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Oakland CA Divorce Law Blog

Providing representation in child support disputes

Child support is one of the most contentious issues that California family courts deal with. Thousands of parents each year struggle to enforce child support orders or initiate the modification process. Though the best interests of their children are often foremost in their minds, many people find it difficult to get the support they need.

You may be a parent seeking child support after your divorce or from the unmarried parent of your child. A major change in your professional life may have occurred, leaving you unemployed or earning less money and struggling to make ends meet with your current child support obligations. You may have learned that your child's other parent recently got a better-paying job that would warrant a change in your child support order.

The different types of California domestic violence

Domestic violence is generally defined as any act or pattern of abuse that one person uses to control another. Actions intended to manipulate, isolate or humiliate another person can be considered domestic abuse even if there is no physical harm done to that person. For instance, an individual may attempt to control his or her partner by withholding access to that partner's bank account or by refusing to allow that person to work.

Emotional abuse involves any instance where a spouse or partner will threaten to hurt him or herself to control the other spouse or partner. It can also be threats of harm to family members or pets to gain emotional control over a person. Destruction of property may also be used as a controlling tactic. Isolating a spouse or partner from friends or loved ones may also constitute abuse without causing physical harm.

Dividing assets and liabilities after a California divorce

After a divorce, both parties are asked to go through their debts and assets to determine how to divide them. The goal is to divide everything as equally as possible. For instance, if one party gets the house, that same party may also be responsible for taking care of credit card debt that the couple accumulated. In the event that the couple has multiple bank accounts, the assets inside of the accounts should be separated equally.

For example, one person may be entitled to take the larger bank account while the other party gets the smaller account and the more valuable car. Another issue that needs to be considered when dividing property is whether or not property is community or separate property. If property is considered to be separate property, it is generally not eligible to be divided during a divorce settlement.

A child's opinion in California custody matters

When a couple with children divorces in California, one of the most important considerations the court or parents have to make is what parental rights each party receives. The 2015 California Rules of Court dictate how a child's opinion might influence child custody matters.

Children do not have to participate in custody and visitation decisions but could be allowed to convey their wishes under certain circumstances. A judge must consider a child's opinion and weigh its value while also ensuring the child is protected. The best interests of a child are the court's main concern, but all parties involved must also be given their right to challenge evidence.

California divorce and credit implications

California is a community property state, which means all debts and assets are considered to belong to both parties while married. Any debts incurred during the marriage, even on an individual account such as a credit card, may be reported on both spouses' credit reports regardless of who is responsible in name for paying the debt. Knowing how to protect oneself from credit ramifications after a divorce can help eliminate potential financial problems later.

While a property-division agreement may assign certain financial obligations to one party or the other upon divorce, creditors are not parties to this agreement. Therefore, they may report delinquent payments on both spouses' credit history and pursue collection activity if one spouse falls behind on payments. Any credit both spouses applied for jointly or any outstanding balances on items entered into jointly, such as car payments and mortgages, remain the responsibility of both parties.

How technology is changing child visitation

In an age where communication is increasingly done through instant messaging, email and social media, it is no surprise that child visitation may also be moving into the virtual realm. So-called virtual visitation is defined as any form of child visitation that makes use of an electronic medium such as a phone, email, webcam or social media site. A handful of states have enacted laws pertaining to virtual visitation, and courts in other states including California are beginning to take notice.

It is important to understand the potential benefits and drawbacks of virtual visitation. On the positive side, it creates a new level of flexibility for contact between a noncustodial parent and a child. If face-to-face communication is not possible due to schedule conflicts or distance, then virtual visitation may increase the frequency. It may also allow for more spontaneous, short-term communication such as reading the child a bedtime story or helping with homework. This broader range of possibilities is quite often in the child's best interest.

Pet custody a growing concern in divorce cases

California couples who are facing divorce may have more to think about than issues around support, child custody and the division of community property. Increasingly, couples are negotiating what happens to their pets after a split as well.

While the law traditionally considers pets to be property in the same way that furniture is, many people do not feel this way about their pets, and some courts are changing their views as well. While couples negotiate visitation arrangements regarding pets that resemble those that they might make for children, a 2013 landmark case in New York resulted in a court conducting a one-day hearing to consider the best interests of a couple's dog as well as of the couple in relation to the dog's care.

Courts follow detailed guidelines in setting child support

California courts take several factors into consideration when it comes to setting child support payments for parents who are separating. State guidelines include both financial and non-financial factors.

The factors that are taken into account included how much each parent earns or is capable of earning, as well as how much income from other sources, such as tips and commissions, a parent receives. Other financial factors considered in determining child support include the tax status of each parent, if a parent is supporting children from other relationships, mandatory expenses such as union dues and retirement contributions, and costs of day care and health care, including insurance and non-covered costs. Parents may be required to share costs of transferring the child from one parent to the other when it comes to visitation for the non-custodial parent.

Protecting a business from the possibility of the owner's divorce

Even if their marriages currently seem blissful, wise entrepreneurs might do well to have some safeguards in place in case their unions turn sour down the road. This is especially true in community property states, like California, where assets accumulated during the marriage -- including businesses -- are split down the middle. With the divorce rate hovering around 50 percent, it is only good business planning to consider this possibility.

If this business planning occurs before a divorce is even under consideration, a prenuptial agreement or an early postnuptial agreement can designate the business as one individual's property. Alternatively, the business can be placed in a trust to remove it from the marital assets, or a buy-sell agreement can define what happens in certain cases, including divorce. Last, a whole-life insurance policy can help protect the business financially.

Dividing a 401(k) in a divorce settlement

A person who is going through a high asset divorce in California might wonder what will happen to their 401(k) plan. Depending on the details of the divorce settlement that is reached, an individual will likely have to pay out a portion of the assets that they have in their 401(k) plan to their ex-spouse.

When someone is ordered to hand over 401(k) assets in a high asset divorce settlement, the court that made the decision will issue a qualified domestic relations order, or QDRO. The QDRO will detail what portion of the 401(k) is granted to the ex-spouse as well as when and how the assets should be paid. A QDRO is also used to divide other assets in a divorce settlement that may be used to make alimony or child support payments.