There are three types of financial obligations that can arise in the form of court orders through divorce: child and spousal support; payment of property/debt division resulting from a marital settlement agreement or divorce decree; and payment of court ordered attorney fees of your spouse. These financial obligations are all treated differently in the bankruptcy court hence it is important to know just what debts or obligations are dischargeable in bankruptcy and which are not PRIOR to finalizing your marital settlement agreement with the family court.

First and foremost, it is important to know that your child and spousal support obligations are NOT dischargeable in bankruptcy while orders to pay certain community debts or obligations might be. Beware, however, the bankruptcy court IS NOT BOUND by the terms of your court ordered marital settlement agreement or judgment and while certain assets may have been ordered to you by the family court as your sole and separate property and certain debts ordered to your spouse, should your spouse then discharge those debts in bankruptcy, the trustee may very well take possession of your marital assets in satisfaction of those discharged debts assuming those assets were not of the type that were exempt.

Also beware, that the bankruptcy court is often inclined to interpret your marital settlement language in a light most favorable to being considered ‘a form of support’ so that the agreement to pay your spouse for a certain property division, for example, is actually NOT dischargeable. An order to pay your spouse’s attorney fees quite often falls squarely within this court ordered financial obligation interpreted to be a form of support and not dischargeable in bankruptcy.

Hence, you must understand the importance of knowing if bankruptcy is imminent while going through your divorce proceeding and planning for that possibility BEFORE you enter into any family law marital settlement agreement.

Just as important is the timing of your bankruptcy filing and whether it makes better sense to file your bankruptcy contemporaneous with the filing of your divorce matter. In this instance then all of the property and debt issues are handled in the bankruptcy court and only the child custody/visitation and support issues are handled in the family law court. This could turn out to be a real time and money saver in attorney fees in the family law matter if the parties and counsel are free to focus solely on the children and support issues and let the trustee and your bankruptcy attorney handle your property and debt issues.

III. CHILD CUSTODY AND VISITATION

There are two kinds of child custody: Legal custody dealing with all of the health, education and welfare decisions pertaining to the minor children and physical custody – meaning with who will the children live?
Joint legal custody means that both parents shall share the right and responsibility to make the decisions relating to the health, education, and welfare of their child. Joint physical custody means that each of the parents shall have significant periods of physical custody and the child to be shared in such a was as to ensure frequent and continuing contact with both parents.

Sole legal custody means that one parent shall have the right and the responsibility to make the decisions relating to the health, education and welfare of the child and sole physical custody means that a child shall reside with and be primarily with one parent subject to specific court ordered visitation with the other parent.
Joint legal custody is typically ordered unless there is some compelling reason why a parent should NOT participate in important decisions regarding the health, education and welfare of the child. Is she or he imprisoned, totally absent from the child’s life or has there been domestic violence, for example? Does he or she constantly harass the other parent preventing that parent from effectively functioning as a parent? Is he or she deployed in the military? If the answer is NO to any of these questions, then the Court will typically order joint legal custody of the minor child or children.

For physical custody, the Court looks to which custodial and visitation schedule will serve the child’s best interests. The favored parent will be the parent most available, most reasonable, most rationale, most flexible, and most willing to share the children with the other parent. The favored parent will be the parent most likely to reinforce the other parent to the children. This is NOT to say that if you are a ‘stay at home’ mom or unemployed that you will necessarily be the parent with primary custody but rather ALL of the other factors stated are equally as important considerations.

The family court is no longer gender bias and there is no such thing as ‘father’s rights’ any more than there is such a thing as ‘mother’s rights.’ Mothers and fathers stand as equal parents to their children and to the court. Rather it will be the specific facts and circumstances of YOUR case, life, fact pattern, work schedule, travel schedule, etc that will determine what custody and visitation schedule will best serve your children. That is why the family court always prefers that YOU PARENTS try to work out your own custody and visitation agreement – after all, you know your life style and your children better than anyone and you know what you both are able to do and not able to do and what will and won’t work for your kids.

No matter your personal frustration, upset, anguish and downright contempt for the other parent, you must at all times insulate the events of your deteriorating relationship from your children and you must NEVER discuss these family law proceedings with your children.

Obviously, all of this is NOT an easy task but it is what you must do for your kids and it is what the family court expects of you.

IV. PATERNITY
Paternity cases are child custody cases between partners that are not married. In a paternity case, the court only has the power to make orders of custody, visitation, support, and other child issues. When unmarried minors find themselves with children, it is a paternity action in the family court that will secure their parental rights and responsibilities.

Couples who are not married do NOT have the protection of the family court and community property laws do not apply. The court does NOT divide the property or debts accumulated by the parents in a paternity action as community property laws that govern married persons are not at all applicable to unmarried persons. And if you have acquired property or debt during your “partnership period”, then you had better have a contract directing how you are going to divide these assets and debts upon separation, as you will be stuck proving up the terms of your contract in civil court. In most instances, if you are not married, you will not be entitled to support from your former partner.

V. CHILD SUPPORT AND TEMPORARY SPOUSAL SUPPORT CALCULATIONS

The amount of child support and/or temporary spousal support a party pays to the other depends on several factors including but not limited to the following:

In California Family Court, the above information is inputted into a support computer program sanctioned by the State of California. The support amounts calculated are commonly referred to as “Guideline Support” orders. These Guideline Support amounts are just that, guides to be followed in calculating support. The parties are free to agree to alternative amounts, which is often necessary if the Guideline amounts are just not feasible under the circumstances personal to your situation. The Family Court judge will likely always follow the Guideline in making child and spousal support orders without consideration to other pre-existing expenses, although the judge is free to deviate under some circumstance.

The only time there will be NO support order is if all of the above factors are almost identical as to each party, which typically is not the case. Typically, the parties are not sharing the children equally; they do not earn the same income; they do not enjoy the same deductions, expenses, etc. It is even possible for one parent to have the children the vast majority of the time and still be obligated to pay the other parent child support simply because the other parent’s timeshare is high and/or his or her income is low or nonexistent.

Learning how the support program works is essential to understanding your rights and obligations as regards supporting your children when you are in Family Court. NEVER go into court unfamiliar with this support program. You MUST understand the factors considered and you must understand the specific details of YOUR income and payroll deductions. To go to court unprepared will most certainly result in an unfair or inappropriate support order.

VI. DIVISION OF ASSETS AND DEBTS – RESIDENTIAL LOAN MODIFICATION

California community property law provides that all assets and debts acquired between the date of marriage and date of separation are to be characterized as community property (belonging to both partners equally) and to be divided equally. That being said, there are more exceptions caveats to that general rule than there are cars on the road. Generally, all property acquired prior to marriage and since separation is that party’s separate property and does not get divided and generally property that was gifted to or inherited by a party is that party’s separate property and is not divided.

The parties are free to divide both their separate and community assets and debts however equally or unequally they desire. The California community property laws are enforced when parties cannot agree and end up in trial and the court has to decide what to do with their property and debts.

Some property to be divided is valued as of the time of separation but most is valued as of the time nearest to the time of trial or actual division of the asset. Most debts are divided as of the time of separation and if parties service debt between the time of separation to settlement, then that party is entitled to credits and reimbursements through the overall settlement and distribution of assets and debts.

If you are anticipating divorce or separation then you should start accumulating as much information as possible about the community assets and debts. You need to know about the pensions, about the 401K’s, about the IRA’s and about the bank accounts. You should have copies of the credit card accounts and know what the current debt is and what’s being charged. You need to know the status of your home loans, lines of home equity, loans on retirement accounts, etc.

It is never a good idea to start running up a bunch of debt in anticipation of filing for divorce or to be taking money from the joint account for example. You still owe your spouse a fiduciary duty to deal in good faith and keep the other advised of community purchases and obligations.

The most current and pressing issue facing most of my clients is now the issue of what to do with the family residence. Most have homes negative value and many are facing foreclosure. There are many possible solutions. A short sale is the sale of your home for an amount below the amount of the current mortgage and is done with the permission of the lender. A short sale will negatively impact your credit but not as much as a foreclosure. A foreclosure is the taking of your home by the lender. A loan modification is simply a renegotiation of the current terms of your mortgage. Any part or all of the terms can be negotiated as long as there is ultimately an agreement between the borrower and the lender. With so many homes now in foreclosure, lenders are not at all eager to take any more homes via foreclosure and are more and more willing to negotiate the terms of your loan. The goal is to negotiate a payment amount that you as the borrower can manage and that the lender will accept as it is less of a loss to the lender than the cost of foreclosing on your home.

VII. PERMANENT SPOUSAL SUPPORT

The family court may make temporary spousal support orders which exist during the life of the actual family law case. The amount of the temporary support order is typically calculated from the same support computer program as is the child support and from the same gross income figures and same deductions.

Permanent or long term spousal support is that support that is ordered at the conclusion of your case and which goes out into the future, sometimes for the lifetime of your ex spouse. Typically, in a ‘short term’ marriage (a marriage of less than 10 years) support shall be ordered for a maximum duration of one half the term of the marriage. In a long term marriage (a marriage of more than 10 years) support may be ordered for a much longer period or for life, or until death or remarriage of the support spouse. NOW, REMEMBER, THERE ARE ALWAYS EXCEPTIONS TO THESE GENERAL RULES so don’t start thinking that just because you have been married 12 years, haven’t worked for the last 3 years, are age 40 and healthy, that you’re going to receive a healthy spousal support award for the rest of your life because you’re NOT! The court expects you to become financially self supporting as soon as you are reasonably able to do so – in fact, that’s the law!
In making a permanent or long term spousal support order the court must consider the following circumstances:

(Family Code Section 4320)

So, what does this mean? It means that the court must consider any/all of the above factors that apply to your specific factual case and make a ‘finding’ on each and ultimately coming to a conclusion as to whether there a. should be a long term spousal support award; b. how much should be awarded; and c. for how long should the order last. As you can see, the amount of the award is highly subjective and is really dependent on what your particular judge thinks about all of your different facts and circumstances. Having a trial on permanent spousal support is always risky business for both sides and its always better to come to a reasonable compromise on this issue rather than spend thousands of dollars in trial on an issues that could result in such a speculative award.

VIII. DOMESTIC VIOLENCE RESTRAINING ORDERS

In Family Law, we also often seek Domestic Violence Restraining Orders against a parent or spouse and we do so on an expedited emergency basis for the protection of the threatened spouse and/or children. At the ex parte emergency hearing, the offending party might not be present and he or she may not even have been made aware of the hearing. Often, at these ex parte emergency hearings the court grants orders of exclusive use of the residence, stay away orders, no contact orders, and orders of limited or no contact with the children until the next hearing.

These are extreme protective measures to be taken in extreme circumstances. The court acts in an abundance of caution to protect those claiming to be threatened. A hearing is set within a few weeks and at that time the court will determine if the allegations originally made had any merit and whether to issue permanent restraining orders or simply dismiss the matter.

These hearings are VERY important to your family for many reasons. First, false allegations are often made and the so called offending parent has now become the victim of the misleading spouse and of the system. At these hearings, the offending person may lose contact with his/her children for weeks; may be ordered out of the family residence within hours with only his/her personal belongings and clothes; may be ordered to pay child and spousal support and/or the mortgage on the house, cars, and bills; and even attorney fee orders in favor of the requesting party.

Even more critical and little often understood. is the law that provides that a parent against whom a finding of domestic violence is issued, may NOT have physical custody of his/her child/children for a period of five (5) years from the date of the offense. Quite often when one spouse is accused of committing an act of domestic violence against his/her spouse, that accused spouse does not respond to the allegations as he/she has concluded he/she does not want to be around the other parent anyway, so the orders are issued without any objection having been filed. That accused spouse, thinking he/she has just caused a huge nightmare to go away by just letting the orders issue, has now effectively taken himself/herself out of the running for custody of the children. Often, depending on the actual allegations, such a finding of domestic violence will also result in long term orders of supervised visitation, minimal contact, anger management classes, parenting classes, etc.

IX. GUARDIANSHIP

Family lawyers often handle guardianship cases which are requests by nonparents for custody of children that are not their own children. This typically involves grandparents or other family members seeking custody of other minor children in the family due to some type of ongoing abuse, neglect of that child by one or both of its biological parents. Nonfamily members may also file for guardianship of children that are not their own. In a guardianship case, the nonparent seeking guardianship (custody) of a child or children not their own, must prove to the court that it would be detrimental to the health, safety and/or welfare of that child or children to remain with their parent/s and that it would be in that child or children’s best interests to be in the custody of the nonparent.

Often guardianships are granted on a temporary basis and the granting of the permanent guardianship order is delayed to allow for the offending parents to correct what is alleged against them. Often even when a guardianship is granted on a temporary or permanent basis, the offending parents are allowed liberal visitation with their child or children. Orders of permanent guardianship are really not ever “permanent” as the offending parent or any other interested person can petition to set aside the guardianship that’s in place. For the offending parent to have a chance to set aside a guardianship order, that parent must prove that all of the reasons that caused the guardianship to be granted in the first place no longer exist AND that it would serve the bests interests of the child/children to be returned to the parent. For example, if the offending parent/s lost custody and guardianship was granted due to drug use, that parent must prove to the court that he/she is no longer involved with drugs, has been drug free for a reasonable period of time, that there is no risk to the child/children if returned to the parent. The parent seeking return of his/her child or children MUST also show that termination of the existing guardianship is in the best interest of the child/children. The court will NOT disturb an otherwise “successful” guardianship just because the parent has remedied his/her wrongs and is now ready to parent. Quite often in such matters the court feels that it is “too little too late” and will nevertheless keep the guardianship in place.

For another third person (not the parent) to prevail at terminating an existing guardianship and seek his/her own guardianship, that third person must prove to the court that the current existing guardianship is now detrimental to the health, safety and welfare of the child/children AND that ordering this new third person to be the new guardian would serve the best interests of the child/children.

X. MEDIATION

Mediation of your family law disputes is a wonderful alternative to litigating your case in the Superior Court. The advantages of mediation are many and because your participation is voluntary, no agreement can ever be forced upon you. You will save thousands of dollars in attorney fees; you will move quickly towards a final resolution of all issues and not get bogged down by the congested court calendar or your own attorney’s busy schedule. You and your spouse or partner can share the cost of the mediator or one of you can pay the entire fee – again, it is up to you. Together we will work to identify all of the issues to be resolved such as child custody, visitation, support and living arrangements. Together we will work to determine what arrangements will serve your best interests as well as the best interests of your children. In mediation, no one person dominates or intimidates – the process is voluntary, fair, and is the very best solution for your family.

The mediation process is simple. First, you and your spouse or partner will make an appointment for an initial consultation with your mediator. We will discuss the fee arrangements, the contract will be explained, and the fees paid. Together we will estimate the time necessary for mediation and discuss the voluntary aspect of the process and the fact that no legal representation exists. You will learn of the confidentiality of the proceedings. Finally, you will be given an information packet to complete in which you will provide information such as income and expenses, assets and debts, pension, savings, family residence, vehicles, etc.

At the actual mediation, together we will identify all of the issues in dispute and together, issue by issue, we will discuss the worries and concerns of each party and possible solutions. Your mediator will comment from time to time on what the family judge might order on a particular issue so that you can determine if you are going to settle a specific issue or let that be an issue to go to trial.

Finally, once your issues are settled and agreements are made, your mediator will reduce your agreement to a Marital Settlement Agreement to incorporate into your court documents. Now your family law matter is complete and you can move on with your life – without ever having to go to court!

XI. PRIVATE JUDGING

Private judging and arbitration are different from mediation in that you are not engaged in negotiation or mediation of your disputes. Rather, you have determined to have a hearing or trial in front of an attorney specializing in family law rather than having that hearing or trial in front of the judge of the Superior Court. Any rulings of the arbitrator or private judge may or may not be appealable depending on the arrangements made by the parties. The greatest benefit here is that your private judge is able to commit the time your case requires and deserves. Additionally, you will enjoy substantial savings in attorney fees and being able to quickly move through the process without the court congestion and many court delays. This process necessarily pushes your family law matter through the system quickly.

XII. LIMITED SCOPE REPRESENTATION

During these difficult financial times many people simply cannot afford to hire an attorney to handle their family law matter. As a result they either do nothing which so often ends in a disastrous result such as unwarranted permanent restraining orders, supervised visitation orders, unreasonable support orders, unreasonable division of assets and debts, etc. Many people try to represent themselves and they manage to get through the system but it is difficult, stressful and who has the time when your time is certainly better spent working or taking care of your children?

Well, limited legal representation is a very good solution to this problem. You know your budget and you know your most critical and most difficult issues. So you know where to focus the money you have available for your attorney fees so that’s where they will be spent. If, for example, you have managed to get your case filed and set for hearing but you are just not able to put together your paperwork for the hearing for orders for custody and visitation and support (an Order to Show Cause hearing), then we can quote you a fee for representation of you for just that particular aspect of your case and you would continue to represent yourself with respect to all other issues as your case moves along.

If there is a hearing coming up and all of a sudden your spouse had hired an attorney and now you are panicked that you now are self represented, we can represent you for just that hearing if you retain us on a limited basis.

We can also prepare your court documents for you so that you understand them and so that they are done correctly. You will enjoy much better results when you do stand before your judge in family court if he or she has read documents that are properly prepared and organized and to the point with relevant information.