Q: How is child support determined?
A: Child support is based on a formula which is described in the Family Code. That formula has been put into a computer program which is being used by Judges and attorneys alike in the State of California.
The primary ingredients that make up the determination of how much child support is paid in this formula are the time each parent has with each child and the income of each parent. If one of the parties has remarried, the income of the parties’ new spouse is not taken into consideration in determining support, except to determine the tax base that the married couple will have. This will affect the amount of support that is paid or received.
Also, if the parties have children from other relationships, then they may get some kind of credit for the payment of support for those children or having those children live in their home. Other factors, such as whether or not the parties own their home and pay mortgage and real property tax payments, whether or not they pay health insurance, and others will affect the amount of child support.
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Q: How does the Court determine child custody?
A: In a child custody dispute, the parties must attend mediation provided to them at the Courthouse. The purpose of this mediation is to assist the parties in arriving at an agreement as to a specific custodial plan. If the parties cannot arrive at an agreement through mediation, then they will go into Court and let the Judge make the decision.
However, the parties can agree to have a private mediator, someone they hire who is outside the Courthouse, to interview them and the children, and make recommendations regarding a custodial plan if the parties cannot agree. If one of the parties does not like the recommendation of the private mediator, then he or she can go into Court and request the Judge to make a different finding. However, the Judge will often follow the recommendations of a qualified and experienced mediator. Therefore, be sure that you are clear that you will follow the recommendations of the mediator no matter what the result and that you have confidence in the mediator.
Currently, Court systems are in favor of parties spending more time with the children. In other words, there is an encouragement for parents to have as much time with the children as possible. This moves away from the very traditional situations where mothers had primary custody of the children and fathers saw them one night a week and every other weekend. Therefore, in a normal situation, where there are no abuse or other dangers to the health and welfare of the children, you should expect that each parent will have significant time with the children.
As the children get older, especially over the age of 12, they will have more input into the decision making process when they meet with the mediator. However, most Judges do not like to have children brought to Court and hear the voice of the children in the Courtroom. The child can be heard through the mediator or a child therapist if one is agreed to or appointed in a particular case. In more involved cases, where the parties cannot agree on a custodial plan, the Court can order a custody or a psychological evaluation. This type of evaluation involves a mental health professional interviewing the parties, the children, and other collateral sources for the purpose of making a recommendation to the Court. It is these types of evaluations which are more costly and time consuming than the other mentioned above.
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Q: How is property divided in California?
A: California is a community property state, which means that property acquired during the marriage is usually property of both parties. Each party has a one-half interest in the community estate and, therefore, property must be divided accordingly so that each party receives an equal value of property. Items that were gifted or inherited by one party during the marriage can remain that person’s separate property and will not be included in the community estate.
However, if a party receives an inheritance of cash, and puts it into a joint account, and that money is mixed up with other community property funds, then the separate property quality of that inheritance may be lost. Yet, if one of the parties was given a piece of furniture by a grandmother through a Will, then that piece of furniture remains the property of that party.
It doesn’t really matter who pays for the property so long as it is acquired during the marriage. For example, if one of the parties is working and the other is not, and, after they are married, they buy a house full of furniture with one of the parties’ paychecks, then all of the furniture is community property and each party has a one-half interest.
The Court, upon dissolution of marriage, usually divides the property so that each party receives equal value. This means that the particular items that you receive in a settlement are less important than their total value. The most important thing is that the total value of the items that you receive are equal to the total value of the items that your spouse receives.
As for cars or other vehicles, the Courts will usually allow the person who has been using that car to keep that car; however, they will also have to pay the debt on it. Therefore, any person who receives furniture will also pay the debt on that furniture. However, in dividing up and figuring out the value of property, it is the equity in each of these items that determines the value.
Remember, too, that debts are also divided equally by the court in most divorce situations. If one party takes more of the debt, then that person may also take more of the assets to offset the debt.
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