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FAQ

How Can I Help?
There are many ways in which you can help. One such way is to keep your files well organized. Debts that exist as of the date of separation are generally community debts regardless of which party incurred them. On the other hand, income earned by either party after the date of separation is that person's separate property. To the extent income earned after the date of separation (therefore separate income) is utilized to pay community debts, then (with certain exceptions) you would be entitled to reimbursement at the time of the division of community property.

In order to prove these credits, you need to keep copies of the bills showing the amount of the indebtedness close to the date of separation, with monthly statements thereafter and the cancelled checks that were used to make payments following the date of separation.

Can I Modify a Past Order?
California Law states that certain orders may be modified after a final judgment has been made.

There are three areas in which post-judgment modifications are most common:

  • Child Custody/Visitation Orders
  • Child Support orders
  • Spousal Support orders
The court will not Modify the Property Division that has been Adjudicated by a Final Judgment.
  1. Modification of Child Custody/Visitation Orders: Child custody and visitation orders are generally modifiable whenever the court finds a modification is "necessary or proper" and in the child's best interests. [Ca Fam § 3022]. Typically, the parent seeking a modification must show a "significant change of circumstances" that would support such a modification.
  2. Modification of Child Support Orders: Child support orders are modifiable "at any time as the court deems necessary." Even if the parties have agreed that support may not be modified, child support may be modified at any time to the mandatory statewide child support guidelines.
  3. Modification of Spousal Support Orders: Spousal support awards and agreements are modifiable throughout the support period except as to amounts accrued prior to filing of application for modification and except as otherwise provided by agreement of the parties. However, unlike child support, the court's continuing power to modify spousal support is dependent on the terms of the court's order. Unless jurisdiction to award support has been reserved, postjudgment spousal support is limited by the stated duration of the order. [Ca Fam §§ 3603, 3651(c), 4333, 4335]

Can I get joint custody of my children?
California has a "joint custody" law that encourages judges to award joint "legal custody" to parents. This means that both parents have a right to make decisions concerning their children, such as education, medical treatment and religious training. The court also has the power to award "physical custody" to one or both parents. Physical custody determines where the child actually lives, and it is most common for the children to spend most of their time with one parent. The parent who does not have primary physical custody is usually granted "secondary physical custody" or visitation rights.

It is most common for the non-custodial parent to have specified periods of time consisting of alternating weekends, one evening per night and one-half of the children's school vacations. In some cases, the parents agree to "reasonable" secondary physical custody or visitation rights, which means that the parents agree on the times when the non-custodial parent will have the children.

Can I get temporary spousal support while our case is pending?
Spousal support is often awarded at an Order to Show Cause on a temporary basis, where one spouse is unemployed or earning significantly less than the other spouse. The Superior Courts of Orange and Los Angeles Counties have adopted a spousal support guideline for use in setting temporary spousal support. This guideline provides that the receiving party's spousal support is to be 40% of his/her net monthly income, reduced by one-half of the other party's net monthly income.

Where child support is being paid, the guideline level of child support is first calculated. Then, spousal support is determined.

If I am not working right now, at the initial Order to Show Cause hearing, will I be required to find a job immediately?
At the order to show cause hearing, the judge is not concerned about the employability of the receiving party. Instead, at this stage, the judge merely wants to preserve the status quo and provide the parties with sufficient income for basic needs, consistent with the parties' life style.

How does a judge determine spousal support at the time of the trial?
At the trial of the dissolution, the California Family Code provides the judge with a long list of factors that are to be considered in determining the amount and duration of spousal support. This list includes such factors as the length of the marriage, the parties' prior living standard, the extent to which the supported spouse contributed to the attainment of an education or professional license by the other spouse, the presence of young children in the home, and the employment opportunities avail able to the spouse requesting support.

How long will my spousal support last?
In general, where the marriage has lasted more than 10 years, the court will, at the very least require a "reservation of jurisdiction." This means that, even if there is no current order for spousal support, the wife will be permitted to come back to court at a later date to request spousal support should the need arise. In marriages of less than ten years, spousal support will usually be paid for approximately one-half of the length of the marriage.

Is the spousal support I am paying tax deductible?
The Internal Revenue Code provides that all spousal support payments are tax deductible by the paying spouse and taxable to the recipient spouse as "ordinary income." For this reason, it is not uncommon for a negotiated settlement to include the payment of a high amount of spousal support, because such a payment results in tax benefit to the payor.

Can I get medical insurance benefits through my spouse's employer after the dissolution of marriage?
Under Federal Law you might be entitled to keep your medical insurance benefits under your former spouse's group plan. The Consolidated Omnibus Budget Reconciliation Act of 1985 created what are commonly known as "C.O.B.R.A." benefits, which are available to the former spouses of people who work for employers who have 20 or more employees.

In general this law provides that employers must offer "continuation coverage" for the first three years after the termination of the marriage. The law further provides that the employer can charge the former spouse for this coverage, but the charge cannot be more than 2% greater than what is charged to employees.

After the three years have ended, the law states that the employer must offer a former spouse the right to purchase "conversion coverage", but there are no limits on how much the employer can charge for this coverage.

The C.O.B.R.A law further provides that the former spouse does not have to pass a physical examination in order to obtain the continuation or conversion benefits. This is significant if you have any pre-existing conditions that might not be covered by another medical insurance carrier.

In order to obtain your C.O.B.R.A. benefits you have to file your application with your spouse's employer by no later than sixty (60) days after the termination of your marriage. If you do not file your application by that date you will not be able to get these important benefits.

If you wish to have your C.O.B.R.A. benefits you must contact your former spouse's employer directly and request the appropriate forms. This is not a service that is customarily performed by our office. You must contact your former spouse's employer directly if you want to obtain these benefits.

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San Rafael Divorce

© Law Offices of Renee M. Marcelle
Marin County Family Lawyer, Divorce Attorney, & Child Custody Law Firm

The Law Offices of Renee M. Marcelle covers these geographical areas for your legal counsel: Belvedere, Corte Madera, Fairfax, Larkspur, Mill Valley, Novato, San Anselmo, San Rafael, San Francisco, Tiburon, Marin County, Solano County, San Francisco County and Sonoma.

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