the misconception that if a spouse cheats or the divorce was caused by infidelity, then the non cheating spouse is entitled to benefits. This is inaccurate. California is deemed a "no fault state" meaning the law does not favor a non cheating spouse or penalize a cheating spouse. In short, California divorce law does not care why the divorce failed, with limited exceptions. Courts will make child custody rulings that are in the best interest of the children, will award spousal support pursuant to the factors listed in CA Family Code Section 4320, and award child support pursuant to the statewide formula. Yet, circumstances of the infidelity may have an impact of child custody. For example, did a spouse neglect the best interest of the child in order to cheat? Did your spouse pay for the services of a prostitute, thus breaking the law? Does the new mate have a criminal history and will continue to be around the children? All of these examples could factor into a child custody analysis. If you have been affected by the Ashley Madison hack, call Morales Law today for a free consultation into your divorce, child custody, child support, spousal support or community property division matter. 805-845-5405.
The goal of Spousal Support in California is to make both spouses self-sustaining. With that being said, a marriage lasting longer then then years is deemed a long-term marriage, and spousal support can be awarded for an indefinite period of time. Spousal support is determined by reviewing the factors listed in California Family Code Section 4320. Temproary spousal support can be determined be running a dissomaster calculation, pursuant to Local Rule 1418. This is determined by both parties income, tax filing status, allowable deductions from income, etc. Below is a list of the spousal support factors listed in Cal. Fam. Code Section 4320. Call today for a free consultation regarding spousal support. CALIFORNIA FAMILY CODE SECTION 4320 In ordering spousal support under this part, the court shall consider all of the following circumstances: (a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. (2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties. (b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party. (c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living. (d) The needs of each party based on the standard of living established during the marriage. (e) The obligations and assets, including the separate property, of each party. (f) The duration of the marriage. (g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party. (h) The age and health of the parties. (i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party. (j) The immediate and specific tax consequences to each party. (k) The balance of the hardships to each party. (l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties. (m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or4325. (n) Any other factors the court determines are just and equitable.
An act of domestic violence can affect a court's custody determination and ruling. A court will always make a custody ruling which the court feels is in the best interest of the child. California Family Code Section 3044 states there is rebuttable presumption that it is detrimental to the child's best interests for an award of sole or joint physical or legal custody to a person who has perpetrated domestic violence against a Spouse (or non martial Mother or Father) or child. This gives an advantage in a custody dispute to the party who was the victim of domestic violence. The perpetrator of domestic violence will already be presumed to not be a good parent and the children should not be in his or her custody. The perpetrator will have to prove that an award of custody will be in the children's best interest, despite the domestic violence. This is a tough hurdle to climb. If you are in a custody dispute and are the victim of domestic violence, or have been accused of domestic violence, call Morales Law today for a free consultation. (805) 845-5405. Below is the full text of California Family Code Section 3044: California Family Code Section 3044 (a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child's siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence. (b) In determining whether the presumption set forth in subdivision (a) has been overcome, the court shall consider all of the following factors: (1) Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to rebut the presumption, in whole or in part. (2) Whether the perpetrator has successfully completed a batterer' s treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code. (3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate. (4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate. (5) Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole. (6) Whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions. (7) Whether the perpetrator of domestic violence has committed any further acts of domestic violence. (c) For purposes of this section, a person has "perpetrated domestic violence" when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child and the child's siblings. (d) (1) For purposes of this section, the requirement of a finding by the court shall be satisfied by, among other things, and not limited to, evidence that a party seeking custody has been convicted within the previous five years, after a trial or a plea of guilty or no contest, of any crime against the other party that comes within the definition of domestic violence contained in Section 6211 and of abuse contained in Section 6203, including, but not limited to, a crime described in subdivision (e) of Section 243 of, or Section 261, 262, 273.5, 422, or 646.9 of, the Penal Code. (2) The requirement of a finding by the court shall also be satisfied if any court, whether that court hears or has heard the child custody proceedings or not, has made a finding pursuant to subdivision (a) based on conduct occurring within the previous five years. (e) When a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant, admissible evidence submitted by the parties. (f) In any custody or restraining order proceeding in which a party has alleged that the other party has perpetrated domestic violence in accordance with the terms of this section, the court shall inform the parties of the existence of this section and shall give them a copy of this section prior to any custody mediation in the case.
Victims of domestic violence are protected under the law. If you are a victim of domestic violence, you should contact the police immediately. Domestic violence can affect spousal support. Under California Family Code Section 4325(a), a criminal conviction for an act of domestic violence by one spouse against the other entered by the court within five years prior to the filing of a dissolution proceeding CREATES A REBUTTABLE PRESUMPTION that any award of temporary or permanent spousal support TO THE ABUSIVE SPOUSE should not be made. Even if there is no criminal conviction, under California Family Code Section 4320(i), a court may consider documented evidence of any history of domestic violence between the parties in determining spousal support. This can also act as a bar to an award of spousal support. Some parties attempt to use false accusations of domestic violence to get out of paying spousal support. It is important to hire an attorney to combat these false accusations. For unrepresented parties, accusations of domestic violence raises a variety of legal pitfalls. If you are a victim of domestic violence, or have been falsely accused of domestic violence, give us a call for a free consultation. (805) 845-5405.
Santa Barbara divorce lawyer Marcus Morales discusses what to consider before filing for a divorce. Filing for divorce is a painful process, financially and emotionally. As a Santa Barbara family lawyer, I recommend all my clients consider the following steps prior to filing for divorce. 1. Speak with your spouse. The most expensive divorce cases occur when the divorcing couple refuses to communicate. Speak with your soon to be ex about financial obligations, emotions, children, etc. Studies show people who voluntarily make agreements in divorce cases are happier with the outcomes then people who go to trial. Of course, if a spouse is being unreasonable, settlement might not be obtainable. Talk to your soon to be ex to see if a collaborative approach is possible. 2. Speak with an attorney. Our Santa Barbara family law attorney will be able to give you the outline and structure you can expect. If your seeking a collaborative approach, we can run child support and spousal support calculations and property division fair to each party. If you need support immeidately, we can file a Request For Order. We have the knowledge and experience necessary to handle your case and get you the best possible result. 3. Open a separate checking account. Do this prior to filing to divorce. Once you file for divorce, the Automatic Restraining Order attached to the summons (commonly referred to as ATROS) prohibits changing or manipulating certain assets. That's why it is important to set up your own checking account ASAP. After opening a new checking account in only your name, deposit all post separation earnings into this account. This will ensure adequate tracing of all post-separation earnings and ensure all of your post separation earnings remain your sole and separate property. Remember, your divorce can be finalized no earlier then 6 months after service. Take a deep breath and remember this is not the end. It is a new beginning. Let us help you with your fresh start. Call today for a free consultation (805) 845-5405.
Recently, Mr. Morales won a trial whereby his client was awarded sole legal and physical custody. Only supervised visitation was awarded to the other party. If you have a custody dispute, call Morales Law for a free consultation. We will vigoursly pursue your rights and ensure your children are safe. Past ste results do not guarantee future results in your case.
The California Supreme Court recently made a landmark decision regarding the date of separation. The court ruled that a married couple must be living separate and apart, not in the same home, to be deemed legally separated. This is significant as the date of separation determines the end of the community estate. After the date of separation, each parties earnings are their own. Further the date of separation determines important reimbursement and other credits a spouse may have to pay to another. So, the moral of the story is if you want to be deemed legally separated, then one party needs to move out. Plain and simple.