FREQUENTLY ASKED LEGAL QUESTIONS
1. What is No Fault divorce? The marital status may be terminated by either party. California law requires only that a statement of irreconcilable differences exist. There is no requirement that the differences be defined. 2. What is the difference between Divorce and Dissolution? And, what’s the difference between Alimony and Spousal Support? The terms are interchangeable. The Family Code used the term dissolution of marriage, and this term appears on all legal forms filed with the Court. The federal law uses the term alimony, while California law uses the term spousal support. 3. What will happen to our property? All property (assets, debts) acquired during a marriage, while living in California, is presumed to be community property. The parties must make a full and complete disclosure of their assets and debts. A brief summary of how it works: First, the parties will determine if the property is community or separate. Separate property belongs to one spouse, and is property owned before the marriage, acquired by inheritance or personal gift. Community property is all other property acquired during the marriage. Second, the community property is valued by the parties or an outside appraiser. Third, the community property is divided by agreement between the parties. 4. How do we share our children? The Family Code presumes joint legal and joint physical custody. There is no presumption favoring Mothers or Fathers. There are several custody designations: Legal Custody – Both parents have the right to make decisions regarding health, religion, education, and welfare. Physical Custody – This defines how the time-share of the children is arranged between the parents, and is also based upon “best interest of the children.”
Joint Custody – Can refer to legal and physical as above, even though the time-share is not 50/50 between the parents.
5. How much support will I get, or have to pay?Child Support – It is the responsibility of each parent to support their child(ren). This amount is defined by a statewide Guideline controlled primarily by gross income comparison; tax filing status; time-share with the child(ren); and, allowable tax deductions (mortgage interest and real property tax). A computer software program is used to calculate the amount of child support.
Spousal Support (Alimony) – There is no statewide Guideline. However, the court will use a county guideline for a temporary order. For “permanent” support, there are factors which will be analyzed, such as, a comparison of historical earning ability of the parties, age & health concerns, length of the marriage (10 years is a long-term), minor child(ren) in the household, tax effect, and marital standard of living. There is no statute defining the length of time for support
6. What about tax issues?
There are several areas where parties must be cautious of tax issues. Here are some general areas:
Support – Spousal support is taxable to the recipient and deductible to the payor.
Property Division – Transfer of assets between spouses is not a taxable event. However, potential tax traps should be discussed, such as, capital gains tax, tax basis on a transferred asset, division of tax-deferred assets--such as retirement benefits, stock or stock options.
Tax Returns, Status, Dependents – It may be important to time the termination of marital status to allow for the filing of a joint or separate income tax return. Reviewing the allocation of the dependent deduction(s) and head of household credits is important.
7. Do I need a lawyer?
You do not need to be represented by a lawyer to engage in mediation. Each party may consult a lawyer at any time in the process, including review of the final Mediated Settlement Agreement.