Category: <span>family-law</span>

Who Gets the House?

September 17, 2021
by Briana White

Your house is more than just a roof over your head… Not only does this structure act as the sacred keeper of your family’s memories, but it’s also often the most significant investment a married couple will make.

Hence, if you find yourself worried, wondering: Who gets the house? in your divorce, don’t fret. You aren’t alone.

Here’s what you need to know about who gets the house in a California divorce, and how the Maples Family Law team can help you navigate these important issues.

Who Gets the House: It Starts with Community Property

In California, a house is considered property. Hence, just like your car, bank accounts, debt, and that heirloom silverware your grandmother left you, this structure is subject to the same rules of community property, if you ever get divorced.

Community property is one of two systems that US courts use to divide marital property, which focuses on ensuring each partner gets an equal share of marital assets. Here, the timing of when you got married (as well as when you acquired the property) will be important to determining how much of your joint assets you’ll ultimately walk away with.

To make these decisions, California courts will follow these four steps:

Identify all of the couple’s property.
Classify all property as either separate or marital.
Value all marital property.
Divide all marital property between spouses.

Here’s a closer look at each of these steps, and how they specifically apply to our question: Who gets the family house?

Step 1: Identify

First thing’s first: identify all of your property.

This ‘role call’ might sound silly (after all, how hard is it to identify a house?); however, it’s not just the house you’ll need to identify. During this step, you’ll need to produce documentation on everything you own, including all assets, real property, retirement accounts, debt, loans, credit cards, and investments.

While these assets might not directly relate to your house, knowing exactly what you have will be important during the valuing and division phases. (After all, the court can’t divide a home’s value fairly, without knowing what else the couple owns.)

Identifying property also acts as an important accounting step, to ensure that neither spouse is trying to hide assets from divorce court.

Step 2: Classify

Once property has been identified, the court will need to classify everything as either separate property (a.k.a. “individually owned” property), or marital property (a.k.a. “it belongs to both of you” property).

In a community property jurisdiction, anything acquired before or after marriage is considered the separate property of whoever brought it into the marriage. In addition, gifts, inheritances, and awards of personal injury are also considered separate—regardless of when they were received.

On the other hand, anything acquired while married—be it a paycheck, loan, credit card, or winning lottery ticket—belongs to both, equally, regardless of whose name it’s in. (Which, of course, is why your date of separation is so important, and why it’s a good idea to formalize it with a legal separation.)

Hence, in an extremely general, very sanitized scenario, a house purchased prior to marriage would possibly be considered separate property, and one purchased during marriage, marital property.

However, life is never that simple, and there’s a really good chance that at least some of the home’s value belongs to the marriage—even if it was purchased prior to tying the knot. (More on that to come…)

Step 3: Value

Next, the court will assign a price tag to all of your marital property, including debt, investments, retirement accounts, and even bitcoin, too.

Pricing everything out is important to our house question, because a physical structure can’t be cut in half (sorry, Solomon!). Hence, only one spouse will be able to actually keep the house. The other will need to be compensated with a greater share of marital property, to make up the difference in value.

Step 4: Divide

Finally, it will be time to divide the house and your marital property. To this end, couples can either:

Sell the house and split the value.
Spouse A keeps the house, and refinances the mortgage to remove Spouse B from the loan.
Spouse A and Spouse B agree to temporarily keep the house together.

Typically, the simplest option is to simply sell and split the value. In California, courts can’t force lenders to remove someone from a valid contract. Hence, sometimes complications can arise with refinancing.

Then again, if kids are involved, it might be better for the custodial parent to keep the house for their emotional stability.

In the end, there are pros and cons to each option, and it will be up to the couple and the court to determine which is best for their situation.

Who Gets the House: Complications

So far, we’ve made the house dividing process sound very neat and clean, but the truth is, it’s usually anything but.

For example, let’s say Spouse B purchased a house before getting married. This structure might have started out as separate property, however, once married, it was almost certainly paid for, maintained, or upgraded using marital funds at some point. Hence, there’s a good chance Spouse A shares at least some of the value in Spouse B’s home.

On the other hand, consider the possibility that Spouse A used separate money (like… say… funds from an inheritance) to finance a major upgrade on a house purchased after marriage. In this scenario, it’s possible Spouse A owns a share of the home’s value as separate property, even if it was purchased while married.

Bottom line? Short of a valid prenuptial agreement, the question of who gets the house is not an easy one to answer. That’s why it’s so important to have an experienced attorney looking out for your interests during this process.

Divorce Attorneys in California

Your house might just be the biggest investment you made as a couple, so it’s pretty important to make sure its division is done right. That’s why we hope you’ll trust our experienced team to lend a hand in your divorce.

If you have more questions about who gets the house in a California divorce, and how these rules might affect your situation, we want to hear from you. Call Maples Family Law at (209) 989-4425, or get in touch online, and let us help fight for your best interests.

family-law

Dating During Divorce

September 1, 2021
by Briana White

One question that clients sometimes ask us is, “What happens if my spouse is dating during divorce?”

It’s a fair question. Until the ink dries on your order, you’re still technically married, and in many jurisdictions, infidelity can have a significant, detrimental impact on how divorce proceedings shape up—particularly when it comes to things like property division and alimony.

So, what does that mean for you? Do you need to be worried about dating during divorce in California?

We’re glad you asked.

Breaking the Marriage Contract: Fault or No-Fault?

Marriage might mean a lot of things to a lot of people, but for legal professionals it all boils down to a contract; a legally binding agreement for two adults who have decided to share their lives together.

Divorce, then, is the opposite. It is the severing of one life into two, so to speak. When this happens, the marriage contract (which was created on your wedding day), must be broken.

In general, there are two ways to do this: 1) No-fault Divorce, where neither party shoulders blame for the breakup; and 2) Fault Divorce, where the guilty party is held accountable for their role in the marriage’s failure.

Back in the day, pretty much every jurisdiction required you to show proof of fault in order to get a divorce. These days, however, it’s the opposite, with every state now offering some kind of no-fault divorce grounds, and most doing away with fault, altogether.

But how does fault apply to dating during divorce? you might be wondering.

Because, dear reader, in some jurisdictions, dating during divorce could actually trigger a claim for fault-based divorce grounds.

Dating During Divorce and Fault

Fault-based divorce grounds come in a variety of shapes and sizes, from felonies to infertility, and other things in between. However, the one thing that all fault states have on their Naughty List, is infidelity.

Infidelity (or adultery) is when two people engage in sexual relations, and at least one of them is already married… to someone else.

In a fault-based jurisdiction, this could potentially mean the cheater gets less marital property, less alimony, and/or saddled with more than their fair share of marital debt. All of which is meant to penalize them for causing the marriage contract to fail.

Of course, dating during divorce doesn’t always lead to sex, but it often does, and those who do are leaving themselves wide open to grounds for adultery—claims that can have some pretty catastrophic ramifications for cheaters living in a fault-based jurisdiction.

However, luckily for cheaters in the Golden State, California is not one of those jurisdictions.

California and Fault-Based Divorce

California is one of the many states that have completely done away with fault-based divorces. So, not only are you (legally) permitted to commit adultery to your heart’s content, you can also date during divorce without having to worry about putting your share of marital property in danger. (Not that we’re promoting adultery or anything, here, because obviously, that’s not cool. We’re just saying that dating isn’t likely to raise any legal red flags.)

The only way cheating might be held against you in divorce court, is if you included an infidelity clause in your prenuptial agreement. So long as the prenup is valid, the court will likely enforce whatever penalties you willingly submitted yourself to when you got married.

That being said, even if you aren’t having sex, there are still a few things you might want to be warry of, if you’re thinking about dating during divorce.

Dating During Divorce in California

Alright, so you’re legally permitted to commit adultery in California. Cool. So, does that mean dating before everything is official never impacts a divorce’s outcome?

Not exactly.

While California courts won’t consider fault—and, by extension, infidelity—when dividing up assets, there are a few things you might want to remember, before powering up your Tinder profile…

1. Marital Money Doesn’t Belong to You, Alone

California courts might not penalize you for having an affair, but that doesn’t mean you’re free to spend marital assets on your new squeeze.

California is a community property state, which means anything that either of you acquire after marriage, belongs to both of you equally—no matter whose name is on that paycheck. This means that if your divorce isn’t finalized yet, you’re not just spending your money on your dates. You’re spending your spouse’s money, too. (Awkward.)

Hence, your judge will likely require you to reimburse whatever money you spent on dates before divvying up marital property. And, depending on how discreet you were (and how long you were dating before divorce), this could end up being a lot.

2. Don’t Neglect Your Children

Just like dating won’t directly affect marital property, neither will it directly affect your custody arrangement. However, it could have an indirect effect…

In California, custody decisions are made according to the best interest of the child. If you are neglecting your child in favor of your dating life, or if your dating life is exposing them to harm in some way, then the court might think twice about how large a role you should play in your child’s life, post-divorce.

Bottom line? If dating during divorce, keep your priorities straight, and remember that being a parent comes first.

Dating During Divorce: Just Don’t

Like with many things in life, just because you can date during divorce, doesn’t mean you should.

Breaking up with a spouse is extremely stressful. This is someone you once loved enough to say, “I do,” so even if you know it’s the right decision, there will still be a lot of complicated emotions clouding the waters. (Not to mention demands on your time). And those aren’t the most ideal conditions for starting a new relationship.

Do yourself a favor, and simply don’t date during divorce. Your kids need you right now. You need you right now. Wait until everything is finalized; until you’re in the right frame of mind to give your full heart to someone new.

Trust us, you’ll be glad you did.

Divorce Attorneys in California

While dating during divorce is unlikely to have a direct impact on your breakup, it’s not necessarily the best idea—especially when kids are involved. If you have more questions about why, or want to discuss other divorce-related questions, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help this process run smoother for you.

family-law

Intro to Mental Health and Divorce

August 24, 2021
by Briana White

Those who are impacted by mental illness—whether personally, or indirectly, through a loved one—know that these unique issues don’t respect boundaries. The effects of mental illnesses (such as anxiety, depression, OCD, and addiction) stretch across every aspect of life, affecting everything from the everyday, to the atypical, including divorce.

Which is why it’s so important to address how mental health and divorce interact. Not just in terms of how these issues might impact your split, but in how divorce, itself, might affect you.

In this article we’ll introduce some of the biggest questions that often arise when mental health and divorce collide, and outline how the right attorney can help you navigate these complex matters during your California divorce.

Mental Illness and Filing for Divorce

Many clients wonder whether the mere existence of a mental illness—either in themselves, or their partner—will prevent them from securing a divorce.

The answer is a firm no.

While “insanity” is a legitimate defense to criminal charges, it will not prevent you from getting a divorce from a mentally ill spouse. This is because family law (including divorce) falls under civil court jurisdiction, not criminal court. Hence, the same defenses don’t apply.

California courts will never force you to stay married, just because your spouse suffers from a mental illness.

Mental Illness and Marriage Annulment

Mental capacity is a key element to negotiating any valid contract, and this includes a marriage contract. This essentially means that both parties know what they’re doing (getting married), and that they are both old enough to make that decision (in California, eighteen).

Without this mental capacity—say, if you’re too drunk, too high, or underage to know what you’re doing—it’s possible to get a marriage annulled. And it’s definitely possible to see how a mental health crisis might prevent someone from having adequate mental capacity for marriage.

However, in order for an annulment to stick, you can’t have gotten better after the marriage. Hence, if the individual had a mental illness, but then recovered and lived freely in a marital relationship afterwards, then a judge will not annul the marriage.

Mental Illness and Grounds for Divorce

Mental health issues often come up when couples cite their grounds for divorce.

In legal speak, your “grounds” tell the judge why you want to get divorced. Grounds are a required part of your divorce complaint, and in some jurisdictions, can be used to assign blame to one spouse for breaching the marriage contract.

Grounds that request some kind of guilt be placed on one party or the other are called “fault” grounds. Grounds that do not attempt to assign blame are called “no-fault” grounds.

California is a solidly, no-fault divorce state, meaning judges will not consider fault when dividing marital assets or alimony. Instead, couples filing for divorce must choose between one of two no-fault divorce options:

Irreconcilable differences
Incurable insanity

1. Irreconcilable Differences

Irreconcilable differences essentially mean that you are no longer able to reconcile with one another, and want out. When filing this way, neither party needs to back up this claim with proof, and no one is held liable for the breakup.

Because it’s so quick and painless, this is by far the most common grounds cited for divorce in California.

2. Incurable Insanity

Incurable insanity, on the other hand, is rarely cited as grounds for divorce, since the burden of proof is so high. In order to file under these grounds, you must show that your spouse lacks legal capacity.

Legal incapacity occurs when someone doesn’t have the mental wherewithal to make decisions, and may manifest as:

An inability to stay alert and attentive;
An inability to process information (such as memory or communication);
A detachment from reality (such as the existence of delusions or hallucinations); or,
An inability to control mood and affect.

Not only must you provide proof from multiple physicians that these elements exist, but these experts must also testify that your spouse is unlikely to ever recover. Which—considering the unpredictable nature of mental illness—is a very difficult diagnosis to procure.

Furthermore, when mental illness really is that severe, your judge will need to assign your spouse a guardian, who will look out for their interests during divorce process.

Because of all these complexities, most couples choose to simply file for irreconcilable differences, instead.

Mental Illness and Child Custody

Mental illness does not directly influence decisions about child custody. However, depending on the condition—as well as the severity of the symptoms—it’s possible that mental health could still indirectly influence custody.

This is because in California, custody decisions are made according to the best interest of the child. Here, everything from primary residence, visitation, and child support are determined based on which outcome will serve a child’s long-term health and happiness the best. This is done by weight a number of individualized factors, including:

The child’s age and preference (if old enough);
The child’s health and need for stability;
The child’s relationship with each parent;
Each parent’s ability to care for their child; as well as,
Any history of domestic violence, abuse, or neglect.

As you can see, while mental illness isn’t a direct consideration, it can still significantly contribute to many of these factors. Especially when it comes to violence and neglect, or if the mental illness prevents the parent from providing a stable home for their child (such is often the case with drug and alcohol abuse).

Regardless of the circumstances, the court will put the child’s needs above all else, while maintaining parental rights as best as possible within that scope.

Mental Illness and Property Division

Since California is a no-fault divorce state, it’s unlikely that mental illness will have any impact on the division of marital property.

California is a community property state, which means that anything acquired after marriage belongs to both spouses equally—regardless of whose name is on the paycheck, deed, loan, or card. Hence, without fault to influence this decision, all of this shared property will be divided equally, upon divorce.

Mental Illness and Alimony

In some cases, mental illness affects a spouse’s ability to hold down a job, post-divorce. These individuals may struggle to make ends meet, and to maintain their marital standard of living, once divorced.

In these situations, the court may require the stable spouse to make spousal support payments to help out. Though, the court is highly unlikely to require this when the mental illness is related to alcohol or drug abuse.

Mental Health During Divorce

When it comes to divorce, it’s not just about how preexisting conditions can affect your breakup. It’s also about the way the breakup affects your mental health.

Divorce is an extremely stressful and emotional process—even for people who don’t have mental health problems. That’s why it’s so important to make sure you’re mindful of your own equilibrium throughout the entire divorce process.

For some people, maintaining good nutrition, getting enough sleep, and exercising are adequate. Others might benefit from therapy. Parents, especially, shouldn’t neglect themselves in this regard, since it’s difficult to support a child’s emotional needs when you aren’t taking care of yourself.

If you need additional resources, your attorney can assist you in finding qualified therapists and programs that can help your family through this transition.

Divorce Attorneys in California

Whether you are dealing with your own demons, or the mental illness of a loved one, mental health struggles are never easy. That’s why it’s important to have an attorney understands your needs, and can address your unique needs.

If you have more questions about mental health and divorce, we want to hear from you. Call Maples Family Law at (209) 989-4425, or get in touch online, and let us help you navigate these matters with the sensitivity and gravitas you deserve.

Divorce

Parental Rights

June 16, 2021
by Briana White

Between tantrums and teenagers, it’s sometimes hard for parents to feel like they have control over anything their child does. However, while there’s only so much you can do to change the tides of an adolescent mood swing, in the legal sphere, your role as your child’s protector and provider actually comes with a lot of rights.

These powers are called “parental rights,” and they are inherent to the job title, which means that even if you get a divorce, your right to have a relationship with your child won’t expire.

Here’s what you need to know about parental rights in California, and how Maples Family Law can help make sure yours are protected.

What Are Parental Rights?

First off, let’s define exactly what we’re talking about, here.

In California, parental rights refer to the various powers and responsibilities that parents have to care for, and make decisions on behalf of their child.

This authority is inherent to your role as a parent, meaning it can’t be taken away from you, except by court order (which generally only happens under extreme circumstances, such as neglect, abuse, or family violence).

While married, neither spouse needs the permission of the other to exercise their parental authority. Instead, the court presumes that the decisions of one parent speaks for the mind of both, and that they are united in the direction of care for their child. Once you get divorce, however, all that changes.

What Happens to Parental Rights During Divorce?

Unlike marital rights, parental powers are not severed by divorce—after all, you don’t stop being a parent, just because you’re no longer a spouse. (The same logic applies to unmarried parents, whose parental authority isn’t invalidated by the fact that they aren’t married.)

That being said, just because these powers don’t disappear, doesn’t mean they’ll operate the same way on the other side of divorce.

When you file for divorce, that’s a pretty clear indication that you and your spouse are no longer on the same mental wavelength. And since the court can no longer assume that the decisions of one represents the mind of both, they’ll need to set parameters on how parental authority is used, and where your child will spend their time. In layman’s terms, we’re talking about a “custody battle.”

In a custody dispute, the court assigns parental rights by breaking them into two main categories: legal and physical. Each can then be distributed either to one spouse, individually (in “sole custody”), or to both, as a shared responsibility (“joint custody”).

Whether your child came to you biologically, or through adoption, these custody distinctions—as well as the various laws governing parental rights—remain the same.

Parental Rights and Adoption

Unlike a guardianship, adoption is permanent, and has far-reaching effects. This legal action completely alters a child’s family tree, reaching both forward and backwards through time, shifting the lines of inheritance to adopted parents, and requiring the child to have a new birth certificate.

In other words, once adoption is complete, it’s as though—for all intents and legal purposes—the child’s adopted parents were its only parents.

This means that adopted parents enjoy the same rights as their biological counterparts—in the eyes of the law, there is no difference. Once finalized, adopted parents may claim the full mantle of parental rights and responsibilities.

Parental Rights for Unmarried Parents

When a child is born into a marriage, California courts presume that the baby is the biological offspring of the mother and father in that marriage. A baby’s parentage can also be assumed if the parents have been living together, but aren’t married.

What happens, though, if the parents aren’t married, or if the baby is fathered by a man who isn’t the mother’s husband?

Technically, parental powers should apply, regardless of your marital status. However, because they aren’t married, California’s presumption of parenthood can’t be applied the same way, and this can cause some unique hurdles—particularly for unwed fathers.

How the Court Views Unwed Mothers

Once her child is born, an unwed mother automatically assumes parental power.

This is because, well, let’s be real, here: birth is a pretty hard thing to fake. It’s not something that leaves a lot of doubt on who the biological parent is, and hence, this half of the parental rights duo is easy to legally assign.

Unless someone is challenging her ability to care for the child, an unwed mother receives full custodial power and parental authority upon the birth of her child—no legal hoops necessary.

How the Court Views Unwed Fathers

Due to nature’s biological constraints, it’s a lot harder to verify an unwed father’s claims to parenthood than a mother’s. That’s why in California, unwed fathers are not automatically given parental rights when a child is born.

According to California family law, unwed fathers are not considered a child’s legal parent until they establish paternity—regardless of whether or not they are in a relationship with the child’s mother, or even if they are listed on the child’s birth certificate.

Unless the father has actually been living with the mother for a significant amount of time prior to the child’s birth, he must establish paternity before he can assume parental authority. Until he does so, he will not be able to make decisions on behalf of the child, or have any right to custody, including visitation.

Establishing Paternity

There are two ways for an unwed father to establish paternity:

To have both mother and father sign a “Voluntary Declaration of Paternity” form; or,
Pursue a paternity action in court.

Naturally, the most headache-free option of these two, is to simply sign and submit the paternity form.

However, if the mother refuses to acknowledge paternity—or, conversely, if a father, himself, refuses to take responsibility for his child’s welfare—then either father or mother will need to file an action in court, before rights and responsibilities can either be claimed or assigned.

A court paternity action can be filed by any of the following:

The child’s mother;
Any man claiming to be the father;
Any man that could possibly be the father;
A child support agency; or,
An adoption agency.

Usually when a paternity case is brought before the court, a judge will require both the baby and its potential father to submit material for genetic testing. These tests are much less invasive, once a baby is born, which is why courts almost never require in utero genetic tests.

Once the baby’s parentage has been established, the court will then assign each parent their various rights and responsibilities, including child support, custody, visitation, and health insurance.

If the male in question refuses to cooperate with genetic tests, the court is permitted to take this as evidence that he is the father, and may assign him parental responsibilities, anyway.

Same Sex Parental Rights

Over recent decades, California has set itself apart as being one of the most progressive states, in terms of protecting the rights of same sex couples, spouses, and parents.

Because of these efforts, same sex parents in California now enjoy the same parental rights as those of a hetero couple, with other anti-discrimination laws in place to protect them from unfair prejudice in court. California has even enacted legislation that allows more than two parents to retain parental rights, which can help a same sex parent retain custody, upon divorce.

Even still, same sex couples continue to face discrimination when it comes to child custody. Hence, the best way to ensure that both have indisputable custodial rights over their child, is for each to simply adopt, right from the onset.

If you have more concerns about how parental rights apply to same sex custody situations, it’s best to speak to a family law attorney about your unique situation.

Parental Rights Attorneys in California

At Maples, we know that nothing is more important to you than your child. You care about their emotional and physical wellbeing, and worry that you won’t be able to see them, after your divorce. As parents, ourselves, we understand these concerns, which is why we hope you’ll trust us to help protect this precious relationship.

If you have more questions about parental rights in California, and how divorce might affect your family dynamics, we want to hear from you. Call Maples Family Law at (209) 989-4425, or get in touch online, and let us help protect the best interest of your child.

Child Custody

Virtual Visitation

May 18, 2021
by Briana White

As a parent, one of the most difficult aspects of divorce is suddenly having to share time with your child. This can be particularly excruciating, if you are a non-custodial parent, who no longer gets to live under the same roof as your child.

As a non-custodial parent, daily communication used to be something you didn’t think about. Nowadays, building a relationship with your child is contingent on being able to maintain a meaningful visitation schedule, which can be difficult, even in the best of circumstances. (Impossible, under the worst—thanks for that, COVID.) And this is before you even consider the unique challenges that families with international custody, traveling careers, and military obligations face.

Lucky for us, we live a time of unprecedented technology, where communication is no longer limited to in-person contact. In certain situations, these virtual tools can be incorporated into your custody agreement, to help supplement your parenting time.

What is Virtual Visitation?

In order to understand exactly what virtual visitation is, it’s important to first have at least a basic understanding of how California courts handle custody.

Custody refers to the broad range of parental rights and responsibilities that have to be divided when parents get a divorce. To this end, the court can divide custody by either giving all the power to one parent (sole custody), or making them share (joint custody). Since it’s nearly impossible to split a child’s time exactly fifty-fifty, the court will then typically make one spouse the child’s primary residence, while the other is awarded ample visitation.

Visitation, then, is essentially all that time a non-custodial parent gets to spend with their child. And for a really long time, that’s all it was: in person contact. Visitation either happened physically, or it didn’t happen at all.

Luckily, the past decades have moved us well beyond our Neanderthal ways, and when it comes to visitation, non-custodial parents are no longer quite so constrained by physical limitations. With a huge variety of technological advances at our fingertips, the parent/child relationship can be strengthened virtually, as well.

Hence, virtual visitation is defined as any parent/child contact that is facilitated through the use of technology.

Examples of Virtual Visitation

Virtual visitation’s broad definition encompasses a wide range of platforms and tools, and isn’t limited to just phone calls. Instead, parents have a wide variety of options, including:

Phone calls and text messaging;
Data plan facetime;
Webcams and online video chats;
Email and instant messaging;
Online gaming;
Private document sharing sites, such as Dropbox and Google Drive;
Photo sharing sites, such as Shutterfly, Flickr, and Picasa; and,
Social media posts, personal messaging, and sharing, through platforms like Facebook, Twitter, Snapchat, and TikTok.

With virtual visitation, a parent can help with homework, read a bedtime story, share the excitement of a special achievement, “attend” a performance, and offer emotional support, even if they can’t be there in person.

Virtual Visitation Laws in California

Virtual visitation is still a relatively new concept, and there are currently only a few states with official legislation that address it, including Utah, Texas, Wisconsin, Illinois, North Carolina, and Florida. As you can see, California isn’t one of them, but in our ever-expanding world of global interaction, it may be only a matter of time.

That being said, whatever your judge includes in your custody order is enforceable by law—including any kind of electronic communication. California courts routinely include virtual visitation as a part of custody orders, and the failure of either party to uphold these important terms can result in fines, a loss of custody, and in some situations, contempt of court.

During divorce or custody modification, parents can either mutually agree to include virtual visitation in their parenting plan, or else request that the court include it in the final order. In these situations, your judge would assess your circumstances to see if electronic communication is a viable option for your family.

When Does the Court Allow Virtual Visitation?

The 2020 COVID pandemic threw the world into the kind of crisis most people probably never even thought to consider, let alone worry about. As lockdowns, travel bans and mandatory quarantines forced global markets to a halt, California legislators were forced to weigh the risk of spreading the disease against the need for visitation.

This crisis resulted in a sudden, unexpected reliance on virtual visitation, which most divorced families took part of in some way. However, long before COVID became a household word, electronic communication was already being used by California courts to supplement in-person visits.

Virtual visitation is particularly useful for cases involving international custody, military custody, move away requests, and even extended business trips, for parents whose careers require frequent travel.

Guidelines for Virtual Visitation

Since electronic communication isn’t officially part of California family law, judges don’t have a specific set of criteria or formula they can apply to these situations.

Instead, the court analyzes what would be in the child’s best interest, and loosely considers whether parents:

Will permit and encourage their child to engage in virtual visits;
Have the tools to facilitate their child’s visits;
Are capable of carving out the necessary time; and, of course,
Whether each has the emotional bandwidth to allow their child to have uncensored communication with the other.

The court is unlikely to grant e-communication in situations of abuse or domestic violence, or when supervised visitation is required. And, as a whole, virtual visitation is most successful for parents who can set aside differences and work harmoniously with one another.

All that aside, if the COVID pandemic has taught us anything, it’s that while virtual visitation can be a vital tool in certain situations, it’s certainly no replacement for in-person contact.

The Drawbacks of Virtual Visitation

For parents who are limited by time, distance, or obligation, virtual visitation opens up an array of opportunities for them to maintain contact with their child. However, this technology has also drawn criticism from those who argue that e-communication is a poor substitute for in person face time.

Some of the arguments against virtual visitation include:

The negative impact of too much screen time on a child;
The burden it could place on a child’s already busy schedule;
The burden it places on a parent’s time and resource; and,
The ineffective, two-dimensional nature of e-communication (for instance, how easy it is to misread context and tone).

As California legislators consider whether or not to standardize virtual visitation in family law, they’ll need to examine some of these legitimate drawbacks, and analyze whether these technologies hinder—rather than actually help—parents and children foster deep, meaningful relationships.

They are also drawbacks that you should discuss with your family law attorney, if you and your spouse are considering making virtual visitation a part of your parenting plan.

Virtual Visitation Attorneys in California

If you have more questions about virtual visitation, and whether it’s appropriate for your situation, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help you figure out the visitation arrangement that will work best for your family.

family-law

How is Child Support Calculated in California?

March 3, 2021February 10, 2021
by Briana White

Some of the most common concerns for divorcing parents revolve around child support—specifically who will be required to pay, and how much.

Unfortunately, since child support isn’t standardized, those questions don’t have easy answers. Instead, California child support payments are determined using an equation that factors each parent’s finances against the amount of time they spent parenting.

Here’s a little bit more about how child support is calculated in California, and how the team at Maples Family Law can help estimate what you’ll likely pay.

Child Support Overview

In California, child support can be defined as: money that one parent pays to the other for the purpose of supporting their child.

The need for these payments comes up most often during divorce and separation, however, it can also be applicable to unmarried parents in need of a structured parenting plan.

Child support amounts vary from family to family, and will ultimately be determined by your judge, in conjunction with state guidelines. Payments are almost always made by the non-custodial parent to the custodial one, and will be heavily influenced by the division of time outlined in your custody and visitation agreement.

The rules governing these calculations are laid out in the California Child Support Guidelines.

California Child Support Guidelines

In California, both parents have the obligation to support their child, according to their station and means—a burden they share in equal measure.

To help parents meet these obligations, the California Child Support Guidelines were structured with a twofold purpose:

To lay out a clear-cut, minimum level of support required for one child; and,
To make support calculations uniform across the board, regardless of income level.

By structuring the rules this way, California takes much of the guesswork and subjectivity out of child support, lessening the variability between cases, and making amounts (relatively) easier to determine, overall.

While judges do have the power to alter or adjust the final amount produced by the child support equation, they can only do so under certain, specific circumstances—all of which are also outlined and governed by state guidelines.

Calculating Child Support: Income and Custody

To calculate support payments, California courts use a complex equation that relies heavily on the interplay between the parents’ respective finances, and the amount of time each will spend with their child.

This requires you to know both your net disposable income, as well as your parenting timeshare percentage (as outlined by your custody agreement).

Net Disposable Income

A person’s net disposable income is calculated by taking their gross income, and adjusting that number for deductions. To do this, you will need the numbers for:

Your gross annual income (which is your pay before deductions);
All income tax deductions;
All payroll deductions (such as health care, union dues, and pensions); as well as,
Any childcare costs you have incurred.

Keep in mind you will need both your own net disposable income, as well as the combined numbers for both you and your spouse.

Custody Agreement

The other important element that’s critical to California’s child support equation, is your parenting timeshare percentages.

In California, it’s typical for the non-custodial parent to make support payments to the primary resident parent. This is because the primary resident parent (or “custodial parent”) is usually incurring higher costs by having the child live with them, full time. How much time, however, is critical to determining child support amounts.

As a general rule, the less time you spend with your child, the more child support you’re likely to pay.

Parenting time is something that you can decide on together, outside of court, through alternative resolution methods such as mediation. If you are unable to agree, however, a judge will decide on custody arrangements as part of your divorce.

The California Child Support Equation

Once you have the necessary financial and parenting time information, your child support can be calculated using this equation:

CS = K [HN – (H%)(TN)]

While this might look a bit scary, once you know which letters stand for what, things start to make a little more sense:

CS—child support.
K—the total amount of both parents’ income that will be devoted to child support. (A number that is based on evaluating how much each parent earns against the percentage of time each spends with their child.)
HN—which stands for “high net,” and represents the spouse with the highest net disposable income.
H%—the percentage of time that the high net parent spends with their child.
TN—the combined disposable income of both parents.

So, to put it a little more simply, child support (CS), equals (K). And to find out (K), you:

Take the high earner’s percent of parenting time (H%), and multiply it by your combined disposable income (TN). Then,
Subtract that number from the total disposal income of the high net earner (HN).

As you can see, even simplified, this is a pretty complicated process. (Which is usually why even the best of attorneys and judges take full advantage of the state’s child support calculator!)

Special Adjustments

According to the California Family Code, judges are allowed to adjust the final amount of your equation under certain circumstances, such as when:

You’ve both agreed to a different arrangement (and the judge deems it appropriate);
One parent has an extraordinarily high income, which (when plugged into the equation), results in an amount that far exceeds the child’s needs;
The amounts would be unjust (as determined by the judge);
Your parenting times are nearly equal, but there’s a significant disparity in wealth;
One parent is spending a lot more in housing for the child than the other;
The child has special needs or medicine; and,
Situations where the child has more than two parents.

Judges are also allowed to account for “add-on” costs, which include expenses incurred for:

Child care costs related to employment, education, or training for employment;
Uninsured health care expenses for the child;
Costs related to a child’s education or other special needs; as well as,
Travel expenses for visitation.

Finally, we should mention that the results of the above equation are only accurate if you have one child. For parents with multiples, further adjustments will need to be made based on the number of children you have, as well as how much time each parent spends with each, individual child.

For help navigating this confusing minefield, it’s best to talk to an experienced family law attorney, who can also ensure you get the most accurate estimates.

Child Support Attorneys in California

At Maples Family Law, we understand the unique challenges parents face when getting divorced, and want to do everything possible to help give your child the bright future they deserve.

If you have more questions about how child support is calculated in California, and what that might look like in your situation, we want to hear from you. Call us at (209) 989-4425, or get in touch online to schedule your consultation today, and let us ensure your child’s best interests are met.

family-law

FAQs About Child Custody Lawyers

March 1, 2021February 10, 2021
by Briana White

For worried parents, one of the most stressful aspects of divorce is how it will affect your child—especially in terms of custody. With your child’s well-being on the line, you want to be certain that the lawyer handling your case will fight for their best interest as passionately as you would.

At Maples Family law, we understand these concerns, and want to do everything possible to help you feel comfortable with the child custody process.

Here are some of the most commonly asked questions about child custody lawyers in California, and how our team can help you.

What is Custody?

First off, child custody is a broad label that refers to the rights and responsibilities associated with parenthood. In California, these custodial powers are divided into two main groups:

Legal Custody—the right to make decisions on behalf of a child and to choose how they will be raised; and,
Physical Custody—the right and responsibility to have a child physically present, and to care for their needs.

When parents get a divorce, these powers and duties must be shared and/or divided between spouses. To this end, judges can order the couple either to share responsibilities in joint custody, or, give only one parent this authority in sole custody.

How these parental rights are divided in your case will depend on an analysis of a number of individualized factors.

Can I Sue for Custody?

The answer to this question depends largely on what your relationship is to the child, and where you’re at in the family law process.

Parents, for example, inherently have rights to access, possession, and control over their child. However, if a parent has to ask about suing for custody, this probably means they’ve had their rights revoked or limited at some point. If this is the case, that parent would need to petition the court to have their current order amended, before custody could be reinstated.

If you are a parent getting divorced, custody will automatically be decided as a part of your parenting plan, and incorporated into your final order. There is no need to file a separate suit.

In California, grandparents do not have the same inherent rights to custody as a child’s parents. However, there are some situations where grandparents can sue for visitation, custody, or even adoption. Usually these cases arise due to parental neglect or abuse.

Should I Hire a Lawyer for Child Custody?

Yes. Whether you are getting divorced, or suing for custody in another capacity, it is always better to have an attorney, then not.

Family law is complicated and nuanced, and child custody is no exception. Without an attorney, you have a much greater chance of making expensive and irreversible mistakes—some of which could end up costing you your relationship with your child.

In the end, hiring an attorney is well worth the added expense to make sure your interests are being properly represented.

What if I Can’t Afford an Attorney for Child Custody?

If finances are tight, check with your local legal aid office, andexplore what resources are available to you there. The State Bar Association strongly encourages California attorneys to devote a portion of their time to pro bono services each year, so you may be able to find a quality attorney, at no cost.

Also, consider whether or not you even need an attorney. While it’s always better to have one, you might be able to forego representation under certain circumstances, especially if your spouse is not using representation, either.

If this is the case, consider trying to solve your differences out of court. Mediation, for example, does not require parties to have a lawyer present in order to reach a settlement agreement.

What Do Judges Look at When Deciding Custody?

The governing standard for any case involving children is the best interest of the child. Under this presumption, all outcomes are evaluated based on what will satisfy the child’s long-term health and happiness the best.

That being said, California courts strongly assume that a child’s best interest is served when allowed to cultivate a loving relationship with both parents. Hence—baring extreme circumstances, such as abuse or neglect—judges are likely to grant parents joint custody in most cases.

Factors your judge might consider when making this decision include:

The emotional and mental stability of both parents;
Home life in each household;
A parent’s ability to care for the child;
Any criminal behavior;
Potential harm that could befall a child; and even,
The child’s preference (especially if the child is over twelve).

Ultimately, however, every decision will come down to what is in the child’s best interest.

Who is Most Likely to Win a Custody Battle?

In California, it’s common for courts to split legal custody fifty-fifty between spouses. In these situations, both parents would have an equal say in how their child was raised, as well as the right to make decisions on behalf of their child (such education, medical procedures, and religious exposure). Physical custody, however, is another matter.

Since it’s so difficult to split a child’s physical time exactly equal, judges will often appoint one parent to be the child’s primary residence, while the other gets ample visitation. Statically speaking, mothers are more likely to be appointed the custodial parent, however this is not always the case.

With same sex marriage now legal, as well as a greater overall emphasis on protecting paternal rights, the role of custodial parent is no longer assumed. In the modern California courtroom, there is no room for gender roles, and every custodial decision is made based on the child’s best interest, alone.

How Can a Father Win a Custody Battle?

A father becomes their child’s custodial parent the same way a mother does: by being in the child’s best interest.

This analysis does not include gender stereotypes. Instead, the court simply wants to know which parent is most likely to:

Provide the best home environment;
Devote time and attention to their child;
Offer continuity and stability;
Meet the child’s physical, mental, and emotional needs; and,
Cultivate a relationship between the child and the child’s other parent.

If you are a father who is interested in becoming your child’s primary custodian, you should discuss it with your attorney, who can help you develop the rights strategy, moving forward.

Can You Lose Custody Because of Mental Illness?

The short answer is: no. The reality is: maybe.

While the presence of a mental illness, itself, does not affect custody, sometimes the type and severity of the illness can. For example, if symptoms are so severe that they inhibit a parent’s ability to address basic needs, or to provide a safe home environment, these things would certainly impact a judge’s decision. However, on its own, the diagnosis is not a deterrent.

California Child Custody Lawyers

If you have more questions about child custody lawyers in California, and how the team at Maples Family Law can help you, call us at (209) 989-4425, or get in touch online, and together, we can ensure that your child’s best interests are being met.

family-law

Divorce in California

February 25, 2021February 2, 2021
by Briana White

If you’ve never experienced it before, divorce can be an intimidating process. Between filing the correct forms, locating documents, and keeping track of deadlines, there’s a lot to remember, and, without help, the journey can quickly become overwhelming.

To help you out, this article will walk you through the basic steps of how to get a divorce in California, and how the lawyers at Maples Family Law can make this process easier for you.

Residency Requirements

If you want a divorce, one of the first things you’ll need to do is make sure you meet the residency requirements at both the state and county levels.

In order to file in California, you will need to have lived in the state for at least 6 months. For residents of San Joaquin county, the requirement is three.

If you’ve fallen short in either of these categories, you don’t need to worry. There is a lot of busy work that needs to happen before you file, anyway. While you wait, discuss your situation with a family law attorney, who can make sure you have all the necessary information on hand to hit the ground rolling.

Important Dates

Regardless of what documents are required for your, individual case, two important dates you will certainly need are your: 1) date of marriage; and, 2) date of separation.

These dates are important, because they’re used to help determine your interests in marital property.

California is a community property state. This means that all assets acquired after marriage belong to both of you equally—regardless of whose name is on the paycheck, account, or card. Unless you have a valid prenup saying otherwise, this shared interest continues up until the time of separation.

Determining your date of separation is much simpler, if you and your spouse had a legal separation. Those couples who didn’t make separation official will need to comb through emails, texts, and other informal documents to prove this date to a judge.

Immediate Orders

Another thing to consider before filing, is whether or not you’ll need a temporary order.

Temporary orders are provisional (meaning, they have a set expiration date), and can be used to prohibit certain behaviors or dictate responsibilities while your divorce is pending.

These can be tailored to meet your individual needs, but are often used to:

Dictate parental responsibilities, such as child support, custody, and visitation;
Require spousal support payments; and even,
Outline living arrangements and the bill-paying responsibilities of each spouse.

Temporary orders can be especially useful for those who might be worried about spousal retaliation. In these scenarios, a temporary order can prohibit your spouse from emptying bank accounts, destroying property, and fleeing across state lines with your children.

If physical retaliation is a concern, a Domestic Violence Restraining Order would likely be more appropriate. If the threat of harm is immediate, your attorney may be able to request an Emergency Protective Order on your behalf.

If you are experiencing abuse or domestic violence of any kind, remember that keeping yourself and your children safe is paramount to everything else.

File Documents

After your paperwork is complete, you will need to take your documents to your local family court to file them, and to pay the associated fees. In California, the filing fee for an original petition of divorce is $435.

If you are trying to execute a D.I.Y. divorce, this fee will be your responsibility. Those who utilize an attorney, however, do not need to worry about these technicalities. When you hire a lawyer, they are in charge of making sure all the necessary paperwork is filed on time, and that fees are paid (the amounts of which will be deducted from your retainer).

Serve Your Spouse

Once divorce has been initiated, the next step is to notify your spouse—and this cannot be done with a simple phone call or text message. Proper notification (or “service,” as is the legal term), is done by giving physical copies of all paperwork to your spouse, in person.

As a party to the case, however, you are not allowed to serve divorce papers on your spouse. Other than that, though, the requirements are pretty open, meaning it’s usually not necessary to hire a professional process server.

For service to be proper in California, your server must be:

At least eighteen;
Not affiliated with the case;
Serve papers within sixty days of filing;
Fill out a Proof of Service form; and, finally,
Deliver the Proof of Service to you, so that your attorney can file it with the court.

Failing to complete proper service could put your case in danger of dismissal.

If you are unable to meet the sixty-day timeframe, your attorney can request more time. This extension is often needed by spouses who have been abandoned, and don’t know how to locate their partner. In these situations, the court will sometimes make an exception to in-person delivery, and allow you to utilize another method of service.

Waiting for a Response

Assuming you have executed proper service, your spouse will then have thirty days to respond to your petition. To this end, their options are:

True Default—do nothing, by not engaging or responding to your petition at all;
Uncontested Divorce—do nothing, because you already have a written, notarized agreement outlining your terms;
Respond in Agreement—file a response with the court, confirming agreement with your proposed terms; or,
Respond in Disagreement—file a response with the court contesting your proposed terms.

It is almost never a good idea to allow your case to default—even if you do not want the divorce to happen. Refusing to engage will not stall out proceedings. Instead, the court will simply grant the divorce as though you had agreed to all the terms.

Needless to say, this is almost never in your best interest.

During this thirty-day period, you and your spouse are also free to work out a settlement—either between yourselves, or through mediation. If successful, you can submit a marital settlement agreement with the court, which will then become your official divorce order.

When Issues Can’t Be Resolved

Those who are unable to reach an agreement must engage in litigation.

Divorce litigation is a traditional court trial, where both sides are represented by an attorney, evidence is presented, and the issues are decided by a judge. Litigation is by far the most expensive, time-consuming, and least flexible way to secure a divorce. So it’s usually a good idea to at least try to settle, before proceeding to trial.

Single Status

If you are planning to remarry after your divorce, keep in mind that in California, you are not considered to have reached “single status” until six months and one day from the time of service.

If your divorce has not been finalized within this time, you can file a Single Status Affidavit with the court, which will allow you to proceed, in lieu of a final judgment.

Naturally, you are not automatically divorced, just because six months have passed. In all cases, you will still need to either resolve issues amicably with your spouse, or through the court.

Divorce Lawyers in California

Divorce isn’t simple, which is why so many people choose to hire personal representation. Armed with education and experience, an attorney can guide you around major pitfalls, handle tedious paperwork, and ensure your best interests are being protected at all times. Freeing up your mental energy, so that you can channel it where it’s needed most: your family.

If you have more questions about Divorce in California, and how this process might apply to your situation, we want to hear from you. Call us at (209) 989-4425, or get in touch online, and let the team at Maples Family Law help make this process a little easier for you.

family-law

San Joaquin Criminal Defense Lawyer

February 23, 2021February 2, 2021
by Briana White

Unfortunately, it seems as though the people we love most are usually the ones who end up hurting us the worst. In a family setting, emotional hurt generally makes up the bulk of this pain. However, in the wrong circumstances, the vulnerability of family relationships can easily be twisted, leading to things like domestic violence, abuse, and other serious crimes.

Because of this, family law often shares real estate with criminal law—despite the fact that they technically fall under different court systems. Here, we will discuss some of those crossover situations, and when you might want to include a San Joaquin criminal defense lawyer in your family law case.

Civil and Criminal Crossover Cases

Most of the time, family law matters fall under the civil court system. In civil court, individuals bring suits against each other, and usually arise over things like divorce, property disputes, torts, and contractual obligations. This is different from criminal court, where the government (either state or federal) brings a case against a citizen, directly.

For example, take domestic violence. While it is a family law issue (and thus, subject to civil court), as a crime protected by California’s domestic violence laws, these actions are also subject to criminal ramifications. Here, the government would not need your permission to press its own charges. Once a case has been filed, the government—as an entity—can choose whether or not it wants to pursue other penalties—regardless of how you feel about the matter. Thus, in these situations, a perpetrator could end up facing consequences in both civil and criminal courts.

As family law attorneys, here are some of the most common crossover cases we see between family and criminal law.

Domestic Violence

Domestic violence is defined by harm caused inside of an intimate relationship, and it is one of the most frequent crossovers to come up family court. While most people think of harm as hitting, bruising, and breaking bones, domestic violence actually extends beyond that. Harassing, stalking, threatening, destroying property, making threats—even if they are against another person, and not to you, personally—are all behaviors that fall under the domestic violence umbrella.

In addition to whatever civil court consequences can be earned here (such as divorce orders, damages, and possible alterations to child custody and visitation), the state might also choose to press charges. Depending on the facts, domestic violence can either be classified as a misdemeanor or a felony. Perpetrators could be fined, charged with probation, earn jail time, and even end up in a state prison.

Sexual Abuse

In addition to general provisions regarding sexual assault and rape, California’s penal code specifically mentions spousal rape—because being married doesn’t mean you get to have sex whenever you want. Consent is still critical. Thus, individuals convicted of spousal rape could face the better part of a decade behind bars, pay steep fines, and end up as a registered sex offender for life. Other types of sexual abuse (such as nonconsensual groping, oral, or other touching using threats, force, or harm) can also trigger a crossover cases between family and criminal courts.

The penal code further clarifies that community property cannot be used to assuage liability under these charges. So basically, even if your ex tries to bribe you, by offering a favorable property split in your divorce if you drop the charges, this wouldn’t eliminate whatever penalties are coming from the state in criminal court.

Child Abuse

Other common crossover cases involve children, where abuse, endangerment, neglect, and abandonment are most likely to surface. Typically, California courts do not look kindly on individuals who have committed these crimes, and can levy a sentence of up to six years in state prison, if convicted.

A person who has:

Intentionally hurt a child;
Leaving visible injury; whose actions were,
Outside normal disciplinary actions,

Would likely be guilty of child abuse. In California, spanking your child is legal, however since there’s a lot of interpretation involved in this, if your discipline has been called into question, it’s best to discuss options with your San Joaquin criminal defense lawyer as soon as possible.

Juvenile Criminal Cases

Because children haven’t yet reached the age of majority, most juvenile cases are handled outside the general criminal system reserved for adults. Baring unusual circumstances, juvenile crimes are treated more like civil offenses, or rather “family,” matters, and are exempt from the full force of California’s criminal code. In a juvenile criminal case, the parents are expected to appear in court with their child, and can even be fined on behalf of their child’s behavior.

For these reasons, many family law attorneys also cover a range of juvenile criminal cases.

False Allegations of Abuse

On the other hand, it’s possible you are on the receiving end of abuse allegations. California is a no-fault divorce state, meaning that fault (including abuse) cannot be factored into things like property division. However, that doesn’t mean it wouldn’t affect your divorce at all. Especially if children are involved.

In California, every decision involving a child is analyzed based on the best interest of the child. Naturally, placing a child with an abusive parent would not be in their best interest, and so, abuse allegations—even false ones—could certainly damage a potential custody and visitation schedule in your divorce.

Because the state takes child abuse so seriously, if your spouse has falsely accused you of abuse in order to influence a custody order, it’s critical you notify your San Joaquin criminal defense lawyer as soon as possible.

San Joaquin Criminal Defense Lawyers

While family and criminal law operate under two different systems, because of the emotionally charged nature of families, the two often go hand in hand. If your family law issue has turned ugly, and you believe you need the assistance of a San Joaquin criminal defense lawyer, we can help. Call us at (209) 989-4425, or get in touch online to schedule your consultation today. Most of the time, your situation can be handled in house by our competent team of experienced family law attorneys. However, if needed, we can refer your case to other, highly qualified criminal defense lawyers.

Property Division

Dividing Retirement Assets in a Divorce

February 17, 2021February 1, 2021
by Briana White

With so many different types of plans and variables at play, dividing retirement assets in a divorce can be complicated. Especially if they existed both before and during a marriage, dashing any hopes of a clear property classification. However, considering their sizable worth, retirement accounts are one aspect of property division you don’t want to get wrong.

Fortunately, a good Stockton divorce attorney can help you get the job done without too much hassle.

Identifying Retirement Assets in a Divorce: Community or Separate Property?

When splitting a retirement plan, the first step is to identify what kind of property the account is. Like all other assets acquired by a couple during marriage, retirement funds are subject to property classification and division under California’s community property laws. Under these rules, assets are categorized as either “community” (property that belongs to both spouses equally), or “separate” (property that belong to one spouse, individually).

To classify the contents of a retirement account, timing is key. If either spouse contributed to the account while married, it is most likely community property (unless specifically addressed in a valid prenuptial agreement.) On the other hand, if the account was created before marriage—and was not added to during that time—it’s most likely separate property, and belongs solely to the participant spouse (the party who earned the benefit).

Most of the time, however, property isn’t as clear cut as “before” and “after” marriage. And when the ‘what’s mine is yours’ mentality results in blending separate and community property together, retirement division can get a little more complicated.

Dividing Retirement Assets in a Divorce

If the retirement account is classified as community property, a judge will split ownership based on the length of time the couple was married, and how this occurs will vary by circumstance. In some cases, both spouses agree to keep their own pensions and retirement accounts without taking any part of the other spouse’s. However, when one spouse doesn’t have a retirement account – or when one has a much smaller retirement asset than the other does – a judge will order the couple to split these funds another way. There are two common ways this can be accomplished.

The first, is to suspend all retirement payouts until the participating spouse actually retires. Once retirement finally rolls around, each spouse will get their share of the retirement payout for the time married. The second method, is to allow the participating spouse to keep all benefits of the retirement plan, and to offset this inequality by awarding the non-participating spouse a greater portion of community assets.

Obviously, each method of distribution comes with its own pros, cons, and risks. When assessing how to make this split, couples are always free to reach their own agreement, rather than fighting in court. One way to do this, is through mediation.

Divorce Mediation

Mediation is a non-binding negotiation process, where couples meet with a neutral third party, and try to come to an agreement on their own. This method of dispute resolution is far simpler and more cost-effective than litigation. It also gives individuals greater flexibility in determining the outcome of their own divorce terms, including the division of any retirement plans. For these reasons, a good attorney will always suggest that you try mediation before going to court.

Retirement Payout After Divorce

Once an agreement has been reached—either through mediation, or by litigation—the actual payout process will depend on what type of retirement plan you have.

For example, when dealing with a military retirement account, the length of your marriage will determine whether the participant pays out the alternate payee, or if the money will come directly from the Defense Finance and Accounting Service.

In other cases, individuals must file a qualified domestic relations order, or QDRO. A QDRO is a special court order authorizing a non-participant individual to receive a payout from a retirement account. Once a QDRO is filed, payout usually takes between 60 and 90 days, depending on how long it takes the plan’s administrator to process the documents.

These types of details—such as how payout works and how long it takes to receive—will vary for each type of retirement account. Once your Stockton divorce attorney has all the facts of your case, they will be able to give you more specific guidance on what to expect from your retirement payout process.

Retirement Plans Covered by a Prenup

Now days, it’s common for divorcing couples in California to have prenuptial agreements. These pre-marital contracts can cover all kinds of things about property division during divorce. In your prenup, you and your spouse may have agreed to several things, including the rights and obligations you each have when it comes to property (even if it was acquired during your marriage).

If a retirement account was included in your prenuptial agreement, it’s a good idea to talk to your attorney about it. The prenup can’t be grossly unfair, and if it is, your Stockton divorce attorney can help argue that all or part of the agreement is invalid.

Divorce Attorneys in California

If you have questions about dividing retirement assets in a divorce, we’re here to help. Call us at 209-546-6870 to schedule a consultation with an experienced divorce and pension attorney. Together, we’ll answer your questions, and begin building a strategy that will get you the best possible outcome in your retirement plan division.