USA - California - Irvine

Orange County Office:
2021 Business Center Drive
Suite 207
Irvine, California 92612

E -mail: attorney@BidwellLaw.com

Phone: 949-474-0961
Fax: 949-474-0963
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Breakdown of a Marriage -- Two Reasons
California Divorce - Part As Friends
Child Custody Public Policy
Child Custody Terminology
Child Support Under California Family Law
Domestic Partner Rights and Responsibilities
Home Acquired Before Marriage
Form for Relative to Enroll Child in School




Breakdown of a Marriage - Two Reasons - Sex & Money

I have been told two reasons exist for the breakdown of a marriage, sex and money. Today's courts do not judge on sexual morality or inadequacy. The one exception is a nullity of marriage. Nullity of marriage allows for the marriage to be treated as void, as if it never existed. A marriage can be nullified if the marriage can not be consummated.

With the one exception, sex is not a litigating matter in dissolution of marriage. I have also been told if the sex is good, the money issue is somehow addressed. If finances are your only real issue, you may not be ready for a divorce attorney. Consider marital agreements, therapy or any of the other methods of persuasion available to you before consulting a divorce attorney. If you are looking for a cure to familial discord do not consult a divorce attorney. Divorce attorneys are programmed to destroy.

So if the sex is bad and the finances are out of control, the marriage is done. That is when a divorce attorney is brought in. How did the money issue get so out of control. Often the couple is living from paycheck to paycheck. But just as often, this same couple is earning money above the median average. Money should have been saved. In the imploding marriage money has not been saved and debt is always a looming monster ready to devour. Stress from living hand-to-mouth takes its toll on the relationship. Why does this happen to the point where stress from finances is expected norm in the typical divorce?

My theory is poor communication. The husband; and as chauvinistic as it sounds, it is most often the husband, is working full time and it is his earnings that pay all or a good portion of the bills. But does Mr. Breadwinner inform his wife what he is making? Chances are if he or his wife are seeing a divorce attorney, no he has not. So wife guesses as to how much he is earning. Do you think her estimate is lower than he is actually making? No of course not, she assumes he is earning much more. Will Mr. Breadwinner work real hard to correct that misunderstanding? Not if he comes equipped with the standard male ego, he won't.

Now wife is spending based on the assumption that husband is earning more money than he really makes. In the process of spending, she buys items for herself and items that she thinks will enhance the family experience. Do you think she communicates what she has spent on herself to Mr. Breadwinner? Do you think the husband's estimate of what she is spending on herself is more or less than what she actually spends? Will wife work real hard to correct that misunderstanding? Not she has been raised with any sense of guilt for self indulgence, she won't.

So wife thinks husband earns more than he does. Husband thinks wife spends more on herself than she does. A major communication gap. Can the marriage be saved with proper information. Probably not. Remember, there one other problem with this marriage. Finance is just the only problem that can addressed in the legal system.

So how do we minimize the stress of divorce? By communicating what should have been said during the marriage. The courts long ago recognized communication did not happen while married but will force that communication during divorce for a more equitable dissolution. To force this communication standardized forms of disclosure are required. And more forms not required, but available, are available to facilitate communication.

The required forms are income and expense declarations supported with paycheck stubs or the like. What one earns and what one spends are laid out in black and white. A helpful, but not required form is the schedule of assets and debts. The schedule of assets and debts presents in columnar form all assets, associated debt and unsecured debt of the marriage.

For the stubborn spouse, form interrogatories asking the same question in multiple ways are available. For the really untrustworthy spouse special interrogatories may be needed. Special interrogatories are up to 35 specific questions asked by one spouse of the other spouse and those questions must be answered.

Another useful tool is the A Demand for Production of Documents @ This discovery tools requires your spouse to provide every relevant document she or he has and to provide those documents at location of your choice. A proper response to a demand for production of documents will provide tax returns, bank statements, credit card statements and loan applications. All are great documents to obtain a real understanding of your spouses financial situation.

Finally, when the dust settles, one spouse realizes the other does not make as much as once thought and the other realizes the spending is not as selfish as originally thought. The basic problem of financial irresponsibility remains, but you will soon be divorce, so it will not matter. The important matter is both parties now have a realistic understanding of their joint finances and can come to an understanding of what needs to be done and how to move on with their lives.

Court hearings are avoided. A contract or an agreed upon judgment are entered into by both parties. The money is issue is addressed.



California Divorce - Part As Friends

 Step One -- Filing of Petition. I help you prepare a petition. I file the petition in the Court house. You are assigned a case number. Your petition identifies you, your spouse and the problems to be addressed; such as division of assets, child custody and spousal support.

Step Two -- Service of Summons and Petition. Your spouse is provided the petition and summons. This is known as service. In an uncontested divorce, service by a third party is not necessary and alternatives are available. We can sit down and discuss how best to provide the documents to your spouse that is in the least confrontational manner.

Step Three -- Disclosure of Income and Assets. I help you and your spouse prepare “Income and Expense Declarations” and a “Schedule of Assets and Debts.” California law requires each of you to fully disclose all sources of income and all assets to the other spouse. In addition to complying with law, this step builds confidence between you and your spouse to assure that one spouse will not be advantaged over the other. I strongly recommend nothing short of complete and honest disclosure.

Step Four -- Terms for Divorce. I assist you in drafting the terms of the divorce on child custody, child support, spousal support and the division of the community's assets as agreed upon by the parties. Division of assets should not be a major problem if both spouses are confident that full and honest disclosure has been provided. Child custody is frequently defined as the number of overnight stays with each parent. Child support is formula driven by the time of custody as a percentage between the parents and income of each parent.

Spousal support has two components; amount and length of time. Public policy is to achieve self-sufficiency in the lower earning spouse. For short-term marriages, the general rule is that the duration of spousal support is awarded for half the term of the marriage. Marriages over ten years are considered long-term and the California Courts are required to maintain jurisdiction over spousal support until the supported spouse remarries or one spouse dies.

Step Five -- Marital Settlement Agreement. I prepare your Marital Settlement Agreement. You and your spouse review and approve. It is may be helpful for your spouse to be represented by his or her own counsel. The Marital Settlement Agreement is a comprehensive document addressing all rights of the parties and identification of the rights that have been waived. The terms of dissolution of marriage are in this document.

Step Six -- Submission to Court. The Marital Settlement Agreement and supporting petition and stipulations are submitted to the court. A court hearing is not needed and neither party will be required to make a court appearance.

Step Seven -- Judgment is Ordered. The court issues judgment ordering that the marriage be dissolved. Backlog at the courthouse may result in a ten-week waiting period.



Child Custody Public Policy

In child custody for the average parent, the following guidelines may provide you insight into how child custody could be ordered by a court.

Public Policy is Frequent and Continuing Contact. Family Code 3020(b) "The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy."

Joint Physical Custody Family Code 3004. "Joint physical custody" means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents.

No Gender Preference Family Code 3040(a) "The court may not prefer a parent as custodial parent because of that parent's gender."

Child's Preference Family Code 3042. (a) "If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody. The court may preclude the calling of the child as a witness where the best interests of the child so dictate and may provide alternative means of obtaining information regarding the child's preferences."

Maturity Is Not Measured By Chronological Age. "The mediator gave her opinion that both children were very mature. The court had an opportunity to personally observe the children and judge their sincerity, bearing and degree of maturity, while questioning them in chambers. With children 10 and 13 years of age we believe it is peculiarly the function of the trial judge to determine what consideration is to be given, if any, to their expressed preference as to custody." Marriage of Rosson (1986) 178 CA3d 1094, 1103.


Child Custody Terminology

3002. "Joint custody" means joint physical custody and joint legal custody.

3003 . "Joint legal custody" means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.

3004. "Joint physical custody" means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents.

3006. "Sole legal custody" means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.

3007. "Sole physical custody" means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.


Child Support Under California Family Law

In implementing the statewide uniform guideline, the courts shall adhere to the following principles:

(a) A parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life.
(b) Both parents are mutually responsible for the support of their children.
(c) The guideline takes into account each parent's actual income and level of responsibility for the children.
(d) Each parent should pay for the support of the children according to his or her ability.
(e) The guideline seeks to place the interests of children as the state's top priority.
(f) Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children.
(g) Child support orders in cases in which both parents have high levels of responsibility for the children should reflect the increased costs of raising the children in two homes and should minimize significant disparities in the children's living standards in the two homes.
(h) The financial needs of the children should be met through private financial resources as much as possible.
(i) It is presumed that a parent having primary physical responsibility for the children contributes a significant portion of available resources for the support of the children.
(j) The guideline seeks to encourage fair and efficient settlements of conflicts between parents and seeks to minimize the need for litigation.
(k) The guideline is intended to be presumptively correct in all cases, and only under special circumstances should child support orders fall below the child support mandated by the guideline formula.
(l) Child support orders must ensure that children actually receive fair, timely, and sufficient support reflecting the state's high standard of living and high costs of raising children compared to other states.

Here is the statewide uniform guideline for determining child support orders.

CS = K (HN ‑ (H%) (TN)).

The components of the formula are as follows:

CS = child support amount.

K = amount of both parents' income to be allocated for child support as set forth below.
K (amount of both parents' income allocated for child support) equals one plus H% (if H% is less than or equal to 50 percent) or two minus H% (if H% is greater than 50 percent) times the following fraction:

_ _ Total Net Disposable
_ _ Income Per Month (K)
_ _ $0‑800 0.20 + TN/16,000
_ _ $801‑6,666 0.25
_ _ $6,667‑10,000 0.10 + 1,000/TN
_ _ Over $10,000 0.12 + 800/TN

For example, if H% equals 20 percent and the total monthly net disposable income of the parents is $1,000, K = (1 + 0.20) X 0.25, or 0.30. If H% equals 80 percent and the total monthly net disposable income of the parents is $1,000, K = (2 ‑ 0.80) X 0.25, or 0.30.

HN = high earner's net monthly disposable income.

H% = approximate percentage of time that the high earner has or will have primary physical responsibility for the children compared to the other parent. _ In cases in which parents have different time‑sharing arrangements for different children, H% equals the average of the approximate percentages of time the high earner parent spends with each child.

TN = total net monthly disposable income of both parties.

For more than one child, multiply CS by:
_ 2 children _ _ _ _ _ _ _ _ _ _ _ _ _ _ 1.6
_ 3 children _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2
_ 4 children _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2.3
_ 5 children _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2.5
_ 6 children _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2.625
_ 7 children _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2.75
_ 8 children _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2.813
_ 9 children _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2.844
_ 10 children _ _ _ _ _ _ _ _ _ _ _ _ _ _ 2.86


California has enacted the California Domestic Partner Rights and Responsibilities Act of 2003

California has enacted the California Domestic Partner Rights and Responsibilities Act of 2003 ("the Act"). The Act is intended to help California move closer to fulfilling the promises of inalienable rights, liberty, and equality contained in the California Constitution. The Act provides all caring and committed couples, regardless of their gender or sexual orientation, the opportunity to obtain essential rights, protections, and benefits and to assume corresponding responsibilities, obligations, and duties. This further the state's interests in promoting stable and lasting family relationships, and protecting Californians from the economic and social consequences of abandonment, separation, the death of loved ones, and other life crises.

The Act extends the rights and duties of marriage to persons registered as domestic partners on and after January 1, 2005. The Act provides that the superior courts shall have jurisdiction over all proceedings governing the dissolution of domestic partnerships. These proceedings will follow the same procedures as proceedings with respect to dissolutions of marriage. For example, assets acquired after January 1, 2005, from the earnings of either partner will belong to the domestic partnership. If a domestic partnership is dissolved, those assets will be divided between the two partners.

In addition to the rights and obligations of marriage, a surviving registered domestic partner, following the death of the other partner, has the same rights, protections, and benefits that have been granted upon a widow or a widower.

For domestic partners, the Act substantially imposes rights and obligations that they may not have contemplated when the partnership was formed. If you have any concerns or questions on the impact of the Act, please do not hesitate to contact Mark Bidwell at 949-474-0961.


Community Property Interest in Home Acquired Before Marriage

Conceptually, community property represents wealth derived from the time, energy, and talent of a either spouse during the marriage. Thus, wealth that can be traced to a gift, bequest, or devise is not community. Family Code section 770 states: A Separate property of a married person includes all of the following: (1) All property owned by the person before marriage . (2) All property acquired by the person after marriage by gift, bequest, devise, or descent.

Where one party owns a home before the marriage, but after the marriage, the loan payments are made with community funds, the Community property interest is calculated as the purchase price less the amount by which the community payments have reduced the principal of the loan, divided by the purchase price of the home and the community interest is calculated by dividing the amount by which community payments have reduced the loan principal by the purchase price. These percentages are then multiplied by the appreciation of the property during the marriage. In re Marriage of Marsden , 130 Cal. App. 3d 426.

Stated alternatively, a house acquired prior to a marriage with no reduction of principal during the marriage is the separate property of the spouse who purchased the house.


Form For Relative to Enroll Child in School

Caregiver's Authorization Affidavit

Use of this affidavit is authorized by Part 1.5 (commencing with Section 6550) of Division 11 of the California Family Code.

Instructions: Completion of items 1‑4 and the signing of the affidavit is sufficient to authorize enrollment of a minor in school and authorize school‑related medical care. Completion of items 5‑8 is additionally required to authorize any other medical care. Print clearly.

The minor named below lives in my home and I am 18 years of age or older.
1. Name of minor: ___________________________________________.
2. Minor's birth date: _________________________________________.
3. My name (adult giving authorization): _________________________.
4. My home address:
_________________________________________ _________________________________________ _________________________________________
5. ( ) I am a grandparent, aunt, uncle, or other qualified relative of the minor (see back of this form for a definition of "qualified relative").
6. Check one or both (for example, if one parent was advised and the other cannot be located):
( ) I have advised the parent(s) or other person(s) having legal custody of the minor of my intent to authorize medical care, and have received no objection.
( ) I am unable to contact the parent(s) or other person(s) having legal custody of the minor at this time, to notify them of my intended authorization.
7. My date of birth: ________________________________________.
8. My California's driver's license or identification card number: ____________________.

Warning: Do not sign this form if any of the statements above are incorrect, or you will be committing a crime punishable by a fine, imprisonment, or both.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Dated: _____________________ Signed: ________________________

Notices:

1. This declaration does not affect the rights of the minor's parents or legal guardian regarding the care, custody, and control of the minor, and does not mean that the caregiver has legal custody of the minor.

2. A person who relies on this affidavit has no obligation to make any further inquiry or investigation.

3. This affidavit is not valid for more than one year after the date on which it is executed.

Additional Information:

TO CAREGIVERS:

1. "Qualified relative," for purposes of item 5, means a spouse, parent, stepparent, brother, sister, stepbrother, stepsister, half‑brother, half‑sister, uncle, aunt, niece, nephew, first cousin, or any person denoted by the prefix "grand" or "great," or the spouse of any of the persons specified in this definition, even after the marriage has been terminated by death or dissolution.

2. The law may require you, if you are not a relative or a currently licensed foster parent, to obtain a foster home license in order to care for a minor. If you have any questions, please contact your local department of social services.

3. If the minor stops living with you, you are required to notify any school, health care provider, or health care service plan to which you have given this affidavit.

4. If you do not have the information requested in item 8 (California driver's license or I.D.), provide another form of identification such as your social security number or Medi‑Cal number.

TO SCHOOL OFFICIALS:

1. Section 48204 of the Education Code provides that this affidavit constitutes a sufficient basis for a determination of residency of the minor, without the requirement of a guardianship or other custody order, unless the school district determines from actual facts that the minor is not living with the caregiver.

2. The school district may require additional reasonable evidence that the caregiver lives at the address provided in item 4.

TO HEALTH CARE PROVIDERS AND HEALTH CARE SERVICE PLANS:

1. No person who acts in good faith reliance upon a caregiver's authorization affidavit to provide medical or dental care, without actual knowledge of facts contrary to those stated on the affidavit, is subject to criminal liability or to civil liability to any person, or is subject to professional disciplinary action, for such reliance if the applicable portions of the form are completed.

2. This affidavit does not confer dependency for health care coverage purposes.



 

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