Wednesday, April 30, 2014

Child Custody: What is a 730 Evaluation?

Sometimes in divorces involving child custody, the two parents are unable to agree what is in the best interests of their children.  In such cases, the divorce attorneys may recommend that the court order an evaluation to be performed by a specialist, usually a psychologist or marriage and family therapist, but sometimes a psychiatrist, from a list of professionals who have completed specific additional training and been approved by the court.  That expert is the court’s expert, not on the side of either party.
Because this power to make such an order comes from Section 730 of the California Evidence Code this is commonly called a 730 evaluation.
730 evaluations are not always necessary and they are generally expensive and take a relatively long time to complete, so they are generally used only when parents are failing to pro-actively resolve their conflicts and that comes out in parenting issues.
Because of their expense and, sometimes, the randomness of outcome, most people are better off dealing with their issues together rather than rolling the dice on a 730 evaluation. Still, there are times when it can lead to a lessening of conflict and it may be inevitable in move away situations. 


Forensic evaluations can be used in a number of other settings as well, including valuing businesses or real estate. It is extremely common in “move away cases” and a persuasive argument can be made that to allow a parent to relocate with minor children in the absence of such a report (if it is requested) violates the due process rights of the non-moving parent [In re Marriage of McGinnis (1992) 7 Cal.App.4th 473, 9 Cal.Rptr. 2d 182]. 


Generally the court appoints an evaluator that has worked with the court before from the court’s approved list of experts and generally because one or both divorce attorneys have requested the 730 evaluation and have worked with the expert in the past.  Often the parties' divorce lawyers will agree upon an evaluator. 


Reliable evaluators are not hired guns for either side. However, like everyone else they can have their own biases. To the extent that you can, it is always a good idea to get as much information as possible about a potential evaluator before a selection is made.
It can be very difficult for a judge to determine the truth of claims between the parties in family law, what their underlying motives are, whether there is some mental health or substance abuse undercurrent, and whether one parent is more likely than the other to foster an ongoing relationship between the other parent and their children. Courts don't have the time or resources to invest in each of their cases and rely on witness declarations or live testimony. Therapists and psychologists are able to spend time interviewing parents and sometimes have them complete psychological testing, they meet children, talk to teachers, visit homes, check with therapists who are seeing family members, and also interview significant others, new spouses, and other children in blended families. A much more reliable picture may emerge than that which comes from the parties' own descriptions of things. 

These custody evaluations can be quite expensive, typically starting at about $3,500. They seem to average between $4,000 and $6,000, but the costs skyrocket with the number of people other than the parents themselves (often called 'collaterals') whose input is required. 

It typically takes at least three months for an expert psychologist or MFT to complete all the necessary interviews and write a detailed report. In my experience the time frame is closer to four months. This report is then submitted to the attorneys and to the Court.
Most courts require this report to be submitted at least 10 days prior to a hearing, so that both sides have ample time to review it. If you are involved in a custody dispute and you or your divorce attorney receives the report late, if you disagree with its recommendations you may want to object that you have not had sufficient time if you want a continuance; otherwise, the Court may adopt the recommendations at that hearing.
In almost all cases where a 730 report has been completed, either side may request that an evidentiary hearing take place with live testimony and the ability to examine and cross-examine witnesses - including the custody evaluator whose recommendations are being considered. Depending upon the urgency of the family's issues and the Court's availability, these hearings may not be set for weeks or months.
In addition, if you feel that the evaluator failed to adequately investigate the case, or did not meet the standards of practice for such evaluations, you may want to consider hiring your own expert under Evidence Code Section 733.  However, the 733 expert is limited to reviewing the 730 report and underlying data and may not re-interview children and witnesses. This can be an expensive way to challenge findings that you do not agree with and the limitations on the 733 evaluators limit their usefulness.

Finally, while the judge in your case must make his or her own decision and support it with evidence, the recommendations of the 730 evaluator are most often adopted by the court.  

Here is a resource from a licensed therapist on how to handle a 730 evaluation



By: Robert R. Beauchamp www.ocdlaw.com
Law Office of Robert R Beauchamp
bob@ocdlaw.com
23120 Alicia Pkwy
Second Floor
Mission Viejo, CA 92692
Tel:  949-370-8000
Fax: 855-370-8100



Friday, April 25, 2014

How Much Spousal Support (Alimony) Will I Receive Or Be Required to Pay

Spousal Support In California

A primary job of divorce attorneys is to determine how to deal with spousal support.
In California, and other community property states, spousal support (sometimes called alimony) is founded on the idea that a married couple builds a lifestyle together from community funds.  When there is a divorce, the court may require higher earner (husband or wife) should assist the lower earner in maintaining their existing lifestyle for at least some period of time. California judges may award temporary support during divorce proceedings, as well as "permanent" support after a divorce is final. In both temporary and permanent support orders, one spousal is generally ordered to pay the other spouse a specific amount, generally monthly, for a specified time or until a later order. 

Sometimes, spousal support can be paid in a single lump-sum payment. And, spouses can agree between themselves on the terms and conditions of support payments. A court will uphold an agreement as long as it meets legal requirements, even if the agreement provides for a complete waiver of support to a lower-earning spouse.

How Long Does Spousal Support Continue?

The duration of spousal support in California is often tied to the length of the marriage. After a marriage of less than 10 years, a court will not usually order support for longer than half the length of the marriage. If a marriage has lasted 10 years or longer, the court generally won’t set a definite termination date for support at the time of the divorce; both spouses retain the right to request modification indefinitely, unless they specifically agree to a termination date, or the court expressly terminates support at a later hearing.

While courts and divorce attorneys often refer to post-divorce spousal support as "permanent," it is increasingly rare for a judge to order true permanent support, even after marriages of well over 10 years. California courts require a spouse seeking support to make efforts to become self-supporting, regardless of the length of a marriage. A spouse who claims an inability to work, or an inability to become fully employed, will have to support this claim with evidence, sometimes including a vocational evaluation. Long term support orders may reduce support gradually over time down to a nominal amount—such as $1.00 per year. True permanent spousal support is generally reserved for spouses who lack the ability to become self-supporting due to age or disability.

How Is The Amount Of Spousal Support Determined?

In California, the purpose of temporary spousal support is to preserve the financial status quo to the greatest extent possible. Generally speaking, it is obvious to even the casual observer that this goal is impossible because it costs more to maintain two households than maintaining one household. As a result, the courts look to “equalize” the “net spendable” amount available to each party. A court may order temporary spousal support in any amount after considering the needs of the spouse requesting it and the other spouse’s ability to pay. In practice, however, courts commonly use formulas for calculating temporary support.  The formula used by divorce attorneys in Orange County, California, is the the Santa Clara Formula, in which the court determines spousal support by subtracting 50% of the lower-earner’s net income from 40% of the higher earner’s, with adjustments for tax consequences and child support payments. Parents of dependent children can obtain a rough estimate of what temporary spousal support payments might look like along with child support payments—which follow very strict guidelines—by accessing the support calculator (click on the link) at the California Department of Child Support.

The purpose of support after a final divorce is to assist a supported spouse in maintaining a standard of living close to the marital standard.   Again, this is impossible because two households are more expensive to maintain than one.  

The goal, however, is for the supported spouse to become self-supporting to the greatest extent possible. Before ordering this kind of support, a court will consider the extent to which each spouse’s earning capacity is sufficient to maintain the marital standard of living, taking into account:
  • the marketable skills of the supported spouse,
  • the job market for those skills,
  • any time or expense the supported spouse requires to acquire education or training for employment or enhanced employability, and
  • the extent to which periods of unemployment due to domestic duties during the marriage have impaired the supported spouse's present or future earning capacity.
The court will also consider any other factors that may be relevant to the fairness of an award, including:
  • the extent to which the supported spouse contributed to the other spouse’s attainment of education, training, professional licensing or career advancement,
  • the ability of the supporting spouse to pay support, taking into account earning capacity, earned and unearned income, assets, and standard of living,
  • the needs of each party based on the marital standard of living,
  • each spouse’s obligations and assets, including separate property,
  • the duration of the marriage,
  • the ability of a spouse who is also a custodial parent to engage in gainful employment without unduly interfering with the interests of dependent children,
  • each spouse’s age and health,
  • any documented history of domestic violence by either spouse,
  • the immediate and specific tax consequences to each spouse,
  • the balance of the hardships to each spouse, and
  • the goal that the supported spouse will be self-supporting within a reasonable period of time—presumed to be one-half the length of a marriage unless the marriage was longer than 10 years.
California courts don’t ordinarily consider conduct in determining support, but a court won’t usually award support to a spouse who has acted extremely violently toward the other spouse.

Modification Or Termination Of Spousal Support

Unless the couple has a written agreement not to seek changes in spousal support in court, either spouse can request modification or termination of periodic payments due to a material change in circumstances. Absent a written agreement stating otherwise, spousal support terminates on the death of either spouse, or on the remarriage of the recipient. There is a rebuttable presumption that a party who is cohabiting with a new partner has a reduced need for support.

Tax Effects Of Spousal Support

Periodic spousal support payments are usually taxable to the recipient and tax-deductible by the payer. Couples who are able to craft their own settlement agreements can sometimes take advantage of this situation by structuring payments to create the best possible tax scenario for both spouses. If structured properly, there will generally be no tax consequences of a single lump-sum support payment.

By: Robert R. Beauchamp www.ocdlaw.com
Law Office of Robert R Beauchamp
bob@ocdlaw.com
23120 Alicia Pkwy
Second Floor
Mission Viejo, CA 92692
Tel:  949-370-8000
Fax: 855-370-8100



Wednesday, April 23, 2014

Student Loans in Divorce (from the Wall Street Journal)

An excellent article in the Wall Street Journal on the allocation of student debt in divorce that every divorce lawyer should read.

Summary of student debt in divorce cases:

Generally, educational debt incurred before a marriage is considered separate property and barring some predetermined contractual agreement, it stays that way after a divorce. "My law-school-loan debt is forever mine.” "No spouse will ever be liable" for it.

Debt division can get a little trickier when the student loans are taken out during the marriage. The person responsible for paying the loans isn't necessarily the person whose name is on them. Indeed, how educational debt is divided may depend on where you live and who benefited from the borrowed money.

In many states, divorce courts have the discretion to divide marital property in a holistic way. That means that if the educational debt is considered marital property, they have the option of taking into account contextual issues, such as each spouse's ability to pay it off.

So while student loans generally will go to the person who incurred them, there may be exceptions.

For example, if it seems like one spouse will have high income after a divorce and another will struggle to make debt payments, the higher earner may end up having to fork over some temporary spousal support to cover the ex's debt payments.


The entire article is here.




By: Robert R. Beauchamp www.ocdlaw.com
Law Office of Robert R Beauchamp
bob@ocdlaw.com
23120 Alicia Pkwy
Second Floor
Mission Viejo, CA 92692
Tel:  949-370-8000
Fax: 855-370-8100
www.missionviejodivorceattorneys.com


#divorcelawyer #divorceattorney #divorce #familylaw

Tuesday, April 22, 2014

How is child support calculated?

California courts (and divorce lawyers advising you) look at two basic factors (though others may come into play) to calculate child support:

1. Each parent's gross income; and

2. The time spent by each parent with the child/children (you will sometime hear this called the "J" Factor).

There are other factors that can impact child support including child care expenses, home mortgage payments, tax filing status, and other costs that determine the family's financial situation.

All California judges and courts follow the same guidelines (though there are differences among counties in calculating spousal support). 

The formula is shockingly complicated and divorce lawyers and courts utilize a computer program called a DissomasterTM to calculate monthly child support payments. 

You and your spouse are responsible for providing the information to your divorce lawyer the information used to calculate support.  You will provide this information to your divorce lawyer on a form called and Income and Expense Declaration (you'll often hear this referred to as an "I & E."  Your family law attorney will negotiate certain items with your spouse's counsel to ensure the proper child and/or spousal support is paid/received each month.

Child support continues until the child is 18 (or 19 if the child is still in high school full-time and living with a parent). 

If you feel your child support amounts should be re-calculated, The Law Office of Robert R. Beauchamp can help.  Give us a call at 949-370-8000.

If you are looking to get an idea of what your child support might be, the State of California has an online calculator useful in getting an estimate of the support in your particular case.  Here is a link to the State's Calculator.


By: Robert R. Beauchamp www.ocdlaw.com
Law Office of Robert R Beauchamp
bob@ocdlaw.com
23120 Alicia Pkwy
Second Floor
Mission Viejo, CA 92692
Tel:  949-370-8000
Fax: 855-370-8100
www.southorangecountydivorcelawyers.com
#divorcelawyer #divorceattorney #divorce #familylaw

Monday, April 21, 2014

For Richer, For Poorer-Changes in Views on Spousal Support (Alimony)

Below is an in depth and fascinating article from the Wall Street Journal on huge changes in views on long-term spousal support, something that all divorce lawyers should read.

http://online.wsj.com/news/articles/SB10001424052748703399204574505700448957522

By: Robert R. Beauchamp www.ocdlaw.com
Law Office of Robert R Beauchamp
bob@ocdlaw.com
23120 Alicia Pkwy
Second Floor
Mission Viejo, CA 92692
Tel:  949-370-8000
Fax: 855-370-8100



Just a little humor about divorce attorneys




This is all too true!

By: Robert R. Beauchamp www.ocdlaw.com
Law Office of Robert R Beauchamp
bob@ocdlaw.com
23120 Alicia Pkwy
Second Floor
Mission Viejo, CA 92692
Tel:  949-370-8000
Fax: 855-370-8100


What is court ordered child custody mediation and what effect does it have on the final custody arrangement?

In any divorce, legal separation, paternity action or any other type of case in which custody or visitation is in dispute, the court must refer the matter to the County’s mediation service. In other words, the Court provides what is intended to be a qualified child custody mediator to mediate these issues. In most California counties, attorneys are not allowed to be present during the mediation process. During the mediation, the mediator's role to use his or her best efforts to encourage an agreement between the parents regarding child custody in accordance with what the mediator feels is in the best interest of the child or children.

In some counties, if an agreement is not reached, the mediator will make a recommendation to the Court. At that time, either party may request that the recommendation be made an order of the Court. Either party may also dispute the recommendation and request a hearing. No agreement or recommendation is legally effective between the parties unless it has been made an order of the Court. The mediator may interview the child or children during this process.
If an agreement is reached in mediation, the agreement is reduced to writing and sent to the court.
In Orange County, if the parties fail to reach an agreement on child custody through mediation, either party my refuse to allow the mediator to share the mediator’s opinions with the court.  If you do not want the mediator to share his or her opinions with the court, you must indicate your preference in writing on a form provided after the mediation concludes.  If either party declines to allow the child custody mediator to share his or her opinions with the court, the mediator will simply notify the court the fact that the parties have or have not reached an agreement on child custody.

If you have additional questions, give us a call at (949) 370-8000, check our website at www.ocdlaw.com or our google page at: https://plus.google.com/107751038824543608718/posts?hl=en




By: Robert R. Beauchamp www.ocdlaw.com
Law Office of Robert R Beauchamp
bob@ocdlaw.com
23120 Alicia Pkwy
Second Floor
Mission Viejo, CA 92692
Tel:  949-370-8000
Fax: 855-370-8100


Welcome to our new blog for answers to divorce and custody questions

Welcome to our blog.  As a divorce lawyer in Orange County, California, working on cases involving divorce, child custody, child support, spousal support, domestic violence, we have found that there are some questions that almost always come up.  Those questions are usually variations of:

1.  How much time will I get with my children?

2.  How much child support can I expect to receive or how much child support will I be ordered to pay?

3. Does the fact that one party was unfaithful (cheated) affect my case?

4. Can my husband or wife move away with my children?

5. How long will it take to complete my divorce?

This blog will, over time, attempt to give some general answers to these and other questions.  With time, we hope that this blog will become a useful archive of answers to these and other questions.  So thank you for checking in.

Check our official website at www.ocdlaw.com, our Facebook page at: https://www.facebook.com/orangecountydivorceattorney, and our Google page at: https://plus.google.com/107751038824543608718/posts?hl=en

By: Robert R. Beauchamp www.ocdlaw.com
Law Office of Robert R Beauchamp
bob@ocdlaw.com
23120 Alicia Pkwy
Second Floor
Mission Viejo, CA 92692
Tel:  949-370-8000
Fax: 855-370-8100