• Community Property and No Fault StateOpen or Close

    The two pillars of California family law are that it is a no fault state and that it recognizes the concept of community property.

    “No fault” means that a party need not show fault by the other to obtain a divorce (called dissolution of marriage in California). A party only needs to plead that irreconcilable differences have arisen that has led to an irremediable breakdown of the marriage. A party will be granted a divorce 6 months after the other party has been served if so requested. If the financial issues are not resolved within this time period, a party can request the issue of the marital status to be bifurcated from the other issues, a Judgment to be entered. It is important to consult with counsel in a bifurcated request because certain obligations can be opposed on the requesting party until the financial issues are finally adjudicated.

    A court cannot take into account the “fault” or bad actions of one party, and cannot award more assets or support or other benefits to the “non-fault” party. The only areas in which “fault” or bad conduct will be considered is in child custody and visitation, especially where there has been domestic violence (see section on domestic violence). Further, a criminal conviction for domestic violence within the past 5 years against a spouse makes it difficult to obtain spousal support.

    “Community Property” is a concept used in California family law. It means in essence that during the marriage, whether one party or the other, earns money or accrues debt, both parties share in such gain and debt. This applies not only to savings from jobs but also to increase in value of businesses, development of patents or other intellectual property, stock options, deferred compensation and retirement plans, etc. and has global application, preventing a party from “exporting” his/her gain to a foreign jurisdiction or tax haven.

    Assets acquired prior to date of marriage or after date of separation are outside this definition, as are inheritances or gifts received by one party during the marriage, provided the party can trace the separate property claim. Given the possibility of divorces, it is recommended that separate property gifts and inheritances, as well as assets acquired prior to date of marriage, be either kept in separate name or detailed records maintained.

    The Law Offices of Robert J. Rothman have extensive experience in the varied and often extremely important determination of the extent and value of community property.

  • Mediation and Other AlternativesOpen or Close

    In a divorce, custody, or support dispute, the method to resolve the dispute depends on the level of acrimony and power relation of the parties. The Law Offices of Robert J. Rothman has experience in assisting clients in selecting the best resolution alternative for the client.

    Mediation is a method where parties meet with an attorney who acts as a neutral and assists the parties in developing the information necessary to resolve the dispute. Mediation is done in three way meetings with the two parties and the mediator. In mediation, each party will also have his/her consulting attorney to review the suggestions and potential agreements. Such individual representation is necessary because a mediator cannot act as either party’s advocate. Mediation is best suited to situations where both parties have equal knowledge and power in the relationship. Where this is not the case, mediation normally founders or one party is browbeaten by the other into a disadvantageous agreement.

    Collaborative law posits both parties retaining lawyers but agreeing not to use the court for any decisions. If either party wishes to use the court, then each party must obtain new attorneys. In the collaborative process, psychologists, coaches, and other third party sources are used. The collaborative process works best when there are significant assets to defer the costs of the process, minimum tension, and equal knowledge of the parties’ financial situation.

    Cooperative law presumes both parties wish to avoid going to court, are committed to working cooperatively with the help of their attorneys, and through an exchange of information and 4 way meetings will work toward a global Marital Settlement Agreement. In the event issues arise that need court input, the parties, unlike collaborative law, don’t have to retain new counsel.

    Litigation is used when the parties are at odds and can’t resolve their differences except by a neutral third party, the court. Court adjudication is efficient when used discretely, but often parties no longer seek out-of-court solutions. Because of the complexities of the litigating process, attorneys are indispensable.

    The Law Offices of Robert J. Rothman represent parties in all the above dispute resolution methods, and will suggest which method is best suited to the client’s situation.

Custody and Visitation

  • Child Custody EvaluationOpen or Close

    In situations where there is high conflict between parents the court either on request of a parent or on its own initiative might order a child custody evaluation.

    The evaluation can be focused or more general. Most courts maintain lists of experienced forensic psychologists and psychiatrists who have the necessary training, have been qualified as an expert witness before the court, and have performed such evaluations. If the parties can’t agree on a particular professional, the court will make the selection and issues the appropriate order.

    In a child custody evaluation, the expert will review the pleadings of the case, review other relevant documents, interview mother and father, meet with mother and the children (often several times), meet with father and the children (often several times), and interview important collaterals such as teachers, doctors, tutors, coaches, etc. The expert might also administer various psychological tests to the parents and sometimes the children, including Rorschach, MMPI, and similar tests.

    The expert will then write a report, often lengthy (normally from 25-125 pages), which reports are confidential and often can be read by clients only in their attorney’s office.

    Based on such reports, the court will schedule a Settlement Conference in an effort to see if the parties can reach agreement. If the parties cannot, the court will set the matter for trial.

    In a custody trial, the child custody evaluation will normally come in as evidence, based on the testimony of the expert.

    One or both parties often will retain their own respective expert to either poke holes or support the report. These reviewing experts will only have access to the report and the custody evaluator’s notes and other documentary material. However, they are not permitted to meet with the children. For this reason, their testimony normally goes to the four corners of the document and the errors in procedure, errors in reported information, failure to follow normal guidelines regarding the preparation of a custody evaluation, and errors in failing to consider alternative hypotheses.

    The court after all the evidence is heard will issue a decision. Custody decisions are always subject to review in the future since the State of California has opined that the best interest of the children must always be examined in light of the current facts.

  • Parent RelocationOpen or Close

    During or after a divorce a parent may want to move to another county, city, state, or country. These moves are normally driven by job offers, a relationship or pending marriage with a partner whose situation makes difficult or impossible to move, the need to find a less expensive living situation due reduced economic circumstances following the divorce, or the availability of parents, extended family or friends to assist in child care and support.

    Under the United States and California constitutions freedom of movement is guaranteed for all citizens and thus each parent can move without approval from the other or court. However, the children are subject to the court’s jurisdiction, or if an action isn’t pending a parent can so initiate an action and ask for the court’s intervention.

    In a relocation case or move away, the court has the very difficult task of deciding which parent the children will live with during the school year. The court must assume the parent stating he/she is going to move is sincere in the assertion. The court cannot make an order assuming that if it denies the requested move, the parent will stay.

    Because of the complexity of such cases, the court often will have a custody evaluation done (see Child Custody Evaluations).

    If after the completion of the custody evaluation and/or a Settlement Conference the case is still unresolved the court will set it for trial.

    Whatever the decision, the court will also fashion a timeshare schedule. Depending on the distance of the move away, the court might award most of the week long vacations such as Ski Week and Easter Vacation and Christmas break together with the majority or almost all of the summer with the parent not having the children during the school year weekdays.

    The court might also order one parent to contribute to travel costs for the other where the situation is justified, to wit, due to superior economic resources or that party asked for the move and the same was granted.

    The court generally will retain jurisdiction over the matter, and might require, especially in international moves, for a mirror order to be issued by the jurisdiction of the moving parent. Bonds could be ordered where enforcement is a potential issue.

Child Support and Spousal Support

California provides for child support to insure children of divorces and unmarried couples will have adequate financial resources. Child support is calculated by a complex algorithm which takes into account many factors, the three prime being timeshare, and the income of mother and father. A court can impute income to a parent based on facts. Income is defined in its widest usage and includes not only wages, but also passive income. Further, the court will include paper deductions such as depreciation and depletion, and add back voluntary contributions to retirement plans as the court deems appropriate. The court and family law attorneys have the software from which child support can be calculated.

Child support is paid until a child is 18 (or if still a full time high school student until he/she is 19), is married, or emancipated.

In addition to child support, parents normally will split the costs of health insurance, uninsured medical costs, and childcare (where a parent is working or seeking work). Add-ons such as sports, tutors, lessons and camp are also considered.

Child support will be paid either voluntarily or by an earnings assignment order.

Where a party is deemed a high earner, the court will disregard the computer calculations and make a determination of child support based on various factors.

If a party is paid a base plus bonus or commissions, child support will reflect the same so the party pays a base child support plus an additional amount if and when received.

Child support is always subject to court review, if the circumstances support such review.

Temporary spousal support is awarded in an attempt to maintain the status quo when parties separate. The same algorithm is used for calculating temporary spousal support. Spousal support is income to the receiving party and a deduction to the payor (compared with child support which is tax neutral).

Permanent spousal support cannot refer to the algorithm tables and must be considered based on a variety of factors including ability of each party to earn, health, needs, marital standard of living, age, and similar factors.

The goal in California is that a supported party will be self-supporting within a reasonable time. In a marriage of 10 years of less, this is normally one half the length of the marriage. In a marriage of more than 10 years the court normally will retain jurisdiction to review the situation.

The payor spouse can request the supported spouse to be examined by a vocational training consultant to determine the spouse’s abilities to work, opportunity, and projected income.

Spousal support, unless otherwise agreed, terminates on the earliest of death of either party, remarriage of the supported spouse, or court order. Additionally, if a supported spouse cohabits with a party in a romantic relationship there is a rebuttable presumption affecting the burden of proof for a decreased need.

The Law Offices of Robert J. Rothman have extensive experience in negotiating and litigating the varied circumstances and complexities of child and spousal support. In many cases, the amount and duration of support will be the most important issue in the case.

Property Division

  • Equal Division of Property and DebtsOpen or Close

    California courts are mandated to divide community property equally. The court first must determine what property is community and which is each party’s separate property.

    The presumption is that property accumulated during the marriage is community. To establish the separate property character, for example, property acquired prior to date or marriage, by gift or inheritance during marriage, or after date of separation, normally documentary evidence and testimony will be used if the matter goes to trial. Most issues of character and tracing can usually be resolved prior to trial by exchange of information and/or the use of a forensic accountant to review documents.

    There is a special rule governing the community’s share in the family residence where one party owned the home prior to marriage (title) but community property earnings were used to pay down the mortgage and/or make improvements.

    A second rule allows a party who owned a home prior to marriage but after marriage puts his/her spouse on title to recover certain value.

    Another rule allows a party to recover his/her separate property used to purchase a home during marriage. No interest or appreciation is allowed.

    Assets are valued at time of trial unless the parties have stipulated or the court finds date of separation the better date. This is an important concept since assets, for example, a home, can appreciate greatly during the period following separation but prior to trial. A business that is dependent on the efforts of one of the spouse’s is an asset that will normally be valued at time of separation. This can be an important issue where there has been significant increase/decrease in value and often is a trial issue, or decided at a bifurcated trial.

    Because date of separation is the cut-off point, the bright line, in regard to characterization of assets, this date loosely defined as the date one of the parties told the other the marriage was over and acted consistently with that declaration. This determination of this date can have enormous financial ramifications.

    The Law Offices of Robert J. Rothman has extensive experience in resolving community property issues, both by negotiation and at trial.

  • Valuing Businesses and Professional PracticesOpen or Close

    If a business is begun during marriage, the court will ordinarily award the business to one party or the other, based on which party was most active in the business. In such a situation, the court needs to value the business to determine what the non-owner spouse should be paid. If the business is being sold, then the market will determine value. But if one party retains the business, the court will hear testimony from the parties, forensic accountants, and other business valuation experts to determine the value of the business.

    If a business began prior to marriage, the court needs to do the same analysis, but also to value the business on date of marriage, since the pre-marital value is the separate property of the spouse who originated the business.

    If valuing businesses commenced prior to date of marriage, the court generally will follow one of two apportionment methods, depending on whether a business is capital intensive or income is derived primarily from the efforts of the spouse.

    An important determination will be whether the business should be valued at date of separation or at time of agreement or trial. This can be significant in that a business can grow or decline after date of separation. Generally, the court will value a business at time of trial unless a party can show that the fortunes of the business after date of separation are primarily driven by the acts and guidance of the participating spouse.

    In many professional practices—doctors, lawyers, accountants—the practice will be a sole proprietorship or small partnership and the court finds the date of separation as the appropriate valuation date. As a professional practice or business increases in size, it is more likely that the participating spouse’s contribution is outweighed by the entity’s institutional weight, and trial date will be selected as the date for valuation.

    The Law Offices of Robert J. Rothman have negotiated and litigated many issues of valuation and related issues. The firm also uses a team of experts when necessary to best support the valuation deemed appropriate, and to prove the valuation proffered to the judge hearing the matter.

  • Pensions, IRAs 401k plans and QDROsOpen or Close

    In today’s world, deferred compensation plans, qualified and unqualified, are often among the most valuable assets in a marriage. These plans not only have significant value, but because many will not be accessed until time of retirement their value will increase.

    Such plans will have no knowledge that a pending divorce action is pending. To insure the participant spouse does not cash in or deplete the deferred compensation plan, the Law Offices of Robert J. Rothman joins such plans to the divorce action, insuring that the assets of such plans will be protected. Joinder is a simple method whereby the court issues an order advising the plan that the plan of the participant is now subject to adjudication by the court. Once the plan is served, if the plan made an error and released monies to a participant spouse, the plan would have liability.

    During the dissolution of marriage process, read-outs of the benefits of each plan will be obtained. The Law Offices of Robert J. Rothman normally recommends that its clients retain an expert on determining value. This is especially true where the pension is a defined benefit, to wit, the pension is measured what it will pay out in the future.

    In defined contribution plans (for example 401k plans) often allocations need to be made between pre-marital contributions, contributions made during the marriage, and contributions made post-separation. Additionally, growth and appreciation will need to be calculated per a mathematical formula.

    A non-participant in certain deferred compensation plans can receive his/her share at time of divorce pursuant to agreement to an IRA. It is imperative that such transfer is from plan to plan to avoid taxation and all formalities required by the IRS are followed.

    Most retirement plans cannot be divided at time of the divorce. Instead, the court will issue a Qualified Domestic Relations Order (QDRO) dividing the assets. This order must be served on the Plan in question. The plan then will distribute to the non-participant spouse his/her interest when the participant retires or otherwise becomes eligible to receive the pension. To insure protection for clients, the Law Office of Robert J. Rothman uses special experts to insure a client’s interest is protected.

    Thereafter, the non-participant spouse needs to keep the pension(s) updated on any address change.

  • Transmutation of AssetsOpen or Close

    Transmutation in Family Law refers to a change or modification of a property from the separate property or one party to community property, from separate property of one party to the separate property of the other, or the reverse.

    California law holds that to transmute property an express declaration in writing by the party whose interest is being affected is required. Such formality is not required regarding gifts between spouses of clothing, jewelry, or similar items.

    Although the subject seems straight forward, there are many transactions that cause difficulty and need careful attention. One of the most common is the agreement by one party to have his/her name removed from title to a home or other real property due to poor credit. The spouse relinquishing ownership will testify that it was not his/her intent to divest himself/herself of his/her community rights in the property, but only to facilitate a new loan. Often such “transmutations” are done on the advice of a real estate or mortgage broker. The other spouse will testify that he/she never understood or agreed to such an interpretation, and the deed speaks for itself.

    Similar situations also develop regarding other assets where the relinquishing party asserts that the transmutation was done for another purpose than a transfer and there was either an explicit or implicit understanding that the relinquishing spouse still owned one half of the asset.

    The Law Offices of Robert J. Rothman has been involved in many such disputes and has the experience and expertise to negotiate an litigate these issues where necessary.

Premarital Agreements

Many parties about to marry have significantly different financial positions. Because the national average for divorce is approximately 50% (and higher on second and third marriages) parties often wish to protect themselves in such an event.

In California, such agreements are permitted and there are statutory provisions setting forth the parameters of such agreements; and certain matters that must be attended to since otherwise the agreement will be deemed void.

Because the stakes are so high when preparing such agreements, it is imperative to have the agreement drafted by experienced counsel. The courts construe such agreements narrowly and with a certain disfavor, and because the agreements often restrict or eliminate community property, rights to pensions, spousal support, and benefits on death any error can lead to a rejection of the agreement, in whole or in part.

Premarital Agreement may not limit or impair either party’s custody or visitations rights to after born children. Nor can such agreements restrict or limit child support.

Such agreements can limit or eliminate community property rights and limit or abrogate spousal support. It is noted that the courts have an inherent right to review a provision affecting spousal support—even if fairly negotiated--and can find such provision unenforceable if the effect at the time of enforcement would be unconscionable.

There are strict rules and procedures that must be followed regarding a party’s right to have a certain time to review and consider the Agreement, and prescribed rules on attorney review; and standards to be followed in a party does not have an attorney.

The Law Offices of Robert J. Rothman has extensive experience in drafting such Premarital Agreements.

Domestic Violence

Domestic violence has become a significant issue in our society. California provides that a party who has been subject to domestic violence, which includes stalking, harassment, physical, sexual and psychological abuse, impersonation, and similar acts may obtain a Restraining Order on an ex parte basis (no notice to the other side is required in this instance). Such request will often follow an acts or acts which result in an Emergency Protective Order, and the Restraining Order needs to be obtained quickly. The order can also protect the party’s home, job, and can cover third parties who are also subject to the threats and violence.

The court will set a hearing within a short period of time and at that time will deny or issue a permanent restraining order up to 5 years. Often there will be an evidentiary hearing with witnesses and tangible evidence presented.

For parties with children, supervised visitation or other forms of contact will be permitted as the court deems appropriate.

The laudable goal of protecting innocent parties who are subject to domestic violence, however, is often misused by parties who fabricate stories and even injure themselves to support such false allegations. The purpose of such conduct is often to force a party out of the family home, and gain advantage on issues of child custody, child support and spousal support. That is, under certain provisions of the family code a party whom a court finds has perpetrated domestic violence against the other will have a difficult time to obtain custody and his/her time share with the child(ren) will be abbreviated. Such findings then may result in significantly more child support because of a reduced time share with the children. Further, a party who has been convicted of a criminal act of domestic violence faces a difficult burden to obtain spousal support per a section of the Family Code.

Because of the far reaching implications of domestic violence, whether a party is a victim of the same or has been accused of such acts, immediate contact with experienced counsel is imperative. The Law Offices of Robert J. Rothman has represented parties in both situations in many cases and is well versed in the law in this area.