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Len Watkins
Joshua Genser
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Offices
in Point Richmond and Emeryville
125 Park Place, Suite 210
Point Richmond, CA 94801
Phone: 510-237-6916
Fax: 510-236-9851
2200 Powell Street, Suite 890
The Watergate Office Towers
Emeryville, CA 94608
Phone: 510-237-6916
Fax: 510-236-9851
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Divorce
and Child Custody
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Ending
a marriage is easy. In California, it requires only
that one of the spouses no longer wants to be married
to the other. The problem is in dividing up the property
and the responsibility for the children.
A divorce is started by filing a document called a "Petition
for Dissolution of Marriage" with the Court. If the husband and wife can agree on the distribution of property
and responsibility for the children, then the parties can reduce
that agreement to writing, file it with the Court, and be finished.
If there is no agreement, however, the Court gets to decide. Ultimately,
the judge does whatever is deemed fair, but there are some rules.
Property acquired during marriage is, mostly, Community Property.
That means it belongs equally to both husband and wife, and is, generally,
divided equally between them upon divorce.
Property acquired before marriage and after separation is, mostly,
Separate Property. That means it belongs exclusively to the spouse
who acquired it, and stays with that spouse upon divorce.
Debts incurred during marriage are usually divided between the spouses
upon divorce. However, the person to whom the debt is owed is not
bound by the divorce decree. In other words, the Court may say that
your ex-husband or wife must pay the Visa bill, but if he or she
doesn’t, Visa can still come after you. Sure, you can then go after
your ex, but there’s probably a reason why he or she didn’t pay it.
Alimony, now called "Spousal
Support," is generally determined according to a formula set by law that compares the
spouses’ incomes. In this day and age, with both spouses usually
working, it is ordered a lot less than it used to be.
Child custody is usually awarded jointly to the father and the mother. "Legal
custody," the right to make parental decisions for the children, is almost always equally
shared. "Physical custody," or the right to actually have the children be with you and live with you, is
usually also shared, but is much harder to arrange. If the parents
cannot work out schedules and cooperate with each other, the Court
will require that the parents attempt to resolve their differences
by mediation, and, ultimately, will impose some schedule on them.
If one parent truly wants to fight for something other than shared
legal or physical custody, be prepared for a nasty, expensive, bruising
experience. The Court will deprive one parent of custody or severely
limit that custody only if given a very strong reason, such as fear
for the safety of the child. It’s difficult to prove and the parent
being challenged can be counted on to fight back.
Whether your divorce is cooperative or nasty, you should consult
with an attorney. You may have property rights of which you are not
aware. There may be ways of protecting yourself against your ex’s
failure to pay debts. You may need to engage in a custody battle
to protect your kids. |
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