Step 5: property, child custody, and spousal support
In almost every contested divorce (or uncontested ones) the major points of contention revolve around issues of property division, child custody or spousal support. If you and your spouse cannot come to an agreement about these issues, you should know how California law governs them.
Additionally, if you and your spouse can’t agree on some items, instead of consulting an attorney, it may be better to simply use a mediator to help both of you come to an amicable agreement and this will save you alot of money in the long run.
Under California law, all community property—which is property pooled by both spouses during the marriage—must be divided equally. Separate property which belongs wholly to one spouse may have been acquired in the following ways:
- Owned prior to marriage
- Acquired through a gift or inheritance
- Obtained following a separation but prior to divorce
- Designated as separate through a prenuptial agreement
Once all of the community property and debts are identified, they must be assigned a monetary value. This may be performed by an appraiser.
Division of property may take several forms. Some assets can be divided equally, like cash or multiple goods. Indivisible assets may be assigned to one spouse by the judge while another asset of commensurate value is assigned to the other spouse. In some cases, a judge may award a share of the property to one party while providing the asset to the other; this essentially makes both spouses co-owners.
Debts are also assigned in a similar manner to each spouse. While the judge may assign a debt to one spouse, this may not relieve the other spouse of repayment obligations in the eyes of the creditor. That is why it is often recommended, that any marital debts be repaid during a divorce.
As in most states, California determines child custody based on the best interests of the child. The judge must abide by certain laws including
- Custody of a child cannot be awarded to the rapist who impregnated the mother.
- Custody of the child cannot be awarded to a parent who murdered their spouse
- Custody of the child cannot be awarded to a parent who has been convicted of physical or sexual child abuse unless there is evidence that the parent poses no risk to the child
- Other factors like alcohol or drug use may play a role in custody decisions
- Children with a measure of maturity may express their preference and influence these decisions
- California courts encourage meaningful, positive interactions from both parents and frown upon undue interference from one parent
California courts prefer to award joint custody where both parents share time residing with the child. Both parents will influence major decisions regarding health, welfare and education in joint custody.
Spousal support or alimony in California is dependent upon a number of factors.
- Earning capacity of both spouses
- Standard of living during the marriage
- Professional skills of both spouses
- Sacrifices made by spouses during the marriage
- Financial support provided by one spouse for the education, training or licensure of the other
- Financial assets and income
- Length of the marriage
- Debts incurred during the marriage
- Age and health of each spouse
- Any incidents of domestic violence
- Criminal convictions
Alimony may be in the form of temporary, permanent or both. Temporary alimony is payments made during the divorce procedure, while permanent continues following the divorce. The length of permanent alimony is usually dependent upon the length of the marriage. In most cases, payments are required for only about half the time the couple was married.