Steven Fernandez |

Divorce Process

Shortly after the respondent receives formal notice of marriage dissolution proceedings through service of process, the judge normally holds a temporary hearing to make interim determinations about child custody, child support, property division, spousal support, and other matters.

Needless to say, these are some very important determinations, and since the temporary hearings normally occur about two or three weeks after the petitions are filed, there is no advance information available from discovery, so there is nothing other than limited evidence and the arguments of counsel.

Child Custody

This issue basically has two subparts. Legal custody is the right to make important decisions concerning the children, such as what school they will attend, what physician they will see, and so on. Physical custody is where the children spend their time, for example, they may “live” with Parent A and “visit” Parent B. California has a very strong joint custody presumption. The theory is that frequent and consistent contact, as well as a high level of co-parenting, are in the children’s best interests, and that is the overarching principle in these matters.

The presumption may be strong, but it is far from conclusive, and judges routinely order unequal custody arrangements based on the evidence in the case. Typically, that evidence is a DCFS report, which the judge orders is almost all contested cases. However, at the temporary orders phase, such a report is unavailable. So, if a parent feels that an unequal arrangement is in the children’s best interests, there must be sufficient non-report evidence in the record to rebut the presumption. Such evidence could include:

  • School Records: Final report cards are helpful but possibly incomplete or misleading. Instead, specific evidence, like a poor test grade following a weekend visit with Mother, is usually more compelling.
  • Emergency Medical Records: An ex parte protective order is evidence of abuse, but because the issuing judge only heard one side of the story, such an order is not necessarily dispositive. To shore up this area, the judge will want to see hospital records, especially if there are any notes in these records about potential domestic violence.
  • Witness Statements: Although a judge will not automatically discount testimony from friends and relatives who may have an understandable bias, teachers, school counsellors, and other neutral third parties are often more convincing.

Pragmatically, if a parent wants to limit the children’s contact with the other parent, the judge will want to see fairly strong evidence that such an arrangement is not in the children’s best interests. More than likely, rather than ordering an unequal division, a judge will send one parent to anger management counselling, parenting classes, and/or substance abuse counselling.

Child Support

Like most other jurisdictions, California is an income share state which basically apportions child support based on the standard of living the children would have if their parents were married and living together, on the theory that anything else basically punishes the children.

The guideline amounts are presumptively reasonable, and the actual formula used to determine this amount is quite complicated. The primary factors are:

  • Number of Children: Courts sometimes modify this factor if a parent has stepchildren or other dependents not before the court.
  • Both Parents’ Incomes: Illinois, Nevada, Texas, and the other percentage-of-income states normally only look at the obligor’s income when setting the amount of payments.
  • Children’s Needs: This factor fluctuates based on age. Because of daycare, young children typically have a greater financial need; the same thing applies to older teenagers who are enrolled in expensive extracurricular activities or who want to drive.

Essentially, the income shares model generates a total support obligation, and the judge divides that obligation proportionally between the parents. It therefore stands to reason that many of the income share states have weaker joint custody laws, because since the children spend most of their time with one parent, there is no need to consider both parents’ incomes.

Even under this system, child support is a relatively mechanical process in most cases, so accurate decisions are possible with limited discovery.

Alimony

Because of the compressed time frame, no judges make long-term spousal support decisions this early in the process. Instead of the factors usually associated with alimony, such as the length of the relationship and the standard of living during the marriage, judges only seek to preserve the financial status quo until the divorce is finalized. To meet that goal, and because of the limited amount of information, most judges use some variation of the Santa Clara formula, which is 40 percent of the obligor’s net income minus 50 percent of the obligee’s net income. Any money dedicated to child support doesn’t count.

Temporary alimony is not automatic, as the obligee must still demonstrate a financial need. These items include attorneys’ fees, rental deposits, daycare costs, interim living expenses, and other divorce-created costs. Imputed income sometimes complicates matters, because obligors cannot refuse to work to avoid paying family support obligations.

The temporary orders set the stage for final resolution. For a free consultation with an experienced family law attorney in Los Angeles, contact Fernandez & Karney. Our lawyers have over 50 years of combined experience.