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Getting Educated

https://vimeo.com/364400411

 

Introduction - Explains why you need to get educated about various legal topics before you begin settlement discussions with your spouse.
Division of Assets and Debts - Basic Information
Family Home - Information to know before negotiating division of the family home
Retirement Assets - Information to know before negotiating division of retirement assets
Life Insurance - Information to know before negotiating division of life insurance
Family Business - Information to know before negotiating the division of family business
Student Loans - Information to know about dividing student loans
Credit Cards - Information to know about dividing credit card debts and rewards
Reimbursement Claims - Epstein Credits, Watts Charges, and Family Code 2640 claims
Child Custody - important free information on legal concepts related to child custody
Child Support - Information needed before negotiating for child support
Spousal Support - How much alimony should be paid?

FREQUENTLY ASKED QUESTIONS

After I have filed my divorce petition and served my spouse, what do I do next?

You need to negotiate a comprehensive settlement agreement with your spouse. However, before you begin negotiations, you first need to “get educated” regarding the law.

Why do I need to get educated on the law before I begin to negotiate a settlement agreement with my spouse?

You must have a basic education on the law regarding key topics before you begin settlement negotiations. How can you negotiate a fair agreement about child support and/or spousal support if you don’t first understand how much child support and spousal support the court will likely award? How can you negotiate a child custody agreement if you don’t first understand the different types of custody orders that exist under the law? How can you divide your property and debts without first having an understanding about community property and separate property laws? You can’t negotiate any of these types of agreements without first being educated. If you attempt to negotiate a settlement without first getting educated, you are almost certainly going to end up with a poorly drafted settlement agreement and probably lose valuable rights to property and support.

How do I go about getting educated when it comes to the law?

You start by watching some or all of our “Getting Educated” videos. In the“Getting Educated videos, we will discuss basic information about key topics you will likely need to understand before you begin to negotiate with your spouse.

What is the difference between community property and separate property?

The easiest way to understand what community property is, is to start by saying what it is not. Property that is acquired during the marriage is normally going to be community property, unless it is “separate property”. So we are going to start by explaining what separate property is. There are four categories of separate property. If the property does not fall into one of the four categories of separate property, it is then going to be community property.

What are the four categories of separate property?

Separate property is going to fall into one of the four categories: 1) any property that you owned before marriage that you still own; 2) Any property you still own that you inherited; 3) Any property that you still own that was gifted to you (by your spouse or by anyone else); and 4) Property you acquired after the date of separation.

What about debt? Are there such things as community debt and separate debt?

Yes. Separate debt is debt that was incurred prior to marriage. For example, if you borrowed $10,000 from your parents before the date of marriage and never paid it back, upon a divorce, that pre-marriage debt would be your separate debt and would be assigned to you. Debt that is incurred during the marriage is generally community debt, but there can be exceptions.

If my spouse and I are going to agree to sell the family home, what are some of the items we are going to have to agree upon?

You and your spouse will need to agree on numerous issues including the following: 1) Which realtor will you use to sell the home? 2) At what price will the home be listed for sale? 3) When will the home be listed for sale? 4) What improvements will be made to the home before it is listed for sale? 5) Who will live in the house until it is sold? 6) Who will pay the expenses associated with the house until it is sold?

What would happen if I agree to sell my one half interest in the family home to my spouse, but she does not refinance the mortgage, but instead just keeps the original mortgage in place?

If you sell your one half ownership interest in the family home to your spouse and the mortgage is not refinanced, then your name will still be on the old mortgage. It does not ma er if you sign a deed removing your name from the title to the home, your name will still be on the loan. This can create at least two problems for you. First, if your ex-spouse fails to pay the monthly mortgage payments in a timely manner, your credit will be impaired. Second, if your name is on the old mortgage, you will have to disclose that loan obligation when you go to buy a new home for yourself and apply for a mortgage. Having your name on the old mortgage will make it more difficult for you to obtain a new mortgage when you go to buy a new home for yourself.

Are there different categories of retirement assets?

Retirement assets can be grouped into two main categories: 1) Defined contribution; and 2) Defined benefit. A defined contribution account is an account that contains an amount of money or stock that belongs to you or your spouse, such as a 401(k) account. A defined benefit retirement asset is typically a pension.

Can I withdraw funds from my 401(k) account to pay my spouse his or her one half community property share?

You can’t withdraw money from your account so long as you are employed by that employer, and even if you could, you would not want to make the withdrawal because you would then have to pay income taxes on the amount withdrawn, plus an early withdrawal penalty if you are under age 59 and a half.

How do I pay my spouse his or her one half community property share of a 401(k) account or pension?

You use a Qualified Domestic Relations Order, commonly called a “QDRO”. A QDRO is a special type of court order, authorized by federal law that permits the custodian of your 401(k) account to take a por=on of your 401(k) account assets and pay it over to your spouse as part of a divorce settlement. If you use a QDRO, there are no immediate income tax consequences to you or your spouse and no early withdrawal penalty. A QDRO can also be used to have a pension plan administrator pay an ex-spouse his or her one half community property share of a pension.

How do I go about getting a QDRO drafted?

There are two basic options. One option is to hire an expert to draft the QDRO. The experts that are in the business of drafting QDROs are typically accountants or actuaries, although some are lawyers. You can expect to pay somewhere in the neighborhood of $500 to $600 per QDRO. Another approach is to draft your own QDRO using a model and instructions provided by the retirement plan administrator or custodian.

Do I need a QDRO to divide an IRA account?

No. QDROs apply to “qualified” retirement plans. An IRA account is not a “qualified” retirement plan. You do not need a QDRO to split an IRA account.

What does “joint legal custody” mean when it comes to child custody?

Legal custody is all about making decisions regarding the health, education, and welfare of the children. There is “joint legal custody” and “sole legal custody”. Joint legal custody means you and your spouse equally share in the rights and responsibilities of making decisions that concern the health, education, and welfare of your children.

What does “physical custody” mean when it comes to child custody?

“Physical custody” refers to how much time the children spend with each parent. Like legal custody, when it comes to physical custody, you can have “joint physical custody” or “sole physical custody”. Joint physical custody means the parents are sharing physical custody of the children in some way. Many people think that “joint physical custody” means 50/50 custody. Although 50/50 custody is a form of joint physical custody, any arrangement whereby the children spend some amount of time in each parent’s physical custody is a “joint physical custody” agreement.

What happens if my spouse and I can’t reach an agreement about how to share custody of our children?

One option is to see if your spouse is willing to meet with a therapist that specializes in child custody issues. Oftentimes, a good therapist can help you come to an agreement on child custody issues. Another option is to meet with a private mediator to resolve the custody dispute.

What if my spouse and I just can’t agree on custody issues and end up in litigation over child custody?

If you end up having to litigate child custody disputes, the court will require you and your spouse to participate in a court program called “Child Custody Mediation” or sometimes it is called “Child Custody Recommending Counseling”. You will be required to participate in one of these programs before you a end any child custody hearing. We discuss how to prepare for and what to do during “Child Custody Mediation” or “Child Custody Recommending Counseling” in a video that is part of the contested divorce cases series of videos, in the section about “Temporary Orders”.

How long is child support paid?

Child support is owed until the child turns 18 years old. If the child turns 18 and is still a full-time student, then child support continues to be owed until the child graduates from high school. For example, if a child turns 18 years old in January of their senior year in high school and graduates the following June, child support is going to be owed until the child graduates. However, even if a child is a full time student, if they have not graduated from high school by age 19, then child support ends upon their 19th birthday.

Do parents have a legal obligation to pay for or contribute towards the cost of a child’s college education?

Courts do not have jurisdiction to order a parent to pay for their child’s college education. However, if a parent agrees to pay for part or all of a child’s college education expenses as part of a divorce settlement agreement, then the court will enforce that agreement.

Is the base amount of child support calculated using a computer program?

If you were to look at the child support laws for the State of California, you would see that the laws include a specific mathematical formula for calculating the base amount of child support that should be paid. The base child support number that the mathematical formula produces is called the “guideline” number. The child support formula is so complicated that you need a computer program to run the calculation. There are different child support computer software programs that are marketed. The programs go by different names, such as DissoMaster, XSpouse, SupportTax, and CalSupportPRO. They all produce about the same numbers.

How do I run the Dissomaster program?

When you open up the DissoMaster program to run the child support calculation, you will note that there are lots of lines for entering data. The data entry lines are listed on the left side. They start with “Number of Children”, and include items such as “Wages and Salary”, “Other Taxable Income”, “Health Insurance”, etc. There are over 30 data entry lines. Just to the right of those data entry lines, you have a column for “Father” and a column for “Mother. You enter data for father or husband in the “Father” column. You enter data for mother or wife in the “Mother” column. After you enter all of your data, you then push the “enter” key on your keyboard and the program calculates the guideline amount of child support.

What are some of the ways I can figure out how much the child support amount should be, without me having to go out and buy the DissoMaster calculation software and without me having to spend the time learning how to use the program?

There are a number of ways you can figure out how much the child support number should be without having to purchase the DissoMaster program. Almost all court houses will have computer terminals available to the public that have the DissoMaster software. Sit down at one of the terminals, click on the DissoMaster icon. Run your calculation and then print the calculation. If you don’t want to run the calculation yourself, ask the Family Law Facilitator to run the calculation for you. All courts have Family Law Facilitators. You can go on-line and use the State of California child support calculator for free. Google “State of California child support calculator”. Another option you may want to consider is contacting a family law a orney in your area and pay that a orney to run the child support calculation for you.

What are child support add-ons?

These are amounts paid on top of the base “guideline” child support number. Add-ons can include providing health insurance for the children and paying co- pays and deductibles; child care costs; extracurricular activity costs; educational costs; etc.

What is the difference between alimony and spousal support?

“Alimony” and spousal support are the same thing. Judges and lawyers in California call it spousal support, while the general public calls it alimony

What are the main issues when it comes to spousal support?

There are two main issues when it comes to spousal support: 1) Amount to be paid; and 2) Duration of the payments.

How do I figure out how much spousal support, if any, should be paid?

In order to understand how much spousal support should be paid, you need to understand that there two different types of spousal support and the method the court uses for determining the amount of each type of support is very different. The two types of spousal support are: 1) temporary spousal support; and 2) long term spousal support. Temporary spousal support is the amount of support that is paid from the beginning of the divorce process until you reach a settlement or go to trial. In a litigated case, it can take a year or longer to get to trial. The spousal support that is paid after a final settlement agreement is negotiated or after a trial does not have a special name, but we are going to refer to it as “long term spousal support”, even if the support may not be paid for very long.

How does the court determine the amount that temporary spousal support should be?

Courts use a software program to calculate temporary spousal support, just like they use a software program to calculate child support.

How do courts determine the amount of long term spousal support?

The courts do not, or at least are not supposed to, use a computer program to determine the amount of long term spousal support. Instead, they are required by law to perform what divorce lawyers call a Family Code 4320 analysis. Family Code 4320 sets forth a list of factors that the court is required to take into consideration when deciding how much long term spousal support to award and the duration of that support. There are a lot of factors listed in Family Code 4320. Those factors include items such as the income of the parties, the assets of the parties, the age and health of the parties, the duration of the marriage, the marital standard of living, and many other factors. You will be able to find a copy of Family Code 4320 in our Court Forms Database.

Does the length of the marriage play a major role in determining the duration of spousal support?

Yes. We have two types of marriages when it comes to the duration of long term spousal support: 1) Short-term marriages, which are marriages that lasted less than ten years; and 2) Long-term marriages, which are marriages that lasted over ten years. The duration of spousal support is very much related to the duration of the marriage.

What is a reasonable period of time to pay spousal support?

A reasonable period of time for short-term marriages is generally considered to be one-half the length of the marriage. In other words, if you were married for less than ten years, the expectation is that the spouse receiving spousal support should be able to become self-supporting in a period of time equal to one half the length of the marriage. This “half the length of the marriage” rule does not apply to long-term marriages that last for ten years or longer.

Are there certain events that will cause spousal support to end, regardless of how long the couple was married?

Yes. Spousal support will end upon the occurrence of certain events. If the “payor”, which is the person paying support, dies, spousal support ends. If the person receiving support dies, it ends. If the person receiving support gets remarried, spousal support ends. By law, spousal support terminates upon the death of either party or upon the remarriage of the recipient.

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