We understand that divorce and other family law issues are highly emotional and stressful. At the Law Offices of Stephen E. Penner, our legal team is hard-working and result-oriented. We do what it takes to get desirable results. We understand that litigation and trial can be stressful and costly, so we approach each case in the direction of negotiation, mediation, and arbitration to help you achieve your goals while maintaining a level of control over the outcome of your case. We are dedicated to effectively and efficiently concluding your case to enable you to get on with your life.
Our extensive representation includes situations involving:
- Retirement accounts
- Investment property
- Real estate division
- Qualified Domestic Relations Orders (QDROs)
Property Division is one of the most complex processes when going through a divorce. In California, your property is classified as either community (assets and debts acquired during the marriage) or separate (assets or debts brought into the marriage, or acquired by inheritance or gift). Honest disclosure of assets by both parties helps to prevent a costly discovery process. Our offices provide expert evaluation of assets and debts and can assist in identifying and evaluating property for the division of community assets.
MARITAL SETTLEMENT AGREEMENT
A marital settlement agreement, also known as a property settlement agreement, is a written contract dividing your property, spelling out your rights, and settling problems such as alimony and custody. A marital settlement agreement is necessary after you have filed for divorce, even if you and your spouse are still living together.
When you initially execute a marital settlement agreement, you do not have to file the separation agreement with the court to be effective. When and if you begin the divorce proceedings, you should attach the marital settlement agreement to your divorce papers and ask the court to incorporate the agreement into the final judicial decree. If the marital separation agreement is incorporated into the decree, it becomes a court order and is enforceable by the court. If you don't incorporate the settlement agreement into your decree, it simply becomes a contract or agreement between you and your spouse.
Under California family code, two issues arise with regard to spousal support: the amount of spousal support and the duration of spousal support. The duration of spousal support is closely linked to the length of the marriage. Frequently, practitioners speak of the "rule of thumb" that spousal support will last for one-half the length of the marriage. The duration of spousal support is left to the sound discretion of the court within certain general equitable principles and guidelines most often set forth in the common law case histories. However, in marriages of less than ten years, the statute provides a presumption that support should be granted for half the length of the marriage.
The California legislature has enacted a statute, which indicates that when permanent support is established at the time of trial, it is an abuse of discretion for the court to set a future termination date if the marriage is of lengthy duration. The statute goes on to indicate that any marriage of ten years in duration is considered a lengthy marriage.
As a practical matter, in the late 1990s spousal support duration became linked to a transition period from married life to single life. The circumstances vary from person-to-person, but the courts tend to disfavor "lifetime support."
The court has broad discretion in ascertaining the amount of spousal support as well as its duration. Some California counties have adopted a guideline which suggests the appropriate range of spousal support on a temporary basis. Many counties do not allow the guideline to be the sole indicator of the amount of permanent spousal support. California State Law provides that spousal support is determined by a careful review of a number of factors. The controlling statute states as follows:
In ordering spousal support, the court shall consider all of the following circumstances:
The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
- The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
- The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
- The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
- The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living.
- The needs of each party based on the standard of living established during the marriage.
- The obligations and assets, including the separate property, of each party.
- The duration of the marriage.
- The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
- The age and health of the parties.
- Documented evidence of any history of domestic violence between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
- The immediate and specific tax consequences to each party.
- The balance of the hardships to each party.
- The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a "reasonable period of time" for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
- The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.
- Any other factors the court determines are just and equitable.
Not only for first time marriages but also for successive marriages, couples should give some consideration to what the institution of marriage bestows on each of them as spouses.
Most people have no doubt heard of premarital or "pre-nuptial" agreements; however, there are other agreements married couples can make during the marriage as well as when divorcing. Agreements between married couples in California are permitted subject to various laws. Generally speaking, couples can freely make agreements dealing with property, but they cannot make agreements altering their legal relations (Family Code §1620). Below are the two types of agreements that can be made both before and during the marriage.
- Prenuptial Agreements: If you or your spouse has property going into a marriage, (there are plenty of couples entering marriages with property and children from a prior marriage), you may want to consider a prenuptial agreement in order to preserve pre-existing property rights and/or interests for your children and other legal heirs. Examples of permitted subjects are property rights and rights incident to property (such as rents and appreciation), earnings during the marriage, and other assets including business ownership. One subject that is not allowed in the agreement is the right of a child to child support (you may not waive the payment of any future child support should the marriage end). However, as long as certain conditions are met, the subject of spousal support and maintenance can be included in the agreement.
- Marital Agreements: Once you are married, you and your spouse may enter into a marital agreement ("postnuptial agreement"). Couples can agree to affect their marital rights incident to their marriage, both during their lifetime and even after their death. The big difference between prenuptial agreements and marital agreements concerns the fiduciary or confidential relationship the spouses have to one another, created by the marriage (Family Code §§ 721(b), 1100(c)). Once married, both spouses become a fiduciary to the other. As such, imposed on each spouse is the duty of highest good faith and fair dealing with the other spouse, and neither spouse can take any unfair advantage of the other. Included in this fiduciary relationship is the requirement that both spouses provide the other with full disclosure of any and all information pertaining to issues contained in the agreement.