Family Law

Legal Custody

Legal Custody refers to which parent can make decisions regarding a child’s health, safety and welfare and what information you have to share with the other parent.  Unless there is a domestic violence restraining order issued against one of the parents or another significant safety concern such as substance or alcohol abuse, the court will typically order that parents share joint legal custody.  Parents with joint legal custody have equal access to their child’s school and medical records.  If you share joint legal custody with the other parent, you must consult with and obtain permission from them to change your child’s school or doctor or to enroll them in an extra-curricular activity. 

 If you have sole legal custody of your child, then you can make these decisions without consulting with the other parent.

 Physical Custody/Visitations

 Physical custody pertains to where the child is physically residing.  Parents that have joint legal custody will typically have a parenting plan where they share time with their children on an equal or near equal basis.  Joint physical custody does not require that the parents share equal time with their children.  There are several parenting schedules that will result in parents sharing joint physical custody.

 A parent with sole physical custody will have the child in their care the majority of the time with the other parent having visitation on a set schedule.

 Courts are tasked with determining what schedule is in a child’s best interest.  Judges have a lot of discretion in ordering a parenting plan and that parenting plan will vary based upon the facts of the case and the particular circumstances of the parties involved. Some facts that a court may take into consideration when ordering a parenting plan is the availability of each party to care for the child, where each party lives, where the child goes to school, and how the parties been sharing time with the child prior to appearing with the court. This list is by no means exhaustive and can vary significantly which is why it is very important to have an attorney that is familiar with the factors your judge considers when determining what schedule is in the best interest of the child.  Here at Lord & Brooker, APC we practice almost exclusively in Riverside and San Bernardino counties.  We have extensive experience litigating custody issues and are familiar with the factors our local judges consider when it comes to making orders regarding physical custody and visitation. 

Child support is ordered in nearly every case where there are minor children involved.  In California, child support is determined based upon a guideline formula that considers each parent’s income, the amount of time the minor children spend with each parent and some other factors such as health insurance premiums paid by a parent.  The number generated by the guideline formula is presumed to be correct except in a very limited number of circumstances.  Inability to pay the amount determined by the guideline formula is not a basis to change it in most cases.  Knowing how much you will have to pay or receive for child support is necessary information you will need to determine several other issues in your case such as whether you can afford to stay in the marital residence or sell it.  At your very first consult, we will calculate what you might pay or receive depending on your circumstances.   We will advise you if any of the exceptions to the guideline formula apply in your case.  

 In addition to ordering child support per the guideline formula, the court can also order that each parent pay one-half of all uninsured medical expenses and one-half of a parent’s work-related daycare.  It is important that your attorney asks for this at the beginning of your case when child support is first being ordered.

 Collection of child support can done through a wage assignment (garnishment) of the parent’s paycheck.  This way payments are automatically received by the parent receiving the support.  The benefit to the party paying support is that the support payments are easily verified if there is ever a dispute as to whether the support was received.

 It is important for both parents to know that once ordered, support can only be modified by a court order or a writing signed by both parents and  filed with the court.  Oral agreements to modify the support are rarely enforceable if the parent receiving support changes their mind and tries to enforce the original order in court.

 As experienced attorneys with more than 25 years of combined experience, Lord & Brooker, APC can guide you and advise you to make sure you are receiving what you are entitled to and not paying more than you should.

Spousal Support is determined differently than child support.  The primary considerations are the need of the supported party, the ability to pay of the supporting party and the standard of living during the marriage.  You can only receive spousal support if you were married.  Spousal support cannot be ordered in an action to determine parentage.  There are two types of spousal support that the court can issue, Temporary Spousal Support and Permanent Spousal Support.

 
Temporary Spousal Support is typically ordered early in the case after the party seeking support files a Request for Order (RFO) asking the court to make an order.  This order is typically based on a computer program calculation called X-Spouse.  The court will input into the program both parties’ income and other relevant information such as health care premium expenses and order that the higher earner pay the lower earner the amount of support determined by the program.  A skilled attorney can try to convince the court that the amount is either too low or too high.   Temporary spousal support will typically remain in place until a final judgment is entered in your matter.

Permanent spousal support refers to the spousal support ordered in your final judgment.  Unless you and your spouse agree otherwise, it is not based on the X-spouse calculation.  There are several different factors the court needs to consider in making a permanent spousal support award.  These include the health of both parties and whether one spouse stayed at home to care for the children while the other spouse worked and advanced their career.  The court will also consider what the supported spouse may need to do in order to become self-supporting.

Despite its name, permanent spousal support is not intended to be permanent.  The length of time the order will be paid also depends on several factors.   Under California Law, it is required for the party receiving spousal support to make efforts to become self-supporting within a reasonable period of time.  A reasonable period of time is typically half the length of time you were married, unless the marriage was more than ten years.  A marriage of more than ten years is considered a long-term marriage and the rules are different.

Whether you are paying spousal support or receiving spousal support, the assistance of an experienced and knowledgeable attorney is invaluable when trying to navigate this complicated area of Family Law.  Lord & Brooker, APC has assisted thousands of clients with spousal support orders.  Their knowledge and expertise on both sides of this issue will benefit your case whether you are defending against an unfair order or trying to make sure you receive what you are entitled to. 

Community Property

Community property is any property or debt that is acquired during the marriage. The marriage is defined as the time between the date the parties were married and date of separation listed on the Petition for Dissolution of Marriage or the Response to Request for Dissolution of Marriage. It does not matter if the property is titled in only one spouse’s name unless the spouse signed a document waiving any interest in the piece of property. For example, a car titled in one spouse’s name is still community property. A credit card debt incurred by one spouse during the marriage is a community debt except in a very limited number of circumstances. Retirement benefits, including IRAS, pensions and 401ks are also community property.
Each spouse is entitled to receive one-half of the community property acquired during the marriage. Unless the parties have a “negative estate”, each spouse is obligated to pay one-half of the community debt. This is most often accomplished by assigning property and debt to each spouse. If the result is an unequal division, then the court will order the spouse with more property to pay the other spouse a cash equalization payment. If the parties cannot agree how to divide the property then the court will typically order that the property be sold and any proceeds divided.
Although it sounds straightforward it often is not. There are many factors that can determine a spouse’s interest in property or their obligation to pay a debt. For example, a home purchased during the marriage with a down payment from a spouse’s inheritance impacts the other spouse’s community property interest in the home. A debt incurred for a non-community purpose such as gambling can impact the obligation of the other spouse to pay half at time of divorce. A business started before the marriage can have both community property value and separate property value.
An experienced attorney is necessary to navigate you through this sometimes complicated area. Lord & Brooker, APC have been assisting clients for more than twenty-five years combined to make sure they receive their fair share of the community estate as well as ensure their interests in their separate property is protected.

Separate Property

Separate property is any property that a spouse owned prior to marriage. Separate property also includes any property acquired by a spouse during the marriage that was acquired by gift or inheritance. Further, the rents and profits of your separate property, even if received during the marriage, are also your separate property. For example, if a spouse inherits a home from a grandparent and rents it out, the rents received are the spouse’s separate property.
It is very important to keep your separate property separate. If a spouse transfers title of their separate property into joint title during the marriage, then the separate property becomes community property. For example, if the spouse, who inherited the home, refinanced the home and allowed the other spouse to be put on title during the refinance, the inherited home would now be community property. This is called a transmutation. Depending on the circumstances, the spouse that did the transmutation may still have some separate property interest in the home’s value. It is important that you have an experienced attorney that can guide you through the process to identify and preserve your separate property interests.