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Divorce & Legal Separation
A divorce is a uniquely personal and challenging experience. Understandably parties to a divorce can experience severe emotional and financial turmoil, particularly at the early stages of a divorce. Each facet of a divorce requires understanding of the specific facts and circumstances, and making choices that can have long-lasting effects. Choosing a great Family Law attorney can lead to significant advantages and outcomes for your case.
During the divorce process, each applicable issue of child custody, child support, spousal support, and property division must be addressed. Fischer & Phinney understands the importance of these issues, and the legal intricacies which must be navigated to a resolution most favorable to you.
The staff of Fischer & Phinney has decades of experience and knowledge of California divorce law, and providing outstanding legal services to clients. From a beginning of a compassionate understanding of your case, Fischer & Phinney are well equipped to discuss a strategy for your case, and to represent your interests in resolving the legal issues necessary to conduct a divorce through final proceedings.
Child Custody & Visitation
Likely the most important issue in Family Law is child custody. In fact, this issue is usually the source of most stress and contentiousness between parties.
California law provides judges wide discretion in determining custody and visitation arrangements. The initial standard for the Court is a determination that is in the best interest of the child. Factors the Court will consider include the age of the child, the health and educational needs of the child, the bond between the child and each parent, the ability of the parents to not just care for the child, but to foster a relationship between the child and other parent, any history of domestic violence or abuse against the child or other parent, and any mental health, substance abuse or other suitability issues with either parent.
In an ideal situation, some custody and visitation agreements are as simple as agreeing that the child will spend equal time with both parents, with visitation time as agreed by the parents. When both parents can put aside their differences or at least prohibit them from interfering with the interests of their children, understand that children have two biological parents and that each should play a significant role in the upbringing, and are able to communicate and co-parent in a healthy, civil manner, not only can a plan this simple custody plan work, but results in a much more healthy and peaceful life for both the parents and the children.
At the other end of the spectrum, in some contentious cases there are significant issues, real or perceived, which result in constant and repeated battles for custody and visitation rights. Often these types of custody cases are the result of highly emotional cases where personal issues or propensities by one or both parents interfere with co-parenting the child in a healthy and peaceful manner. Often the children get caught up in the middle of the dispute, which can be traumatic. These types of cases need to be handled expeditiously to correct the problems so as to protect the children.
Child Support
Child support can be one of the most important issues in your divorce or parentage case, intended to make sure children are financially provided for in both parent’s care. Child support is determined by many factors but the primary factors are the amount of time each parent practices physical custody with the children, and each parent’s respective income available for support.
When one parent is unemployed or underemployed, it can create problems and confusion, and deprives children of a lifestyle that is provided for under the law. Courts take the responsibility of parents to provide for their child very seriously. The penalties for not providing for children or not paying ordered support can be very severe.
Upon separation it is very important to establish the correct amount of child support early so the children will be adequately provided for. It can take time before the court can hear a child support case, so it is very important to file for child support soon after separation.
Spousal Support
Spousal Support can be one of the most contentious issues in family law. Spousal support is intended to relatively equalize disposable income and the lifestyle established during the marriage, and to provide the supported spouse reasonable time to take steps to become self-supporting. After a couple separates, the Court will try to maintain the “status quo” as much as reasonably possible.
There are two time periods the Courts will look at when determining support. First, the time period after separation through trial or final disposition to a Judgment in the case, sometimes called “temporary” or “pendente lite” support, and second, the time period around the time of the trial or final disposition of the case, referred to as “permanent” support. For temporary support, the law authorizes the Court to use a guideline calculation to order support, and they usually do. As such, the primary factors are the income available for support of each of the parties. For permanent orders however, the Court cannot use a calculation, and must consider the Family Code §4320 factors in determining permanent support.
In a short term marriage (less than ten years), there is a legal presumption that one-half the length of the marriage is the reasonable amount of time for the supported spouse to become self-supporting. In a long term marriage (greater than ten years), there is no such legal presumption, and the Court will consider many factors in determining the reasonable amount of time for the supported spouse to become self-supporting.
Property Division
Property division can be amongst the most complicated issues in a divorce depending on the complexity and types of property to be divided. The starting principles are that “property”, loosely defined, includes both real or personal property and both assets and debts, and also the distinction between separate property and community property.
Separate property is any property acquired prior to the marriage, or after separation, or any property acquired during the marriage by gift or inheritance. This separate property is not subject to division in a divorce.
Conversely, community property is any property, wherever situated, acquired by a married person during the marriage while domiciled in this state. Note that there is also “Quasi-Community” property, which has the characteristics of community property except that it was acquired while domiciled in another state. Quasi-Community property tends to be treated like Community Property in divorce proceedings.
To the extent practicably feasible, separate property is confirmed to the separate property recipient, and community property is split 50/50 between the parties. Obviously this may require alternative solutions, for instance as related to the vehicles or furniture, where an even division of the value may not be feasible or practical.
High Asset Divorce
High asset divorces, sometimes called high net worth divorces, can involve a wide range of property problems. Some cases involve the division of high value real estate, large investment portfolios, or the division of complex business entities. California community property law still applies, but complex issues of characterization as community, separate or mixed-property, historical tracing, and valuations can occur.
Further, child and spousal support can present unique issues when a supporting party has income from non-customary income streams such as self-employment, business ownership, or other mixed asset and income stream vehicles.
Aside from the division of the marital or community estate, it is also paramount to protect a party’s assets and minimize any potential risk.
Many high asset cases are resolved via private mediation as a way to avoid long court wait times, allow comprehensive exploration of the case issues or simply to protect litigants’ privacy.
Restraining Orders
A restraining order is a Court order which requires a party to do or not do certain things, in particular to stop recurring violence, abuse or harassment. A restraining order can ask for as “little” as to stop further communication and contact, or as much as requesting a stay-away order and even a “kick out” or removal order wherein the restrained party is removed from a residence and disallowed from returning.
A restraining order begins with a party requesting the Court make certain orders where certain, qualifying acts have occurred. A request for a restraining order is an ex parte request, as the Court only reviews the request and thus one side of the story. If the Court finds sufficiency in the request they will grant a temporary restraining order, whereas if the Court does not find so, they will deny the temporary restraining order. Either way, the Court will calendar a hearing on the matter and may at that time issue a permanent restraining order if sufficient cause is demonstrated.
There are three fundamental types of restraining orders, each with different qualification requirements and standards of proof. More common is a Domestic Violence Restraining Order, often filed in conjunction with a divorce or other Family Law proceeding. To qualify to file for a Domestic Violence Restraining Order, the requesting party must have or have had a “close” personal relationship to the other, for instance spouses, familial relationship, co-parenting relationship, or other dating or “household” relationship. The standard of proof in a Domestic Violence Restraining Order is by a preponderance of the evidence, or in other terms, “more likely than not”. Where a Domestic Violence Restraining Order is in conjunction with another Family Law case, there can be substantial carryover and consequences in the other Family Law case, particularly as it pertains to child custody and visitation.
An Elder Abuse restraining order is available to protect parties who are over the age of 65 from financial, physical and mental abuse. The standard of proof is by a preponderance of evidence, and a permanent order may be made on the basis of past abuse, without any particularized showing that the wrongful acts might be repeated. A Civil Harassment restraining order is available where there is not the close relationship as in a Domestic Violence Restraining Order, nor the age requirement of an Elder Abuse Restraining Order. The standard of proof for a Civil Harassment Restraining Order is a higher standard of proof, requiring clear and convincing evidence for a permanent order to be issued.
A retraining order is a substantial legal matter, and can have implications reaching beyond the direct Court matter. A restraining order is a restriction on fundamental personal freedoms. A permanent restraining order may have effects on future employment, housing ability, and as previously mentioned, on custody and visitation rights in a Family Law case. If you are the victim of abuse or harassment, seek legal advice regarding your options and rights to stop the conduct and protect your physical and mental health and peacefulness. If you have been accused of abuse or harassment, seek legal advice to not only protect yourself from the allegations, but from the ramifications and consequences a permanent restraining order may have on you.
