Confused about Divorce Options?

Are you or your spouse thinking about divorce, but have no idea how to go about it? Here are some divorce options.

1. Mediation

You and your spouse can work with a mediator to help you reach an agreement on any issues in the case (i.e. child custody, child support, spousal support, property division etc.). A mediator can also prepare all the paperwork that needs to be filed with the court to complete the divorce process. Rachel is a qualified mediator and works as a neutral intermediary to facilitate an agreement between the two parties involved. Customarily, and presuming that both parties provide financial information in a timely manner, a case can be resolved in two or three sessions that last approximately two hours each. Mediation can result in a substantial cost savings to the parties. Mediation is also beneficial because, instead of letting the court decide things like how to divide your property or how much time you should spend with your children, you and your spouse can decide. If you would like to set up a consultation regarding mediation, please contact us.

What if the other spouse/parent will not agree to mediation?

Both parties must agree to mediate for mediation to take place. Often, one spouse/parent may not have come to terms with the end of the relationship and it is difficult to convince them to start the mediation process. See the section below “What if the other spouse/parent will not accept that you want to breakup?” for further strategies for getting the case into mediation.

2. Litigation

Litigation is a term that is used broadly in family law to describe cases in which immediate orders are necessary because the parties cannot reach an agreement. This would include circumstances where one spouse is the financial support for the family and is not providing support to the other spouse or the children, domestic violence situations, cases in which the children are at risk with a parent because of drug or alcohol abuse, or where one of the party’s is misusing community property. Whether you are the spouse/parent who receives the court filing or spouse/parent who needs to file a request for order with the court, Rachel will assist you in addressing your immediate concerns and assessing the best possible strategy for resolution of the issues.

What if the other spouse/parent will not accept that you want to breakup?

Hiring an attorney to start the divorce or parentage process can also be helpful in a case where one of the spouse’s or one of the parents in non-marital parentage action has not come to terms with the fact that the relationship is over. In these situations, it may be difficult to get the other party into mediation or to even have a discussion with the other party about how to resolve property, support and child custody issues. In such a case, it can be helpful to file a Petition for Dissolution of Marriage or a Parentage action to move the case forward. Rachel tries to approach these cases in the least contentious manner possible by filing the paperwork with the court and providing options to the other party for resolution through mediation. This will usually prompt the other spouse/parent to retain an attorney which often facilitates resolution of the issues.

If I hire Rachel as my attorney, does that mean we have to go to court or litigate?

If you hire Rachel as your attorney, you do not necessarily need to go to court/litigate unless you are unable to reach an agreement either through mediation or other settlement strategy. Rachel makes every effort to resolve cases short of filing requests for order with the court. To that end, she works with opposing counsel to try and resolve as many issues as possible. Rachel also represents clients who are working with mediators. In this capacity, Rachel acts as an advisor to the client so they are informed of their rights and understand whether a settlement agreement is a reasonable resolution in their case.

Categories: Divorce, Mediation

About the Author

Rachel Castrejon opened her own law practice immediately after graduating from Loyola Law School and passing the California Bar exam in 1998. When she first opened her practice, she handled a variety of cases including wrongful termination, criminal appeals and family law matters. Ultimately, she chose to practice exclusively in the area of Family Law because she likes helping her clients through a very emotional process. Rachel’s goal is to help her clients through one of the most difficult times in their lives – the breakup of their family. Rachel understands the importance of achieving a resolution that is good for the entire family, particularly the children involved.

Learn more about Rachel

Disclaimer: The information and examples provided herein are based on the laws and regulations at the time of writing. Prior to deciding how to hold title in your property, you should consult with an accountant, probate attorney or family law attorney to determine the best way to hold your property for the purpose you want to accomplish.

The Primary Factors in Child Support

How is Child Support Calculated?

In California, there is a mandatory statutory guideline formula for calculating support. (Family Code section 4050 et seq.) The following is a list of the primary factors that the court will use in determining child support. There are other factors that can influence child support and it is best to consult with an attorney regarding the specific circumstances of your case to get accurate information about what child support would be in your case.

Timeshare with the Children

The guideline formula takes into consideration the amount of time each parent spends with the child(ren). The time share component represents the approximate percentage of time that the high earner has or will have primary physical responsibility for the child compared to the other parent. (Family Code section 4055(b)(1)(D).) The difference between physical responsibility and physical custody is an important statutory distinction. The court will base timeshare on the amount of time that you are responsible for your child(ren) regardless of whether the child is actually with you. For instance, if the child(ren) is in school, but it is your responsibility to pick-up the child in the event of an emergency, the child is your responsibility and the school hours will be included in your timeshare.

Income of Each Party

Family Code section 4058 defines income available for support. Mandatory income that the court must consider in issuing an order for child support includes income from whatever source it is derived, including, but not limited to the following:

  • Salaries and wages
  • Bonuses and commissions
  • Business and Self Employment income
  • Royalties
  • Rents
  • Dividends and interest.
  • Pensions and annuities.
  • Workers compensation benefits.
  • Unemployment insurance benefits
  • Disability insurance benefits
  • Social security benefits
  • Military allowances, including housing and food allowances
  • Spousal support received from a person who is not a party to the child support proceeding
  • Trust income

What if One Parent Doesn’t Have Income?

If one of the parent’s is unemployed or underemployed (i.e. not earning commensurate with his or her earning capacity), the court may impute income to that parent for purposes of calculating child support. (Family Code section 4058(b).) In order to impute income to a parent, the court must find that the parent has both the ability and opportunity to earn income.

Exceptions to the Application of the Guideline Formula

Courts are required to adhere to the guideline formula and may depart from it only in the special circumstances specified in the guideline. (Family Code § 4052) The presumption that the guideline formula amount, is the correct amount of child support may only be rebutted by admissible evidence showing that the application of the formula would be unjust or inappropriate in the particular case, consistent with the principles set forth in Family Code section 4053 based on one of the factors set forth in Family Code section 4057.

  • The parties stipulate to a different amount of support
  • The sale of the family home has been deferred
  • The payor of child support has extraordinarily high income such that an order under the formula would exceed the child’s reasonable needs
  • A parent is not contributing to the child’s needs commensurate with that parent’s timeshare
  • Application of the formula would be unjust because of special circumstances in the case such as
    • When the parents have different timesharing arrangements for different children
    • The parents have substantially equal timeshare of the children and one parent has a much higher or lower percentage of income used for housing than the other parent
    • The children have special medical or other needs that would require greater support than the formula amount

Categories: Child Support, Divorce

About the Author

Rachel Castrejon opened her own law practice immediately after graduating from Loyola Law School and passing the California Bar exam in 1998. When she first opened her practice, she handled a variety of cases including wrongful termination, criminal appeals and family law matters. Ultimately, she chose to practice exclusively in the area of Family Law because she likes helping her clients through a very emotional process. Rachel’s goal is to help her clients through one of the most difficult times in their lives – the breakup of their family. Rachel understands the importance of achieving a resolution that is good for the entire family, particularly the children involved.

Learn more about Rachel

Disclaimer: The information and examples provided herein are based on the laws and regulations at the time of writing. Prior to deciding how to hold title in your property, you should consult with an accountant, probate attorney or family law attorney to determine the best way to hold your property for the purpose you want to accomplish.

Is My Adult Disabled Child Entitled to Receive Support?

In California, a parent has a right to receive child support for an adult disabled child. Family Code section 3910 provides: “The father and mother have an equal responsibility to maintain, to the extent of their ability, a child of whatever age who is incapacitated from earning a living and without sufficient means.

Specific cases have defined what it means to be “incapacitated from earning a living” and “without sufficient means.” Incapacitated from earning a living means “an inability to be self-supporting because of a mental or physical disability or proof of inability to find work because of factors beyond the child’s control.” (See Marriage of Drake, (2015) 241 Cal.App.4th 934, 940 (citing Jones v. Jones (1986) 179 Cal.App.3d 1011, 1014–1015, 225 Cal.Rptr. 95.) The determination as to whether the child is without sufficient means is resolved by determining the likelihood that the child will become a public charge. (Drake, 241 Cal.App.4th at p. 940.)

How is Adult Child Support Calculated?

Adult child support is determined by the statutory guidelines set forth in Family Code section 4050 et. seq. The primary factors that influence the amount of child support that a parent will have to pay are the amount of time each parent spends with the child(ren) and the income of both parties. There are other factors, such as tax exemptions and deductions, retirement contributions, unearned income and earning capacity, that affect the child support amount. There’s more information in the post The Primary Factors in Child Support.

What if my Adult Disabled Child Doesn’t Live with either Parent?

The obligation to support an adult disabled child runs to the child, not to either parent. If the child has a conservator, legal guardian or other legal representative, the payments could be made to that person on behalf and as a fiduciary to the child. If the child lives with one of the parents, it is unclear whether the support can be paid directly to the parent or if it must be paid to the child. (See Drake, supra, 241 Cal.App.4th at 942, stating “When the adult child is disabled and lives with a parent who bears the primary financial responsibility for the child’s care, payment of adult child support to the parent makes sense.”) If the child does not live with either parent and does not have a guardian or other legal representative, the support could be paid into a trust account on behalf of the child.

Categories: Child Support

About the Author

Rachel Castrejon opened her own law practice immediately after graduating from Loyola Law School and passing the California Bar exam in 1998. When she first opened her practice, she handled a variety of cases including wrongful termination, criminal appeals and family law matters. Ultimately, she chose to practice exclusively in the area of Family Law because she likes helping her clients through a very emotional process. Rachel’s goal is to help her clients through one of the most difficult times in their lives – the breakup of their family. Rachel understands the importance of achieving a resolution that is good for the entire family, particularly the children involved.

Learn more about Rachel

Disclaimer: The information and examples provided herein are based on the laws and regulations at the time of writing. Prior to deciding how to hold title in your property, you should consult with an accountant, probate attorney or family law attorney to determine the best way to hold your property for the purpose you want to accomplish.

Community Property with Right of Survivorship – Avoid Tax and Probate Fees

There are several ways to hold title jointly, such as tenancy in common, joint tenancy, community property or community property with right of survivorship.  There are advantages and disadvantages to each.

Community Property with Right of Survivorship

Holding title as community property with right of survivorship combines the benefits of joint tenancy and community property by allowing the transfer of the property to the surviving spouse without having to go through probate, the surviving spouse gets the total step-up in basis on the entire value of the property and neither spouse can transfer his or her interest to a third party. Married couples can title any asset, not just real property, as community property with rights of survivorship.

Community Property

For married couples, property can be held as “community property” or “community property with right of survivorship.” There is a significant distinction between “community property” and “community property with right of survivorship.” When spouses hold property as community property, in the event of one spouse’s death, the surviving spouse gets a step-up in basis on the entire property as opposed to only the decedent’s share of the property. However, the surviving spouse must go through the cumbersome probate process and either spouse can dispose of his or her interest to another individual at time of death. This means that the tax basis on the property is assessed at the date of the deceased spouse’s death.
For Example: Susan and Bill purchased a house for $500,000 in 2000 and hold title as community property. At the time that Bill passes away the house is worth $1 million.   Susan would have a tax basis of $1,000,000. If the house appreciates between the time of Bill’s death and when Susan sells the house, Susan will have a capital gain liability. For example, if Susan sells the house for $1,250,000 she will have a gain of $250,000. If she can claim the $250,000 exclusion of gain on the sale of a personal residence, she will not owe any tax ($250,000 gain – $250,000 exclusion = $0). If the property was not a personal residence, Susan would have to pay tax on the entire $250,000.

Tenants in Common

Holding property as “tenants in common” allows each spouse to own an undivided portion of the property.  Either spouse can sell, lease or will away his or her ownership percentage at any time.  The individual spouse’s interest is part of the individual’s estate and subject to probate or disposition under that individuals testamentary instrument (i.e. will or trust.) The heir of the individual’s estate will receive a step-up in basis on their inheritance. The step-up in basis means that the heirs’ tax basis in the inherited portion of the property will be the estimated fair market value at the deceased individual’s date of death, instead of the amount the deceased individual paid for the property., probate costs can be extremely costly and time consuming for your heirs.  Holding property as “tenants in common” is most common when two or more individuals who are not married to each other own property together.

In the even that you are married and want to hold property as tenants in common, you should discuss the ramifications with your spouse so there is a mutual understanding of the fact that either spouse’s interest can be encumbered or disposed of to a third party. It would be most helpful to have a written instrument that both spouses sign acknowledging their intent in holding the property as tenants in common.

Joint Tenancy

If spouses hold property as joint tenants, the surviving spouse automatically inherits the deceased spouse’s interest. Thus, the surviving spouse avoids the expensive and time consuming probate process and neither of the spouse’s can encumber or give away his or her interest during his or her lifetime or on his or her death.

However, a big disadvantage to holding property in joint tenancy is that the surviving spouse only receives a step-up in basis on the inherited portion.

A simple illustration of the disadvantage: Susan and Bill purchased a house for $500,000 in 2000 and hold title as joint tenants with equal interests. At the time Bill passes away the house is worth $1 million.   Susan would have a tax basis of $750,000 ($500,000/2 + $1,000,000/2.) If the house appreciates between the time of Bill’s death and when Susan sells the house, Susan will have a capital gain liability. For example, if Susan sells the house for $1,250,000 she will have a gain of $500,000. If she can claim the $250,000 exclusion of gain on the sale of a personal residence, she will have to pay tax on $250,000. If the property was not a personal residence, Susan would have to pay tax on the entire $500,000.

If you are holding property as a joint tenant, you may want to reconsider titling the property into another form so as to provide the most protection for person who inherits the property.

Categories: Property Division

About the Author

Rachel Castrejon opened her own law practice immediately after graduating from Loyola Law School and passing the California Bar exam in 1998. When she first opened her practice, she handled a variety of cases including wrongful termination, criminal appeals and family law matters. Ultimately, she chose to practice exclusively in the area of Family Law because she likes helping her clients through a very emotional process. Rachel’s goal is to help her clients through one of the most difficult times in their lives – the breakup of their family. Rachel understands the importance of achieving a resolution that is good for the entire family, particularly the children involved.

Learn more about Rachel

Disclaimer: The information and examples provided herein are based on the laws and regulations at the time of writing. Prior to deciding how to hold title in your property, you should consult with an accountant, probate attorney or family law attorney to determine the best way to hold your property for the purpose you want to accomplish.