Divorce, Alimony & Child Support

You should never agree to a divorce without at least having a telephone
consultation with an attorney. Your case may be simple, but it usually
is not as simple as you think it is. I represent both husbands and
wives in divorce proceedings, and I will be happy to discuss your
situation with you and explain any rights and obligations you may have
which you may not have thought of. I will also discuss with you the
potential cost of legal representation.

    Divorce (or “dissolution of marriage”) involves several separate and
distinct matters:

(1) Termination of the marriage, restoring you to the status of an
unmarried person. This is the simple part of a divorce.

(2) Alimony (or “spousal support”). Either the husband or the wife may
be entitled to temporary support during the litigation and to permanent
support thereafter. “Permanent” support is not necessarily permanent:
it may be limited to a certain period of time depending on the relative
financial circumstances of the husband and the wife, their ages, their
educational and employment backgrounds, their health, and other
factors. The amount and duration of spousal support is left to the
reasonable discretion of the trial judge. When the supporting spouse
dies, his or her obligation to pay support terminates.

(3) Child support is almost always payable by one parent to the other.
Usually the parent who provides the child’s primary home receives child
support from the other parent. The amount depends on the relative
financial circumstances of the parents, the amount of time the child
spends with each parent, the number of children each parent has from
other relationships, and other factors. The amount and duration of
child support is fixed by statute (and computer programs) and the trial
judge has very little discretion to vary from the statutory child
support guidelines which have been fixed by the state legislature.
Child support is payable until the child reaches 18 years; after that,
child support continues if the child is still in high school until he or
she graduates, quits, or reaches 19 years of age. When the supporting
parent dies, his or her obligation to pay child support continues and
his or her estate can be required to continue making the payments.

(4) Child custody and visitation. Unless the parents agree on custody
and visitation, they are required by law to attend orientation and
mediation sessions at Family Court Services, an agency which is an
adjunct of the family court. Discord between the parents creates very
serious problems for their children, and it is therefore the goal of
California’s family law to help the parents minimize the impact of their
separation and divorce on the children by helping them work together as
parents even while they are disagreeing on everything else. The law
assumes that the child is best served by spending a lot of time with
each parent; that means substantial “visitation” time with the parent
who does not have primary physical custody. (There is an obvious
exception, of course, if one parent is seriously abusing a child,
sexually or otherwise.)

(5) Division of community property including assets and debts. The law
requires that the community property be divided equally between the
husband and wife, unless they agree to a different division. There are
special rules for personal injury damages. Community assets include all
assets acquired between the date of marriage of the date of separation,
with a few exceptions such as gifts and inheritances. Any retirement
benefits which accrue during the marriage are community property.
Community debts include all obligations incurred by either the husband
or the wife during the marriage. The husband and wife have mutual
fiduciary obligations to one another, and either one may therefore be
charged for community assets which he or she gives away without the
consent the other spouse. During the divorce proceeding the law
requires each spouse to fully disclose to the other all assets and debts
including business opportunities known to him or her. Separate property
of either spouse is not divided. Separate property includes property
acquired before the marriage, after separation, and sometimes during the
marriage. This is an area of the law which no one should ever try to
deal with without the advice of a lawyer because of its many
complications, and because a mistake may have very long term adverse
consequences.

(6) Attorney fees and other litigation costs. The spouse who has the
greater financial ability may be ordered by the divorce court to help
pay the attorney’s fees and other litigation costs of the spouse with
fewer financial resources. Also, the courts strongly encourage the
parties to act in good faith by full disclosure of information, by
negotiating in good faith, and by not prolonging the litigation without
good reason. If the divorce court believes that one spouse had not
acted in good faith, the court may order that spouse to pay attorney
fees to the other spouse as a sanction or punishment even if he or she
does not have greater financial resources.

-Thomas Roland
tomroland@tomroland.com
(510) 841-1500
(510) 217-3589 Fax

(510) 708-7303 Cell