Have you been served with divorce paperwork? Are you considering divorce? What about a legal separation or a Marital Separation Agreement?

The terms below may or may not sound familiar to you. The Family Law attorneys at The Law Offices of Bowman and Associates have over 30 years experience in family law! If you are unsure of what these (or other) terms mean, give us a call. We are here to help, and we will ensure you receive the best information possible.

We will also assist you throughout your case! If you are looking for a family law attorney that cares about their clients, give us a call today at 916-985-2600!

Listed below are a few of the more common terms used in family law.

Adultery

Sexual intercourse between a married person and a third party.

Courts once used adultery, once the sole ground for divorce in some jurisdictions, to punish the guilty. Today courts are more interested in the economic impact of adultery, if any, on the marital estate. How much money was spent on the mistress? Think of judges as accountants who want full disclosure and financial accounting for improperly spent funds.

Agreement

Separation Agreement; Property Settlement Agreement; Marital Agreement A legally enforceable, spousal contract settling all matters. Generally not referred to as a 'divorce agreement' since only the court can grant a divorce. If the parties fail to reach an agreement, the case goes to trial, and the court's decision and judgment is substituted. Court's judgments are modifiable based on a material change in circumstances. An agreement may be either modifiable or unmodifiable. Typically, these agreements settle issues relating to:

1. Asset and liability division
2. Alimony, health, and life insurance
3. Legal and physical custody, child support, visitation, medical insurance and expenses, and college.

Arbitration

A legally binding, non-judicial procedure held before a neutral third party, the 'arbitrator,' who acts as private judge. Unlike mediation, neither party can unilaterally terminate the process, and both parties are bound by the arbitrator's decision, as if a judge acted in her official capacity. In some states, judges refer certain cases or aspects of cases for arbitration.

Ground(s) for Divorce

Each state's divorce statutes set forth certain improper or troublesome behavior that constitutes a 'legal reason' for the court to grant a divorce. The following list, based on Massachusetts law, is for illustrative purposes only. Each term has a legal definition which may differ from commonly used English. Your state may 1) not recognize all the grounds set forth, and 2) may include other grounds.

1. Adultery
2. Cruel and abusive treatment
3. Utter desertion
4. Long-term incarceration
5. Gross and confirmed habits of intoxication
6. Non-support
7. Impotency
8. Irretrievable breakdown of the marriage (no-fault)

Injunction; Injunctive Relief

A court order prohibiting certain activity, ie: Temporary Order; Temporary Restraining Order

Injunctions are generally 'negative,' i.e., they prohibit certain activities. Injunctions which require certain activity are called 'affirmative' injunctions. Outside divorce, most injunctions are 'negative.' It would be impossible to enforce certain affirmative orders, such as requiring an opera singer to sing. Affirmative injunctions are more common in divorce cases especially since they relate to minor children, often covering to visitation. Property-related injunctions are also common, usually restricting the sale or transfer of property, borrowing, and spending on non-necessities.

Joint Property

Property held in the name of both spouses. Except in Mississippi, for example, legal title is usually not relevant in dividing property. Basically, one spouse can't say, "honey, the property is in my name, so you don't get any."

Legal Separation

Separate Support; Separate Maintenance Available in some states, a legal separation is similar to a divorce, except no divorce judgment is granted that ends the marriage.

In response to a complaint for legal separation or separate support, the court may provide remedies relating to property (in some states) and support. Generally, a complaint for divorce or annulment is necessary before a court orders a final property division. Also called judicial separation.

The terms and definitions above are courtesy of DivorceRate.org. For a full list of terminology please go to: http://www.divorcerate.org/divorce-terms.html

Contact Roseville Divorce Attorney Kenric P. Torkelson to discuss your family law matter today!

Many dissolution of marriage proceedings involve the issue of spousal support (sometimes referred to as alimony). "Temporary" spousal support awards are typically rendered early on in the divorce process and only extend until the judgment of dissolution is entered. "Permanent" spousal support awards involve ongoing support, which extends beyond the time that the judgment of dissolution is entered. While the calculation of temporary support is formulaic, and is accomplished via the use of a spousal support calculator, the calculation of permanent support is anything but formulaic. In fact, the courts have wide-ranging discretion to determine: (1) whether either party is entitled to permanent spousal support; (2) the duration of spousal support; and (3) the appropriate amount of spousal support.

In exercising this broad discretion on the issue of spousal support, courts are obligated to balance several factors that are delineated in Family Code § 4320. If a court fails to give independent consideration to each and every one of these factors, this will be considered reversible error by an appellate court, and the order may be thrown out. A common issue that family law attorneys and judges must address is the proper weight to be given to each individual factor. While Family Code lists all the relevant factors, it does not prescribe how to balance them. To the contrary, attorneys and judges must decide which factors carry more or less weight based on the particular circumstances of the case. What is clear is that the courts begin with an analysis of the "marital standard of living", and weigh all the other 4320 factors against this finding. These other factors are listed below, in the order in which they appear in section 4320 of the California Family Code.

Continue reading "A Sacramento Family Law Attorney Talks Spousal Support" »

When a separation involves the issues of custody and visitation, any number of different custody and visitation arrangements may result. When the parents live relatively close to one another, and both desire significant parenting time with the children, a 50/50 arrangement may be appropriate. However the courts are charged with determining what visitation schedule is in the best interest of the children, and there are several different ways of implementing a 50/50 custody arrangement. So, which of the following typical arrangements is best for your children?

Week On/Week Off

One common arrangement is for the parents to alternate weeks of parenting time with the children. Under this schedule, Mother will have parenting time with the children for seven consecutive days, followed by seven consecutive days of parenting time for Father. This pattern of alternating weeks continues in ongoing fashion. A separate holiday schedule is usually incorporated into this arrangement to ensure that both parents have equal parenting time on important holidays.

While this is certainly the easiest 50/50 arrangement to envision and implement, there can be serious drawbacks. For example, under this arrangement both parents must be prepared to go an entire week without physical contact with their children. More importantly, this means that the children will have to go an entire week without physical contact with one parent. This is particularly problematic for very young children, particularly those that are not yet fully bonded with the parents. Very young children have very short memories, and spending seven straight days away from a parent can cause them emotional stress and anxiety when they are returned to a parent who they don't remember. Parents with very young children, therefore, will likely want to choose an alternate parenting arrangement.

5-2-2-5 Schedule

This is another popular arrangement frequently utilized by courts, family law attorneys, and separating parents. Under this plan, the children are in the custody of one parent (parent A) every Monday and Tuesday, and with the other parent (parent B) every Wednesday and Thursday. The parents then alternate weekends with the children from Friday through Sunday. Under this arrangement, the children are with parent A for 5 days in the first week and 2 days in the second week. Conversely, the children are with parent B for 2 days in the first week and 5 days in the second week. This arrangement has the benefits of the week on/week off plan in that it is a consistent and easy to remember schedule. It also avoids the problem of the week on/week off arrangement in that the children only go five days without contact with either parent, as opposed to a full week. Additionally, each parent enjoys spending some time with the children each week, so that they are more continuously in touch with the important events in the lives of their children. This is particularly beneficial when the parents do not communicate as frequently or efficiently as they ought to. However, as with the week on/week off schedule, this may not be appropriate for very young children.

3-4-4-3 Schedule

Under this schedule, the children are in the custody of parent A on Wednesday through Saturday in the first week and from Wednesday through Saturday of the next week. Conversely, the children are in the custody of parent B from Saturday through Tuesday of the first week and from Sunday through Tuesday of the second week. This arrangement allows the children to go even less time (4 days maximum) between visits with either parent, and as such, may be the ideal 50/50 arrangement for parents of young children. (Although with very young children it is advisable for each parent to have at least some visitation on a near daily basis.) One of the downsides is that individual weekends are frequently divided between the parents. This can become an inconvenience when one parent desires to take the children on overnight trips over such a weekend.

These are three of the most common visitation arrangements that are used to ensure that children spend equal amounts of time with each parent. Parents with inconsistent work schedules may not be able to implement such a plan. Accordingly, sometimes it is appropriate to make modifications to either of these schedules, or for the parents to adopt their own, individualized schedule. However even for these parents, these three schedules provide a good starting off point for adopting an arrangement that ensures children have equal access to each parent.

Continue reading "What 50/50 Custody Arrangement is Appropriate for You?" »

The foregoing is based on general principles of California family law, and should not be construed as legal advice. For specific legal advice, contact a family law attorney.

Most family law attorneys would agree that the most emotionally involved and heavily contested component of family law involves battles over child custody and visitation. Client confusion over the practical and legal distinctions among the various custody arrangements typically serves to further complicate these matters. This highlights the importance of rendering an understanding of the relevant legal terminology applicable to custody arrangements. The starting off point is the distinction between the two forms of custody: Legal and Physical.

Legal vs. Physical Custody

I can't count how many times a client has entered my office and flatly stated that they want "sole custody" of their child(ren). Clients typically, however, do not distinguish between legal and physical custody. Usually such a comment reflects the potential client's desire to have the child live primarily, or exclusively, with them. (A physical custody arrangement) This is when the client must learn about legal custody, the other component of custody arrangements.

Legal Custody

Legal custody arrangements govern the parents' respective rights to be involved in important decisions regarding the upbringing of their children. The most common of these "important" decisions involve those related to the medical, dental, and educational needs of the child.

A knee-jerk reaction of a parent who desires "sole custody" is to request sole legal custody in addition to sole primary custody. This makes sense. After all, if the other parent cannot be trusted to spend significant time with the child, then he or she probably cannot be trusted to make important decisions on the child's behalf either, right? At this point, parents need to understand that courts do not tend to strip a parent of legal custody, unless there is some compelling reason to do so. In other words, sole legal custody does not necessarily flow from sole (or primary) physical custody.

Parents also should understand that a joint legal custody arrangement (as opposed to sole legal custody) will not have a meaningful impact on their day to day decision-making vis-à-vis their child. A joint legal custody arrangement does not mean that one parent will have to receive the permission of the other parent before taking a child into the emergency room or to a routine medical examination. Neither does it entail that a custodial parent must inform the other parent of every occurrence with respect to the child's schooling. Each parent typically bears the independent duty to keep abreast of the child's school schedule as well as the child's academic performance and progression. The idea is that parent's are obligated to consult with one another only with respect to major decisions.

Physical Custody

There are a number of ways to describe the various physical custody arrangements. As an initial matter, as they do with legal custody, the courts distinguish between sole and joint physical custody. And as they do with legal custody, the courts typically prefer to grant joint physical custody, absent some set of circumstances that would justify awarding sole physical custody to one parent. Contrary to the belief of most clients, when the court does award one parent sole physical custody, this does not mean that the other parent is denied parenting time with the child. Public policy of the State of California dictates that it is in the best interest of children to have frequent and continuing contact with both parents, regardless of the sole vs. joint physical custody arrangement. In other words, the courts distinguish between custody and visitation.

When the court awards the parents joint physical custody, the next step is to determine the respective parenting time of each parent. The court can order a true joint physical custody arrangement in which each child spends approximately half of their time in the physical custody of each parent. Alternatively, the court can award "primary" physical custody to one parent and "secondary" physical custody to the other. The parent with "primary" physical custody (referred to as the custodial parent) is awarded the majority of parenting time, while the other parent (referred to as the non-custodial parent) is awarded less significant, but consistent parenting time.

Common Misconceptions

As stated above, the most common misconception is that an award of sole physical custody will effectively terminate the other parent's right to visit with his or her child. A related misconception is that an award of primary physical custody has the same effect as an award of sole physical custody. While the immediate, practical consequences of these differing orders may seem the same, there are significant differences in the legal impact of these awards.

In particular, when sole physical custody is awarded to one parent, the burden of altering this arrangement to one more favorable to the parent without physical custody is usually much greater. This is even more likely when the order issued is a permanent custody order. What's more, a parent with sole physical custody has the presumptive right to relocate with the child, which can play a very significant role in so called "move-away" cases.

Recent Judicial Decisions

The fourth district of California recently touched on the importance of the characterization of the custody order in the unpublished case, Irmo Witzman. In this case, the parents went to trial on the issues of custody and visitation. The parties were awarded joint legal custody with "primary physical custody" to the wife. Three years later, Husband filed a motion requesting sole physical custody to him, with visitation to the wife. The court ultimately maintained the joint legal custody order but modified the parenting plan to a 50/50 arrangement. Wife appealed.

On appeal, Wife argued that the trial court altered the physical custody judgment, and could only do so after Husband made a showing of "substantial change of circumstances." (Which would be an accurate argument under current case law) The court, however, determined that the "substantial change of circumstances" standard did not apply in the current case because the trial court's award of "primary physical custody" to Wife was not an award of sole physical custody. The court of appeals determined that such an award could only be construed as an award of joint physical custody. As such, the shift to a 50/50 parenting plan was not a change in custody, but a mere restructuring of the parenting arrangement.

Conclusion

The myriad of potential custody and visitation arrangements can be overwhelming to the uninitiated. Without a proper understanding of the practical and legal consequences of each potential arrangement, it is difficult, if not impossible, for a parent to intelligently assess what arrangement is in their best interest. It is equally difficult for such parents to fully comprehend what rights and responsibilities they have vis-à-vis their child after a custody order is rendered. This highlights the necessity for parents who are in need of a custody order to seek advice from a family law attorney. It also highlights the importance for attorneys to provide their clients with a clear understanding of these issues before acting on their behalf.

Continue reading "Demystifying Child Custody Terminology and Arrangements" »